Al1 rights reserved by the
International Court of Justice
Tous droits rkservé par la
Cour internationale de Justice Abbreviated reference :
1.CJ. Pleadings,SolitWest A frica,
Vol.VI11
Référenca ebrégé:e
C.1.J.Mémoires ,ud-Ouestafricain,
vol.VI11
Sales number
No de vente: 325 SOUTH WEST AFRICACASES
(ETHIOPIAv.SOUTH AFRICA;
LIBERIAv.SOUTH AFRICA)
AFFAIRESDU SUD-OUEST AFRICAIN
(ETHIOPIEcAFRIQUEDU SUD;
LIBERIAc.AFRIQUE DU SUD) INTERNATIONALCOURTOFJUSTICE
PLEADINGS,ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICACASES
(ETHJOPIv.SOUTH AFRTCA;
LBERLA v.SOUTHAFRICA)
VOLUME VI11
COUR INTERNATIONALDEJUSTICE
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIEcAFRIQUEDU SUD;
LIBÉRIAcAFFUQUE DU SUD)
VOLUME VI11PRIKTED IK THE NETHERLANDS The present volume contains the miiiutes of the public sittings and
the oral arguments on the merits relatingto the Sowth West Africa
cases covering the period15 March to 26April 1965.The proceedings
in these cases. which were entered on the Court's General List on
4 November 1960 under numbers 46 and 47, were joined by an Order
of the Court of zo May 1961 (South West Africa, Order of zo May
1961I ,.CJ. Re#orts 1961,p. 13) .WOJudgments have been rendered,
the firstn 21December 1962(SowthWestAfrica, Prelimilrary Objections,
Judgment, I.C.J. Reports1962,p.319) .nd the second on18Jd 1966
(South West Africa, SecondPhase, Judgment, I.CJ. Reports196 B,p. 6).
The page references originalappearing in the pleadings have been
altered to correspond with the pagination of the present edition.
Where the referencc is to another volume of the present editionthe
volume is indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume reproduit les procès-verbaux des audiences
publiques tenues dans les affaires Sud-Oued africailz; iportesurla
période allant d15 mars au 26 avril1965 et contient le texte des plai-
doiries sur le fond prononcéesl'occasion de ces audiences. Les affaires
du Sud-Ouestafricainont été inscrites au rôle génCraIde la CouSOUS
par ordonnance delaCour le201mai 1961[Sud-Ouestafricain, ordo~nancees
du 20 mai 1961, C.I.J.Recueil 1961,p. 13). Elles ont fait l'objde
deux arrêtsrendus le 21décembre 1962(Sud-Ouestafricai-, exceptions
firéliminaites, arrt?t,C.I.J. Recueil 1962, p. et le18 juillet1966
(Sud-Ouestafricain, deuxièmephase, arrêtC.I.J. Recueil 1966, p. 6).
Les renvois d'un mémoire à l'autre ont été modifiés pour tenir
compte de la pagination de la présente édition. Lorsqu'il s'agit d'un
renvoi à un autre volume de la présente édition, uii chiffre romain
gras indique le numéro de ce volume.
La Haye, 1966. CONTENTS-TABLE DES MATIÈRES
PART II. ORAL ARGUMENTS (contiltuedj
DEUXIQME PARTIE. PLAIDOIRIES (suite)
Page
Public hearings held from 15 March to 14 July, 20 September
to r5 November and 29 November 1965 ,nd 21 March 1966 . . z
Auaue15enovembreueset29 novembre 1965,et14 zrimars21966te. .e . 3
Audience publique tenue leJ18yjuillet 1966. . . . . .. . . .. . Ior
I. Statement by Mr. Gross (Ethiopia-Liberia),18 III 65. . . .
2. Statement by Mr. Bames (Ethiopia-Liberia), 18 Irr65 . . .
3. Argument of Mr. Gross (Ethiopia-Liberia), 18 III65 . . . .
Incompatibility of apartheid with the Mandate . . . . . .
Ob'ective legal criteria by which that incompatibility cabe
deterrnined . . . . . . . . . . . . . . . . , . . . .
Alleged lapsing of the Mandate.j. . .al.p.o. .ti.n. . . . .
4. Argument of Mr. Moore (Ethiopia-Liberia), 18-19 III65 . .
Nature of the mandates system . . . . . . . . . . . . .
Principleof non-annexation . . . . . . . . . . . . . . .
Obligations of international accountability. , . . . . . .
Historical background during the period.1945-1949 . . .. . .
5. Argument of Mr. Gross (Ethiopia-Liberia),rg, 22-24 III65 .
obligations devolving from the "çacredtrust" of civilizatio.
Right of recourse to judicial protection (Article 7 of the
Mandate) . . . . . . . . . . . . . . . . . . . . . .
Right of the United Nations to exercise supervisory functio.s
International character of the functions entrusted to the
Union of South Africa . . , . . . . . . . . . . . . .
The concept of an organized international community . . .
The mandates system at the time of the League's dissolution.
Significance of Article 7, paragrap1, of the Mandate . . .
Limitations of Respondent's rights over the territor. . . .
Purpose of Article 80, paragraphnde1,of the United Nations .
Charter. . . . . . . . . . . . . . . . . . . . . . .
Respondent's attitude in 1946 . , . . . . . . . . . . . .X SOUTH WEST AFRICA
Page
Legal nature of Respondent's obligations toward the inhabi-
tants of the territory.................
The minorities treaties and the mandates system..........
Good faith in the exercise of discretion ..........
Legal norms for determining the nature of Respondent's
obiigationç .....................
Respondent'ç distinction between "norms" and "standards"
The Applicants' subrnissionsn o.............. race .....
6. Argument of Mr .de Villiers (South Africa). 3111-14IV65 ...
Introductory .....................
Applïcation for inspection in loco.............
Applicants' -charges in the pleadings and Respondent's
. repliesthereto ....................
African realities ...................
Dispute asto merits of Respondent's policies..........
Alternative suggested ................
Even admitted facts require evaluation ..........
Respective contentions as to the basis of adjudication . .
No power to adjudicate ................
Abuse of discretionary power ............
Noprinciplet.................... between method and
Necessity of fullïnvestigation ...............
States to be visited..................
South IVest Africa .................
. South Africa ...................
Ethiopia and Liberia ................
SchemeneofrRespondent's argumentsan ..................
Lapse of the Mandate and accountability .........
Relationship between two topics ............
How they arise ...................
Applicants' case uncertain and variable .........
SumLegal principles a plicablese................
Obligation relateS to specific body ..........
Event in 1945-1946 ................
Views subsequently expressed ............
350 Opinion ...................
Applicants' case.....................
Applications ...................
. Mernorials ....................
Observations-automatic succession .........
. Oral proceedings on Preliminary Objections .....
Not based on consent ...............
Judgment and opinions in rg62............... CONTENTS XI
Page
Counter-Mernorial ................. 297
Rejoindera........................ommunity ...... 297
Oral proceedings in 1965 .............. 299
. General principle of devolution .......... 300
Succession .................. 30'3
.. Article 80 (rj ................... 300
Summary of previous day's argument ......... 301
Article Bo (1)(cont.) ................ 302
. . Substantive~~ounds adyanced in oral proceedings . . 304
... Summary .................... 309
Applicants' reasoni for changing their case....... 3119
1962Judgment and opinions .......... 311
. .reatment in Rejoinder ............ 312
Expensescase ................ 312
Barcelona Traction case ............. 3r3
. Consequent dilemma as far as 1950Opinion concerned . 314
Applicants' reaction to dilemma .......... 314
Adjust oyn attitude .............. 315
Ambiguous about consent956r............nion .... -317
Summary ofconflicting contentions .......... 319
Implications of A plicants' charges ..........
Merits of the conf iPing contentions .......... 320
Legal principles applicable ................ 320
Article 38 of the Statute .......... .... 321
Only interpretation and implication relevant ..... 321
Interpretation ................... 322
Implication ..................... 323
EffRespondent's suggested reference to "clear text" .. ... 325
.What authors of Mandate tvould have done had they
foreseen the future................ 327
Use of wide terms ................. 329
Ba~cebnaTraction case .............. 331
Whether the supervisory authority was intended to be a
specific organ ................... 332
The nature of the implication sought to...be drawn by 333
Applicants-still contains element of succession . . 333
~es~ondent's argument re succession in pleadings ... 334
Applicants' counter thereto ............. 336
The importance of compromise in mandate arrangement
(historical survey) ................ 336
The founders of the Mandate were concerned about the
method and extent of accountability ........ 341
.Respondent's position .............. 348
Corprovisions of United Nations Charter t.......hip 353
Conclusions to be drawn from hiatorical survey ..... 354XII SOUTH WEST AFRICA
Page
Passage by Judge Van Wyk ........... 355
The meinbership of the League and United Nations not
Whether founders of the Mandatecontemplated a right of 356
annexation on the dissolution of the League ..... 357
AppIicability ofBarceEolzaTraction case to international
accountability.................. 358
Whether supervision essential where control and benefit
separated..................... 365
Analogy with Mandate ............... 369
Liability to report to the inhabitants....... 370
Events in the years1945-194 ............ 371
Nature of dispute and principlesapplicable thereto. . 371
Distitution of supervisory organsM.........d sub- 373
Views expressed by States regardingformer need not
include latter ................ 373
Court in 1950 accepted severabilit........ 374
Reliance upon Barcelona Traction case involves
acceptance of severability .......... 375
In fact States distinguished between these concept. 376
Foundation of the United Nations and its early history. 376
Early CO-existenceof League and the United Nations . 376
MaFrancisco ...................iscussed at San 376
No provision for mandates in Charter........
No obligation to conclude trusteeship agreement ... 3787
Work of Preparatory Commission ......... 378
Statements by Mandatories that certain mandates
would or might not corne under trusteeship .... 379
General Assernbly resolution re trusteeship (XI... 380
Getions (XIV)b..................ssumption of func- 380
Conclusions: futureofmandates deliberately avoided . 382
Applicants' contention that tacitagreement preferred
to express agreement .............. 383
Desire to avoid delay would suggest lack of any
agreement ................. 385
AppIicants' contention thatsupervisory authority of
United Nations assumed by Preparatory Commission 386
Conclusion(1............................ 391
Summary of preceding argument ........... 391
Final assembly of the League in April 1946 ...... 39I
Previously given little attention by Applicants.... 392
Rival contentions of the Parties........... 392
League attitude unlikely to differ from thofthe United
Nations .................... 393
BrLight thrown by UNSCO.....reort. ......... 393
And by British conduct ............. 395 CONTENTS XII1
Page
South African statement ..............
Light thrown by probabiIities ........... 398
Subsequent conduct ............... 399
French. New Zealand and Belgian statements ..... 399
Australian staternent ............... 400
Effect of Article 73(e) of the Charter ....... 40=
History of Article 73 (e) ............. 403
CoLight thrown by wording of resolution ........ 406
Chinese draft proposals ............... 406
Difference between them ............. 408
Applicants' explanation for difference in wording . . 408
Respondent's explanation for difference inwording . . 4x0
Chinese delegate aware of significance of difference. . 41=
Applicants' reliance on Chinese statement ...... 4'3
FiApplicants' interpretation.............. 4x4
Includes supervision ............... 414
French andAustralian statementç in support ..... 41.5
Similarity in concept and Ianguage in various stages... 415
Whether States present contemplated continuation of
Mandate as an institution ............
Conclusionan ...........................
Subsequent history of League assets. functions and
powers .....................
Article Ioa of the Charter ............
Common plan for handing over assets .......
Appointment of board of liquidation ........
Registration under Article .102...........
Report of board of liquidation ..........
Events in the United Nations after dissolution of the
League .....................
Applicants' contention ..............
Respondent's statements and actions ........
Method and purpose of survey ..........
ErWhole evidence ta be considered..........
No prior acceptance by Respondent of continued
accountability ...............
Statement that Mandate exists does not neces-
sarily entai1 substitution of supervisory organ.
Differencessof view on this question o......ate
No diffcrences as to accountabilit.......
Distinction between supervision and agreement
as to change of status ..........
Eritrea .................
West Irian ...............
Palestine ................ SOUTH WEST AFRICA
Page
Rdationship between Articles 6 and 7.... (1)... 433
. Statements in autumn 1946 .......... 434
hlemorandum of 16 October 1946 ....... 435
. Submission of proposa1 for incorporation ..... 436
. . Statement by Smuts on 13 November 1946 (ref-
. . erence to Art73 (e)) ............
ApOpinions'.................assages in the 1950
Debateç in the Fourth Cornmittee .......
......
. . Respondent'ç conduct after re jection6ofincorporation
proposa1 ..................
. . Letter of 23 July 1947 .............
Letter of 22 September 1947 .........
. Later statements by Respondent .........
Staternent by AIr .Lawrence in November 1947 194. .
Conclusion ...................
. Events subsequent to September 1947 .......
Submisçion of information ...........
Action of Trusteeship Council ..........
Submission of further information ........
. Reçpondent's attitude thereanent .........
WheMandatespo...................laimed rights under the
Statement by Mr .Louw on 18 November 1948 . .
Statement before General Assembly on 17 January
1946 ....................
Staternent by Mr .Louw on g Novernber 1948 ...
Statement by Alr .Louw on 26 November 1948 . .
Staternent by Mr .Louw on 16November 1948 . .
ConMinority opinion of 1956spo.........t...ments . .
....... .........
. . Resolution of House of Assembly : ........
: Significance of statement by other States .....
Resolutions of the United Nations .........
. General Assembly resolution 65 (1) of 14 December
1946 .....................
Generai Assembly resolution 141 (II) ofI November
1947 ............ : .......
IleRlembershipuste...........................
. Australia ...................
. Belgium ...................
China ....................
Costa Rica ..................
France ....................
hiexico..................... CONTENTS
Page
.. Kew.Zealand .................... 478
Soviet Union ........................... 479
. Great Britain ..................... 482
. United States of America ............. 482
.. China (cont.) ................. 484
Summary and contentions ........... 485
. Debates in the United Nations generally (1947-194 .9)486
. . Conclusions from statements quoted in Counter-
.... Belgiumria............................ 486
. BraziI ...................... 487
.. Cuba ......:................ 488
.. India. ..................... 488
. Uruguay ............................. 489
... Mr .Gross' reactioc ............... 490
.. Respondent's reply thereto-distinction between'
.... visorvaorgansand.................ion of super-
... ~ttitule af the United States.of America .....
... Aleged confusion between alternative methods of
... supervision ....................
.. Statements regarding other .........
... New Zealand .................
.. .UNSCOP Unio..........................
.United States of Arnerica ............
The case of Palestine ................
. . Mr .Moore'sattack on Respondent's liçt of 25 States .
... States which signed Palestine report .......
. . Cuba. 1ndia.and Uruguay ............
. United Statesstatement to Court in 1950 .....
... China and the Philippines ............
The alleged view.of the United Nations as..a whole .....
Its relevance to consent by Wespondent ........
Applicants' factual premise incorrect .........
.. Resolution 65.(I ). ...............-
.. Resolution 141 (II) .................
.. Resolutions 227 (III) and 337 (IV) .........
Conclusion as to events in.the United Nations after dissolu-
.tion of the League .................
FVhether administration of the territory amounts to a con-
Analysis of Applicants' contentionthe ..........ions . .
Whether actual consent to a substitution of supervisory
. organshas been proved ...............
Principles of estoppel or preclusion ..........
.. No representation by Respondent .........
. Respondent not understood to have made a representa-
tion ........................XVI SOUTH WEST AFRICA
Page
No inconsistent conduct ...............
Suggested relationsliip between Article 6 and Article 7 (rj 5x7
of the Mandate ..................
. Applicants' contention ...............
Article 7(1) as such lapsed on dissolution of League...
Function performed by Article 7 (1) .........
ModSubmission of a matter to the United Nationsher....ns
Respondent's attitude and conduct ........
. 1950 Opinion .................,
.McNair's minority opinion .............
General Assembly resolution 65 (1)of14December 1946 .
Respondent's contention regarding 1950 Opinion ....
Conclusionts....................it it.........
The suggested analogy with the cy-presdoctrine .....
The 1950 Opinion and 1962 Judgment and opinions ....
Weight to be attached to previouç judgments and opinions
(AppIicants' res judicata contention) ........
Memorials ....................
Counter-Mernorial ................
Rejoinder......................
TheCourt'sfindingsregardingsupe .rv..si.on
1950 Opinion ...................
1962Judgrnent and opinions ............
. Respondent's anaiysis .,,,..........
. Applicants' attitude in the Replyand Oral Proceedings
SirLouissMhanefo's opinion..............
The Judgment .................
. Finding is inconsistent with Applicants' argument .
The reasoning applied .............
.Essentiality .................
Reliability .................
Agricants' contentions.............
*'%l important facts stated" .........
"Mandate as a whole ... in force" .......
No express attention given to Article 6 by Court. .
Essentiality (cont.)..............
. . Only applies if no United Nations succession .
summary ofReçpondent's contention ........
TheReasons exist for departing therefrom ........
Applicants no longer defend its reasoning ......
Its correct interpretation.............
General considerations .............
Article 80 (1) .................
Final League resolution. ............
Article IO of the Charter ............ CONTENTS XVlI
Page
Exlutions141c(II); 227 (III} a337 (IV)....(Reso-
Summary of Respondent's interpretation of the 555
1950 Opinion ................ 556
Interpretations suggested by Applicant..... 556
Succession-no consent by Respondent in 1945-
1946 ................... 556
New facts...................... 557
. + Proposa1 for a temporary trusteeship cornmitt.e557
Original Chinese proposa........... 557
Practice of State.............. 558
Applicants' denial that the facts ar..... 558
Applicants' difficulty as to materiality of the560cts
SuOpinion...................ntention t-e 1950
1955and 1956 Opinions ............. 561
Lapse of the Mandate ................ 562
Respondent's attitude consistent wlth that in Preliminary
Objections ................... 563
Primary contention that Articl6 has lapsed ..... 566
PrincipIe of severabil............... 567
Inseverabiiity of Mandate aot logically essen.... 567
PrViewedof1950tOpinion a..............ate...... 548
1962Judgrnent and opinions ........... 568
Professor J.F, Hogg ............... 570
Kelsen ..................... 570
Views and conduct of interested State...... 571
. . Final League resolution............ 571
Views in the United Nations1946.1949 ..... 572
Court's reference thereto 1950 19.......... 573
Whether they involve an estoppel ........ 574
a Respondent's contention that Mandate has lapsed... 574
. Alternative findings possibl............ 575
. Practical effect of such findin.......... 575
Applicants'.reaction to Respondent's submissirelape
of Mandate ................... 576
The expression "international supervision..... 576
The consequences of essentiali.......... 577
Ifaccountabilit y...............atofinternational
If the obligation relatedto a specific supervisory577
organ ................... 578
Summary of rival contentions............ 580
Effect of the compromissory clause on survival of
Mandate .................... 581
Possible findings on Applicants' Submissi1. 2.7 and8 . 583
Article2 (2)ofthe Mandate-Submissions 3 and 4 .... 584
Distinction between interpretation and applicat... 585 XVIlI SOUTH WEST AFRICA
Page
The principles of interpretation ..........
... Principle of contemporaneity ..........
: . . Broadly formulated constitutional type obligations
... ReRegulalionand Controlof Aeronacsticsin Canada
Certain ExPenses of the United Nations case ...
Brown v: Board of Education ..........
' Summary of Respondent's interpretation of Article 2 (2) . .
7 . ~rgurnent of Mr . Grosskopf (South Afiica). 14 xv65 ....
Thon alleged violations of Article ju2i............adjudicate
Arguments presented in Respondent's pleading .....
. No reply thereto in Applicants' pleadings ........
Contentions raised by Applicants in Oral Proceedings . .
Absence of jurisdiction would strip obligation of its legal
nature ..................:....
Comments by Sir Hersch Lauterpacht ........
Views of Quincy Wright ...............
: . Professor Feinberg ....................
... MaMurra caand Altshe~leral.......................
.. Winter .....................
.. Denial of justice to aliens ..............
. Afterthought ...................
' . . Minimum- international standard not generally ac-
S . cepted in .192o. ...................
Judicial review as regards such standards uncornmon
. International standards in itself a limited concept . .
. Minorities and I.L.O. constitution ...........
OthEuropean Convention on Human Rights .......
Conclusion .................. : ...
8 ..~r~urnent o'fMr .de Villiers (South Africa). 14 rv65 .....
Alternative contention :abuse of discretionary power ....
Introduction .......................
Issue turns on interpretation of Article 2 ........
. Interpretation submitted by Respondent ........
.. Propositions (a) and (b) ..............
Propositions (c) and (d) ..............
Purpose basic to ofaptrust or mandate..............
Sir Arnold McNair's opinion in 1950 .......
The Maladates System :-Origire : Principles : Afipli-
I . cation ....................
Hymans report ................
1950 .Opinion ...................
. Chief Justice Lathan ..............
... 1962 Judgment ................
. Lord Hailey ................. XX SOUTH WEST AFRICA
Page
Court asked for judicial legislation........ 639
. Manner in which intent may be established ..... 640
. Extent . of Applicants' reliance on Respondent's
.... intent .................... 640
RepIyria...................... 640
Rejoinder ................. 640
Oral Proceedings ................ 643
Differencebetween Parties as to nature of intent and
its proof .................. 644
The presumption that foreseeable conseqvences
are intended ................ 646
. . iluthorities in municipal systems ....... 647
What evidence can be led to establish intent ... 649
Evidenke adduced by AppIicants ....... 651
~oncluiion as to Applicants' reliance on intent ..... 652
. Applicants' relia'nceon norms and standards ...... 653
Singular or plural ................. 653
History of norm of non-discrimination ........ 654
. . Mernorials ................... 654
Counter-Memorial ................ 657
. NReply in.....................liminate discretion ... 661
Rejoinder .................. 661
Appiicants' denial that théy ihtroduced new cause of
action in thé Reply .............. 661
Further change in oral argument-content of norm
'qualified .................... 663
. .Reintroduces discretionary element ........ 664
. .Protection and coercion not mutually exclusive ... 665
What is comprehended in "protection" ...... 665
Reçpondent's admitted policies do not contravene it 666
Difierentiation accepted and contemplated in Mandate 667
and League period ................ 667
. Generally ..................... 668
The Mandates tiiemselves and Article 22 of the COV-
enant ..................... 669
Attitude of the Permanent Mandates Commission . . 670
' Authors of the Mandate aware of South African
policies.................... 671
Protection and coercionn o................... 673
By what process did differentiation become illegai ....
Distinction with Browncase in United States ..... 674
Applicants* contention that existence of norm not denied . 674
Respondent's dissent ................ 675
Have Applicants established standards or canons of good
government .................... 676
Applicants' relationship between norms andstandards .. 676 CONTENTS XXI
Page
Standards based on views of governments. but conduct
irrelevant .................... 677
United Nations requirements in education ..... 678
Court not to examine merits of such views ...... 679
Also adopt views of United Nations agencies .... 680
Propositions established in preceding argument ..... 680
ReApplicants' criticism thereofn............tandards . . 681
Applicants' attempt to create new source of law .... 682
Authorities quoted by Applicants .......... 682
Corfu Channel .................. 683
Louisiam ex rel .Francis v.Resweber ........ 683
Denial of justice to aliens-source of validity of
obligation................... 683
Functiony Wof Permanent....Mandates Commission re- 683
garding standards ............... 684
Denial ofjustice to aliens-content of obligation ... 686
True significance of modern standardsofadministration . . 689
Test of abuse of power provides valuable check .... 691
Inference ofmala fidesmust be a necessary one .... 692
Requestion offmethod.om............... thought only on 693
Standard of non-discrimination ............
Distinction between non-oppression and non-differen- 493
tiation ..................... 694
Condemnations of Respondent's policies ....... 694
Draft Convention on elimination of al forms of racial
discrimination .................. 695
Differentiation between nationals and aliens-analogy 696
with South West Africa ............ 696
Other permissible forms of differentiation...... 697
Measures for protection ............. 700
Whether a dispute of fact existç between the Parties ... 701
If Applicants rely on absolute norrn ......... 701
Premises of Respondent's policiesica............ 701
Weight of scientific authority........... 702
Applicants' definition of apartheid......... 703
What purpose envisaged for Applicants' contemplated
future treatment of facts ............. 704
Finding in Respondent's favour in law would eliminate
factual enquiry ................ 705
Unilateral modification of the Mandate (Submissions 5 706
and 9) ...................... 707
Factual disputes .................. 708
Intent to incorporate................ 7'39 PART II (continzced)
SECTION B
ORAL ARGUMENTS ON THE MERITS
PUBLIC HEARINGS
held/rom 15Marchto 14 July,20 Sepiemberto
15 Novemberand 29 j'Vovembe1965,21 March and
on18 July 1966, thePresideSir PercyS$ender,
presididing
PARTIE II (sz4ibe)
SECTION B
PLAIDOIRIES RELATIVES AU FOND '
AUDIENCES PUBLIQUES
telzzses15cmars az14 jziillet20dse$tmbre
azt15novembre, le29 novembr1965,le21 mars
ele 18 jjuil1966,souslafirésidende
sirPercySpelzder,Prbsident MINUTES OF THE HEARINGS HELD FROM
15 MARCHTO 14JULY, 20 SEPTEMBER TO
15 NOVEMBER AND 29 NOVEMBER 1965,
21 MARCH AND ON 18JULY 1966
FlRSTPUBLICHEARING (15II65, 3 p.m.)
Presen:PresidentSirPercy SPENDER; ice-PresidentWellingto; Koo
Iudges WINIARSKB I,ADAWIS , PIROPOULOSSi,r Gerald FITZMAURICE,
KORETSKT Y, NAKAJE,SSUP, ORELLPI, DILLNERVO F,ORSTEGR, OS;
Judges ad hoc Sir Louis MBANEFva,n WYK;Deputy-RegistrarAQUA-
RONE.
Also $resenl:
For thGouermme~ oj Ethiofia:
H.E. Dr. Tesfaye GEBRE-EGZY,
The Honourable Ernest AG~oss,Member of theNew York Bar,
as Ageat;
Mr.Edward R.MOORE U,nder Secretary of State of Liberia,
Mr. Keith HIGHET,Member of the New York Bar,
asCounsel.
FOTtheGovernmentofLiberi:
H.E. Mr.Nathan BARNES,
The Konourable Ernest A. G~oss, hliemberof the New York Bar,
as Agent;
Mr.EdwardR. MOORE U,nder Secretary of State of Liberia,
Mr. Keith WIGHETM, embeof the New York Bar,
as Counsel.
For thGovernmentofSouthAjric:
Dr. J. P. verLoren van THEMAT.,C.,Professor ofInternational Law
at the University of South AandcConsultant to the Department of
Foreign Affairs,
Mr. R. MCGREGO De, uty ChiefState Attorney,
asAgeltts;
Mr.D.P. de Villiers,S.Member of the South AfricBar,
Mr. G. vanR.MULLERS ,.C., Member of the South African Bar,
Dr. P. J. RABIÇ.C.,Member ofthe South African Bar,
Mr. E. M.GROSSKOP MF,mber of the South AfriBar,
Dr. H.J. 0.van HEERDENM . emberof the South AfncBar,
as Coic7tsel;
Mr.R. F.BOTHA ,epartment of Foreign Affairsand Advocate of the
SupremeCourt of SouthAfrica,
Mr.W. J. ALLEN,Department of Bantu Administration and Devel-
opment, PROCÈS-VERBAUX DES AUDIENCES TENUES DU
I3 MARS AU 14JUILLET, 20 SEPTEMBRE AU
r NOVEMBRE ET 29 NOVEMBRE 1965,
21 MARSET LE I 8JUILLET 1966
Présents: sir Percy SPENDER,Président; M. WELLINGTOKNOO,
Vice-Prdside;MM. WINLARSKB I,ADAWIS ,PIROPOULO sr, Gerdd
NERVOFU, ORSTERGROSO,uges; sir Louis MBANEM,.van WYK,Jsgc~A
ad hoc; M.AQUARONG Er,efieradjoint.
Présentskgaleme:t
Pour LeGotrvernemet Aiqùi:n
S. Exc. M.Tesfaye GEBRE-EGZY,
L'honorable Ernest A. GROSS,membre du barreau de New York,
commeagents;
M.Edward R. MOOREs,ous-secrétaired'Etat du Libéna,
M. KeithHIGHET m,embre du barreau de New Yocommeconseils.
Pour le Gouvernemenltib:rien
S. Exc. M. Nathan BARNBS,
rhonorableEmest A. G~oss, membre du barreau de New York,
comm agents;
M. KeithHIGHETO,embre dubarreaude New York, Libéria,
CM??&&conseils.
Pour le Gouvernementsud-afr:cain
M.J.P.VERLORE VANTHEMAA SC,professeurdedroitinternational
Affairesétrangères,rique du Sud, consultant auprésdu département des
M.R. MCGREGO Ch,iefState Attorneyadjoint,
comme agents;
M. D. P.de VILLIERSS,.C., membre du barreau d'Afriquedu Sud.
M. G. van R. MULLERS,.C.membre du barreau d'Afrique du Sud,
M. P. J. RABIE,S.C.,membre du barreau d'Afrique du Sud,
M.E. M.GROSSKOP me,mbre du barreau d'Afrique du Sud,
M. H. J. 0.van SEERDENm , embre du barreau d'Afrique du Sud,
cmme consei:s
M. R. F.BOTHA,du département des Affaires étrangéres,avocat A
Ia Cour suprêmed'Afrique du Sud,
M.H. J. ALLENd,u départementde l'Administretdu Développe-
ment bantous,4 MINUTES
Mr. H. HEESE,Department of.Foreign Affairs and Advocate of the
Supreme Court of South Africa,
asAdvisers.
The PRESIDEKo Tpened the hearing and delivered an address to mark
the twentieth anniversary of the United Nations.
After formally opening the hearing in the South West Africa cases,
the President said that before, however, proceedhg further, mention
should be made of a matter of a preliminary character, not concerned
with the merits of the case, which had suddenly arisen at the instance
of the Agent for one of the States Parties to these proceedings. In
these circumstances the Court had decided to recess the public hearing
short recess, the Court would reconvene and sit in private to hear thisa
preliminary matter, in accordance with a decisionof the Court taken un-
der Article 46 of the Statute of the Court, andthere being no objection
by the Parties.
'TheConwt roseut 3.20$.nt.
(Sig~ed)Peïcy C.SPENDER,
President .
' (Siglzed) S.AQUARONE,
Deputy-Registrar.
Presmd: [Seefirst public hearing.]
The Court sat in private to hear the contentions of the Parties with
regard to the application of the Respondent concerning the composition
of the Court [see South West Africa, Order of 18March 1965, I.C.].
RePorfs1965, page 33.
The Coudrose at 6p.m.
[Signatures.]
Present :[See hearing of 15 III65.1
The Court sat in private to hear the contentions of the Parties with
regard to the application of the Respondent concerning the composition
of the Court [see South West Africa, Order of 18 March 1965, I.C.J.
Reports1965,page 31.
TheCoecrt rose atII &.m. M.H. HEESEd , u dgpartement des Affaires étrangéreç,avocaà la
Cour suprêmed'Afrique du Sud,
commeconseillers.
Le P~ÇIDENTouvre l'audience et prononce une allocutionl'occasion
du vingtiéme anniversaire des Nations Unies.
Aprésavoir officiellement ouvert la procédure orale dans les affaires
du Sud-Ozrestafricain, le Président déclarequ'avant de poursuivre, il
doit mentionner qu'une question de caractère préliminaire, ne touchant
pasau fond del'affaire,vient soudainement de se poser sur l'initiative de
l'agent de l'un des Etats Parties aux instances. Cela étant, laaCour
décidéde lever l'audience publique ah d'examiner immédiatement
le problème. A cet effet, après une brève suspension, la Cour se réunira
Aliuis clos pour s'entendre exposer cette question préliminaire, confor-
mément B ladécision qu'ellea prise en vertu de l'article 46 du Statut
dela Cour et,sans objection de la part des Parties.
L'audienceest levéea 15h20
Le Président,
(Sigd) Percy C. SPENDER,
Le Greffier adjoint,
(Signé)S. AQUARONE.
PREMIÈRE AUDIENCE A HUIS CLOS(15 11165,15h 35)
Présent: [Voir premiéreaudience publique.]
La Cour siègeA huis clos pour entendre les observations des Parties
sur la requéte du dkfendeur relatià lacomposition de la Cour [voir
Sud-Ouest africain, ordonnalaced~ 18mars 1965, C.I.J R.ec~eil 1965,
P.31-
L'audienceest levéed 1A
[Signatures.]
Prksenls: [Voir audience d15 11165.1
La Cour siègeAhuis clos pour entendre les observations des Parties
sur larequêtedu défendeur relativeà la composition de la Cour [voir
Sud-Ouest africarn, ordonnancedu 18 mars 1965, C.I.J. Recuei1965,
P. 31.
L'airdienceestlevàeII h
[Signatures.]6 MINUTES
Present: [Seehearing of151x165.1
The PRESIDEN sTid that the public hearings in the South West Airica
cases were resumed. They had been suspended sinc15 March to enable
the Court to hearin private an application by South Africa concerned
with the composition of the Court to hear and decide on the cases pre-
sently before the Court, and to enable the Court to deliberate thereon,
On that application an Orderwas made by the Court. After reading the
text of the Order of 18March 1965,the President called upon the Agent
for the Applicants.
Mr, GROSS made the speech reproduced in the annexl.
The PRESIDENcT alled upon Mr. Barnes.
Mr. BARNES made the speech reproduced inthe annex =.
The PRESIDEN called upon Mr. Gross.
Mr. GROSb Segan the speechreproduced in the annex '.
TheCourtadjourned /rom 11.20 am. to 17.40am.
Mr. GROSS concluded the speech reproduced in the ann'.
The PIESIDENc alied upon Mr. Moore.
Mr. MOORE began the speech reproduced in the annex=.
TheCourtrose ai12.55 p.m.
[Signalwcs.]
Prasent: [Seehearing of15 III65.1
The PRESIDENoT pened the hearing andcalIed upon Mr. Moore
hlr. MOORE continued the speech reproduced in the anne6.
TheCourtadjouriaedfrh 11.20 am. 11.40 a.m.
Mr. MOORE concluded the speech reproduced in the anne'.
The PRESIDENT called upon Mr.Gross.
Mr. GROSS began the s eech reproduced in the annex
?P ~,wtr Torsa.1 *.m.
[SignaturesJ
Pvesent: [See hearingof15 III65.1
The PRESIDENo Tpened the hearing and called upon Mr. Gross.
Seep. 105.
Seep.106.
Seepp.107-120.
* See pp.120-136.
' Seepp. 138-155.
Seepp. 155-166.
Seepp. 167-170. Présents:[Voir audience du 15rIr65.1
Le PRÉSIDENT déclareque la Cour reprend en audience publique les
affaires du Sud-Ouestafricain. Les audiences ont étésuspendues depuis
le 15 mars pour permettre Q la Cour d'étresaisieàhuis clos d'une re-
quêtedéposéepar l'Afrique du Sud relativement à la composition de la
Cour aux fins des affairesqui lui sont actuellement soumises,et pour lui
permettre de délibérersur cette requête,Sur ladite requête,la Cour a
rendu une ordonnance. Après avoir lu le texte de l'ordonnance du 18
mars 1965:
Le PRÉSIDENT donne la paroleà l'agentdes demandeurs.
M.GROSÇ prononce l'exposéreproduit en annexel.
Le P~SIDENTdonne la parole à M.Barnes.
M.BARNEp Srononce l'exposéreproduit en annexe*.
Le PRÉSIDENT donne la paroleQ M. Gsoss,
M. GROSc Sonunence l'exposéreproduit en annexe3.
L'audience,susfiendued XIh 20, estrefiriseII Ia40
M. G~oss termine l'exposéreproduit en annex'.
Le PRÉÇIDENT donne la paroleA M.Moore.
M.MOORcE ommence l'exposéreproduit en annexe 5.
L'audienceest levéd 12 h 55
[Sig~atures.]
PrLsents:-voir audience du 15III65.1
Le PRÉSIDEN ouvre l'audience et donnelaparole àM.Moore,
M.MOORc Eontinue l'exposéreproduit en annexe6.
L'audience,srss$endueàII h 20, estreprise II h40
M. MOORE termine l'exposéreproduit en annexe7.
Le PRÉSIDENT donne la paroleiiM. Gross.
M. GROScommence l'exposéreproduit en annexe 8.
L'audienceestIevéed 13 h
[Signalurcs.]
Présents:voir audience du 15 III65.5
Le P~SIDENT ouvre l'audience et donne la parolAM.Gross.
Voir p. 105.
2 Voir p. 106.
VoVoirp.120-136.
voirp.136138.
6Voir p.138-155.
Voir p155-166.
Voir p.167-170.8. MINUTES
Mr. G~osscontinued the speech reproduced in the annex l.
TheCourtadjournedfrm 4.20 p.m. to4.40p.m.
Mr. GROSS continued thes eech reproduced in the annex2.
The ourtrose al6 $.na.
[Signdures.]
Present: [Seehearing of15 III65.1
The PRESIDEN oTpened the hearing and called upon Mr. Gross.
Mr. G~oss continued the speech reproduced in the anne3.
TheCourtadjourned )rom11.20 #.m. to11.40am.
Mr.GROS Sontinued the speech reproduced in the anne'.
Th Courtrose atr p.m
[Signatzcres,]
SIXTH PUBLIC HEARING (24III65,IO a.m.)
Present: [Seehearing of15 31165.1
The PRESIDENo Tpened thehearing and called upon Mr. Gross.
Mr. GROSc Sontinued the speech reproduced in the annex
TheCourtadjournedfrom 11.20a.m. to11.4 0m.
Mr.G~ossconcluded the speech reproduced in the annex 6.
The PRESIDENaT sked when the Respondent would be ready to pro-
ceed with its presentation.
Dr. VERLORE VAN THEMAA said that Respondent had hoped-tobe
ready by Monday, 29 March, but the presentation on behalf of thAg
plicants had been longer than expected, had introduced new material,
and had dealt with certain factual issues. In those circumtances
Respondent wouldneed until at least Tuesday to prepare its argument
fully.
The PRESIDEN saidthat whilehe would have hoped that Respondent
might have been able to commenceon Monday,the Court would adjourn
until Tuesday, 30March, at IO a.m.
TheCourt *oseai ?p.m.
[Signatures.]
--
l See pp170-818.
SM pp. 188-204.
See pp204-221.
Seepp.221-236.
Seepp. 237-253.
See pp. 253-269. M.GROSÇcontinue l'exposéreproduit en annexe
L'audience, suspendueIi 16k 20,estreprised 16 h 40
M. GROSS continue l'exposéreproduit en annexe =.
L'audienceestEevLed 18h
[Signatuves.]
CINQUIÈME AUDIENCE PUBLIQUE (23III65, IO h)
Présents:poir audience du 15 III65.1
Le PASIDENTouvre l'audience et donne la parole à M. Gross.
M. GROSS continue l'exposéreproduit en annexe 3.
L'audience, suspendued II h 20,estreprised II h 40
M.GROSS continue l'exposéreproduit en annexe *.
L'audienceestlevied 13 h
[Sigwatwes.]
Présents :[Voir audience du 15 rrI65.1
Le PRESIDEN ouvre l'audience et donne laparole AM.Gross.
M. GROSS continue l'exposéreproduit en annexe 5.
L'audience,susfwndue d II h zo,estrefirisehII h 40
M. G~oss termine l'exposéreproduit en annexe 6.
Le PRESIDENd Temande quand le défendeur sera prêtà présenter ses
plaidoiries.
M. VERLOREN VAN THEMAAd Téclare que le défendeur espérait être
prêt à prendre la parole lelundi29 mars mais que les demandeurs ont
plaidéplus longuement que prévu et qu'ils ont présenté unedocumen-
tation nouvelleet traité de quelques points de fait. Dans ces conditions,
il conviendraitde donner au défendeur au moins jusqu'au mardi pour
préparer compl&tementses plaidoiries.
Le F'R~IDENT déclarequ'il espéraitque le défendeurserait en mesure
de commencer ses plaidoiries lelundi; la prochaine audience se tiendra
toutefois le mardi 30 marsAro h.
L'a.udie~ceest Eevée 13 h
[Signatuves.]
Voirp. 170-188.
2 Voir p188-204.
4Voir p.221-236.
"Voir p.237-253.
Voir p.253-269. MINUTES
Present :[See hearing of 15 III65.3
The PRESIDENo Tpened the hearing and called upon the Agent for the
Government of South Africa.
Dr. VERLOREN VAN THEMAAa Tsked the President to cal1upon Mr. de
Villiers.
The PRESIDEN cTUedupon Mr.de Villiers.
Mr. de VILLIERS began the speech reproduced in the annex l.
The PRESIDENT asked the Agent for the Applicants whether it was
his desire to express any view upon the matter which had been raiçed
by the Agent forSouth Africa, or whether he would prefer to express
such views as he desired to put to the Court at a later stage.
Mr. GROSSreplied that with the Court's leave the Applicants would
not deal with the subject then, but would reserve their right to deal
with it in what they would regard as a more suitable time and context.
It had been raised prematurely, and involved serious issues of fact with
which the Applicants had not dealt in deferencetothe viewthat questions
of Iaw were to be treated at the present stage.
The PRESIDENT calied upon &Ir.de Villiers to continue his address.
Mr. de VILLTEKcS ontinued the speech reproduced in the annex =.
The Coud adjourfledfrom 11.20 a.m,to 11.40 a.m,
Mr. de VILLIERS continued the speech reproduced in the annex 3.
TheCourtroseat I $.m.
[Signatures.]
EIGHTH PUBLIC HEARING (31 II165,IO a.m.)
Pvesent :[Seehearing of 15 III65.1
The PRESIDENT opened the hearing and cded upon Mr.de Viliiers.
&Ir.de VILLIERS continued the speech reproduced in the annex '.
TheCoctrtadjournedfrom II.25 am. doII.45 a.m.
.Mr.de VILLIERS continued the speech reproduced in the annex 5.
TheCourtroseaf12.55 p.nz.
[Signatures.]
Present : [See hearing of 15 III65.1
The PRESIDENo Tpened the hearing and calIed upon Mr. de Villiers.
iifr. de VILLIERS continued the speech reproduced in the annex 6.
Seepp. 270-280.
Seepp. 280-285.
+ Seepp. 301-317.
5 Seepp. 317-331.
= SeePP. 331-347. Présents:[Voir audience du 15 III65.1
Le P~SIDENTouvre l'audience et donne la parole A l'agent du Gou-
vernement sud-africain.
M. VERLORE NAN THEMAA prie le Présidentde bien vouloir donner
la paroleà hl.de Villiers.
Le PRÉSIDEN donne la paroleA M. de Villiers.
M. de VILLIERcS ommence l'exposéreproduit en annexe l.
Le PRÉSIDENT demande &l'agent des demandeurs s'il désiredonner
son avis sur la question soulevéepar l'agent de I'Afnque du Sud ou s'il
préféreprésenter à la Cour Ztun stade ultérieur les vues qu'il désire
exprimer.
M. GROSS répond qu'avec la permission de la Cour les demandeurs
préféreraier netpas discuter la question immédiatement et se réserver
le droit d'en traiteà un moment et dans un contexte plus appropriés.
Cettequestion, quia étéintroduite prématurément,soul8ved'importants
points de fait que les demandeurs n'ont pas encore abordésétant donnk
que la présente phasedoit porter sur les points de droit.
Le PRÉSIDENT invite M. de Villieràcontinuer sa plaidoirie.
M.de VILLIERS continue l'exposéreproduit en annixe =.
L'audience,susfiendue2 xr h20, estrepriseriII h40
M.de VILLIERS continue l'exposéreproduit en annexe 3.
L'audienceest levieà 13 A
[Signatures.]
HUITIÈME AUDIENCE PUBLIQUE (31 II165,IO h)
Présents:voir audience du 15 III65.1
Le PR&SIDEN ouvre l'audience et donne la parole à M.de Villiers.
M. de VILLIERS continue l'exposéreproduit en annexe 4.
L'audience, suspendue àII h 25,est refiris2II It45.
M. de VILLIERS continue l'exposéreproduit en annexe
L'audienceestlevée la12h 55
[Signatures.]
Présents:poir audience du 15 III65.3
Le PRÉSIDEN oTuvre I'audienceet donne Ia parole AM. de Villiers.
M. de VILLIERcS ontinue l'exposéreproduit en annexe 6. .-'
1 Voir p. 270-280.
2 Voir p.280-285.
Voir p.285-300.
4 Voir p. 301-317.
Voir p.317-33r.
6Voir p.331-347.12 MINUTES
TheCourtadjourned from.rr.ao @.m. to1r.40 a.~.
hlr. de VILLIERS continued the speech reproduced in the annex '.
TheCourtrose ut 12.55$.m.
[Signatures.J
Present :[Seehearing of 15 III65.1
The PRESIDEN opened the hearing and called upon Mr. de ViIliers.
AIr.de VILLIERS continued the speech reproduced in the annex2.
TheCourt adjorcrne/rom 11.20 a.m. to11.4a0m.
Mr. de VILLIERS continued the speech reproduced in the annex 3. .
The Court roseat 12.55p.m.
[Signatures.]
Present: [Seehearing of15 Irr 65.1
The PRESIDENT opened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERS continued the speech reproduced in the annex *.
TheCourtadjourned/rom 4.20p.m. to4-40$.m.
Mr. de VILLIERS continued the speech reproduced in the annex 5.
The Coecrrosed 6#.m.
[Signatures.]
Present:[Seehearing of 15 III65.1
The PRESIDEN oTpened the hearing and called uponMr. de Villiers.
Mr. de VILLIERS continued the speech reproduced in the annex 6.
TheCourtadjournedfrom 11.20 a.m. to11.40 a.m.
Mr.de VILLIERS continued the speech reproduced in the annex '.
The Courtrose ut12.50 #.m.
[Signatures.]
1See pp.347-362.
See pp. 362-377.
See PP.377-391.
See pp.406-421.
6Seepp. 422-436.
See pp.436-450. L'azddience,usfmzdued II h zo,estrepriseà II h go
M. de VILLIERS continue I'exposéreproduit en annexe '.
L'audienceest levéeà12 h 55
[Signatures.]
Présents:[Voir audience du 15III65.1
Le P~SIDENTouvre l'audience et donne la parole à BI.de Vaers.
31. de VILLIER continue l'exposéreproduit en annexe 2.
L'audience, suspendueà rxh 20, est reprisà II k40
Ir, deVILLIER cSntinue l'exposéreproduit en annexe 3.
L'audienceest levéeà12 h 55
[Signatures.J
Préselats:[Voir audience du 15IIr65.1
Le P~SIDENToume l'audience et donne la paroleà M.de Villiers.
X, de VILLIERS continue l'exposéreproduit en annexe +.
L'audience,suspendue à 16 h20, est reprisà 16 h 40
M. de VILLIERS continue l'expor seproduit en annexe 5.
L'audience estkvke 18h
[Signatures.]
Présents:[Voir audience du 15III65.1
Le PRÉSIDENo Tuvre l'audience et donne la parolà M.de Villiers.
N. de VILLIER continue l'exposéreproduit en annexe 6.
L'awdidnce,srns#endzru Ir h20, estrefirlse211 h 40
M. de VILLIER cSntinue l'exposéreproduit en annexe '.
L'audienceest lmèed 12 h 50
[Signatures.]
Voir p. 347-362.
* Voir p. 377-391.
+ Voir p. 391-406.
Voirp.406-421.
Voit p.422-436.
Voir p. 436-450.I4 MINUTES
Present: [See hearing of15 III65.1
The PRESIDEN opened the hearing and called upon Mr. de Villiers.
Mr. de VILLIER continued the speech reproduced in the annex 'l.
TheCourtadjournedfromrr.zo o.m. to 11.40 a.m.
&Ir.de VILLIERcS ontinued the speech reproduced in the annex 2.
TheCourtroseat 12.55 $.m.
[Signafures.]
Present: [See hearingof 15 III65.1
The PRESIDEK oTened the hearing and calledupon Mr. de Villiers.
Mr.de VILLIER continued the speech reproduced in the annex 3.
TheCourtadjourned /rom 11.20 a.m. lo11.40 a.m.
Mr. de VILLIERc Sontinued the speech reproduced in the annex '.
TheCourtroseat 12.40P.m.
[Signatures.]
Preselt: [See hearing of 15 III65.1
ThePRESIDEN opened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERc Sontinued the speech reproduced in the annex 5.
TheCoccrtadjourned/rom 11.20 am.to 11.40 a.m.
Mr. de VILLIER continued the speech reproduced in the annex 6.
The Court rose af12.55 9.m.
[Signatures.]
Presefit: [See hearingof 15 11165.1
The PRESIDEN oTened the hearingand called upon Mr. de Villiers.
Mr. de VILLIERcS ontinued the speechreproduced in the annex '.
lSee pp.450-465.
Sce pp. 465-481.
See pp. 481-496.
'See pp.508-523.
See pp.523-538.
'See PP.538-553. Présents: [Voir audience du 15 III65.1
Le PRESIDENT ouvre l'audience et donne Iaparole AM. de Villiers.
11.de VILLIERS continue l'exposéreproduit en annexe l.
L'audience, suspendue u II h 20, est reprisÙ II h 40
M.de VILLIERS continue l'expo~é reproduit en annexe 2.
L'audieaceest levéeri12 h 55
[Signatures.]
Pre'sents:[Voir audience du 15 III65.1
Le PRÉSIDENT ouvre l'audience et donne laparole à M. de Villiers.
M. de VILLIERS continue l'exposéreproduit en annexe 3.
L'audience,s?sspertdueà II h zo, est reprisÙ II h 40
hI,de VILLIERS continue l'exposéreproduit en annexe '.
L'audienceest levéeà 12 h 40
[Signatures.]
QUINZIÈME AUDIENCE PUBLIQUE (9 IV65, IO h)
Présents :[Voir audience du 15 III65.1
Le PRÉSIDENT ouvre l'audience et donne la parole ?tM.de Villiers.
31. de VILLIERScontinue l'exposéreproduit en annexe 5.
L'audience, suspendue à II h 20,est repriseà II h 40
31. de VILLIERScontinue l'exposé reproduit en annexe 6.
L'audienceest levéeli12 lz55
[Signatures.]
Présents:voir audience du 15 III65.1
Le PRESIDENT ouvTel'audience et donne la parole (LM.de Villiers.
M. de VILLIERScontinue l'exposéreproduit en annexe '.
Voir p450-465.
Voirp. 465-481.
Voir p481-496.
Voirp.496-508.
Voir p.508-523.
Voir p. 523-538.
Voir p. 538-553.16 MINUTES
TheCourtadjourrzedfrom #.zop.m. to4.40 p.m.
hlr.de VILLIER continued the speech reproduced in the annex l.
The Courtroseat j.50 +.m.
[Sigmztures.]
SEVENTEEXTH PUBLIC HEABING (131V 65, IOa.m.}
Yreselzt; [See hearing o15 11165. Judge Spiropoulos was absent.]
The PRESIDENoT pened the hearing and announced that Judge Spi-
ropoulos was indisposed and would not be sitting. He called upon Mr. de
Viliiers.
Mr. de VILLIERcSontinued the speech reproduced in the annex '.
TheCourtadjournedfrom rr.zo a.m. to11.4 a0.m.
hlr. de VILLIERcS ontinued the speech reproduced in the annex.
The Court roseat 12.5 j.m.
[Signatzsres.]
Preseglt:[See hearing of 1511165. Judges Winiarski and Spiropoulos
absent.]
The PRESIDEKoT pened the hearing and announced that Judge Spiro-
poulos remained indisposed and would not be sitting. Judge Winiarski
was unable to sit, for persona1reasons. He called upon &Zr.de Villiers.
Mr. de VILLIERcS oncluded the speech reproduced inthe annex 4.
The PRESIDENc Talled upon hlr. Grosskopf.
Mr. GROSSKOm Pade the speech reproduced in the annex 5.
The PRESIDENcT alled uponMr. de Villiers.
Mr. de VILLIERScommenced the speech reproduced in the annex 6.
TheCourtadjounredfrom 11.20 a.m. to11.4 0.m.
hlr. de VILLIERcSontinued the speech reproduced in the annex '.
The PRESIDEN anTnounced that a member of the Court desired to put
aquestion to the Parties, and called upon Judge Jessup.
Judge JESSUP asked both counsel for the Applicants and counsel for
the Respondent toreply at someconvenient time to the followingquestion :
"In the interpretation and applicationof Article 73of the Char-
ter of the United Nations, isSouth West Africa to be considered
one of those 'temtories whose peoples have not yet attained a full
l SeePP. 553-567.
Seepp. 567-580.
See pp.580-594.
SecPP. 594-595.
' Seepp.596-610.
Secpp.612-625.. L'audie~rces,uspendue à 16 h20, estrepriseà 16h 40
RI.de VILLIERS continue l'exposéreproduit en annexe l.
L'a~dienceest lmécà 17 7 50
[Signatures.]
DIX-SEPTIÈ~IE AUDIENCE PUBLIQUE (13 IV65, IO h)
Présents:[Voir audience du 15 III65. M.Spiropoulos, absent.]
Le YRÉSIDENT ouvre l'audience et donne la parole à M. de Villiers. II
annonce que M. Spiropoulos, souffrant, n'assistera pas à l'audience.
hl. de VILLIERScontinue l'exposéreproduit en annexe 2.
L'audience,suspendue à II h20, est reprisà II h 40
M. de VILLIERScontinue l'exposéreproduit en annexe 3.
L'audienceest levéed 12 h jj
[Signatures.]
PrLsenls:j7'oir audience du 15 II65. ;MM. Winiarski et Spiropoulos,
absents.]
Le PRÉSIDENT ouvre l'audienceet annonce que Bi.Spiropoulos, encore
souffrant, n'assistera paà l'audience.hl.Winiarski sera également em-
pêché de siéger,pour des motifs d'ordre personnel. 11donne la parole
M. de Villiers.
M. de VILLIERS termine l'exposéreproduit en annexe 4.
Le PR~SIDENT donne la parole à M. Grosskopf.
M.GROSSKOp Pononce l'exposéreproduit en annexe 5.
Le PRBSIDENT donne la parole A M.de Villiers.
M. de VILLIERS commence l'exposéreproduit en annexe 6.
L'audience,suspendue àIr h 20, estreprisaÙ II h 40
31. de VILLIERS continue l'exposéreproduit en annexe 7.
Le PRESIDENTdéclare qu'un membre de la Cour désire poser une
question aux Parties et donne la parole à M. Jessup.
M. JESSUP demande aux conseils des demandeurs et du défendeur de
rCpondre, à un moment approprik, A la question suivante:
nAux fins de l'interprétation et de l'application de l'article 73
de la Charte des Nations Unies, le Sud-Ouest africain doit-il titre
considéré commel'un des aterritoires dont les populations ne
Voirp. 553-557.
2Voir p. 567-580.
Voir p.580-594.
Voir p.594-595.
Voir p.596-610.
Voir p.611-612.
Voir p. 612-625.18 MINUTES
measure of self-government' asthis phrase is used in that article?"
TheCourtroseut12.55#.m.
[Signatzctes.]
Present: [See hearing of15 III65. Judge Winiarski absent.]
The PRESIDENT opened the hearing and a~inounced that Judge li-
niarski would not be sitting. He called upon Mr. de Villiers.
Rlr.de VILLIER continued the speech reproduced in the annes l.
TheCourtadjotwnedfrom 11.20 a.m. to11.45 a.m.
Mr.de VILLIERcS ontinued the speech reproduced in the annex 2.
The PRESIDEXIannounced that Judge Koretsky desired to put a
question to the Respondent.
Judge KORETSK put the following questionta the Respondent :
"If the Mandate for South West Africa lapsed on the termination
of the League of Nations, what, in Respondent's view, is now the
legal nature of the right of the Republic of South Africato adminis-
ter South West Africa?"
The PRESIDENs aid that the Respondent lould at the appropriate
time reply to the question put by Judge Koretsky.
The Court roseutI2.50 p.m.
[Sig~zatures.]
TWENTIETH PUBLIC KEARING (23 IV65, IO &m.)
Present:[See hearing of 15 11165. Judge Winiarski absent.]
The PRESIDEN opened the hearing and announced that Judge Wini-
arski would not be sitting. He called upon Mr. de Vaers.
Mr. de VILLIERcSontinued the speech reproduced inthe annex 3.
The Coz~r tdjourned from 11.20 &.m. tu11.40 a.m.
Mr. de VILLIER continued the speechreproduced in the annex '.
The PRESIDENa Tsked the Agent for the Applicantswhen he would
be prepared to proceed with the presentation of his views on the request
of the Respondent forinspection, if Mr. de Villiers concluded hiçspeech
on 26 April.
Mr. G~oss stated that the Applicants would be prepared to proceed
on 27 April.
The PRESIDENsT aid that it was understood that after the presentation
of the Applicants' views on the request for inspection, the Respondent's
reply on thisquestion would follow immediately or after a very brief ad-
Seepp. 639-652.
Seepp. 652-667.
Seepp. 667-680. s'administrent pas encore compléternent elles-mêmes P au sens où
cette expression est employéedansledit article?
L'audienceestleveé à12 la55
fSignatures.]
Présents:[Voir audience du 15 III65. M.Winiarski, absent.]
Le PRESIDENo Tuvre l'audience et annonce que M. Winiarski n'assis-
tera pasà l'audience. Il donne la paroleiiM.de Villiers.
M. de VILLIERS continue l'exposéreproduit en annexe l.
L'audience,suspendue à II R20, estrepriseà II h 45
M.de VILLIERcS ontinue l'exposéreproduit en annexe 2.
Le YRÉSIDENT annonce que M. Koretsky, juge, désireposer une ques-
tion au défendeur.
RI.KORETSK pose la question suivante au défendeur:
cSi le Mandat pour le Sud-Ouest africain est devenu caduc & la
dissolution de la Société des Nations, quelleest maintenant, de
l'avis du défendeur, la nature juribique du droit de la République
sud-africaine administrer le Sud-Ouest africain?i>
Le PR~SIDEKd Téclareque le défendeur répondra en temps opportun
3 la question poséepar M. Koretsky,
L'audienceestlevée à 12 h 50
[Signatures.]
VINGTIÈME AUDIENCE PUBLIQUE (23 IV 65,10 h)
Présents :poir audience du 15 III65. M. Winiarski, absent.]
Le PRÉSIDEN ouvre l'audience et annonce que M. ifriniarski n'assis-
tera pas à l'audience. Il donnelaparole à 3%.de Villiers.
RI.de ~'ILLIERScontinue l'exposéreproduit en annexe 3.
L'audience,suspendue à II h 20, est reprisà II 140
M.de VILLIERc Sontinue l'exposéreproduit en annexe 4.
Le PRÉSIDENd Temande à l'agent des demandeurs quand il sera prêt
à exposer scs vues sur la requêtedu défendeur relative iiune visite sur
les lieux, en supposant que M.de Villiers achkve la plaidoirie le 26 avril.
M. GROSS déclare que les demandeurs pourront prendre laparole le
27 avril.
Le PRESIDEN déclarequ'il est entendu que, lorsque les demandeurs
auront exposéleurs vues sur la requêterelativeà une visite sur les lieux,
le défendeur leur répondra immédiatement ou aprés une tres bréve
Voir p. 625-639.
2Voir p. 639-652.
Voir p.652-667.
Voir p. b67-680.journment. Thereafter the Agent for the Applicants would present his
viewsin reply on the legal issues.
TheCozrrtrose ut12.4j p.m.
[Siglzatures.]
Present :[Seehearing of 15 III65.Judge IViniarski, absent.]
The PRESIDENo Tpened the hearing and announced that Judge IVini-
arskw iould not be present untilz8 April. He called upon Mr.de Villiers.
Mr. de VILLIER cSontinued the speech reproduced in the annex l.
TheCourtadjour& from4.20 +.m. to 4.40p.m.
hlr. de VILLIER concluded the speech reproduced in the annex 2.
TheCourtroseal 6.0 j p.m.
[Signatures.]
Present: [Seehearing of 15 III65. Judge Winiarski, absent.]
The PRESIDENT opened the hearing and called upon the Agent for the
Applicants ta commence hisreply to the request of the Respondent for
inspection.
Mr. GROSb Segan the speech reproduced in the annex 3.
TheCourtadjourned/rom11.20 @.M. 20 II.@ am.
Mr. GROScontinued the speech reproduced in the annex +.
Th Courtrose~t I +.m.
[Signatures.]
Present: [Seehearing of 15 III 65.1
The PRESIDENo Tpened the hearing and called upon the Agent for the
Applicants. .
Mr. G~oss continued the speech reproduced in the annex =.
The PRESIDENa Tnnounced that a Member of the Court desired to put
a question to him as Agent for the Applicants, and called upon judge
Sir Gerald Fitzrnaurice.
Judge Sir Gerald FITZMAURs ICiEthat his question was directed to
enabling him to feel quite clear as to the position taken by the Appli-
cantsover the question of inspection and witnesses. It fellinto two parts.
Seepp. 680-695.
2 See pp.695-712.
3 SeeIX, pp.1-18.
SeeIX. pp.18-31.
5 SeeIX, pp.31-44.interruption et qu'ensuite l'agent des demandeurs présenterasaréplique
orale sur les points de droit.
L'audienceest ievéeà 12 h 45
[Signafures.]
Présents:voir audience du 15 III65. 31.Winiarski, absent.]
Le PRÉSIDEN o uvre l'audience et annonce que M. Winiarski sera
absent jusqu'au 28 avril. Il donne la parole àBI.de Villiers.
M.de VILLIERc Sontinue l'exposéreproduit en annexe l.
L'audience, suspendueri16 h zo, est reprisà 16 h 40
M. de VILLIERtS ermine l'exposéreproduit en annexe 2.
L'audienceest levéeà 18 h 5
[Signatures .]
Prisents: [Voir audience du 15 III65. M. Winiarski, absent.]
Le P~ÇIDENTouvre l'audience et invite l'agent des demandeurs à
présenter sa réponse à la requêtedu défendeurrelative à une visite sur
les lieux.
M.GROSS commence l'exposéreproduit en annexe 3.
L'audience,sus#endue à II h 20,est reprise rr I40
BI.GROSS continue l'exposéreproduit en annexe '.
L'audience estlevéeà r3 h
[Signatures.]
Présents: [Voir audience du 15III65.)
Le PRÉSIDENT ouvre l'audience et donne la parole l'agent des de-
mandeurs.
M.GROSc Sontinue l'exposéreproduit en annexe 5.
Le PRÉSIDENT annonce qu'un membre de la Cour désire poserune
question à l'agent desdemandeurs et donne laparole à sirGerald Fitz-
maurice.
Sir GeraId F~TZMAURIC déEclare qu'il désirese faire une idéetrès
précisede la position des demandeurs quant la visite sur les lieux et
quant aux auditions des tkmoins, La question qu'ilposera en consé-
quence se divise en deux parties:
1 Voir p. 680-695.
3Voir IX,p.93-18..
' VoirIX,p. 18-31.
' Voir IX, p. 31-44.22 MINUTES
I.Was the Applicants' contention about apartheid to be under-
stood in the sense thata policy of group differentiation was in all
circumstances, necessarily and in itself, contrary to Art2cof the
hlamdate, irrespective of any other steps taken by the Mandatory
for promoting the welfare of the inhabitants of the mandated
Territory?
2. If the Applicants' contention did not go so far as that, and
if there might be circumstances in which measures of group differen-
tiation might have some justification, would the Applicants stili
wish to maintain that an investigation of the factuai situation, by
hearing evidence or by local inspection, would be wholly super-
fluous?
The PRESIDENaT sked Mr. Gross for clarification on a point in relation
to Submissions 3 and 4 inthe Memorial. Submission 3 was thatthe Court
should adjudgeand declare that the Respondent:
"in the respects set forth in Chapter V of this Memorid and sum-
marized inparagrapfis 189 and gothereof, has practised apartheid,
i.e. has distinguiçhed as to race, color, national or tribal origin in
establishing the rightsand duties of the inhabitants of the Terri-
tory; [and] that çuch practice is in violati..."
of the obligations of Artic2eof the Mandate. Submission 4 was thatthe
Court should adjudge and declare that the Respondent:
"by virtue of the economic, politicai, socald educationai policies
applied within the Temtory, which are deçcribed in detail in Chap-
ter V . ..and summarized at paragraph 190"
not çummanzed in paragraphs 189 and igo
"has failed to promoteto the utmost the material and moral well-
being and social progress of the inhabitants.. ."
What was the distinction between the one and the other?
TheCourtadjourned front11.20 a.m. toII.45 a.m.
Mr. GROSSconcluded the speech reproduced in the annex '.
The PRESIDENT said that his enquiry had been directed to the phase
of the proceedings concerning the question on inspection, and he would
be grateful if hlr. Gross would give his answer to it before that phase
was concluded. He asked the Agent for the Respondent whether he would
be prepared to proceed on the following morning.
Dr. VERLORE NAN THEMMT said that before replping in detail to
the speech made by the Agent for the Applicants, the Respondent would
wish to have an opportunity of studying the verbatim record, which
would requireanadjournment until30 April. He asked ifNT.de Villiers
might be allowed to make a short general statement in respect of the
inspection and the need for an adjournment until 30 April.
The PRESIDEN called upon Mr. de Villiers.
Mr. de VILLIERm Sade the speech reproduced in the annex 2.
The PRESIDEN said that he expected that when Mr. Gross replied
l SeeIX, pp.44-53.
SeeIX, pp.54-55. UI.L'allégation des dernandem concernant l'afiartheid doit-de
êtreentendue comme signifiant qu'une politique de différenciation
entre les groupes est en toutes circonstances, nécessairement et en
soi contraireà l'articlz du Nandat, quelles que soient les autres
mesures prises par le Mandataire en vue d'accroître le bien-être des
habitants du territoire sous Mandat?
2. Si l'allégation des demandeurs n'allait pas jusque-la et s'il y
avait des circonstances dans lesquelles des mesures de différencia-
tion entre les groupes seraientà certains égardsjustifiées, les de-
mandeurs voudraient-ils encore soutenir qu'une en uêtesur la si-
tuation de fait par voie d'audition des témoinsouJe visite sur les
lieux seraitout à fait superflueii
Le PRÉSIDEN demande à M. Gross des éclaircissements sur les con-
clusions nos3 et 4 des mémoires.Par la conclusion no 3, il est demandé
à la Cour de dire et juger que le défendeur:
adans toutes les circonstances exposées au chapitre V du présent
mémoireet résuméesdans les paragraphes 189et rgo dudit mémoire,
a pratiqué l'apartheid, c'est-à-dire qu'[il] a établiune discrimination
fondéesur la race, la couleur, l'origine nationale ou tribale, lorçqu'[il]
a fixéles droitset devoirs des habitants du Territo;[et] que cette
Mandat]es.onstitue une violation [des obligations de l'artic2edu
Par la conclusion no 4, il est demandéà la Cour de dire et juger que le
défendeur :
upar l'effet des principes économiques, politiques, sociaux et édu-
catifs appliquésdans le Territoire et décritsen détailau chapitre V
. ..puis résumésau paragraphe 190 [et non plus aux paragraphes
189et rgo] ... n'a pas accru par tous le moyens en son pouvoir le
bien-êtrematérielet moral ainsi que le progréssocial des habitan.s
Queile distinction convient-il de faire entre ces deux conclusions?
L'audience, susfiendueà II h20, estrepriseLi11 A45.
M. G~oss termine l'exposéreproduit en annexe l.
Le PRASIDENT souLigne que sa question entre dans le cadre de la
présente phase de la procédure,relativeà la visite sur les lieux, et qu'il
serait reconnaissant à M. Gross de lui répondre avant la fin de cette
phase. 11demande B l'agent du défendeur s'il esprêt à reprendre la
parole le lendemain matin.
M. VERLORE VNAN THEMAA déclareque,avant de répondre endétail
A l'exposéde l'agent des demandeurs, le défendeur souhaiterait avoir la
possibilitéd'étudierle compte rendu intégral delaprésente audience, ce
qui rendrait nécessaire d'ajourner les audiences jusqu'au 30 avril. 11
demande que M. de Villiers soit autorisé à faire une brève déclaration
d'ordre ghéral sur la visite sur les lieux et larnécessitéde renvoyer
la suite des audiences au 30 avril.
Le PRÉSIDENd Tonne la parole B M. de Villiers.
M. de VILLIE RrSnonce l'exposéreproduit en annexe *.
Le PR~SIDENc Tompte qu'en répondant à sa question relative aux
VVoir IX, 54-55.24 MINUTES
to bis enquiry in relation to Submissions 3 and 4 in the Mernorial, re-
plies would be forthcoming to the questions which had been raised by
Mr. de Villiers. As he had understood the Applicants they had said
that apartheid, that wasto Say,distinguishing as to race, colour, national
or tribal origiin relation to the rights, duties andstatus of individuals
was,fierse and in itselfa breach of the Mandate. That waswhy he had
asked the Applicants whether Submission 4 in the Mernorial was in any
way different to Submission 3, and ifsoin what respect. He cailedupon
Mr.de Villiers.
Mr. de VILLIERS said that an adjournment had been requested untii
30April to enable Respondent to study the verbatim record carefully;
the following afternoon was another possibility.
The PRESIDENsT aid that he had hoped that hir. de Villiers would have
been prepared to proceed on the following rnorning, but ia Party said
that it was unable to proceed and requested an adjournment, then he
thought the Court would be prepared to accede to the request. He
called upon the Agent for the Applicants.
Mr. GROSÇmade the speech reproduced in the annex l.
The YRESIDEN add,ressing Mr. Gross, said that it was important for
the determination of the future pracedure in the case and of the very
issue which the Court was now cailed upon to decide, namely whether
it should accede to the request for an inspection, that it should have
made clear to it what was in issue on the point svhich hadbeen raised
by himself arising out of the Applicants' Submissions3 and 4 inthe Me-
morid. \Va5 there any disputenow that the caseturned solely, from the
Applicants' point of view, upon the issue whether differentiation or dis-
crimination as to race, colour, national or tribal ongin, had been prac-
tised by the Respondent in establishing the rights and duties andstatus
of the inhabitants of the Territory through its policy of apartheid, and
that that was the sole basis upon which the Applicants rested their
case that there had been a breach of Article 2 of the Mandate? Or was
there an alternative bais upon xvhich they sought to make out their
case, namely that irrespective of any such differentiation or discrimi-
nation, b its policies of administration in fact applied by the Respon-
dent in le variouç economic, political, social and educational fields it
had failed to promote to the utmost the material and moral well-being
and social progressof the inhabitants. If that could be clarified, it might
well be that a great deal of the evidence foreshadowed by the Respon-
dent might become unnecessary.
Mr. GROSS said that he would endeavour to attempt a reply to the
question and asked when the President desired this to be done.
The PRESIDENT said that-.hilehe was very reluctant that the Court
should lose a day's sitting, it was noteasy to readjust the programme
to meet in the afternoon, and it would adjoum until ro a.m. on 30 April.
At that time it would be of assistance to the Court if hlr. Gross gave the
clarification which he had asked for before he called upon Counsel for
the Respondent .
The Court roseut Ip.m.
[Sigaatures.]
' seelx, pp. 56-58. conclusions no83 et 4 des mémoires M. Gross répondra aux questions
soulevéespar M.de Villiers.SilePrésident abien compris les demandeurs,
race, la couleur, l'origine nationale ou tribale quant aux droits, aux de-
voirs et au statut des personnes, constitue en soi une violation du Man-
dat. C'est pourquoiila invitéles demandeurs Adire si la conclusion no 4
de leurs mémoiresdiffkrede la conclusion n3 et, sioui, en quoi. Il donne
la paroleà M. de Villiers.
M. de VILLIERS indique que, si un ajournement a étédemandé jus-
qu'au 30 avril, c'est pour permettre au défendeurd'examiner attentive-
ment le compte rendu de l'audience. On pourrait aussi envisager de
tenir une audience le lendemain après-midi.
Le PRÉSIDENdT éclare qu'ilavait espéréque II.de Villiers serait prêt
à plaider dès le lendemain matin mais que, lorsqu'une partie déclare
qu'elle n'est pas en mesure de plaider et demande un ajournement, la
Cour ne peut qu'accueitlir favorablement sa demande. Il donne la parole
à l'agent des demandeurs.
M. G~ossprononce l'exposéreproduit en annexe l.
Le PRESIDEN iTdique hM Gross qu'ilimporte, pour fixerla procédure
ultérieure et pour résoudre le problème qui se pose présentement à la
Cour et qui est de savoir si elle doit faire drAila requêterelative A
une visite sur les lieux, d'obtenir une réponse clàila question que le
Président a poséeau sujet des conclusions nos 3 et4 des mémoires des
demandeurs. Est-il maintenant contesté que l'affaire consiste exclusive-
ment pour les demandeurs à déterminer si une différenciation ou une
discrimination fondée sur la race, la couleur, l'origine nationaletri-
bale a étépratiquee par ledéfendeur,dans lecadre desa politique d'apart-
heidp ,our établir les droits, les devoirs et le statut des habitants dii
Territoire et que c'est 1Ale seul motif sur lequel les demandeurs s'ap-
puient pour prétendre qu'il y a eu violation de l'article z du Mandat?
Ou bien Ies demandeurs se fondent-ils sur un autre motif, à savoir que,
indépendamment de cette différenciationou discrimination, le défendeur,
par l'effet de sa politique administrative en matikre économique, poli-
tique, sociale et éducative, n'a pas accru par tous les moyens en son
pouyoir le bien-être ainsique le progrés social des habitants. Si cela
par le défendeur pourrait se révélerinutile.yens de preuve annoncés
M.GROSd Séclarequ'il s'efforcerade répondreAla question et demande
quand le Président l'inviteraà le faire.
Le P~SIDENTdéclarequ'il hésite beaucoup Afaire perdre un jour A
la Cour mais qu'il n'est pas facile de modifier son horaire et de la faire
siégerdans I'aprhç-midi; les audiences sont donc suspendues jusqu'au
30avril A ro h. 11sera alors utile Ala Cour que, avant que le défendeur
prenne la parole, M. Gross donne les éclaircissements qui lui ont été
demandés.
L'audienceestlevéed 13 h
[Signatures.]
Voir IX, p. 5658.26 MINUTES
TWENTY-FOURTH PUBLIC HEARINC (30 IV65, IO a.m.)
Present: [See hearing of15 III65.1
The PRESIDENo Tprned the hearing and called upon the Agent for the
Applicants.
Mr. G~oss made the speech reproduced in the annex l.
The PRESIDENc Talled upon Mr.de Villiers to reply on the issue of the
request for inspection.
Mr. de VILLIERS asked for thirty minutes adjournment to enable him
to confer with his coiieagues on the position, which might have been
quite dramaticdy affected by the statement whichhad just been made,
though whether this had gone farenough to achieve complete clarity
was another question. After consultation he might be able to shorten
considerably what he had othenvise intended to Say.
TheCowrtadjournedfrom I0.4 5.m.9 II.30 a.m.
The PRESIDENc Talled upon Mr. de Villiers.
Mr. de VILLIERSmade the speech reproduced in the annex 2.
The Court rose at I
[Signat~res.]
Present: [See hearing of 15 III6j.]
The PRESIDENo Tpened the hearing and, at the request of the Appli-
cants and there being no objection on the part of the Respondent,
calIed upon the Agent for the Applicants.
Mr. G~oss made the speech reproduced in the annex 3.
The PRESIDEN cTlleduponMr. de Viaers.
Mr. de VILLIERSbegan the speech reproduced in the annex '.
TheCourtadjournedfrom 4.20$.m. to 4.40 P.m.
Mr. de VILLIERScontinued the speech reproduced inthe annex 5.
TheCourtroseat 6 p.m.
[Signalures.]
Present: [See hearing of 15 III65.1
The PRESIDENT opened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERcS oncludecl the speech reproduced in the annex 6.
See IX. pp.58-65.
3 See lx, pp.83-93..
See IX, pp.94-99.
' See IX,pp.99-114. ..
See IX, pp.114-121. .:. . Présents:[Voir audience du 15 III65.1
Le P~SIDENTouvre l'audience et donne la parole à l'agent des de-
mandeurs.
M. GROSS prononce l'exposéreproduit en annexe l.
Le PRÉSIRENT invite M. de Villiers à prononcer sa réplique sur la
question de la requêterelative àune visite sur les lieux.
M.de VILLIERd Semande une suspension d'audience de trente rninu-
tes en vue de pouvoir consulter ses collègues; il se peut en effet que
l'exposéqui vient d'êtreprononcé ait des conséquences considérables
sur la situation, bien que ce soit une autre questionde savolr si la clarté
est totale. Aprésavoir consulté ses collégues,M. de Villiers pourrait
êtreen mesure de raccourcjr consjdkrablement ce qu'il avait l'intention
de dire.
L'audience,sus9endrde Ù IO Ir45, estrepriseà II la30
Le PRÉSIDENT donne la parole A M.de Villiers.
M.de VILLIERp Srononce l'exposéreproduit en annexe 2.
L'audience estlevéeà 13 h
[Signatures.]
Prksents: [Voir audience du rg III65.1
Le PRÉSIDENT ouvre l'audience. A la requêtedes demandeurs et en
l'absence d'objection de la part du défendeur, jl donne la parole 1i
l'agent des demandeurs.
M.Gaoss fait l'exposéreproduit en annexe 3.
Le P~SIDENTdonne la parole Q hf. de Villiers.
M. de VILLIER commence l'exposéreproduit en annexe 4.
L'arulience,susfimdueà 16 h 20,estrefiriseù 16 h 40
M. de VILLIER continue l'exposéreproduit en annexe 5.
L'ancdielzcaest levéà 18 h
[Siglzatures.]
Prksenfs: poir audience du rg III65.1
Le PP~SIDENoT uvre l'audience et donne la parole A M. de Villiers.
M. de VILLIERtS ennine l'exposéreproduit en annexe 6.
1 Voir IX, p. 58-65.
2 Voir IX,p. 66-52.
3 Voir IX, p. 83-93.
+ VoirIX. p. 94-99.
5Voir IX,p. 99-1x4.
6 VoirIX, p.I14-121. The PRESIDENTh , aving ascertained that there was no objection on
the part of the Respondent, called upon the Agent for the Applicants,
who had indicated his desire to make a very short statement.
Mr. GROSSmade the speech reproduced in the annex l.
The PRESIDENT said that the Statute contemplated that parties
should be at Liberty to present their case in their own way, including
the caUing of witnesses. Could the Agent for the Applicants, without
argument, indicate any provision of the Statute or the Rules which
would empower thc Court to deal with the matter in the terms which he
had proposed,
Mr.GROSS said that he could not. He had searched the Rules, and had
found no precedent because the situation was unprecedented. No such
proposal had ever been placed before the Court for exercisof its inherent
power of judicial discretion in the light of what, he respectfully submit-
ted, was the exercise of judicial administration to meet the situation.
He relied upon the inherent power of the Court and the inherent nature
of the judicial process with respect to the administration of the Court.
That was the basis of his submission.
The PRESIDENa Tsked whether the Respondent desired to make any
comment.
&Ir.de VILLIERSsaid that there was one factor of convenience that
also weighed the other way; South Africa was preparing to be ready to
present oral evidence to the Court, but the nature of the task of pre-
paring instead what might be vo1urninous further written matenal to
present to the Court was also surely a factor to be taken into account
in the circumstances.
The PRESIDENaT sked the Agent for the Applicants when he would be
prepared to proceed with the presentation of his reply uport the legal
issues.
Mr. G~oss requested an adjournment until the moming of 7 May.
The PRESIDEN sTid that he would have hoped that Mr. Gross could
have proceeded on 6 May. However, if counsel indicated that he was
unable to proceed until 7 May, the Court would adjourn until then.
The Court rose aCII a.m.
[SignatureS.]
Present: fSee hearing of 15Iri 65.1
The PRESIDENTopened the hearing and called upon the Agent for
the Applicants to commence the reply on the legal issues.
Mr. GROSS began the speech reproduced in the annex 2.
The Co~rt adjourfied from 11.20 a.m. to II.40am.
hlr. GROSScontinued the speech reproduced in the annex 3.
l SeeIX, pp.122-123.
Seelx, pp.r24-140.
' SeeIX, pp. 140-151. Le YRÉSIDENTa,près s'êtreassuré qu'aucune objection n'est soulevée
par ledéfendeur, donne la parole Clagent des demandeurs qui a indiqué
son désirde faire une trésbrève déclaration.
hi. GROSprononce l'exposéreproduit en annexe '.
Le PRÉSIDEN préciseque, d'après le Statut, les parties sont libres de
présenter leur thése comme elles l'entendent et peuvent notamment
citer des témoins. L'agent des demandeurs pourrait-il, sans faire de
commentaires, indiquer une disposition du Statut ou du Règlement qui
autoriserait la Cour à traiter de cette question de Ia maniére qu'il a
proposée ?
M. GROSSdit que cela ne lui est pas possible11a étudiéb Règlement
et n'a trouvé aucun précédent car lasituation est sans précédent.La
Cour n'a jamais étésaisie d'une proposition de ce genre l'invitant A
exercer lepouvoir discrétionnaire qui lui appartient de façon inhérente
en matière judiciaire, compte tenu de ce que, d'après lui, une bonne
administration de la justiceexige pour faire face h lasituation. Il in-
voque le pouvoir inhkrent de la Cour et le caractére inhérentdu processus
judiciaire ence qui concerne l'administration de la Cour. Telle est la
base de sa proposition.
Le P~SIDENTdemande au défendeur s'il a desobservations riprésenter.
M. de VILLIERSdéclarequ'il existe un élémentde commoditéjouant
en sens opposé; l'Afrique du Sud se dispose à présenter 1 la Cour des
témoignagesoraux mais latâche consistantà préparer ce qui peut cons-
tituer une documentation écrite volumineuse à l'intention de la Cour
est égalementde telle nature que l'on ne peut manquer de la prendre en
considération, en l'occurrence.
Le PRÉSIDENT demande i l'agent des demandeurs quand il sera prêt
à poursuivre laprésentation de sa réponsesur les questions de droit.
M. GROSS demande une suspension des audiences juçqu'au 7 mai au
matin.
Le PRÉSIDENd it qu'il espérait que M. Gross pourrait continuer le
6 mai. Toutefois, le conseil indiquant qu'il n'est pas en mesure de pour-
suivre avant le 7 mai, la Cour s'ajournera jusqu'g cette date.
L'audience estlevkea II h
[Signatures.]
Prksenfs: [Voir audience du 15III65.1
Le PRÉSIDENT ouvre l'audience et invite l'agent des demandeurs A
présenter sa répliquesur les questions de droit.
M. GROSS commence l'exposdreproduit en annexe *.
L'atrdience,stsspenduedII h20, estreprised II k40
M. GROSS continue l'exposéreproduit en annexe j.
lVoirIIX,p.124-140.
Voir IX,p.140-15'.30 MINUTES
The PRESIDEN called upon Judge Sir Gerald Fitzmaurice, who de-
siredto put certain questions to the Parties.
Judge Sir Gerald FITZMAURIp Cut the following questions to the
Parties :
"Regarding that part of the case which relates to the interpreta-
tjon and application of Article z of the Mandate, both the Parties
have invoked certain general international norms, standards and
principles,of an a priori character, the existence or applicability of
which they either afhm or deny. Thus the Applicants have invoked
a norm said to prohibit absolutely any practices of apartheid, as
that term has been defined by the Applicants for the purposes of
the present case. Equaily the Respondent seems to postulate an
inherent discretionary power in the Mandatory as to the methods
to be employed for implementing Article 2, and on that basis has
contended that the propriety of the measures concerned must be
assessed with reference to the underlying intentions of the Manda-
tory.
It would be helpful if the Parties could attach their respective
contentions somewhat more closely to the actual text of Article 2,
and the following points in particular cal1for further clarification:
(a} In relationfothepositioltof theApplicants
I. Taking for granted the great importance of the humanitanan
and sociological considerations involved, but having regard to the
position ofthe Court as a court of law, what is the purely juridical
basis on which the Applicants contend that the 'noaon-apartheniodrrn'
amounts to an accepted rule of law, and whence does it derive its
obligatory force as such-for instance, does the application of this
norm form part of general State practice in such a way as to consti-
tute a rule of customary international law; or in what other way is
the norm, considered as a legal norm, said to be derived?
2. Irrespective of the answer to be given to the preceding question,
is it contended that on the language of Article 2 itself, rneasures or
practices of apartheid,as defined by the Applicants, must necessarily
and in al1circumstances be illegitimate?
3, 1s the criterion of compatabiiity with the Mandate, or other-
wise,to be found in the general or apparent character of the measure
or practice; and if so, is it contended that this sufficesPese, or is
the criterion the actual results of the measure or practice concerned
and its concrete effects on the well-being and social progress of the
persons affected?
4. Arethe Applicants in a position (and dothey propose) to furnish
the Court with factual evidence (for instance by the personai
testimony of inhabitants of the rnandated territory) showing what
have been the actual effects of the Mandatory's measures and
practices in individual cases?
@) In ~elatioaotnthepositio ofntheResfiondewt
5. 1s it solely on a basis of general principle that the Respondent
cIaims for the Mandatory an absoIute discretionary power to deter-
mine for itself by what methods Article 2 of the Mandate shall be Le PRÉSIDENT donne la parole à sir Gerald Fitzrnaurice, qui désire
poser certaines questions aux Parties.
Sir Gerald FITZMAURIC pose aux Parties les questions suivantes:
aPour ce qui est de l'élémentde l'affaire relatif à l'interpréta-
tion et à l'application de l'article z du Mandat, les deux ParLiesont
invoqué, sur un plan international général,certaines normes, cer-
tains iistandards Jet certains principes ayant un caractère à prion,
et dont ils affirment ou nient l'existence ou l'applicabiiité. Ainsi
les demandeurs ont invoqué une norme qui interdirait de façon
absolue les pratiques de l'apartheid au sens où ce terme a étédéîini
par les demandeurs aux fins de la présente instance. De la même
manière, le défendeur semble parti du postulat que le Mandataire
avait un pouvoir discrétionnaire inhérent quant aux méthodes ?L
employer pour mettre en ceuvre l'article 2 et, sur cette base, il a
soutenu que le caracthre approprié des mesures en cause devait etre
évaluépar référenceaux intentions dont leMandataire étaitanimé.
il serait utile que les Parties relient leurs thèses respectives d'un
peu plus près au libellémêmede l'article 2; les points suivants en
particulier appellent des éclaircissements:
a) Quant iEa position des demandeurs
I. Etant admise la grande importance des considérations huma-
nitaires et sociologiques en cause mais compte tenu de la position
de la Cour en tant que cour de justice, quelle est la base purement
juridique sur Iaquelle les demandeurs s'appuient pour soutenir que
la unorme de non-a+a7theid icorrespond à une règlededroit admise
et d'où tire-t-eile par suite sa force obligatoire en tant,que telle?
L'application de cette norme fait-elle par exemple partie de la pra-
tique généraledes Etats de sorte qu'elle constitue une réglede droit
international coutumier ou de quelle autre manière dit-on que cette
norme, envisagée comme norme juridique, prend naissance?
2. Indépendamment de la réponsequi sera donnée à la question
précédente, soutient-on que, eu égard au libelléde l'article 2 lui-
même,des mesures ou des pratiques d'apartheid, au sens définipar
les demandeurs, doivent nécessairement et en toutes circonstances
êtreillégitimes?
3. Le critkre de compatibilité ou d'incompatibilité avec le Man-
da1 résulte-t-il du caraittéregénéralou apparent de la mesure ou de
la pratique? Si oui, soutient-on que cela seul suffit? Ou bien le
critére résulte-t-il des conséquences réeilesde lamesure ou de la
pratique en cause et de ses effets concrets sur le bien-être et le
progrès social des personnes qu'elle concerne?
4. Les demandeurs sont-ils en mesure (et se proposent-ils) de
présenter à la Cour des preuves relatives aux faits (témoignages
personnels des habitants du territoire sous Mandat par exemple)
montrant quels ont étéles effets réelsdes mesures et des pratiques
adoptéespar le Mandataire dans des cas individuels?
b) Qtrantà Euposition da défendezsr
5. Est-ce uniquement sur la base d'un principe généralque.le
défendeurrevendiquepour le Mandataire un pouvoir discr6tionnaire
absoIu lui permettant de déterminer lui-mêmeles modalitésde mise MINUTES
implemented-subject only to good faithand correct intentions?-
or does the Respondent claim that a discretionary power of this
kind is to be derived from the language of Article 2 itself?
6. In sctfar as it is sjmplya matter of fact whether in any partic-
ular respect there has been a breach of Article 2 or not, do the
intentions (good or bad) of the Mandatory have any relevance to
the question of whether a given practice constitutes a breach of
the Mandate; more especially,dothe Mandatory'sgoodintentionshave
any relevance, supposing it to be estabiished as a fact that the
practice is injurious to, or incompatible with, well-being and social
progress?
7. The Respondent has contended that, on the correct interpre-
tation of Article 2, the Mandatory's obligation does not extend
beyond endeavouring honestly and in good faith to carry out the
purpoçe. Admitting that then judMandatory must possess a certainat
latitude, cari there be more thanan initial preçumption in its favour?
measures instituted by the Mandatory were in fact detrimental toin
well-being or social progress-would the Respondent still maintain
that the Court was incompetent to assess or pronounce on the
matter, except on the basis of the Mandatory's good or bad faith,
and the nature of its purposes and intentions,or would the Respon-
dent be prepared to agree, havingregard to the language of Article 2,
that it must in such an event rebut the allegations on their actual
merits?
(c) In relationto theposition of bothParties
8. There are certain differences between the English and French
texts of Article 2 of the Mandate. Instead of 'shall promote'('pro-
mouvoir', 'favoriser'), the French text sayç 'accroîtra' (shall Zn-
creusewell-being, etc.). Instead of shall promotc 'to the utmost'
('au plus haut point'), the French text says 'par tous lesmoyens en
son pouvoir' ('by ail the means in its power' or 'by al1 available
means'). What significance do the Parties respectively attach to
these differences? What is the resultant of the combined texts, asa
matter of legal interpretâtion?
g.Suppose that certain measures instituted by the Mandatory
have had a beneficial effect, but that others have not: in these
circumstances, would it be correct to Say that if, on balance,there
has been a promotion of or increase in the sum total of weli-being
and social progress viewed as a whole, then the provisions of the
Mandate have been complied with, or would it be correct to Say
that irrespective of any total increase in well-being, and even if
there has been such an increase, any particular measures which are,
or prove to be, detrimental, constitute #ro tanto a breach of the
Mandate?
10. And last, Article 2 of the Mandate provides not, only (by.its
second paragraph) for the promotion (or increase) of the well-being
and socialprogress ofthe inhabitants, but also (by its first paragraph)
that the Mandatory is to have 'full power of administration and
legislation over the mandated territory' aç an 'integral portion' ofen Œuvre de I'article z du Mandat sous réserve seulement de la
bonne foi et d'intentions légitimes? Ou bien le défendeur prétend-il
qu'un pouvoir discrétionnaire de ce genre prodde du libellé de
l'article2lui-même?
6. Dans la mesure où la question de savoir si, sur un point par-
ticulier quelconque, il y a eu ou non violation de l'article 2 est
simpIement une question de fait, les intentions du Mandataire
(bonnesou mauvaises) sont-elles pertinentes s'agissant de savoir si
une certaine pratique constitue une violation du Mandat? Plus
particulièrement, les bonnes intentions du Mandataire sont-elles
pertinentes si l'on suppose prouvé enfaiq tue la pratiqueest nuisible
au bien-êtreou au progréssocial ou incompatible avec eux?
7. Le défendeur a soutenu que, si l'on interpréte correctement
l'article2, l'obligationdu Mandataire ne consiste pas à faire plus
qu'essayer honnêtement et de bonne foi d'appliquer I'article de la
manière dont, d'aprés lui, il est nécessairede le faire. Etant admis
que le Mandataire doit avoir une ccrtaine latitude, peut-il y avoir
plus qu'une présomption initiale en sa faveur? A supposer que l'on
puisse montrer +rima facie que certaines mesures adoptées par le
Mandataire ont étéen fait préjudiciables au bien-êtreou au progrès
social, le défendeur continuerait-il A soutenir que la Cour n'a pas
compétence pour apprécier la question ou pour se prononcer sur
elle, sauf sur la base delabonne ou mauvaise foi du Mandataire et
compte tenu de la nature des objectifs et des intentions du Man-
dataire? Ou bien le défendeur serait-il disposé à admettre que, eu
égard au libellde I'articlez,il doit, dans ce cas, réfuter sur le fond
les allégations formulées?
c) Quant awx positionsdes dezfixParties
8. 11existc certaines différencesentre les textes français et anglais
de l'article2 du Mandat. Au lieu de ciskialpronzoteI(icpromouvoir D,
«favorisern),le texte français dit ccaccroitran.Au lieu de dire ((to
the utmast n (ciauplus haut point a),le texte français dit npar tous
les moyens en son pouvoir 1)Quelle importance les Parties attachent-
eues respectivement à ces différences? Quelle est la résultante des
textes combinés, pour ce qui est de l'interprétation en droit?
g. A supposer que certaines mesures adoptées par le Mandataire
aient eu des effets heureux mais que cela n'ait pas étéle cas de
toutes : dans ces conditions, serait-onfondé A dire que si,tout bien
$osé,Ie bien-être et le progrés social envisagés dans Ieur ensemble
se sont au total accrus, les dispositions du Mandaont étérespectées?
Ou bien serait-on fondé à dire que. indépendamment de tout ac-
croissement totalsur le plan du bien-être, etmême s'ily a bien eu
accroissement, toute mesure préjudiciable ou se révélant préjudi-
ciable constitue en tant que telle une violation du Mandat?
IO. L'article z du Mandat ne prévoit paç seulement dans son
deiixième alinéa l'accroissement (ou l'amélioration) du bien-être,et
du progrès social des habitants; il dispose aussi, dans son premier
alinéa, que le Mandataire aaura pleins pouvoirs d'administration et
de législation sur le territoire faisantl'objet du Mandat 11,que ce MINUTES
its own territory, and may apply its own laws 'subject to such local
modifications as circumstances may require'. What do the Parties
respectively consider to be the exact relationship between these
two sets of provisions? Neither is specifically subordinated to the
other. Should either neverthelessbe read as being so subordinated,
and ifso in what sense and to what extent? If not, and ifthe two
clauses are independent of one another, what is the resulting legal
situation?"
TheCourtrose ut12.45 p.m.
[Signatures.]
Present :[See heanng of 15 III65.1
The PRESIDENoT pened the hearing and called upon the Agent forthe
Applicants.
Mr.G~oss continued the speechreproduced in the annex l.
ThaCourt adjoecrnedfrom 4.20 p.m. to4.40 p,m.
Mr. GROS continued the speech reproduced in the annex 2.
TheCourtrose ut 6 p.m.
[Szgnattsres.]
Present :[Seehearing of 15 III65.1
The PRESIDENo Tpened the hearing and called upon the Agent for
the Applicants.
MT. GROSc Sontinued the speech reproduced in the annex 3.
Mr. G~oss continued the speech reproduced in the annex 4.
The Courtrose at 12.55p.m.
[Signalzsves.]
Present: [See hearing of15 III65.1
The PRESIDEN opened the hearing and called upon the Agent for the
Applicants.
1 SeeIX, pp. 15r-r67.
2 See IX. pp167-184.
' SeeIX,pp. 184-199.
*See IX,pp. 199-214. dernier sera administré cicommepartie intégrantede son territoira
et que sa Jégislationy sera appliquée (sous réservedes modifica-
tions nécessitéespar les conditions locales u.Quel est, d'aprés
chacune des Parties, le rapport exact entre ces deux catégoriesde
dispositions? Aucune n'est expressément subordonnée à l'autre.
Doit-on cependant estimer qu'un lien de subordination existe et, si
oui, en quel sens et dans quelle mesure? Sinon et si les deux dispo-
sitions sont indépendantes l'une de l'autre, quelle est la situation
qui en résulte endroit?»
L'audienceest levéeà 12 la45
[Signatures.]
Présefits:[Voir audience du 15 III65.1
Le PRÉSIDENT ouvre l'audience et donne la paroàel'agent des deman-
deurs.
M. G~oss continue l'exposéreproduit en annexe l.
L'audience, suspendue a 16h zo,estrepriseà 16 h40
M.GROSc Sontinue l'exposéreproduit en annexe 2.
L'audienceest levéeù 18 k
[Signatures.]
VINGT-NEUVIÈM EUDIENCE PUBLIQUE (II v 65,IO h)
6.
.Présents:[Voir audience du 15 II65.1
Le PRÉSIDENo Tuvre l'audience et donne la parole à l'agent des de-
mandeurs.
M. G~oss continue l'exposé reproduit en annexe '.
L'audience, suspendue à II h20, estreprise HII h 40
M.GROSS continue l'exposéreproduit en annexe +.
L'audienceest levkù 12 k 55
[Signatures.J
Présents:poir audience du r5 III65.3
Le PRÉSIDENo Tuvre l'audience et donne la paroAel'agent des deman-
deurs.
1Voir IX, p.151-167,
Voir IX,p. 167-184.
VoirIX, p. 184-199.
+Voir IX, p199-214.36 MINUTES
Mr. GROSc Sontinued the speech reproduced in the annex l.
TheCourtadjourned/rom 11.20a.m. to 11.4 0.m.
Mr. G~osscontinued the speech reproduced in the annex =.
The Court roseat r p.m.
[Signatures.]
THIRTY-FIRST PUBLIC HEARING (13 V 65, IOa.m.)
Present: [Seehearing of 15 III65.1
The PRESIDENT opened the hearing and called upon the Agent for
the Applicants.
Mr. G~oss continued the speech reproduced in the annex j.
TheCourtadiourned/rom 11.20 lo11.4 5.m.
Mr.GROSS continued the speech reproduced in the annex 4.
The PRESIDENc Talied upon Judge Sir Gerald Fitzmaurice to put to
the Parties certain questions.
Judge Sir Gerald FITZMAUR~ said that despite one of the answers
which Mr. Gross had been good enough to give to his questions, he would
like him to give a littlefurther consideration to thestatuofthe French
text to the Mandate. Although the Mandate had originally been drafted
in English and the French translation then made, both texts had then
been embodied respectively as the officia1English and French texts of
the resolution ofthe Council of the League, in which the Mandate had
been adopted. At an early meeting ofthe Permanent hfandates Commis-
sion it had been decided, as a working rule, to go on the English text
of British administered mandates, and on the French text of French
administered mandates. In the Iight of that position, he thought that
the two texts had been, in practice, treated as being on the footing of
equality and that, consequently, any differencesthat mightexistbetween
them were not ivholIy irrelevant.
He then put the following question:
"Mrhat, in the opinion of the Parties respectively, is the present
and potential objective legal position relative to the mandated
territoryof the Powers which, at the end of the First LVorldWar,
came to be known as tlie Principal Ailied and Associated Powers,
namely (in their then French alphabetical order) the United States
of America, France, Great Britain, Italy and Japan? \%en these
Powers, in favour of whom sovereignty over the future mandated
territoriewas renounced under the Peace Treaties, consented to
the arrangements whereby the territories were placed under League
of Nations mandate, did they thereby divest themselveç of al1
right, title and interest relative to the territories, or did they, asa
matter of law, retaina residual right of sovereignty or other right,
title orinterest which would revive and become operative in the
event, for instance, of a dissolution of the League of Nations, or of
a terminationof themandate on a basisotkter than self-government
SeeIX,pp. 214-229.
2 See IX,pp.229-242.
3 Sec1X. pp.242-253.
SeeIX, pp.258-268. M. GROSS continue l'exposéreproduit en annexe I.
L'audience, suspendueri II h 20,est repriseà r; h 40
M.GROSS continue l'exposéreproduit en annexe 2.
L'audienceest leu& d 13 h
[Signatures.]
Présents:[Voir audience du rg III65.1
Le P~SJDENT ouvre l'audience et donne la parolà l'agent desdeman-
deurs.
M. GROSS continue l'exposéreproduit en annexe 3.
L'audience,susflendueci II A 20,estreprise riII h 45
M. G~oss continue l'exposéreproduit en annexe +.
Le P~SIDENTdonne la parole à sir Gerald Fitzmaurice en vue de poser
certaines questions aux Parties.
Sir Gerald F~TZMAURIC déEclare qu'en dépit de l'une des réponses
que M. Gross a bien voulu faire 3 ses questions il désirerait que celui-ci
examine plus attentivement la question du statut du texte français
du Mandat.Le Mandat a étéprimitivement rédigéen anglais pour être
ensuite traduit en français mais les deux textes ont été inclus dans les
textes officielsfrançais et anglais de la rksolution du ConseillaSociété
des Nations parlaquelle le Mandat a étéadopté. A l'une des premihres
réunions de la Commission permanente des Mandats, il a étédécidC
comme régle de travail d'utiliser le texte anglais pour les pays sous
Mandat britannique et k texte français pour les pays sous Mandat
français. 11semble dans ces conditions que les deux textes aient étéen
pratique traitéssur un pied d'égalitet que par consequent les différences
qui pourraient exister entre eux ne sauraient être considérées comme
totalement sans pertinence.
Sir Gerald Fitzmaurice pose ensuite Iaquestion suivante:
iiQueIleest, de l'avis des Partiesla situation objective actuelle
et virtuelle sur le plan du droit en ce qui concerne les territoires
sous Mandat des Puissances qui, Qla fin de la premiéreguerre mon-
diale, ont étdésignéessousle nom dePrincipales Puissances alliéeset
associbes,à savoir (dans l'ordre alphabétique français de l'époque),
les Etats-Unis d'Amérique,la France, la Grande-Bretagne, .l'Italie
et le Japon? Lorsque ces Puissances, en faveur desquelles il a été
renoncé à la souveraineté sur les futurs territoires sous Mandat en
vertu des traitésde paix, ont acceptéles arrangements consistant à
placer lesdits temtoires sous le Mandat de la Société desNations,
ont-elles par lAmêmerenoncé A tout droit, titrou intérêtsur ces
territoires ou bien ont-elles, sur le plan juridique, conservéun droit
résiduelde souveraineté ou un autre droit,titre ou intérêt pouvant
renaître et reprendre effet dans l'hypothése, par exemple. d'une
dissoIution de la S.d.N. ou d'une cessation du Mandat résultant
Voir lx,p. 214-229.
Voir tX, p.229-242.
3Voir fX,p. 242-258.
+Voir IX,p. 258-268.38 MINUTES
or independence for the territory concerned-and, if so, what is the
nature andextent of çuch right, title or interest and how may it
operate?"
The PRESIDENaT ddreçsed to the Parties a request, in the foilowing
terms, in relation to a question aiready put by a Blember of the Court:
"In relation to the description of territories to whch Article 73
of the Charter is stated to apply, namely 'territories whose peoples
have not yet attained a full measure of self-government', and the
question whether that Article was or was not intended to
or did not include territories then held under hlandate, and the
important question directed to both Parties by Judge Jessup on
theçe issues, 1would be gratefd if both Parties would give consider-
ation to certain facts, nine in number, stated hereafte(ifthey are
admitted to be correctly statedas facts) in the response they make
to Judge Jessup's question. 1 am not aware that these facts have
yet, in these proceedings, received the consideration of the Parties.
I. The fact that the discussion in Committee 4 of Commission II
at San Francisco was based not upon the paper presented by any
one State, but upon a working paper prepared after study and
consultation on pro osals made by a number of States, divided into
two sections, name Py A. General Policy, and B. Territorial Trustee
System.
2. The fact that in this working paper, dated 15 May 1945
(Doc. 323/11/4/U 1.N.C.I.O., Vol. IO,p. 677).the description of
territories to which the declaration subsequently to be incorporated
in Article73was intended to apply then read in the proposed draft
Article as follows: 'Territones inhabited by peoples not yet able to
stand by themselves under the strenuous conditions of the modem
world' which are the precise words used in Article22 (I)of the
Covenant of the League to describe the mandated temtories.
3. The fact that this text in the working paper remained un-
changed up to 9 June 1945 (U.N.C.I.O.,Vol. ro, p. 525).
4. The fact that between g and II June r945, that text was
changed to read as it now appears in Article 73 of the Charter
(ibid., p. 533), the reason for the alteration being stated in the
Report of the Rapporteur of Cornmittee IV of 20 June 1945 (ibid.,
p. 608)to have been 'tofindnew language more çuitableto existing
conditions than the language ernployed in Paragraph r of Articlezz
of the Covenant of the League of Nations' in order to describe 'the
territories to which the declaration relates'.
5,The fact that the Rapporteur of Committee II14 stated in his
said Report of zo June 1945 hat the declaration contained in the
text of Article73 as fmally approved (Annex A thereto) 'would be
applicable to al1such territones' and to al1'States Members of the
United Nations having responsibiiities for the administration of
territories whose people have not yet attained a full measure of
çelf-government'. (U.N.C.I.O.,Vol. ro, p. 608). d'un autre facteur que l'autodétermination ou l'indépendance des
territoires en question et, dans l'affirmative, quelles sont la nature
et la portée de ce droit, titre ou intér&tet comment ce droit, titre
ou intérêtpeut-il jouer?u
Le PRÉSIDEN adresse aux Parties, au sujet d'une questiodéjl pos&e
par un membre de la Cour, la demande suivante:
73 de la Charte vise expressément,ionàdsavoir les uterritoires dont
les populations ne s'administrent pas encore complètement elles-
mêmes IIen ce qui concerne aussi la question de savoir si cet article
avait trait ou non, s'ils'appliquait ou non aux territoires dors sous
Mandat ainsi que la question importante adresséeaux deux Parties
par M. Jessup sur ces points, je serais reconnaissant aux deux
Parties de bien vouloir prendre en considération certains faits -
au nombre de neuf - que je vais indiquer (s'il est admis que ces
faitssont exactement énoncés)dans la réponse qu'elles feront à
M.Jessup. Je ne sache pas que ces faits aient déjAfait l'objet d'un
examen de lapart des Parties au cours de la présente procédure.
1.Ladiscussion qui s'estdérouléeau Comité4de la CommissionII
à San Francisco avait pour base non pas un document présentépar
un Etat donné, maisundocument detravail préparéaprèsdesétudes
et des consultations partir des propositions faites par un certain
nombre d'Etats; il était divisé endeux sections: la section A con-
cernait la politique gbnéraleet la section B le régimedetutelle terri-
toriale.
2. Dans ce document de travail qui porte la date du 15 mai 1945
(doc. 323/11/4/ U12N.C.I. vOol,IO, p. 684) les territoires aux-
quels la déclaration incorporée plus tard dans l'article73 devait
s'appliquer étaient décritsde la maniéresuivante (projet d'articl:)
uterritoires habités par des populations qui ne sont pas encore
capables de mener une existence indépendante dans les conditions
difficilesdu monde moderne o;ce sont 11les termes mêmesqui sont
employés [en anglais]au paragraphe I de l'articl22 du Pacte de la
Société desNations pour décrireles territoires sous Mandat.
3. Le texte du document de travail est resté inchangé jusqu'au
g juin 1945(ibid., p. 529).
4. Entre le 9 et leII juin 1945, ce texte aétémodifiéet a pris la
forme sous laquelle ilseprésentemaintenant dans l'article 73 de la
Charte (ibid., p. 537); cette modification a étéfaite, d'aprb le
rapport du rapporteur du Comité4 en date du 20 juin 1945, parce
qu'il étaitsouhaitable, s'agissant de définir alesterritoires auxquels
s'applique cette déclarationn ((d'employer des termes nouveaux,
mieux adaptés aux conditions actuelles, que les termes employés
au paragraphe Ide l'article22 du Pacte de laSociétédes Nations
(ibid.p. 624).
5. Le rapporteur du Comité4de la Commission II a précisédans
ledit rapport du zo juin 1945 que la déclaration contenue dans le
texte de l'article 73 tel qu'il a étéfinalement approuvé (annexe A
au rapport) ccs'appliqueraititous les territoires de ce genr... et
A [tous] les Etats Membres des Nations Unies A qui incombe la
responsabilitb de l'administration de territoires habités par des
peuples qui ne s'administrent pas encore eux-mêmes (ibid.p. 624).40 MINUTES
6. The fact that in the same Report there appears (ibid.,p. 609)
in connection with the said declaration the foliowing words:
'It waç said that independence waç the aiin of rnany dependent
peoples and that its attainment should not be excluded by the
terms of the Charter. On the other hand, it was urged that siace
the section on the declaration applied to al1dependent "territories"
and not naerelyto those placed under trusteeship, the reference to
independence should more properly be made in the section on
Trusteeship.'
7, The fact that when the said Report of Committee 4 of Com-
mission 11 was brought before that Commission on 20 June 1945,
the Chairman of that Commissioin n introducing the Report and
opening the debate thereon stated as follows:
'Practically dl that the Committee had before it was a section
of the old Covenant of the League ofXations, which dealt with the
subject of mandates. ..'
'This scheme [namely, that set out in the said Report] diverts in
scope very largely from that old Covenant scheme. The principle
of trusteeship isnow applied generally. It applies to all dependent
peoples in ali dependent territories. It covers al1of them ...'
'Part A [i.e., the present Article 731applies the trustee principle
to aUdependent temtories. whether they are mandates, whether
they are temtories taken from defeated countries, or whether they
are existing colonies of Powers l. The whole field of dependent
peoples living in different territorieisnow covered.'
'A [Le., the present Article 73) deals with that larger extension,
and it puts countries, especially colonial powers who have colonies
to look after,under certain obligations which you will find set out
in the recommendations and in the Report.' (U.N.C.I.O., Vol. 8.
pp. 126-127).
'The result willbe thatas both Section A [Le.,present Chapter XI]
and B [Le., prcsent Chapter XII] are applied to dependent peoples
al1 over the world wherever you have territory inhabited by de-
pendent people-peoples who have not advanced enough to look
after themselves. .. they will al1 have the benefit of this new
administration. They willalso have the United Nations Organization
seeing that they do get those benefits, that these pnnciples ~vhich
have been evolved for their govemment and their advancement are
duly carried out.'
'... this present scheme differs from the mandate scheme to which
we have been accustomed hitherto .. .'(Ibid., pp. 127-128.)
8. The fnct that no dissent to such statements by the Chairman
of Commission II was expressed dunng the course of the ensuing
debate.
9. The fact that the text of Article 73was finally adopted at this
meeting on 20 June 1945, and the Charter was signed six days
thereafter."
The Cozrrtrosea1 12.50 $.m.
[Sigttatzdres.]
l Compare the three categories ofterritormentianed inChapter XII, Article
77,ofthe Charter. 6. Dans le mêmerapport, on trouve le passage suivant h propos
de la inêmedéclaration (ibid p.,625):
«IIa étédit que l'indépendanceest le but de beaucoup de peuples
cidépendantset que son obtention ne devrait pas êtreexclue par
cilesconditions de la Charte. D'un autre côté,il a étédit quelamen-
ation de l'indépendancedevrait figurer plutôt dans la section con-
ucemant la tutelle, puisque la section concernant la déclaration
us'applique Atous les territoires dépendants et non passeulement à
aceux placés soustute1le.n
7. Lorsque ce rapport du Comité4 de la Commission II a été
soumis à cette commission le 20 juin 1945, le président de la com-
mission a dit, en présentant le rapport et en ouvrant le débat:
cc..le comitén'avait guère pourle guider que l'asection du Pacte de
(daSociétédes Fations se rapportant aux Mandats. . .
aCe système [celul qui est indiquC dans le rapport] a une portée
airès différentede I'ancien svstéme rév vu par le Pacte. Le ~rinciue
«delatutelle est maintenant d'uneapplicatiÔngénérale .1~'ap'~li~u;t
<(tousles peuples dépendants dans tous les territoires dépendants.
«Il les concerne tous. ..
«La partie A [l'actuel article 731applique le principe de la tutelle
«à tous les territoires dépendants non autonomes; il s'agit à la fois
adesterritoires qui sont sous Mandat, des territoires conquis sur les
apays vaincus et des actuelles colonies des Puissances l:II s'agit
«maintenant de l'ensemble des peuples non autonomes vivant dans
ndes territoires non autonomes.
aLa partie A [l'actuel article 731concerne cet élargissement et il
ciimposeaux pays, spécialement aux Puissances coloniales qui ont
«às'occuper de leurs colonies, certaines obligations que vous trou-
ccverezénuméréesdans la recommandation et dans le rapport.^
(Ibid., vol. 8, p. 162).
sLe résultat sera que les deux sections, la section A [l'actuel
chapitre XI] et la section B [l'actuel chapitre XII] s'appliquent
ciauxpopulations dépendantes du monde entier déslors qu'il existe
uun territoire habité par des populations dépendantes, populations
«qui ne sont pas encore assez avancées pour se diriger elles-mêmes
aet qui bénéficieronttoutes desavantagesde la nouvelle administra-
cition.L'Organisation des Nations Unies veillera aussi A ce qu'elles
«profitent de ces avantages, A ce que les principes Claborésen vue de
«leur gouvernement et de leur progrès soient dûment appliqués.
ci.. le systPme actuel différe du systéme des Mandats dont nous
aavions l'habitude » (ibid.,p. 162).[Traduction du Grefje.]
8. Au cours du débat qui a suivi, ces déclarations du président
de laCommission II n'ont soulevéaucune objection.
9. Le texte de l'article73 a étéfinalement adoptéI la séancedu
20 juin 1945 et la Charte a étésignéesix jours plus tard. 11
L'audience estlevéed 12 h 50
(Signalares.]
Comparer ceci avec les trois cattgories de territoires rnentiAnl'article
77,chapitre XII. de la Charte. MINUTES
THIRTY-SECOND PUBLIC HEARING (14 V 65, IO â.m.)
Present :[See hearingof 15 III65. Judge PaddlaNervo absent.]
The PRE~IDEW opTened the hearing and caiied upon the Agent for the
Applicants.
Mr. GROSc Sontinued the speech reproduced in the annex l.
The PRESIDEN Tid that on 4 May the Applicants had requested the
Court, in the event that the Respondent desired to produce any evidence
the production of which was permitted by the Court, to order or other-
wise decide that the Respondent, in lieu of callingwitnesses or experts to
testify personally, should embody the evidence of any such witness or
expert in a deposition or written statement properly authenticated which
should then constitute a fuii and cornpiete statement of the evidence
tvhich such witness or expert would have adduced if personally'in Court.
The Applicants had indicated that, in the event that the Court made
an order to that effect, they would waive al1right to be present during
the taking of such depositions or the preparation of such statements for
any purpose, including the purpose of cross-examination.
On 5 May, the Agent for the Applicants had directed a letter to the
Agent for the Respondent, seeking the consent of the Respondent to
procedures which the Applicants proposed should be followed, and
recalling that in the event of the Parties failing to reacll agreement
thereon, the Court had already been requested to issue an order or
otherwise decide that the said procedures should be foilowed.
A copy of this letter had been transrnitted to the Court'.
By a letter of IO hiay 1965t, he Agent for the Respondent had indi-
cated to the Agent for the Applicants that Respondent was unable to
agree to the latter's proposal. copy of this letter had been transmitted
to the Court 3.
The Court had considered the said request of the Applicants. In the
view of the Court, the Statute and Rules contemplated a right in the
party in contentious proceedings to produce all evidence before the
Court by the calling of witnesses and experts, and a party must be left
to exercise that right as it thought fit, subject, of course, to the provisions
of the Court's Stafute and Rules. Accordingly, the Court, having con-
sidered the request of the Applicants, was unable to accede thereto.
The request by the Applicants had been made in the course of dis-
cussion before the Court by the Parties of a previous request made by
the Respondent that the Court, or a cornmittee thereof, should make an
inspection in loco.The decision which the Court had just announced on
the request made by the Applicants in relation to the calling of evidence
by the Respondent did not, of course, bear upon the Respondent's
request for inspection in locoupon which the Court had not yet delib-
erated.
TheCourtrose ut 11.15am.
[Signatures.J
2 SeeXII, PartIV.81.
' SeeXII, PartIV. Présents:[Voir audience du 15 [I65. hi. Padiiia Nervo, absent.]
Le PRÉSIDENo Tuvre l'audience et donne la parolà l'agent des deman-
deurs.
M.GROSS continue l'exposéreproduit en annexe '.
Le PRÉSIDENd Téclareque, le 4 mai, les demandeurs ont priéla Cour
de dire que, au casou Ie défendeur désireraitprésenter des témoignages
dont la production serait autorisée par la Cour, le défendeur, au lieu
d'inviter les témoinsou experts à comparaître en personne, devrait con-
signer leurs témoignagesdans des dépositionsou exposésécritsdûment
authentifiés, lesquels constitueraient un compte rendu intégral des
déclarations que les experts ou témoins auraient faites s'ils s'étaient
personnellement trouvésdevant la Cour.
Les demandeurs ont indiqué que, au cas où la Cour rendrait une
ordonnance à cet effet, ils renonceraienà tout droit d'assisteàla prise
de ces dépositions ou à lapréparation de ces exposés,Bquelque fin que
ce soit, notamment aux fins d'un contre-interrogatoire.
Le 5 mai, l'agent des demandeurs a adresse une lettre ,4l'agent du
défendeur pour demander l'accord du défendeur sur les procédures
proposées par les demandeurs et rappeler que la Cour avait déjà été
priée, pour le cas où les Parties ne pourraient se mettre d'accord à ce
sujet, de dire, par voie d'ordonnance ou de toute autre manière, que
lesdites procéduresdevaient êtreadoptées.
Une copie de cette lettre a ététransmise A la Cour 2.
Par lettre en date du IO mai 1965, l'agent du défendeur a fait con-
naître A l'agent des demandeurs qu'il ne pouvait accepter cette proposi-
tion. Une copie de cette lettre aétécommuniquée à la Cour3.
La Cour a examiné la requêtedes demandeurs. Elle considère qu'aux
termes du Statut et du Règlement toute partie à une instance a le droit
de produire tous élémentsde preuve en faisant citer des témoins et
experts et toute partie doit êtreautorisée àexercer ce droit comme elle
l'entend, sous réserve bien entendu des dispositions du Statut et du
Réglernent de la Cour. En conséquence, la Cour, aprés avoir examiné
la requêtedes demandeurs, dit qu'elle ne peut y faire droit.
Les demandeurs ont présentéleur requêtealors que lesPartiesétaient
en train de discuter, devant la Cour, d'une proposition antérieure pré-
sentéepar le défendeuret tendant àce que la Cour ou un comitédésigné
par elle effectue une visite sur les lieux. La décisionque la Cour vient de
prendre en ce qui concerne larequêtedes demandeurs relative à la pro-
duction de témoignages par le défendeur n'a,bien entendu, aucun effet
sur la demande du défendeur ayant trait à une visite sur les lieux, de-
mande sur laquelle la Cour n'a pas encore délibéré.
L'audience estEsvéeR Ir Ir15
[Signatures.J
1Voir IX,p. 268-281.
2Voir XII, quatriémennrtio.
Voir XII, quatriéme partie. MINUTES '
Present :[See hearhg of 15 iri65. Sir Louis Mbanefo absent.]
The PRESIDENo Tpened the hearing and calied upon the Agent for
the Appricants.
Mr. GROSS continued the speech reproduced in the annex l.
TheCourtadjourned/rom 4.20 p.m. fo4.40 $.m.
Mr. G~osscontinued the speech reproduced in the annex =.
TheCourtrose at 6 P.m
[Signatures.]
Presed: [Sec hearing of r5 III65. Sir Louis Mbanefo absent.]
The PRESIDENo Tpened the hearing and announced that, as at the
previous hearing, Judge ad hoc Sir Louis Mbanefo was unable to sit.
He called upon the Agent forthe Applicants.
Mr.G~osscontinued the speech reproduced in the annex 3.
TheCourtadjournedfrom rx.zo to 11.40a.m.
Mr. Gaoss continued the speech reproduced in the annex '.
The Courtroseat IP.m.
[Signaltires.J
Present: [See hearing of 15 11165.1
The PRESIDENT opened the hearing and called upon the Agent for the
Applicants.
Mr. GROSS contjnued the speech reproduced in the annex
TheCoi6rtadjourned/rom 11-20 a.m. to 11.40 a.m.
Mr. GROSS concluded the speech reproduced in the annex 6.
The PRESIDEKT asked whether it was correct that the Applicants had
now concluded their case, both on the law and the facts, subject to the
reservations which Mr, Gross had indicated, and had thus made their
final speech inthe case based on the law and the facts.
Mr. GROSSsaid that that was correct.
The PRESIDENaT sked the Agent for the Respondent when the Respon-
dent would be prepared to address the Court an the questions of law
which still rernained open.
Seelx, pp.381-296.
Seelx, pp.296-310.
SeeIX, pp.31 1-325.
' SeeIX, pp.325-341.
' See IX,pp.358-376. Présents:[Voir audience du 15 III65.Sir Louis Mbanefo, absent.]
Le PR~SIDEN ouvre l'audience et donne la parole l'agent des dernan-
deurs.
M.G~osscontinue I'exposéreproduit en annexe l. .
L'audience, suspendue à 16 h 20, est reprisà 16 h 40
M. GROÇS continue l'exposéreproduit en annexe 2. , ..
L'audienceest levie 4 18 h
[Signatures.]
TRENTE-QUATRIAME AUDIEXCE PUBLIQUE (18v 65, IO h).
Présents :[Voir audience du 15 III65. SirLouis Mbanefo, absent.]
Le PRBÇIDENT ouvre l'audience et déclareque sir Louis Mbanefo, qui
n'a pas assisté Ala précédente audience, sera encore absent ce jour. Il
donne la parole à l'agent des demandeurs.
M. Gttoss continue I'exposéreproduit en annexe
L'audiewce,suspendue ÙII h20, est reprisea II k40
M. GROSc Sontinue l'exposéreproduit en annexe +.
L'audienceest levée a 13 A
[Signatuves.]
Présents : [Voir audience du 15 III65.1
Le PRÉSIDENT ouvre l'audience et donne la paroleà l'agent desdeman-
deurs.
M. G~oss continue I'exposéreproduit en annexe
L'audience, suspenduea II Azo, est repriseaII h 40
M.GROStS ermine l'exposéreproduit en annexe 6.
Le PRÉSIDENT demande s'il est exact que les demandeurs ont mainte-
nant terminé I'exposéde leur argumentation, tant sur le droit que sur les
faits, sous lesréservesindiquees par M.Gross,et qu'ilsont par conséquent
prononcé leur derniére plaidoirie en l'affaire tant sur le droit que sur
les faits.
M. GROS dit qu'il en est bien ainsi.
Le PRASIDENd Temande ?il'agent du défendeur à quel moment la
partie défenderesse sera prête à plaider sur les questions de droit qui
restent encore à exposer.
VoirIX, p.281-296.
2 VoirIX, p. 296-310.
3 SroiIX, p.311-325.
+ Voir IX,p.325-341.
5 VoirIX, p.341-358.
6 Voir IX, p. 358-376.46 MINUTES
Dr. VERLOBE NAN THEMAAsT aid that in connection with Article 2
South Africa would submit that the Applicants had in effect presented
a new case, callingfor considerable consideration and research in order
to furnish a proper reply thereto. He accordingly requested that South
Africa be permitted to commence its arguments on Monday, 24 May.
The PRESIDENsT aid that the request would be granted. The next
hearing would be held at 3 p.m. on Monday, 24 May, when the Respon-
dent would present its case in reply upon the law. By reason of the
situation which had ,been arrived at followingthestatement made by the
Agent for the Applicants that the case of the Applicants had now rested,
the Court would find jt necesçary to consider the further procedure in
the case in relation to the facts.
The Cowrt rose atI p.m.
[Signatncres.]
Presenf:[See hearing of 15 III65.1
The PRESIDENT opened the hea~g and said that the Court had just
been informed of the sudden death of Helge Klaestad, who had rendered
great and signal seMce to the cause of international law as a judge and
Yresident of the Court. The Court pIaced on record its deep sympathy
at the event, and extended its condolences to his widow.
The matter of the further procedure to be followed in the case in
relation to the facts had been consideredby the Court.
The Applicants having at this stage of the proceedings concluded
their case both on the law and the facts, subject to certain reservations
indicated by them during the course of the oral hearing on ~g May,
including the retention of the right pursuant to Article50 of the Ruleç
of Court to comment upon any evidence given by the Respondent, the
procedure to be followed. subject however to any subsequent direction
the Court might make, should be as follows:
I.At the conclusion by the Respondent of its speech in reply upon
the legal issues which had been argued, and after it had replied to any
questions put to itin respect to the same, the Respondent would imme-
diately thereafter present its case upon the facts,during the course of
which it would present such witnesses and experts as it might be advised
to cal1and in respect of whorn prior noticofits intention to cal1the same
should have been given to the Court and the Applicants.
2.The Respondent should present the evidence ofsuch witnesses and
experts aftcr a general opening of its case upon the facts, in which opening
it would indicate to the Court the general scheme it proposed to follow
in the presentation of such witnesses and experts.
3. In calling any witness or expert the Respondent would indicate
in Court, with reasonahle particularity, the point or points to which the
evidence of each witness or expert wouId be directed, and the particular
issue or issues to which such evidence was said to be relevant.
4. After the callingof the evidence and upon the siibsequent conc~usion
of the Respondent's address the Applicants might make such comment
upon the evidence of the said witnesses and experts as they desired
to make. M. VERLOREN VAN THEMAA déclareque l'Afrique du Sud estime que,
pour ce qui est de l'articl2, les demandeurs ont en fait présenté une
nouvelle argumentation appelant de la part du défendeur un examen
et des recherches considérables en vue d'y apporter la réponse appro-
priée. Il demande en conséquence que l'Afrique du Sud soit autorisée à
reprendre ses plaidoiries le lun24 mai.
Le PRÉSIDENT déclare qu'il sera fait droit à cette demandeLa pro-
chaine audience aura lieu le lundi 24 mai à 15heures; le défendeur pré-
sentera alors sa duplique orale sur le droit. Etant donnéla situationdans
laquelle on se trouve àlasuitede ladéclaration de l'agent des demandeurs
selon laqueue i1a achevéde prisenter I'argu~nentation des demandeurs,
la Cour devra examiner la procédure à suivre pour ce qui est des faits.
L'audienceest levéeà 13 h
[Signatures.]
Présefils:[Voir audience du 15 III65.1
Le PRÉSIDEN Tuvre l'audienceet annonce la mort soudaine d 'Helge
Klaestad, qui a rendu de grands et signalés services àlacause du droit
international en sa qualité de juge et de Président de la Cour. La Cour
tient à dire qu'eue ressent profondément ce deuil et adresse ses condo-
léancesà sa veuve.
La question de la procédure à suivre en cequi concerne les points de
fait a étéexaminée par la Cour.
Les demandeurs ayant au présent stade de la procédure achevé la
présentation de leurs thèses tant sur le droit que sur les faits, sous cer-
taines réservesformulées pareux Ll'audience du xgmai et visant notam-
ment leur droit de discuter, conformément A l'articl50 du Réglement,
les moyens de preuve produits par Ic défendeur, il sera procédécomme
suit, sous réserve de toute nouvelle directive éventuelle de:la Cour:
I.Dès qu'il aura achevé sa duplique orale sur les pointde droit en
cause et répondu aux questions qui lui auront étéposées ?îce sujet, le
défendeur présentera immédiatement son argumentation sur les faits
et produira A cette occasion les témoins et experts qu'il estimera oppor-
tun de faire citer et dont les noms auront auparavant étécommuniqués
a IaCouret aux demandeurs.
z. Le défendeur fera citer ses témoins et experts apres avoir donné
des indications générales sur son argumentation relative aux faits et
sur l'ordre dans lequel il compte présenter ces témoins et experts.
3. Avant de présenter chaque témoin ou expert, ledéfendeur indi-
quera A la Cour d'une manière raisonnablement détaillée le ou les points
sur lesquels portera sa déposition et la ou les questions à l'égard desquel-
les cette déposition sera considéréeomme pertinente.
4. Lorsque l'audition des témoins et experts et la plaidoirie subsé-
quente du dkfendeur auront pris fin, les demandeurs pourront formuler
sur les dépoçitions toutes observations qu'ils désireront.48 MINUTES
5. The Respondent would thereupon be at liberty to make its reply
to comments on such evidence as might be made by the Applicants.
6. This reply of the Respondent should, subject to any explanations
asmight thereafter be asked by the Court or any question which might
be put to the Parties by the Court or any Member of the Court, and sub-
ject to any order of the Court, conclude the speeches of the Parties
on both the law and the facts.
7. Any amendrnents which the Applicants might desire to make to
the submissions made by them on 19 May should be made at the con-
clusion of the Respondent's finaladdress, but before the Respondent
presented its final submissions.
The Court took the occasion to inform the Parties as follows:
I.The request of the Respondent for an inspection in locowould not
be deliberated upon by the Court until after all evidence had been
caIled andthe addresses of the Parties had concluded.
z, Al1questions of law and fact concerned with the merits of the case
would be reserved by the Court until after the hearing had been declared
closed and the Court withdrew to consider its judgment.
He called upon the Agent for the Respondent.
Dr. VERLORE V AN THEMAA requested that Rlr.de Villiers be allowed
to address the Court on his Government's behalf.
The PRESIDEN called upon Mr. de Villiers.
Mr. de VILLIERSbegan the speech reproduced in the annex '.
TheCourtadjournedfrom 4.20 #.m. to 4.40+.m.
Mr. de Viliiers continued the speech repoduced in the annex 2.
TheCourtrose at5.55 p.m.
[Signatures.]
Present: [See hearing of Ij III65.1
The PRESIDEN opened the hearing and called upon the Agent for the
Respondent .
Mr. de VILLIERS continued the speech reproduced in the annex 3.
TheCourtadjofrrnedfrom 11.20 a.w.to II.40 a.m.
Mr. de VILLIERS continued the speech reproduced inthe annex 4.
TheCourt rose al 12.55 p.m.
[Signatures.]
'See IX,pp. 377-391.
See IX,pp. 391-406
'See lx.pp. 406-423.
*See IX,pp. 423-438. 5. Le défendeuraura ensuite la facultéde répondre auxobservations
que les demandeurs auront pu faire sur les dépositions.
6. Sous réserve des explications que la Cour pourra ultérieurement
demander ou des, questions que la Cour ou certains de ses membres
pourront poser aux Parties et sous réserve de toute ordonnance éven-
tuelle delaCour,la répliquedu défendeurconstituera lafin des plaidoiries
des Parties sur le droit et sur les faits.
7. Si les demandeurs désirent apporter des amendements aux con-
clusions déposéespar eux le 19mai, ils devront le faire après que le dé-
fendeur aura achevé sa derniére plaidoirie et avant qu'il présenteses
conclusions finales.
La Cour saisit cette occasion pour faire connaître aux Parties:
I. que la Cour ne délibérerasur la requete du défendeur relative B
une visite sur les lieux qu'après que tous les témoinetexperts auront
étéentendus et que les Parties auront achevé leurs plaidoiries;
2. que la Cour réservera l'examen de tous les points de droit et de
fait touchant au fond de l'affaire jusqu'h ce que la clôture de la procé-
dure orale ait étéprononcéeet que la Cour se soit retirée pour délibérer.
Le Président donne la parole à l'agent du défendeur.
M.VERLORE V.4NTHEMAA demande que M.de Villierssoit autorisé A
parIer au nom de son gouvernement.
Le PRÉSIDENT donne la parolea M.de Villiers
M. de VILLIERc Sommence l'exposéreproduit enannexe l.
L'audience, suspendue à 16 h 20,est reprised16 h 40
M.de VILLIE Rontinue l'exposéreproduit en annexe 2.
L'audienceestleuéeri17 h55
[Sigrsafures.]
Présents: (Voir audience du 15 III65.1
Le PRÉSIDENT ouvre l'audience et donne la paroleAl'agent du défen-
deur.
M.de VILLIERScontinue l'exposéreproduit en annexe 3.
L'audience,suspendue à II h 20,estreprise àII A 40
M. de VILLIERS continue l'exposéreproduit en annexe '.
L'audience est levéeà12 h 55
fSignatures.]
1Voir IX,p. 377-391.
2VoirIX, p. 391-406.
3VoirIX,p. 406-423.
4VoirIX, y.423-43850 MINUTES
Present : [See hearing of 15 III65.1
The PRESIDENT opened the hearing and called upon the Agent for
the Respondent.
Mr. de VILLIERc Sontinued the speech reproduced in the annex l.
TheCourt adjourned froln11-20 a.m. to 11.45 a.m.
Mr. de VILLIER continued the speech reproduced in the annex 2.
TheCourtrose at 12.30 $.W.
[Signatures.]
THIRTY-NINTH PUBLIC HEARINC (27 V 65, IO &m.)
Present: [See heating of 15 III65.1
The PRESIDENo Tpened the hearing and said that upon the adjourn-
ment of the Court the previous day the Agents of the Parties had seen
him. A request had been made by the Respondent thatthe further hear-
ing of the Oral Proceedings should be adjourned for a period of two
weeks, in order to enable the Respondent to consider fully the effect of
new matter stated to have been introduced by the Applicants late in
the course of their oral reply, to prepare properly itç oral argument in
response thereto and to determine whether it would seek to tender
evidence thereon. It had been stated that without the adjoumment
requested the Respondent would be placed under a handicap in engaging
in the research deemed to be necessary, and that the adjournment was
also necessary to permit the Agent for the Respondent to have consul-
tations with his Government.
The request of the Respondent had been considered, and in the cir-
cumstances, the Agent for the Applicants making no objection, the Court
would grant an adjournment until Tuesday, 8 June, at 3 p.m. It was to
be understood that the Respondent would then be prepared to proceed
with the further presentation of its case.
He calledupon Mr. de Villiers.
hlr. de VILLIERScontinued the speech reproduced in the annex 3.
The Court adjournedfrom 11.15 #.m. to II.45 a.m.
Mr. de VILLIERS continued the speech reproduced in the annex 4.
The Court rosead 12.05 p.m.
[Signatures.]
See IX.pp. 435-454.
See IX, pp.454-462.
3See lx, pp.462-476.
See lx,pp. 476-481. Présents:[Voir audience du 15 III65.1
Le PRÉÇIDENT ouvre l'audience et donne la paro1e.à l'agent du défen-
deur.
M. de VILLIERc Sontinue l'exposéreproduit en annexe l.
L'audience,suspendue à II h 20, est repriseà II h 45
M.de VILLIER continue l'exposéreproduit en annexe 2.
L'audienceest levée d 12 k 30
[Sig~ratures.]
TRENTE-NEUVIÈME AUDIENCE PUBLIQUE (27V 65, IO h)
Présents:[Voir audience du 15 III65.1
Le PRÉSIDENT ouvre l'audience et déclare qu'aprés la clôture de la
précédenteaudience il a reçu les agents des Parties. Le défendeur ade-
mandé que les audiences soient suspendues pour deux semaines, afin de
permettre d'examiner tous les aspects de la nouveIIe question qu'il estime
avoir étéintroduite par les'demandeurs dans la dernière portée de leur
répliqueorale, de préparer convenablement sa réponsesur ce point et de
déterminer s'il devra produire des témoins en lamatière. Le défendeura
déclaréque, si cette suspension ne lui était pas accordée,ilse trouverait
dans une situation désavantageuse pourprocéderaux recherchesvoulues
et que l'ajournement serait égalementnécessairepour permettre A l'agent
du défendeurde consulter son gouvernement.
Larequêtedu défendeur a étéexaminéeé ; tantdonnélescirconstances,
l'agent des demandeurs ne faisant aucune objection, la Cour suspendra
ses audiences jusqu'au mardi 8 juin à 15 heures. Il est entendu que le
défendeur sera alors prêt àpoursuivre sa plaidoirie.
Le Président donne la parole à M. de Villiers.
M. de VILLIERcSontinue l'exposéreproduit en annexe 3.
L'audience, suspendue ciII la15, estrepriseà II h 45
M. de VILLIERcSontinue l'exposéreproduit en annexe I.
L'audienceestlevée à 12 h 5
[Signatures.]
Sroirx, p.438-454.
VoirIX,p. 454-462.
3 Voir IXp. 462-476.
.Voir IX, p. 476-481. MINUTES
Present: [See hearing of 15 III65.1
The PRESIDENT opened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERS continued the speech reproduced in the annex l.
The Courtudjourned/rom 4.20 p.m. lo 4.40 +.m.
Mr. de VILLIERS continued the speech reproduced in the annex *.
TheCourtrose ut6 P.m.
[Signatures.]
Present :[See hearing of 15 III65.1
The PRESIDENT opened the hearing andcal1ed upon Mr. de Villiers.
Mr. de VILLIERS concluded the speech reproduced in the annex j.
The PRESIDENT called upon Mr. Grosskopf.
Mr. GROSSKOPb Fegan the speech reproduced in the annex '.
TheCourtadjourned /rom 11.20 amm. to 11.45#.m.
Mr. GROSSKOPcFontinued the speech reproduced in the annex 5.
TheCourtroseat I $.m.
[Signatures.]
Present: [Seehearing of 15 III65.1
The PRESIDENo Tpened the hearing and called upon MI- Groçsko f.
Mr.GROSSKOc Poncluded the speech reproduced in the annex !.
The PRESIDEN called upon Mr. de Villiers.
Mr. de VILLIERS began the speech reproduced in the annex 7.
TheCourtadjounied from 11.20 a.m. to 11.45a.m.
Mr. de VILLIERS continued the speech reproduced in the annex
TheCourtrose ut 12-55p.m
[Signatures.]
1 Seelx, pp. 482-497.
2 SeeIX, pp. 497-513.
3 SeeIX, pp. 513-523.
See IX, pp. 524-53r.
See lx. pp531-546.
SeeIX, pp.548-560.
SeeIX, pp.561-566.
SeeIX, pp. 566-5831 Pveients: [Voir audience du15 II65.1
Le PRÉSIDENoT uvre l'audience et donne la parole A M. de Villiers,
M. de VILLIER continue l'exposéreproduit en annexe '.
L'audience,suseendueri16 k.20, estrepriseà 16 h 40
11.de VILLIER continue l'exposéreproduit en annexe =.
L'audienceest Levéeà 18 h
[Signatures.]
QUARANTE ET UNIÈME AUDIENCE PUBLIQUE (9VI 65, IO h)
Présents:[Voir audience du r5 III65.1
Le PRÉSIDENo Tuvre l'audience et donnela paroleà M.de Villiers.
M. de VILLIERtS ermine l'exposéreproduit en annexe 3.
Le PRESIDENd Tonne la paroleà M.Grosskopf.
M.GROSSKOcP ommence l'exposéreproduit en annexe
L'audience, suspendueÙ II h 20,estrepriseÙ II h 45
M.GROSSKOc Pontinue l'exposéreproduit en annexe 5.
L'audielrceest levà 13 h
[Signatures.J
Présents :[Voir audience du rg III65.1
Le PRBÇIDEIZ ouvre l'audience et donne la parolà M.Grosskopf.
hl. GROSSKOtP emine l'exposéreproduit en annexe 6.
Le PRÉSIDENT donne la paroleA M.de Villiers.
M. de VILLIERcS ommence l'exposéreproduit en annexe '.
L'awdience,suspendue à II hzo, est reprisà II h 45
M.de VILLIER continue l'exposéreproduit en annexe
L'audienceest levéer12 h 55
[Signatures.]
1 VoirIX,p.482-497.
3 VoirIX,p.513-523.
VoirIX,p.524-531.
VoirIX,p.531-548.
6 Voir IXp.548-560.
7 VoirIX,p.561-566.
8 VoirIX,p. 566-581. MINUTES
54
Present: [See hearing of 15III65.1
The PRESIDENT opened the hearing and called upon Nr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex l.
TheCourtadjourned/rom 11.20 a.m, to11.4 5.m.
Mr. de VILLIERS continued the speech reproduced in the annex 2.
The Court roseatI p.m.
[Signatures.]
FORTY-FOURTH PUBLIC HEARING (14 VI 65, 3 p.m.)
Present: [See hearing of 15 III65. Judge Badawi absent.]
The PRESIDENT opened the hearing and announced that Judge Ba-
dawi was indisposed and would not be Sitting during the week. He
caIIed upon hlr. de VilLiers.
Mr. de VILLIERScontinued the speech reproduced in the annex 3.
The Courtadjmrned front4.20 P.m. to4.45 $.na.
Mr. de VILLIERScontinued the speech reproduced in the annex '.
TheCourtrose ut 5.55p.m.
[signatures.]
Present: [See hearing of 15III65. Judge Badawi absent.]
The PRESIDENT opened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERS concluded the speech reproduced in the annex 5.
The PRESIDENT called upon the Agent for tlie Respondent.
Dr. VERLORE VAN THEMAAT began the speech reproduced in the
annex 6.
TheCourt adjourned /rom 11.20 a.*. to11.4 0.m.
Dr. VERLORE VNAX THEMAAc Toncluded the speech reproduced in
the annex '.
The PRESIDENT called upon Mr. de Villiers.
MT.de VILLIERSbegan the speech reproduced inthe annex
The Court rose aI?p.m.
[Signatuïes.]
SeeIX, pp. 581-596.
SeeIX,pp. 596-61.
See IX,pp. Gr-627.
See IX, pp. 627-642.
See IXpp. 642-658.
SeeX,pp. 3-4.
' SeeX,pp. 4-11.
SeeX, pp.12-16, Présents:{Voiraudience du 15 III65.1
Le PRÉSIDENo Tuvre l'audience et donne la parote à M. de Villiers.
M. de VILLIERcSontinue l'exposéreproduit en annexe l.
L'audience, suspendue à II h 20,estreprise à II h qj
M.de VILLIERcSontinue l'exposé reproduit en annexe =.
.L'audienceest levéea 13 h
[Signatures .]
Presents: [Voir audience du 15 III65. M.Badawi, absent]
Le PRESIDEN oTuvre l'audience et annonce que M. Badawi; souffrant,
n'assistera pasaux audiences de lasemaine. Ildonne la parole à M. de
Villiers.
M. de VILLIERcSontinue l'exposéreproduit en annexe 3.
. L'audience, suspendue 16 1%20, estrepriseà 16 h 45
;M.de VILLIERcS ontinue l'exposéreproduit en annexe '.
L'audience estlevée6 17 h 55
[Signatures.]
Présents:[Voir audience du 15 III65. M.Badawi, absent.]
Le PR~SIDENT ouvre l'audience et donne la parole à M. de Villiers.
M. de VILLIERtS ermine l'exposéreproduit en annexe 5.
Le PRÉSIDEKdT onne laparole A l'agent du défendeur.
hl.VERLOREN van THEMAA commence l'exposéreproduit en annexe 6-
L'audieace,sras+e?zdzc àeII h 20. est reprisà II Itqo
ai.VERLOREv Nan THEMAAtT ermine l'exposéreproduit en annexe '.
Le PRESIDENT donne la parole A M. de Villiers.
M. de VILLIERcS ommence l'exposéreproduit en annexe
L'audie~ceest levée à 13 la
[Siglaotures.]
1Voir IX,p. 581-596.
2 Voir IX, p. 596-1.
3 Voir IX,p. 611-627.
+ Voir IX, p627-642.
Voir IX,p.642-648.
Voir X,p. 3-4.
Voir X,p. 4-r.
8 Voir X, p.12-16.56 MINUTES
Presenl: [See hearing of 15 III65. Judge Badawi, absent.]
The PRESIDENo Tpened the hearing and called upon Mr, de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the annex l.
TheCourtudjourned/rom 11.20 a.m. lo 11.40 #.na.
Mr. de VILLIERS continued the speech reproduced in the annex 2.
TheCourtroseat 12.55 p.m.
[Signatures.]
Present: [Seehearing of 15 11165. Judge Badawi absent.]
The PRESIDENT opened the hearing and called upon Mr. de Villiers.
Mr.de VILLIERS continued the speech reproduced in the annex 3.
TheCourt adjourned from 11.20 a.m. foII.40 a.m.
Mr. de VILLIERS continued the speech reproduced in the annex +.
The PRESIDENT said that it was to be understood that, for the con-
venience of both the Court and the Applicants, the Court would be in-
formed on the previous day of the witness or expert that it was propoçed
to cal1on the following day.
Mr. de VILLIERSçaid that the first witness would be Dr. W. W. M.
Eiselen.
The Courtroseut I P.m.
[Signatures.]
Preserat:[See hearing of 15 rrI65. Judge Badawi absent.]
The PRESIDENT opened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERS concluded the speech reproduced in the annex 5.
The PRESIDENT requested that the Court be informed before the next
hearing which of the witnesses or experts whose names had already
been communicated to the Court wouid not now be called. It was under-
stood that any further names which had not yet been determined upon
would be cornmunicated to the Court within a reasonable period of
tirne.
He then indicated the procedure which would be followed forthe hear-
ing of witnesses and experts.
See X,pp. i7-32.
See X,pp. 32-46.
3 See X, pp.46-61.
SeeX. pp.61-77.
SeeX, pp. 77-87. Prksents:[Voir audience du 15 II65.M. Badawi, absent.]
Le PRÉSIDENT ouvre l'audience et donne la parole M. de Villiers.
M. de VILLIER Sontinue l'exposéreproduit en annexe
L'audience,suspendue à II h 20,est reprisà II la40
M. de VILLIER Sontinue l'exposéreproduit en annexe *.
L'audienceest levéea rz h55
[Signatures.]
Présents: [Voir audience du 15 II65. M. Badawi, absent.]
Le PRÉSIDENT ouvre l'audience et donne la parole A RI. de Villiers.
M. deVILLIER Sontinue l'exposéreproduit en annexe 3.
L'audience,scasfienduù II h 20,est reprisà II k 40
M. de VILLIER continue l'exposé reproduiten annexe +.
Le PRESIDENT déclarequ'il doit êtreentendu que, tant pour la commodité.
de la Cour que pour ceiie des demandeurs, la Cour sera informéeun jour.
à l'avance du nom du témoin ou de l'expert que l'on se propose de faire
entendre.
M. de VILLIER iSdiqueque lepremier témoin serahl. W. W.M. Eiselen-
L'audienceest levéed 13 h
[Signatzsves.]
Prksents: [Voir audience du15 Ir165.EII.Badawi, absent.]
Le PRÉÇIDENT ouvre l'audience et donne la parole à M. de Villiers..
M. de VILLIER ermine l'exposéreproduit en annexe
Le PR~IDENT demande que la Cour soit informéeavant la prochaine
audience du nom des témoins ou experts qui, bien que portés sur les
listes présentéesiilaCour, ne seront pas cités.Il est entendu que les.
noms non encore signalés seront communiqués à la Cour dans un délai
raisonnable.
Le Président indique la procédure à suivre pour l'audition des témoins
et experts.
1Voir X, p.17-32.
Voir X,p.32-46,
3lroir X,p46-61.
4Voir X,p.61-77.
Voir X, 11.77-87. 9 MINUTES
Witnesses waiting to be called might not, without the permission of
the Court, be present in Court when any other witness wu giving evi-
dence. Any witness might remain in the Court after his evidence had
been given unless the Court otherwise directed. This direction extended
also to experts.
The witness or expert would take his place at the rostrum and would
make the appropriate declaration provided for in Article 53 of the Rules
of Court. Persons appearingin the capacity of both witness and expert
wodd make both the declarations provided for therein. If the witness
or expert spoke a languageother than French or English, the interpreter
supplied by the Respondent would make the declaration provided for
in Article 58ofthe Rules ofCourt. In the case of aliquestions, statements,
and evidence in French or English, the interpretation would be made
simultaneously into the other language by the Court's interpreters. In
the caseof statements which had to.be interpreted into one of the Court's
officiallanguages by an interpreter supplied by the Respondent, the in-
terpretation into the first officiailanguage wouldbe made consecutively
by the Respondent's interpreter. This translation would be interpreted
simultaneously into the otheroficial language by the Court's interpreters.
After the declarations provided for in the Ruies of Court had been
made, questions would be put to the witness or expert by Agent or
Counsel for the Respondent. The Agent for the Applicants would then
be given an opportunity to cross-examine if he so desired. Next would
corne any questions which the President and the judges might de-
sire to put. Lastly, the Respondent would have an opportunity to re-
examine.
Article 60, paragraph z, of the Rules of Court provided as followç:
"A transcript of the evidence of each witness or expert shall be made
available to him in order that rnistakes may be corrected under the
supervision of the Court."
One copy of the transcript of each witness' evidence would be made
available to the witness as soon as possible after the evidence had
been given. The witness would be asked to insert in the transcript
corrections of any mistakes that might have occurred and return the
signed corrected copy to the Registry within 24 hours, in order to
facilitate any supervision that the Court might think it proper to.exer-
cise in respect of any corrections made. In the case of witnesses who
used one of the Court's officia1languages, the transcript to be signed
by them would be the one draiw np in the language in wvhichthey
spoke. In the case of those who, as provided in paragaph 2 of Article
58 of the Rules of Court,made use of another language, it was the trans-
cnpt of the translation arranged for by the Party concemed under the
supervision of the Court which, aç being the authentic text. would be
corrected by the witness and signed by him.
Witnesses who were called should remain available for the Court,
unless they were released on application made by the Respondent. It
iq-ouldbe convenient if whoever was presenting the testimony ofthe wit-
ness to the Court would briefly state before the evidence was given, in
summary fom, the nature of the evidence to be given and the point or
points to which it would be directed.
The Court began the hearing of the witnesses and experts l.
l See X. pp. 88-90. A moins d'y. être autorisépar la Cour, un témoinqui n'aura pas encore
étéinvité à témoigner ne pourra assister à l'audience tant qu'un autre
témoin sera en train de déposer. Une fois sa déposition faite, il pourra
rester dans la salle à moins que la Cour n'en décide autrement. Cela.
vaudra égaiement pour les experts.
Le témoin ou l'expert prendra place au pupitre; ilprononcera ensuite.
la déclaration appropriée prescrite par l'article 53 du Règlement de la
Cour. Toute personne entendue à la fois comme expert et comme témoin
fera lesdeux déclarationsprescrites par ledit article. Siletémoinoul'expert.
parle une autre langue que le français oul'anglais,l'interprète fourni pale
défendeur prendra l'engagement prévu à l'article 58 du Règlement,
Lorsque le françaisou l'anglais seront utilisés pour toutes les questions,
déclarations et dépositions, l'interprétation simultanée sera assuréedans
l'autre langue par les interprétes de la Cour. Lorsque les exposésdevront
êtreinterprétés dans I'une des langues officielles de la Cour par l'inter-
@te que fournira le défendeur, l'interprétation dans cette langue offi-
clelle sera faite selon la méthode consécutive par l'interprète du défen-
deur. La traduction de celui-ci sera interprétée simultanément dans
l'autre langue officielle par les interprètes de la Cour.
Lorsque les déclarations prescrites par le Règlement auront étéfaites,
l'agent ou le conseil du défendeur posera des questions au témoin ou à.
l'expert. L'agent des demandeurs se verra alors offrir la possibilité
de pr6céder à un contre-interrogatoire s'il le désire.Il se peut qu'ensuite
le Président et les juges souhaitent poser des questions. Enfin le défen-
deur aura la possibilité de poser des questionssupplémentaires au témoin.
ou à l'expert.
L'article60, paragraphe 2, du Réglement dispose: iChaque témoin et
expert reçoit communication du compte rendu de sa déposition, afin que,.
sous lecontrôle de la Cour, il puisse corriger toutes erreurs. n
Chaquetémoin recevra copie du compte rendu de sa déposition aussitôt
que possible après qu'il aura témoigné.Il sera prié d'y apporter les cor-
rections destinées B rectifier les erreurs qui auraientpu se produire et de
renvoyer au Greffe l'exemplaire corrigé, muni de sa signature, dans les
vingt-quatre heures, de façon à faciliter Ie contrble que la Cour pourra.
juger approprié d'exercer sur les corrections. Lorsque le témoinemploiera.
l'une des langues officielles de la Cour, Ie compte rendu de sa déposition
qu'il devra signer sera le compte rendu établi dans la langue dont il se.
sera servi. Lorsque le témoin aura employé une autre langue, ainsi qu'il.
est prévu à l'article58, paragraphe 2, du Règlement, c'est la traduction
établie à l'intention de la Partie intéressée sousle contrôle de la Cour
qui constituera le texte authentiqueet en conséquenceseracorrigée par les.
soins du témoin et signéepar lui.
Les témoins entendus devront rester à la disposition de la Cour, b
moins qu'il n'en soit décidé autrement sur la demande du défendeur. 11
serait utile que la personne qui prksentera des témoins à la Cour indique
briévement, avant chaque déposition, quelle en sera la nature et sur
quels point ou points eIle portera.
La Cour commence l'audition des témoins et experts l.
1 VoirX, p. 88-90.60 MINUTES
TheCourtadjourned/rom 11.20 a.m. tO 11.40 a.m.
The Court continued the hearing of the wîtnesses and experts l.
TheCourtrose ut I +.m.
[Signatures.]
FOKTY-NINTH PUBLIC HEARlNG (SIVI 65, 3 p.m.)
Present: [See hearing of 15 III65. Judge Badawi absent.]
The PRESIDENo pened the hearing and requested the Deputy-Re-
istrar toread letters of 16and 20 June 1965 received from the Agent
for the Government of South Africa and the Agent for the Goverments
of Ethiopia and Liberia.
The DEPUTY-RECISTRA Rad the letters reproduced in the Annex 2.
The PRESIDENT said that the Court desired to indicate to both Parties
that in al1matters touching the public proceedings, any submissions or
contentionsor reservations made or sought to be made by either Party,
including objections to evidence or relevance of evidence, should be
made in open Court and not by correspondence to the Registry.
The Court continued the hearing of the witnesses and experts 3.
The Court continued the hearing of the witnesses and experts '.
TheCmrt rose ut 6.05p.m.
[Signatures .]
FIFTlETH PUBLIC HEARlNG (22 VI 65, 3 p.In.)
Present: [See hearing of 15 III65. Judge Badawi absent.]
The Court continued the hearing of the witnesses and experts
The Courtadjoctvned/rom 4.20 p.m.to4-40 $.m.
The Court continued the hearing of the witnesses and experts 6.
The PRESTDENs Taid that the Court desired to put certain questions
to the Parties.
These questions bore upon the fact that the Applicants reIied upon a
certain norm and/or standards as the basis for interpreting cornpliance
with Article2 (2).On the other hand, the Respondent disputed the exis-
tence of any such norm or standards and based its case upon the propo-
sition that Article2 (2) could not be show to have been breached by
it unless, in respect to the exercise of its authority under Article 2 of
See X, pp. go-roo.
*See XII, PartIV.
3SeeX,pp. 100-1 11.
SeeX. pp. 111-124.
'See X,pp. I24-139.
6 SeeX,pp. I39-15+ L'audience,suspendue d II h 20, estrepriseà II h 40
La Cour continue I'audition des témoinset experts 1.
L'audienceest levéeà 13 A
[Signatures.]
Présents:poir audience du 15 III65. M. Badawi, absent.]
Le PRÉSIDENT Ouvre l'audience et invite le Greffier adjointA donner
lecture d'une lettre de l'agent du Gouvernement sud-africain en date
du 16juin 1965 et d'une lettre de l'agent des Gouvernements éthiopien
et libérienen date du 20 juin 1965.
Le GREFFIER ADJOINT lit leç lettres reproduites en annexe
Le PRÉSIDENT déclare que la Cour désireindiquer aux deux Parties
que, pour tout ce qui concerne la procédure publique, toutes les con-
clusions, prétentionsou réservesqu'une Partie exprime oudésireexprimer,
y compris celles qui visent des objectionsAl'égard de certains moyens de
preuve ou de la pertinence de certains moyens de preuve, doivent être
présentéesen audience publique et non pas par lettre adresséeau Greffe.
La Cour continue l'audition des témoins et experts 3.
L'audience,sus$endzled 16 h 20,estreprise à 16 h 40
La Cour continue l'audition des témoinset experts 4.
L'audie~ceestlevée B18 h 5
[Signatures.]
Préseats:[Voir audience du rg Ir165. M. Bada~vi,absent.]
La Cour continue l'audition des témoinset experts 5.
L'acldielzces,uspendeced 16 h zo, estreprised 16 h 40
La Cour continue l'audition des témoinset experts 6.
Le PRÉSIDENT déclare que la Cour désire poser certaines questions
aux Parties.
Ces questions ont trait au fait que les demandeurs se fondent sur une
certaine norme et/ou sur certains«standards IIenvue d'interpréterl'appli-
cation del'article2,alinéa 2.Poursa part, ledéfendeurcontestel'existence
de cette norme ou de ces (standards)) et fonde son argumentation sur
cette assertion que la preuve d'une violation par le défendeur de l'ar-
ticlez, alinéa 2,ne peut être faiteque s'il est établique, dans l'exercice
lVoir X,p.90-100.
2Voir XII, Partie. IV.
Voir X,p. roo-111.
Voir X,p.III-124.
Voir X,p. 124-139.
a Voir X,p.139-154.62 MINUTES
the Mandate, it was shown that it had acted in bad faith, or for a pur-
pose other than to give effect to Article2 (2) of the Mandate and that
the Article must.be interpreted accorcüngly.
The questions which the Court desired to put to the Parties were the
following :
Assurning the Court were to come to the conclusion that there had
not been established any such legal nom or standards and were also
to come to the conclusion that the interpretation sought to be placed
upon Article 2 (2)of the Mandate bythe Respondent was not the proper
interpretation to be placed upon that Article, or did not exhaust the
meaning thereof,
Question I. Do the Parties contend that the Court is bound to adju-
dicate the dispute between the Parties exclusively upon the basis on
which they have presented their respective cases and the interpretation
they have respectiveIy sought to give to Article z (2) of the Mandate?
Question 2. DOthe Parties contend that it is not open to the Court
to place its own interpretation upon the article, having regard to al1
relevant legal considerations and adjudge between the Parties accord-
ingly ?
Question 3. In particular, do the Parties contend that it 1snot open
to the Court tu interpret paragraph 2, sub-paragraph 2 thereof, in a
manner by which it would examine and evaluate al1 relevant facts,
circumstances and conditions appertaining to the Territory, as they
appear before it on the final record in the case, in order to determine
whether the Respondent had discharged its obligations under that ar-
ticle and adjudge between the Parties accordingly?
~rgument on-the legal issues having been completed, it would appear
advisable that these questions shouid be answered as soon as possible.
Since the Court would adjourn at midday tomorrow, it would be conve-
nient to interpose the answers to these questions before the resumption
of hearing evidence, on TITednesdaynext, 30 June. The Applicantswould
be called upon first to gjve their answers, to be followed by the Res-
pondent.
TheCourtrose at 6 P.M.
[Signatures.]
Presenl: [See hearing of 15 III65. Judge Badawi absent.]
The Court continued the hearing of the witnesses and experts
The Courtadjour~ed from 11.20 a.m. to 11.4 5.m.
The Court continued the hearing of the witnesses and experts 2.
The Courtroseat 12.40 P.M.
[Signatures.]
' See X,pp. 154-170.
See X,pp.170-182. des pouvoirs à lui conféréspar l'articl2 du Mandat, il a agi de mauvaise
foiou dans un dessein autre que celui de donner effetà l'articl2,alinéaz,
du Mandat, et que l'article doit être interprétéen conséquence.
Les questions que la Cour désire poseraux Parties sont les suivantes:
A supposer quela Cour parvienne àla double conclusion que l'existence
de cette norme ou de ces (standards u juridiques n'a pas étéétablieet
que I'interprétation que le défendeur a cherché à donner de l'article z,
alinéa 2, du Mandat est mal fondéeou incomplète,
x.Les Parties soutiennent-elles que la Cour est tenue de statuer sur
le différendentre les Parties uniquement sur la base de leurs thèses telles
qu'elles les ont respectivement présentéeset des interprétations qu'elles
ont respectivement cherché à donner de l'article2,alinéa 2, du Mandat?
2. Les Parties soutiennent-elles qu'il n'est pas permis à la Cour de
donner sa propre interprétation de l'article, eu égardà toutes lesconsidé-
rations de droit pertinentes, et de statuer en conséquencesur le différend
entre les Parties?
3. En particulier, les Parties soutiennent-elles qu'il n'est pas permis
à la Cour d'interpréter I'article2, alinéa 2, du Mandat de manière à
examiner et ilapprécier tous les faits, circonstances et conditions per-
tinents, tels qu'ils lui ont étéprésentésdans le dossier définitif de l'af-
faire, en vuede déterminersi le défendeurs'est acquittéde sesobligations
aux termes-dudit article, et à statuer en conséquence sur le différend
entre les Parties?
Les plaidoiries sur les points de droit étant achevées, il semble oppor-
tun que des rkponses soient apportées A ces questions dans les meilleurs
délais. Etant donné que la Cour doit ajourner ses audiences àpartir du
lendemain, il serait commode que ces réponses soient données avant
que les dépositions reprennent, c'est-&-dire au début de l'audience qui
se tiendra le mercredi 30 juin. A cette fin, la Cour donnera la parole
aux demandeurs et immédiatement ensuite au défendeur.
L'audienceest levée d18 k
fSignatzcres.]
Présents:[Voir audience du 15 11165. M. Badawi, absent.]
La Cour continue l'audition des témoinset experts l.
L'audielace,sus$endue ctirh 20, est reprisd II h 45
La Cour continue l'audition des témoinset experts *.
L'audienceestlevée à 12 h 40
[Signatures.]
Voir X, p154-170.
2 Voir X,p.i70-182. Present: [See hearing o15 III65, Judge Badawi absent.]
The PRESIDEN Tpened the hearing and called upon the Agent for
the Applicants to reply to the questions put by the Court ozz June.
Mr. Gnoss made the speech reproduced in the annex l.
The PRESIDEN cTed upon the Agent forthe Respondent.
Dr. VERLOIEN VAN THEMAA aTked that Mr. de Villiers be aliowed
to address the Court.
The PRESIDEN called upon Mr. de Villiers.
blr. deVILLIER Segan the speech reproduced in theannex =.
TheCourtadjourned/rom 11.20 a.m. to12-noon
hfr. deVILLIER continued the speech reproduced in the annex j.
TheCourtroseat I p.ta.
[Signatures.]
Present: [See hearing of15 III65.Judge Badawi absent.]
The PRESIDEN Tpened the hearing and called uponMr. de Villiers.
Mr. de VILLIE conScluded the speech reproduced inthe annex '.
The Court udjournedfrontII.25 am. to 11.45 a.m.
The PRESIDENT called upon the Agent for the Applicants.
Mr. G~ossrequested an opportunity to comment on the reply of the
Respondent to the Court's questions.
The PRESIDEN said that the Court would hear the comments of the
Applicants at once, and that the Respondent would have a right of
reply.
Mr. G~oss made the speech rcproduced in the annex
The PRESIDEN calied upon Mr. de Villiers.
Mr. de VILLIERS made the speech reproduced in the annex 6.
The Court continued the hearing of the witnessesand experts'.
TheCourtrosc at rfi.m.
[Siglzalures.]
Presenf :[Çeehearing of 15 Irr65.Judge Radalvi absent.]
The Court continued the heanng of the witnessesand experts
1 SeeX,pp.183-188.
2 SeoX,pp. 188-198.
SeeX, pp. 198-211.
4 SeeX, pp.2t1-228.
5 SeeX,pp. 228-233.
SeeX,pp. 233-237.
SeeX, pp.238-242.
Sec Xpp. 242-253. Présents: [Voir audiencedu 15 III65.M. Badawi, absent.]
Le PKÉSIDENT ouvre l'audience et invite l'agent des demandeurs à
répondreaux questions poséespar Ia Cour le 22 juin.
M. G~oss prononce l'exposé reproduit en annexel.
Le PRESIDEK donne la parole Al'agent du défendeur.
M. VERLORE van THEMAA prie le Présidende bien vouloir donner
laparole à 31.de Villiers.
Le PRESIDEN donne laparole àM. de Villiers.
M. de VILLIERScommence l'exposéreproduit en annexe
L'audience,susibendueà II I20, est veprisd 12h
M. de VILLIER continue l'exposéreproduit en annexe 3.
L'nzcdienceest Eevùe r3 h
[Signatures.]
Préselits:[Voir audiencedu 15 Irr65.M. Badawi, absent.]
Le PRÉÇIDEKT ouvre l'audience et donnela paroIe àM. de Villiers.
M. de VILLIER tSrmine l'exposéreproduit en annexe +.
L'artdielzce,sztspendàcII h 25, est repriàeII h 45
Le PRESIDEN donne la parole à l'agent des demandeurs.
JI. G~oss désire présenterdes observations sur la réponse dudéfen-
deur aux questions de la Cour.
Lc PRÉSIDENT déclare que, la Cour entendra immédiatement les ob-
servations des demandeurs etque le défendeur aura le droit d'y répondre.
M.GROSS prononce l'exposéreproduit en annexe
Le PRÉSIDEN dTonne la paroleàM. de Villiers.
M. de VILLIER Srononce l'exposéreproduiten annexe 6.
La Cour continue l'audition des témoins et expert'.
L'audienceest EevéÙe13 h
[Signatures.]
CIBQUANTE-QUATRIÈ~~E AUDIEBCE PUBLIQUE (2 VI165, IO h)
Prksents: DToiraudience du 15 III65.M. Badawi, absent.]
La Cour continue l'audition des témoins et experts a-
iVoir X, p. 183-188.
Voir X, p. 188-198.
Voir X.p. 198-2I.
4Voir X,p.ZTI-228.
Voir X, p. 228-233.
Vair X,p. 233-237.
Voir X, p. 238-242.
Voir X,p.242-253.66 MINUTES
TheCourtadjourired/rom 11.25 am. 1011.4 0m.
The Court continued the hearingof the witnesses and experts '.
TheCourtroseat I #.M.
[Signatures.]
Present: [See hearing of 15 III65. Judges Badawiand Gros absent.]
The Court continued the hearing of the witnesses and experts =.
The Cozlrfadjourned from 4.20 p.m. to4.45 $.m.
The Court continued the hearing of the witnesses and experts 3.
The Court rose at $.nz.
[Signatures.]
Present: [Seehearing of 15 III65, Judge Badawi absent.]
The Court continued the hearing of the witnesses and experts 4.
TheCourtadjolcrnedfrom 11.20 a.nt. to11.40 am.
The Court continued the hearing of the witnesses and experts 5.
TheCourtrose at 1-05 p.m.
[Signatures.J
Present :[See hearing of 15 11165.Judge Badawj absent.]
The Court continued the hearing of the witnesses and experts 6.
TheCourtadjourned/rom 11.20 a.m. ta11.45 a.m.
The Court continued the hearing of the witnesses and experts '.
TheCozsvtrose ut I p.m.
[Signatures.]
See X, pp. 253-265.
See X,pp. 265-280.
3See X,pp. 280-z95.
+See X,pp. 295-309.
6See X, pp. 325-340.
'See x, FF.340-355 L'audience,susfiendue9 II h 25, est reprise II h 40
La Cour continue l'audition des témoinset experts l.
L'audienceestLevée à r3 h
[Signatures.]
Présents: poir audience du 15 IIr 65. NM. Badawi et Gros, absents.]
La Cour continue I'audition des témoins et experts =.
L'audience, suspendue ù 16 h zo, estrefirised 16 h 45
'
La Cour continue l'audition des témoinset experts 3.
L'audienceest levieÙ ri8 h
[Signatures.J
Présents:[Voir audience du 15 III65. hl.Badawi, absent.]
La Cour continue I'audition des témoins et experts +.
L'audience,susfiefldue à II h 20, estrefiriseà II h 40
La Cour continue l'audition des témoinset experts
L'audienceestlevée ù 13 h 5
[Signat~res.]
Présents:[Voir audience du 15 III65. hl. Badawi,absent.]
La Cour continue l'audition des témoinset experts 6.
L'audience,sns#endile LiII h 20, estreprise Ù II h 45
La Cour continue I'audition des témoins et experts '.
L'audienceest levée à 13 h
[Signatures.]
l VoirX, p.253-265.
2 VoirX, p. 265-280.
3 VoirX, p.295-309.
Voir X,p.309-325.
VoirX, p.325-340.
VoirX, p. 340-355.68 MINUTES
Prese~~t: [See hearing of 15 11165. Judge Badawi absent.]
The Court continued the hearing of the witnesses and experts '.
TheCourtadjour.wed/rom 11.20 a.m. to11-40 #.m.
The Court continued the hearing ofthe witnesses and experts 2.
TheCourtrose al I $.nt.
[Signatures .]
Presenf: [See hearing of 15 III65. Judge Radawiabsent.)
The Court continued the hearing of the ~vitnessesand experts 3.
TheCourtadjourned/rom 11.20 a.m. to11.4 5.m.
The Court continued the hearing of the witnesses and experts 4.
TheCouri!roseut 1.05 p.m.
[Szgnalzsres.]
SIXTIETH PUHLIC HEXRINC (12 II1 65, IO a.m.)
Present: [See hearing of 15 III65. Judge Badawi absent.]
The Court continued the hearing of the witnesses and experts 5.
The Courladjourlaedfroln 11.20 a.m. toII.45a.%.
The Court continued the hearing of the witnesses and experts 6.
TheCourtadjournedfrom I$.m. lo 3 P.m.
The Court continued the hearing of the witnesses andexperts 7.
T.heColrrfroseut 4.j p.m.
[Signatures.]
Present: [See hearing of 15 III65. Judges Badawi and Spiropoulos
absent.]
The Court continued the hearing of the witnesses and experts
SeeX, pp. 355-370,
2 SeeX,pp.370-387.
3 SeeX,pp.387-406.
SeeX,pp. 4oG-426.
SeeX, pp.427-446.
SeeX, pp. 446-4%.
SeeX, pp.466-479.
SecX.PP. 479-497. Présents:[Voir audience du 15 11165. M.Badawi, absent.]
La Cour continue l'audition des témoins et experts '.
L'audience,satspendzteà II h 20, estrepriseà Ir la40
La Cour continue l'audition des témoinset experts 2.
L'audienceest levéed 13 h
[Sigrcatures.]
Présents:[Voir audience du 15 IIr65. hl. Badawi, absent.]
La Cour continue l'audition des témoinset experts 3.
L'audience,susfiendue à II h 20, est reprisà II h 45
La Cour continue i'audition des témoins et experts4.
L'audienceestlevé e13 h 5
[Signatures.]
Prése~ts:[Voir audience du 15 III65. hl. Badawi, absent.]
La Cour continue l'audition des témoinset experts
L'audience,susfiendue à II h zo, estrepriseù II h 45
La Courcontinue l'audition des témoinset experts 6.
L'audience,sus$eadue 13 h, est reprisedIj h
La Cour continue l'audition des témoinset experts ?.
L'atldzenceest levéLi16 h 5
[Signatures.]
SOIXANTE ET UNISM EUDIENCE PUBLIQUE (13 VII6j, IO h)
Présents:[Voir audience du 15 III45. RIM.Badawi et Spiropoulos,
absents.]
La Cour continue l'audition des témoinset experts 8.
Voir X, p. 355-370.
2Voir X,p. 370-387.
Voir X, p. 387-406.
4Voit X, p. 406-426.
Voir X, p. 427-446.
6Voir X.y. 446-466.
VoirX, p. 406-479.
Voir X,p. 479-497.70 MINUTES
TheCourtadjournedfrom 11.20 a.m. t11.40 am.
The Court continued the hearing of the witnesses and experl.
The Courtadjour~tedfrow rP.m. tu3 P.m.
The Court continued the hearingofthe witnesses and expert=.
TheCourtadjourjtedfrom 4.10 p.m. t4.55 $.m.
The Court continued the hearing of the witnesses and exper3.
The Courtroseat 6.15p.m.
[Sigfiatures.]
Presenf: [See hearing of15 III65. Judges Badawi and Spiropoulos
absent.]
The Court continued the hearing of the witnesses and exper4.
The PRESIDEN said that the Court would adjourn until3 p.m. on
zo Septernber, unless it were otherwise ordered and the Parties notified
in the meantirne.
The Couvtroseat10.50 #.m.
[SigfiatureJ.
Present: President Sir Yercy SPENDERV ;ice-PresidentWELLINGTON
KOO;J~dgesSPIROPOULO Sir,GeraldFITZMAURICE, KORETSK T A,NAKA,
JESSUP, MORELLI PAÜILLA NERVO, FORSTER, GROS; Judges ad hoc,
Sir Louis MBANEFO v,an WYK;Depdy-Regisfrar AQUARONE.
The PRESIDENoT pened the hearing.
Referring to the sudden and unexpected death during the Court's
recess of Judge Badawi, he placedon record theCourt' ribute to one
who had given most distinguished service to the Court. Judge Badawi
had been elected a hlember ofthe Court in 1946,and had continued
a Member thereof until the time of his death. He had been, during the
years 1955to 1958V ,ice-Yresidentof the Court. Prior tohisbecoming
ajudge of the Court he had rendered outstanding services to his country,
having occupied the position of ChieLegal Adviser to the Egyptian
Government between 1926 and 1940s ,ubsequent to whichhe had been
Minister of Finance, senator and Ninister of Foreign Affairs. He had
been theEgyptian delegate to several international conferences. Special
mention might be made of his work in the establishment of the United
Nations, when he had been Chairrnan for his country's delegation and
l SecX, PP. 497-513.
SecX,pp. 513-j28
See X,pp.528-548
* SeeX, pp. 548-558. L'audience,suspendzseB rr h zo,estrepriseriII A40
La Cour continue l'audition des témoinset experts'.
L'audience, suspendued 13 h,esfrepriseà 15 h
La Cour continue l'audition des témoinset experts
L'audience,suspendue à 16 h IO,estrepriseà 16 Ir55
La Cour continue l'audition des témoinset expertsj.
L'audienceest levéà 18 k15
[Signatures.]
PrLsents: [Voir audience du 15 III 65. MM. Badawi et Spiropoulos,
absents.]
La Courcontinue l'auditiondes témoinset experts 4.
Le PRÉSIDENT déclareque la Cour suspendra ses audiences jusqu'au
20 septembre à 15 h, sauf décisioncontraire notifiéeaux Parties.
L'audienceestlevée àIO h 50
[Signatures.]
SOIXANTE-TROISI&ME AUDIENCE PUBLIQUE (20 IX 65, 15 h)
Pvésents: sir Percy SPENDBR,Prdsident ; M. WELLINGTON KOO,
Vzce-Prksident;31.SPIROPOULOsS i, Gerald FITZMAURICE M,M. KORET-
SKY, TANAK JE,SUP, MORELLI,~'ADILN LERVOF ,ORSTERG , ROS,uges;
sir Louis MBANEFO M, . van WYK,Juges ad hoc; M. AQUARONG Er,efier
adjoint.
Le PR~SIDENo Tuvre l'audience et tienau nom de la Cour, rendre
hommage àla mémoired'un juge éminent,M.Badawi, décédé de manière
soudaine et inattendue pendant les vacances judiciaires. Elu en 1946,
M. Badawi est resté membre de la Cour jusqu'a sa mort,après en avoir
étévice-président de1955 A 1958A .vant son élection,il a rendu dere-
marquables services àson pays de 1926 à 1940comme conseiller juri-
dique principalu Gouvernement et au cours desanne suivantes comme
ministre des Finances, comme sénateur et comme m~nistredes Affaires
étrangéres. II a représenté ltEgypte à plusieurs conférences interna-
tionales.Ilconvient de rappeler tout spécialement le rôle qu'il s joué
dans la création des Nations Unies en tant que président de la déléga-
tion de son pays et en tant que président d'un important comitéchargé
de la rédactiondu Statut de la CouAu service dla Cour, où sonsavoir
et sa sagesse seront très regrettés et où son absence créera un vide diffi-
Voir X,p.513-528..
'Voir X,p. 528-548~
Voir X,p. 548-558.72 MINUTES
President of an important cornmittee which had dealt with the establish-
ment of the Statute of this Court. His services to the Court had been
those of a jurist of great distinction, and his knowledge and wisdom
would be greatly missed and not easy to replace. His death was a very
sorrowful event for ali who had the privilege of knowing hm, and par-
ticularly his colleagues on the Court, for he had been a man who not
only enjoyed their confidence, but had a spccial place in their affections.
The Court extended its deep syrnpathy to Madarne Badawi and the
mernbers of Judge Badawi's family in their great personal sorrow.
The Court stoodfor one minute of silence as a tribudeto Judge BadawiJs
memory
The PKESIDENaT nnounced that Judge Winiarçki was, on doctor's
orders, obliged to rest for a few days, but expected to be able to resume
his place later inthe week.
He expressed the regret of the Court at the unfortunate accident
which prevented Mr. de Villiers from being present to conduct the case
on behalf of the Respondent, and wished him a syeedy recovery from
his injury. The Court had also learned with regret that il1health had
compelled Dr. verLoren van Themaat to return to his country. He had,
over very many months in The Hague, represented his country with
quiet distinction and courtesy. The Court hoped his return to South
Africa would contribute to an improvement in his health.
The Court would now resume the hearing o- tlie witnesses and ex-
perts.
The Court resumed the hearing of the witnesses and experts '.
TheCourtadjournedfrom 3.55 p.m. to 4.15 p.m.
The Court continued the hearing of the witnesses and experts 2.
TheCourtroseat 6 $.nt.
[Signatures.]
Preselat:[Seehearing of 20 rx 65. Judge PadilIa Nervo absent.]
The Court continued the hearing of the witnesses and experts 3.
The Courtadjournedfrom 4.20 fi.m. to 4.45p.m.
The Court continued the hearing of the witnesses and experts 4.
TheCourtrose at 6 $.in.
[Signatures.]
-. .
l See XI, pp.3-12.
See XI, pp.12-34,
' See XI, pp. 3551.
See XI,pp. 51-67,cile à combler,il afait preuve dehautes qualités de juriste. Sa disparition
a ététrès douloureusement ressentie par tous ceux qui avaient le privi-
Ege de le connaître et en particulier par ses collègues la Cour, dont il
avait su gagner non seillement la confiance mais aussi l'amitié. A
Mme Badawi et a la familledu défunt, laCour exprime ses plus sincéres
condoléances.
Ln Courobserveune minudede silenceR lamémoire de M. Badawi
Le P&SIDENT annonce que M. Winiarski doit, sur l'ordre de son
médecin,prendre quelques jours de repos mais espère êtreen mesure de
reprendre sa place sur le siège avant la fin de la semaine.
Le Président exprime les regrets de Ia Cour à I'occasion du maiencon-
treux accident qui empéche RI.de Villiers de continuer A présenter l'af-
faire pour le compte du défendeur. La Cour a également appris avec
tristesseque des raisons de santéont obligé M. verLoren van Themaat à
retourner dans soli pays. Pendant les nombreux mois qu'il a passés A
La Haye, il a représentéson gouvernement avec une distinction et une
courtoisiediscrétes. La Cour souhaite que son retour en Afrique du Sud
contribue à l'amblioration de sa santé.
Le Président annonce que la Cour va reprendre l'audition des témoins
et experts.
La Cour reprend l'audition des témoins et experts l.
L'audience,sfcs$endue à 15 h 55, estreprisecir6 h Ij
La Cour continue l'audition des témoins etexperts 2.
L'audienceestlevie ù 18 h
[Signatures.]
Présents: [Voir audience du 20 IX 65. M. Padilla Nervo, absent.]
La Cour continue l'audition des témoins et experts 3.
L'atddience,suspendue à 16 h 20, estrepriseà 16 h qj
La Cour continue l'audition des témoins et experts '.
L'audiencees!levéeB18 h
[Signnftcres.]
l VoirXI,p. 3-12.
2 Voir XI,p.12-34.
3 Voir XI, p. 35-5r
4 Voir XI, p.51-G7. SIXTY-FIFTH PUBLICHEARING (22 IX65, IO a.m.)
Present: [Seehearing of20 IX 65.1
The Court continued the hearing of the witnesses and expert'.
TheCourtadjournedfyom 11.20 a.m.to II.45 am.
The Courtcontinued the hearing ofthe witnesçes and experts2.
TheCourtroseat I p.m.
[Signatures.]
Present: [See hearing ofzorx 65. Judge Padilla Nervo absent.]
The Court continued the hearing of the witneses and experts3.
TheCourtudjournedfrom 11.20 a.m.ta 11.4 a5.*.
The Court continued the hearing of the witnesses and exper4.
TheCourt roseat 12.55 p.m.
[Sig~raiures.]
Presenl: President Sir Percy SPENDERv;ice-Presided WELLINGTON
KOO ;Judges WINIARSKI, SPIROPOULOS, Sir Gerald FITZMAURIK COE,RET-
SKY, TANAKA, JESSUP, MORELLI PADILLA NERVO, FORSTER ,ROS;
Judges ad hoc Sir Louis MLIANEFv Oa,n WYK;De#uty-Registrar AQUA-
RONE.
The Court continued thehearing of the witnessesand experts
TheCourtndjournedfrom 11.20 a.m. to11-40 u.m.
The Court continued the hearing of the witnesses and expert6.
TheCourtrose ut rp.m.
[ Sigtsaitcres.]
SIXTY-EIGHTH PUBLIC HEARlNG (27 IX 65, 3 p.In.)
Present :[Seehearing of 24 IX65.1
The Court continued the hearing of the witnesses and expert'.
SeeXI, pp. 67- 81.
2 See XI, pp82- 96.
See XI, pp96-110.
+ See XI, pp. 110-125.
6 SeeXI, pp. 141-157..
See XI. pp. 157-174 Présenfs:voir audience du 20 IX 65.1
La Cour continue l'audition des témoinset experts l.
L'audience,suspendtre àII Ir20, estrepriseàrr h 45
La Courcontinue l'audition clestémoinset experts
L'awdienceest levéeà 13 h
[Signatures.]
SOIXANTE-SIXIÈME AUDIENCE PUBLIQUE (23 IX 6.5IO h)
Présents:[Voir audiencedu 20ix 65. M. PadiilaNerva, absent.]
La Cour continue l'audition des témoinset experts3.
L'azrdience,suspendue à II h20, estrepriseà II h45
La Cour continue l'audition des témoinset experts'.
L'audienceestkvée d 12 h 55
[Signatures.]
Présents: sir Percy SPENDER P,résident M.WELLINGTO KNOO,Vice
Président; MM. WINIARSKY, SPIROPOULOS, sir Gerald FITZMAURICE,
MM.KORETSKT Y, NAKA ,ESSUP, MORELLI, PADILLA NERVO, FORSTER,
GROS Juges ;sir Louis MBANEFO M,.van WYK,Jugesad hoc; M.AQUA-
RONE, Grefier adjoint,
La Cour continue l'audition des témoinset experts
L'audience,sus#endue à IIh 20, estrepriseà IIh 40
La Cour continue l'audition des témoinset experts6.
L'azldienceestlevéeu 13 A
[Signat~res.]
Présmts:[Voir audience du 24 IX 65.1
La Courcontinue l'audition des témoinset experts 7.
1Voir XI,p. 67-81.
2Voir XI, p82- 96.
3 VoirXI.p.96-rio.
+VoirXI, p.110-125.
5Voir XI.p.125-141.
6 VoirXI.p.141-157,
Voir XI, p157-174. MINUTES
76
TheCourtadjournd from4.20 p.m. fo4.40 p.m.
The Court continued the hearing of the witnesses and experts l.
TheCourt rose ut6.oj p.m.
[Signatures.]
Present : [Seehearing of 24 IX 65.1
The Court continued the hearing of the witnesses and experts
TheCourtadjournedfrom 11.20 a.m. to11.40 a.m.
The Court continued the hearing of the witnesses and experts 3.
The Coscrtroseut 12.50 P.m.
[Signatures.]
Presenl :[See hearing of 24 IX 65.1
The Court continued the hearing of the witnesses and experts 4,
The Co.trt-t djowr~ed/rom 11.20 a.m. torr.40 a.m.
The Court continued the hearing of the witnesses and experts 5.
TheCourtrose ut Ip.nt.
[Sigtzatzcres.]
Present :[See hearing of 24 IX 65.1
The Court continued the hearing of the witnesses and experts
The Courtadjourned/rom 11.20 a.m. to 11.40 a.m.
The Court continued the hearing of the witnesses and experts '.
TheCourtrose utI .p.m.
[Signatures.]
See XI,pp. 174-191.
2See XI, pp. 191-206.
See XI. pp.206-219.
See XI, pp.219-234.
See XI, pp.234-250.
See XI.pp. 250-267.
See XI,pp. 267-281 L'audience,suspendue Ù 16 la20, est reprisà 16 h 40
La Cour continue l'audition des témoins et experts '.
L'adieîice est levéeci18Ir j
[Signatures.]
Yrésenls: [Voir audience du 24 IX 6j.J
La Cour continue l'audition des temoins et experts 2.
L'audience,suspdz~e à II h zo, est repriseÙ rr h40
La Cour continue l'audition des témoins etexperts 3.
L'audience estlevieà 12 h 50
[Signatures.]
SOIXANTE-DIXIÈ~IIE AUDIENCE PUBLIQUE (29 IS 65, IOh)
PrLsenls: [Voir audience du 24 IX 65.1
La Cour continue l'audition des témoins et experts4.
L'audielzce,suspendue à II h 20, est repriseR Ir h40
La Cour continue l'audition des tCmoins etexperts
L'audienceest lmée à 13 h
[Signatztres.]
SOIXANTE ET ONZIÈME AUDIENCE PUBLIQUE (30 IX65, IO h)
Présents:[Voir audience du 24 IX 65.1
La Cour continue l'audition des témoins et experts 6.
L'audie~ce,suspendued XI h 20, est refirisà II h 40
La Cour continue l'audition des témoins et experts 7.
L'audience estlevéeà 13 13
[Signatwres.]
1 VoirXI, p. 174-191.
2 VoirXI, 1). 191-,206.
VoirXI,p. 206-219.
Voir XI,p. 219-234.
3 Voir XI,p.234-150.
Voir XI,p.250-267.
7 Voir XI,p.267-284. MINUTES
Present:[See hearing o24 IX 65.1
The Courtcontinued the hearing of the witnesses and exper'.
TheCourtadjourned/rom 11.20a.m. lo11.4 0.m.
The Court continued the hearinof the witnesses and expert2.
TheCourtroseat r #.nt.
[Signatures.]
Present: Presidenl Sir PercySPENDER ;ice-Presidmt WELLINGTON
Koo; Judges WIXIARÇKS I,ir Gerald FITZMAURIK COE,RETSKT YA,NAKA,
JESSUP, MORELL PI, DILLNAERVO ,ORSTER, GROSJ ;udges ad hoc Sir
Louiç MBANEFO van WYK; Depuly-RegislrarAQUARONE.
The PRESIDENoT pened the hearing and announced that Judge Spi-
ropoulos,under doctor's orders, would be unable to sit for a few days.
The Court continued the hearing of witnesses and expe3.s
TheCourtadjofcrnedfrom 4-20p.m. lo4.40$.m.
The Court continued the hearing of the witnessand experts'.
TheCourtroseai 6 p.m.
[Signaiures.J
Present: [Seehearingof 4 x 65.1
The Court continued the hearing of the witneçseç and expe$.s
TheCourtadjourned/rom rr.20 a.m.to11.4 0.m.
The Courtcontinued the hearing of the witnesseand experts6.
The Cowt roseut I$.m.
[Signafures.J
Pvesem:t[Seehearingof 4 x65.1
The Court continued the hearing of the witnesand experts '.
l SeeXI,pp.284-298.
SeeXI,pp.298-315.
SeeXI,pp.315-332.
+ SeeXI,pp.332-348.
SeeXI,pp.366-383.
' SeeXI,pp.383-403. SOIXANTE-DOUZIÈME AUDIENCE PUBLIQUE (1 X 65, IO h)
Présents:woir audience du 24 IX65.1
La Cour continue l'audition des témoins et experts1.
L'audience,sus+endue à II h 20,est reprisd Ir h 40
La Cour continue l'audition des témoins et experts=.
L'audienceestlevée à 13h
[Signatures.]
SOIXANTE-TREIZI~ME AUDIENCE PUBLIQUE (4X 65,15 h)
Présents :sir PercySPENDER, Président;M. WELLINGTO KONO, Vicc-
Président; M. WINIARSKI, sir Gerald FITZMAURICE, IfM. KORETSKY,
TANAKA ,ESSUP, MORELLI, PADILLA NERVOF , ORSTERG , ROSJ, uges;
sir Louis MBANEFO M,. van WYK,Juges ad hoc; M. AQUARONG Er,ef-
fieradjoint.
Le PRASIDEKo Tuvre l'audience et annonce que, sur l'ordre de son
médecin, M. Spiropoulos devra s'abstenir de siégerpendant quelques
jours.
La Cour continue l'audition des témoinset experts3.
L'audience,susfendue à 16 h 20,est reprise ri16 40
La Cour continue l'audition des témoinset experts '.
L'audienceest levéeR 18 h
[Signatures.]
SOIXANTE-QUATORZIÈME AUDIENCE PUBLIQUE (5X 65, 10 h)
Prksenls: [Voiraudience du 4 x 65.1
La Cour continue l'audition des témoinset experts
L'adiewce, suspedae à:11 h 20, estrefiriseII h 40
La Cour continue l'audition des témoins et experts6.
L'audienceest levte d 13 h
[Sigsalures.]
'
Présents:[Voir audience du 4 x 65.1
La Courcontinue l'audition des témoins et expeds 7.
1 Voir XI, p. 284-298.
2 Voir XI,p. 298-315.
VoirXI,p. 315-332-
+ Voir XIp. 332-348.
' Voir XIp. 349-366.
VoirXI,p.366-383.
Voir XI, p. 383-403.80 MINUTES
TheCourtadjourizedfrom 11.20 a.m. to 11.40 a.m.
The Court continued the hearing of the witnesses and experts l.
TheCourtrose at I p.m.
[Signatures.]
Present: [Seehearing of 4 x 65.1
The Court continued the hearing of the witnesses and experts 2.
TheCo& adjournedfrom 11.20 a.m. to11.40 a.m.
The Court continued the hearing of the witnesses and experts 3.
TheCoztrtrose ai I $.nt.
[Signatures.]
Present :[See hearing of4 x 65.1
The Court continued the hearing of the witnesses and experts 4.
TheCourtadjotarnedfrom 11.20 a.m. do 11.40 a.m.
The Court continued the hearing of the witnesses and experts 5.
TheCorartrosent I #.m.
[Signatures.]
Presenl: [See hearing of4 x Gj.]
The Court continued the hearing of the witnesses and expert s.
The Coztrtczdjournedfrom 4.20 #.nt. to 4.40#.m.
The Court continued the hearing of the witnesses and experts '.
TheCotcrtroseat 6 p.m.
[Signatures.]
l SeeXI, pp. 403-421.
* SeeXI, pp. 421-440.
3 SeeXI, pp. 440-458.
SeeXI. py. 458-473.
' SeeXI,pp. 473-486.
SeeXI. pp. 487-502.
SeeXI, pp. 502-517. L'audience,susfiendue à II h 20, eslveprise ci IIh 40
La Cour continue l'audition des témoins et experts l.
L'audierrce est levéeà 13A
[Signatztres.]
Présents:pair audielice du 4 x 65.1
La Cour continue l'audition des temoins et experts 2.
L'u~~CliE?z sus,pe~dae B II h 20, est repriseù rr h 40
La Cour continue l'audition des t5moins et experts 3.
L'artdiewceest levée d 13 h
[Signatztres.]
Présents : [Voir audience du 4 x 65.1
La Cour continue l'audition des témoinset experts
L'audimce, sus+e9zdue à Ir h zo,est re@rise R 11 h 40
La Cour continue l'audition des témoinset espcrts 5.
L'azidienceest levéeà 13 h
[Signatures.,]
Présents:[Voir audience du 4 s 65.1
La Cour continue l'audition des témoins et experts 6.
L'audcdz'elasce, bendua 2 16 h zo, est reprise a 16 la40
La Cour continue l'audition des témoinset experts 7.
L'audienceest lede Ù 18 h
[Signatures.]
1 Voir XI,p. 403-421.
Voir XI, p.421-440.
Voir XI, p.440-45s.
4 Voir XI, p.438-473,
5 Voir XI, p. 473-456.
6 Voir XI, p.487-502.
7 Voir XI,p. 502-517.82 MINUTES
Present :[Seehearing of 4 x 65.1
The Court continued the hearing of the witnesses and experts l.
TheCourtadjozcrwedf~om11.25 am. to rr.45 a.m.
The Court continued the hearing of the witnesses and experts =.
TheCwcrtrose at I p.m.
[Signatures.]
Present :[See hearing of 4 x 65.1
The Court continued the hearing of the witnesses and experts 3.
The Courtadjourned/rom 11.25 a.m. to 11.45 am.
The Court continued the hearing of the witnesses and experts 4.
The Courtroseat r p.m.
[Signatnrres.]
EIGHTY-FIRST PUBLIC HEARING (14X 65, IO am.)
Preseni: [Seehearing of 4 x 65.1
The Court continued the hearing of the witnesses and experts
The Courtadjournedfrom rr.25 n.m. toxr.45 am.
The Court continued the hearing of the witnesses and experts 6.
TheCourtrose at I p.m.
[Sigflatures.1
Present :[Seehearin of 4 x 65.1
The Courtcontinue $ 'he hearing of the witnesses and experts 7.
The Court adjottrn8d/rom 11.25 a.m. to 11-45 a.m.
The Court continued the hearing of the witnesses and experts
TheCourtroseat 12.40 p.m.
[Signatures.]
1 SeeXI, pp. 517-532.
* SeeXI. pp.532-545.
3 SeeXI, pp.545-562.
+ SeeXI, pp.562-579
SecXI,PP 579-597.
6 SeeXI,ppp.612-629.
ÇeeXI, pp. 629-643. SOIXANTE-DIX-NEUVIÈMEAUDIENCE PUBLIQUE (12 X 65, IO h)
Présents:[Voir audience du 4 x 65.1
La Cour continue l'audition des témoinset experts l.
L'audience,suspenduecf II h 25, estreprise R II h 45
La Cour continue l'audition des témoinset experts 2.
L'audienceestlevée à 13 Ir
[Signalures.]
Présents:poir audience du 4 x 65.1
La Cour continue l'audition des témoinset experts 3.
L'adefice, susfiendue à II A25, estreprise d II h 45
La Cour continue l'audition des témoinset experts 4.
L'audienceest levéed 13 li
[Signalures.]
Présents : voir audience du 4 x 65.1
La Cour continue l'audition des témoins et experts 5.
L'audience, suspendued II h 25. est reprise à II h 45
La Cour continue l'audition des témoinset experts 6.
L'audienceestlevéed 13 h
[Sigtaatures.]
Prés~nts:pVoiraudience du 4 x 65.1
La Cour continue l'audition des témoinset experts '.
L'audience, suspendued II h 25, estreprise Ù II h 45
La Cour continue l'audition des témoinset experts
L'audienceest levéed 12 h 40
[ Sigrsalarres.]
l Voir XI, p. 517-532.
Voir XI, p.532-545
3 Voir XI,p. 545-562.
4 Voir XI, p. 562-579.
Woir XI, p. 579-597.
Voir XI, p. 597-612.
7 Voir XI. p.612-629.
a Voir XI,p. 629-643.s4 MINUTES
Present :[Sec hearing of 4 x 65.1
The Court continued the hearing of the witnesses and experts l.
TheCOZL Zdjourned from 4.209.". 104.45 p.m.
The Court continued the hearing of the ivitnesses and experts 2.
The Court roseat 6 p.m.
[Signatures.]
Preselzt:[Seehearing of 4 x 65.1
The Court continued the hearing of the witnesses and experts 3.
The Cauvt adjournedfrom 11.20 a.m. to 11.40 a.m.
The Court continued the hearing of the witnesçes and experts '.
TheCourt rose at12.50 $.m.
[Signatures.]
Present: [Seehearing of 4 x 65.1
The Court continued the hearing of the witnesses and experts
The Court adjowr?ted/rom II.25 a.m. lo11.4 5.m.
The Court continued the hearing of the witnesses and experts 6.
The Court rose utI p.m.
[Signatures.]
P~esefi: [See hearing of4 x 65.)
The Court continued the hearing of the witneçses and experts '.
The Courtadjo~wltedfrom Ir.zo am. lo11.40 am.
The Court concluded the hearing of the witnesses and experts
The Court voseut 12.50 p.m.
[Signatures.]
Sec XI,pp. 643-661.
See XI, pp.661-677.
'See XI, ~ip677-694.
See XI, pp.694-708.
See Xïr, pp. 3-20.
See XII,pp.20-35.
'See XII,pp.35-52.
See XII, pp. 52-66. Présents:[Voir audience du 4 x 65.1
La Cour continue l'audition des témoinset experts l.
L'audience,suspendue à 16 h 20, est repriseri16 A 4j
La Cour continue l'audition des témoinset experts 2.
L'audience estlevéea 18 Iz
[Signatures.]
QUATRE-VINGT-QUATRIÈME AUDIENCE PUBLIQUE (19 X 65, IO h)
Présents:[Voir audience du 4 .u65.1
La Cour continue l'audition des témoinset experts 3.
L'audience,sus$endued rr A 20, est reprise à II h 40
La Cour continue l'audition des témoinset experts '.
L'audienceestimée à 12 h jû
[Signatures.]
Présents:voir audience du 4 x 65.1
La Cour continue l'audition des témoinset experts 5.
L'azcdiencc,sats+endsldre2II h 25, est reprise à II h45
La Cour continue l'audition des témoinset experts 6.
L'atcdienceest levéeri13 la
[Signatures.]
Présents: [Voir audience du 4 Y 65.1
# La Cour continue l'audition des témoinset experts 7.
L'audience, suspendue à II h zo, est reprise R II h 45
La Cour termine l'audition des témoinset experts 8.
L'audienceestlevée rirz Iijû
[Signatures.]
-.
1 Voir XI, 1).643-661.
2 Voir XI, p.661-677.
3 Voir XI, p. 677-694.
' Voir XI, p.694-708.
5 Voir XII,p. 3-20.
6 Voir XII,p. 20-35.
7 Voir XII, p.35-52.
a Voir XII, p.52-66.86 MINUTES
Presend:[Seeheari~igof 4x 65.1
The PRESIDENo Tpened the hearing and called upon the Agent for
the Respondent .
Mr. BOTHA asked the President to cal1upon Mr.Muller.
The PRESIDEN cded upon MI-.Muller.
hlr. MULLEb Regan the speech reproduced in the Annex'.
TheCourl adjournedfrom 4.20 $.W.to 4.40P.m.
Mr. MULLER concluded the speech reproduced in the Annex2.
The 'PRESIDEN calledupon Mr. de Villiers.
Mr. de VILLIER began the speech reproduced ithe Annex 3.
TheCourtrose ut6 p.m.
[Signatures.]
Present: [Seehearingof4 x 65.1
The PRESIDEN opened the hearingand cded upon Mr. de Villiers.
Mr. de VILLIERcS oncluded the speech reproduced in the Annex4.
The PRESIDENcT aUedupon Mr. van Rmyen.
Mr. van ROOYEN beganthe speech reproduced in the Annex
TheCou?? adjourned frtn11.20 a.m. to11-4a5m.
Mr.van ROOYEN continued the speech reproduced in the Annex
TheCourtrose st Ip.m.
[Sigltatr~rs]
Preser~t[Seehearing of 4x 65.1
The PRESIDEN~ Tpened the hearingand calledUponMr. van Rooyen.
Mr. van ROOYE Noncluded the speech reproduced in the Anne'.
The PRESIDEK cTlled uponMI. van Keerden.
Mr. van HEERDEN began the speech reproduced in the AnnexB.
l SeeXII, pp67-82.
SeeXII, pp. 86-97.
SeeXII,pp.97-106.
SeeXII,pp.107-113.
SeeXII.pp.Ir3-130.
SeeXII, pp.130-139.
a SeeXII,pp. 140-145. Présents:[Voir audience du 4 x 65.1
Le P~SIDESTouvre l'audience et donne la parole à l'agent du défen-
deur.
M. BOTHAprie ie Président de bien vouloir donner la parole A
M. Muller.
Le PROSIDENT donne la parole 2 M. Muller.
M. MULLER commence l'exposéreproduit en annexe l.
L'audience,suspendue à 16h 20,estrepriseà 16 h 40
M. MULLER termine l'exposéreproduit en annexe=.
Le PRÉSIDENT donne la paroleà M.de Villiers.
M.de VILLIERS commence l'exposéreproduit en annexe 3.
L'atrdienceestlevéà 18 k
[Sigraatares.]
Pdselzts: voir audience du 4 x 65.1
Le PRÉSIDENoT uvre l'audience et donne la parole il M. de Villiers.
M.de VILLIERS termine l'exposéreproduit en annexe 4.
Le PR~SIDENd Tonne laparole ?IM.van Rooyen.
M.van ROOYE commence l'exposéreproduit en annexe
L'audience,suspendue à II h PO,estrefirisd II h 45
M. van ROOYEN continue l'exposéreproduit en annexe 6.
L'audienceestlevéeà 13 h
[Sigrtatacres.]
QUATRE-VINGT-NEUVIÈXE AUDIENCE PUBLIQUE (28 X 65,IO h)
PreSenls:voir audience du 4 x 65.1
Le P~SIDENTouvre l'audience etdonne la parole à M. van Rooyen.
M.van ROOYEN termine l'exposéreproduit en annexe 7.
Le PRÉSIDENT donne la paroleà M. van Heerden.
M.van &ERDEN commence l'exposéreproduit en annexe
1 Voir XII, p. 67-82.
2 Voir XII, p. 82-85.
3 Voir XIIp.86-97.
Voir XII, p. 97-106.
5 VoirXII, p. 1013.
6 Voir XII. I13-130.
Voir XII, p. r30-139.
Voir XII, p. 140-145.88 MINUTES
The Court adjourned/rom 11.20a.w. to11.4 0.m.
hIr.van HEERDEK continued the speech reproduced in the Annex '.
TheCourtrose ut I2.55p.m.
[Signatures.]
NlNETlETH PUBLIC HEARIXG (29X 65, IO Lm.)
P~esent: [See hearingof 4 x 65.1
The PRESIDENT opened the hearing and called upon Mr. van Heerden.
Mr. van HEERDEN c~ncluded the speech reproduced in the Annex *.
The PRESIDEN Talled upon Mr. Muller.
Mr. MULLER began the speech reproduced in the Annes 3.
TheCoirrtadjourned /rom 11.20 a.m.to 11.40am.
Mc.XULLERcontinued the speech reproduced in the Annex '.
TheCourtroseat I p.m.
[Signatures.]
XIXETY-FIRST PUBLIC HEARISG (1 XI6j, 3 p.m.)
Present :[Seehearing of 4 x 65.1
The PRESIDENoT pened the hearing and catled upon Mr. Muller.
Mr. MULLER concluded the speech reproduced in the Annex 5.
The PRESIDEN cTlledupon Xir.deVilliers.
Mr. de VILLIE RSgan the speech reproduced in the Annex 6.
The Court adjozrrned/rom 4.20+.m. to 4.45 p.m.
Mr. de V~I,I-IEI~ontinued the speech reproduced in the Annex '.
The Courtrose af6 p.m.
[Signaatttves.]
Present: [SeeIiearing o4 x 65.1
The PRESIDENT opened the hearing and called upon Mr. de Villiers.
Mr. de VILLIERScontinued the speech reproduced in the Annex
SeeX11,pp. 145-164.
SeeXII, pp.164r63.
3 See XII, pp169-181.
See XII,pp.181-193.
5 SeeXII, pp.95-211.
6 See XI1,pp212-215.
7 See XIIpp.2 15-230.
* SceXII,pp. 230-245. L'audience, susfiendueà II h 20, estrepriseÙ rr la40
M. van HEERDEN continue l'exposéreproduit en annexe l.
L'aztdienceestlevéù e12 h 55
[Signatzares.]
QUATRE-VIXGT-DIXI~~E AUDIESCE PUBLIQUE (29 S 65, IO h)
Présents: [Voir audience du 4 x 65.3
Le PRÉSIDENT ouvre l'audience et donne la,parole hM. van Heerden.
M. van HEERDEN termine l'exposé reproduit en annexe 2.
Le P~SIDENT donne la parole à M. Muller.
M.MULLE Rommence l'exposéreproduit en annexe j.
L'audience, suspendue d II h 20, estrepriseciII h 40
M. MULLER continue l'exposéreproduit en annexe 4.
L'az~dienceest levéà 13 A
[Signatures.]
QUATRE-VINGT-ONZIÈME AUDIENCE PUBLIQUE (1 XI 65, 15 h)
Présents : [Voir audiencedu q x 65.1
Le PRESIDEN Tuvre l'audience et donne la parole rM. Muller.
M. MULLER termine l'exposéreproduit en annexe 5.
Le PRÉÇIDENT donne la parole à M.de Villiers.
M. de VILLIER Sommence l'exposéreproduit en annexe 6.
L'audience, susfiendue à16 k 20, est reprisà 16 h45
M. de VILLIERScontinue l'expos0 reproduit en annexe 7.
L'audienceest levéeà 18la
[Signatures.J
QUATRE-VINGT-DOUZI~~IE AUDIENCE PUBLIQUE (2 XI 6j, IO h)
PrLsenls: voir audience du 4 x 65.1
Le PRESIDESo Tuvre l'audience etdonne la paroIe h Al.de Villiers.
hl. de VILLIER continue l'exposéreproduit en annexe B.
1 Voir XIIp.145-164.
2 Voir XII. p. 184-168.
3 Voir XII, p. 169-181.
+ Voir XII, 18r-198.
VoirXII, p193-211.
6 Voir XIIp.212-215.
7 VoirXII,p.215-230.
VoirXII,p. 230-245.90 MIKUTES
TheCourtadjourlaed/rom 11.20 a.nt.to 11-40a.m.
Mr. de VILLIERcSontinued the speech reproduced in the Annex l.
The Court rose utI $.m.
[Signatutes.]
Present :[See hearing of 4 x 65.3
The PRESIDENo Tpened the hearing andcalled upon h5r.de Villiers.
Mr. de VILLIERS concluded the speech reproduced in the Annex *.
The PRESIDENT called upon Mr. Rabie.
Mr. RABIEbegan the speech reproduced in the Annex
The Court adjourned/rom 11.20 am. tu 11.40am.
Mr. RABIEcontinued the speech reproduced in the Annex *.
TheCourtrose ut12. j +.m.
[Signatures.]
Present: [See hearing of 4 x 65.1
The PRESIDENT opened the hearing and called upon Mr. Rabie.
Mr. RABIEconc1udedthe speech reproduced in the Annex 5.
The PRESIDENT called upon Mr. Grosskopf.
Mr.GROÇSKOP began the speech reproduced in the Annex 6.
The Cowd adjournedfrom 11.2~1a.m. to 11.45 am.
Mr. GROSSKOc Pontinued the speech reproduced in the Annex '.
TheCourtroseat I fi.m.
[Signatures.]
Present: [See hearing of 4x65.1
The PRESIDENoT pened the hearing and called upon iMr. Grosskopf.
Mr.GROSSKOc Poncluded the speech reproduced in the Annex
The PRESIDENT called upon Mr. de Villiers.
Mr. de VILLIERb Segan the speech reproduced in the Annex 9.
See XIIpp. 245-261.
See Xn, pp. 261-269.
See XII,pp. 270-275.
+ See XII,pp. 276-288.
See XII,pp.288-293.
6 See XII, pl' 294-303.
7 See XII, pp. 303-9.
See XII,pp. 319.325.
See XII,pp. 326.336. L'audience,susfiendued II h 20, est reprisùII h 40
M. de VILLIER coSntinue l'exposéreproduit en annexel.
L'audienceest levée2ci3h
[Signatures.]
Présents:[Voir audience du 4 x 65.1
Le P&SIDEST ouvre l'audience etdonne la parole àM. de Villiers.
M. de VILLIER termine l'exposéreproduit en annexe 2.
Le PRESIDENT donne la parole àM. Rabie.
M. RABLE commence l'exposé reproduit en annexe 3.
L'audience,susfiendue4 II h 20, est reprisd rr h 40
M.RAB~E continue l'exposéreproduit en annexe 4.
L'aztdienceest levàe12 h 55
[Signatzrres.]
QUATRE-VINGT-QUATORZIÈME AUDlENCE PUBLIQUE (4XI 65,IO h)
Présents: [Voir audience du4 x 65.1
Le YRÉSIDENT ouvre l'audience et donne la paroli M. Rabie.
M.RABIE termine l'exposéreproduit en annexe 5.
Le PRÉSIDENT donne la paroleA M. Grosskopf.
M. GROSSKO Pommence l'exposé reproduit en annexe 6.
L'audience,suspendzte ù II h20, est reprisà II h40
M.GROSSKO Pontinue l'exposéreproduiten annexe
L'azsdielacest levbà 13 A
[Signatures.]
QUATRE-VINGT-QUIXZ~$ME AUDIENCE PUBLIQUE (5 X1 65,IO h)
PrEsents: voir audience du 4 x 65.1
Le PRÉSIDENT ouvre l'audience et donne Iaparole à M. Grosskopf.
M. GROÇSKOP trmine l'exposéreproduit en annexe
Le PR~SIDEN Tonne la parole àM. de Villiers.
M. de VILLIER commence l'exposé reproduit en annexe 9.
1 Voir XII, p. 245-261.
Voir XII, 261-269.
3 VoirXII, p270-275.
VoirXII, p. 276-288.
5 VoirXII, p. 288-293.
6 VoirXII, p. 294-303.
7 Voir XII, 303-3 19.
8 VoirXII, p. 319-325.
9 Voir XII, p. 326-336. MINUTES
The Court adjoztrned /rom11.20 am. to 11.40 a.m.
Mr. de VILLIERS concluded the speech reproduced in the Annex '.
The PRESIDENT be,fore calling upon the Agent for the Respondent to
address the Court, asked the Agent for the Applicants whether he made
any application to amend the final submissions he had dready made to
the Court.
Mr.G~oss said that he did not.
The PRESIDENcT alled upon Rlr. Botha, Agent for the Respondent, to
state the ha1 submissions of the Respondent.
Mr. BOTHAmade the speech reproduced in the Annex 2.
The PRESIDENsT aid fhat the further proceedings had been indicated
in the statement which he had made on behalf of the Court on 24 May
1965.That involved and was confined to the Applicants being at liberty
to make comment upon the evidence of the witnesses and experts, and
the Respondent, on the other hand, being at Libertyto make its reply on
such comments on such evidence which is made by the Applicants. Zt
was clearly understood that this did not involve any additional main
speeches on the part of either side but would be confined strictly to the
terms set out in paragraphs 4 and 5of the Court's directive of 24 May.
He asked the Agent for the Applicants whether hc would be prepared
to proceed with his comments upon the evidence of the witnesses and
experts on 8 November at 3 o'clock.
Air. GROS said that the Applicants would be prepared to do 50, but
that if the Court should see fit to permit commencement ofthe comment
on the following morning it might result in a saving of time for the
convenience of the Court.
The PRESIDENT said that, if an extra day would help Mr. Gross to
shorten and confine his observations, the Court would be quite prepared
to allow him to commence on the morning of 9 Kovember at IO o'clock.
The Court rose ut 12.40 #.ln.
[Signalures.]
Present : [See hearing of 4x 65.1
The PRESIDEKT opened the hearing and called upon the Agent for the
Applicants.
Mr. GROSb Segan the speech reproduced in the Annex 3.
The Courtadjourned/rom 11.20 a.%. to 11.4 5.m.
Mr. GROSÇcontinued the speech reproduced in the Annex 4.
TheCourtrose ut I $.m.
[Signatures.j
SeeXII, pp. 336-347.
SeeXII, pp.348.
SeeXII,pp. 349-362.
SeeXII,pp. 362-375. L'azldience,szdsfiendzteII h 20, estrepriseà II h 40
JI.de VILLIERStermine l'exposéreproduit en annexe l.
Le PRÉSIDENT,avant de donner la parole à l'agent du défendeur,
demande à l'agent des demandeurs s'il souhaite modifier les conclusions
finales qu'il adéj5présentéesà la Cour.
M. GROSSrépond négativement.
Le PRÉSIDENT invite M. Botha, agent du défendeur, à présenter les
conclusions finales du défendeur.
31.BOTHA prononce I'exposéreproduit en annexe 2.
Le PRESIDENT rappelle quela suite de la procédurea étéindiquée dans
la déclaration qu'il a faite au nom de la Cour l24mai 1965.Les deman-
deurs auront la faculté de présenter des observations sur les dépositions
des témoinset experts et devront se borner àcela; le défendeuraura deson
côté la faculté de répondre aux observations sur les dépositions qui
auront Sté faites par les demandeurs et devra se borner A cela. IIdoit
être clairement entendu que cela n'autorisera aucune des Parties à
présenter un nouvel exposé principal et que l'on devra s'entenir stricte-
ment aux termes des paragraphes 4 et 5 des instructions donnéespar la
Cour le 24 mai.
Le Président demande à l'agent des demandeurs s'il serait en mesure
de présenter ses observations sur les dépositionsdes témoinset des experts
le 8 novcmbre à 15 h.
hl. GROÇS déclare que les demandeurs seront prêts mais que, s'ils
étaient autorisés à ne commencer que le matin suivant, cela pourrait
faire gagner du temps à la Cour.
Le PRÉSIDEXTdéclare que, si un délaisupplémentaire d'un jour doit
permettre à M. Gross de raccourcir et limitcr ses observations,laCour
l'autorisera volontiers à commencer le g novembre à IO h.
L'aekdienceestlevéeLi12 h 40
[Signatures.]
PrLsents: poir audience du 4 x 65.1
Le PRBSIDEN Tuvre l'audience et donne la parole àl'agent des deman-
deurs.
M. GROS commence l'exposé reproduit en annexe 3.
L'audience,suspendue à II h 20, estreprise2 rr h 45
AI.G~oss continue l'exposéreproduit en annexe 4.
L'audience estlevked 13 h
[Signahres.]
VoirXII,p. 336-347.
VoirXII,p. 348.
VoirXII,p.349-362.
Voir XII, p. 362-375. MINUTES
.Present:[See hearing of 24IX 65.1
The PRESIDEN oTened the hearing and caiied upon Mr. Gross.
Mr. GKOScS ontinued the speech reproduced in the Annex l.
TheCouriadjourned /rom 11.20 a.m. to11.4 0.m.
Nr. de VILLIERS said that the Respondent had presented the iacts
partly in the fom of oral testimony and partly in the form of argument.
As far as the Respondent was concerned, there would be no objection
whatsoever tothe Agent for the Applicantç dealing with the new material
in both respects, whether it could technically be classifieas evidence
or not.
The PRESIDEN s;Jd that was a matter entirely for Mr. Gross. As the
documents in questionhadbeen put in subsequent to the oral testimony,
such comrnents as he cared to make on them would be regarded as
within his right to comment.
hlr. G~oss concluded the speech reproduced in the Annex =.
The PRESIDENT asked the Agent for the Respondent whether he
would be ready to proceed on the following day.
&Ir. BOTHA said that Respondent's counsel would welcome one full
day inorder to complete the preparation of their comments.
The PRESIDENsT aid that the next hearing would be held at IO a.m.
on 12 November.
TheCourtrose ut12 $.m.
[Signatures.]
Present :[Seehearing of 24 IX65.1
The PRESIDEK oTened the hearing and said that he wished to put a
question to hlr. de Villiers for clarification beiore he commenced his
address upon the comrnents made by the Applicants.
The Parties ~vouldrecall that on 24 May, when certain procedure had
been laid down, ithad been stated that the request of the Respondent
for an inspection in loco would not be deliberated upon by the Court
until al1evidence had been called and the addresses of the Parties had
concluded. That point of time wasabout to arrive,and the question he
would ask was in relation to the proposa1itself, which had been divided
into a nurnber of parts, the first part being divided into twsub-parts.
Was the proposa1 for inspection an indivisible proposal, or was it a
separate proposa1in relation to each particular part or sub-part?
Mr. de VILLIERsS aid that it had not been intended to be indivisible as
far asthe Court'spossibledecisionsin regard thereto might be concerned;
in particular, the invitation in respecofa possible inspection in South
West Africa and a possible Iimited visit to South Africa had not been
made conditional upon the Court visiting any other part of Africa.
The Respondent had emphasized that it considered it advisable for
l Sm XII, pp. 375-390.
SeeXII, pp390-393. IJrése7zts[:Voir audiencdu 24rx 65.1
Le PRÉSIDENT ouvre l'audience et donne la parole kM.Gross.
M.G~oss continue l'exposéreproduit en annexe l.
L'audience,szispendueà II h zo,est reprisciII h 40
hl. de VILLIERdS éclareque le défendeur a présentéles faits en partie
dans les dépositions et en partie dans ses plaidoiries. Il ne voit pour sa
part nulle objectioàceque l'agent des demandeursexaminelesnouveaux
documents sous ces deux rapports, qu'il soit techniquement possible ou
non de les ranger dans la mêmecatégorieque les dépositions.
Le PRÉSIDENT déclarequ'il appartientà M.Grossd'en décider.Comme
les documents dont il s'agit ont étéprésentésà la suite desdépositions,
les observations que M. Gross voudra formuler Aleur sujet seront consi-
dérées comme conformes A son droitde présenter des commentaires.
M.GROSS termine l'exposéreproduit en annexe 2.
Le P&SIDENTdemande àl'agent du défendeur s'ilest prêtreprendre
la parole le lendemain.
M. BOTHA déclareque le conseil du défendeurseraitheureux de disposer
d'une journéeentière afidn'achever la préparation de son exposé.
Le PRÉSIDENT déclareque la prochaine audience se tiendra le12 no-
vembre à IO h.
L'audienceestlevéeri 12 lz
[Signatzcres.]
Présents: [Voir audience du 24IX 65.1
Le PRÉSIDEPU 'uvre l'audience et annonce que, avant que M. de
lriIliersne commenceson exposésur les observations faitespar lesdeman-
deurs, il désirelui demander certains éclaircissements.
Les Parties se souviennent que le 24 mai, en faisant connaitre la procé-
dure adoptée, la Cour a indiqué qu'elle ne délibéreraitsur la requête
du défendeur relative à une visite sur les lieux qu'aprés que tous
les temoins et experts auraient étéentendus et que les Partiesauraient
achevéleurs plaidoiries. Cemoment va bientat arriver et la question que
le Présidentdésire poser traità laproposition dont il s'agit, proposition
divisée en plusieurs parties dont la premiére est elie-m&medivisée en
deux sections. La proposition relativeà une visite sur les lieux est-eue
indivisible ou chacune de ses parties ou sections correspond-elàeune
proposition distincte?
RI. de VILLIERS déclare que cette proposition n'a pas étéconçue
comme indivisible quant aux décisionsque la Courpourrait prendre Ason
sujet; en particulier, l'invitation relaBune visite éventuelledu sud-
Ouest africain et A une visite limitée éventuellede l'Afrique du Sud
n'était pas subordonnée Ala visite d'une autre régiond'Afrique.
Le défendeura souligné,motifsA l'appui. qu'ilserait &sonavisopportun,
1 Voir XII, 375-390.
Voir XII.p. 390-393,g6 MIKUTES
the reasons it had given for the Court, if it decided to go to South West
Africa and posçibly South Africa also, to see some other parts of Africa,
and it had been submitted very strongly that it was the Respondent's
attitude that, for the reaçons given, a decision to go to South West Africa
alone, or to South West Africa and South Africa alone, would in the
circumstances be unwise and possibly prejudicial to the position of the
Respondent. However, those had been purely submissions made to the
Court, and not conditions intended to tie the hands of the Court in
any way.
The PRESIDEK asked the Agent for the Applicants whetlier there was
any comment which he desired to make which he had not already made.
Mr. GROSS said he thought not.
The PRESIDENcT alled upon Mr. de Villiers.
&Ir. de VILLIERb Segan the speech reproduced in the Annex l.
TheCourt adjourned from 11.20 a.nr.to II.45 a.m.
Mr. de VILLIER continued the speech repoduced in the Annex 2.
The Court rose atI $.m.
[Sigaale~res.]
Present : [Seeheanng of 24 IX 65.Sir Louis Mbanefo absent.]
The PAESIDENT opened the hearing and announced that Judge Sir
Louis Mbanefo was unable to sit that day. He called upon Mr. de Villiers.
Air.de VILLIERcS ontinued the speech reproduced in the Annex 3.
The Court adjotirned from 4.20 9.m. to 4.40p.m.
Mr. de VILLIERcS oncludeclthe speech reproduced in the Annex '.
The PRESIDENT said that before closing the present phase of the
proceedings, lie wished to convey to Agents and counsel for the Parties
the thanks of the Court for the assistance thep had given it in their
presentation of their respective cases. Through many months they had,
with care, courtesy and efficiency,presented the views of their respective
Governments. Members of the Court and the representatives of the
Parties had grown used to seeing one another, and when the voices of
advocacy in these cases were stilled and questions from the judges were
no more, he expected they would often remember one another.
These cases were of great importance, not only for the States directly
involved. With the vast amount of evidence and documentation and
~4th the niimber of issues to be determined, they were,he did not doubt ,
the heaviest that had been submitted to this Court or its predecessor.
Certainly they were the most protracted. The Court was indebted to the
Agents and counsel on both sides who, over a long period of time, had
addressed their arguments to it. If, as counsel on both sides had been
kind enough to Say, the Court has been patient, that was not only what
l See XII, pp394-408.
See XII,pp.408-423.
See XII,pp.423-438.
+ See XII,pp.438-453.si la Cour décidait d'aller au Sud-Ouest africain-et éventuellement en
Afrique du Sud, qu'elle viçitàt d'autres régionsd'Afrique et il a indiqué
très clairement, motifs à l'appui, qu'il estimait qu'une décision d'aller
seulement au Sud-Ouest africain, ou seulement au Sud-Ouest africain
et en Afrique du Sud, serait en l'occurrence peu sage et pourrait être
préjudiciable àla position du défendeur. Toutefois, il s'agissait seulement
li d'arguments présentésà la Cour et non de conditions destinées A la
lier en quoi que ce fîit.
Le PRÉÇIDENT demande à l'agent des demandeurs s'il désire présen-
ter des observations qu'il n'aurait pas encore faites.
hl. GROSÇ répond négativement.
Le PR~SIDEN dTonne la parole à AI.de Villiers.
11. de VILLIERScommence l'exposéreproduit en annexe l.
L'audieace,susPendue ù II h 20,estreprise riII h 45
M. de VILLIERS continue l'exposéreproduit en annexe 2.
L'az~dienceestlevkeù à3 Is
[Signalwes.]
Présents: [Voir audience du 24 IX 65. Sir ~ouis Mbanefo, absent.]
Le PRESIDENT ouvre l'audience et annonce que sir Louis Mbanefo
n'assistera pas à l'audience. Il donne la parole M. de Villiers.
31.de VILLIERScontinue l'exposéreproduit en annexe 3.
L'audience,suspendtre à 16 h 20,est repriseà 16 h 40
hl. de VILLIERS termine l'exposéreproduit en annexe 4.
Le PRÉSIDENTdéclare que, avant de clore la présente phase de la
procédure, il désire,au nom de la Cour, remercier les agents et conseils
des Parties du concours qu'ils lui ont prètéen présentant leurs thkses.
Pendant de nombreux mois, ils ont exposéavec soin, courtoisie et effica-
cité les vues de leurs gouvernements. Les membres de la Cour et les re-
présentants des Parties ont pris l'habitude de se voir et, lorsque leurs
voix se seront tues, ils penseront encore souvent les uns aux autres.
Ces affaires sont d'une, grande importance, et point seulement pour
les Etats directement intéressés.Si l'on considère l'ampleur du dossier
et de la documentation ainsi que le nombre des questions à trancher,
on ne peut douter qu'elles soient les plus lourdes dont la Cour actuelle et
sa devancière aient été saisies.Ce sont certainement les plus longue!.
La Cour est reconnaissante aux agents et conseils des deux Parties, qui,
pendant des mois, lui ont exposé leurs arguments. Si, comme les re-
présentants des deux Parties ont bien voulu le dire, laCour a fait preuve
VoirXII,p. 394-408.
* Voir XIIp. 408-423,
3 VoirXII, p. 423-438.
4 Voir XII, p438-453.gS MINUTES
was properly due to Agents and counsel who appeared before it, but
waç also the vcry essence of the judicial function. Haste in judgment
was destructive of justice.
On behaif of the Court he wished Agents and counsel full enjoyment
of the recess from their labours which was now theirs. He riçked t.e
Agents to holdthemselves at the disposal of the Court to furnish any
and to any order or direction which the Court might hereafter make,is
he thendeclared the oral proceedings closed. The Court cornmuni-
cate with the Agents in the usual way and would notify them in due time
of any public sitting to be held for the delivery of judgment or for any
other purpose.
The Courtroseat5.50 p.m.
[Signatures.]
Present:[See hearing of 2rx65.1
The PRESIDEN stated thatthe Court wasasseinbled to give its decision
on the request made by the Respondenton 30 March 1965 during the
course of the oral proceedings in the South West Africa cases, whereby
it had been proposed that the Court çhould make an inspecinoloco.
On 24 hlay 1965 ,hen it had mled on the further procedure to be
followed in the SoeTVestAfricacases in relation to the facts, the Court
had informed the Parties that the requesof the Responde~it for an
inspection ilocowould not be deliberated upon until after al1evidence
had been calledand the addresseofthe Parties habeen concluded.
The Court had now deliberated upon the requeand made the Order
of 29 Xovember 1965.
The PRESIDEX Tad the text of the Order.
The Cos&rose at3.10 p.m.
[Sig.natures.]
Present:PresidentSir Percy SPENDER;Vice-Presideelt ELLINGTON
KOO; Jwdges \.YINIARSKS I,PIROPOULO Sir, Gerald FITZMAURICE,
KORETSKT YA, NAKABU, STA~IAN YTEIVERO JE,SSUPMORELL PI,DILLA
NERVO ,ORSTER GROS , MMOUN D;eputy-RegistrarAQUARONE.
The PRESIDENo Tpened the sitting and said that the Court, which was
then engaged in its deliberations on the South West Africa casesbetween
Ethiopia and South Africa and Liberia and South Africa, hadnter-
rupted its work on those cases in order to hold a public sitting for the
purpose of installannewly elected Judge.
On 16Xovember 1965 the General Assembly and the Security Council
of the United Nations had elected RI.Fouad Ammoun of Lebanon to fillde patience, ce n'est point seulement que cela estdû aux agents et
conseilsqui plaident devant elle; cela est aussi de l'essence mêmlae
fonction judiciaire. Tout jugement hâtif est fàtla justice.
Au nom de la Cour, le Président souhaite aux agents et conseils de
profiter pleinement d'un repos bien gagné. Il prie les agents de sà tenir
la disposition de la Cour pour fournir i celllesrenseignements com-
plémentaires dont elle pourrait avoir besoin. Sous cette réserveet sous
réservede toute ordonnance ou directive éventuelledela Cour, il déclare
close la procédure orale. La Cour communiquera avec les agents de la
manière habituelle et les avertira en temps voulu de toute audience
publique qu'elle déciderait de tenir pour la lecture de l'arrêt ou pour
toute autre fin.
L'audience estlevéeà17 Ir50
(Signatures.]
Préseirls:[Voir audience du24 IX65.1
Le PRESIDENaT nnonce que la Cour se réunit pour rendre sa décision
sur la demande présentéepar le défendeurle 30 mars 1965.au cours de
la procédure orale dans les affaires du Sud-Ouest africain, et tenàant
ce que la Cour procèdeà une visite sur les Lieux.
Le 24 mai 1965,cn faisant connaîtrses d4cisions sur la procédurà
suivre dans lesaffairesSzid-Oztestjricain ausujet des points de fait, la
CourainformélesParties qu'ellenedélibéreraitsurlarequêtdu défendeur
relativeàune visite sur leslieux qu'après que tous les témoinset experts
auraient étéentendus et que les Parties auraient achevé leursplaidoiries.
Après en avoir délibéré, la Cour rend une ordonnance en date du
zg novembre 1965.
Le PR~SIDENlT it le texte de l'ordonnance.
L'ancdienceestlevéd Ij h IO
[Sigaatures.]
Présents:sir Percy SPENDER ,Président; X. WELLIKGTO KOO, Vice-
Préside~t;.Mhl. WINIARÇKIS , PIROPOULO sr, Gerald FITZMAURICE,
MM. KORETSKY T, NAKAB , USTAMAN TERIVERO ,ESSUP, MORELLI,
PADILLA NERVO,FORSTER G, ROS,AM~IOUN J~ges; M. AQUARONE,
Grefieradjoint.
Le PRESIDEN ouvre l'audience et déclarequela Cour, qui poursuit son
délibérésur les affairesSrcd-Oues tfricatfientre I'Ethiopie et l'Afrique
du Sud, le Libéria et l'Afriqudu Sud, a interrompu ses travaux pour
tenir une audience publique au cours de laquelle elle installera un juge
nouvellement élu.
Le 16novembre 1965, l'Assembléegénéraleet le Conseil de sécurité
des Nations Unies ont éluM. Fouad Ammoun (Liban) au poste laissC100 MINUTES
the vacancy created by the death on 4 August 1965of Judge Badawi.
Judge Ammoun, who was present on the Bench, was ready to take up
his dutiesasa Member of the Court but before doing so he was required
by Articlezo of the Statute of the Court to make a solernn declaration in
open Court that he would exercise his powers impartialiy and conscien-
tiously. He called upon Judge Ammoun tomake the declaration.
The Courtrose
Judge AMMOUK made the declaration,
The Court sat
ThePRESIDENT~~~C~~ rec~rd thedeclarationmadeby Judge Ammoun
and declaredhirn duly installed asa Judge of the Court.
The PRESIDENsT aid thaJudge Ammoun, not having been a member
ofthe Court atthe timewhen the arguments of theParties werepresented
to the Courtin the South WestAjrica caçes,would not be ableto partici-
pate in the work of the Court on those cases.
There being no other matter to corne before the Court at that time, he
declared the Sittinclosed.
The Courtroseat 3.05 $.m.
[Signatures.]
Present: President Sir Percy SPENDER;Vice-President WELLINGTON
KOO;Judges WINIARSKI,SPIROPOULOSS ,ir Gerald FITZMAURICE,
KORETSKY,TANAKA, JESSUP, MORELLI,PADILLANERVO,FORSTER,
GROS Judges ad hoc Sir Louis MBANEFO v,n WYK;RegistrarAQUARONE.
Also firesen:
For theGovernmentofElhiopia :
H.E. Dr. Tesfaye GEBRE-EGZY
The Honourable Ernest il.G~oss, member of the TITew York Bar,
as Agents;
The Honourable Edward R. MOORE U,nder Secretary of State of
Liberia,
Mr. Keith HICHETm , ember ofthe New York Bar,
Mr. FrankG. DAWSONm , ember ofthe New York Bar,
as Counsel.
For theGovernmentof Liberia :
H.E. Mr. Nathan BARNES,
The Honourable Ernest A. GROSSm , ember of the New York Bar,
as Agents;
The Honourable Edward R. MOORE,Under Secretary of State of
Liberia,
as Agent and Counsel;
Mr. Keith HIGHET,member of the New York Bar,
Mr. Frank G. DAWSONm , ember of the New York Bar,
as Cozansel.vacant par le décèsde hl. Badawi survenule4 aoUt 1965.M. Ammoun
est prêta assumer ses fonctions en tant que membre de la Cour mais
l'articl20 du Statut de la Cour exige qu'avant de le filprenne en
séance publique l'engagement solennel d'exercer ses attributions en
pleine impartialiteten toute conscience. II invite hl. Ammouàpro-
noncer sa déclaration.
- Les jugesseIèvelzt
31.AMMOUN prononce sa déclaration.
Les jugess'assoielzt
Le PRÉSIDENT donne officiellementactàM.Ammoun de l'engagement
pris par luetle déclareciUrnentinstallécomme jugà laCour. 11ajoute
que M.Amrnoun n'ayant pas siégéau moment où les Parties ont présenté
leur argumentationà la Cour dans les affaires du Sud-Ouestafricain,il ne
serapas en mesure de prendre part aux travaux dlaCour dans lesdites
affaires.
La Cour n'étant saisie d'aucune autre question en état d'être traitée,
le Président déclareL'audienceestlmée a15 h 5
[Sig.natures.]
Présents: sir Percy SPENDER P,résidentN. WELLINGTOK NOO,Vice-
Président;RIM.WINIARSKI S,PIROPOUL siSG,erald FITZMAURIC ME, .
KOKETSK TAN,AKA JESSUP,MORELL P, DILLANERVOF ,ORSTER ,ROS,
Juges; sir Louis MBANEFO M,.van WYK, Juges ad hoc; M.AQUAROXE,
Gveper.
Présentségalemen t
Pour le Gouvernementéthiopie:
S. Exc. M. Tesfaye GEBRE-EGZY,
L'honorable Ernest A. G~oss, membre du barreau de New York,
commeagelzts;
L'honorable Ed~vardR. MOORE, sous-secrétairedlEtat du Libéria,
M. Keith HIGHET m,embre du barreau de New York,
M. Frank G. DAWSONm , embre du barreau de New York,
comme conseils.
Pour le Gouvernementlibérie:
S. Exc. M. Nathan BARNES,
L'honorable Ernest A. GROSSm, embre du barreaude New York,
commeagents;
L'honorable Edbvard K.MOORE, sous-secrétairedlEtat du Libéria,
commeagent etconseil;
M. Keith HIGHET,membre du barreau de New York,
M. Frank G. DAWSONm , embre du barreau de New Yocommecosssils.IO2 MINUTES
Forthe Governmentof Sodh Ajrica:
Dr. J. P. verLoren vTHEMAAT,~ .ofe,sor ofInternationalLaw at
the University of South Africa and Consultant to the Department of
Foreign Affairs,
Mr. K. MCGKEGO DRe,puty Chief State Attorney,
MT.R. F. BOTHA D,epartment of Foreign Affairs and Advocate of the
Supreme Court of South Africa,
asAgents;
hfr. G. van R. ~IULLER,.C., member of the South African Bar.
Ur. P. J. RABIES,.C., mernber of the South African Bar,
Mr. E. hlGROSSKOP mFe,mber of the South African Bar,
Dr. H. J.0. van HEERDEN m,ernber of the South African Bar,
Mr. P. R. van ROOYEN m,ember of the South African Bar,
asCounsel;
Mr. H. J. ALLEND, epartment of Bantu Administration and Develop-
ment,
Mr. H. HEESE,Department of Foreign Affairs and Advocate of the
Supreme Court of SouthAfrica,
asAdvisers.
ThePRESIDEN oTpened the hearing and stated thatthe Court had met
to deliver its Judgment in the South West Africasesbrought before
the Court on4 Novernber 1960 by Applications of the Governrnenof
Ethiopia and Liberia against the Government of South Africa.
The PRESIDENT read the English text of the Judgment and caliedupon
the Registrar to read its operative provision in French.
The REGISTRA rad the French text of the operative provision.
The PRESIDENsT tated that he had appended a Declaration to the
Judgment. Judge hforelli and Judgad hocvan Wyk appended Separate
Opinions, Vice-President Wellington Koo, Judges Koretsky, Tanaka,
Jessup, Padilla Nervo, Forsteand Judge ad hoc Sir Louis Mbanefo
appcnded Dissenting Opinions.
In order that the decision of the Court should be made hassoon
as possible, and because of the delay which would habeen involved
had the reading of the Judgment been postponed unandlthe Separate
and Dissenting Opinions were printed, it had been considered advisable
to read the Judgment from a roneoed text which contained the Separate
and Dissenting Opinions in the original language only. The normal
printed edition, which woubepublished in approximately seven weeks'
time, wouldcontain both the English and French texts of the Separate
and Dissenting Opinions.
TheCowt roseal 5 p.m.
(Signed)Percy C.SPENDER:
President.
(Signed) S. AQUARONE,
Registrar. Pour leGouvernementsud-africaia:
hl.J. P.VERLORE van THENAAS ., .,professeur de droitinternational
A l'Universitéd'Afrique du Sud, consultant auprès du département des
Affaires étrangères,
M. R. AICGREGO Chi,efStale Attorney adjoint,
hl. K. F.BOTHA, du département des Affaires étrangères, avocàtla
Cour suprême d'Afriquedu Sud,
commeagelzts;
hl. D. P. de VILLIER S.,.,membre du barreau d'Afrique du Sud,
M.G. van R. MULLER S,.C., membre du barreau d'Afrique du Sud,
M.P. J. KABIES , .C., membre du barreau d'Afrique du Sud,
M. E. M. GROSSKOPm F,embre du barreau d'Afriquedu Sud,
;II.P.R. van ROOYENmDE, embre du barreau d'Afrique du Sud,,
comme conseils;
31.H.J. ALLENd ,u département de l'Administration et du Développe-
ment bantous,
M. H. HEESE,du département des Affaires étrangAres,avocat à la
Cour suprêmed'Afrique du Sud,
commeconseillers.
Le PRJ~ÇIDEKd Téclare l'audienceouverte et dit que la Cour se réunit
pour rendre son arrêtdans les affaires durd-Ouestafricain, introduites
devant ln Cour le4 novembre 1960 par requêtesdes Gouvernements de
1'Ethiopie et du Libériacontre le Gouvernement de l'Afrique du Sud.
GreffieràIdonner lecture du dispositif en français.l'arrêtet invile
Le GI<I:FFIERlit en français le dispositif de l'arrêt.
Le PRBSIDEN déclare qu'ila joiAtl'arrst une déclaration.M.Morelli,
juge, et M. vanWyk, jugead hoc,y ont joint les exposésde leur opinion
individuelle. M.Wellington Koo, Vice-Président,MM.Koretsky, Tanaka,
Jessup, Padilla Nervo et Forster, juges, et sir Louis Mbanefoadhoc,
y ont joint les exposésde leur opinion dissidente.
Afin que la décisionde la Cour soit connue le plus tôt possible et en
raison des retards qui seraient intervenus si le prononcé avait dû être
remis jusqu'à l'achévement de l'impression de I'arr&tct des opinions
individuelles et dissidentes, iléjugéopportun de procéder à la lec-
ture de l'arrêt sur un texte polycopié, où les opinions individuelles et
dissidentes ne figurent que dans leur langue originale.ionimprimée
ordinaire, qui sortira de presse sept semaines plus tard environ, contien-
dra les textes français et anglais des opinions individuelles et dissidentes.
L'audienceest levéed 1h
Le Président,
(Sigrrk)Percy C. SPENDER,
Le Greffier,
(Signk) S.AQUARONE. ANNEXTOTHE MINUTES
ANNEXE AUX PROC~SVERBAUX
r.STATEhlENT BY MR. GROSS
&Ir.President and honourableMembers of the Court, appearance for
the second phase ofthe South West Africa cases is attended by that
special sense of responsibiIity and of honour with which any advocate
must be imbued when pleading at the bar of the Wigh Court of the na-
tions. It has likewise been a source of pride and of honour to have been
associated withy coileagueAgents, His ExcellencyAmbaçsador Tesfaye
Gebre-Egzy ofEthiopia and HisExcellencyAmbassador Xathan Barnes
of Liberia. Ambassador Tesfayeand Ambassador Barnes arein Court
today and, with your permission, Air. President, rnay1 have the honour
to introduce Ambassador Barnestomake a very brief statement? 2. STATEMENT BY MR. BARhrES
AGENT OF THE GOVERKMEN OF ETHIOPIA AND LIRERIA
AT THE PUBLIC HEARIN OF 18 A AR CH965
Mr.President and honourable hfembers of the Courtiswith profound
appreciation that His Excellency Dr. Tesfaye, Agent of Ethiopia, and
1 welcome the opportunity and privilege of paying our respects to this
honourable Courtnt the commencement of oral proceedings in the South
West Africa cases.
The honourable President of the Court, in his opening address on
Monday, called to mind thathisisthe twentietli anniversary year of the
United Nations, ofwhich this Court is the judicial organ. The United
Nations, we believe; represents the CO-operativepartnership of nations
for the establishment of a comrnon human ideal in terrns of peace,
socialjusticeand higher standards for ali, and over the years, from its
inception, this world Organization has striven to respond to the demands
and realities of our world. And it is in this year, Mr. President, that
issues of profound importance to the history and meaning of the rule of
Iaw are presented to this honourable Courfor adjudication.
It is because the Governments of Ethiopia and Liberia have an
abiding respect for the rule of law that they appear before this Court,
the highest institution in international law, as Applicants in these
proceeàings-proceedings, Sir, which are of the highest interest and
signifieance to the advancementof the welfare of the peoplof South
West Africa.
Mr. President,itiswith a deep sense of honour that the Governments
of Ethiopia and Liberia are exercising their responsibiastmembers
of the community of nations in instituting these proceedings before this
honourable Court.
Thank you, Mr. President. 3. ARGUMENT OF MR. GROSS
AGENT FOR THE GOVERNMEN OTSETHIOPT AND LIBERIA
AT THE PUBLI CEARING OF 18MARCH 1965
Mr. Preçident, with your permission 1 should like to introdumy
associateç, who appear with me as counsel in these proceedings: the
Honourable Edward R. Rloore, Under Secretary of State of Liberia, and
Mr. Keith Wighet, a member of the Bar of the State of New York, in
the United States of America.
Ispeak for al1 my colleagues, aç well as for myself, when 1 Say that
the satisfaction of appearing before the Court is enriched by the know-
ledge that this lengthy litigationconsequent upon an even longer
protracted dispute,now reacheç its climax, with culmination in sight.
Our sense of responsibiljty is quickened also by awareness that seldom
in the history of judicial administratcan there have been involved
legal issues, the determination of which more profoundly wiU affect the
"material moral well-being and the social progress" afmultitude of
individual human persons. These individuals, whose vital interests are
at issue and at çtakein these proceedings, are, of course, those individual
persons who, inthe Mandate for South West Africa, "made at Geneva
on the 17th day of December, ~gzo", are described coflectively asthe
"inhabitantsof the temtory subject to the present Mandate". Inhese
Oral Proceedings, as in the wntten pleadings, we shall refer to Ethiopia
and Liberia as the "Applicants",and to the Republic of South Africa
eitheras the "Rlandatory" or as the "Respondent".
The history-making irnport of the pending cases requires little elabora-
tion. The Applicants have not sought judicial recourse rn order to
requite a narrow matenal or selfish intereçt peculiar to themselves.
They seek recourse to this honourable Court which. under the plan of the
Mandate, furnishes-and 1quote from the Judgment of 1962-furnishes
"the final bulwark of protection..against possible abusor breaches
of the Mandate". The Applicants' legal interest encompasses nothing
less than observance by the Reçpondent of the totality of its legal
obligations under the "sacred trust" of the Mandate.
These obligations were freely undertaken when the Mandate was
"conferred upon His Britannic Majesty to be exercised on his bebylf
the Government of the Union of South Africa"; and whenHisBritannic
Majesty, for and on behalf of the Reçpondent, "agreed to accept the
Mandate" and undertook, in its terms, "to exercise it on behalf of the
League of Nations", in accordance with the provisions of the Mandate.
Mr. President, the Applicants are deeply sensible of the fact that
the legal interests which they assert in these proceedings arenot uniquely
their own, and that the legal interestsawider community, of which
they form a part, also are deeply involved.
As this honourable Court observedin its Judgment of zrDecember
1962 on the Preliminary Objections phase of these proceedings:
"behind the presentdispute there is another and sirnilar disagree-
ment on points of law and fact-a similar conflict of legal views
and interests-between the Respondent on the one hand, and the SOUTH \'EST AFRICA
other Members of the United Nations, holding identical views with
the Applicants, on the other hand". (i.C.1. Reports1962, p. 343.1
This fact, of course, does not rnodify or circumscribe the legal nature
of the Applicants' interest in effecting cornpliance with the mandate
obligations.On the contrary, hlr. President, we submit that it serves to
endow their legal interest witl-i an added dimension of significance to
the organized international community.
The Applicants, along with Respondent, are Parties to the Charter
of the United Nations, the twentieth anniversary of whose birth is
being marked even while this High Court hears the Parties to these
proceedings.
The institutionby the Applicaiits of the cases at bar, in which they
seek a solution by judicial settlement of the long-continued dispute
which has arisen between them and Respondent, corresponds to their
rightsunder the Mandate and their obligations under the United Nations
Charter.
Mr. Preçident, Members of the honourableComt, 1 reiertcithe purposes
of the Charter, according to whicli al1Members of the Organization are
pledged to adjust or settle international disputes "in conformity with
the principles of justice and international law" (Art.1). Mr. President,
the public record of the events and circumstances attending the dispute
which haç so Longengaged the attention of the United Nations itself,
as well as of this honourable Court, is too long and too full a record to
warrant estensive discussion here. In their writteii pleadings, the
Applicants have set out a year-by-year chronological sumrnary of these
relevant events and circumstances during the 18-year penod 1946-rg63,
in which this dispute has been pending, and for the settlement of which
negotiations have been unavailing.
The negotiations between the Parties to these proceedings have been
conducted in and through the United Nations, its cornmittees and its
organs, by means of actions and processes conformable to the purpose
and structure of that Organization. No more orderly, appropriate, or
feasible course coiild have been followed by the Applicants in their
persevering efforts to seek a settlernent of the legal issues in dispute
between them and Respondent. Such negotiations have been marked
by repeated references to this honourable Court of legal issues basic to
the dispute. The Advisory Opinions consequent upon such references
have been accepted by the Applicants in,and through the agency of. the
United Nations, of which al1Parties to these proceedings have been, and
are,hlembers.
Negotiations being fruitless, the Applicants instituted tliese proceed-
ings by Applications filed with the Registrar of this honourable Court
and dated 4 November 1960.
In its Judgrnent of 21 December 1962, the Court held tliüt the Appli-
cants-
"have a legal right or interest in the observanceby the Mandatory
of its obligations both toward the inhabitants of the blandated
Territory,and toward the League of Nations and its hZembers".
(I.C.J. Reports 1962,p.333.)
In 1950, in the course of its Advisory Opinion of that year, this
honourabie Court introduced an analysis of the legal issues then before
the Court, with the comment: ARGUMENT OF MR. GROSS I"g
"It is now contended on behalf of tlie Union Government that
this Mandate has lapsed, because the League has ceased to exist.
This contention [said the Court] is based on a misconception of the
legal situation created by Article 22 of the Covenant and by the
Mandate itself."
1 end the quote from the unanimous opinion of the Court in 1950,
~inanjmous on this aspect of the case.
The same contention is now being pressed by Respondent, notwith-
standing the Court's holding in the 1950 Opinion, two supervening
Advisory Opinions by this honourable Court, confimatory and inter-
pretative thereof, and the1962 Judgment, from which a relevant passage
has been quoted.
Few, if an-, Iegal issues underlyingan international dispute referred
to this honourable Court or to the Permanent Court of International
Justice itself as well, for resolution by judicial mesns, can have consumed
so much of this honourable Court's time and attention during the course
now of almost 15years.
A new generation of inhabitants of the Territory has been born since
Respondent first denied its obligations under the Mandate, at the same
time retaining the rights derived from the Mandate. Such a posture
twice has bcen cornmented upon by this honourable Court.
In 1950, the Court in its Advisory Opinion said: ,
"The arithority 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," (I.C.J.
R~~oY~ 1950, p. 133.)
And, in the 1962 Judgmeiit, this honourable Court quoted the fore-
going passage, which 1 have just read from the 1950Opinion, and added,
at page 329 of the 1962 Judgment :
"The rights of the Mandatory in relation to tlie mandatedterritory
and the inhabitants have their foundation in the obligations of the
Alandatory and they are, so to speak, mere tools given to enable it
to fulfil its obligations."
Thus the Court desciibed the foundation of the rigiits ofthe Mandatory.
The Court likewise held that the Applicants, and other States similarly
situated,and again 1quote from the Judgment, at page 338:
"continue to have the right to invoke the compulsory jurisdiction
of the Court ...That nglit continues to exist for as long as Respon-
dent holds on to the right to administer the Territory under the
Mandate."
Thuç also, Judge Bustamante, in his separate opinion in the 1962
proceedings, cornmcnted upon the special and lofty purpose for wkich
the Mandate was entrusted to the Respondcnt, and the learned judge
pointed out, itzter alia:
"The function of a Mandatory is a responsibilityrather than a
right ... it is for the nifandatory to refuse tlie trust if it cannot
bear the burden .. .An international Mandate is,by its very nature,
temporary and of indeterminate duration ... The corollary to the
t~voforegoing paragraphs Laid the learned Judge] is that an inter- SOUTH WEST AFRICA
national Mandate, through which tutelage is exercised, does not and
can never irnpIy a transfer of sovereignty to the Mandatory or the
annexation of the mandated territory by the tutelary State. [And
the learned Judge concludes by saying] It is only at the conclusion
dependence or incorporation in the adrninisteriag State."etwe(1.CJ.
i?e$ods1962, p.357.)
The foregoing views, ~vhich1 have cited, of this honaurable Court and
of learned judges, reflect and define the character of the Mandate itself,
which the Court has characterized in its own words as:
"a new international institution,the primary, overriding purpose of
which is to prornote 'the well-bein and development' of the people
of the temtory under Mandate". I.c J..Reports1962, p.329.)
In the light of the high intentions of the founders of the mandates
system, and of the weight, dignity and legal significance of the pres-
criptionof the "sacred trust of civilization", asserted abuse and breaches
of the Mandate, which have included, and continued to include, denial
to the inhabitants of the Territory of the supervisory çüfeguards and
protection of the organized international community, as weIl as the
unilateral imposition by Respondent of policies and practices which are
a subject of this litigation, raise legal issues of a nature which impel
means of ta justandnopeacefuf solution.e appropriate and, indeed. sole
Alr.President, it may be convenient to this honourable Court if 1now
summarize the plan or scheme of argument which the Applicants intend,
with the Court's permission, to place before the Court in support of their
several submissions.
For purposes of clarity of presentation, the Applicants will,with the
Court's permission, divide their argument into what may be described
astwo phases. The first phase %vil1be concerned essentially with legal
issues in dispute between the Parties, incorporating only such elements
of facts as are conceived by the Applicants to be inseparably related
with, or directly germane to, the legalissues which arise for consideration.
According to the Applicants' understanding, Mr. President, Respon-
dent will then be accorded an opportunity to comment upon the legal
issues thus presentcd, together with any others it may consider pertinent
to its case. In anyevent, following the conclusion of the first, what
might generaily be called "legal phase", of the proceedirtg, with such
right of rebuttal or rejoinder a the honourable Court and the President
rnay see fit to allow, the Applicants then lvould present to the Court,
and considerations which may be germane to such questions of fact orefrom.
inference.
The first, or legal phase, of the Applicants' argumenthen, if it please
the honourable Court, wiIl consist of thc following four parts:
Part A. A summary introduction of the legal issues, together with
inseparably related factual considerations. The legal issues thus sum-
marized will concern. one, Respondent's obligations to submit to inter-
national supervision (set out in the Reply at IV, pp. 5~0-jj~), and
secondly, the legal issues concerned with Respondent's obligations
toward the inhabitants of the Territory (set out in the Reply at Iir,
PP. 476-518)- ARGUMENT OF MR. CROSS III
Following the conclusion of such sumrnarIr, which 1shali have the
honour to endeavour to present to the Court, we will then present
Part B of the first phase, or legal phase, of the Oral Proceedings.
Part R will involve a discussion to bc presented by my colleague,
Mr. Moore, of the nature and purposes of the mandates system, read in
the light of relevant events, transactionand undertakings attending its
formation, as well as those events and transactions which occurred during
the period when the League of Nations was being dissolved and the
United Nations was formed and commenced operations. Discussion of
these matters appears to the Applicants to comprise both background to,
and foundation of, conclusions with regard to legal issues ansing in these
proceedings.
Mr. President, following the presentation of Part B, the nature,
background of the Mandate, and of the events of 1945-194 9e,will
corne, with the Court's permission, to PartC of the legal phase of these
proceedings.
Part C, if the Court please. will involve a discussion of the legal
issues relevant to the Respondent's obligations to submit to international
supervision and to judicial protectionagainst alleged abuseor breaches
of the Mandate. These are, of course, the obligations which, in the words
of the 1950 Advisory Opinion, "relate to the rnachinery for irnplementa-
tion".
Finally, ParD of thiç legal phasoftheoral Proceedingswill endeavour
to deal with the legal issues relevant to Respondent's obligations toward
the inhabitants of the Territory. Again, in the words of 1950 Opinion,
such obligations relate "to the administration of the Territory" and
correspond "to the sacred trust of civilization referred to in Art22lof
the Covenant".
With your permission, Mr. President, 1 tum now to Part -4,the first
of the four parts of the Applicants'pcning statement, which 1have just
endeavoured to describe.
PART A
The Applicants seek remedies appropriate to the enforcement of the
two groups or kinds of international obligations which were assumed by
Respondent under the Mandate, and ~vhichwere described by the Court
in 1950 as follo\vs:
"One kind was directly related to the administration of the
Territory, and corresponded to the sacred trust of civilization
referredta in Article22 of the Covenant."
That is from the1950 Opinion, page 133.
The Court went on to Say that this first group of obligations is "defined
in Article22 of the Covenant and in Articles 2 to5 of the Mandate".
The second group of obligations, in the wordsofthe 1950 Opinion, is-
"related to the machinery for implementation and were closely
Linked to the supervisory functions of the League of Nations-
particularly the obligatioof the Union of South Africa to submit
to the supervision and control of the Council of the League and
the obligation to render to it annual reports in accordance with
Article 22 of the Covenant and Article 6 of the Mandate".
That is from page 136 of the 1950 Opinion.II2 SOUTH WEST AFRICA
With respect to the first of these groups of obligations, that is tSay,
those related to the administration of the Territary and corresponding
to the sacred trust. the Court held in the 1950 Advisory Opinion that-
"These obligations represent the very essence of the sacred trust
of civilization. Their aiso d'êtr end original object remain. Since
their fulfilmerit did not depeiid on the existence of the Leaguc of
Nations, they could not be brought to an end mereiy because this
supervisory organ ceased to exist. Nor cauld the right ofthe popuia-
tion to have the Territory administered in accordance with thcse
rules depend thereon." (1.C.J Reports rgjo, p. 133.)
In the 1962 proceedingç, as the Court points out in its Judgment,
Respondent not merely conceded, but, in fact, argued, and I quote from
the Court's Opinion:
"argued that the rights and obligations under the Xandate in
relation to the administration of the territory of SouthWest -4frica
being of ail objective character still esist . .(I.CJ. Reports 1962,
PP. 332-3334
This was, as the Applicants understand it,an alternative argument-1
have just quoted from the Court's characterization of the argument.
In the present phase of the proceedings, however, Respondent has
ravcrsed or abandoned this argument, alternative or otherwise, and now
seeks to make nugatory the Court's unanimous holding in 1950 that
Respondent's obligations toward the inhabitants of the Territory remain
in effect.I3y virtue of a so-called "alternative" argument, newly intro-
duccd at tliis phase of the proceedingç, ancl which will be examined more
fully, Respoiident now urges tlie Court to hold that the alandate as a
whole has lapsed. Such demise would, of course, carry wïth itthe fifit
group of obligations, along with those comprising the second group,
relating to international supervision and reporting.
If1 mnv, hIr. President, 1 should now fke to turn to a sumrnary
consideration to be elaborated in Part D of Respondent's obligations
towards the inhabitants of the Tcrritory, in terms of the lcgrrl issues
a'fecting this group of rights and obligations.
Ifit pleasc the Court, 1 turn to a summary of the Applicants' argu-
ments in support of its contention that Respondent has violated, and
is violating. its legal obligations as defined in Arti22eof the Covenant
of the League of Xations and in Article 2, paragraph 2; Article 2,para-
graph I; Articles 4. 6, and 7, paragraph I, inter dia, of the Mandate.
1 mis-spoke, Mr. Yreçident, 1 would omit reference, with the Court's
permission, to the obligations in the paragraphs relating to impiementa-
tion, 1 would delete references, with your permission, Rir. Prcsident,
from rny cornments with respect to Article 6 and Article 7, paragraph X.
1 am confining myself, at this stage. with the Articles. 2 to 5 of the
Mandate, and hrticie 21 of the Covenant.
Tlicse obligations, as the Court saidin thc Advisory Opinion of 1950,
which 1 have quoted,
"represent the very essence of the sacred trust of civilization.
Their raisod n'étreand original object rernnin."(I.CJ. Reports 1950,
P 133.)
The .4pplicants' submissions in respect of Respondent's obligations
toward the inhabitants of the Temtory are, of course, positedon rejection ARGUBIEST OF hIK. GROSS II3
of Respondent's newly advanced contention that the hiandate has totally
lapsed as an international institution.
The Applicants' central contentions can be stated in concise and simple
form :
1. The policy of apartheid, as practised in South West Africa, is
repugnant to the Mandate.
2.The incornpatibility of apartheid with the Mandate, in terms of
Article 2thereof, is judicially determinable on the basis of objective legal
criteria.
The first of these propositions, to wit, that the policy of apartheid,
as practised in South IVest Africa, is repugnant to the obligations under
Article 2, paragraph 2, of the hiandate, necessarily involves a definition
of tliat term, or "separate developinen t" in Kespondent's currently
preferred usage. If I am not mistaken, the interchangeability of the
terrns "apartheid" and "separate development" is not disputed.
The Applicants do not use the terms "apartheid" or "separate devclop-
ment" as words, but as defined acts with alcgnl consequence.
Thc Applicants present to this honourable Court the policy and
practice of apartheid as it is, and as it has been, in the daily lives of
the individual perçons who comprise the collectivity of the inhabitants
of the Territory.
Tiie Applicants define apartheid. for the purposes of these proceedings,
as a policy and practice under ivhich:
"the status, rights, duties, opportunities and burdens of the popu-
lation arc detemined and allotted arbitrarily on the basis of race,
color and tribe, in a pattern which ignores the needs and capacities
of the grolips and jndiWdiinls affccted, and subordinates the interests
and rights of the great majority of the people to the preferences of
a mjnority".
I have just quoted from page 108 (1) of the RiIemorials.
Respondent sceks to explain and justify the policy of apartheid on
the basis of its so-called "ultimate goal". As will be made clear at the
stage of these proceedings wrhichwjll deal prjmarily with facts, such a
professed goal ishypothetical, contingent and indeterminate as to tirne
or rnethod of accomplishrnent.
In the Applicants' respectful submission, this honourable Court, for
reasons which will be made clear at an appropriate phase of these
proccedings, should not be asked to take account of so uncertain and
unpredictable, hypothetical and contingent future state of affairs in
appraising tlie legal significance of Respondent's actual and present
policies and practices.
As is madc clear in the Reply, nt IV, pages 312 and following, the
concept of "hornelands", "Bantustans", or other forms of expression, by
which Responclent describes the ambiguous aim of territorial apartheid,
or partition: such concept is unviable, vaguely sketched and deyendent
upon the so-called "White" economy. Moreover, the society of the
modern core of the Territory, the southern sector or Police Zone, whether
it be characterized as multi-racial, or in whatever form one May please,
speaking of it as a fact of economic life,the present general pattern is to
be continued indefinitely or interminably so far as the present record
shows. 1 will rcserve elaboration of details to support these contentions
for the later stage, hlr. President; 1 mention tliem now because, in my114 SOUTH WEST AFRICA
respectful submission, it is impossible to deal with the lega1issues under-
lying the rights of the inhabitants of the Territory without considering,
if only briefly, the Applicants' theories, or contentions at least, \vitli
respect to the nature of the practices and policies with which thosc legal
issues are vitaily concerned.
The world and life of the Territory with which these cases deal is the
world and life of the present, inthe forty-fifth year of the Mandate. The
policy of apartheid is a present fact with an ascertainable shape and
demonstrable consequences which are incompatible with the promotion
of the welfare and progress of the inhabitants of the Territory.
Al1 the foregoing matters will be elaborated more fully at a laterstage
of these proceedings, when the Parties will be dealing with esseritially
fact issues. Itisnecessary, however, with the Court's permission, in the
present context, to note that the legal inferences and legal conclusions
appropriately to be drawn from the policy of apartheid, in terms of
Respondent's obligations under Article 2of the Mandate, should-and,
in the Applicants' respectful submission, must-take into account the
nature and extent of Respondent's measures of implementation ot that
policy.
If1 may be permitted to cite one iiluminating exa~nplebrieflp at this
stage and then pass on to more strictly legal considerations, I should
Iike, with your permission Mr. President, to refer to the educational
policy applied by Respondent in the territory of South West Africa. In
view of the Applicants' purpose in the present context merely to advert
to issues of law, 1 shall avoid an extended analysis, but it rnay be of
assistance to the Court briefly to citeat this point the example of apart-
heid in the educational field in the light of the axiomatic proposition
that the wheel of Society turns upon education as its hub from which
radiate al1 aspects of economic, political and cultural life of anj7 social
systern. Consistently with Respondent's doctrine that rights, duties,
burdens and opportunities are to be allotted officially upon the basis of
membership in a group rather than in the light of individualcapacities
or potentials, Respondent's educational policies in the Territory proceed
from the premise (and I use Reçpondent's expression) that "non-Euro-
pans", wherever they may reside in the Territory, should receive and
be limited to, educational opportunities cornmensurate with their in-
tended future status in the political and economic life of the Territory.
The most complete and forthright exposition of Respondent's premises
and objectives in respect of so-called "Bantu" cducation in the Territory
may be found in the Counter-Mernorial, ai Book VII, at III,pages 527-530.
Mr. President and honourable Members of the Court, in commencing
what is indicated to be arather lengthy proceeding before this honourable
Court, may 1take the liberty of saying that characterizations by adjec-
tives and adverbs of Respondent's policy will bc avoided by the Appli-
cants asrnuch as ishumanly possible. We rest Ourcase, asI will demon-
strate, upon centrally decisive and undisputed facts largeiy on the basis
of laws and administrative practices, public records and staternents of
Respondent's highest officiais, most of ~vhichstaternents are quoted by
Respondent itself .
1 have referred, hlr. President, to the forthright and complete cspo-
sition of Respondent's premises and objectives in respect of Bantu
education in the Territory setforth, in its own words, in the Counter-
Mernorial, BookVII, at 111,pages 527-530. ARGUMENT OF MR. GROSS 115
Kespondent's exposition of what it terms the "motivation" of its
policy must be read in the light of the fact that the so-called non-White
population of the economically developed core of the Territory-the
Police Zone, or southern sector, which compriscs at least 50 per cent.
of the total area of the Territory-iscomposed of a population of which
some 73,000are so-called Whites, some 140,000 (in round figures) are
so-called Natives, and some 24,000 (again in round figures) are so-called
Coloureds or Basters.
The Applicants respectfully cal1these sections of the Counter-hlemorial
to the Court's attention, thaisto say the secdons appearing in Book VI1
at III, pages 527-530, inasrnuch asthey embody not only the decisively
relevant aspects of the education policy pursued in the Territory, but,
in the Applicants' conception, embdy also decisively relevant aspects
of the premises of apartheid generally and, in our view, clearly reveal the
consequences of that: policy upon the individuals whose welfare and
progrcss are at stake. 1 forbear from quoting from these sections in
deference to the objective of discussing at this stage of the Oral Pro-
cecdingsessentially legal issues and confining my remarks to inçeparably
related factual issues as briefly as they can be stated fairly. These
sections in the Counter-Mernorial, which 1forbear from quoting at this
stage but will respectfully cal1 to the Court's attention again, these
sections in the Counter-Mernorial likewise underly and confirm the
submission of the Applicants that the legal issue joined between the
Parties in respect of the irreconcilability ofthe policy and practice of
apartheid with the obligations of Article z, paragraph 2,of the Mandate
hinges on no disputed facts.
Respondent, ignoring the explanation in the hfemorials as to the
Applicants' reasons for citing extensive factualmaterial in itsplendings,
erroneously asserts, and 1 quote from the Rejoinder :
"It is dificult'to imagine the purpose for wliich thiç rnaterial
is introduced unless Applicants consider that there is an issue of
fact to be detemined between the Parties. And the only basic
factud issue [says Respondent] in this regard is the one relating to
Respondent's motive or state ofmind." (V, p. 107.)
Kespondent's appraisal, Mr. President, is wrong in each of itsparts
and as a whole.
Tliat there is no "issue offact to be detennined betwceii the Parties"
on any decisively relevant aspect of these cases, has been made clear in
the RepIy and is here reaffirmed. The Applicants, as I have said, rest
their case with respect to Respondent's violations of its obligations
toward the inhabitants of the Territory on the basis 01 Kespondent's
own formuIations of the policy of apartheid, and on a basis of laws and
regulations and practices spread upon the public record. The Applicants.
of course. take sharp issue with the premises upon which Respondent's
policy is based, as welas with the inferences and Iegal conclusions which
Respondent seeks to draw frorn its admitted, factual, poiicies.
As is made clear in the Reply, moreover, the Applicants' legal con-
clusions are based upon public statements of Respondent's highest
officials quoted in the Applicants' written pleadings, and upon Respon-
dent's mesures of implementation of its policy, the existence and nature
of which are undisputed. Al1 of this was stated in the Reply at IV,
pages 262 and following. Without conceding the relevance of facts116 SOUTH WEST AFRICA
contained in liesyondent's pleadings, including the Oral Proceedings, tlte
lacts-as distinct from inferences which may be drawn therefrom-are
not contested by the Applicants except as othenvise indicated, specific-
ally or by implication, in the Applicants'written pleadings or in the Oral
Proceedings.
Rlr. President. the second part of the statement from the Rejoinder
which 1 have quoted, that is, that "the only basic factual issue ...is the
one relating to Respondent's motive or state of minci", is rejected by the
Applicants as a wholly erroneous rendering of the Applicnnts' conten-
tions, either as to fact oras to law.
In its Counter-Memonal, Respondent stated, incorrectly, that the
Applicants base their case on the charge that Respondent has esercised
its powers under the Mandate "in bad faith". (1quote from the Counter-
Nemorial, II, 13ook 1, at page 2.) The Applicants sought to make clear
in the Reply that Respondent had rnisinterpreted the import of tlic
Applicants' submissions and, indeed, that such misinterprctation might
bc attributable to Respondent's fallacious conteiition concerning the
limited scope and content of its legal obligations under Article 2 of the
Mandate. We tried to make this clear in the Reply, ai IV, page 255 ancl
following.
Respondent's repetition of the same error in the Rejoinder, accord-
ingly, is difficult to explain in so as itattributes any such intention of
pleading to the Applicants, and it may reflect some ansiety on its part
to avoid the application of objective criteria as a measure of its lepl obli-
gations under Article 2. However that may be, the fact undisputedly
is that the App1ic;ints do not rnnkean issue, have not sought to make :tri
issue, and donot intend to make an issue of good or bad faith in the pre-
mises.
Notwithstanding the fact that this honourable Court has affirmed its
cornpetence to adjudicate the merits of the dispute between Applicants
and Respondent, including issues which have arisen under Article 2,
paragraph 2, of the Mandate, Respondent insists that there exists no
basis for a judicial detemination of asserted breachcs of Respondent's
legal obligations thereunder.
As originally summarized in the Counter-Mernorial in Book IV (II),
and fuIly developed in the Rejoinder (V), Respondent has presented
two basic legal contentions in this regard.
The first, set out in the Rejoinder, V, at pages 143 and following, is
that, given the nature of the obligations of Article 2,paragraph 2, of the
Mandate, "although the obligations under the Article were of a legal
nature, the Court was not intencied to possess jurisdiction in regard to
alleged breaches thereof". That is from the Rejoinder, V, at page r46.
Respondent's contention that disputes concerning the application or
interpretation of Article z, paragraph 2, of the Mandate, and, by impli-
cation, Article 22 of the Covenant of the League are not justici-
able, attributes to the authors of the mandates system a denial to the
inh'abitants of the Temtory of judicial protection of the rights comprised
in what this honourable Court described in 1950as "the very essence of
the sacred trust of civilization".
Acceptance of Respondent's contention that these rights arc not
justiciable-disputes concerning these rights are not justiciable-lvould
lead to the anomalous result that protection by this Court of rights aiid
obligations going to the very essence of the Mandate would be subject ARGUMENT OF MR. CROSS 117
to administrative su~xrvision alone, whercas rights of lesser stature, and
of narrower material import, in Articles 3 to5 of the Nandate, would be
subject both to administrative supervision and to judicial protection.
This would be the anomalous result which would inescapably flow from
Respondent's contention that the obligations under Article 2,paragraph
2, of the Mandate are not justiciable, whereaç rights and obligations
under Articles 3 to 5 are.
The final bulivark of judicial protection against breaches or abuseof
the Mandate-as this honourable Court in its 1962 Judgmcnt described
its function undcr the Mandate-would accordingly be alrailable oniy
for the protection of rights of lesser stature and significance than thoçe
embodied in Article 2,which the Court has said are of the essence ofthis
sacred trust.
Respondent's ascription to the founders of the mandates system of an
intention thus to circumscribe protection of the sacred trust could, it is
submitted, be justified only by incontrovertible explicit evidence,
coupled with imperative considerationç of logic. Respondent's con-
tention is in the teeth of the expresslanguage of Arti22eofthe Covenant
and Article 2 of the Mandate, neither of which provisions embody any
such limitation or circumscription expressly or by implication. Further
consideration willbe given to this legal issue of interpretation in PaUt
of this phase of tliOral Proceedings.
In their written pleadings, the Applicants have sought to dernonstrate
that disputes concerning the interpretation and application of -4rticl2,
paragraph 2, of the Mandate are justiciable (maÿ I refer to our Reply
at IV, pages 483 and following).
Such disputes, it is respectfully subinitted, are justiciable and in
accordance with, and on the basis of, internationalcustom, asevidence of a
general practicc accepted as law, the general principles of law recognized
by civilizvd nations, and judicial decisions and teachings of qualified
publicists of the varioris nationsIn short, AIr. President, justiciability
of disputes concerning the interpretation and application of Article 22
of the Covenant and Article 2,paragraph 2, of the bIandatc is supported
by reference totheapplication of Articl38, paragraph I,of the Statute of
this honourable Court.
The existence of an international legal norm of what the Applicants
describe as "non-separation" or "non-discriminatjon", for the sake of
convenience of description, the existence of such an international le al
norm as dcfined and described by the Applicants in the Keply, at 9V,
page 493, is cstablished, in Our respectful submission, by soiirccs and
authorities of tlie nature referred to in Article5 of the Statute of the
Court. Part D of this phase of the Oral Proceedings will treat of the con-
siderations upon which we base this contention.
In essence, inthis summarization, the Applicants' submission is fhat
the interpretation and application of international legal obligations
undertaken by States in relation to the rights, welfare or progress of
individuals, are to be measured and governed by a gencrally accepted
legal norm, whicli prohibits officia1 allotment of status, rights, duties,
privileges or burdens upon the basis of membership in a group, classor
race, ratherthan on the basis of individual merit, capacity or potential.
Such a legal norm, moreover, is generally accepted by the nationsas a
minimum norm of officia1policy and practice on thepart of governrnents.
With regard to relevant international obligations, such lepl norm118 SOUTH WEST AFRICA
likewiseis accepted virtually universally as a standard for interpretation
and application of international obligations with respect to the relevant
area; numerous examples are cited inthe Kcply at IV, pages 4g1-510.
In the light of the fact, Mr.Yresident, that such legal nom is a minimum
one, in our submission. the Applicants submit that it afortioriprovides
objective criteria governing tlie interpretation and application of an
internationalundertaking such as that embodied in Article 2,paragraph
2, of the Alandate, that 1sto Say,the promotion ofthe welfare and progress
of the individual inhabitants of the territory "lotheutmost".
The Applicants, in their Reply, refer to certain authoritiesasshowing
that obligations of a scope and nature comparable, in certain general
respects, to those embodied in Article 22 of the Covenant and Article 2
of the Mandate, are justiciable. Among such authorities is cited the cele-
brated decision of the United States Supreme Court in Brown v. The
Board of Education,347 United StatesReports 483, decided in 1954.
Considerations of a legal nature underlying the Brown cFe, gcrmane
to legal issues joined between the Parties to these proceedings, may be
surnmarized briefly as follows, with your permission, Sir. As stated in
the Reply, the Brown case, among others cited in the Reply, confirms
the fact that judicial tribunals, both domestic and international,
"have often derived their judgments from sources, and upon the
basis of considerations, which Respondent urould characterize as
'social, ethnological,economic and political... It is,of course,in the
highest traditions of courts in al1 civilized systems to draw tipon
humane, moral and political standards inderiving the sources oflaw."
I take the quote from pages 485 and 487 of our Reply (IV) and would
add only on thispoint that the fact that social, ethnological, economic
and political considerations underlying disputes of a legal nature nor-
rnally rnay provide more, rather than less,reasons for courtsto deal with
disputes between men, or nations, because these are thetype ofdisputes
which are most likely to threatcn civil order or international peace.
Secondly, the Brown case, among otkiers, illuminates, and again I
quote from the Reply,
"the judicially perceived ~iecessityto interpret broadly-formulated,
constitutional-type obligations, on the basis of current standards.
rather than on the basis of the presumed 'intentions of the parties'
at the time the obligations were conferred and accepted".
This 1 quote from page 515 of our Reply (IV).
This aspect of the case of Browrt v. The Board ofEducation, nrnong
others, is relevant to Respondent's contention, in its pleadings, tliat the
scope and content of its obligations under Article 2,paragraph 2, sliould
be measured essentially on the basis of standards prevailing i1920, when
the Mandate was conferred. 1confesçthat the Applicants see, in a certain
staternent by the Respondent, that this is inferred or implied; other
statements appear to imply to the contrary. To the extent that any
doubt rnay arise or Iinger with respect to the precise meaning of Ke-
spondent's intention in this respect, 1 cite the Brown case to Iayat rest
any doubt on the score of valid method of interpreting a constitutiond-
tje document in rationetem$oris.
Fhe history of the Brown case itsell vividly illustrates the error of
Respondent's contention, if indeed that be its contention. In that case,
as pointed out in the Reply, at IV, page 514, the Supreme Court of the ARGUMEXT OF &IR.GROSS II9
United States reversed the 1896 decision, by the same Court, inPlessy v.
Ferguson, on the basis of change and experience during the intervening
period, including what the Court termed "psychological knowledge"
(thisis quoted inOur Reply at IV, page 487).
Finaiiy, the Applicants cite the Brown case, among others, in support
of their submjssion that, and 1quote again from Our Reply,
"obligations are not deprived of a legal character merely by reason
of being formulated in general terms, nor do Courts hesitate to
exercise theirjudicial functions even wlien issues, in Respondent's
phrase also fa11within 'the realm of politics'. Nor do courts fear
[again in Respondent's phrasej 'to ventureonto one orother of...[the]
terrains' of 'social, ethnological, economic and political considera-
tions', even in complex and controversial issues, in which individual
human .rights are asserted against govern~nental action or policy ."
1 have just quoted from our Reply atIV, page 515.
The Brown case,arnong many others, shows that legal disputes in which
such considerations are relevant or decisive, are justiciaband that such
disputes can be;and are, adjudicated by courts of law in most if not al1
societies.
That suchobligations arc of alegal character isconceded by Respondeiit,
explicitly with regard to Article2,paragraph 2, of the Mandate, and irn-
plicitly with regard to Article22 of the Covenant. 1 refer to the Re-
joinder, at V, pages 19 and 20 among other pages.
The Applicants, as has been said, cite in their pleadings nurnerous
judicial authorities, as welas scholariy writers, confirming that the judi-
cial process in civil law systems, as well as other systerns. draws upon
humane, moral, politicai and scientific standards as sources of law, and
does so particuiarly where legal rightsand duties rirbroadly formulated.
This discussion appears in OurReply at IV, pages 485-491.Thus, reference
is made in the Reply to the doctrines of abu de droit, bonnes moeursand
ordve public.
Hespondent's cornmentary on the Browvi case does not advert to tlie
aspects of the case which are referred to above, so far as 1 am aware,
and ~vhichalone are relevant to issues in these proceedings. 1 refer to
Respondent's commentary, for example, at page 71 of the Rejoinder(VI).
Instead, Respondent seems to lirnit its discussion or commentaryon the
Brown case to, what in the Applicants' view, is the totally irreievant
proposition that the United States is assertedly mono-cultural, whereas
the rnandated territory is assertedly multicultural. IVhether or not the
purported distinction is a true one the Applicants cannot Say, as neither
term is defined nor, it is submitted, so far as we casee,is definable in
any rneaningful sense relevant here.
The Applicants are aware, and do not suggest otherwise, that decisions
of domestic tribunalç are peculiarly suited toand reflect, conditions and
traditions particular to their otvn societiSuch conditions and traditions
may be multi-cultural,multi-lingual, or multi-racial, or mono-cultural,
mono-lingual, or mono-racial, orailor any of these, and mare, icombina-
tion. The Applicants do not intend to comment upon, nor do they believe
that this honourable Court would wish to enquire into, much less pass
upon, practices or policies ahich regulate the affairs of any sovereigA
State or societÿ other than that which is subject of comylaint in the
cases at bar.120 SOUTH N'EST AFRICA
Whether Canada or India, merely as random examples, are or are not
multi-racial or mono-cultural societies, or whetlier they maintain or
should rnaintain or should not maintain, for cxample, separate schools
for separate cultural or linguistic groups, is unknown to the Applicants
and isnone of their concern.
The sigiiificance of thBrown case to these proceedings consists not
in the rulirig of the SupremeCourt, but lies in the universal applicability
of rnuch of the reasoning upon the basis of which that Court arrived at
its unanimous finding, and 1 have atternpted to refer to the Coiirt the
three respects in which that universally applicable reasoning seems rele-
vant to the cases at bar.
The Supreme Court of tlie United States, as has been noted, took ac-
count of what it termed "psychological knowledge" along with other
contemporary and authoritative learning. Upon the basis of such modern
authority, to use the Supreme Court's term, the Supreme Court found
that officially sanctioned separation of Negro school children, at least in
the United States, and 1 quote from the Opiiiion, "from others of similar
age and qualifications because of their race generates a feelingof inferi-
ority asto tlieir status in the cornrnunity that may affect their hearts
and minds in a way unlikcly ever to be undone". This is quoted in oiir
Reply at IV, page 487.
Inthe light ofthisfinding,applicable to the United States, tlie Supreme
Court concluded that, "in the field of public education the doctrine
of 'separate but equal' has no place. Separatc cducational facilities are
inher&ntly unequai".
hlr. Presideiit, and Members of this honourable Court, the Applicants
do not suggest that the considerations which motivated the decision inthe
Brown case govern these proceedings. Such considerations underlying its
reasoning, however, seem to warrant the following conclusion on the
reason of the thing.
If it can be appropriately held anywhere, in any society, mono- or
multi-racial or cultural, that equal facilities, if separate, generate social
and personal evils of the type to which tlie Supreme Court referred, it
goes beyond the point of reason, in Applicants' respectful submission,
to deny that facilities wliich are both separate and unequal can generate
no lesser social and persona1 evils in every society where they occur,
including South IVest Africa. A heavy burden, accordingly, must fall
upon Kespondent, charged with the duty to promote to the utrnost the
welfare and progress of the individual inhabitants of this Territorp. a
heavy burden must indeed fall upon the Respondent to show that such
wellare and progress is promoted by educationai facilities in tl-ic'l'crri-
tory, whicli areby any objective standard, as we shall endeavour to show
in the fact pliase of these proceedings, unequal aç well as separate.
In the Applicants' submission such welfare and progress of the inhabi-
tants is thwarted by such policy and practice, as we shall attempt toshow.
>Ir. President, at our monient of recess was concluding this particular
point by saying that in their written pleadings the Applicants set out
extensively the reasons, preccdents and authorities demonstrating that
not only legal obligations of tlie scope and natureof Article2, paragraph
2, and Article 22 of the Covenant, are justiciable, but that, in addition,
%bjectively determinable legal norms and standards exist, on the basis
of which the obligations embodied in such provisions can and, in our
respectful submission, should be adjudged by this honourable Court. ARGUMENT OF MR. GROSS 121
Such legal norms andstandards,as 1said, will be fully discussed in ParD
of this phase of the Oral Proceedings.
These norms and standards, as 1 have already said, would apply
a fortio trin obligation to "promote to the utmost" rights which include
the right of the inhabitants to be free from the restrictive, oppressive
and other consequences of the policy and practice of apartheid, aç de-
scribed in our mritten pleadings, which \vil1be prcsented to the Court at
a later stage when we turn to discussion of the essential facts.
Respondent's second argument-the first being, as the honourable
Court will recall, that the dispute is not justiciable in terms of Article
of tlie Mandate-alternative to its first, is set outV,tpages 157 to 174
of the Rejoinder. Respondent's alternative coiltention falls for considera-
tion only if the Court rejects Respondent's first contention. Rcspondent's
alternative contention is, iii effect, that unreviewable discretionary
powers over the Territory arc vested in the Rcspondent in terms of
Article 2,paragraph 2, of the Mandate, subject only to the question
whether such powers are esercised by the hlandatory "in good or bad
faith".
The Applicants submit that the question at issue is not the subjective
motivation of a particular government, or of a group within a govern-
ment, or of a single official, or of a single department oa government.
The only sense in which a subjective test of good faith could be relevant
to the motives of individuals who, severally and collectively, and from
time to tirne, form the executive, legislative and judicial branches of any
government, would be by application of the universally accepted prin-
ciple that an individual or ari entity is legally preçurned to intend the
reasonably foreseeabie consequences of his, or its, actiotis.
Any other measure of Kespondent's obligations under Article 2 of
thc Mandate, in terms of good or bad faith, would necessarily confront
this honourable Court, or an administrative supervisory atithority, with
the task of judging the Wandatory's conscience, rather than itsconduct.
If such a legal yardstick were to be the measure of Rcspondent's obliga-
tions under Article 2, paragraph z, of the Mandate, the Applicants
themselves would be at a loss to determine what manner of evidence of
breach would be relevant, save perhaps explicit and unrepudiated
admissions by Respondent's highest officials, that thcir policies were,
indeed, directed toward an illicitpurpose. Forthis reason, the Applicants
perceive little difference in prnctical or legal effect between Respondent's
two alternative contentions, and hcnce conclude that to describe an
obligation so limited as one of a legal nature, is little more than a play
on words.
The policy and practice of apartheid, in the Applicants' submission,
are in violationof the terms of the Mandate, not subjectively determined
in accordance wvithso-called good or bad faith tests, or motivation, but
as objectively interpreted in accordance ~vitithgenerally accepted stan-
dards fully setforth in oiir Reply,as has been noted.
The Applicants, in Part U of this phase of the Oral Proceedings, will
endeavour to analyse iiidetail the legal premises, reasoning and con-
clusions relevant to Respondent's two alternative contentions, whicli
1 have summarized.
Now, hlr. President, with your permission and that of the honourable
Court, 1 would like to turn to a consideration of the legal issues relating
to Respondent's obligationç to çubmit to international supervision. This,122 SOUTH WEST AFRICX
of course, isthe second group of obligations, in terms of the Advisory
Opinion of 19jo, and are those reiating to measures of implementation.
These too will be considered morefully in Part C of thisphase of the Oral
Yroceedings.
The key to the just, prompt and orderly solution of the problems
generated by Reçpondent's alleged violations of its obligations towardç
the inhabitants of the Territorp, is to be found in, and through, the
processes of international administrative supervision which, as this
Court has held, isthe "normal security" embodied in the Covenant, and
in the Mandate, for the protection of the sacred trust. The Applicants
will set out,at a later stage of these proceedings, the facts, and related
considerations, which rnake clear, in Our respectful subrnission, the
practical necessity foradministrative supervision. Such practical neces-
sity, as we believe will emerge clearly from the facts, reinforces and
conhrms the legal considerations supporting the Applicants' submission.
that administrative supenrision is of the essence of the Mandate and
must continue so long as the Mandate itçelf endures.
Respondent once more requests the Court, as Respondent did in 1962,
to reverse the 1950 Advisory Opinion on the ground tlist, had certain
facts been knowii to the Court in 1950, and 1 quote from Kespondent's
pleadings :
"It seems inconceivable that it could have arrived at its conclu-
sions regarding an obligation on Respondent's part to submit to
United Nations supervision." (II,p. 148.)
This proposition which, forthe sake of convenience, Applicants describe
aç the "new facts contention", will be analysed in Part B of this phase
of the Oral Proceedings,along with the background of facts, events and
transactions, which occurred dunng the period 1945-1949.
We believe that analyçis of the new facts contention, or re-analysis,
if 1may put it that way &Ir.President, will demonstrate that the con-
tention is unsubçtantial and that. in any event, it is in the teeth of the
Court's hding in1962that: "Al1 important facts were statcd or referred
to in the proceedings before the Court in 1950." (I.C.J. Reporfs 1962,
P It suffices ritthis point to note that acceptance of liespondent's
contention concerning lapse of administrative supervision would make
nugatory the Court's explkit holdjng in the 1950 Opinion that :
"The General Assernbly of the United Nations is Iegally qualified
to exercise the supervisory functions previously exercised by the
League of Nations with regard to the administration of theTemtory,
and that the Union of South Africa is under an obligation to submit
to supervision and control of the General Asçembly and to render
annual reports to it."(I.C.J. Reports 1950 ,. 137.)
Respondent's submission conceming the lapse of administrative super-
vision also requests reconsideration and revision of the holding of the
Court in I 62 tttat "the Mandate as a whole is still in force" (I.C.].
Reports19 82,p. 335).
Now, with respect to Respondent's first alternative contention.
hfr.President, it isdifficult to Say whether greater violence is done
to the Court's prior holdings by force of Respondent 'sfirst alternative
contention, viz., that administrative supervision ha lapsed, leaving the
balance of the Mandate intact, or by the second alternative contention, ARGUMENT OF MR. CROSS 123
viz., that the Mandate as a whole has lapsed. These are, of course, the
two alternative contentions in this phase of the case.
Respondent's first alternative contention, that supervisory jurisdiction
of administrative nature has lapsed, witliout collapsing the Mandate as
a whole, would, inter alia,leave intact the compromissory clause of
Article 7 of the Mandate. Its second alternative contention, that the
Mandate as a whole has lapsed, would, however, erase ArticIe 7, along
with the rest of the Mandate.
Both contentions, it is respectfully submitted, do lethal violence to
major premises undcrlying the
1962 Judgment. One such premise was
formulated by the Court as foliows:
"The administrative supervision by the League constituted a
normal security to ensure full performance by the hfandatory 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 bulwsrk of protection by recourse
to the Court against, possible abuse or breaches of the Mandate."
(I.C.J. Reports 1962, p.336.)
It would follow from Respondent's first alternative contention, ac-
cording to which administrative supervision-the iiormal security-has
fallenaway, that the Applicants, and other States similarly situated,
would be left with no protection against possible abuse or breaches oI
the Mandate, except by means of recourse to this honourable Court. a
right which, in any event,is vital and indispensable. Judicial protection,
which tlie mandate institution envisages as the final buIwark, in the
Court's words, would thus become the first and only bulwark, inasmuch
as judicial supervision, by reasonofdefault of administrative supervision,
would perforce take the place of tlie nornial security.
Of the many conjectural possibilities concerning the intentions of the
authors of the Mandate, or of the parties thereto, or of the League of
Nations, or the United Nations, one of the least likely must have been
an intent to impose upon the Court the burdensome tasks woven intothe
fabric of day-to-day supervision over the Mandate.
Respondent's first alternative contention thus is incompatible with a
proper and effective inter-relationship between administrative super-
vision and judicial protection,and this must be so, unless the Applicants
completely misconceive the practical and legal effect of the first alter-
native contention. The true nature of thiç inter-relationship is manifest
from the opinions of learned judges in thc 1962 proceedings, as well as
from the Judgrnent of the Court itself.
Reference already has been made to the Court's holding with respect
to the nexus between administrative supervision as a normal security
and judicial protection as a final bulwark.
The same relationship likewise uras noted by the honourable Yresident
of the Court and Judge Sir Gerald Fitzmauriçe, intheir joint dissenting
opinion in 1962.
Thus, in discussing the securities set out in Articl22 of the Covenant
of the League of Nations, the learned judges said, ;der alia, that:
". . . the chief security or safeguard consisted in the provision made
for reporting, and for the supervisory functions to be exercised by
the Permanent Mandates Commission and the League Council".
(I.C.]. Re$orts 1962,p. 480.)124 SOUTH WEST AFRICA
And the learned judges, in another context, described Articles6and 7:
".. . as deçigned portions of a coherent a~id integrattd whole ..."
(I.C.J. Reports1962. p. 553.)
Judge van Wyk, in his dissenting opinion, likewise analysed the
relationship between Articles Gand 7 of the Mandate, in the following
terms :
"There is a vast difference between Articles 6 and 7 ... The
provisions of the one [i.e., Article 61are to be found in the Covenant
of the League itselfand constitute one of the securities specifically
embodied in the Covenant for tlie erformance of the sacred trust
of civilization referred to therein1ereas Article 7 doeç not appear
inthe Covenant and is not one of the securities for the performance
of the sacred trust.
From the above it follows that if there was implied or tacit
agreement relative to the continued application of any provision
contained in the Mandate Declaration which depended on the con-
tinued existence of the League for itç fulfilment, such agreement
would much sooner relate to the provisions of Article 6 (that is,
paragraph 7 of Article22) than to Article7 of the Mandate Declara-
tion."(I.C.J. RePorls 1962, p.606.)
This honourable Court twice has held that, asa matter of law, Article7
is in force: "just as the Mandate asa whole is still in force" and that:
"Tliere could be no question of lack of consent on the part of the
Respondent as regards this transferto this Court of the Respondent's
obligationunder Article 7 of the Mandate ..." (I.C.J. Reports1962,
P 335.)
It isçubmitted that, in view of the relationship between Article6 and 7,
it is thus impiicit in this honourable Court's holding and in views expres-
sed by learned judges that if,and since, Article7 has bcen held by the
Court to be in effect, it would seem that Article 6,by reason, logic and
practical necessity, should also be concluded to have remained in effect.
With your per~nissionnow, hlr. Preçident, 1turn to a summation of the
major legal prernises of the respective Partjeçaddressed to the issues
posed by Respondent's contention that administrative su erviçion has
lapsed, and Applicantç' counter-contention that the Unite a Xations has
replaced the League of Nations in terms of Article 6 and of Article22 of
the Covenant and the first paragraph of Article 7 of the Mandate.
Respondent's two major prernises may be sumrnarized concisely, as we
understand them, as follows:
(1)In asçuming the hiandate, the obligation undertaken by Respon-
dent "was not one to submit to 'international supervision' " but, rather,
"to submit to the specific supervision of particular League organs".
(11.P. 144.1
Reçpondent's second major premise, as w7eunderstand it, is that:
(2)\.fien the League dissolved and the United Nations came into
existence, the latter did notecide to assume çupervisory authority over
the Mandate, nor did Respondent consent to subrnit to supervision by the
United Nations.
These, as we understand, are tlie t~vopropositions ofRespondent.
Each of these propositions rests upon analysis and interpretation of
instruments, events, transactions and undertakings, during the penod of
the formation of the mandates system, as well as during the period of ARGUJIEKT OF AIR,GROSS 125
the dissolution of the League and the commencement of operations of the
Unitcd Nations.
Interpretation of such instruments, events and so forth, will be
preseiited by my collea ue, Mr. Moore, nevt following in presenting Part
13of this phase of the8 ral Proceedings.
It appears to be common cause between the Parties that supervision,
or the right of recourse to supervision, is normal and essential in any
sitiiation in which control and benefit are separated, that is to say, in
which one person, or entity, exercises a power over property or other
interests, while another is entitled tothe benefits thereof. This, of course,
is the essential underlying conceptof trust, or tutelle,in alllegal systems,
of which the Applicants arc aware.
The Parties, nevertheless, reach differing, if not coritrasting conclusions
regarding the applicability of this legal concept to the Mandate.
As far as we are aware, Mr. President, Respondent does not address
itself directly to trationale of prior Court decjsions, or, to the extent
that it does so, seems to misapply the Court's premises and conclusions.
Respondent appears to contcnd that, in the formulation of this particular
sacred trust, a basic obligation to submit to supervision was not intended
to survive the dissolution of the specific organ mentioned in the trust
instrument, and that the obligations to submit to international super-
vision accordingly lapsed with the demise of the tutelary.
Tlie .4pplicants, on the contrary, coritend that, unless the riglitof
international supervision continues to reside somewhere, so long as
Respondent retains rights under the Mandate the "very essence of the
Mandate", in the Court's words in 1963 ,ould be excluded. The premise
upon which the Applicants base their contention that the United Nations
replaced the League of Kations as the supervisory organ, and that
Respondent did in fact manifest its consent thereto, willbe elaborated
in Part C of this phase of the Oral Proceedingwhich 1 am now venturing
to summarize.
'I'he AppLicants' premises and contentions touching this matter are
addressed to the mandate institution as itwns conceived and as it
açtually is, a novel international institution,endowed with eçsential
attributes which have been defined and described, and indeed fully
adumbrated, by this honourable Court. Respondent's premises and
contentions, on ille contrary, reIate to a so-called "mandate" of a wholly
different nature, one that never was. Intricate and ingenious though
many of Respondent's legat arguments may be, they seem to the Appli-
carits to rest upon unreal legal foundations. Thihas rather complicated
.the Applicants' task of refutation, because it has seemed to us, with
respect, that the basic contentions of the respective Parties, as well as
their major premises, circle in different orbits.
The starting point of an analysis of Reçpondent's premise that tlie
inandate obligation was limited to supervision by a specific organ must
be an examination of the nature and purposes of the mandates çystem.
The history of that system, as 1have said, &Ir.President, will be analysed
by my associate, Mc. Rioore, in ParB of this phase of the proceedings,
and this history constitutes the very foundation upon which must be
based relevant inferences, arguments and legal conclusions in relation to
the intentions of the authors of the Covenant and of the Mandate itself.
On the basis of these considerations, which will be set forth in some
detail, it seerns tthe Applicants inescapably clcar that the obligation126 SOUTH WEST AFRICA
of international accountability was regarded by the authors of the
mandates system as a basic and integral feature of that system, and that
this feature stamped the system witli its novel character as a new
international institution, created to assure the welfare and progress of
certain dependent peoples as a "sacred trust of civilization".
In the words of the honourable President of the Court and Judge
Sir Gerald Fitzmaurice, in their joint dissenting opinion in 1962 :
". .. an obligation to report was regarded as being of the essence,
as a necessary part of any Mandate System that was to fulfil the
objects stated in Article 22" (I.C.J. Reports 1962, p. 522).
Respondent's inethod of analysis secms to obscure the fact that, in
the context of its first alternativecontention regarding lapse of ad-
ministrative supervision ulthout collapse of the Mandate as a \\-hole,
in its discussion of itsfust alternative contention, Respondent largely
ignores an interpretation of the Mandate which is the vcry foundation
of Respondent's second alternative contention, to wit, that the Mandate
as a whoie has lapsed.
ln connection with the development of its second alternative conten-
tion Respondent of course posits, and we believe correctly posits, the
premise that international supervision was indeed a basic legal obligation
inherent in and integral to the mandates system. In the context of the
first alternative contention, which leaves the rest of the Mandate alive,
as we understand it, Respondent does not refute the .4pplicantsJ major
theçis which is, with respect, the samc as that of the Court's, namely
that international supervision is the very heart of the mandates system
and that, in the words of this honourable Court of 1962, which I quoted
a few minutes ago, to exclude the obligation of international supervision
"woddbe to exclude thevery essenceof the MandateU,in the Court'swords.
Respondent's argument in support of itsfirst alternative contention,
accordingly, is incomplete in our view, inasmuch as the argument ignores
a major premise which, to Say the least, is worthy of discussion in that
context. Respondent proceeds, instead, by a process of what seems to us
to be logical fragmentation or shredding, to interpret Article6in the light
of an institution eiidowed with attributes esçentially different from those
of the Mandate now before this honourable Court.
Respondent similarly draws what to Applicants appears to be an
unreal distinctioti between an intcrpretation of Article 6 bascd upon
some general principle of international law and one based upon intention
of the Parties.
Mr. President. the Applicants never have sought to show a general
principle of international law as governing the Xandate, other than
general and applicable principles of treaty interpretation.
The Applicants' actual argument on this point is based upon the
proposition, which we understand to have been established by this
honourable Court, that the Mandate, although an agreement, also is an
institution, which created and introduced new international regulations
particular to itself. This proposition, with respect, appears to be es-
tablished in the 1950 Advisory Opinion, which described the Mandate
as an institution, and I quote, "re lated by international rules" and,
to the same effect, the Court held: "Bhe international rules reylating the
Mandate constituted an international status for the Territory . . ."-that
is at page 132 of the Advisory Opinion. ARGUMEST OF MR. CROSS rz7
Interpretation of Article6 of the Mandate, as is true ofdl its other
pro\~isions, is to be based upon both the international regulations
governing the mandate institutions, and the relevant principles of treaty
interpretation, soundly applied in the light of the international rules
thiis regulating the Mandate.
Respondent attacks as "judicial legislation" applicationby the Court
of the so-cded "principle of effectiveness" in relation to the question
whether Article 6 and Article 7, paragraph I, express a basic legal rule
of international supervision, or whether such provisions are limited, by
their literal terms, ta specific and defunct organ.
Reçpondent's reasoning that this would constitute judicial IegisIation
-the application of the principle of effectiveness-appears, with al1
respect, to beg the question. Such a course of interpretation could be
said to he "judicial legislation" only if there had been an intent to limit
Article6 and Article 7, paragraph I,to their explicitand literal terrns,
which is the point in issue. Ascertainment of the intention of the parties
to an agreement isobviously a normal and a legitimate use of judicial
power. Proper application of the principle of effectiveness to the hlandate
makes clear that an interpretation which u-ould exclude the essence of
the Mandate ïvould itself constitute an e'rtrerne form of so-called "judicial
legislation" indeed.
In the written pleadings Kcspondent has set out in summary form
certain principles of interpretation and of implication relevant to the
ascertniiiment of the cornmon intent of parties to a treaty-1 refer to
Book II of the Counter-Mernorial, II,page IIO and following.The correct
application of such principles to the interpretation of the Covenant, of
the Mandate and of the events and transactions during the period
commencing in 1945"il1 be elaborated in Part C of this phase of the Oral
Proceedings.
1 turn now, \vit11 your permission, Mr. President, to a summary
consideration of Article 7,paragraph I, of the Mandate. The intention
of the authors of the mandates system to establish an obligation of
international supervision as a basic and integral element of the hlandate
is çonfirmed by considering the consequences which would flow from a
lapse of Article 7, paragraph I, of the Mandate, so long as Respondent
retains rights under the Mandate. Article 7, paragraph I,wliich requires
consent of the supervisory organ in terms "for any modificatioii of the
termç of the Mandate", iç inextricably linked with Article 6, as well as
with the second paragraph of Article 7 itself.
The 1950 Advisory Opinion noted the legal and practical inter-
relationship between Articles 6 and 7, paragraph 1, in the following
words :
"Article 7 of the Mandate, in requirîng the consent of the Council
of tlleLeague of Nations for any modification ofits terms, brought
into operation for this purpose the same organ which was invested
with powers of supervision in respect of the administration of the
Mandates."
That is from page 141 of the 1950 Opinion. It is indeed necessary that
the same orgas be vested with both powers. The "consent" to which
Articlc 7, paragraph I, refers, obviously rnuçt be an informed consent.
Only the same organ entitled to receive "full information with regard to
the territorÿ", in the words of Article6,could be in aposition to enercise128 SOUTH WEST AFRICA
an informeci judgment in respect of proposais for modification of the
terms of the Mandate.
Respondent in its written pleadings does not consider the consequences
which would flow from lapse of Article 7, paragraph r, so long as it
retains its rights under the Mandate. Respondent merely argues, so far
as we are aware, with respect to Article 7, paragraph r, that the 1950
Advisory Opinion erroneoiisly held, in repiy to question (c) of that
Opinion, that-
". ..the Union of South Afnca acting alone has not the competence
to rnodify the international status of the Territory of South-West
Africa, and that the competence to determine and rnodify the inter-
national status of the Territory rests with the Union of South Africa
actin vith the consent of the United Nations".
That is from page 14 of the 1950 Opinion and, as 1recall, there waç no
dissent from that reply to question (c).
Acceptance of Respondent's contention that Article 7,paragraph r,
has lapscd, ~ould. necessarily create one of two intolcrable situations:
either the Mandate would be frozen in its present form in perpetuity,
inasmuch as therc would be no supervisory organ in existence to consent
to its modification, or Respondent would have the right unilaterally to
rnodify its terms without the consent of any supervisory organ. The
latter attecnative would of course carry with it the power unilateralIy
to destroy the international status of the Territory, thus annexing it
both in law and in fact. We subrnit therefore that the consequences
which would flow frorn a lapse of Article 7, paragraph I, confirm the
essential nature of the retention of international supervision as a legal
conclusion.
Now, Rir. President, turning to Respondent's second alternative
contention, which 1 shall attempt briefly to summarize, Respondent's
contention that the Mandate as a whole has lapsed of course would
eliminate the compromissory clause as one of the casualtics. This honout-
able Court twice has held that this clanse nevertheless possesses full
lcgal effect. Kcspondent, so far as Applicants areaware, has not advanced
any asserted "new facts" calling for reconsideration of the Court's
holding in this respect,but merely a new form of argument.
Respondent in 1962 contezided that the açserted lapçe of administrative
supervisioii had brought about the lapse of the Mandate, but only as a
treaty or convention. Respondent then assumed, apparently, as the
1962 Judgment yointed out, and indeed, in fact, argued, and 1 quote
from the Judgment :
". . . that the righis and obligations under the Mandate in relation
to the administration of the territory of South West Africa being of
an objective character still exis.. .";
I have referred to this before-it is at pages332-333 of the 1gG2 Judg-
ment.
The proposition that the Mandate is a treaty or convention, being
common cause betkveen the Parties, did not arise pertinently for argu-
ment in the written pleadings or in the Oral Proceedings,as distinguished
from its continued existence asa treaty or a conventioii following the
dissolution of the League,
The 1962 Judgment held that the Mandate is a treaty or convention,
and that it survives as such. Respondent, nonetheleçs, now contends by ARGUMEXT OF MR. GROSS 129
bothas a treaty or convention, and in a "real", or "objective", or indeed
any other sense as well. Respondent, accordingly, repeats its rejected
contention as to the survival of the Mandate asa treaty, and reverses,
or repeals, its contentionas to the survival of the Mandate in a "real"
or "objective" sense. As1have said before, it matters littlefor the purpose
in this context whether such argument was made by Respondent as an
alternative argument or not.
Respondent's new form of argument no doubt is attributable to the
Court's holding in r962 that Article 7, the compromissory clause, has
survived with full force and effect. Respondent's present argument is, of
course, a new form of addressing itself to a basic issue previously before
the Court, and decided by it.
The Applicants submit respectfully that it should ml be presumed
that the Court would have reached a different conclusion had Re-
spondent's new form of argument been advanced to the Court at an
earlier stage.
The new form of argument is based upon factual and other considera-
tions ail of which were available to the Court, or known to it, in 1950
and again in 1962.Each tirne, the Court held that the Mandate had not
lapsed.
The Court, in 1962h ,eld that:
"The validity of Article 7, in the Court's view, was not affected
by the dissolution of the League, just as the Mandate as a whole
is still in force for the reasons stated above."(I.CJ. Reports1962,
P 335.)
Respondent's new formof argument, moreover, could not be sustained
unless the Court should find, both-
(1)that Article 6 and Article 7, paragraph 1, both totally lapsed as
a matter of law, rather than that they merely became inoperative, and
(2)that the 1962 Judgment was wrong in holding that the right of
judicial protection survived the demise of the League.
In other words, the logic of Respondent's contention leads to the
nothing, except that of accordmg to the Applicants the opportunitycided
of presenting to this honourable Court arguments conceming the inter-
pretation and application of a mandate which does not exist .
The essentiality of judicial protectionwas a major issue joined in the
preliminary objections phase of these proceedings. That the issue was
settled by the 1962 Judgment is conceded by Respondent, although the
Court's judgment is attributed, in Respondent's circumlocution, to "the
Majority Members".
Respondent admits that its arguments in support of the lapse of the
compromissory clause of Article 7, along with the Mandate: ".. .involve
a reconsideration of issues dealt wjth in the Preliminary Objections
proceedings ...".That is from page 174 (II)of the Counter-Mernorial,
Book II.
Although Respondent's argument in support of its second alternative
contention that the Mandate as a whole has lapsed proceeds from a
sound point of departure, that is, the nature, origin and purposes of the
mandates system, and draws the sound inference therefrom that inter-
national supervision was conceived as a basic obligation, asan essentialI3O SOUTH WEST AFRICA
Respondent's correct premises in thiç context would no doubt haveollowing
been Respondent's abandonment of its first alternative contention.
pe prernises which Respondent reserves exclusively for its second
alternative contention are decisively relevant to its first oneas ~vell.
Andthis appears clearly, in Ourrespectid view, from Kespondent's otvn
formulation of the matter, as follows, in its Rejoinder:
"... as soon as the premise is accepted or assumed that accounta-
bility is essential for the existence of the Mandate, then an enquiry
whether the Mandate could and did survive the dissolution of the
League cannot be divorced from an enquiry whether accountability,
asprescribed in the Mandate, could and did survive such dissolution:
the two aspects of the enquiry then fom one integral whole, and
neither aspect can be answered separately from the other ".
That is on page 74 of the Rejoinder, (V).
With this cogent formulation the Applicants express fullconcurrence.
The difficulty is that Respondent applies this formula only when it
suits its purpose to do so, thisto Say,in respect ofits second alternative
contention, whereas the Applicniits apply Respondent's formulation
without reserve.
Now, I turn, with your permission, &Ir.President, to the legal issues
involved in the replacement of the League by the United Nations. This
will be covered more fullyin Part C of this phase of thOra lroceedings,
and I would endeavour, for the sake of the Court's convenience, to
attempt to summarize them briefly at this point.
Mr. President, 1 have endeavoured to surnmarize the prernises and
contentions supporting the Applicants' submission that a duty to subrnit
to international supervision was embedded in the Covenant and in the
Mandate, as part of their essence, and that il must be presumed to
have been the common intention of the parties to those instruments that
international supervision should continue so long as the mandate itself
endures.
With your permission, Mr. President, I turn now to a brief summary
of the arguments, which will be more fully presented in Part C of this
cants' contention that the United Nations has replaced the LeagueApplias
the supervisory organ in terms of Article 6 and Article 7, paragraph I,
of the Mandate.
The Applicants' subrnissions in this respect refiect the law of the case
asdetermined by this honourable Court in the 1950 Advisory Opinion.
In that Opinion the Court held:
qualified to evercise the supervisory functions previously exercised
by the League of Nations with regard to the administration of the
Territory, anclthatthe Uiiion of South Africa is under an obligation
to submit to supervision and control of the General Assembly and
to render annual reports to it".
That is the end of the quote from page137of the I 50 Advisory Opinion.
as supervisory organ and whether Respondent had manifested its consent
to such replacement were fuïly discussed by Respondent in the 1962
proceedings. ARGUMENT OF MR. CROSS I3I
It was, of course, in support of this argument that Respondent adduced
its so-called "new fücts" contention to justify reversal of the 1950
Advisory Opinion.
The Court in 1962 did not' expressly hold that the United Nations
General Assembly has replaced the League Council as the supervisory
organ, inasmuch as that issue did not anse directly and pertinently for
explicit decision in that form. However, the Court's holding, and 1 quote,
"that the Mandate as a whole is still in force", coupled with its finding
that "al1 important facts were stated or referred to in the proceedings
before the Court in 1950" renders it clear beyond doubt, in the Appli-
cants' respectful submission, that the Court in 1962, at the minimum,
rcaffirmed the vationaie of the 1950 Advisory Opinion in respect of the
survival of Article 6 and of Article 7, paragraph I, along with the in-
separably interrelated provision forjudicial protection accorded under
Article 7,the second paragraph, of the Mandate.
Under Respondent 'spremise, that is, that of a lirnited original obliga-
tion to report to aspecific supeBrisory organ, the disappearance of such
an organ without more would necessarily have ended the obligation.
It would legally follow from such a premise that a wholly new under-
taking would have been necessary to amend the original agreement in
a material and, indeed, essential respect. It likewise would follow that
an amendment of such a nature would have to be established by evidence
so unequivocally clear as to permit of no other reasonable conclusion.
These propositions, which are laboured at some length in Respondent's
pleadings, are quite self-evident in the Applicants' respectful view.The
difficulty with these propositions, on the basis ofthe Applicants' major pre-
mises, is that they are irrelevant because they proceed from a falsepremise
regardinrrthe essential nature of the Mandate which isbefore the Court.
In thelight of the irrelevance of these propositions,inthe Applicants'
point of view, the Applicants do notthink itnecessary tomake extensive
and detailed argui6nt to support the conclusion that the events and
transactions during the relevant period do indeed permit of no other
conclusion than that, had a wholly new agreement been necessary to
amend the Mandate in an essential respect at that time, such a new
agreement was, in fact, concluded among al1 the parties to those trans-
actions and events. Although the Applicants do not deem it necessary
or appropriate to make an extensive argument to support such a proposi-
tion, because of our view of the correct major prernise which we submit
to the Court and upon which we base our case and rely,it would never-
theless be demonstrable in our view that such a conclusion, even one
based upon a false premise of the necessity for explicit showing of an
ünequivocally clear, affirmative agreement to accept the supervision of
the new organ, and al1these elements, would appear to be consistent as
a conclusion with what this honourable Court had to Say in the 1950
Advisory Opinion concerning these same ewnts and transactions; in
particular, the Court's explicit finding that the Respondent's "declara-
tions constitute recognitionbÿ the Union Govemment of the continuance
of its obhgations under the Mandate ., ."as we11 as the Court's finding
in 1950 that the League resolution of 18 April 1946, in favour of which
Respondent voted, and 1 quote again from the Opinion, "presupposes
that the supervisory functions exercised by the League would be taken
over by the United Nations". And that is at page 137 of the 1950 Ad-
visory Opinion.132 SOUTH WEST AFRICA
However, Mr. President, whatever conclusions might be reached in
respect of the degree orquality of truth necessary to demonstrate a new
amendment under the false premise from which Respondent proceeds,
a different set of considerations, we submit,is applicable if one proceeds
from the prernise that the obligation of international accountabilitp is
an essential and integral element of the Mandate and that it must
survive so Iong as the Mandate itself endures. It would follow from thiç
premise, upon which the Applicants rest, that the only remaining
question-although an important one indeed-would be whether the
function of supervision passed to the nearest equivalent of the League,
to wit, the United Nations. If not, these Articles would not have lapsed,
but would have become inoperative for lack of a supervisory organ with
capacity to replace the League Council. In such a case, and pending
establishment of an international administrative organ, if any, the only
continuing method for insunng international supervision over the sacred
trust would be that of judicial protection, as a first and only recourse,
rather than asthe "final bulwark".
The answer to the question whether Articles 6 and 7, paragraph I,
of the IlIsndate became inoperable, or kvhether the United Nations
replaced the League as the supervisory organ, hinges upon both a
legal analysis of the "international niles" regulating the Mandate, and
upon ascertainment of the intentions of the parties with respect to the
events and transactions which transpired during the period wheii the
League was dissolved and the United Nations began operatiom.
With respect to the international rules regulating the Mandate, the
United Nations acquired title to the League's supervisory power overhe
mandates by virtue of some general international legal principle of
devolution or succession, aliunde the mandate.
It is tme that the phrase "automatic succession" iç employed on one
occasion in the Applicants' written pleadings, and that is in the written
observations. The Applicants regret any misleading impression which
may have been created by the use of that phrase. As Respondent itself
oints out, no concept of "legal succession" was advanced in the Oral
broceedings by the Applicants. nor in the Applicants' Reply and, as
Respondent correctly says, any suggestion of automatic succession is,
indeed, "largely academic". (V,p. 154.)
1 welcome this opportunity to clear up this matter, lest it remain as a
source of confusion or doubt to this hanourable Court.
Reference to "succession" in the Applicants' pleadings is intended
to refer to the fact that therwas no mechanical or operational problem
ofsuccession. The terms "replacement" or "substitution", might, indeed.
have better conveyed the intended sense, and the Applicants wouId have
preferred to have used them and regret that they did not.
The Applicants, with respect, fuliy associate themselves with the
declaration made by President Winiarski in connection with the 1956
Advisory Opinion. Inthat declaration, the learned Judge commented,
inter dia:
".. .1 think that asthe Opinion of 19jo was not based on the idea
of the United Nations as a successor in title ofthe Leagof Nations,
the question of a devolution of the powers of the Council of the
League of Nations to the General Assembly does not arise. I am in
agreement with the minority opinion in considering that the whole ABGUMEKT OF MR. GROSS I33
structure of the Opinion of 1950 was founded on the objective
elementsof the situation which arose as a result of the disappearance
of the League of Nations, and that that Opinion found in the
General Assembly the organ qualified to exercise those functions
which could not be allowed to go by default." (I.C.j.Reporls1956,
P.33.)
The Applicants also subrnit, with,respect, that the last-quoted clause
of President Winiarski's opinion-"which could not be allowed to go by
defaultU-is of significance in dispelling any doubt as to the meaning
of the Court's finding in th1950 Advisory Opinion that :
"To retain the rights derived from the Mandate and to deny the
obligations thereunder could not be justified.(1.CJ. Refiorls1950,
P.133.1
The minority opinioninthe 1956Opinion,to which President Winiarski
referred, was that of the learned Judges Badawi, Basdevant, Hsu Mo,
Armand-U on, andMorenoQuintana. In that opinion,the learned Judges
commente f asfollows,inter alia:
"The spirit of the Opinion [Le., the 1950 Opinion] thus fully
confirms what is expressed by its letter: the continuity of the
Mandate and of the international obligations of the Union of South
Afnca which result therefrom." (T.C.J. Refiorts1956 p,.65.)
"The Opinion does not base itself on the idea of succession,on the
idea of the transfer of powers.
The Court, unattracted by the ideaofsuccession,of thetransfer of
powers, based itself on the objective elements of the situation-th8
importance of international supervision under the Mandates System
as well açthe provisions of the Charter of the United Nations."
(Ibid.p. 66).
And, as was said by Judge Bustama.nte, in his separate opinion in
1962 :
"Following the scheme of al1conventions, in the Mandate agree-
ments provision is made in such a way as to guarantee the function-
ing of the system during the whole period of itsduration." (I.C.J.
Re+orts1962 , .382.)
Evaluation and appreciation of the events, transactions and under-
takings which occurred in 1946, and during this periad, accordingly,
must proceed from this premise. Seen in the light of this prernise of the
continuity of the Mandate, and of the international obligations which
result therefrorn, and the guarantee of the functioning of this system
during the whole period of its duration, it becomes obvious, in the
Applicants' respectful submiççion, that a11the parties, including the
Respondent, the League of Nations, the United Nations, acted in a
manner entirely conçistently with the "objective elements ofthe situation
which arose as a result of the disappearance of the League of Nations",
in the words of the minority opinion, from which I have quoted, and of
President FViniarski'sopinion, as 1 understand it.
In Part B of this hase of the Oral Proceedings,immediately following,
rny colleague, Mr. hoore, will prerent to the Court the relevant events
and undertakings which took place during the period when the United
Nations Charter was formulated, the League of Nations was dissolved,
and the United Nations commenced operations.I34 SOUTH WEST AFRICA
In the light of these events and undertakings, it will be obvious, in
Our respectful submission, that the League of Nations took al1 action
which was appropriate under the circumstances, to make clear the
intention of the Members, including the Parties to these proceedings,
that despite its dissolution the obligations under the Mandate would
continue-
"... until other arrangements have been agreed between the United
Nations and the respective mandatory Powers". (Resolution of the
League of Nations of 18Apnl1946; quoted in 1,pp. 42-43.)
annexspthe Territory, manifested its intention to seekagreementwith the
United Nations to such an arrangement. Respondent voted in favour
of the 18 Aprii 1946resolution, thereby acquiescing in what the Court
termed a presupposition of the League that the United Nations would
take over the supervisoryfunctions of the Mandate, for what was, indeed,
hoped would be a short, transitional period, during which arrangements
would be cornpletedfortrusteeships under the plan of the United Nations
Charter.
In the event, the expectation of the tmsteeship systern becorning
operative was fulfilled,with the sole and singleexception ofthe Mandate
for South West Africa. Allother mandated territories, without exception,
either became independent, or were pIaced under truçteeship, so far as
the Applicants are aware.
Pursuant to the 18 April 1946 resolution, to which 1 have referred,
for which Respondent voted, Respondent did, in fact, seek thereafter
to make "other arrangements" with the United Nations, thus recognizing
the competence of thelatter, in the premises. No agreement, however, has
been reached. For its part, the United Nations affirmed its competence
by resolution 65(1),of r4December 1946(I.C.J. Re$orts1950a ,t p.143).
Hence, what was contemplated and hoped for as a brief, transitional
period, during which the mandate obligations would continue untiI
replaced by other agreed arrangements, haç extended itself into one of
long duration, and continues to exist.
The validity of the foregoing propositions, and the legal conclusions
which, in our view, are inescapably to be derived therefrom, have been
affirmed by this honourable Court. They constitute the reasons for which
the Court, in itç 1950Advisory Opinion, concluded, in the words of the
Court :
". ,.thzt the General Assembly of the United Nations is legaily
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 of South Africa isunder an obligation
to submit to supervision and control of the Generd Assernbly and
to render annual reports to it". (I.C.]. RefiorI950, p. 137.)
hlr. President, in the light of the çame events and transactions,
including statements made and actions taken by Respondent, this
honourable Court concluded, in its 1962 Judgrnent, that:
ment of South Africa of the continuance of its obligations under the
Mandate for South West Africa, includin Article 7, after the
dissolution of the League of Nations." (I.c.~ Rcfiottr1962. p. 340.) ARGUMENT OF MR. CROSS 135
Mr. President, and honourable Members of the Court, it seems, with
respect, that there is an inescapable implication in the phrase "including
Article7", andthe implication must be, it seerns to us, that the "normal
securities",in the words of the Court, iikewise continued.
Xow 1 turn very briefly, hlr. President, with your permission, to the
asserted violations ofrticIe 4 and Article z,paragraph I, ofthe Nandate.
The Applicants will deal at the Iater, if 1may cal1it, fact stage of these
proceedings, with the issues presented by Respondent's asserted viola-
tions of Article 4 of the Mandate, the so-called "rniIitary clause", and
ofArticle 2,paragraph r,of the Mandate, which, together with Article 22
of the Covenant, prohibits Respondent from treating the Territory in a
rnanner inconsistent with its international status, including impediment
of opportunities for self-determination by the inhabitants of the Teni-
tory. It does appear pertinent, however, at this legal stage of these
proceedings to note that the controversy placed before the Court with
respect to factual issues involved in the so-cailed "rnilitary clause" of
Article 4, are before the Court as a resuit of the lack, or default, of
administrative supervisory authority, which would be in a position to
ascertain the true state of affairs. The controversy thus placed before
the Court as to the accuracy, or othenvise, of relevant facts wodd not,
and should not, have been necessary if administrative supervisory
rnachinery were operating in accordance with the intentions of the
authors of the mandates system and the international niles regulating
the Mandate.
The facts asserted by the Applicants with respect to this matter
must, under the circurnstances, be asserted on what would be called,
in jurisdictions with wkich 1 am familiar, information and belief. It is
submitted, therefore, that the very fact that there is a controversy
regarding facts, as to which there should be no controversy necessary, is
in itself confirmatory of the essentiality of administrative supervision
in the scheme of the Mandate.
31r.President, and Members of this honoarable Court, 1 have now
concluded Part A ofthis phase of the Oral Proceedings,consisting of a
summery presentation of legal issues pertinent to Applicants' several
submissions, as set out in the Mernorials at 1, pages 197-198.
As I have stated earlier, Air. President, with your permission, this is
history of relevant events and transactions; Part C,which will deal with
and Part D, which will deal with legal issues relevant to obligationsvision,
toward the inhabitants of the Territory, and corresponding to the sacred
trust of civilization, as referred to in Articl22 of the Covenant of the
League of Nations.
1 beg leave, Mr. President, to introduce my colleague, Mr. Edward
R. Moore, who will present to the honourable Court, if it please the
Cuurt, Part B of this phase of the Orai Proceedings, to wit, the history
of events and transactions relevant to a full cons~deration of the legal
issues joined in the cases at bar. 4. ARGUMENT OF MR. MOORE
Mr. President and Membersof the honourable Court, pIeasebe assured
of my appreciation of the great honour of this opportunity to appear
before you once again to assist in the presentation of Applicants' argu-
ments in the South West Africa cases.
PART B
Mr. President, çince so much of Applicants' dispute with Respondent
turns on a proper evaluation and appreciation of the origin and contents
ofthe mandates systern, I trust you willdeem it appropriateat this point
to review the historical background, with part~cular reference to the
basic nature of the mandate agreement for South West Africa and to
Article 22 of the Covenant of the League of Nations.
Court, both in the 1950Advisory Opinion and in the 1962 Judgrnent,rable
comrnenced its analysis with a review of the nature of the mandates
system. Applicants also have preçented an analysis of the nature of the
mandates system prior to setting out an evaluation of Respondent's
obligations thereunder.
This isimportant because, in our submission, it is not possible to reach
a proper evaluation and appreciation of Respondent's lega1obligations
under the mandate agreement without fust understanding the essential
nature of the mandate system. Ariyof the several obligations contained
in the mandate agreement for South West Afnca is best understood in
the lightof the basic nature of the mandates system as a whole.
However, Respondent's approach appears to be based on an cntirely
different premise. In an atternpt to limit the scofethe several mandate
obligations, Rcspondent has tended to begin with the wording of the
particular obIiations it assumed with respect to SouthWest Africa, and
toinducethere from its versionof the basicnature of the mandates system.
Thus, Mr. President, to provide one illustrative euample:Respondent ,
after citing the provisions of the Covenant and the mandate agreement
for South West Africa with regard to the obligations of international
accountabiiity, concluded that the "content" of the obligation was not
an obligation to submit generally to "international supervision" or to
rather an obligation to-rnational community", or the like, but waç
"report and account to a specificorgan of a specificorganization
of ceduin oufthe nations of the world, narnely,the Councd of the
Leagueof Nations". (Counter-IiIemorial,ïi, p.119; italics in original
text.)
This concentration on the form, rather than the substance and basic
nature of the mandates system, has in fact led to the present dispute
between the Respondent and the Applicants, and to the Respondent's
differences with the United Nations. ARGUSIENT OF MR. MOORE 137
In an attempt, then, to clarify still further the basic and essential
natureof the mandates system, 1 should like to turn, Mr. President and
Members of the Court, to a review of the essential features of that
.system.
Theauthority of Respondent in the Mandated Territory of South West
Africa derived from the several international agreements and treaties
rvhich becarne effective immediately after the First World War.
It will be recalled that purçuant to Articles 118 and 119 of the Treaty
of Versailles,Germany renounced ai!ofher overseas possessions,including
German South West Africa,in favour of the Principal Allied andAçso-
ciated Powers.
The proper disposition of the former German colonies was a source
of much debate among the Principal Allied and Associated Powers, while
the solution actually arrived at, and the significance thereof, constitute
an important source of the present dispute between the Applicants and
.the Respondent.
was support for territorial annexation, it wasequall clear that opposition
to such a viewpoint, even with regard to al1 Or the former German
colonies, was preponderant.
Of grcat importance inthisconnection was the presentation by Presi-
dent Wilson, on 8 January 19r8,of his Foiirteen Points. Point No.waç
as folio~v:
"A free, open-minded and absolutely impartial adjustment of al1
colonial claimsbased upon a strict observance of the principle that
in determining all such questions of sovereignty the interests of the
populations concerned must have equal weight with the equitable
in Miller, D. H.ThenDrafiz'7ot theCoeienad (1928)eV,ol.1,p.101.)ed
On 29 October 19x8 the Cobb-Lippmann Memorandumwas published
elaborating President Wilson's Fourteen Points, of which the fiftwaç
explained, in part, by C.Seymour in his publication entitled TheI~limale
Papers O/ ColoneEHouseas follows :
"It would seem as if the principle involved in this proposition
iç that a colonial power acts not asowner of its colonies, but as
trustee of the nativeand forthe interestof the society of nations,
that the terms on which the colonial administration is conducted
are a matter of international concern and may legitirnately be the
subject of international inquiry and that the peace conference may,
therefore, mite acode of colonial conduct binding on al1 colonial
powers." (Seymour (ed.), The Intimate Papers of Colonel Wouse
(I~zG-I~z~),Vol. IV, pp. 194-195.)
AIr. President, if thiswas true of colonies, it applieda fortio oi
mandated temtories.
On 7 May 1919, the Principal Allied and Associated Powers, acting
through the instrumentality of the Supreme War Council, formally
decided that the territory of German South ilTestAfrica should be held
under mandate by the Union of South Africa.
On 27 June 1919, draft mandate instruments prepared by Lord
Milner were circulated and discussed among the Principal Aiiied and
Associated Powers. It was then agreed thaa mandate commissionshould
be established for the purpose of draftithe bal mandate agreements.13~ SOUTH WEST AFRICA
The commission \vas to consist of one representative from each of the
five PrincipalAllied and Associated Powers.
Although Article 22 of the Covenant of the League of Nations became
effective onIO January 1920,it was not until the end of the year1920
that the mandates system became effective. A draft mandate for Gerrnan
South West Africa,prepared by the British Govemment and conferring
the Mandate upon His Britannic Majesty on behalfof the Union Govern-
ment, was submitted to the Council of the League on 14December 1920
and was confirmed by the Council on 17 December of the same year.
Mr. President, 1 will nokv address myself to the importance of the
principle of non-annexation.
[Public Jzeavinof rg March19651
Mr. President, with your permission I will now continue discussion
of Part B of this phase of the Oral Proceedings.
Yesterday 1 began by stressing the necessity to this case of a clear
understanding of the basic nature of tmandates system, and I endeav-
oured to show that the ovenvhelming viewpoint at the Paris Peace
Conference was against amexation of territones. 1 will now address
myself to the importance of the principle of non-annexation.
In the Advisory Opinion of Ir July 1950thishonourable Court stated:
"When a decision waç to be taken with regard to the future of
these possessions as well asof other temtories which, as a conse-
quence ofthe war of1914-191 had,ceased to be under the sovereign-
ty of the States which formerly governed thern, and which were
inhabited by peoples not yet able to assumea full mesure ofself-
governrnent, two principles were considered to be of paramount
importance: the principle of non-annexation and the principle that
the ~veI1-beiand development of çuch peoples form 'asacred trust
of civilization'.".CJ. Reports1950, p. 131.)
The Court in 1950went on to Saythat for purposes of-
"giving practical effect to these principles, an international régime,
the Mandates System, was created by Article22 of the Covenant of
the League of Nations". (Ibid.)
It should be noted that the principle of non-aniiexation had broad
support dunng the penod prior to the Paris Peace Conference.Reference
ha aiready been made to the fifth of President Wilson's Fourteen Points,
and the interpretation thereof by the Cobb-Lippmann Memorandum.
Covenant of the League of Nations was a meeting of the Imperia1 ]Vare
Cabinet on 28 November 1918A .t this meeting it was generdlllyagreed
that as part of the general mandates scheme-
"there would be a right of appeal from the mandatory power to the
League of Nations on the part of anyone who considered himself
ili-treateor claimed that the conditions set down by the League
of Nations were not being fulfilled. Subject to such an appeal,
which might involve the League of Nations withdrawing the mandate
in the case of deliberate and consistent violation of its conditions,
the mandate would be continuous until such tirne asthe inhabitants
of the country themselves were fit for self-government." (Lloyd
George,Tb TrutlaAbout the Peace Treatles(rg38),Vol. 1, p118.) ARGUMENT OF MR. MOORE I39
It can be truthfully asserted that there was a "compromise" on the
issue of annexation, but it is also apparent, even obvious, that the
solution fînally accepted was a "compromise" only in so far as there was
no provision for the "open door" in the "C"Mandate provisions even-
tually adopted asArticle 22, paragraph 6, of the Covenant.
Professor Quincy Wright has summarized the so-called "compromise"
reached by the Council of Ten as follows:
"President Wilson had thus prevented annexation, got the prin-
ciple of mandates accepted for al1 the temtories, and postponed
final allocation of mandates until the League of Nations was in
operation, though he had been obliged to recognize the pnor claim
of the Occupying Powers to receive mandates, the special claim of
the Dominion in respect to the open door and of France in respect
to recruiting natives." (Wright, Mandates Under ihe League of
Nations (1930))p. 41.)
There is no indication by this leading scholar that the basic principle
of non-annexation was compromised in any way; and it can only be
concluded from his and other publications on this point that Applicants'
statement in the Mernorials that the mandates system represents "a
victory for the opponents of the principle of annexation" is entirely
correct.
Mr. President, as stated by Applicants in the Reply, the non-annexa-
tion principle underlying the mandates system-
"is a negative form of expressing the affirmative objective of
developing the Mandates, as rapidly aspossible, towardssovereignty
of their own". (Reply, IV, p. 238.)
Respondent argues that is has acknowledged the principle of self-
determination, but states that-
"Even fullannexation of a territory, and the exercise of complete
sovereigntyover it (and a fortiori any situation faiiing short thereof,
such as one 'not far removed from annexation') would clearly not be
inconsistent with the recognition of a duty, legal or otheniise, to
lead its inhabitants towards self-determination, self-government or
even independence." (Rejoinder, V. pp. 17-18.)
Applicants do not deny that at any given point in time, the exercise
of complete sovereignty over a territory may not necessarily be in-
consistent with the recognition of a duty to lead the inhabitants of that
territory towards self-government and self-determination. The question,
however, is not one oftheoretical recognition of a duty, but the practical
steps to be taken to carry out that duty.
As the record herein makes clear, after the First World War Respon-
dent requested permission to annex South West Afnca, but was turned
down by the Paris Peace Conference. In 1935 Respondent put before
the Permanent Alandates Commissiona proposal for the incorporationof
South West Africa as a fifth province of the Union, but when met with
a critical attitude by most of the members of the Commission, decided
not to go ahead with ils plan for incorporation.
In 1946Respondent once more placed a proposed plan of incorporation
before the "competent international organe-the "competent inter-
national organ" isa quotation of their very words, and in thiscase they
referred to the General Assembly of the United Nations. AgainRespon-
dent's request was turned down. Ever since the refusal of the GeneralI40 SOUTH WEST AFRICA
Assemblyin 1946to accede to the request for incorporation, Respondent
has carried out a series of steps each designed to bring the Temtory
of South West Africa, to use Respondent's phrase again, into "closer
association" with the Republic of South Africa. Indeed, Respondent has
argued that-
"the interests of the Territory and of the inhabitants ma? at
particular stages be best setved-as has in fact been the case
regarding South West Africa-by progressive steps of closerassocia-
tion". (Counter-Mernorial,IV, p.69.)
Thus, Mr. President, Respondent's position appears to be that so
long as it says that it recognizes a duty to prepare the inhabitants of
South West Afnca for self-government andself-determination, there can
be no violation of the mandate obligations even if, after 40 years of
mandatory administration, Respondent is still carrying out "progressive
steps of closer asçociation".
The historical record demonstratcs the importance which the founders
of the mandates system attached to the principle of self-determination.
Thus, at the 28 November 1918 meeting of the Imperia1War Cabinet,
itwas generally agreedthat-
"the mandate wodd be continuous [subject to appeal in case of il1
treatment] until such time as the inhabitants of the countries
themselves were fit for self-government". (Lloyd George, op. cd.,
Vol. 1, p118.)
In his pamphlet entitled "The League of Nations-A Practical
Suggestion" General Smuts endorsed the principle of "self-determination
or the consent of the governed ta their fàrm of government" (Miller,
D. H., The Drafting of theCovenant (I~zS )o,l. II, 27), although he
excluded the German colonies in Africa and the Pacific from his plan.
General Smuts had conceived of the mandates system as,to use bis
words, a "temporary expedient" (see hliller,op. cit.p. 36) and he did
so with the strong implication that the syst\vas to bea stepping stone
towards self-government and self-detemination.
President Wilson in his Second Paris Draft of20 January 1919added
the followingprovision: in lis words-
"The ob'ect of ali such tutelary oversight and administration on
the partO 1the League of Nations shall beto build up in as short
time aspossibleout of the people or territory under its guardiançhip
a poiiticaunit which can take charge of its own affairs, determine
its own connections, and choose its own policies. The League may
at any time release such a people or a territory from tutelage and
consent to its being set uasan independent unit." (Millerop. cit.,
P 104.)
This statement of President Wilson demonstrates clearly horv far
removed was his conception of self-determination from the conception
now held by Respondent.Thephrase "as short time as possible" indicates
the view of President Wilson that somethin more than "progressive
steps of closer association" would be requirf from mandatory powers
after decades of mandatory administration. The phrase"a political unit"
indicates his viewthatthe concept ofself-government and self-determina-
tion meant the establishment of a political unit, and not severaf political
units. ARGUMENT OF MR. MOORE I4*
The cited paragraph from Prcsident Wilson's Second Paris Draft was
carried intact into Wilson's Third Paris Draft. He expressed his view
in the Councii of Ten on27 January Igrg as follows:
"IVhere people and terntories were undeveloped [the blandatory
Yo~vcrshould] assume their development so that, when the time
came, their own interests, asthey saw them, mi ht qualify them
to express a wish asto their ultimate relation...9 he fundamental
idea wouId be that the world waç acting as trustee through a
mandatory, and would be in charge of the whole administr t' n ion
until the day when the tme wishes of the inhabitants could be
ascertained." ([191 9 ]reignRelationsof the UfiitedStates, Vol. III
(Paris Peace Conference), p. 741.)
The words "asthey saw them" in this passage again point to the
discrepancy between the concept of self-determination asunderstood by
the founders of the mandates system andas construed by Respondent.
As discussed in the Reply, an indication that the framers of Artic22
of the Covenant viewed self-determination ofthe inhabitants of mandated
territories as important, and eventual self-government as a necessary
development, is the presence of the word "yet" in Arti22, paragraph 1.
The paragraph reads: "Territories ...which are inhabited by peoples
notyelableto stand by themselves under the strenuous conditions of the
modern world ..."
Conference was summarized by Hall, a leading authority on the mandates
system, as follows:
"As conceived by the Paris Peace Conference, the Mandates
System was not merely an enpedient limited to a particular situa-
tion; it \vas also thought oas something essentially ternporary in
character. The assumption was that it would corne to an end ivhen
the various mandated territories were able to 'stand by themselves'."
(Hall, H. D., Ma?dales, Dependertciesa& Trzrsteeship(1948)p. 31.)
Another development of great significance waç the refusa1 of the
hiilner Commission to adopt a proposed article for "C"Mandates which
provides that :
"If it should occur that the natives of the mandated territory
express the desire to be united to the mandatory power and the
Alliedand Associated Powers consider that this proposa1 is made
ingood faithand with the approval of the majorityofthe population
and so asto favour its best interests, the Ailied and Associated
Govemments may accede to this request. In this case, the mandated
territory shall be incorporated into the Mandatory Power to al1
useful ends, and the administration established by the present act
shall cease to exist." (ConférencedelaPais, 19x9-192 R0ecueitdes
Actes dela Conference,Partie VI, p. 356.)
This proposed amendment was discussed at a meeting of the Milner
Commission on ro July 1919 M.. Simon stated during the discussion
that he felt this article was dangerous in that, to use his words, "it would
be pure mockery to permit natives to express their desideraifthey are
in conformity with those of the Mandatory Power". (Ibidp ..,354.)
Upon his suggestion, the articlwas dropped. There was no later discus-
sion of re-insertioof this provision, eithcr by the Milner Commission,Iq2 SOUTH WEST AFRICA
or during later discussionç arnong the Principal Allied and Associated
Powers and in the Council of the League of Kations. As is obvious from
the text, this article would have made another significant distinction
between "B" and "C"Mandates, and its rejection may be interpreted as
evidence of the tnie nature of the concept of self-determination asvielved
by the founders of tlie mandates system.
Mr. President, it is clear, in Applicants' submission, that the basic
principle of self-determination includes two necessary elements: first,
an independent political unit; and second, the free choice of the in-
habitants.
With your permission, I should Liketo turn now to the relevant
historical background with specific regard to the basic obligations of
international accountability contained in Article 22 of the Cotanant of
the League of Nations and in the mandate agreement for South West
Africa.
As 1have already indicated, Xir. President and Members of the Court,
the fifth of President Wilson's Fourteen Points of 8 January 1918
provided a forrn of international control. As elaborated in the Cobb-
Lippmann 3iemorandum of October 1918 this was to mean that "a colo-
nial power acts not as owner of its colony, but as true trustee for the
natives and for the interests of the society of nations, that the terms on
which the colonial administration is conducted are a matter of inter-
national concern and rnay legitirnately be the subject of international
inquiry". (Seymour (ed.), The Intimate Pupers of ColonelHouse (1g2G-
1928), Vol. IV, p. 195.)
The pre-Conference evaluation of the mandates system shows clearly
the interpretation projected by the writers and planners concerned with
it. Thus, P. H. Kerr, of the Round Table, stated that the Mandatory
Power "ought to govern the dependency as trustees for al1 rnankind".
(Grant, A. J., Introductionto the Study of InternationalRelatiopts(I~IG),
P. 179.)
The New Stalesmanput the "sacred trust" argument as follows:
"If the Allies determine at the end of the war to retain control
of the German colonies they might and ought to give a solernn
undertaking to hold those territories in trust for civilization, to treat
the interests of the natives therein as paramount . .." (New States-
man, VII, p.583 (1916).)
Even General Smuts, who felt that the proposed mandates sptem
should not be applicable to the Territory of South West Africa, felt that
"the disposa1of these coloniesshould be decided on the principles which
President Wilson has laid down in the 13th of his celebrated fourteen
points". (Xiller,op. cit.Vol. II,p. 28.)
Perhaps the most succinct statement of the nature of the obligation
of international accountability was made by Presideiit Wilson himself.
To use his words. "the administration will be so rnuch in the vieurof
the world that unfair processes could not be successfully attempted".
(1Vritten Statement of the United States before the International
Court of Justice: (rgjo)I.C. J. IJleadings,Oral Arguments,Doc.rime?$ts,
P 107.)
Obligations of international accountability could only be perforrned
through an international body. Thus, it was natural that the discussions
concerning the projected League of Nations in turn provided much of the ARGUMENT OF MR. MOORE I43
opportunity for suggestions as to possible means of international super-
vision by the League of mandated areas.
The result of this was that, although the writers, commentators, and
statesmen differed on the technicalform that international supervision
of mandated areas would take, there was unanimous agreement on the
desirability and necessity of international supervision of mandatedareas,
and the corresponding obligation of international accountability.
For example, J. S. Hobson, a member of the group contributing to
the Round Table,advocated a "Standing International Council" which
would select States to receive the right to administer areas liberated
from the imperial control of Turkey or Gemany, provided that the
chosen States did so in a manner not prejudicial to the interests of other
nations. (Hobson, J. S., TowardsInterraalionalGoverlamelz(t1915)~p.141.)
P. H. Kerr soon cxtended the idea to the protection of the well-being
of the inhabitants of the territories, stating that the ruiing powers "are
to govern the dependency as trustees for al1mankind". (Grant, op. nt.,
P 179.)
As the Peace Conference drew near, and as proposais for a League of
Nations grew more precise and detailed, it was natural thatthe founders
of the League should conceive of international supervision and inter-
, national accountability as duties to be carried out through the instm-
mentality of the projected League. Thus, the members of the Round Tabb
published in the December 1918 issue an article on the German colonies
which proposed that supervision and ultimate control of mandated
areas be placed in the hands of the League. (Roirnd Table, IX, pp. 1-47.
at p. 27.)
Shortly thereafter, General Smuts devotcd a major portion of his
publication A PracticalSuggestion to the details of the mandates system
which was to be based on the principles of no annexations and of self-
determination. His basic thesis wa~,in his words, that "any authority,
control or administration which may be necessary in respect of these
territories and peoples, other than their own self-determined autonomy,
shall be the exclusive function of and shall be vested in the League of
Nations and exercised by or on behalf of it". (Miller,op. cil., Vol.II,
P.Thesubstance of these provisions was taken by Smuts from the Roumi
Table article already cited, where provision for both international
accountability and the protection of inhabitants were clearly spelled out,
jncluding the ultimate nght of retraction and transfer ofthe mandate
by the international organization.
The broad mandates system embodied in Smuts' proposal was taken
up almost intact by President Wilson in the first two Draft Covenants
he wrote after reaching Pans. Wilson envisaged even stronger inte?-
tional control of the mandates system,and he offered a provision permit-
ting the League "at any time" to "release such a people or territory [rom
tutelage and consent to its bcing setup as an independent unit". (Ibid.,
P 104.1
Hence, Mr. President, 1 think it clear that throughout the pre-con-
ference evolution of the mandates system, the concept of international
supervision of the mandatory's execution of the mandates was dominant.
In the actual drafting of Article 22 at the Conference, this concept
remained of central importance.
That the founders of the mandates syçtem, and the drafters of Article144 SOUTH WEST AFRICA
22 of the Covenant of the League of Wations were more concerned with
the general obligations of international accountability than with the
precise organ of the League to which the mandatory pourers would
report, may be seen frorn the history surrounding the adoption of
Article 22, paragraph g, of the Covenant of the League. This article, it
will be recalled, states that:
examine the annual report of the Mandatory and to advise thed
Council on al1matters relating to the observance of the Mandates."
The idea of a permanent Commission first emerged in the British "Draft
Convention" of 24 January. However, it was dropped from the Hankey-
Latham draft of 28 January. (Scott, E., Oficial Hislory ofAustralia in
the War of1914-191 (8938).Vol. XI, pp. 781-783.)
The Hankey-Latham draft provided simply that "in every case of
mandate, the mandatory State shall render to the League of Nations
an annual report in reference to the territory committed to its charge".
(Miller,op .it.Vol. 1.p. 110.)
This jsjmportant, MT. President and Mernbers of the Court, because
the Hankey-Latham draft was adopted aimost verbatim as Article 22
of the League Covenant. A statement of the nature and principles of the .
proposed mandates systern, the Hankeÿ-Latham draft was primarily
concerned with the general legal obligations of mandatory powers, and
not the precise form or technical body through which the obligations of
international accountability would be camed out. In short, the draft
was more concerned with the nature of the international obligations
undertaken by mandatory powers, rather than the precise form and
details of those obligations.
However, President Wilson, evidently aware of the illogic of having
no officia1body to receive and examine the annual report, stated in the
Council of Ten on 30January, that "tlierernuçt be a responsible body...
to hear the self-expression" of the people under tutelage. ([191g] Foreign
Relations ofthe Unite dtates,Vol. III (Paris Peace Conference), pp.788-
789.)
Thereafter, General Smuts submitted a draft of Articl22,paragraph 9,
to the League Commission on 8 February, and the clause was retained
without change down to the final adoption of the Covenant on 28 April.
(Miller,op. cii., Vol. II, pp. 272, 274-275.)
It seernç fair, therefore, to conclude that the Hankey-Latham draft,
in so faraç it established a mandates system \vithout a specific League
organ to oversee the workings of that system, was rejected for its im-
precision. However, it is apparent that the primary concern of the
founders of the mandates system kvas the obligation of international
which the obligations would be carried out.ould spell out the rnsnner in
report is,of course, at the very heart ofthe mandates systern. Asanalysed
by one leading authority on the mandates system, "the annual reports
of the mandatory powers and their csarnination by the Commission were
the heart of the mandates system". (Hall, op.cit.,p. 186.)
The idea of annual reports from colonial areas was a long-established
practice on the national Levelby the middle of the nineteenth century,
and the practice mas discussed in the international realrn at the Congress ARGUMENT OF MR. MOORE I45
of Vienna in 1815 and again at the Brussels African Conference in1890.
ln his A PracticalSuggestion, General Smuts included a reference to
"periodic reports from the Mandatory (sic)State", although he did not
include siich a stipulation ihisfinal recommendation. (Miller, O+.ci$.,
vol. II, p32.)
The British "Draft Convention" of 24 January provided for annual
reports from mandatories of both "vested" territories and "assisted"
States. (Iililoer.cd.,Vol. 1,p. 107. The provision in its frnd forwas
included in thefiankey-Latham draft of 28 January.
Council of Ten, or the League Commission. Thus, the annual reporthe
provision, generally recognized as constituting a crucial means of main-
taining international control over the exercise of the mandate, was never
a source of debate during the drafting of Article 22 of the League
Covenant.
I'et it is apparent that the provision for an annuai repowaç consid-
ered of the most crucial importance by the founders of the mandates
system. The report submitted by the Belpan representative to the
League Council, &. Hymans, and later unanimously adopted by the
Council,rendered clear the broad scope ofthe annual report requirement:
"1s the Council to content itself with ascertaining that the
mandatory Poïver has remained within the lirnits of the powers
which were conferred upon it, or is it to ascertain also whether the
mandatory Power has made a good use of these powers, and whether
this administration has conforrned to the interests of the Native
population?
It appears tome that the wider interpretation shouldbe adopted.
Paragraphs I and z of Article zz have indicated the spirit which
should inspire those who are entnisted with administering peopies
not yet capable of governing thernselves, and have determined that
tories and in the name of the League. The annual report stipulated
for in Article 7 should certainly incluaeçtatement as tothe ~vhole
moral and material situation of the peoples under the Mandate.
It is clear, therefore, that the Council also should examine the
question of the whole administration." (League of Nations Council,
P.V., zo/zg/rq (8th Sess.), p. 187.)
The essential nature of the reporting requirement was thus made clear
by the League Councii. For the Council caused the mandatory powers
to submit reports on their administration of the various territones, and
examined such reports even prior to final approval of the mandate
instrument for the several mandated territories. Administration of the
mandated territories was allowed by the Council, prior to the approval
of the mandate instruments, only on condition that the reports be
subrnitted to the Council.
?'lieCouncilthus made clear from the outset the essential and necessary
connection between administration of mandated territories, and the
corresponding obligation of international accountability.In so doing,
tlie Council made manifest its understanding with regard to the basic
showed clearly that thebinaturebof the obligation was, in its view, the
basic and controllirig consideration.146 SOUTH WEST rlFRIC.4
The essential nature of the obligation of international accountability
also emerges by reference to the history concerning the provisions of the
modification of the terms of the Mandate. of the Council for any
The draft submitted bythe Milner Commission to the Principal Ailied
and Associated Po\vers was in the following forrnf "the consent of the
Council of the League of Nations is required for any modification of the
terms of this Mandate." ([191g] Foreign ReZations O/ the Unite dtoles,
Vol. IX (Paris Peace Conference), p. 656.)
The Balfour draft, submitted to the Council of the League of Nations
on 14 December 1920, included the following clause:
for any modification of the terms of the present Mandate, provideded
that in the case of any modification proposed by the Mandatory,
such consent rnay be given by a majority". (Oral proceedings,
22 Oct. 1962,rnorning.}
The Secretariat of the Council, in its memorandum submitted on
17 December 1920, recommended that the words following "Mandate"
be dropped, thus restoring the provision to its original form, as provided
the Miiner Commission. to the Principal Allied and Associated Poivers by
The significance of the above is readily apparent. By requiring the
unanirnous consent of the Council for any proposed modification of the
terms of the Mandate, even if such modification were proposed by the
mandatory power, the founders of the mandates systern were stating
implicitly that the obligation of international accountability was to be
interpreted liberally. Changes in the tems of the mandatory power's
administration should be subject to the strictest international super-
vision.
Professor Quincy Wright has summarized the afore-mentioned con-
sideration as follows:
"Continuous international supervision is the essence of the
mandates system. It focuses attention upon the problem of back-
ward areas as concretely presented by the rnandated area from the
native and the world points of view. Anyone is a poor judge in his
own case. and however it may try, a state has always found it
difficult to visualize a subject people except from the standpoint of
itsown interests." (Wright, op. cit.p. 585.)
Mr.President, it may be pertinent at this point to review the hietorical
background with regard to promotion of the material and moral well-
being and the socialprogress ofthe inhabitants of the mandated territory.
Concern with the well-being and progress of the inhabitants of the
mandated areas was evidenced throughout the discussion of possible
types of mandates, prior to the Peace Conference.
The drafts submitted by Lord Milner, as the basis of discussion for
the "C" Mandates, at the first meeting of the AfilnerCommission, contain
the following provision :
"The mandatory Power . ..accepts the Xandates to govern . ..as
guarantor of the \veIl-being and deveIopment [of the inhabitants of
the Mandated Territoryj." (Recueil, op.cit., p. 330.)
In the draft of the "Bu Mandates, the same provision was inserted ARGUMENT OF MR. MOORE I47
in both the Amencan and French drafts presented to the blilner Com-
mission on 8 July 1919, with the addition in the case of both drafts of
the term "social progress". (Recueil, op. cit.p,. 340 (Art. 2); p. 343
(Art. I).) The provision for social progress was inserted in the "C"
hfandate draft in the IO July revised text. For the first time a separate
sentence was devoted to this provision for the well-being of the Natives:
"The Mandatory Power agrees to increase by al1 means in its
power, the matenal and moral well-being and,social progress of the
natives of the Mandated Temtory." (Recueil,op. cit., p330.)
The revised draft of the "Bu Mandate agreement, dated IO July 1919,
also contained a provision for the protection of the well-being of the
inhabitants, in virtually identical terms to that of the "C" Mandate.
(Ibid., p. 361.)Both these provisions were retained unchanged through
the further deliberations of the Milner Commission. In the draft sub-
mitted by the Commission to the Principal Allied and Associated Powers
on 24 December 1919, the wording of the clause was as follows:
"The Mandatory Power undertakes to promote to the utmost the
material and moral well-being and the social progress of the ih-
habitants of the territory subject to the Mandate." ([1g19]Foreign
Relations O/ the United States, Vol. IX (Paris Peace Conference),
PP 055-6564
The final draft of the mandate agreement, as approved by the Council
of the League of Nations on 17 December 1920, contains the same clause
with two minor amendments. (1bid.JThus, hlr. President, it is evident
that the final text of the "C" Mandate agreements goes considerably
bepond the terms proposed in hlilner's original draft. The insertion of
the phrases "promote to the utmost" and "social progress" involved
expansion of the scope of Article 2,paragraph 2.
The essential nature of the obligation found in Article z, paragraph z,
of the Nandate Agreement for South West Africa was stated by President
Wilson in a general discussion of mandates provisions in the Plenary
Session of 14 February rgIg, in the following words:
"In al1 cases of this sort hereafterit shall be the duty of the
League to see that the Nations which are assigned as tutors and
advisors and directors of these peoples, shall look to their interest
and to their development before they look to the interest and
material desires of the Mandatory itself."(Ibid.,Vol. III, p. 214.)
The basic nature of the obligation was even more succinctly stated by
Duncan Hall, aleading authority on the mandates system-"The welfare
of native peoples . .. is the real heart of the system". (Hall, op. cit.,
P. 65.)
hIr. President,1 tum now to an analysiç of the historical background
during the period 1945-194 9his background will render apparent the
common intention of the League of Nations, the United Nations, and
Respondent, ai the respective times.
1 shall begin, Mr. President and Members of the Court, with the
critical period just prior to the officiai dissolution of the League of
Nations.
The relevant and decjsjve historical facts during the period of the
dissolution of the League of Nationsand the establishment of the United
Nations and thereafter, demonstrate clearly that it was the general14s SOUTH WEST AFRICA
understanding of the League of Nations, the United Xations Organiza-
tion, and, indeed, of Respondent, that the mandate obligations for
South Weçt Africa survived the dissolution of the League, and that this
survival should include the obligations ofArticle 6 of the mandate
agreement.
The League of Nations, in its last session during April 1946, was
very much concerned with the interim period prior to the formal
establishment of the trusteeshi system of the United Nations. Both by
resolution and by individual feclaration, the members of the League,
including those administering territories under mandate, made clear
their intention that the obligations of the several mandate agreements
would not lapse notïvithstanding the dissolution of the League of
Nations. and, indeed, would be binding until new arrangements under
the United Nations trusteeship system had been concluded.
The declarations made by the mandatory powers, evidencing a clear
intention to continue tcarry outthe obligations of the mandates pending
the conclusion of trusteeship agreements, were asfollows:
The United Kingdom on 9 April 1946undertook the following:
"Until the three African territories have actually been placed
under tmsteeship and until fresh arrangements have been reached
in regard to Palestine-lvhatever those arrangements may be-it is
the intention of His Majesty's Govemment in the United Kingdom
to continue to administer the territories in accordance with the
eneral principles of the existing Mandates." (Lof N., O.J. S,pec.
Eupp. NO.rgq, p. 28.)
The Union of South Africa on g April 1946 undertook (to use their
words) :
"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
under the terms of the mandate as an integral part of the Union.
It the meantime the Union will continue toadminister the territory
scrupulously in accordance with the obligations of the mandate, for
the advancement and promotion of the intereçts of the inhabitants,
as she has done during the pastsix years when meetings ofthe Man-
dates Commission could not be held.
The disappearance of these organs of the League concerned with
the supervision of mandates. primarily the Mandates Commission
and the League Council, will necessarily preclude complete corn-
pliance with the Ietter of the mandate. [The Respondent continued:]
But 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 responsibilitieç until such time as other arrange-
ments are agreed upon concerning the future status of the territory."
(Ibid.pp. 32-33,)
France on IOApril 1946undertookthat:
mission entrustedvto it by the League of Nations. It considers'that it is in accordance with the spirit of the Charter that this mission
should henceforth be carried out under the regime of trusteeship
and it is ready to examine the terms of an agreement to define this
regime in the case of Togoland and the Cameroons." (Ibid p.,4.)
New Zealand on II April 1946undertook that :
"New Zealand lias always strongly supported the establishment
of the international trusteeship sjstem, and has already declared its
wiilingness to place the mandated territory of Western Samoa under
trusteeship. . NewZealand does not consider that the dissolution of
the League ofNations, and asa consequence, of the Permanent Man-
dates Cornmisçionwillhave the effectof diminishing her obligations to
theinhabitants of Weçtem Samoa, or ofincreasing her rights in the
territos.. Until the conclusion of Our Trusteeship Agreement for
Western Samoa, therefore, the territory will continue to be adminis-
tered by NewZealand, in accordance with the terrns of the mandate,
for the promotion of the weli-being and advancement of the inhabi-
tants." (Ibid.,p. 43.)
Belgium on II April1946 stated:
"We expreççed OUT confidence that the Trusteeship Councilwould
soon corne to occupy in the United Nations Organization the im-
portant place which it desenes. We can only repeat that hope here
and give an assurance that, pending its realization, Belgium wiil
remain fully alive to a11the obligations devolving on Membersof the
United Nations under Article 80 of the Charter." (Ibid.)
Australia on rr April 1946undertook that :
"After the dissolution of the League of Nations and the conse-
quent liquidation of the Permanent Mandates Commission, it wili
be impossible to continue the mandates system in its entirety.
Notwithstanding this, the Governrnent ofAustralja does not
regard the dissolution of the League as lessening the obligations
imposed upon it for the protection and advancement of the inha-
bitants of the mandated territories, which it regards as having still
fullforceand effect.Accordingly, until the coming into force of appro-
priate trusteeshipagreements under Chapter XII of the Charter, thâ
Govemment of Australiawili continue to administer the present man-
dated temtories, inaccordance with the provisions ofthe mandates for
theprotection and advancement ofthe inhabitants. In makingplans for
the dissolution of the League, the Assembly willvery properly wish to
be assuredasto the future ofthemandated territories, forthe welfareof
thepeoples ofwhichthisLeague ha. been responsible. Sofar asthe AUS-
tralian territories are concerned,therisfullassurance." (Ibid.,p. 47.)
Thedeclarations by each ofthe mandatory powerç make it abundantly
cley that the general intention and understanding was that aiiof the
obligations of the mandate agreements remained in force pending the
conclusion of trusteeship agreements. This is seen particularly in the
declaration made by Respondent's representative.
The statement that the Union Government would regard the dissolu-
tion of the League "as in no way diminishiiig its obligations under the
mandate" can rnean no less than an iindertaking to carry out each and
every one of the obligations of the Mandate for South West Africa, in-
cluding the obligations under Articles 6 and 7 thereof. This conclusion
becomes ail the more compelling when it is noted that the above-quoted15O SOUTH WEST AFRICA
phrase follows immediately upon a statement by the South African
representative citing the disappearance of the League organs con-
cerned with the supervision of the madates.
1 turn now, Mr. President, to the League of Nations resolution of 18
April 1946.The resolution, in relevant part, reads as follows:
"The Assembly,
Recalling that Article 22 of the Covenant applies to certain
territories placed under mandate the principIe that the well-being
and developrnent of peoples not yet able to stand alone in the stren-
uous conditions of the modem world for a sacred trust of civiliza-
tion:
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 rz of the Covenant of the League;
Takes note of the expressed intentions of the members of the
League now administering tenitories under mandates to continue
to adrninister them for the well-being and development of the
peoples concerned in accordance with the obIigations contained in
the respective mandates until other arrangements have been agreed
between the United Nations and the respective mandatory powers."
(I.C.J. Reports1950, p.134,)
On 9 April 1946,Dr. Lone Liang, the representative of China, had
proposed for genecal discussion the following draft resolution:
"The Assernbly ,
Considering that the Trusteeship Council has not yet been consti-
tuted and that al1 mandated territories under the League have
not been transferred into territories under trusteeship;
Considering that the League's function of supervising mandated
avoidtarperiod of interregnum in the supervision of the mandatory to
regime in these territones;
Recommends that the mandatory powers, aswell as those adminis-
tering ex-enemy mandated territories shall continue to submit
annuai reports to the United Nations and to submit to inspection
by the same until the Trusteeship Council shall have been con-
stituted."(l.ofN., 21st Assernbly, 1st Cornm.,2nd Mtg., Provisional
Record; Counter-Mernorial, Ii, p. 49, footnote2.)
This draft resolution was never considered since the Chairrnanruled
tliat it waç not properly raisedby Dr. Liang at that time. However, on
later adopted unanirnously andoducebecame theaftfinal League of Nationss
resolution on the mandates system. Dr. Liang, in discussing the new
draft resolution, stated that he recalled (to use his words)-
"that he had already drawn the attention of the cornmittee 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 estabhshed
a system of trusteeship based largely upon the principles of the
mandates systern, but the functions of the League in that respect ARGUMENT OF MR. MOORE I51
were not transferred automatically to the United Nations. The
Assembly [he continued] 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 [Dr. Liang
said] the League would wish to be assured as to the future of man-
dated territories. It waç gratif~ing to the Chinese delegation, as
representing a country which had always stood for the principle of
trusteeship, that al1 the mandatory powers had announced their
intention to administcr the territories under their control in accor-
dance with their obligations under the mandates system until other
arrangements were agreed upon.
The Chinese delegation had pleasure in presenting the draft
resolution now before the Committee, so that the question could be
discussed by the Assembly in a concrete form and the position of
the Leagueclarified." (L. ofN.,O.J.,Spec. Supp. No. 194,pp. 78-79.)
There is no public record indicating why Dr. Liang changed the
wording of his original draft resolution. However, it is most likely that
the League of Nations, notwithstanàing the several undertakings by the
mandatory powers to carry out al1 of the obligations of the mandate
agreement pending the establishment of the United Nations trusteeship
system, didnot wjsh to appear to encourage delay in the early formation
of the tmsteeship system. This had already beea the concern of the
Preparatory Commission delegates with regard to atemporary trusteeship
cornmittee, a matter which will be referred to shortly.
Respondent has sought to attach significance to the difference in
wording between the original Chinese draft resolution and the draft
resolution finally adopted by the League Assernbly. However, Dr. Liang,
in discussing the second draft, referred to "obligations under the mandate
system", not some of the obligations. The resolution when passed, ashas
been noted, made the same reference to "obligations".
Further, after stating that the League functions were not transferred
automatically to the United Nations, Dr. Liang continued, "the Assembly
should therefore take çteps to secure the continued application of the
principles of the mandates system", The understanding then was that
since the League functions were not transferred "automatically", the
League should rernedy the situation by taking "steps" to secure the
continued application of the principles of the mandates system.
Several words in the quoted phrase are significant. The word "there-
fore" indicated Dr. Liang'sviewthat the proposed resolution would solve
the problem he had psed. The words "continued application" demon-
strate the general understanding that the obligations carried out prior
to the dissolution of the League would also be carried out subsequent to
such dissolution. The word "principles" is not qualified in any wsy, and
must surely include the essential principlof international accountability.
In the event, the draft resolution submitted by Dr. Liang on 12 Apnl
1946was unanimously adopted, with Egypt abçtaining, for reasons which
appear in the records of the proceedings, not germane to this particular
issue.
Immediately followingthe presentation of the resolution to the League
Assembly, the Egyptian representative stated his Government's reser-
vation concerning Palestine in these words :
"The opinion of my Government is that Palestine has intellectu- SOUTH WEST AFRICA
ally, economically, and politicaliy reached a stage where it should
no longer continue under mandate or trusteeship or whatever other
arrangements may be considered." (Ibid pp.,58-59.)
He made "al1 reservations" to paragraph 4 of the proposed resolution
and stated further-"it is the view of my Government that mandates
have terminated with the disçolution of the League of Nations ...".
(Ibid,. p. 59.)
It 1s~mportant to note that the Egyptian representative clearly felt
that the resolution under consideration was not acceptable because
it signified that mandates continued in force and were not terminated
by the dissolution of the Leagoe of Nations. Since the opinion implicit
in his reservations\vas not controverted by any Member of the League
of Nations, it would seem obvious that the general understanding of the
League Members in adopting the resolution \vasthat al1of the obligations
of the various mandates survived the dissoIution of the League and were
binding upon the Mandatory Powers pending the conclusion of new
arrangements under the United Nations trusteeship system.
Mr. President, 1 should like with your permission to turn now to the
proposa1for a temporary trusteeship committee, made in the Preparatory
Commission in 1945. This proposal, first suggested by the Executive
Committee of the Preparatory Commission, was outlined by the Chair-
man of Committee Four-the Trusteeship Comrnittee-of the Prepara-
tory Commission as follows :
"The basic task of the Temporary Trusteeship Committee, asit
was contemplated, was to assist the General Assembly in expediting
the establishment of the trusteeship system and was to remain in
existence until a sufficient number of trusteeship agreements had
been concluded to promote the establishment of the permanent
Trusteeship Council in accordance with Article 86 of the Charter."
This is found in the records of the Preparatory Commission,4th Plenary
Meeting, page 125.
The representative of the Union of South Africa in Cornmittee Four
of the Preparatory Commission supported the proposal for a temporary
trusteeship cornmittee.The summary record of the second meeting of
Committee Four reports Rlr. Nicholls of the Union of South Africa as
stating that, "it seems reasonable to create an interim body asthe
hlandates Commission was now in abeyance and the countnes holding
mandates should have a body to which they could report". (Oral pro-
ceedings, x5 Oct. 1962m ,oming.)
The proposa1 for a ternporary trusteeship cornmittee was not adopted
by the Preparatory Commission,primarily on the bais of the objections
advanced most forcefully by the Soviet Union, to the effect that such
a comrnittee might deIay rather than accelerate the establishment of
a trusteeship council. (Ibid.) It was pointed out that in the event of
undue deIay in completing tnisteeship agreements, it was open to the
General Assembly of the United Nations at any time to establish any
body which seemed necessary. The Soviet delegate is reported as stating
thatfiewas not surprised that the Mandatory Powers were in favour of
substitute organs, but if the problem were dealt with along those lines,
taken.s(Ibid.)ld continue for months or years without .any action being
1 emphasize, Mr. President, that no argument was presented by any ARGUMENT OF MR. MOORE I53
delegate to the Preparatory Commissionthat the proposa1foratemporary
trusteeship committee was not acceptable on the grounds that the United
Nations had no supervisory authority over mandated territories. Rather,
it seems to have been assumed by the Preparatory Commission that the
United Nations did have such supervisory authority, but that the most
wasedthe rapid concIusion oftrusteeship agreements and the formation of
the Trusteeship Council.
Mr. President, 1 turn now to an analysis of the relevant historical
occurrences at the United Nations between the years 1946and 1949.
It isquite clearthat events at the United Nations during the autumn of
I 46, tliat is to Say,several months after the dissolution of the League of
d ations, indicate the general understanding of the United Nations Orga-
nization and of the Respondent, that the mandates had not lapsed and
were subject tothe supervisory authority of the United Nations.
1 discuss first a memorandurn prepared by the Secretariat of the new
United Nations Organization and dated 16October 1946.The memoran-
dum referred to a letter written by Secretary-General Trygve Lie on
29 June 1946, addressed to the States administering terntories now held
under mandate, i.e., Austrdia, Belgiurn, France, New Zealand, the
Union of South Africa and the United Kingdom. (U.N. Doc. A/Ix~,
16 Oct. 1946.)
The letter, which alsoreferred toStates "administering trust territories
now held under mandate", and to "the mandatory powers", reflected the
trusteeship agreements had yet been submitted to the United Nations.o
According to the memorandum prepared by the Secretariat, the Secre-
tary-Generai received replies to his letter from each of the States t~
whom letters had been addressed, including a communication from
the Government of the Union of South Afnca dated 12August 1946 con-
cerning the "mandated territory of South West AfricaH-these are the
words of the Union. (Ibid.,p. 3.)
The replies to the letter of the Secretary-General indicated that of
the sixMandatory Powers, fourunderstood the mandate to be in existence
notwithstanding the dissolution of the League of Nations. New Zealand
aione referred to Western Samoa as "the former mandated territory"
(ibid.p. 7) and Belgiurn gave no indication of lier view asto whether it
considered the Temtory of Ruanda-Urundi to be still under mandate.
The reply from Australia, datedII September 1946 ,hich was almost
fivemonths after the dissolution of the League of Nations, states that
"the Australian Government has prepared an agreement in respect of
the rnandated territory of New Guinea". (Ibid.,p. 4.)
parts asfolIows: France, dated 20 Septernber 1946, reads in relevant
"The French Governrncnt hasdecided to place the mandated
territories of Togoland and the Cameroons under the trusteeship
systems as defined by the provisions of the Charter. ..Tlie terms
purposeç.us..to the Mandatory Powers of territories on the African
Continent. ..The British Government, for its own part,has sub-
rnitted for approval by the French Govemment terms of tnistee-
ship regarding Togoland and the Cameroons undcr British Mandate."
(Ihd., p.6.)154 SOUTH WEST AFRICA
The reply of the United Kingdom, dated j September 1946,referred
to "the territories in Africa under United Kingdom mandate", "the West
African mandated territories of Togoland under British mandate and
the Camcroons under Britishmandate", and "the three African temtones
under United Kingdom mandate". (Ibid., pp. 9-10.)
The initial reply of the Union of South Africa, dated 12 August 1946,
indicates Respondent's view at that time that the Mandate for South
West -4fricawasstill in effect.The reply, in relevant part, reads asfo:iows
"Ry direction of the Government of the Union of South Africa,
I have the honour to request that the question of the deçirability
of the temtorial integration in, and the annexation to, the Union
of South Africa of the mandated territory of South West Africa, be
included in the agenda for the second part of the first session ofthe
General Assemby to be convened at New York City on 23 Septem-
ber next." (Ibid p.p,8-9.)
A later request by the Union of South Africa submitted an amended
wording of the original proposal. The subsequent request, written on
9 October 1946,provides an indication that almost six months after the
dissolution of the League of Nations, the Union of South Africa not only
considered the Mandate for South West Africa to be in effect, but con-
sidered that the United Nations was the proper authority for the imple-
mentation of proposais by the mandatory concerning the Territory.
The later request reads as follows,in the relevant part:
". ..I have now been instructed by my Govemment to request that
ou be so good as to amend the text of the item in relation to South
Lest Africa as foliows:
'Statement by the Government of the Union of South Africa
on the outcorne of their consultations with the peoples of South
West Africa rtsto the future status of the mandatcd territory,
and implementation to be given to the wishes thus expressed.' "
(Ibid.)
The submission of the question of the termination of the Mandate to
thIt willbe recdled that on22rJanuary 1946,Respondent's representative
to the Fourth Comrnittee of the General Assembly stated that after
consultation with the inhabitants of the Territory, his Government's
plans for South West Africa "would be submitted to the General Assem-
bly for judgment". (I.C.J. Refiorts1950, p. 142.)
The rneaning of this statement of submission and the words "for
judgment" was further elucidated by Respondent's Prime Minister in a
statement to the Fourth Committee on 4 Novernber 1946, that South
Africa's-
"international responsibility precluded it frorn taking advantage of
the war situation by effecting a change in the statuof South West
Africa without proper consultation either of al1the peoples of the
Territory itself, or with the competent international organs".
(Ibid.)
The importance of these statements was noted by this Court in its
Advisory Opinion of 1950, when it stated:
"By thus submitting the question of the future international
status ofthe Temtory to the 'judgment' af the General Assembly ARGUMENT OF MR. MOORE I55
as the 'competent international organ', the Union Government re-
cognized the competence of the General Assembly in the matter."
(Ibid.)
Respondent's representative to the Permanent Mandates Commission.
in response to a critical reaction from the Commission on the proposed
incorporation of South West Africa asa fifth province of the Union,
stated that-
"He could assure the Mandates Commission that the Union
Government would never take any action in this respect until it
had first communicated its intentions to the Mandates Commission
itself." (Connter-Memorial, IV, p. 80.)
The near identity of Respondent's actions with regard to proposals for
incorporation, taken in 1935under the League, and in 1946 after the
dissolution ofthe League,reveal clearly that ineach instanceRespondent
was submitting to what it regarded as "the competent international
orSince, in the autumn of 1946,Respondent had not yet begun to argue
that the Mandate as a whole had lapsed, or that the United Nations had
no supervisory authority over its administration of South West Africa,
the only reasonable inference to be drawn is that reached by this Court
in 1950w ,hich is:
"By thus submitting the question of the future international
status of the Territory to the 'judgment' of the General Assembly
as the 'competcnt international organ', the Union Government
recognized the competence of the General Assembly in the matter."
(I.C.J. RefiortI950, p. 142.)
Mr. President, 1 had just reached the point of commenting upon
certain requests made by Respondent to the United Nations and 1 said
that since in Autumn 1946Respondent had not yet bepn to argue that
thelMandate asawholehad lapsed,or that the United Nations had nosuper-
visory authority over its adminstration of South West Africa, the only
reasonable inference to be drawn being that reached by the Court in 1950.
namely to the effect that by thus submitting the question of the future
international status of the territory to the judgment of the General
Assembly as the competent international organ, the Union Government
recognized the competence of the General Assembly in the matter.
The importance of such submission by Respondent is obvious. As
the Court stated in another context:
"Interpretations placed upon legal instruments by the parties
to them, though not conclusive as to their meaning, have consider-
able probative value when they contain recognition by a party of
its own obligations under an instrument." (Ibid.,pp. 135-136.)
Mr. President, 1 now wish to discuss a letter and memorandum sub-
mitted to the United Nations by Respondent on 17 October 1946. (U.N.
Doc. Alr23.) The memorandum demonstrates quite clearly the under-
standing of the Union Government that not only was the Mandate in
existence, but that the United Nations was the proper supervisory
authority. The Iettcr, while twvicereferring to South West Africa as
"the mandated territory", requests that the accompanying memoran-
dum be tabled as a United Nations General Assernbly document.
It must be noted that the memorandum submitted to the United15~ SOUTH WEST AFRICA
Nations, some six months afterthe dissolution of the League of Nations,
is based on the assurnption that the Mandate for South West Africa was
still in force. Thus paragraph 3 of the memorandum refers to repeated
requests by the European section of the population for "the termination
of the mandate" and the incorporation of the Territory. After stating
that the "Natives" also favoured incorporation, the memorandum
continues, in paragraph 4, as follows:
"Therefore, prior to the opening of the second part of the first
sessionof the General Assembly, the Secretary-General ofthe United
Nations was requested to include on the agenda a statement by the
Government of the Union of South Africa on the outcome of
their consultations with the peoples of South West Africa as to the
future status ofthe mandatedterritory, and the implementation to be
given to the wishes thus expressed." (Ibid., -.5-.
paragraphs 3 and qof the memorandum to the effect that the Territory
of South West Africa had, in the faIl of 1946, a status as a "mandated
territory", and that the United Nations General Assembly was the
proper authority to give "implementation" to the wishes of the inhabi-
tants of that territory, indicate Respondent's understanding in 1946
concerning the existence of the Mandate, and supervisory authority over
its administration.
Another clear indication of Respondent's attitude in the fdi of 1946
may be found in paragraphs 150 and Igr of the memorandum, which
read as follows :
"The Union Government, as Mandatorp, haç governed the Man-
dated Territory of South West Africa for over a quarter of a cen-
tu-. ..That the Mandatory is satisfied that its duties under the
Mandate have been faithfully carried out isjustified ..." (Para. 150.)
"Yet, the Union Government, considering the fruits of its efforts
in the Temtory and the task which lies ahead, shares with the
people of South West Africa the conviction that the mandates
system is inapplicable to the Temtory. This conviction rests upon
three main considerations, namely:
(a) The fundamental principle of the mandates system and its
successor the trusteeship system is ultimate political self-govern-
ment and separate statehood. The loweconomic potential of the
Territory and the backwardness of the vast rnajority of the
population render this impossible ofachievement.
(b) The immediate aim of the Mandate is the development of the
Territory and its people. This development can only be satis-.
factorily carried on at an expense to the Mandatory which, in
the nature of things, it cannot undertake,
(c) The uncertainty as to the ultimate future of the Territory in-
evitably militates against racial tranquility and the optimum
development of the country." (Ibid p. 51.)
The significance of these paragraphs is obvious. Six months after the
dissolution of the League of Nations, South Africa was arguing that the
mandates systern was inapplicable to the Ten-itory, but for reasons
having nothing whatsoever to do with the dissolution of the League.
If in fact it waç the understanding of the Union of South Africa that
the demise of the League of Nations resulted in the Iapse of the Mandate
as a whole, then surely an argument presented six rnonths after the disso- ARGUMEBT OF MR. MOORE I57
lution of the League wouIdhave included such reaçons. The only inference
to be drawn from the mernorandum of 17 October 1946 was that, at that
time, the Government of South Africa \vas of the opinion that the Man-
date for South Wést Africacontinued in full force.
Mr. President, the debates in the Fourth Committee of the General
Assembly in the autumn of 1946 also indicate clearly that the general
understanding of the Members of the United Nations and of the Govern-
ment of the Union of South Africa was that the Mandate was still in
force and that the. United Nations had general supervisory authority
over Respondent's administration of the Territory. Thus, Field-Marshal
Smuts stated to the Fourth Committee on 16 November 1946that:
"The people wanted incorporation; the Union Government could
not ignore that wish and had no alternative but to bring their wish
before the General Assembly." (G.A., O.R. 1st Sess., 2nd Part, 4th
Committee, Sub-Cornmittee 2, p. 7.)
Similarly, on 28November 1946,Mr.John Foster Dulles, late Secretary
of State of the United States, told the Fourth Committee of the General
Assembly that :
"The information at the disposa1 of the General Assembly did
not enable it to approve, during the present session, the incorpora-
tion of the Mandated Territory of South West Africa. Agreement
on the subject rnight be said to be unanimous.It was not a question
of discovering what the verdict of the General Assembly would be,
but in what terrns it lvould be expressed." (Ibid., p. 49.)
The next day Mr. Liu Chieh, the representative of China in the Fourth
Committee, stated that:
"If the Sub-Cornmittee accepted the contention of the Govern-
ment'of the Union of South Africa that the future incorporation of
South West Africa into the Union was justified, then consultations
among the inhabitants should be conducted under the supervision
of the Trusteeship Council ... Far from accepting the staternents
contained inparagraph 151 of document At123 [the memorandum of
17 October 1946,referred to previously] he was of the opinion that
South West Africa should be placed under the Trusteeship System
rather than continued as a Mandate." (Ibid.,p. 56.)
Again representativeç of member States had recognized the existence
of the Mandate, aswellasthe supervisory authority of theUnitedNations.
The General Assembly of the United Nations, on 14 December 1946,
passed resolution 65 (1)which, by its terms, recognized the existence of
the Mandate, as well asthe supervisory authority of the United Nations.
The resolution reads as follows:
"The General AssembIy,
Having cotuideredthe statements of the delegation of the Union
ofSouth Africa regarding the question of incorporating the mandated
territory of South West Africain the Union ;
Noling with satisfactio~athat the Union of South Africa, by
presenting this rnatter to the United Nations, recognizes the in-
terest and concern of the United Nations in the matter of the future
status of territories now held under mandate;
Recalting that the Charter of the United Nations provided
in Articles 77 and 79 that the Trusteeship System shall apply SOUTH WEST AFRICA
to territories now under mandate as may be subsequently agreed;
Referringto the resolution of the General Assembly of 9February
1946,inviting the placing of mandated temtories under trusteeship ;
Desiring that agreement between the United Nations and the
Union of South Africa may hereafter be reached regarding the future
status of the mandated temtory of South West Africa;
Assured by the delegation of the Union of South Africa that,
peiidiiig such agreement, the Union Government will continue to
administer the territoryas heretofore inthe spirit oftheprinciples laid
down in the mandate;
Considering that the African inhabitants of South West Africa
have not yet secured political autonomy or reached a stage of politi-
cal development enabling them to express a consideredopinion which
the Assembly could recognize on such an important question as
incorporation of their territory :
The GeneralAssembly, therefore
1s unable toaccede to the incorporation of the territory of South
West Africa in the Union of South Africa; and
Recommendsthat the mandaled territory of South West Africa be
placed under the international trusteeship system and invites the
Government of the Union of South Africa to propose for the consid-
eration of the General Assembly a trusteeship agreement for the
aforesaid territory."
Thus by the end of 1946 Respondent had not, at any time, indicated
a view that the Mandate for South West Africa had lapscd, or that the
United Nations had no supervisory authority over the Territory.
On the contrsry, Respondent had on several occasions indicated its
understanding that the Mandate was stiil in force and effect and that
the United Nations had supervisory authority. Respondent submitted
its plan fortermination of the Mandate "to the General Assembly for
judgrnent ..." (to use their words again), the procedure to which there
was, in Respondent's words ".. . no alternative .. .".
A final observation concerning this point is that the General Assembly,
by resolution 65(1),"... affirmed its cornpetence..." over the mandated
territory of South West Africa.
Although Respondent in September 1947 indicated for the first time
a view that the United Nations had no supervisory authority over South
West Africa, statements niade by Respondent up to that time, dunng
the year 1947, indicated precisely the opposite view.
Respondent's letter of 23 July 1947 to the Secretary-General of the
United Nations cites General Assernbly resolution 65 II), in which the
Assembly expressed inability to accede to the incorporation of South
West Africa in the Union. The Ietter States:
"... the Union Governrnent desire to reiterate their view that itis
implicit in the mandate system and in the Riandatc for South West
Africa that due regard shall be had to the wishes of the inhabitants
inthe administration of the Territory. The wish, clearly expressed
by the ovenvhelming majority of al1the native races in South West
Africa, and by unanimous vote on thepart of the European represen-
tatives of the Territory, that South West Africa be incorporated in
the Union therefore debars the Union Government from acting in
accordance with the resolution of the General Assembly, and thereby ARGUMENT OF MR. MOORE I59
flouting the wisheç of those who under the Mandate have been com-
mitted to their charge. In the circurnstnnces, the Union Government
has no alternative but to maintain the stalquo and to continue to
administer the Territory in the spirit of the existing Mandate."
(U.N. Doc. A/334, r Aug. 1947,p. 135.)
The next two paragraphs of the letter of 23 July 1947are equally
significant with regard to Respondent's recognition of the supervisory
authonty ofthe United Nations. Thoseparagraphç read in part as follows:
"The Union Government are mindful of the fact that the GeneraI
Assembiy, in passing the recommendation, was mainly concerned
about the welfare of the inhabitants of the Territory-especially
the non-Europeans. This concern the Union Governrnent naturally
share. It will, however, be recalled that the interests of the native
inhabitants were fully provided for with specific safeguards under
the Mandate and that the administration of South West Africa and
the implementation of those safeguards have been uniformly satis-
factory ever since the inception of the mandatory çystem. They feel
confident, therefore, that their continued administration of the
Territory in the spirit of the Mandate will equally ment the satis-
faction of the United Nations.
To that end the Union Government have already undertaken to
submit reports on their administration for the information of the
United Nations." (Ibid.)
Yet another recognition by Respondent of the supervisory authority
of the United Nations over the rnandated Territory of South West Africa
is to be found in a communication from Respondent to the Secretary-
General of the United Nations dated22 September 1947 (see U.N. Docu-
ment A/334/Add. 1).The communication recites the fact that General
Assembl resolution 65 (1)was "fully discussed" at a session of the South
West A ?rican Legislative Assembly, after which a resolution by the
South West African Legislative Assembly was adopted unanirnously,
according to Respondent, on 7 May 1947, and that it read asfollows:
"That this House expresses to the Right Honourable the Prime
Jlinister of the Union its appreciation and thanks for his firm and
courageous stand before the United Nations Organization in con-
nexion with the incorporation of this Territory with the Union, and
trusts that the United Nations Organization will grant the wishes
of the large majority of the inhabitants of this Territory, European
as well as non-European." (Ibid p.138.)
Mr. President, 1 turn now to a consideration of the actual exercise
of competence by the United Nations of its supervisory authority over
South West Africa.
Whereas by resolution 65 (1)of14December 1946the GeneralAssembly
"affirmed its competence" (to use the phrase of this Court) oyer the
administration of South West Africa, "this competence was in fact
exercised by the General Assembly in resoIution 141(II) of r November
1947 ..." (see 1.C.J. Reports 1950p. 137).
The resolution urged the Government of the Union of South Affica to
propose a trusteeship agreement for South West Africa, and authorized-
"the Trusteeship Council in the meantirne to examine the report on
South West Africa recently submitted by the Government of the160 SOUTH WEST 4FRICA
Union of South Africa and to submit its observations thereon to the
General Assembly".
In accordance with resolution rqr (II) of the General Assembly, the
Trusteeship Councildid examine the report submitted by the Respondent
for the year 1946.
Although the Council, in the exercise-of its cornpetence, did not agree
upon the extent of supervision, there was no doubtas to the legal author-
ity of the CounciI to examine the report of the mandatory power and
submit observations thereon. Notwithstanding the dissolut~on of the
League, it was agreed that the Mandate continued in fullforce and effect,
and that the United Nations was the proper supervisory authority.
Thus, the Chinese repreçentative made the following uncontroverted
argument. He said:
"1 wish bneflp to discuss the bais for the examination by thiç
Council of such a report. In the first place, South West Africa isa
mandated territory. If the mandate system had not ceased to
function, that report would have been examined by the Permanent
Mandates Commission of the League of Nations. 1 think that by
design and by general acceptance the functions and responsibilities
of the Mandates Commission have fallcn upon the shoulders of the
Trusteeship Council. The Government of the Union of Sou* Africa
has asserted that it wilI continue to administer that territory in
the spirit of the Mandate. Therefore, 1 believe it must have been
in the rninds of the members ofthe GeneralAssembly that the proper
organ ofthe UnitedNations to examine the report was the Trusteeship
Council." (T.C.O.R., and Sess., 1st Part, p123.)
Mr.Ryckmans, the delegate ofBelgium, followedthe Yhinesestaternent
with the opinion that, in his words:
"1 agree with the substance of the statement just made by the
Chinese representative .. .]Te shall in fact examine thiç report as
we examine any other, but in principle we should consider it in the
same way as it would have been considered by the Permanent
Mandates Commission.'' (Ibid., p.124.)
hlr. Geng, the delegate of the Unites States, in assuming the com-
petence of the United Nations, stated that South West Africa "isa man-
dated territory, recognized aç such by everyone, including the Union of
South Africa". (Ibid., p. 130,)
The Trusteeship Council requested further information from Respon-
dent, and such information was subrnitted in May 1948. The, Council
examined the initial report and the supplementary information sub-
rnitted by Respondent, and reported its observations to the General
Assembiy.
The United Nations received no further reports from Respondent
subsequent to May 1948I.n a letter to the Çecretary-General on XI July
1949, Respondent explained its refusal to submit further reports by
referring to "unjustified criticism and censure" of Respondent's adminis-
tration, and to "rnisconceptions" concerning the competency of the
Trusteeship Council, and "misunderstandings" which gave rise to
"repercussions" in the Union and the Territory with "deleterious
effects" on the administration of South West Africa. It was also stated
that : ARGUMEBT OF MR. MOORE 161
"It will be recalled... that the Union Government have at no
time recognized any legal obligations on their part to supply infor-
mation on South West Africa to the United Nations, but ina spirit of
gocdwill, CO-operationand helpfulness offered to provide the United
Nations with reports on the administration of South West Africa,
with the clear stipulation that this would be done on a voluntary
basis, for purposes of information only and on the distinct under-
standing that the United Nations has no supervisory jurisdiction in
South West Africa." (II, pp. 61-62.)
It wiii be recalled that Respondent's letter of 23 July 1947explicitly
recognized the continuing existence of the Mandate.
Air.President and Members of the honourable Court, since the General
Assembly of the United Nations had "affirmed its competence" over the
administration of South West Africa by resolution 65 (1).and since
"this competence was in fact exercised by the General Assembly", as
was noted in the Opinion of 19jo, page 137,regarding resolution 141 (II),
it isnot surprising thatthe United Nations likewise exercised its compe-
tence over the Mandated Territory of Palestine.
The handling of the Palestine problem by the United Nations shows
clearly that the general understanding in 1947 was that not only was
the Mandate for Palestine still in effect, but that the United Nations
had the authority to supervise the administration and termination of
that Mandate. This is seen most clearly in a report of the United Nations
Special Comrnittee on Palestine (G.A., O.R. ,nd Ses., Supp. No. II),
and in the subsequent resolution ofthe GeneralAssembly on the Palestine
queThus, for example, in paragraph I 12of the report of the Special Com-
mittee, it was noted that onIMay 1946the report of the Anglo-American
Committee of Inquiry was pubhshed. Among the major constitutional
proposals of the Committee of Inquiry was the following:
"That until Arab-Jewish hostility disappears 'the governrnent
of Palestine be continued asat present under mandate pending the
execution of aTrusteeship Agreement under the United Nations'."
(Ibid ..27.)
The Special Committee, however, in its first recommendation, stated
that "it is recommended that the Mandate for Palestine shall be ter-
minated at the earliest practicable date".(Ibid.,p. 42.)
Ina commentgiving the reasons for the unanimous recommendation
of the Special Committee that the hlandate for Palestine be terminated,
was the folIowingconclusion :
"Al1 directly interested parties-the Mandatory Power, Arabs
and Jews-are in full accord that there is urgent need for a change
in the status of Palestine. The Mandatory Power has officially in-
formed the Committee 'that the Mandate has proved to be unwork-
able in practice, and that the obligations undertaken to the two
communities in Palestine have been shown to be irreconcilable'.
Both Arabs and Jews urge termination of the Mandate and the
grant of independence to Palestine. . .(Ibid.,pp.42-43.)
The recornmendation and the cited conclusion giving reaçons for the
recornmendation indicate quite clearly the view of the inhabitants of
Palestine,as well as the view of the United Nations Special Committee162 SOUTH WEST AFRICA
on Palestine, that, notwithstanding the dissolution of the League of
Nations, the Mandate for Palestine was stiil in effect.
the transitional period prior to the granting of full independence to the
territory of Palestine, "the present Mandatory Power" shall "carry OR
the administration of the temtory of Palestine under the auspices ofthe
United Nations. ..".(Ibid.,p. 48.)
It is true that the Special Cornrnittee, citing the dissolution of the
League of Nations and the Permanent Mandates Commission, stated
that the mandatory power had no means of discharging fully its inter-
national obligations with regard to the mandated territory. The Special
Comrnitteealso stated that the trusteeship system of the United Nations
hadnot "autornaticaily' 'taken over thefunctions ofthe mandates system.
However, the Special Cornmittee also stated that :
"At the the of the termination of thepermanent Mandates Com-
mission in April 1946,the mandatory power did, in fact, declare its
intention to carry on the administration of Palestine, pending a new
arrangement, iii accordance with the general principles of the
Mandate. The rnandatory power has itself now referred the matter
to the United Nations." (Ibidp. .,43.)
More significantly, it is clear that the United Nations feIt itself com-
petent to supervise the administration of Palestine prior to the granting
of independence to that temtory. Thus, for example, in addition to the
also recommendedotedbybothe Special Cornmittee that "during the transi-was
tional period the authority entrusted with the task of administering
Palestine and preparing it for independence shallberes~onsibEe to llze
United Nations" (bid.)
In comrnenting upon the latter recomrnendation, the Special Com-
mitfee stated that:
"Certain obstacles bvhich may well confront the authority en-
trusted with the administration during the transitional period make
it desirable that a close link be established with the United Nations.
responsibilities that, while being accountable to the United Nations
for its actions... the authority concerned should be able to count
upon the support of the United Nations in carrying out the directives
of that body." (Ibid., p. W.)
in sum, it seemsobvious that the view of the United Nations Special
Comrnittee on Palestine was :
(1) that the Mandate for Palestine was in effect notwithstanding the
dissolution of the League of Nations;
(2)that the United Nations had the authority to terrninate the Man-
date; and
(3) that the United Nations had the authority to supervise the admi-
nistration of Palestine prior to the granting of independece t~ that
territoi.
It seems equally clear that the views of the Special Cornmittee on
Nations. The General Assembly, on 29 November 1947,mbly of19 months after
the dissolution of the Leape of Nations, passed resolution 181 (II) whlcli
read, in relevant part, as follo\vs: ARCUMEXT OF hlR. MOORE 163
"The General Assembly ,
.....,....,,.....,
&kcs note of the declaration by the mandatory power thai it
plans to complete its evacuation of Palestine by I August 1948;
Recommendsto the United Kingdom, asthe mandatory power for
Palestine, and to al1 other members of the United Nations the
adoption and implementation, with regard to the future govern-
ment of Palestine, of the Plan of Partition with Economic Union."
The Plan of Partition with Economic Union referred to by thc General
Assembly, and annexed to resolution 181 (II) of 29 November 1947,
indicates even more clearly the general understanding that the Mandate
for Palestine was stiil in existence as of November 1947.Thus, the first
recornmenclation in the final Plan of Partition was that "the Mandate
for Palestineshall terminate as soon aspossible but in any case riot later
than I August 1948". (P. 132.) It is obvious that this recommendation
assumed the existence of the Nandate for Palestine.
An examination of the Plan of Partition also makes clear the under-
standing of the General Assembly that the United Nations had extensive
powers of supervision over the administration of the Mandated Territory
of Palestine. For esample, on page 133 of the Plan of Partition, the
following is noted:
"The mandatory power shall not take any action to prevent,
obstruct or delay the implementation by the Commission of the
measures recommended by the General Assembly."
Mr. Yresident, notwithstanding the general view of the United Nations
and Respondent that the Mandate was stil1in force, and that the United
Nations was properly authorized to exercise çupervisory function over
the administration of the mandated territory, Respondent for the first
time, in September of 1947, beganto indicate a view that the United
Nations had no supervisory jurisdiction over South West Africa, and
by 1948 Respondent had extended the argument to the point at which
it was then contending that the Mandate as a whole had lapsed. But
notwithstanding Respondent's new assertion in 1948 that the Mandate
as a whole had lapsed, Respondent indicatetl several times that it was
stiIl possessed of rigkts under the Mandate Agreement for South West
Africa.
Thuç, for exarnple, Mr. Eric Louw, appearing for the Government
of the Union of South Africa before theFourth Cornmittee of the General
Assembly on 18 November 1948, referred to the second operative para-
graph of a joint draft resolution submitted by the delegations of Den-
mark, Nonvay and Uruguay. The paragraphreferred to recommended
anew that South West Africa be pIaced under the trusteeship system.
(G.A., O.R. ,rd Sess., 1st Part, 4th Comm., pp. 367-368.)
tee:cording to the record of the proceedings before the Fourth Commit-
"hlr. Louw pointed out that the provisions of the secondoperative
paragraph of that draft resolution precluded any possibility of
arriving at the agreement contemplated in the League of Nations'
last resolution on the question. According to that resolution, the
agreements had been concluded,e t..The representatives ofthe Union
ofSouth Aft-icafelt that the paragraph was contrary to the provi-164 SOUTH WEST AFKICX
sions of the Charter inasmuch asit disregarded rights possessed by
the Union of South Africa under the blandate and the Charter."
(Ibid., p. 368.)
This statement recaüs another made by Respondent's representatives
,to the General Assembly in 1946. Referring to consultations with the
inhabitants of South West Africa on the proposed termination of the
Mandate and incorporation, Respondent's representatives stated that :
"Arrangements are now in train for such consultations to take
place and, until they have been concluded, the South Afncan Gov-
emment must reserve its position concerning the future of the
Mandate, together with its right of full liberty of action, as provided
for in paragraph I of Article 80 of the Charter." (Journal ofthe
U.N.P.C., p. 131.)
The view seems to have been that Article 8(1)ofthe Charter provided
for rights,but not forobligations.
It would seem that by November of 1948 Respondent's view was that
in so far as the Mandate Agreement for South West Africa contained
obligations, the Mandate had lapsed; but that in so faras the Mandate
Agreement contained rights, the Mandate was still in full force and
effect.
In Eilr.Louw's statement of 18November 1948,cited above, it is to be
noted that Respondent's representative used the phrase ''rights possessed
by the Union of South Africa under the Mandate". This was no isolated
reference to "nghts" under the Mandate. On 9 November 1948Mr. Louw
stated before the Fourth Cornmittee that "the closer union scheme was
nothing new or startling. The right to incorporate the territorofSouth
West Afnca was inherent in the former Mandate. .." (C.A., O.R., 3rd
Sess.,1st Part, 4th Comm., p. 346.)
Similarly, on 26 November 1948, Mr.Louw, in presenting hisGovern-
ment's case to the General Assembly plenary session, quoted a cable
just received from the South African Prime Minister which stated:
"The South African Government is exercising a right which has
never been disputed to administer the territory asan integral part
ofthe Union, pursuant to thepowergranted in theoriginalMandate."
(G.A.,O.R.,3rd Sess., 1st Part, Plenary, p. 587.)
The General Assembly, by reçolution 227 (III! of 26 November r948,
once again gave its views on the problem of South West Africa, and in
so doing exercised its cornpetence over the mandated temtory.
The Assembly resolution refers to "the mandated territory of South
FiTestAfrica", the "existing mandate", "the adrninistering authority",
and finally:
"Recommends,\vithout prejudice to its resolutions of 14Decernber
agreement iisreached with the United Nations regarding the future
of South West Afnca, continue to supply annually information on
itsadministration of the territorgr;
Requests the Trusteeship Council to continue to examine such
information and to submit its observation thereon to the General
Assernbly."
The Court, in it1950 Opinion, also noted that the General Assembly,
in resolution 337 (IV) of 6 December 1949 ,onfirmed the exercise of ARGUMENT OF MR.MOORE 165
resolutions 141(11)andu227W(III)1 refer to the Opinion at pag137.
In sum, Mr. President, the view of this Court,explicitly srgsod in
and in 1962and assunied in1955and I 56, that the Mandate for South
West Africa remains in fuli force 2nect and that the United Nations
is the legally authorized supervisory authority over the administration
ofthe territory, is one which is fully supported by the historical record.
Respondent, evidently aware of the importance attached by this
Court to "recognition by a party of its own obligations under an in-
strument" (I.C].Repmis 1950p,. 136). has denied Applicants' conten-
tion that"inthe penod of 1946-1949the Union's policy concerning the
Mandate undenvent a marked change". (1,p. 48.)
The understanding of the United Nations that the Mandate continued
in forceand that the obligations of international accoüntabiwere
owed to the United Nations, thus appears clearly from the %neral
Assemblyresolutions 65(1of14December 1946and 141(II) of INovem-
ber 1947 ,s wellas 227 (III of26 November 1948, and 337 (IV) of
6 December I 49. The last resolution confirmed the first thr1946the
resolution "a rmed" the cornpetenceof the Assembly,and the 1947and
1948resolutions "exercised" this competence.
Counter-Memorial (IIP.t140). that between the year1947 and 1949,n the
25Mernbers of the United Nations, in participating in United Nations
debates, "maintained quite clearly" that, outside of trusteeship,.Man-
datory Powers had no obligation to account for their administration of
the said tenitories to the United Nations or any other body.
In its list, Respondent has included sixnations, namely Czechoslova-
ha, Guatemala, Iran, Pen, Sweden, and Yugoslavia, for the soie reason
that they were signers of the report of the United Nations Special Com-
mittee on Palestine. As 1 have rnentioned, the Palestine report shows
that the United Nations not only considered the Mandate for Palestine
to bein full force and effectat that time, but also recommended that the
United Nations exercise comprehensive supervisory authority over the
administration of that mandatpriorto its termination. It is difficultto
perceive how these six States can be consideaçdhaving "maintained
quite clearly" that, outside trusteeship, twaseno obligation oac-
countability to an international body.
Furthermore, three of the 25 States (Cuba, India and Uruguay), and
the United Statesinits written statement before this honourable Court
survived.ade clear their viewpoint that international accountabilit~~had
Two of the States mentioned in Respondent's ii25,namely China
and the Philippine Republic, made statements refiecting their view that
the United Nations had supervisory authority over the mandated terri-
tory. (T.C.O.R.,2nd Sess., 1st Part, pp. 123,475-476,)
The Chinese representative in 1947stated to the Trusteeship Council
that "1 think that bydesign and by general acceptance the functions
and responsibilities of the Mandates Commission have fallen upon the
shoulders of the Trusteeship Council". (Ibid., p. 123.)
The rnost decisive fact remains, Mr. President. that while there was
disageement among several Membersof the United Nations with re,gard
to the existence of the Mandate and the obligations of international
accountability, the view of the United Nations asa whole, expressed166 SOUTH WEST AFRICA
through its resolutions on the subject, demonstrated its understanding
that the Mandate remained in full force and effect, and that the United
Nations had supervisory authority over the Territory. This isreinforced
by the United Nations treatment of the Palestine Mandate.
Respondent, through the several declarations and statements hereto-
fore discussed, alsodemonstrated its recognition of the continuance of
the obligations of the Mandate after the dissolution of the League. It
was not until the autumn of 1947 that supervisory authority of the
United Nations was questioned, and not until November 1948 was it
argued by Respondent that the Mandate had lapsed. .
Hence, the actions of the League Assembly, of the United Nations,
and relevant statemerits and actions of the Respondent, combine to
support the concIusion that the Mandate and a11of the obIigations con-
tained therein survived the dissolution of the League, and that the
United Nations replaced the League asthe supervisory organ over the
Mandate.
This concludes Part B of this phase of the Oral Proceedings, and,
with your permission Mr. President, the Applicants, at the appropriate
time, will place before this honourable Court legal issues connected with
the obligations of Respondent to submit to international supervision,
which will be Part C of the present phase of these proceedings. 5. AIIGUMEKT OF MR. GROSS
Mr. President and Members of this honourable Court, in my opening
presentation 1had the honour to present to the Court the principal points
upon which the Applicants rely in support of their submissions that the
Respondent has violated, and is violating, its obligations under the
mandate.
PART C
The obligations in question, as1 have pointed out, are those com-
prising the two groups or kinds of obligations described in the Advisory
Opinion of this honourable Courtof II July 1950 a,swellasin the Judg-
ment of the Court in 1962n ,amely (if I may quote from the 1962 Judg-
ment) "obligations both towards the inhabitants of the mandated ter-
ritory and towards the League of Xations and its 3Iembers".
As this honourable Court held in the 1962 Judgment, the Applicants
"have a legal right or interesin the observance by the mandatory" of
both of these groups of obligations. (That is quotefrom I.C.J. Reports
19My colleague, hlr. Moore, has presented to the Court the Iiistorical
background concerning the origin, nature and contents of the mandates
system, as well as events, transactions, undertakings and instruments
made, formed or occurnng during the period 1945 to 1949 that is to Say,
the period which included the formation of the United Nations, the dis-
solution of the League of Nations, and the commencement of operations
of the United Nations. This material, which has now been presented to
the Court as Part B of this phase of the Oral Proceedings,is, we respect-
fully submit, a foundation, as well as a background, upon which rests
the contentions of both Parties to the presentroceedings, in respect of
both groups or kinds of obligations, that is to Say, those towards the
inhabitants and those towards the international çupervisory organ.
A proper evaluation and interpretation of alsuch events, transactions
and undertakingsmust, we submit, proceed from this point of departure.
The aspect of the cases to which 1 now address myself, if the Court
please, concerns that group of Respondent's obligations which, in the
words of the Advisory Opinion of 1950,relate to the machinery for im-
plementation. In the words of the Court, in the 1950 Opinion "these
include the supervisory functions formerly exercised by the League of
Nations" and now, in the Applicants' submission, bythe United Natlons.
They include also, and very importantIy, the right of the Applicants,
already settled by this honourable Court, to seek recourto the judicial
process for protection "against possible abuse or breachcs of the man-
date", in the words of the 1962Judgment, at page 336.
In their written pleadings, the Applicants have dealt first with the
obligations of the mandatory towards the inhabitants of the Terntory,
followed by a discussion of the Respondent's obligations towards the168 SOUTHWEST AFRICA
international supervisory machinery. In view of the fact that this order
has been reversed in the Kespondent's written pleadings, the Applicants
do so iikewise with respect to their own presentation, for the Court's
convenience and for clarity of presentation.
The Applicants' subrnissionsrelevant to contentions which are ad-
vanced at this stage are Submissions Nos. 1, z,5, 7, 8 and g, set forth
in the Reply (IV), at page 520.197 to198 andincorporated by reference
Respondent does not dispute or deny the Applicants showing that
Respondent has failed and refused, and continue to fail and refuse (1)
to render to the General Assembly of the United Nations annual or other
reports containing information with regard to the territory and indi-
cating the measures it has taken to carry out its obligations under the
Mandate, and (2)to transmit petitions to the United Nations from the
inhabitants of the territory. On the contrary, Respondent contends
(and 1quote £romthe Counter-Mernorial, II, at p. 164)that its-
"obligations to report and account to, and submit to the supervi-
sion of, the Council of the League of Nations, lapsed upon disso-
lution of the League and have not been replaced by obligations to
submit to the supe~sion of any organ of the United Nations or
any other organization or body".
Mr. President, an issue of law thus is squarely joined which, in the
Applicants' respectful submission, is susceptible only of an unqualifiedly
aflirmative or negative determination and judgment.
If I may pass now to a consideration of the supervision in the plan of
the Mandate.
Mr. President, the history of the origin, nature and content of the
mandates system, which has been presented to the Court, makes crystal
clear that the most basic substantive innovation introduced by the
mandates system was that of international accountability. Such accoun-
tability, ashas been pointed out, forms the very foundation of what
the Court has called "the novel international regime", instituted by the
Mandate. It is a ht pnnciple. Accountability is expressed in the man-
dates system by the imposition upon the Mandatory of an obligation to
submit to continuing internationaladministrative supervision, so long as
the Mandate exists, or endures; and to submit to the ultimate recourse
of judicial protection when necessary, and when the appropriate con-
ditions of Article 7, paragraph 2,the compromissory clause, have been
met.
In 1950 the Court explicitly so held on both counts, both with res-
pect to the submission of administrative supervision, and with respect
to submission of unsettIed disputes to the Court,in tems of the com-
promissory clause of Article 7.
In 1962, it is submitted, although the Court explicitly so heId with
respect to judicial protection, it also, by necessary implication, as 1
shallendeavour to show,didso with respect to administrative supervision.
The innovation of international accountability also is expressed, as 1
shaU elaborate shortly and as I attempted to set forth in my opening
sumrnary in Part A of this phase of the Oral Proceedings, by the re-
quirement that the consent of the League Council, now the United
Nations, be obtained for any modification of the terms of the Mandate.
This is the rule of the Mandate, expressed in the first paragraph of ARGUMENT OF MR. CROSS =hg
Article 7, and stated in another way .it reflects the basic concept of the
hlandatory's accountability.
Such accountability is the major element wbich distinguishes the
mandates system from the previously accepted concept-pnor to the
mandates system and antecedent to the Covenant of the League of
Nations-the previously accepted concept of the moral obligation of
colonial regimes in existenceprior to that time. It is the embodirnent of
the pnnciple of no annexations, which is expressed by the mandates
system, and which my colleague, Mr. Moore, has adurnbrated to this
honourable Court in hisremarks concerning the origin, nature and back-
ground of the mandates system itself.
It has been submitted inour opening cornrnents, Mr. President, that
to do, and ha nothing in comrnon, with the subjective motivations oring
the intent of an advanced nation adrninistering a non-self-goveming
territory. Indeed, the requirement of international supervision is not
inconsistent with a presumption that an administering power will, and
must, endeavour in good faith to promote the weifare of the inhabitants;
this would seem to be an axiomatic, primitive and basic requirement,
underlying al1 internationil agreements, or any other agreements of
any character. The submission to international accountability is based
upon the premise that decisions affecting the destinies of dependent
peoples should not be unilateral and unsupervised, however well-inten-
ded, or well-motivated, or ill-intended, or ill-motivated such decisions,
with respect to their destiny, progess, and welfare, may be. It is for
this reason, among others, that the Applicants reject the contention of
the Respondent that the test or measure of the obligations of Article 2,
paragraph 2, of the Mandate, lies in the good or bad faith of Respondent
in respect of the procedures, methods, or conduct under those obliga-
tions.
The innovation imported into the mandates system was that the
sacred trust of civilization must be assured by meanç of an enforceable
check or confirmation on thepart of the organized international commu-
nity in respect of the actual performance of the administering power,
and the consequences of its conduct and of its performance objectively
appraised. And, indeed, without such accountability, as the facts and
events of recent years has made only too clear, and continues to make
clear, no check or control of an international character would exist
over the administration of the territory.
Administration without accountability of an international character,
administration only "in the spirit of the old mandate", to borrow a
characterization frequently pronounced by Respondent's highest officials.
is inherently incompatible with the essential nature and very basis of
the madates system. It follo~vs,aimost asa quod erat demonsfrandum,
that administration of the territory, in "the spiriofthe old mandate",
without international supervision, is a contradiction in terms. The
"spirit of the old mandate", as has been shown, and as 1shall endeavour
to elaborate further, contains, as of its essence, the duty to submit to
international supervision. Administration without such submission
would be incompatible 116ththe Mandate, both in letter and in spirit.
From this conclusion follows yet another, namely that to govern the
territory "in the spirit of the mandate", but without international
supervision, is, in fact, a mutilation of the Mandate, in the terrn used=?O SOUTH WEST AFRICA
by Judge Bustamante in his separate opinion in 1962, to which I have
referred in my opening remarks. Acting "in the sprit of the mandate"
without submisçion to international supervision, or the unsupervised
government or regulation of the territory, is,asa matter of mandate
law, mandate regulation, pev sea violation of the Mandate if, aç we as-
sume and asthe Court hastwice held, the Mandatecontinues inexistence.
In short, the aüthors of the mandates system incorporated in the
Covenant the requirement for normal securities to assure performance
of the trust, notwithstanding their undoubted assumption that the
Mandatory would be motivated, ifthat term can be used in respect of a
collective andshifting group of individuals cornprising a government, by
the purpose of discharging the trust in good faith. If the powers con-
cerned had entertained doubts upon this score,itmustbe presumed that
thep would not have conferred the responsibilities upon the Mandatory
in the first place. The measure of the obligations, as1shall endeavour to
maThe essentialityofesupervision consists notinpolicing the motivation
of the Mandatory, but in assuring that the results of its conduct are
compatible with the mandate objectives. It was for this reaçon that in
the decisive general considerations, formulated in the 1950 Advisory
Opinion, theCourt found:
"The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports is an important
part of the Mandates Systern. When the authors of the Covenant
created this spstem, they considered that the effective perfor-
mance of the sacred trust of civihation by the mandatory Powers
required that the administration of mandated territories shouldbe
subject to international supervision." (I.C.JReportsIg50, p. 136.)
The Court went on to say that the rights of the peopIes of mandated
territories could not be "effectively safeguarded without international
supervision and a duty to render reports to a supervisory organ".
(I.C.J. Reports1950p ,. 137.)
The Court in 1950 distinguished what it called "the two kinds" of
international obligations,ssumed by Respondent under the Mandate,
as 1 have said; the first group, in the words of the Court, was defined
in Articlezz of the Covenant and in Articles z to 5 of the Mandate. In
the Advisory Opinion of 1950 ,he Court referred to these substantive
obligations andstated:
"These obligations represent the very essence of the sacred trust
ofcivilization. Their raison d'étreand original object remain. Since
their fulfilment did not depend on the existence of the League of
Nations, they could not be brought to an end rnerely because this
superviso~ organ ceased to exist. Nor could the right of the popu-
lation tohave the Territory administered in accordance with these
rules depend thereon." (I.C.J. Reports1950 ,. 133.)
[Publi hearingof 22 Marck 196511
Mr. President, if it please the Court to recall, at the conclusion of the
Court's session on Friday was on the point of commencing a discussion
of the AppIicants' contentions with respect to that phase of interna-
tionaI supervision or accountability which relates to the right of recourse ARGUMENT OF MR. CROSS I7I
to judicial protection. 1 had endcavoured, in introducing that subject,
to make clear the fact that the authors of the mandates system had in-
corporated into the Covenant the requirement for normal securities to
assure performance of the trust, notwithstanding their assumption that
the filandatory would be rnotivated by the purposes of discharging the
trustin good faith, and that, asa concomitant of the nonnal security,
the authors of the Covenant and the express provisions of the Mandate
in Article contemplated that there would be a right of judicial recourse
under the circumstances andin the terms foreseeninArticle 7,paragraphz.
With your permisçion, Mr. President, 1 should ilow like to address
myself to the right of recourse todicial protection. Respondent, in its
written pleadings, has revived arguments which were fully elaborated
before this honourable Court in1962w,ith respect to the question of the
lapse or othenvise of international supervision over the Mandate, in-
cluding the right of judicial recourse. In the 1962Judgment this honour-
ableCourt reafiïrmed the holding of the Court in 1950 in the Advisory
Opinion, in the following terrns:
"The unanimous holding of the Court in 1950 of Article 7 of the
Mandate continues to reflect the Court's opinion today. Nothing
has since occurred which would warrant the Court reconsidering it.
AU important facts were stated or referred to in the proceedings
before the Court in1950.
The Court finds that, though the League of Nations and the
Permanent Court of International Justice have both ceased to exist,
the obligation of the Respondent to submit to the compulsory ju-
risdiction of that Court was effectively transferred to this Court
before the dissolution of the League ofNations. By its own resolution
of18 April 1946the League ceased to exist from the following day,
i.e., 19April 1946."
And 1 stop there in my quotation from the 1962Judgment, at page 334.
The 1962Judgment thereupon, after referring to the actions taken
by the Parties in respect of ratifications of the Charter of the United
Xationç, and the consequent acceptance of the compulsory jurisdiction
of this Court in lieu of that of the PermanentCourt, concluded asfollows:
"This transferred obligation was voluntarily assumed by the
Respondent when joining the United Nations. There could be no
question of lack of consent on thepart of the Respondent as regards
this transfer to this Court of the Respondent's obligation under
Article 7 of the Mandate to subrnit to the compulsory jurisdiction
of the Permanent Court. The validity of Article 7,in the Court's
view, was not affected by the dissolution of the League, just asthe
Mandate asa whole is still in force for the reasons stated above."
I have quoted, Mr. President, from page 335 of the 1962Judgment.
The phrase in the Judgment, "for the reasons çtated above", refers,
inbv alia, to the discussioby this honourable Court in the 1962Judg-
ment of considerations set forth in the 1950Advisory Opinion. Tn that
Opinion, as the 1962 Judgment observed, the Court discussed the two
kinds of international obligations assumed by the Respondent under
the Mandate, to wit, those "directly related to the administration of the
Territory", and those "related to the machinery for implementation".
In the context of the Court's references to the50 Advisory Opinion,
this honourable Court reached the conclusion in the 1962Judgment that: SOUTH WEST AFRICA
172
"The findings of the Court on the obligation of the Union Gov-
ernment to submit to international supervision are thus crystal
date would be to exclude the very essence coofethe Mandate. That-
theLeague of Nations in ending its own existence didnot terminate
the Mandates but that it definitely intended to continue them by
its resolution of 18 April 1946 will be seen later when the Court
States its views as to the true effect of the League's final act of
dissolution on the Mandates."
That is from page 334 of the 1962 Judgment.
Notwithstanding the reasons advanced by the Court in the Igjo
Advisory Opinion, on the basis of which the Court concluded that the
Mandate as a whole is in existence and that its provisions with regard
to international supervision remain in fuii force and effect, and in the
light of the reasoninand conclusions of the Court in its 1962Judgment,
to which I have just referred, Respondent nonetheless, and in the teeth
of such findings and conclusions, not only reasserts and reargues its
"new facts" contention-a phrase which 1 shallexplain in a moment-
but goes so far as to Say that:
"The Court in 1950 treated the obligation of accountability as
being severable from other aspects of the Mandate, and based its
judgment regardingsurvival of accountability on a finding which
in effect rested on a tacit agreement considered to have been entered
into during 1945-194 p6oviding for substitution of supervisory
organs. And in 1962 the Court Ieft open the question whether the
obligation of accountability had lapsed."
This is from the Rejoinder, V, at page 73.
Indeed, Respondent goes even further and makes the somewhat sur-
pnring comment that :"Applicants have made no attempt to answer
Respondent's analyses in the Counter-Mernorial of the 1950 Opinion
and 1962 Judgment in these respects."
The relevant sections of the Counter-Mernorial are cited in footnotes
on page 73 of the Kejoinder (V).
In al1deference, Mr. President, the Applicants have considered, and
rernain of the view, that the Respondent's analyses in the Counter-
Memorial in these respects are both self-answering and self-defeating.
If an implication is soüght to be drawn from Respondent's quoted
comment concerning the asserted failure of the Applicants to attempt
to answer analyses in the Counter-Memonal of the ïgjû and r962 Judg-
ments ofthe Court-if an implication issought to be drawn from Respon-
dent's comment that the Applicants either tacitly agree with such
analyses made by Respondent, or that they have omitted comment
thereon through inadvertence, the Applicants take the opportunit y of
assuring this honourabie Court that neither of such implications is
warranted. On the contrary, the Applicants submit respectfully that
the Court's reasons and conclusions in both the 1950 Opinion and the
1962 Judgment speak for themseives, and do not require analysis or
exposition by the Applicants in this respect. It is subrnitted that the
Respondent's analyses of both the 1950Opinion and the 1962Judgment
are irreconcilable with their clear intendment and actual purport.
The meaning, weight and scope of the Judgment of this honourable
Court of 21 December 1962was a subject of consideration and analysis ARGUMENT OF MR. GROSS 173
bythe honourable President ofthe Court in hisseparate opinion ap ended
to the Judgment of the Court in the case concerning the n Vrther.ri
Cameroons(the Judgment of 2 December 1963,at pages 68-70ofthe I.C.J.
Reportsof that year). In the light of the cogency and clarity of the treat-
ment of this subject by the honourable President-if1may be permitted
the liberty of characterizing the President's cornments thereon-itmay
be of convenience to the Court to set forth as part of the record of these
proceedings the follo\ving passages from the separate opinion of the
honourable President, and with the Court's permission 1 should like to
quote therefrom :
"In the South ?Vest Africa cases the view of the Court that
Article 7of the Mandate Instrument was inherently necessary or
essential to the functioning of the Mandates System, giving effect to
the concept of what ha been termed the 'judicial protection of the
sacred trust', was of the very heart of the Court's reasoning. This
view found its first expression in the Judgment when the Courtwas
dealing, not with the question of what was a dispute within the
meaning ofArticle 7 of the Mandate, but with the question raised
by the Second Objection of the Union of South Africa which centred
on the term 'another Member of the League of Nations. ..'in that
-4rtide. The Union of South Africa had claimed that Ethiopia and
Liberiadid not have the status required by the Article to invoke
the jurisdiction of the Court since neither wasany longer a hlember
tion wasclaimed to be based upon the natural and ordinary meaningn-
of the words 'another Member of the League of Nations', did not,
as 1 understand the Judgrnent,-deny that the natural and ordinary
meaning of the words were as contended for bythe Union of South
Africa. It stated that theule of interpretation that recourse should
be had, in the first place, at least, to the ordinary and natural mean-
ing of words was not an absolute rule of interpretation and then
proceeded to observe that-
'Where such a method of interpretation results in a meaning
incompatible with the spirit, purpose and context of the clause
or instrument in which the words are contained, no reliance can
be validly placed on it.' (I.C.J. Reports 1962, at p. 336.)
The Court then proceeded to state its reasons why reliance, in the
light of this observation, could not be placed upon the natural and
ordinary meaning of the words in question. The centre of its reasons
waç the assertion that 'judicialprotection of the sacred trust in each
Mandate was an essential feature of the mandates system'; the
administrative supervision by the League was 'a normal security'
to ensure full performance by the Mandatory of the 'sacred trust'
but 'the specially assigned role of the Court was even more essential,
since it was toserve as the final bulwark of protectionby recourse
to the Court against possible abuse or breaches of the Mandate';
for 'without this additional security the supervision by the League
and its hlembers could not be effective in the last resort' since super-
vision by the League Council was subject to the rule of unanirnity
of its Members, including the approval of the Mandatory itself. In
the event of a conflict between the Mandatory and other Members
of the Council, in the last resort, the Court continued, 'the onlyI74 SOUTH WEST AFRICA
course left to defend the interests of the inhabitants in order to
protect the sacred trust would be to obtain an adjudication by the
Court .. .'This, it said, could only be achieved bya State a Member
of the League invoking the adjudication clause in the Mandate
In'ltuwast.for this au-important purpose that the provision was
couched inbroad terms embracing "any dispute whatever" .. .lt is
thus seen what an essential part Article 7 was intended to play as
one ofthe secunties in the Mandates System for the observance of
the obligations by the Mandatory .. .'(I.C.J. Reports1g62, p.337.)
Moreover [the honourable President continues and concludes
in the relevant passage 1 am taking the liberty of citing from the
hTorthernCameroonsseparate opinion], this 'essentiality of jüdicial
protection for the sacred trust', the right to imylesd the Mandatory
before the Permanent Court, was 'speciallyand expressly' conferred
upon the Mernbers of the League 'evidently also because it was the
most reliable procedure of ensuring protection by the Court, what-
ever might happen toor arise from the machiner). of administrative
supervision'."
The honourable President concluded his opinion, so that 1 rnay
present it to the Court respectfully in context, by stating:
"ln ttie Dissenting Opinion of myself and Judge Sir Gerald
Fitzmaurice in those cases there appear the reasons why we were
unable to agreewith this reasoning ofthe Court, and there is no need
to repeat them here."
The reasons referred to are the following.
"There was, the Court said, an 'important difference' in the struc-
ture and working of the system of supervision of mandated terri-
tories under the League and that of trust territories under the
United Nations, namely that the unanimity rule in the Council of
the League had under the Charter been displaced by the rule of a
two-thirds majority. This observation of the Court waç directed to
mcet an argument that Article 7 was not an essential provision of
the Mandate Instrument for the protection of the sacred trust of
civilization, in support of which argument attention had been
called to the fact that three of the four 'C'Mandates when brought
under the trusteeship provisions ofthe Charter ofthe United Nations
did not contain, in the respective trusteeship agreements, any ad-
judication clause. Itwas in the course of dealing with this argument
that a statement ofthe Court, greatly relied upon by the Respondent
in thiscase [that is, thNorfkern Canaeroons case], to distinguish the
present case from that of South West Africa was made. The Court's
statement [said the honourable President], was as follows:
'Thus legally valid decisions can be taken bp the General Assern-
bly of the United Nations and the Trusteeship Council under Chap-
ter XII1 of the Charter without the concurrence of the trustee
State and the necessitu for invoking the Permanent Court for judi-
cia1 protection u~hich prevailed under the Mandates System is
dispensed with under the Charter.' " (I.C.J. Reports1963,pp. 68-70.)
Mr. President, I had begun to read and conclude the honourable
President 'sstatement in the separate opinion in the hrorthern Cameuoons ARGUMENT OF NR. GROSS I75
case, and 1 should like to read severai sentences more to assurc that,
to the best of my ability, 1 state the honourable President's comments
in proper context.
As 1started to read before:
"In the Dissenting Opinion of myseIf and Judge Sir Gerald
Fitzmaurice in those cases [theSouth WestAfrica cases] there appear
the reasons why we were unable to agree with this reasoning of the
Court, and there is no need to repeat them here. It iç sufficient for
the moment to note the reasoning of the Court and to observe that
it was directed to establishing that in the events which happened
everofaits dissolution, a unanirnous agreement among aii Memberhe
States that the Mandate should be continued to be exercised after
the dissolution of the League of Nations in accordance with the
obligations defined in the Mandate Instrument, including that of
the Mandatory under the adjudication clause; that this specific
obligation survived and necessarily involved reading iato the clause
the words 'Members of the United Nations' in place of the words
'Members of the League of Nations'." (Ibid., p.70.)
1 thus end my quote from the opinion of the honourable President
appended to the Judgment inthe NorthernCameroons case.
1have, with respect, and with apology, quoted at this length from the
honourable Yresident's opinion because it does seem to me, as 1 stated
at the outset of the quotation, that it reflectsa ciear, cogent, un-
answerable analysis of "the very heart" of the Court's Judgment in
1962 and that further elaboration is hardly necessary by way of comment
or analysis of that Judgment.
In the liglit of the analysis which 1 have just read by the honourable
President, 1thcrefore will forbear to comment further in this context on
that subject.
It will be recalled, hlr. President, as 1 pointed out in my summary of
legal issues, in PartA of this phase of the Oral Proceedings, that this
honourable Court in the 1962 Judgment noted that Respondent, at that
tirne, in the Court's words-
". ..argued that the rights and obligations under the >fandate in
relation to the administration of the territory of South West Africa
being of an objective character stillxist ...".(I.C.J. Reports1962,
PP. 332-3334
It was, of course. clear on the face of Respondent's statement before
this honourable Court in 1962, and in itç written pleadings on the Prelim-
inary Objections, that Respondent's argument in this respect was an
alternative argument. It was directed to the proposition that, in respect
of this honourable Court's jurisdiction-which was the central leg a1'ssue
joined in 1962 on the Preliminary Objections-
"... eveii in the event of a total Iapof the Mandate as a treaty or
convention, itcould stilhave an objective existence independently
of a treaty or convention. And 1 Say [this was >Ir. de Villiers speak-
ing] that 1 am perfectl): prepared to accept that proposition for
purposes of argument, because it does not affect my contention
relative to jurisdiction. need not, at this stage, açk the Court to
choose between those two alternatives, because bath have the17~ SOUTH WEST AFRICA
same result as faas jurisdictioniçconcerned." {Counsel'sstatement
in Oral proceedings,19 Oct. 1962,afternoon.)
Respondent 's alternative argument, thus submitted avgaendo, was,
however, thought relevant by the Court to its interpretation of the1950
Advisory Opinion, an interpretation advanced by Respondent in 1962,
and now repeated, that :
"The Court in 1950 treated the obIigation of accountability as
being severable from other aspects of the Mandate ..." (V, p. 73.)
In the words of Respondent'ç learned Counsel during the 1962Oral
Proceedings :
".. .if the elements contained in Articles 6 and 7 are severable from
the rest of the Mandate institution, then acceptance of my proposi-
tions concerning Articles 6 and 7does not result in a conclusion that
survives as a trust without, however, international accountability
or international supervision, and without compulsory jurisdiction
on the part of the Court." (Oral proceedings 1962, 19 Oct. 1962,
aftemoon.)
As 1have said, &Ir.President, Respondent's contention, even though
advanced in the alternative aiid arguendo,was based and remains based.
as itisrenewed in the written pleadings now before the Court, upon the
untenable premise that the mandate provisions, as a matter of mandate
Iaw, co~lldsurvive as a so-called trust, "without", to use the Respondent's
national supervision, and without compulsory jurisdiction on the parter-
of the Court". This,we submit, is a contradiction in tenns, whether made
as an alternative argument, arguelzdo or otherwiçe.
It was, no doubt, we submit with respect, for this reason that the
Court, in the 1962Judgment, afternotirig Respondent's argument, pointed
out that :
"SimiIar contentions were advanced by the Respondent in 1950,
and the Court in its Advisory Opinion ruled:
'The authority which the Union Government exercises over the
Territory isbased on the Mandate. If the Mandate lapsed, asthe
Union Government contends, the latter's authority would equaUy
have lapsed. To retain the rights derived from the Mandate and
to deny the obligations thereunder could not be justified.(1.CJ.
Reports1950, p. 133.)" (1.C.1. Reports1962, p. 333.)
The 1962Judgment, after quoting the passage which 1have just fead
to the Court, proceeds, in the same context, with a further analysis of
the 1950 Advisory.Opinion, and concluded :
"The findings of the Court on the obligation of the Union Gov-
ernment to submit to international supervision are thus crystal
clear. Indeed, to exclude the obligations connected with the Man-
date would be to exclude the very essence of the Mandate." (1962
Judgment,p. 334.)
It \vil1thus be seen that the substance of Respondent's present first
aiternative argument, that the supenrisory provisions of the Mandate
have lapsed aithough not carrying to their death the balance of the
Mandate, was first advanced to the Court in 1950 and rejected in the ARGUMENT OF MR. CROSS I77
r950 Advisory Opinion. The same argument wasadvanced in 1962, and
again rejected. The same argument is today advanced.
In the light of the foregoing, it seemssufficient to note, without further
comment or characterization, that Respondent's argument concerning
the severability of Articles and 7 does not gain force or merit upon
repetition for the third time.
In distinguishing the two kindç or groups of obligations asçurned by
Respondent under the Mandate, that is, these relating respectively to
the administration of the Territory and to the machinery forimplemen-
tation, the Court commented:
"mat expression was given to 'the right of the population to
have the Territory administered in accordance with these rules' by
the framers of the mandates system? It was no more and no less
than the obligation of accountability of the mandatory, which took
the form of the 'second group of obligations' ",
(This is from the1950 Opinion and the Court goes on to say-)
"which in turn related to the machinery for implementation, and
was closely linked to the supervisioand control of the League."
Hence, the Court concluded, if the first group of obligations stillexisted
(those tou7ards the inhabitants),theright of the population to have the
territory administered in accordance therewith also remained.
There is one, and only one, way in which the right to have the Tem-
tory adrninistered in accordance with "the very essence of the sacred trust
of civilization" (in the language of the 1jû Opinion) can be fulfilled.
"No such rights of peoples [said the Court] could be effectively safe-
guarded without international supervision and a duty to render reports
to a supervisory organ." This is from the 1950Opinion..
As a matter of logical deduction, it is manifest that the continued
vitality of the rights of the inhabitants with respect to the first group
of the substantive obligations requires that such rights be subject to
administrative supervision and judicial enforcement. To require that
such rights be capable of enforcement is to require that the territory be
administered in accordance with such rights-these are complementary
and mutually inter-related rights and obligations.To require this is to
require that the Mandatory, so long as it retains rightsnder the Man-
date, must be subject to the obligations of accountability, including
judicial protection.
&Ir.President, in the Judgment a£ z December 1963in the case con-
cerning the NortheritCmnevoons,the Court made clear the nexus linking
the several forms of international supervision and accountability in
respect of an international trustcognate to that now before the Court.
In that case, as the Court pointed out, the whole system of administrative
supervision under the relevant trusteeship agreement had cornetoan end
as a result of a decision of the United Nations General Assernbly.
On the basis of the foregoing consideration (that is to Say the end of
administrative supervision), the Court drew the following conclusion:
"The Court cannot agree that under these clrcumstances the
judicia1 protection claimed by the Applicantto have existed under
the Trusteeship System, would have alone survived when ail of
theconcomitant elements to which it was related had disappeared."
(I.CJ. Reports 1963, at p. 36.) SOUTH WEST AFRICA
178
In the cases now before this honourable Court. the Court has held that
the judicial protectionclaimed by the Applicants has continued to exist,
notwithstanding the dissolution of the League of Nations, and the dis-
appearmce of the old Court. On a parity of reasoning with the finding
just cited frorn the Nodhern Cameroons case, it cannot be assumed that
the Court's decision in the 1962Judgment is to be interpretedas holding
that the only form of international supervision which has survived is
that of judicial protection, without the concomitant elements implicit
in the system of administrative supervision, along with judicial protec-
tion. Indeed, in our submission, it would seem to follow as an a fortiori
proposition, that the Court's holding conceming the survival of judicial
supervision, which the honourable Court characterized in the 1962 Judg-
ment as the "normal security".
Mr. President, 1 have, in presenting to the Court the problems involved
in the survival of judicial protection, attempted to show the relationship
between administrative supervision and judicial protection as inter-
related concomitant elements of one system of international supervision.
1 shall shortly, with the Court's permission, come to a separate, more
detailed analysis of the elernents inherent in the systern of administrative
supervision itself, but 1 have taken the liberty of referring to both ad-
ministrative supervision and judicial protection in this phase of my
rernarks because oftheir inter-relationship and becauçe of the Applicants'
respectful submission that the Court having held that judicial protection
haç survived, it iollows, in our view, as an fortiori propoçition that the
concomitant element of administrative supervision likewise must be
deemed to have survived in accordance with the reasoning of the Court.
The obligations of international supervision, accordingly, are of the
foilowing three inter-related kinds. Thep comprise the obligation to
submit to administrative supervision and the obligation to subrnit to
judicial protection. And thirdly, as1 shall show later, they include also
the duty to seek the consent of the United Nations, the administrative
organ in respect of any proposais to modify the terms of the hIandate.
It seems clear that emphasis is properly to be placed upon the use
of the phrase by the Court "one of the securities", in the passage from
the 1962Judgment Tshall now quote to the Court. The Court referred to
the obligation to submit to judicial protection, and1 quote-"as one of
the securities in the Mandates System forthe observanceof the obligations
by the Mandatory"-"one of the securities in the mandates system".
The history of the dispute now before the Court, Mr. President, in
which the normal security for the protection of the rights of the inhabi-
tants has been frustrated by virîue of Respondent's failure and refusa1to
discharge its obligation to submit to international supervision, even
while retaining rights under the Mandate, underscores the significance
of the Court's description of the right to implead the mandatory before
the Court as (what the Court described as) "the most reliable procedure
of ensuring protection by the Court, whatever might happen to or arise
from the rnachinery of administrative supervision". (I.C.J. Reports1962,
P. 338.)
The Court's concept in respect of the importance of judicial protection,
as I have pointed out, was characterized bythe honourable President, in
his separate opinion in the NorthernCanzeroonscase, as "the very heart
of the Court's reasoning". ARGUMEKT OF MR. CROSS I79
As 1 have also atternpted to point out, Mr. President, Respondent, in
terms of Article 6, is under a duty to account adrninistratively to a
supervisory organ, as well as to subrnit to the jurisdiction of this Court.
In terms of Article7, paragraph 1,of the Mandate, Respondent is also
under a duty to account to that same organ (to the United Nations) in
respect of modifications of the terms of the Mandate, and to seek consent
thereto.
Therefore, inconclusion of this section of my argument, before turning
to an analysis of administrative supervision itself, may1 be perrnitted to
summarize again, by pointing out the inter-related, concomitant aspects
of administrative supervision, the right of judicial recourse, and the
duty to obtain the consent of the administrative organ to any proposed
modifications of the terrns of the Mandate.
Keeping in.mind, Sir,the inter-relationship of these three concomitant
elements, 1turn, with the President's permission, to a discussion of the
provisions of the mandate concerned with administrative supervision and
Article 22, paragraphs 7-9,of the Covenant of the League of Nations,
as well as Article 6of the Mandate itself.
$Ir. President, in PartA of this phase of theOral Proceedings, as well
as in the remarks just concluded, 1 have referred to the Court's holding
in both the 1950 Advisory Opinion and inthe 1962 Judgment, that the
validity of the compromissory clause of ArticIe 7 "was not affected by
the dissolution of the League, just as the Mandate as a whole is still in
force". That is frorn the 1962 Judgment, at page 335.
In its written pleadings, Respondent requests the Court to reconsider
and reverse its holding with respect to the validity of the compromissory
clause of Article 7, as 1 have just described. In support of its request,
Respondent re-argues the points presented to the Court in 1962, in
substantially the sarne form and terms, and 1 have not, with respect,
regarded it as necessary to do more than refer to the comments by the
honourable President summarizing cogentIy the meaning and purport
of the 1962 Judgment of the Court, with respect to the judicial protection
phase.
In addition, Respondent has advanced a new form of argument, as a
new alternative contention, to the effect that the asserted lapse of
Article 6 of the Mandate has brought about collapse of the Mandate as a
whole, on the basis of the premise-advanced by Respondent only in
the context of its second alternative contention-that the mandate
provisions in respect of administrative supervision are essential in the
mandates system and an inseverable element of the Mandate. This is the
premise of the second alternative contention.
Inasmuch as the Appiicants contend that the mandate provisions
irnposing upon the Respondent the obIigation to submit to administra-
tive supervision are, indeed, inseverable and integral to the Mandate, it
appears that there is comrnon cause in this proposition, at least in so far
as the Respondent's second alternative contention is concerned. Re-
spondent, in the Rejoinder (it is only fair to point out to the Court),
expresses some concern Iest the Applicants' reference to "common cause"
between the Parties in respect of the integral and inseverable nature of
international supervision-that reference to "common cause" in that
respect might create a misleading impression. In view of Respondent's
method of pleading and its highly selective use of the premise of essen-
tiality of administrative supervision (which is lirnitcd, as I Say, only180 SOUTH WEST AFRICA
to the contest of its second alternative argument), there seerns little
purpose to be served by engaging in debate on the matter of whether
there is "common cause" in this respect or not. It seems important to
the Applicants to come to grips tviththe problem itself, which 1shall now
endeavour to do.
The Applicants, accordingly, wilt attempt in what follows, to support
tions to submit to international administrativedate supervision are basic
obligations essential to the Mandate and inseverable from the balance.
As the Applicants have pointed out in Part A of this phase of the Oral
Proceedings, acceptance of Respondent's first alternative contention,
according to which administrative supervision has lapsed without how-
ever coliapsing the balance of the Mandate, would leave the Applicants
and other States similarly situated with no protection against asserted
abuse or breaches of the Mandate other than through recourse to judicial
protection which is, in any event, the indispensable hal bulwark.
Under the Applicants' first alternative contention, pursuant to which
Article 6, the administrative supervision provision, would faii away,
leaving the balance ofthe Mandate intact, Article 7, the compromissory
clause, would remain in effect. The Applicants likewisehave pointed out,
citing the Norlhwn Cameroons Judgment as1 just have done, that ad-
ministrative supervision is a concomitant of the right of judicial recourse.
We have, moreover, quoted from the Judgment of the Court in 1962
as well as from opinions of learned judges in the 1962proceedings, which
I quoted in the opening phase of Our presentation, showing that, in the
concise phrase of the honourable President and Judge Sir Gerald Fitz-
maunce, in their joint dissenting opinion in 1962, Articles 6 and 7 of
the Mandate stand as "designed portions of an inherent and integrated
whole" (I.C. J. Re+orts 1962, p. 553).
The arguments advanced by Respondent in the context of its second
alternative argument demonstrate persuasively that administrative
supervision was regarded by the authors of the mandates system aç an
integral element of the mandates system, asbeing of the essence thereof,
and as being an inseparable provision of the Mandate. This being so,
there might appear to be small justification orwarrant for the Applicants
to make a demonstration tending toward the same conclusion.
Nevertheless, in the light of Respondent 's rather hypothetical and
conditional approach with respect to this premise, particularly inasmuch
as Respondent proceeds from the premise of essentiality of administrative
supervision only in the context of one branch of its case, that is in respect
of the second alternative contention, the Appiicants respectfuHy-adduce
considerations and arguments, demonstrating that the obligation to
submit to international administrative supervision is undoubtedly an
essential element of the mandates system, that it imported a basic obli-
gation into the Mandate, aça matter of mandate law, and that the events
and transactions which took place at the time of the dissolution of the
League of Nations leave no room for doubt that the obligations of inter-
national administrative supervision survived the disso1ution of the
League, and that the United Nations replaced the League of Kations
as the administrative supervisory organ,
In Part A of our presentation, Air.President, 1summarized the major
legal premises of the respective Parties, addressed to the issues posedby
Respondent's contention that administrative supervision has lapsed, ARGUMENT OF MR. CROSS 181
and the Applicants' counter-contention that the United Nations has
replaced the League assupervisory organ over the Mandate, in terms
of Article22 of the Covenant and of Article Gand Article 7, paragraph I,
ofthe Mandate.
1 venture to sumrnarize again Kespondent's two major contentions
in this regard asfollows.In assuming the Mandate, the obligation under-
taken by Kespondent, "was not one to submit to 'international super-
vision', but, rather, to submit to a specific supervision of particular
LeWhen the League dissolved and the United Nations commenced opera-
tions-so mns their second major premise-the latter did not decide to
assume supervisory authority over the hlandate, nor did Respondent
agree to submit to supervision bythe United Nations.
The Applicants have sought to point out that appraisal of Respon-
dent's kst major contention rests upon analysis and interpretation of
events, transactions and undertakings occurring during the period of
the formation of the League and of tlie mandates systern. Similarly,
proper evaluation of Kespondent's second contention, that is that when
the League dissolved and the United Nations commenced operations the
United Nations did not decide to assume supervisory authoritjr, nor did
Respondent agree to subrnit to supervision by the United Nations, proper
evaluation of that contention involves analysis and interpretation of
events, transactions and undertakings occurring during the period of
the demise of the League and the birth of the United Nations.
The relevant history and background of the League Covenant and of
the mandates system has been laid before the Court in Part B of our
presentation by my colleague, hlr. Moore.
Upon the basis of the events and transactions thus surveyed, the
AppIicants respectfully submit that an obligation to submit to interna-
tional administrative supervision was regarded by the authors of the
mandates system as, indeed, basic to the novel international institution
then being formed, one reguIated by international rules particular to
itself. Thefeature of international supervision,indeed, stamped the man-
dates system with its novel character; such supervision was the "normal
security", embodied in the Covenant of the League itself, and designed
to safeguard the sacred trust.
As I ventured to comment during the Oral Proceedings before this
honourable Court in1962:
"Responsibilities assumed by South Africa in the Mandate were
based upon its pledge to dischargea 'sacred trust of civilization' and
to give 'securities for the performance of this trust'-these are the
words of the Covenant of the League. Phrases of such weight and
dignity tend to lose their lustre with the passage of timebut never
their significance." (Oral proceedings,15 Oct. 1962,morning.)
Mr. President, the high and humane purposes of the new institution,
based as it was upon the principle of non-annexation on the one hand,
and self-determinationon the other, cal1for the application of principles
of interpretation in amanner befitting its character.
This honourable Court, in interpreting the Convention of Genocide,
an international agreement the objectives of which, broadly speaking,
are cognate with those of the sacred trust of the Mandate, stated as
follows : SOUTH WEST AFRICA
"The objects of such a convention must alço be considered.
The Convention was manifestly adopted for a purely humanitarian
and civilizingpurpose. It isindeed difficult to imagine a Convention
that might have this dud character to a greater degree since its
object on the one hand is to safeguard the very existence of certain
hurnan groups and on the other to confirm and endorse the most
elementary principles of morality. In such a conventio tne con-
tracting States do not liave any interest of their own: they merely
have, one and all, a common interest, namely, the accomplishment
of those high purposes which arethe raison d'êtreof the Convention.
Consequently, in a convention of this type one cannot speak of
individual advantages or disadvantages to States, or of the mainte-
nance of a perfect contractual balance between rights and duties.
The high ideals which inspired the Convention provide, by virtue of
the common wili of the parties, the foundation and measure of al1
its provisions." (I.C.J.Refiorts1951. p. 15.)
This iç from the Court's Judgment in the case involving reservations to
the Genocide Convention.
Mr. President, it would be difficult indeed to find words more apposite
to a determination of the principles of interpretation and application of
Article 22 of the Covenant and of the relevant provisions of the Mandate
for South West Africa itself.
Respondent, in its written pleadings, sumrnarizes certain principles of
treaty interpretation, which are set forth in the Counter-Memor~al,
II, pages 110-114.In respect of the application of such principles Respon-
dent correctly comments:
"it is, of course, necesssry to look aand consider the instrument as
a whole before any conclusion is reached about the meaning or effect
of any part thereof".
With specific reference to the principle of effectiveness Respondent
states:
"This principle takes account of the objects and purposes of the
instrument to be interpreted, and presumes that the partiesintended
for particular provisions the maximum effectiveness, consistent
with the clear test, towards achievement of suc11objects and pur-
poses."
This also içquoted from the Counter-Mernorial, within the series of pages
I have already cited.
Although Respondent's cornments, just quoted, appear to the Appli-
cants in general to be a correct formulation, note might be taken that
the phrase "clear text" in the second quoted passage mny involve a
latent ambiguity. if'hether or not a provision is "clear" may, of course,
depend upon the context rather than merely upon the text.
The phrase "clear text" as employed by the Respondent in the quo-
tation 1have just cited, probably is intended by Respondent to refer to
another canon of interpretation, namely that effect should be given to
the natural and ordinary meaning of words employed in a provision.
However, asthis honourable Court said in the 1962Judgment, in relation
to precisely the same point:
"Rut this n~te of interpretation iç not an absolute one. N?ere
such a method of interpretation reçults in a meaning incompatible ARGUMENT OF MR. GROSS 183
with the spirit, purpose and contest of the clause or instrument in
which the words are contained, no reliance can be validly placed
on it." (I.C.]. Reports 1962, p.336.)
LW. President, applications of canons, or rules, to the interpretation
of treaties or institutional arrangements to which there are parties-
whether caited "treaties" or not-is, of course, based upon the premise
of ascertainhg the intentions and views of the parties in the light of
common sense and experience in the conduct of human affairs.
The principle of maximum effectiveness, utresmagisvalentquampeveat,
is the very embodiment of that premise.
In a widely quoted comment concerning the rule of effectiveness,
Lord McNair rernarked, aninitaeria:
"it is theduty of a tribunal to ascertain and give effect to the inten-
tion of the parties as expressed in the words used by them in the
light of the surrounding circumstances". (Law of Treaties 1961,
P. 383.)
On the one hand, thc tribunal is to avoid revision of the instrument,
in thesense of reforming it, rather than ascertaining the true intentions
ofthe parties or,as its sometimes put, engaging in judicial legislation.
On the other hand, full effect is tbe given to the "spirit, purpose and
context of the ... instrument in which the words are contained", in
the words of this honourable Court, which 1 have previously quoted
from the 1962 Judgment.
In their written pleadings, the Applicants refer to a long line of cases
decided by this honourable Court and its predecessor, in relation to the
Applicants' contention that the cornpromissory clause of Article 7 of
the Mandate should be interpreted in a sense which would give effect to
the humanitarian objectives of the Mandate and effectuation of the
sacred trust of civilization.
1 forbear from repetition of quotations from our written observations,
respectfully drawing them t O the Court's attention-they appear at
pages 476-482 (1)of the Applicants' Observations in the preliminary
objections phase of these proceedings.
In the sarne context, the Applicants have quoted an excerpt from
The DeveloPmenlof I?zternationalLaw by the Internadional Court,by the
Iate Judge Sir Hersch Lauterpacht, in which the learned Judge referred
tothe fact that :
"in a considerable number of cases the Court, in interpreting inter-
national law, has been in fact confronted with a choice between the
principle of the minimum restrictions upon the sovereignty of States
and the attribution of full effect to what appears to be the purpose
of the obligations binding upon or undertaken by them".
The learned late Judge then proceeds, after citing numerous instances
and precedents, to Say:
"Wehave seen that the result of that choice has been such that
the jurisprudence of the Court in this sphere can to a large extent
be conceived in terrns of a restrictive interpretation of clairns of
State sovereignty."
This is cited from the 1958edition at page 297.
Respondent's contention that the obligation of international super-
vision, imposed and assumed under the Covenant and Mandate, merelyI84 SOUTH WEST AFRICA
was intended to refer to a specilîc supervisory authority, to wit, the
League Council, is based upon the argument, interdia, that:
"Since in fact nobody in 1920 contempfated the possibility of
the future dissolution of the League, it would be unrealktic to im-
pute an intention to the authors of the Mandate to guard against
the possible consequerices of such dissolution."
This is from the Rejoinder, V, at page 34.
This argument, with al1respect, seems to the Applicants to involve a
non sequitcrrand, moreover, rnisapplies principlesofinterpretation. It is,
we think, a non sequiterrbecause the undenied fact that nobody in 1920
foresaw the dissolution of the League of Nations has nothing to do with
what they would have wished to guard against had the possibility been
envisaged. Udess the nature and purpose of the mandate institution has
been misunderstood and misapplied by this honourable Court, it seems
obvious that the authors of the mandate systems would have been, and
indeed were, intent upon guarding against anypossibility-foreseen or
unforeseen, predictable or unpredictable-bvhereby international super-
vision would lapse, leaving the sacred trust to the unregulated, unsuper-
vised control of the trustee, In short, the authors of the mandates sys-
tem could not have intended that any situation could possibly arise in
which thetrustee would end up with the corpus of the trust in his pocket,
by default. An intention to the contrary would have been irreconcilable
with the essential attribute of the Mandate, as found by this honourable
Court, namely that:
"The rights of the Mandatory in relation to the rnandated tem-
tory have their foundation in the obligations of the Mandate and
they are, so to speak, mere tools given to it to enable it to fulfii itç
obligations."(I.C.J, Reports1962, p.329.)
Respondent's argument to the contrary would impute to the authors
of the Covenant andthe Mandate an intention to permit the mandatory,
under unforeseen and unpredictable circumstances, to employ its rights
its international obligations.her than merelyas a toolenabling it to fulfil
For these reasons wefinda nonsequiturin the Respondent's contention.
Moreover, Respondent's argument is not based upon any valid prin-
ciple of interpretation. Courts frequently determine, in the light of
circurnstances, the nature and other provisions of an agreement,. what
the parties would have intended, had they foreseen certain possibilities.
Thisisindeed particularly pertinent tothe present cases, inother respects.
-4sJudge Jessup pointed out in his 1962 separate opinion:
"It rnust also be remembered that the mandatory was a 'Manda-
tory of the League of Nations'. Rut according to the accepted view,
the termination of the League did not terminate the Mandate aç an
institution which means that the Mandatory also, and specifically
the Union of South Africa,qua Mandatory, must have survived the
dissolution of the League although its mandator was no longer in
existence." (1.C.J.Reports 1962, p. 414.)
The authors of the mandates system, in other words, did not forcsee
that Respondent would cease to be a member of the League of Nations,
a mandatory on behalf of the League, or for that matter, if it is relevant,
would cease to be a member of the juridical system of which His Britan- ARGUMENT OF MR. GROSS 1~5
nic Majesty was Sovereign. In accordancewith the text of the Mandate,
the Mandate was-
"... conferred upon his Britannic Jlajesty to be esercised on hiç
behdf by the Govemment of the Union of South Africa".
These are words to which literal and normal interpretation could not
be applied in the present context.
Application of the principle of interpretation contended for by Re-
spondent woüld thus make it "unrealistic" to impute an intention to
rights over the Territory aahtime when it might no longer beo amembere
of the League or of the British Commonwealth of Nations.
In the course of a consideration of principles of construction, in his
1962 dissenting opinion, Judge van Wyk made the following comment,
pertinent to the questionunder discussion :
"One must also bear in mind that parties frequently deliberately
use wide terrns so asto provide for al1possible situations, foreseen
and unforeseen, and it follows that when a situation not foreseen
by the parties arises which fds within the meaning of the words
employed by them they are deemed to have had a common inten-
tion in regard thereto."(I.C.J. Refiorts1962, p.580.)
It need not be addedthatthe passage quoted from the dissenting opinion
was a statement of a general nature and no contrary inference is to be
drawn from the fact that 1 have quoted it with respect toits application
to the pending cases.
Article 22 of the Covenant of the League used very "wide terrns"
indeed in formulating and innovating the legal principle-
"... that the well-being and development of such peoples [that is,
peoples not yet able to stand by themselves] form a sacred trust of
civilization and that securities for the performance of this trust
should be embodied in the Covenant".
These are the words of Article 22, paragraph I,of the Covenant.
Read in the light of this ovemding purpose, the concIusion is not
merely perrnissible, but, with respect, it seems to be unavoidable, that
the intention of al1 the parties to the Covenant and to the mandates
system must be presumed to have been that, if the League were to
dissolve, which was not foreseen and not predicted, some other way
would have to be found by which the Mandate would be supervised.
In the words of Judge Bustamante, inhis 1962 separate opinion:
"Following the scheme of al1conventions, in the Mandate agree-
ments provision is made in such a way asto guarantee the func-
tioning of the systemduring the wholefieriodof ils durution."(I.CJ.
Re#ovts1962, p.382.)
The Barcelona Traction case, the Judgrnent in which was rendered
after the filing of the Applicants'Reply,is instructive by analogy tothe
point under discussion. Warning against a"confusion ofends with means",
the Court spoke in that case of:
".. .the end being obligatory judicial settlement, the rneans an
indicated forum, but not necessarily the only possible one". (I.C.J.
Reports1964, p. 38.)186 SOUTH WEST AFRICA
The Court ivent on to say:
"An obligation of recourse to judicial settlement wiU, it is true,
norrnally find its expression in terms of recourse to a particular
forum. But it does not followthat this is the essence ofthe obligation
... The substantive object was compulsory adjudication, and the
Permanent Court was merely a means for achieving that object.
It was not the primary purpose to specify one tribunal rather than
another, but to create an obligation of compulsory adjudication.
Such an obligation naturally entailed that a forum would be indi-
cated; but this was consequential." (Ibid.)
Similarly, Mr. President, in the preset cases, the endwas international
supervision, the means was the League and is now the United Nations
which, asthe Court found in 1950, is-
"... legally qualified to exercise the supervisory functions previously
exercised by the League of Nations . . .".(I.C.J. Reports 1950,
P. 137.)
The "substantive obligationu-to use the phrase of the Court of the
Barcelona Traction case-the "substantive obligation" under the Man-
date, isinternational supervision: the League was-quoting again-
"merely a means for achieving that object".
The BarcelonaTraction case, it is subrnitted, demonstrates that the
Court will construe the intention of the parties to an agreement in the
light of what theircommon intent would have been, if they had foreseen
developments relevant to their comrnon purpose.
The parties to the compromissory clause in Barcelona Traction did
not foresee the demise of the Permanent Court, yet the Court had no
difficulty in reaching the conclusion that, in view of their purpose, the
parties would have intended to submit their disputes to the new Court
had they anticipated the demise of the old one.
In the present cases, the presumption is strengthened by reason of the
applicability of the basic rule of equity and of reason, to wit, that parties
will never be deemed to intend that by virtue of disappearance or demise
of other parties, the fiduciary willkeep for himself a beneficial interest
never intended for him.
It istherefore, hlr. President, not an occasion for surprise that actions
of the parties to the events and transactions during the period of 1945-
1949 ,ncluding the Respondent, werewholly compatible with the purpose
of the mandates system, and the equitable principle to which I have
just referred.
A most cornpehg form of evidence in respect of the intention of
parties to an instrument, no doubt, is the conduct of the parties in
relation thereto. With specific reference to the events andtransactions
centred upon the future of the Mandates, including the Mandate for
South West Afnca. this honourable Court cited and a~~liedthe ~rinciple
that, and I quote from the 1950Opinion: L
v
"Interpretations placed upon legal instruments by the parties to
them. thoueh not conclusive as to their meaning, have considerable
probative value when they contain recognition by a party of its
obligations under an instrument." (I.C.J. Refiort1950 p,p.135-136.)
Application to the undisputed facts of the principle thus formulated ARGUMENT OF MR. CROSS 187
by the Court was one consideration, iltter alira,which underlay the
Court's conclusion that Respondent's declarations during the relevant
period, and 1 quote again from the 1950 Opinion:
"... constitute recognition by the Union Government of the con-
indication of the future conduct of that Government". a mere (I.C.J.
Reports 1950 ,. 135.)
The indispensability of administrative supervision in the scheme of
the Mandate, and its complementarity with judicial protection, of which
theisNorthernmiCameroonsenJudgment, is conceded by Respondent in a in
rather explicit manner in its Counter-Mernorial,from which 1 quote the
following passage:
"... it is therefore clear that the possibility of proceedings under
the comprornissory clause, even on the widest suggested interpre-
substitutetfor reporting and accountabilityuld and administrative a
supervision, as conternplatedby the authors of the Mandate System
in providing that the tutelage should be exercised by the
advanced nations 'as Mandatories on behalf of the League' ".
(11,P. 173.)
It is, needless to Say, quotinquite a different context,but nevertheless
the words do mean what they Say.
Respondent's concession which 1 have just quoted is but another
way of saying that administrative review is essential, but must be sup-
plemented by judicial protection, just as judicial protection is essential,
but cannot fil1the role of administrative supervision. It is submitted,
with respect, that this is precisely the meaning of the Court's finding
in the 1962 Judgment, that:
"The administrative supervision by the League constituted a
normal security to ensure full performance bp the Mandatory of the
'sacred trust'... 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 orbreaches
of the Mandate." (I.C.J. Reports1962, p. 336.)
In the 1962Judgment, the Court decided explicitly the legal issue as
to survival of the comprornissory clause of Article 7of the Mandate. AS
an essential element of its consideration of the questions underlying that
issue, the Court treated of the inseparably related and concomitant
question of administrative supervision in the plan of the Mandate.
In the 1962Judgment, the Court quoted from the 1950 Advisory
Opinion the conclusion that :
"It cannot be admitted that the obligation to submit to super-
vision has disappeared mereiy because the supervisory organ has
ceased to exist..." (I.C.J. Reports1950, p. 136.)
It is quoted by this honourable Court in its 1962 Judgment at pages
33The quoted passage, Mr. President, both in letter and spirit, is as
applicable to organs for administrative supervision as it is to the tribunal
endowed with the function of judicial protection of the Mandate for
South West Africa.188 SOUTH WEST AFRICA
The role of judicial protection is indispensable, as 1 have said, but
it cannot serve as a first, or exclusive recourse, without the imposition
ognizes the truth of this fact, but distorts its applicatibyntsuggesting
that the issuesin the cases at bar are too cornplex, detailed and cumber-
some for judicial attention. We shall come to a consideration of these
arguments in Part I3of our presentation.
'The reason-and the sole reason-that these issues are before this
honourable Court is precisely because of Respondent's rejection of
administrative supervision; that rejection has made impossible the
workings of the normal secunty contemplated in Article 22 of the Cove-
nant of the League and in the Mandate itself.
The inter-dependence of Article 6 and of Article 7 1 have attempted
to describe. and will avoid further elaboration. The compromissory
clause in the second paragraph of Article 7 of the Mandate is, in the
words of the 1962 Judgment, ~vhich 1 have just quoted, "even more
essential" in a functional sense than the administrative supenision
provisions. These provisions, however, as 1 have said, are designed to
accornplish relatedends; both are vital to the functioning and purpose of
the Mandate; they are interlocking and mutually reinforcing.
Mr. President, 1 had reached the point of stating that in their Reply
the Applicants have demonstrated that the basic principles of the man-
date structure, being a combination of the concept of trust or tutelleand
of malzdatum,require that the Mandatory, the trustee, or the tuteur, be
subject to accountability. This is discussed in Our Reply (IV) at pages
525-540.
The Applicants contend that from the ", ., basic division between
control and benefit flowtwo consequences: there must be an accounting
concerning the exercise of the control; there must be supervision by a
public authority". This is frorn the Reply, at (IV) page 530.
Applicants refer in this connection, inter alia. to the normal rule of
accountability enforced upon a guardian in the United States, to guard-
ianships or tutellesunder the French Civil Code, to the laws of Quebec in
Canada, and tothecivilcodes ofArgentina. Chile,Mexico,Panamaand Pem.
Respondent's rebuttal thereto consists of mere assertion, coupled
with doubtfully relevant propositions concerning principals and agents,
tention thater"...s,in England, the home of the trust, there does not
appear to be any provision at al1 for regular accounting to, or super-
vision hy, a public organ". That is from the Rejoinder, V, page 43.
In the Applicants' view, Respondent does not emphasize or indeed,
appears largely to ignore, that in every legal system of which the Appli-
cants have been made aware, whenever control is split from benefit the
beneficiary hasthe right of recourse to supervision or protection by a
public authority as a protection against abuse or breach of the trust.
Respondent contends that an ". .. obligation with respect to ac-
countability which is normally regarded as incidental in principle to a
fiduciary relationship, is the duty to render account tothebeneficiaries".
This is at page 43 of the Rejoinder (V). Respondent does indeed refer
to the right of recourse to supervision either by the beneficiary or on
his behalf, but the stress, iwe understand correctly, is placed upon the
duty to render account to the beneficiaries as, for example, in the quota-
tion to which 1 have just referred the Court. ARGUMENT OF MR. GROSS IS9
Respondent's contention, thus stated, has two defects:
I. The right of a beneficiary, either on his own motion or through
that of another, to enforce a duty to account, may be a wholy inade-
quate protection against abuse or breach of the trust. Without recourse
to a public authority established to supervise the proper performance
of the trust, the more incapable a beneficiary is of conducting his own
affairs, the lesseaningful would be an accounting to him alone. That,
of course, is a self-evident proposition.
As will be demonstrated'more fully in considering the substantive
obligations of the Respondent under the Mandate, Respondent places
heavy though, in the Appiicants' view, hollow, reliance upon the asserted
incapacity of the inhabitants of the territory to manage their own affairs.
Respondent's contention that its sole fiduciary duty is that of reporting
to the inhabitants-and there is no regular international or other super-
visory authority to which Respondent reports or concedes the duty to
report-the contention that its sole fiduciary duty is to report to the
inhabitants, isincompatible with its insistence upon their very need
for tutelage,asis asserted by the Respondent. 1 leave aside for the time
being the question, which touches on the merits, how one could, in any
event, "account" to the inhabitants of the Territory, who are presently
denied possibilities of an effective, common voice.
2. Respondent's contention also ignores the fact that the trust at
issuehere was undertaken "on behalf of the League of Nations", lsnguage
quoted from.the Mandate itself.
The international organization, hence, is to be regarded as a surrogate,
whose continuing existence was held essential by the Court both in 1950
explicitly and in 1962at least by necessary implication. In the Advisory
Opinion of 1950, the Court held, as 1 have already mentioned, that for
Respondent to retain rights under the Mandate, while denying obliga-
tions, "could not be justified". In the 1962 Judgment, sirnilarly, the
Court held that Respondent's rights over the Territory were, in the
Court's words, "mere tools" to enable it to discharge its obligations.
In other words, in the absence of a surrogate to whom Respondent
regularly reports and accounts, its rights under the Mandate cannot be
retained, and must lapse. Any other result would be irreconciIable with
the Court's holdings in 1950 and in 1962.
Notwithstanding Respondent's formal objection to the doctrine of
cy-près,and recognizing that the beneficiaries have remained the same,
nonetheless the beneficiaries themselves have no right under the Man-
date to seek judicial or administrative recourse. The concept underlying
the cy-près doctrine, accordingly, rnay be thought to be analogous to the
situation here, that is, a new surrogate, or representative of the bene-
ficiary, is essential, inasmuch as without such representative the bene-
ficiarp, which has no "existence" in law, has no right to seek protection,
as inhabitants.
As Judge Bustamante commented in his separate opinion appended
to the 1962 Judgment :
" ~he'tutelar~ organization's right of supervision over the exeicise
of the Mandate is an institutional rule in the Mandates System, ex-
pressly provided for by Article 22 of the Covenant (parapaphs 7,
8 and 9). This right is not just an adjectivalor procedural formality,
but an essential eIement on which adherence to the purposes of the SOUTH WEST AFRICA
system and the efficiency of its application depend. It should not
be forgotten that in the Mandate agreements one of the parties,
the beneficiary under tutelage, has-no possibility of entering into
discussion with the other Party, the Mandatory, on an equal footing,
having regard to its lack of legal capacity. Thus, the only way of
safeguarding the rights of the people under Mandate isto entrust
the supervision of the Mandatory's acts to the Mandator or tutelary
organization which, on the one hand, represents the ward and, on
the other, personifiesthenterest ofthe States ofthe world assembled
in an association." (I.CJ. Refiorts1962, p. 358.)
This ,honourable Court has had occasion to consider in some detail
the nature of the requirements mential to "the maintenance of effec-
tive international supervision of the administration of the Mandated
Territory".
The matter arose for discussion in connection with the request of the
General Assembly to this honourable Court to give an advisory opinion
on the question whether it was consistent with the Advisory opinion of
1950 for the Committee on South West Africa to grant oral hearings to
petitioners on matters relating to the Temtory of South West Africa.
As the Court noted, in its opinion in 1956,oral hearings had not been
granted to petitioners by the Permanent Mandates Commission at any
time during the regime of the League of Nations. The right of petition
was introduced to the mandates systcm by the Council of the League of
Nations on 31 January 1923, and certain rules relating thereto were
prescribed. This was, as the Court commented in the 1956 Advisory
Opinion, "an innovation designed to render the supervisory function
of the Council more effective".
In response to a suggestion that the grant of oral hearings by the
Committee on South West Africa to petitioners would involve an excess
in the degree of supervision to be exercised by the General Assernbly,
and that the General Assembly should be restricted to measures which
had actually been applied by the League of Nations, the honourable
Court found as follows, in its rg56 Advisory Opinion :
"The Court will deal first with the suggestion that the grant of
oral hearings to petitioners would, in fact, add to the obligations of
the Mandatory and thus lay upon it a heavier burden than that it
was subject to under theMandate Systems.The Court is unable to
accept this suggestion. The Committee on South West Africa at
present receives petitions from the inhabitants of the Mandated
Territory and proceeds to examine them without the benefit of the
comments of the Mandatory or of the assistance of its accredited
representative during the course of the examination. In many cases.
the material available to the Committee from the petitions or from
other sources may be sufficient to enable the Committee to form
an opinion on the merits of the petitions. In other cases the Com-
mittee rnay not be able to corne toa decision on the material avail-
able to it. If the Committee cannot have recourse to any further
information for the purpose of testing whether a petition is or is
not well founded, it may lead in certain cases to acceptance of
staternents inthe petitions without further test. Oral hearings in
such cases might enable the Committee to submit its advice to the
General Assembly with greater confidence. If, as the result of the ARGUMEST OF BIR. GROSS
191
grant of oral hearings to petitioners in certain cases, the Comrnittee
is put in a better position to judge the merits of petitions, this
cannot be presumed to add to the burden of the Mandatory. It is
in the interest of the Mandatory, as well as of the proper working
of the Mandates System, that the exerciçe of supervision by the
General Assembly should be based üpon material which has been
tested as far as possible, rather than upon material which has not
been subjected to proper scmtiny either by or on behalf of the
Rlandatory, or by the Committee itself." (I.C.J. Refiorts1956,p. 30.)
1 would remark, Mr. President, with your permission, and parenthet-
ically, that when in a later phase of these proceedings we come to a dis-
cussion of the matter ofevidence which bas been brought into the record
by the Applicants, based upon petitioners appearing before the United
Kations, such evidence is sought to be impeached or discredited by the
Reçpondent on the ground that it is erroneous, malicious, ill-informed,
unverified, and on other similar bases of criticism. This is a parenthetical
remark, because it is relevant here in respect of the iact which 1 believe
system and which isbrought forth clearly in the 1956e Opinion, specifically
in reference to the rnatterof heanng petitioners. It has, of course, much
broader implications, as well, with respect to the nature, function, and
roIe of administrative supervision asa whole.
In the 1956Opinion, the IionourabIe Court proceeded to interpret the
statement in the 1950 Advisory Opinion, in which the Court had held
in Igjo that "the degree of supervision to be exercised by the General
Assembiy should not therefore exceed that which applied under the
Mandates System", That is from the 1950 Opinion. In its interpretative
analysis of the passage just quoted from the 1950 Opinion, this honour-
able Court rejected the suggestion that the 1950 Opinion passage should
beinterpretedin a manner to restrict the activity ofthe General Assembly
to measures ~vhichhad actually been applied by the League of Nations.
The Court concluded that such a suggestion did not accuratelp reflect
the intention of the Court in 1950, and that such a restriction was not
justified on a basis of any provisionin the Covenant of the League, nor
the Mandate for South West Africa, nor the Charter of the United
Nations. The Court is respectfullÿ referred to the 1956 Opinion, at
page 31-
Among the considerations adduced by this honourable Court in sup-
port of its conclusion, which 1have just described, the followingpassage
from the 1956 Opinion isrelevant:
"The Court notes that, under the compulsion of practical consider-
ations arising out of the Iack of CO-operationby the Mandatoxy, the
Committee on South West Africa provided by Rule XXVI of its
Rules of Procedure an alternative. procedure for tlie receipt and
treatrnent of petitions. This Rule became necessary because the
Mandatory had refused to transmit to the General Assembly peti-
tions by thc inhabitants of the Territory, thus renderiiig inoperative
provisions iii the Rules concerning petitions and directly affecting
the ability of the General Assembly to exercise an effective super-
vision. This Rule enabled the Committee on South West Africa to
receive and deaI with petitions notwithstanding that theyhad not
been transmitted by the Mandatory and involved a departure in SOUTH WEST AFRICA
this respect from the procedure prescribed by the Council of the
League.
The particular question which has been submitted to the Court
arose out of a situation in which the Mandatory has maintained
its refusal to assist in giving effect to the Opinion II July 1950
and to CO-operatewith the United Nations by the submission of
reports,and by the transmission of petitions in conforrnity with
the procedure of the Mandates System. This sort of situation was
provided for by the statement in the Court's Opinion of 1950 that
the de ee of supervision to be exercised by the Generd Assembly
'shoulf conform asfar as possible to the procedure followed in this
respect by the Council of the League of Nations'." (I.C.J. Reports
1956 ,P 31-32.)
Mr. President, 1have cited these passages from the 1956 Advisory
Opinion because, in the Applicants' respectful submission, they make
clear the specific nature and import of the obligation to submit to in-
ternational administrative çuperviçion, as well as the practical and
legal consequences which have flowed and continue to flow from Res-
pondent's failure and refusal to comply with its obligations in this
respect. It also illuminates and confirms the ambit of authority vested
in the General Assembly to take measures and to adopt procedures
relevant to and essential to the proper discharge of its supervisory
power and duty. It therefore clarifies the meaning and nature, as weli
as the scope, of the administrative supervisory authority which is a
concomitant of the finalbulwark, which is judicial protection in the
event that administrative authority does not do its job. Respondent's
contention that there iç no body or organ capable of exercising adminis-
trative supervision accordingly would deprive the inhabitants of the
Territory of one of the prime "securities for the performance of this
Trust", in the words of the Covenant, and would leave the Mandatory
with aççerted rights but without international obligation of adminis-
trative accountability, and would deny to the United Nations infor-
mation necessary to the discharge of its obligations which, in the words
of the Court in1962,were "laid upon the United Nations as an organized
international comrnunity" to assure the performance by the Respondent
of its sacred trust. It is such a result which, in the words of this honour-
able Court, "could not be justified".
Mr. President, the essential value and integral quality of international
administrative supervision in the plan ofthe Mandates has been regarded
rationsofreasons to support it. Çuch essentialitofoadministrative super--
vision, indeed, has never been questioned by this Court, or, so far as
Applicants are aware, by any learned member of the Court. Such dif-
ferences of opinion as have arisen in the Court in respect of the essential
requirement of supervision have related to only one aspect of it.,to wit,
the role of judicial protection in the scheme of the Mandate. Th~saspect
was, of course, settled by the Judgment ofthis honourable Court in 1962.
The axiomatic validity of the proposition that international adminis-
trative supervision is of the essence of the Mandate, and must survive
so long as the Mandate itselfendures, has been expressed by this honour-
able Court in divers waqs. Irrespective the form of expression,however,
the essence of the Court's rationale may be found in that passage of
the 1962Judgment in which the Court found as follows: ARGUMENT OF MR. GROSS '93
"The rights of the Mandatory in relation to the mandated ter-
ritory and the inhabitants have their foundation in the.obligationç
of the Mandatory and they are, so,to speak, mere tools given to
enable itto fulfilits obhgations. The fact is [said the Court] that
each Mandate under the Mandates Systern constitutes a new inter-
national institution, the primary, overriding purpose of which is
to promote 'the well-being and development' of the people of the
territory under Mandate." (I.C.J. Reports 1962, p. 329).
The Court's reference to the Mandate asa "new international institu-
tion" in turn harks back to the 1950Ad"sory Opinion. In that Opinion,
as has been noted, the Court employed the sarne phrase, and referred'to
"the international rules regulating the Mandate" which, the Court said,
"constituted an international status for the Territory". That is quoted
from page 132 of the 1950 Advisory Opinion.
Indeed; Alr. President, it was in this very context, on the basis of
its analysis of the nature and purposes of the mandates system, that
the Court characterized Respondent's contention that the Mandate has
lapsed, including provisions for administrative supervision, because the
League hai ceased to exist-and I quote from the 1950 Opinion-as
"based on a misconception of the legal situation created by Article 22
of the Covenant and by the Mandate itself": at page 132.
Respondent , notwithstanding the Court's Opinion and rationale,
nonetheless now again repeats the same contention. It is to be noted
that Respondent's "new facts" contention, which relates solely to everits
occurring at the period of the League's dissolution, is wholly irrelevant
to the Court's holding with respect to the legal situation created by the
Covenant and by the Afandate'itseIf.
The Court in 1950, moreover, found additional confirmation of "the
entrusted" to Respondent from the very fact-unctions which had been
". ..that by Article 22 of the Covenant and Article 6 of the Man-
date the exercise of these functionswas subjected to the supervision
of theCounci1 of the League of Nations ...". (I.C.J. Reports I950,
P. 1334
There could çcarcely be clearer evidence than this that international
supervision was indeed of the essence of the Mandate, and that the
nature and purpose of the mandates system make incredible Respon-
dent's contention that when it assumed the Mandate it was not consent-
ing to supervision as such, but. merely to supervision by a specific
orgSo Iimited or circumscribed an undertaking would have been irrecon-
cilablc with the very nature of the institution; it would have treated
the rights as ends in themselves rather than as "mere tools given to
enable Respondent to fulfil its obligations", in the words of the 1962
Judgmen t.
It was,moreover, in the context ofthe Court's reference to the "essen-
tially international character" of Respondent's functions with regard
to the Mandate thatthe Court found: "To retain the rights derived from
the Mandate and to deny the obligations thereunder could not be jus-
tified."
hir. Prcsident, the Applicants submit that stress clearly and properly ARGUMENT OF MR. GROSS I95
context referred also to Kespondent's further argument, and 1 quote
again from the Court's Judgrnent, the argument that-
"the casualties arising from the derniseof the League of Nations
are not therefore confined to the provisions relating to supervision
by the League over the Mandate but include Article 7 ...".
It is precisely in this context that the Court quoted the 1950 passage
which ends with the words "couldnot be justified".
Immediately following its quotation from the 1950 Ad"sory Opinion,
the honourable Court went on to refer to the analysis in the 1950 Opi-
dent under the Mandate, and then the 1962Judgment quoted from thepon-
1950 Opinion a key passage which defined the nature and purpose of
the mandates syçtem in the following words:
"The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports is an important
part of the Mandates System. When the authors of the Covenant
created this çyçtem, they considered that the effective performance
of the sacred trust of civilization by the mandatory Powers re-
quired that the administration of mandated territories should be
subject to international supervision. ."
This is quoted by the honourable Court from the 1950 Opinion, and is
quoted in the 1962 Judgrnent at page 333.
And finally, Mr. Yresident, this Court stated its own concluçions im-
mediately following the passage just quoted from the 1950 Opinion in
the following words :
"The findings of the Courton the obligation of the Union Govern-
ment to submit to international supervision are thus crystal clear.
Indeed, to exclude the obligations connected with the Mandate
would be to esclude the very essence of the Mandate." (T.C.J.
Refio7.l~1962, p. 334.)
In short, hlr.President and honourable Members of the Court, to
accept Respondent's contention, of the lapse of its obligation to submit
to international supervision would be to exclude the verp essence of the
Mandate.
The Court's reasoning is unaçsailed and, indeed, unassailable that
international administrative supervision is essential to the manda.tes
system because it is part of the international function of administration
which Respandent açsumed with the Mandate. In the absence of such
be international.esporRespondentctito exerciçe the powers and preroga-o
tives of the Mandatory's position, and to deny the obligations which
are concomitant with, and in.separably related to, such powers, is to
take advantage of an international function of administration for the
purpose of occupying the Territory,while denying the very international
nature of the position on which its occupation of the Territory is based.
Mr. President, with your permission, 1 take the liberty of repeating
an excerpt from my statement, made before this honourable Court
during the Oral Proceedings in 1962. Referring to the 1950 Advisory
Opinion, I ventured the following comment:
"With respect both to the machines. for implementation and
substantive rights and obligations, the Court (ai pages 132-133 of SOUTH WEST AFRICA
gulatrng the Mandate' which 'constituted .aninternational status re-
Ior the Territory'. The functions entrusted to the Mandatory pos-
sessed an 'essentially international character', said the Court, as
. appeays particularly from the fact that by Article 22 of the Cove-
nant, and Article 6 of the Mandate, the exercise of these furictions
was subjected to the supervision of the Council of the League of
Nations. ,This fact of subjection is what the Court in 1950 took as
showing the essentially international character of the Mandate in-
stitution. Respondent, as we shall see, 1 believe distorts the mean-
ing of this by assuming or contending that this sentence in the
Court's opinion in effect means that it was only the Council of the
League that \va5 entitled to supervision.
It is to be noted that the Court, by this language (at page 133)~
made clear that.the functions, as they are called, comprise both
the international machinery for implementation and the substan-
tive rights and unilateral obligations of the Mandatory. If this
were not so, the Court's reference to Article 22 would be meaning-
less, since it contains both sides of the equation." (Oral proceedings,
16 Oct. 1962,morning.) ,
In our .spectful submission',it was on major premises involving this
type of consideration that the Court in 1950 based its findings that "to
retain the rights derived from the Mandate and to deny the obligations
thereundercould not bejustified" (I.C.J. ReportsI950p ,. 133)and that:
"It cannot be admitted that the obligation to submit to super-
vision hs disappeared merelÿ because the supervisory organ has
ceased to exist, when the United Nations has another international
organ performing similar, though not identical, supervisory func-
tions." (Ibid.,p. 136.)
Sjmilarly, it seernsclear that the same prernise mightwell have under-
lain this honourable Court's Judgment in 1962,at page 338 of the 1962
Judgment, that the right of hlembers of the League to invoke'judicial
protection, described at page 344 of the Judgrnent as "an essential part
of the Mandate itself and inseparable from its exercise", that such right
to invoke judicial protection continues to exist for so long as the Res-
pondent holds on to the right-to adrniniçter the Territory under the
hTandate.
The results contended for bv Respondent cannot be admitted or
justified, so lon~asit isesercising "an-internationa.1function of adminis-
tration" under 'an international institution", with "international rules
regulating the Mandate, constituting an international status for the
Territory ..." (I.C.J. Reports1950 ,. 132) . l1these passages are quoted
from judgments of this honourable Court; ço long as Respondent is
exercising such rights, under such an institution, the results for which
it contends cannot be admitted or justified.
been entrusted to ,the Union of South Africa",f asestated in the Advisory
Opinion of 1950 ,lowed eom this Mandate, which "is an international
instrument of an institution- character", "a special type of instrument
composite in nature and instituting a novel international régime", as
described at pages 331and 332 of the Judgment of 21 December 1962.
Such international character of the Territory Respondent cannot be ARGUMENT OF MA. .GROSS I97
heard to deny, so long as it exercises and retains.rights over the. Terri-
tory. Such an international character is independent of its consent.
The,only right, title, and interest conveyed to Respondent in Igzo.were
the' administrative powers essential to proper exercise of a tuteIage of
an international character. Occupation of an international 'territory,
while professing to be exercising an international right of administration,
and yet denying the international obligations necessary to keep ,the
territory status international, "cannot be justified".
Respondent indeed concedes the .validity of this proposition in its
written pleadings:
"As regards history, it seems clear that the various proposals
which preceded the Mandate System as actualiy agreed upon, al1
proceeded from the basic principle of '7zoannexatz'ons',to which
effect was to be given by some Iorm or another of interndaonaliza-
tion of the government or administration of the colonies and ter-
ritories in question. When proposals came.to be made for the estab-
lishment of a League of Nations, the League was seen asthe medium
through which such internationalization could be carried into ef-
fect, thevarious proposers differing, however, as to the exact nature
and degree ,of the authority to be accorded to the League in this
,, réspect." (II, p. 169.) ..
~he foregoing passage occurs immediately followihg a paragriph on
the same page of the Counter-Mernorial, which reads as follows:
"Analysjs of the history and wording of Article 22.0f the Cove-
nant fully bears out',in Respondent's submission, that the feature
of report and accountability to the League was intended to be an
integral portion of the Mandate System, as will appear from the
succeeding paragraphs." (Ibid.)
' Respondent'ç concession that "the League was seen as the 'medium
through which such internationalization could be carried into effect",
confirms that the principle of "no annexations" and intern&ionalizatiop
were the objective and that the Leagiie was the then-existing means
"through which such internationalization could be ca.rried,into effect".
Mr. President, this is but another way of saying that the design of
international supervision embodied in the Covenant and in the Mandate,
and assumed by Respondent thereunder, was a basic obligation ofgene-
ral and objective character, rather than a mere und-aking to submit
to the supervision of a specific supervisory organ, which Respondent
açserted in 1950, asserted in 1962,asserts again today.
,Such consideration, in turn, underlies the statement in the 1962
Judgment that the sacred trust was, in the Court's.words ". ..laidUpon
the League as an organized international community ...". I
The significance of the phrase "organized international cornrnuiiity".
elirdes, or seems to elude, Respondent, which confines itself largely; .in.
our view, to a dissection and, a'shredding of the concept, in its written
language, inndthe,.context, an intention!merely, and 1 quote'.from the's
Rejoinder, "to descnbe the feature distinguishing the League Fom its
Members", and, consequently, as meaning nothing more than if the
Court had used the phrasé, "1aid.upon .the Leape asan international
organization",'rather than "as an organized'international community".
(This may be found in V, p. 38.)19~ SOUTH WEST AFRICA
In this comection, it is relevant to note that, in a quite different
context, but relevant to this point, President Winiarski has referred to:
"... the fundamental interests of the organized international corn-
rnunity in the realization of international peace and security".
1 have taken the liberty of quoting from the learned President's dis-
senting opinion, appended to the 1962 Judgment (I.C.J. Refiorls 1962,
P.Moreover, Judge Bustamante, in his separate opinion appended to
the 1962 Judgment, in one context described the League of Nations
as"personifying the international community", and, in another context,
stated that the League "represents the international community".
(I.C.J. Reports1962, pp. 335 and 356, respectively.)
And In yet another phase of his discussion of the matter, the learned
Judge referred to the "tutelary organization which .. .personifies the
interest of the States ofthe world assembled in an association". Irbid.,
P. 353.1
To iike effect, Mr. President, is the analysis of the French authority,
Fauchille :
civilisation vis-à-vis de la communauté internationalemi. .".(Traitk
de Droit lnternaiioraalPublic, 1925. cited in IV, p. 536.)
There seems little room for doubt, hlr. President, that the Court's
reference to the fact that the sacred trust was "laid upon the League as
an organized international community" signified that the League was
acting not by virtue of procedures or a structure peculiar to itself, but
as a surrogate carrying out an essential function under a trust, and that
the performance of such an obligation was recognized to be essential so
long as the trust survived.
Respondent , inits ~Yrittenpleadings, questions the relevance of the
concept ofthe organized international community to the legalissueposed
by retention by Respondent of rights under the Mandate, while denying
international obligations of supervision thereunder.
Respondent queries whether this proposition is advanced indepen-
dently ofthe Applicants' " 'organizedinternational cornmunity'theory" ,
as it describes the concept, "or whether it merely states a result arnved
queries in the Rejoinder, V, at page 72. quote from the Respondent's
Mr. President, in our respectful view, the distinction thus sought to
be drawn by Respondent involves a false dichotorny. The character of
the United Nations as an organized international community is relevant
to its role as a tutelary. The Organization serves in that capacity, as did
the League of Nations before it, not as a mere aggregation of States
which happen to be parties to a treaty, then called the Covenant of the
League, now the Charter of the United Nations. The tutelary role of the
Organization is institutional, not merely contractual; it embodies obli-
gations as well as powers and functions. As this honourabIe Court said
in the rg5oAdvisory Opinion-
"The League waç not ... a 'mandator' in the sense in which this
term is used in the national law of certain States." (I.C.J. Reports
1950, p. 132.) ARGUMEKT OF MR. GROSS I99
Of course not, Rlr. President. The orginized international community
exjsts as a fact; it isembodied in, andpersonified by, the United Nations,
preciselyinthe same way as wastrue of the Leagueof Nations. It isnota
mere "theory", to use Kespondent's phrase, concocted by the Applicants
for the purpose of making a debater's point in this litigation, as Respon-
dent'squeries may be taken to imply.
'Ihe character and function of the United Nations relevant to the
mandates system, and in particular to the Mandate now before this
honourable Court, thus was recognized by the Court in its 1962Judg-
ment, when it said that one of the essential principles of the mandates
system consisted in-
"the recognition of 'a sacred trust of civilizatjon' laid upon the
League as an organized international community and upon its
Afember States". {I.C.]. Reports1962, p. 329.)
The conferment of such a trust upon the League was the normal
security designed to ensure, on behalf of the civilized community of
nations-"civilization" is the single word used in the Covenant-that
the Mandatories, including the Respondent, would exercise their rights
in relation to the mandated territories and the inhabitantsinthemanner
and for the only purpose for which such rights were entrusted to Respon-
dent, which was that they were to be used as "mere tools" to enable
Respondent to fulfil its obligations, as this Court said in 1962.
Mr. President, but for the existence of an "organized international
community", there would not have been, nor would there now exist, a
Mandate for South West Afnca. Respondent's occupation and adminis-
tration of the Territorys attributable solely to the fact that the civiiized
nations of the world, or most of them, fonned an association following
the First IVorldWar to serve the purposes of the organized international
community and that Respondent \vas a Member thereof. Had it not
been such a hlember, the Mandate would not have been conferred upon
it, and could not have been conferred upon it, on behalf of that com-
munity as then embodied in the League.
Similarly, if neither the United Nations had existed at the time of
the League's disçolution, nor any other international organ with capacity
to supervise the Mandate, either a new supervisory organ would have
had to be created for this purpose, or Respondent's retention of rights
under the Mandate would have terminated. Such a problem, however.
did not and does not arise, bp virtue of the fact that in the United
Nations, as an organized international community, there exists an
agency endowed with the capacity to perform "sirnilar, though not iden-
tical, supervisory functions" to those performed by the Council of the
League, in the words of the 1950 Opinion, at page r36.
In the 1962 Judgment this honourable Court gave weight to the fact,
and made clear, that there was no break in the continuity between the
League and the United Nations. The Court found in the 1962 Judgrnent
as follows:
"It is clear from the foregoing account that there was a unani-
mous agreement among al1the MernberStates present at the Assem-
bly meeting [this refers to the meeting of 18 April 1946 hat the
Mandates shouId be continued to be exercised in accordance with
the obiigations therein dehed although the dissolution of the
League, in the words of the repreçentative of South Afnca at the200 SOUTH WEST AFRlCA
meeting, 'will necessarily preclude complete cornpliance with the
letter of the Mandate', i.e. notwithstanding the fact that sorne
organs of the League like the Council and the Permanent Mandates
Commission would be missing. In other words the cornmon under-
standing of the Member States in the Assembly-including the
Mandatory Powers-in pasçing the said resolution, was to continue
the Mandates, however irnperfect 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 :concermng their respective Mandates.
Manifestly, this continuance of obligations under the Mandate could
not begin to operate until theday after the dissolution of the League
of Nations and hence the literal objections derived from the words
'another hlember of the League of Nations' are not meaningful,
since the resolution of 18 April 1946 was adopted precisely with a
view to averting them and continGng the Mandate as a treaty
between the Mandatory and the Mernbersof the League of Nations."
(I.C.J. Reports1962, p. 341.)
It is to be noted that the quoted passage from the 1962Judgment
follows consideration by the Court of the eventç and transactions which
took place during the period of the dissolution of the League and the
commencement of operations of the Unitcd Nations. In that context
the Court's consideration of such events and transactions included
references to acts and statements of the Mandatory Powers at that tirne,
including that of Belgium, which expressed its intention to "remain
fully alive to al1 the obligations devolving on members of the United
Nations under Article 80 ofthe Charter". Moreover,the Court reached the
concIusions embodied in the quoted passage-that iç,the passage 1have
just quoted from the Court's Judgrnent-in the light of full discussion
by the Parties during the 1962proceedings of Kespondent's "new facts"
contentions.
Respondent re-formulates the Applicants' contention that obligations
of international accountability must survive, so long as Respondent
retains rights under the Mandate, and does soin a manner which enables
it to Say that the Applicants' contentions asso formulated are guilty of
two "fatal defects", in the Respondent's words. Respondent describes
these "fatal defects" in the re-formulated contention of the Applicants
as follows.The Applicants' proposition, says Respondent, could only be
valid on introduction of an "additional premise, viz.,that the Mandate
is still in existence;and they Say secondly:
"no solution is offered to the problem of the supervisory body to
which the obligation of accountability would relate after disappear-
ance of the only supervisory bodies mentioned in the formulation of
the obligation inthe mandate documents". (V, p. 73.)
tlr;threspect to the'first asserted fatal defect, that an additional
premise is necessary that the 3Iandate is still in existence, the Appiicants
accept, as the Iaw of the case, that the Mandate is stiil in existence. If
the Court did not decide that, it decided nothing. This Court has found
andreaffirmed this proposition in one Advisory Opinion, confimed it in
two Opinions interpretative of the first, and held in the 1962Judgment,
that the Mandate as a whole is stili in effect.
The Applicants accordingly do not fully appreciate the significance ARGUMENT OF MR. CROSS 201
of Kespondent's criticism .or comment that "Appiicants never advance
any argumentin support of the proposition that the Mandate stiii exiçts:
they merely rest on the Court's decision in that regard". 1 quote from
the Rejoinder,Y, page 74,footnote 3.Apart from the fact thatthe Appli-
cants would.be quite content to rest upon such authority, the burden of
the Appiicants' argument on this phase of the cases at bar is directed at
by the very fact of Kespondent's continued retentiontencof its rights in
the Territory, rightsgranted to it asmere tools given to enable it to
fulfil its obligations. Some significance may bc attributable to the fact
that Respondent appears not to recognize this as an argument.
Respondent 's asserted second fatal defect in the Applicants' conten-
tion that obligations of international accountability must survive so
long as Respondent retains rights under the Mandate, is that "no solu-
tion is offered" by the Applicants, or so it is said, "to the problem of.the
supervisory body to which the obligation of accountability would relate
after disappearance of the only supervisory bodies mentioned in the
formulation of the obligations in the Mandate documents".
Respondent's asserted second fatal defect which 1 have just quoted
rests on Respondent's argument that the problem of the supervisory
body has never been worked out by this honourable Court.The so-caed
problem waç indeed worked out and solved in the Advisory Opinions of
I 50,1955 and 1956.Further comment appears unnecessary, hlr. Pres-
i2ent, except to note that Respondent's very formulation ofthe problem
in these terms reflects its own erroneous major premise of a limited
original specific supervisorybody obligation which of course it advances.
at some length in its written pleadings.
Respondent's premise that international supervision under the Man-'
date was lashed irretrievably "to a specificorgan oa specificorganiza-.
tion of certain of the nations of the wor1d"-I have quoted from the
Counter-Mernorial, II, at page 119-such a premise does not stand
analysis, in the Applicants' respectful submission. Respondent argues
that :
"The 'supervisory functions of the League' spoken of by corn-
mentators was a concept in essence derived frorn the obligation,
imposed upon the Mandatones by the above provisions, to report
with reference to the respective territories and to the measures
taken to carryout the substantive obligations." (II, p. 1x8.)
Kespondent's argument is fallacious. Supervision is not derived from
an obligation to report, as this statement 1 have just quoted seerns to
Say (perhaps 1rnisread it). An obligation to report is the means by which
supervision is given effect.The obligation to report derives from the
pnnciple of accountability,not the other way round.
Moreover, "accountability" jncludes, but it is not limjted to, mere
reporting to an administrative organ. It includes the submission of
disputes to judicial process, as this Court has held, andit includes the
obligation to obtain consent of the supervisory organ to modifications
of the termç of the Mandate.
Without such accountability, as 1 have said, the Territory would not
be an international institutionor, indeed, it would not be an institution
at al]. It urould not be an internationalmandate nor wou!d it be a man-
date, in any sense, since itç "essence would have been excluded": inthe202 SOUTH WEST AFRICA
wordç of this Court in 1962 . mandate which is a cover for annexation
isa fraud. It has nothing in common with the purposes ofthe authors of
the mandates system.
Respondent's erroneous formulation of the Applicants' contention
regardingsurvival of the obligations under the Mandate so long as the
Mandate survives, leads Repondent into the iallacy of the petit20p7iii-
cipia.
Thus, Respondent argues, in itahcs, that-
"The only basis upon which it can possibly be said that the
existence of the Mandate is not open to question is that of accepting
that its sacred trust proviçions can stand by themselves, vith ho ut
accountability." (V,p. 74.)
Kespondent's argument, just quoted, rests upon three premises,
namely (1) that the Mandate has lapsed; (2)that the provisioiis of the
Mandate are divisible andmust be separately juçtified;and (3) that the
provisions of accountability are, in fact, no longer operative, in fact or
inlaw.
Each of these propositions is untenable, and is irreconcilable with the
decisions of this honourable Court, which 1 venture to describe as the
law of the case.
The reasoning of the Advisory Opinion of 1950is clear. The Court
proceeds from the premise thatthe Mandate isin existence, inasmuch as
no other premise would accord with the facts and with the elementary
requirements of justice. The sacred tmst provisions conferred rights upon
the inhabitants of the Temtory. Such rights require supervision for
their protection. Therefore supervision is essential. The Court's chain
of reasoning results ina quoderat demonstraltdum.
Neither the Court, nor the Applicants-aç Respondent's re-formulation
implieç-proceeds from the premise that because the sacred trust provi-
sions survived, the Mandate must survive, and accountability, which is
of the essence, must also be deemed to have survived.
This is not the rneaning or intent of the formulation of the Applicants
nor, it is respectfully submitted, the logic of the Court. Respondent
erects and destroys a straw man by its argument, which 1 quote from
the Rejoinder :
"It is quite obvious that one cannot say that administrationof a
certain Territory must be subject to accounlability merely because
accountability is an essential element of aMandate. The statement
would only make serise upon adding or presupposing that the Man-
date which requires the accountability, applies to the Territory and
its administration. "
1have quoted from V, at page 74. In Applicants' respectful submission,
Mr. President, there is no clearer demonstration, anywhere in these
written pleadings, of the chasm betlveen the arguments of the Parties to
these proceedings. The Applicants, of course, presuppose that the hlan-
date "afifiliesto the Territory"; that is their major premiçe.
On the basis thereof, the Applicantç conclude, just asthis honourable
Court has held, with respect, that, so long as Respondent asserts rights
under the Mandate, it cannot be heard to deny its obligations thereunder.
Respondent, to the contrary, contends that :
"The administration and possession of a territory are by thern- ARGUMENTOF MR. GROSS 203
selvesessentialiy neutral facts with reference to the question whether
'international accountability' in respect thereof is undertaken,
acknowledged or represented ... Administration and possession of
a territory [says the Respondent] are by themselves even more
patently and obviously unrelated to any specific supervisoryauthor-
ity than to a vague idea of 'international accountability'." (V,p. 78.)
In fact, Mr. President, the Applicants perceive no rneaningful distinc-
tion between administration and possession without international ac-
countability, on the one hand, and annexation, on the other. The fact
that the administrator consults his conscience in preference to a super-
visory organ, does not alter the practical, comrnon-sense, realities of the
situation.
In its written pleadings, the Respondent makes clear, by its own
admission, we believe, the hollowness of its contention that (1have just
quoted, and repeat) :
even more patently and obviously unrelated to any specific super-s
viçory authority than to a vague idea of 'international accounta-
bility'."
No comment appears necessary concerning Respondent's characteri-
zation of international accountability as a "vague idea", in the light of
al1this honourable Court has had to Say with regard to the nature and
essentiality of this obligation, in the plan of the mandates system.
Beyond this, however, the organic relationship between administra-
tion of the Territory of South West Africa and the function of inter-
national supervision is shown, i~ter alia, by Respondent's own avowal,
in which it says:
"In pursuance of the policy of administering the Territory 'inthe
spirit of the Mandate', Respondent has de fado been acting as if
al1obligations relevant for present purposes were still in force, in-
cluding [voluntary] abstention from unilateral incorporation."
This is quoted from the Rejoinder, VI, pages 447-448-"voluntary ab-
stention from unilateral incorporation" which, with respect, the Appli-
cants read as a synonym for "annexation".
The Applicants will have more to say about this in the context of their
consideration of Respondent's misconceived formulation of the nature
of the Applicants' subrnissions with respect to the legal consequences of
their actions, "coupled with their intent", in the words of the ninth
submission ofthe Applicants, to modify the terms ofthe Mandatewithout
the consent of the United Nations.
Throughout the written pleadings, Mr. President, there is a recurrent
theme, regarded by Respondent as relevant to numerous contexts, of
the measure, the asserted measure, of its obligations under Article 2,
paragraph 2,of the Mandate, the sacred trust obligation, as measured
by subjective motivation, good or bad faith, purpose of action taken,
and like subjective concepts of motivation, intent, and mens raa.
In their written pleadings, the Applicants have sought to make clear
that the Applicants, in no sense, rest upon, or request this honourable
Court to apply, subjective concepts of motivation or intent. The Appli-
cants use, and we submit, appropriately use, the concept of "intent"
in a legal sense but not as a subjective motivation, not as mens rea, not ?O4 SOUTH WEST AFRICA
to determine whether Respondent has a proper or lofty or iliicit purpose
.in its actions, but in the laivyer's sense of the use of the word,.ivhich
applies the test oan objective determination, judicial or administrative,
in.respect of the conduct of groups, individuals, or governments, and
which rests upon the universaily accepted principle that an individual,
or,+ enjity, is presumed to intend the foreseeable.and necessary con-
sequences of.kis, or its, actions.. And when the AppIicants refe~ to the
"intent" of Respondent, the word is used, and intended to be used, only
in that sense. We willLave more to say about this later butit ismentioned
here, with respect, Mr. President, because it does appear that the appli-
cation of the subjective test,of motivation appears to be rele'an' to the
quotation from the Rejoinder, to wliich 1 have referred.
In pursuance of the policy of administering the Territory in the spirit
ofthe~filandate, Respondent has de factobeen acting asif'all obligations
relevant for present purposes were still in force, including "voluntaiy
abstention from unilateral incorporation". The inference appears to be
that because Respondent is well motivated, and because its'purpose is
honest or of good faith, that al1requirements of the mandate principle
are satisfied.
[Public hearilrgof 23 dfarch 19651
Mr. President and Members of the honourable Court, at the close of
the previous session 1 had quoted from the Respondent's Rejoinder, a
quotation to the effect that-
".. . in pursuance of the policy of administering the Territory 'in
the spirit of the Mandate', Respondent has defacto been'acting as
if al1 obligations relevant for present purposes were still in force,
including [voluntary] abstention from iinilateral incorporation".
(Rejoinder, VI, p. 397.)
The Applicants wu, as 1 have said, have more to say about this in
the context of their consideration of Kespondent's misconceived for-
mulation of the nature of the Applicants' submission ~4th regard to the
legal consequences of Respondent 's actions, coupled with intent , in
the words of our submission, to modify the terms of the Mandate with-
out the consent of the United Nations. This is Submission g in which
we use the phrase "coupled with intent".
As hasbeen stated, and as will be further demonstrated, references
by the Applicants to Respondent's :'intentJ' or purpose do not refer to
a subjective motivation of good or bad faith, but to an objectively de-
of the universally applicable principle that canperson or an entity is pre-
sumed to intend the foreseeable and necessary consequences of his or
its actions.
The point relevant to the present context h,wever, isthe significance
properly to be attributed to Respondent's avowal that its so-calied
"abstention from unilateral incorporation" is a consequence, not of
its international obligations, but of a self-imposed restraint which, by
the same reasoning, could be lifted by its own will.
Accordingly, Respondent's argument is irreconcilable with the hold-
ing of this honourable Court in the 1950 Advisory Opinion, that:
"The terms of this Mandate, as well as the provisions of Article
22 of the Covenant and the principles embodied therein, show that ARGUMENT OF MR. G-SS 205
the creation of this new international institution,did not, involve
any cession of territory or transfer of sovereignty to the Union of
South Africa. The Union Government was to exercise an interna-
tional function of administration on behalf of the 'League . .,"
(1.C.J. Repovts1950, p. 132.)
Mr. President, it is merely to the same point in consençual terms
to Say that so long as Respondent continues to admimster the Territory
on the basis of rights conferred by the Mandate, ReÇpondent;by that
very fact, is manifesting a continuing consent to international super-
vision. And, inasmuch as there is in existence an international organ,
to wit, the United Nations, which is qualified to exercise supervision
over the Mandate, it.must be presumed that Respondent's retention of
rights over the Territory is consistent with no conclusion other than
that it is manifesting a continuing consent to subinit to the supervisory
authority of the United Nations:
Respondent's disciaimer of any such intention-imports into the pro-
ceedings a legally irrelevant consideration and one which, inany event,
is incapable of factual demonstration one way or another, to wit, de-
monstration of the subjective attitudes.of perçons who; from time to
time, may constitute Respondent 's Governrnent. At the most ,Reçpon-
dent's denial of a subjective.intention to submit to international super-
vision proves merely that any such officiais, if any there be, would
prefer to have it both ways, that is, to treat the Territory as ifit were
annexed, while claiming to act "in the spirit" of a mutilated Mandate.
It js manjfest here again that the Parties proceed from contrasting
points of departure. . . I
Respondent's starting point, namely that itsoriginal undertaking \vas
limited to an obligation "to report and account to a .S$eCifiorgan of
a specificorganization of certainof the nations of the world" (IIp. II~),
leads it to demonstrably false conclusions
Mr. President, neither the composition of the League of Nations, nor
the Council of the League, was fixed or static. Respondent, nonetheless,
never asserted during the life-time of the League that when the League's
original membership was altered by the addition of new members, or-
the departure of original members, that Respondent's obligations lapsed
by virtue of such changes in mernbership.
Respondent's contention that it contracted for a supervisory organ
composed of only "certain nations of the world" hence is a reductio ad
abszsrdzcmof its emphasis on the contractual nature of the Mandate,
to the exclusion of its essence as an international institution regulated
by international rules.
The recitation by my colleague, Mr. Moore, in Part B of Appliçantç'
presentation, of the events and transactions occurring during the period
of the dissolution of the League, has demonstrated that, in fact, no
parties to the Mandate, the League, the United Nations, or the Members
of either, including Respondent itself, took action on the basjs of any such
absurd premise.
As has been pointed out, Mr. President, the general expectation was
that the trusteeship system would supersede the mandates system.
Such an expectation, or hope, as it might be called, was entertained
despite Respondent's repeated assertions of its desire to annex the
Territory, although always explicitly poçiting the necessity for consent
thereto on the part of the United Nations.206 SOUTH WEST AFRLCA
As the Court found in the 1950 Advisory Opinion.
"By thus subrnitting the question of the future international
status of the Tenitory to the 'judgment' of the General Assem-
bly- as the 'competent international organ', the Union Govern-
ment recognized the cornpetence of the General Assembly in the
matter.
The General Aççembly,on the other hand, afirmed its cornpetence
by Resolution 65 (r) of December ~qth, 1g46."(I.C.J. Repovtsrg50,
PP. 142-143.)
Reçpondent's premise of an original undertaking limited to a "specific
organization", composed of "certain nations", leads to the equally un-
tenable conclusion that at the moment of the dissolution of that Orga-
nization, Reçpondent's right of annexation would have been perfected,
in the absence of a new undertaking, inexPressis verbisto an amendment
of the language of Article 22 of the Covenant, and of Article 6, and
paragraph I of Article 7, of the Mandate.
Such a conclusion, as has been demonçtrated, is irreconcilable with
this honourable Court's repeated holdings in respect of the legalnature
and requirements of the mandates system itseIf.
The Alembers of the League, who adhered to the United Xations
Charter, made clear their understanding that its provisions were not
inconsistent with those of the League Covenant which, indeed, was at
the functions of both bodies, were entirely congruent.s, the nature and
The only differences between the two Organizations, and these are
irrelevant to issues in the cases at bar, lay in interna1 structure, and
involved discarding of the old framework, or parts thereof, which had
been found wanting. But such functional differences did not entai1 ans
difference in the general scope, in the basic purposes or aims, in the
functional field, of the two organized bodies. Their areas of operation
and purpose ivere,in fact, one and the same. They were both, in short,
the embodiment and personification of the organized international
community.
This conclusion is fortified by the fact that, at the time of the League's
dissolution and the commencement of operations of the United Nations
the preponderant majority of both Organizations, a!though, of course,
not the entirety, were Members of both. The United Nations was thus
a realignment and reformulation. Legal obligations which continued to
esist at its inception, by virtue of any reasoning of which the Applicants
are amare, cannot be said to have lapsed as a result of the accession of
new Members to the United Nations.
The fact that the two Organizations, the League and the United
Nations, for a time existed side by side, repreçenting largely the same
member States, poses no legal or logicaldifficulties. The League remained
in forma1 existence solely for the purpose of orderly liquidation, which
would assure the continuance of rights and obligations, the survival of
which was regarded as necessary and appropriate. The rights of the in-
habitants of the Territory under the "sacred trust" obviously were
among these rights, in the Applicants' respectful submission, as the
Court has held and as Respondent conceded, at least alternatively and
argtlerzdoin the r962 proceedings.
This honourable Court in the 1950 Opinion defined and described the ARGU31EZ;TOF 3lR. GROSS
207
legal and organic relationship between the League and the United
Nations in respect of the law of the mandates systern.
First, within the ambit of its general purposes and functions, the
United Nations, in fact, was the only organized body capable of per-
forming an essential function under the Mandate. It kvasthe only body
in which the international accountability of the Mandatory could be
satisfied. Hence, the power and capacity to perform the function of
international administrative supervision was reposed in the United
Nations, as a matter of the international law, created by Article 22 of
consequencc was recognized in the finding of the 1950Opinion, thatgal :
"It cannot be admitted that the obligation to subrnit to super-
vision 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." (I.CJ. Refiorts1950. p. 136.)
Secondly, Mr. President, within the range of duties and powers ex-
plicitly conferred upon the United Nations by Chapter XII of the
Charter, consent of the United Nations is essential in respect of trustee-
ship agreements. Under the express holding of thjs Court in 1950, not
ognition of competence by Respondent, the consent of the United Na-c-
tions likewise is required to any modificationofthe terms ofthe Mandate.
Respondent, in its written pleadings, has undertaken for the second
time a dissection, by way ofcommentary, of the 1950 Advisory Opinion,
particularly centring upon the four "decisive reasons", aç the Court
termed them, underlying the Court's holding that Respondent is under
an obligation to report to the United Nations, which is to evercise the
supervisory functions over the Mandate.
The extent to which Respondent goes in its renewed effort to render
nugatory the 1950 Opinion appears, interaliu, from what the Appiicants
conceive to be its forced construction of the Court's conclusion in the
1950Opinion that :
"It cannot be admitted that the obligation to submit to super-
vision has disappeared merelp because the supervisory organ has
ceased to exist." (Ibid., p. 136.)
Respondent interprets the quoted conclusion of the Court to mean,
and 1 quote Respondent's comment:
"The suggestion seems to be that, in the light of the consideration
of effectiveness already stated, the interested parties might well
(or would probably) have intended that supervision of hlandates
should be continued by this new organ. Again [says Respondent]
this is reasoning by inference relative to tacit intent." (II, p. 143.)
On the contrary, Mr. President, in the Applicants' respectful view,
the Court's conclusion patently is baçed upon a series of inter-related
reasons, al1of which reflect objective principles oflaw arising frorn, and
inherent in, the mandates system itself, as well as consent manifested
apThuç, in the 1950 Advisory Opinion, the Court's conclusion rested on
both the objective situation created by the law of the Mandate in the208 SOUTH WEST AFR~CA
light of the League's dissolution, and Respondent's consent made mani-
fest in that situation.
The Court explicitly found, in 1950 that:
"In declarations made to the League of Nations, as wel as to the
United Nations, the Union Government has acknowledged that its
obligations under the Mandate continued after the disappearance
of the League." (I.C.J. Reports1950 ,p. 134-135,)
Respondent's renewed effort, to render nugatory the Court's 1950
Opinion, by virtue of the "new facts" contention, has been analysed by
mp colleague, h,Ir.hloore, in Part B of the Applicants' presentation.
The facts need not be repeated here at any length. The asserted "new
facts", again put forward to invalidate or cal1for reversa1 of the 1950
Opinion, are as follows: (1)the Chinese draft resolution, rnentioned by
Mr. Moore ;(2) the proposal for a Temporary Trusteeship Cornmittee,
likewise mentioned by him; and (3) the attitudes of States during the
facts were belore the Court in 1962; their immateriality was noted ine
the words previously quoted from the 1962 Judgment: "AUimportant
facts were stated or referred to in the proceedings before the Court in
1950." (I.C.J.Reports 1962, p. 334.)
Thethird so-called "new fact", that relating to views of member States
during the period preceding the 1950 Advisory Opinion, nevertheleçs
has implications of which special note may now be taken, with your
permission, Sir.
That there were differences of viewpoint expressed by rnember
States during this period is obvious. The true significance of such
differences, however, is not the same as that sought to be inferred
by Respondent .
This matter also was discussed at lcngth during the 1962Oral Procecd-
ings. On behalf of the Applicants at that time, 1 had the honour to
address to the Court:the following comments, which 1 take the liberty
of repeating, with your permission, Mr. President:
"The fact is [I said] that in the period 1947 to 1949 strenuous
efforts were being made by United Nations Members to induce the
Respondent to follow what this Court, in the Advisory Opinion,
called-and I quote-the 'normal course indicated by the Charter'.
Iluring this penod vague, inconsistent and contradictory views
were expressed on the subject of United Nations supervision over
the unconveited Mandates . ..
Of course, it was precisely because of the confused, vague and
contradictory, and often shifting, statements by Members of the
United Nations, that the hfembers, through the General Assembly,
requested this Court for its Advisory Opinion. And now [I said in
19621 Respondent relies upon that very confusion and vagueness to
induce the Court to reverse its Opinion." (Oral proceedings, 16Oct.
1962m ,orning.)
hlr. President, the Respondent again adverts to the same point as
one element of its re-asserted "new facts" contention.
It seerns fair tosay, Sir, that the confusion manifested during the
United Nations debates on this subject was, and indeed stiil is, reflected
by Respondent's owncontentions with regard to the subject. Thus, the
Respondent again (as in r962r)efers to the asserted position 25 States ARGUMENT OF MR. CROSS 209
which, according to the Respondent, expressed the understanding, and
1 quote:
"that there was outside of a Trusteeship Agreement, no obligation
to submit to supervision. .. and no power of supervision on the
part of the United Nations in that respect".
Thus spoke Respondent's learned Counsel in the Oral Proceedings of
1962(5 Oct., afternoon).
The United States, as this honourabie Court will be aware, submitted
a written statement to the Court in connection with the 1950 advisory
proceedings.
The statement of the United States contains the following comments,
i?at~dia, on this subjec:
"The general tenor of discussion in the General Assembly from
1946to 1948was that the Mandate for South West Africacontinued
in existence.''P. 103 of the United Statesstatement in 1950.)
The United'States statement then went on to cite the views of XI
Rlembers, including two separate statements by United Statesrepresen-
tatives to like effect during these years.
This United States statement proceeded, and 1 quote:
"A minority of the Assembly took the position that the Mandate
had already expired; most of these premised their conclusion by
contending that theTrusteeship System hadalready infact rcplaced
the Mandates System sincethe placing ofMandates under trusteeship
was compulsory." ]P. rog of the United. States written statement.)
It may be parenthetically asserted, Mr.President, that thelatter view,
that is that the placingof mandates under trusteeship was compulsory,
was, of course, cxpressed by the United States prior to the decision by
this honourable Court in the 1950 Advisory Opinion to the contrary.
Holvever, the 'fact remains that although the Aiembers of the United
Xations expected that al1 mandates, not othenvîse disposed of kvould
be placed under trusteeship, there was no legal compulsion envisaged
in Article XII of the Charter that such territories be placed under trust-
eeship, and in that r~spect of course the comments expressed to the
contrary by the member States during this period were legally untenable.
Rack, however, to the main trend of the argument-the United
Stateswritten statement in 1950 goes on to Say:
"South Africa at the sessions of the General Assembly in 1946-
1947 by no means cmbraced the minority view but firmly supported
the view of the majority ... Recent deveiopments (that is, devel-
opments prior to 1950) with respect to the Union of South Africa's
administration of South West Africa and the expressions of Union
representatives indicating partial or total termination of the Man-
date, although perhaps foreshadowed in 1947, first clearly appear
in 1948[ .The United States written statement goes on] .. .Read
beside the record of contemporary events and statements, such
belatedcomments are not persuasive as to the intentions and under-
standings of the Union and other States when the Le(P. 104s of the
United States written statement.)estabiished."
Mr. President, it may be a reflection of the confusion then existing,
and ~vhich isstill indeed harboured by the Respondent, that of the list210 SOUTH WEST APRICA
of States cited in the United States statement as holding the view that
the Mandate responsibilities continued in existence, six of tlie same
States are listed by Respondent as holding the view thatthe Respondent
had not remained under a duty to submt to international supervision.
The Respondent, indeed, goes so far asto caliinto question the viebcrsof
the United States itself onthis matter, notwithstanding clear expression
of views on the part of the United States representatives to the United
Nations, including Rlr.Benjamin Gerig, the representative of the United
States on the Trusteeship Counci1 in 1947, and hirnsea lfrecognized
authority on mandate and trusteeshi affairs.
Oneexample, alsocited inthe 1962 & alProceedings (22Oct., morning),
at page 347, is a quotation from a statement made by Mr. Gerig on behalf
of the United States at the Fifteenth Meeting of the Truçteeship Council
in 1947 at page 505,stating as follows:
"1 am among those who always have believed that the hlandate
does continue in force, but there are others who do not take that
view."
Mr. President, it must be unique in the annals of judicial proceedings
that the very confusion, uncertainty and differences of opinion leading
to recourse to judicial process for resolution thereof, should be cited as
evidence in support of the proposition that the Court could not have
resolved the matter in the way it did had it known of the confusion and
disagreement which occasioned judicial recourse. Moreover, the Hespon-
dent refuseseven now to accept the validity ofthe Ig50Advisory Opinion,
even though this honourable Court in 1962, as 1have said, held that the
Mandate as a whole is still in force and that (to quote again) "al1 irn-
portant facts were stated or referred to in the proceedings beiore the
Court in 1950". (I.C.J. Reports 1962, p. 334,}
In fact, hir. Yresidentas the actual history of the period makes clear,
the issue as to which Members of the United Nations were confused and
at odds was not asbetween international supervision over the mandated
territory and no supervision. The issue drawn, rather, was that between
supernision under the Mandate or supervision under the trusteeship
system. It was hesitancy and confusion,refiected in numerous statements
made and often shifting within the same delegation-it was hesitancy
and confusion as between these two alternatives (supervision uiider the
mandates system or supervision under the trusteeship system) which left
matters vague for a period, and which led to the request for the 1950
Advisory Opinion. It is, accordingly. a distortion of the history of that
period, and the significanceofthe debates which took place at the United
Nations, to portray the admitted and obvious confusion and disagree-
ments as a difference between those who supported retention bj- the
Respondent of rights over the Territory without supervision. as dis-
tinguished from those who held to the view that such a situatioii could
not be justified, in the words of this honourable Court.
If any one fact emerges clearly from those debates, Mr.President, it is
that no Member of the United Nations would have or could have sup-
retention of rights over the Territory while denying obligations underay,
the Ilandate. Indeed, as will shortly be shown, any such view would
have been irreconcilable with the intentionofthe Members of the United
Nations as confirmed, although not established, by Article 80, paragraph ARGUMENT OF MR. GROS5 211
I, of the Charter, stating that until trusteeship agreements were con-
cluded nothing in Chapter XII would be constmed to alterin any manner
the rights of States or peoples or the terms of existing internationalin-
struments, which include the Mandate in question, to which Members of
the United Nations were parties.
1 shall deal with the question of Article 80, paragrap1, shortly, with
the permission of the President.
hlr. President, 1 have referred earlier to the fact that Respondent's
contention concerning the limited and specific nature of the obligation
to report only to a specific body, named in the Covenant and in the
Mandate, reflects its contractual orconsensual analysis of the mandates
system.
Respondent argues, indeed with çome vehernence, that the Applicants
are in error in suggesting that Respondent's contention isbased upon
the theory of contract. The Applicants are aware that the present for-
mulation of Respondent's argument is cast in a mould different from
that of the 1962 model. Disregarding the form and looking at the sub-
stance, however, the conclusion remains inescapable that the theory
of the "specific supervisory body", if 1rnay refer to it in that way, rests
essentially on the proposition that Respondent did not agree, and would
not have agreed, to any supervisory body other than the Councii of the
League of Nations.
The contention that Respondent agreed to only one body, and not to
another, is contractual in essence ifnot in formulation, even though it
may be formally garbed in the robe of principle. As the Court has held,
such an interpretation of the obligation is irreconcilable with the charac-
teristics of the Mandate as an international institution with an inter-
national status. On the other hand, if the obligation of international
supervision is to be regarded, as it properly must be, as a general and
basic legal duty, laid upon the League as an organized international
community, it follows that the duty of international accountability
subsistç so long as Respondent retains rights under the Mandate. Ifthe
Respondent does not wish to conform to the law of the Mandate, Re-
spondent must relinquish its rights. In the words of Judge Rustamante,
prcviouçly quoted :
"The function of the Mandatory is a resfiolasibilitrather than
a right (Article22. paragraph 2, of the Covenant) . .. it is for the
Mandatory to refuse the trust ifit cannot bear the burden." (I.C.J.
Reports1962,p. 357.)
IVith the foregoing in mind, it seems to be pertinent again to note
the precise terms of the League resolution of 18 April 1946, and to con-
sider the legal significance of Respondent's actions with regard to that
resolution.
The contents of certain antecedent declarations made by Respondent
have been quoted, in relevant part, in my colleague hfr. Moore's presen-
tation of Part B of the present phase of the Oral Proceedings. 1 refer to
pages 148, 155-157 and 158-15 supra.
These were the declarations which were found in the 1950 Advisorjr
Opinion to "constitute recognition by the Union Governrnent of the
continuance of its obligations under the Mandate". This is from. I.C.J.
Reports19 jo,page 135.
Respondent's declarations corresponded to those made by other212 SOUTH WEST AFRlCA
Mandatories as well: the United Kingdom, France, Australia, New
Zeaiand and Belgium. These likewise have been referred to in Part B of
the Applicants' presentation, at pages 148-14 9upra.
The point to which the attention of the honourable Court is now
reçpectfully drawn is the legal significance of Respondent's action in
accepting and voting for the resolution of 18April1946.wilibe recalled,
Nr. President, that the fourth paragraph of that resolutiwas adopted
in the following terms: .
"The Assembly, ':
4. Takes note of the expressed intentions of the Membersof the
League now administering territories under the Mandate to con-
tinue to adminiçter thern for the well-being and development of the
peoples concemed in accordance with the obligations contained
in the respective Mandates, until other arrangements have been
agreed between the United Nations and the respective Mandatory
Powerç."
Acceptance by Respondent of this resolution clearly involved an
explicit undertaking of some sort, unless it.be deemed a mere statement
of Respondent's present intention as of that moment. In that case,
however, the phrase "until other arrangements have been agreed between
the United Nations and the respective Mandatory Powers" would have
been meaningless,~ifnot, indeed, misleading. The legal scope and nature
of the undertaking, moreover, would be determined by the legal signifi-
cance attributable to the phrase, in the paragraph I have just quoted,
which reads "in accordance with the obligations contained inthe respec-
tive Mandates".
If the word "obligations" in paragraph 4 of the 18April resolution
means, as the Applicants respectfully submit, a basic and essential
obligationof international supervision, then Respondent'ç undertaking
must and can only be read as a cleartommitment to submit to supervi-
sion by the United Nations, whose agreement must in any event be
sought in terrns of the same article to any other arrangement. Whether
inferred, or tacit has no relevance whatever. is described asimplicit,
A phrase sometirnes used by Respondent in its written pleadings is
"an implication of tacit agreement"' (forexample, II, p. 143)P.asjing
notice rnay be taken of the tautology inherent in the quoted phrase,
inasmuch as an agreement which is tacit can only be implied. But the
grarnmardoes not matter; the point is thatno matter how consent may
be rnanifested or characterized, the legal consequences are identical.
The only relevant consideration, which is at the heart of the matter, is
that Respondent-in Company with other Mandatories-agreed to,or
acquiesced in, an undertaking to carry on an obligation which this
honourable Court has defïned as the very essence of the Mandate.
The Applicants subrnit, with respect, that the foregoing interpretation
of both the event and the intent is a very reasonable one. The Manda-
tories, includiq Respondent, accepted the continuance of the esiçting
regimes, including the substitution of the United Nations for the Lee
as the supervisory organ,for what everyone concerned hoped wou1 C bF
a short, transitional period. Al1 Mandatories, other than Respondent,
anticipated replacement of the mandates system by the trusteeship ARGUMENT OF MR. GROSS 213
system, andin the event acted in accordance with the spirit of the
Charter jr+the accornphshment of that end.
The United Nations mernbership resisted and avoided explicit mea-
sures or steps, such as the establishment of a temporary trusteeship
committee, for fear that any such mesures or steps might encourage
delay in the. completion of tmsteeship agreements. The.United Nations
did, however, manifest its understanding and intention to exercise
supervisory authority over the Mandate. Resolutions of the United
Nations General Assembly, as the Court said in ~gjo, affirmed its corn-
petence in the premises. This \vasin the .response to question (c) in the
1950 Opinion, at page 143. Respondent had rnanifested the clear inten-
tion to seek an agreed arrangement with the United Nations; whereby
the Mandate 'would be terminated as the result of the Territory's in-
corpoiation into the Republic of South Africa. Respondent's intention
in this respect was followed up by its submission of such a proposa1 "to
the General Assembly for 7udg-ent". This is quoted in the I.C.J..-eport1
1950. at page 142;'
On the other hand, Mr. President, acccptance of Respondent's inter-
pretation of the event and the intent would mean that international
supervision had lapsed, that al1 Kespondent did by accepting the 18
ApriI 1946 resoIution was to void that obligation, or record its nullity,
and that such obligation could be ,restored only, if at all, by a new
arrangement whichmight or mightnot be agreed with the United Nations.
Acceptance of such an interpretation would not merely posit a muti-
lated Mandate, it woula make irielevant most of what this honourable
Court has had to Say about Article 22 of the Covenant and about the
nature and purpose of,the Mandate itself. .
Finally, brief comment rnay be iri order concerning the legal signifi-
cance of the adoption of the 18April 1946resoIution from the perspec-
tive of the United Nations side of the event.
In the 1950 Advisory Opinion, this honourable Court found that the
aforesaid resolution "presupposes that the supervisory functions exer-
cised by the League would be taken over by the United Nations". This
is from I.C.]. Reports 1950, page 137.
It is submitted, with respect, that the word "presupposes" bears
precisely the correct connotation. On the one hand, the term reflects
the common understanding of the League hlembers. On the other hand,
the term recognizes that the League could not appropriately have taken
express action or implied action which purported to assign or transfer
functions to the United Nations, or in any other way to bind the latter
Organization. Hence, the League resolution went as far, in teqns, as
was legaliy orpracticably feasible and appropriate under the circum-
stances.
The resolution of the League made clear the intention of the League
Mernbers, rnost. of whom, including Respondent, were also Members
of the CO-existentUnited Nations, that the Mandate regime would
continue until-1 stress the word "until"-other arrangements super-
seding that regime might be agreed upon between the hlandatory Powers
and the United Nations.
The 1962 Judgment iikewise interpreted the 18 April 1946resolution
in a sense wholly consistent with the 1950 Advisory Opinion.
The honourable Court in the 1962Judgment said:
". ..obviously an agreement was reached among al1 the Memberszr4 SOUTH WEST AHRICA
of the League at the Assemblysession in April1946 to continue the
different Mandates as far as it was practically feasible or operable
with reference to the obligations of the Mandatory Powers and
therefore to maintain the rights of the Members of the League,
is evidenced not only by the contents of the dissolution resolution
of 18Apnl 1946but also by the discussions relating to the question
of Mandates in the First Cornmittee of the Assembly and the whole
set of surrounding circumstances which preceded, and prevailed at ,
the session." (f.C.1.Reports 1962, p. 338.)
The Court's references to feasibility or operability corresponded to
the objective realities of the situation caused by the demise of the
League, to wit, the necessity to substitutethe existingsupervisoryorgans
with others, and specifically, the substitution of the United Nations for
operableueisTbeyond dispute, inasmuch as the United Nations, then ine and
existence, had :
"another international organ performing similar, though not identi-
cal, supervisory functions,
.................................................................
[and was] legally qualified to exercise the supervisory functions
previously exercised by the League of Nations with regard to the
administration of the Temtory ..." (I.C.J. Repods 1950, pp. 136,
137.1
Accordingly, the United Nations was in a condition and in a position
to replace the League of Nations both from a feasibleand operable stand-
point.
In the 1962 Judgment this honouabIe Court likewise passedupon the
significance properly to be attributed to the declarations made by
the mandatory powers prior to adoption of the resolution; the Court
concluded that-
". .. the common understanding of the Member States in the As-
sembly-including the hlandatory Powers-in passing the said
Resolution, was to continue the Mandates, however imperfect the
whole system would be after the League's dissolution, andas much
asit would be operable, until other arrangements were agreed upon
by the hlandatory Powers ..." (1.C.J. Reports 1962,p. 341.)
The Court's qualificatioiis, such as the phrase "however imperfect
the whole system would be", or "as much as it would be operable",
which the Court noted in the sentence preceding the quoted language-act-
that ". .. some organs of the League like the Council andthe Permanent
Mandates Commission would be missing". As the Court also noted, thk
fact necessarily precluded "complete compliance with the letter of the
Mandate". That isalso from 1.C.J. Reports 1962, page 341.
The Court's discussion, of course, was in the context of Respondent's
second preliminary objection, which was premised on a literal construc-
tion of the term "another member of the League of Nations" in the
compromissory clause of Article 7of the Mandate. The Court's reasoning,
based upon its interpretation of the transactions in April 1946, together ARGUMENT OF MR. CROSS Zx5
with the terms of the resolution itself, Ied the Court to the conclusion
that the resolution "wnç adopted precisely with a view to averting"
literal objections derived from the quoted term in question, "another
member of the League of Nations". It is submitted that the same con-
siderations, and full parity of reasoning, apply to interpretation of
Article 6 and Artide 7, paragraph I,in respect of the matter under
discussion.
The 1946League agreement was to maintain the "stniersqaoas faras
possible1'-in the words oftheI.C.1. Reports 1962 ,tpage3.p. The mainte-
nance of the statusquo as far as possible must have included the sub-
stitution of the United Nations for the League, unIess the very essence
of the Mandate was to be excluded, and this must be so for "decisive
reasonsM-in the words of the Court in 1950 which are set out in the
I.C.J. Refiorts1950 at page 136.Acceptance of Respondent's contention
would, on the contrary, have produced a rnutilated Mandate which, far
from preserving the statzcquo as far as possible, would have destroyed
the status quoalmost as far as possible, by excluding the very essence of
the Mandate.
Mr. President and Members of the honourable Court, 1 should now
like to turn to discussion of the significance of Article 7, paragraI, of
the Mandate.
The Applicants' Submission g is as follows:
". ..the Union, by virtue of the acts described in Chapters V, VI,
VI1 andVI11 of this Mernorial 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 asstated 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 prece-
dent to attempts on the part of the Union directly or indirectly to
modify the terms of the Mandate." (1,p. 198.)
The judgment of this honourable Court, accordingly, is sought in
these proceedings, not only in respect of the Mandatory's procedural
obligations under Article 6 of the Mandate, but also wvithrespect to the
restrictionupon the right of modification embodied in Article 7, para-
graph 1,of the Mandate and to the interpretation of such paragraph,
This is, as1 have said,the stipulation that "the consent of the Council
of the League of Nations is required for any modification of the terms of
the present Mandate".
The obligation embodied in Article 7, paragraph 1,which is of decisive
consequence, precludes the mandatory from unilaterally rnodifying its
obligations, including those of submission to administrative superv~sion
and judicial protection.
The prohibition against unilateral modification is, on the one hand, of
the very essenceofaccountability inasmuch asit assumes the continuance
of the securities to assure proper exercise of Respondent's rights in the
Temtory; such rights, it will be recalled, have been described by this
honourable Court as "mere tools given to the Mandatory to enable it to
fulfil its obligations". On the one hand, therefore, Article 7,paragrap1,
safeguards the principle of "no annexations"; on the other, it precludes
direct, or indirect, modifications which might, inter alia,impede the
self-determination of the inhabitants of the Territory.216 SOUTH WEST AFRICK ,'
Judge Sir Louis Mbanefo, in his separate opinion appended to the
Judgment of 21 Decernber 1962,said with respect to Article 7:
"-4rticle 7, read in the light of paragraph8 of Article22 of the
Covenant, is a limitation on the power of administration which had
been conferred on the Mandator .The first paragraph of the Article
says the Mandatory cannot mod;fy the tenns of the Mandate with-
out the consent of the Council, and the second paragraph imposes
on the Mandatory the obligation to accept the compulsory juris-
diction of the Court in the event ofany dispute with another Member
of the League regarding the interpretation and application of the
Mandate."(I.C. J. Reports1962, p.442.)
At IV, p. 135(which is reiterated by Respondent in VI) Respondent
refers to the Advisory Opinion of 1950 in this regard, stating that-
",. .an essential link in the Court's reasoning [with respect to this
Article] was its previous finding that 'powers of supervision in
respect of the administration of the hlandates' were vested in the
General Assembly of the United Nations".
Respondent then proceeds to argue that if its submission concerning
lapse of Article 6 is sound, Article 7, paragraph I,likewise must have
lapsed, and that the reasoning of the Advisory Opinion of 1950,accord-
ingly, is unsound.
In the summary of legal issues in Part A of the Applicants' presenta-
tion, the phase with which the Applicants commenced the presentation
of this phase of their case to the honourable Court, reference was made
to the inescapable consequences which would flow from the lapse or
ino erability of Article 7, paragraph I, so long as Respondent retained
an J 'xercised rights based on the Mandate, upon which its administra-
tion of the Territory is founded. Either oftwo intolerable results would
ensue: either the Mandate would be frozen in its present fo? in per-
petuity for lack of a supervisory organ competent to give its consent to
any modification of its terms; or Respondent would ,bc freeii~?ilaterally
to modify the terms of the provisions of the Mandate without the consent
of a supen~isory organ, which modification could include destruction of
its international status, thereby annexing the Territory in lalas well as
in fact. Either one of these two intolerable consequences would flow
from lapse of Article 7, paragraph 1, so long as Respondent retained
rights over the Territory, while denying obligations under this Article.
Inasmuch as Respondent, for the purpose of refuting the Applicants'
Ninth Submission, to which 1have alluded, relies upon al1its arguments
ehborate further, ate othismstage, considerations underlying Article 7,
paragraph r, and its relationship to Article 6 of the Mandate. ,
In the Advisory Opinion of 1950 ,he Court in response to question (c)
dealt with the issue whether Respondent has the competence to modify
the international status of the Territory of South West Africa or, in the
event of a negative reply, where cornpetence rests to determine and
rnodily the international status of the Temtory.
With respect to the first part of the question, the Court held as follows:
"The international status of the Temtory results from the inter-
to the administration of the Territory and the supervision of thating administration, as embodied in Article 22 of the Covenant and in
the Mandate. It is ckar that the Union has no competence to rnodify
unilaterally the international status of the Territory or any of theçe
international rules. This is shown by Article 7of the Mandate, which
expressly provides that the consent of the Council of.the League of
Nations isrequired forany modification ofthe terms ofthe Mandate."
(I.C.].Reports 1950, p. 141.)
With respect to the second part of question (cl, the Court took oc-
casion to point out that "the normal way of modifying the international
status of the Territory wouldbe to placeit under the Trusteeship System".
Failing agreement upon such "normal way", the Court held that:
"The competence to modify in other ways the international
status of the Territory depended upon the rules governing the amend-
ment of Article 22 of the Covenant and the modification of the
tenns of the Mandate." (Ibid.)
The Courtwent on to Say, in the 1950 Opinion:
"Article 7 ofthe Mandate, in requiring the consent of the Council
of the League of Nations for any modification of its terms, brought
into operation for this purpose the sarne organ which was invested
with powers of supervision in respect of the administration of the
Mandates. In accordance with the reply given above to Question (a),
the United Nations."rv(Ibid.)ow belong to the General Assembly of
The Court referred to the analogy of the procedures required in Articles
79 and 85 of the United Nations Charter, rvhich gave to the General
Assembly authority to approve alterations or amendrnents ofTrusteeship
Agreements. By application of this analogy the Court said that it could
be inferred "... that the same procedure is applicable to any modifica-
tion ofthe international status of a territory under Mandate which would
not have for its purpose the placing of the territory under the Trustee-'
ship System". That is from page 142of the Court's Opinion in 1950.
Respondent, asweIlinioastaction taken by the General Assembly, as con-
firrnatory of the Court's conclusion.
One such statement, that of 22 January 1946b ,efore theFourth Com-
mittee of the General Assembly, has been referred to in hlr. fiIooredis-
cussion, in Part B of this phase of the Oral Proceedings. Mr. Moore, in
that phase, the Court wili recall, recounted the history of events taking
place during the penod 1945 and following.
Respondent's declaration, to which the Court referred, was that in
which Respondent explained the special relationship between itself and
the Territory under its Mandate. In the course of this declaration, Re-
spondent's representative to the Fourih Committee assured the Com-
mittee that there would be no attempt to draw up an agreement until
the freely expressed will of the inhabitants of the Territory had been
ascertained. Respondent's representative continued: "When that had
been done, the decision of the Union would be submitted to the General
Assembly for judgment." This is quoted in the 1950 Opinion at page 142:
Similarly, on 9 April 1946b ,efore the General Assembly of the Eeague
of Nations itself,Respondent's representative declnred that "it is the
intention of the Union Governrnent, at the forthcoming session of the
United Nations General Assembly in New l'ork, to formulate its case218 SOUTH WEST AFRICA
for according South West Africaa status under which it would be inter-
nationally recognized as an integal part of the Union". That is from
page 142 of the 1950 Opinion.
After referring to actions taken by Respondent in accordance with
these declarations, the honourable Court concluded: "By thus submitting
the question of the future international status of the Territory to the
'judgment 'of the General Assembly as the 'competent international or-
gan', the Union Governrnent recognized the competence of the General
Assembly in the matter. " That is from the 1950 Opinion at page 142.
Finally, the Court noted that the General Assembly, for its part, had
"affirmed its competence by Resolution 65 (1) of December qth, rg46",
in which the Assembly expressed the desire that agreement between the
United Nations and Respondent "may hereafter be reached regarding
the future status of the Mandated Territory of South-West Africa". The
resolution concluded: "The General Assembly, therefore, is unable to
Union of South Africa." Citedat page 143tof the Advisory Opinion of 1950.
The attention of the honourable Court is respectfully called to the use
of the words "accede to" in the resolution of the General Assembly of
14 December 1946.
On the basis of the foregoing considerations, the Court unanimously
reached the conclusion that "... competence to determine and modify
the international çtatus of South West Africa rests with the Union of
South Africa acting with the consent of the United Nations".
The Applicants, with respect, cal1to the attention of this honourable
Court the comment in the 1950 Advisory Opinion which I have already
quoted, that "Article 7 of the Mandate, in requiring the consent of the
CounciIof the League of Nations for any modification ofits terms,brought
into operation for this purpose the same organ which was invested
with powers of supervision in respect of the administration of the Man-
dates". That is from page 141 of the Opinion.
Mr. President, it is crystal clear, in Oursubmission, why this muçt be
so: why the same organ, responsible for modification of the terms of the
Mandate, should be the organ which is in charge and ha powers of super-
vision in respect of the administration of the Territory. The organ, the
consent of which is required for any modification of the terms of the
Mandate, must be in a position to render an informed judgment con-
cerning the question whether any particular modification would be in
the interests of the inhabitantsof the Temtory, would be consistent with
the spirit and objects of the Mandate, and would, indeed, correspond to
the general interest of the international community.
By virtue of paragraphs 7 and g of Article 22 of the Covenant, and
of Article 6 of the Mandate, the supervisory organ is to receive an an-
nual report, to its satisfaction, "containing full information with regard
tu the Territory, and indicatirig the measures taken to carry out the
obligations assumed under Articles z, 3, 4 and 5".
In order to consider intelligently, or to give an informed consent to,
any proposed modification of the terrns of the Mandate, it is obvious
that the consenting organ must have access to the "fuii information
with regard to the Territory" in general, aç well as to specificindications
of the measures taken to carry out the Respondent's obligations toward
the inhabitants. Hence, consent to modification of terrns embodying
obIigations of this type must depend, inter alia, upon information read ARGUMENT OF MR. GROSS 219
sures taken by Respondent to carry out its obligations.onsequences of mea-
The Council of the League was authorized to define in each case the
"degree of authority, control, or administration to be exercised by the
Mandatory" under paragraph 8 of Article 22 of the Covenant. The
Council of the League likewise confirmed the Mandate and defined its
terms. It was therefore appropriate and necessary that the Council of
the League be the organ whose consent was a precondition of any modifi-
cation of the terms ofthe Mandate.
The Council itself obviously could not accord the necessary attention
to the detailed and day-to-day requirements of administrative super-
vision of the Mandatory's conduct with respect to the Territory. Accord-
ingly, Article22, paragraph 9, of the Covenant ofthe League of Nations
required-not merely fiermztted-that "a permanent Commission be
constituted" for the purpose of assisting and advising the Council "on
al1 matters relating to the observance of the mandates". Such advice,
it is submitted, would necessarily have included opinion as to whether
the Council should give consent to any proposed modification of the
terms of the Mandate.
There is thus a direct interrelationship between the provisions for
administrative supervision in Article 6 and reporting contained in the
Mandate and in the Covenant, and the first paragraph ofArticle 7relating
to consent to modification of the terms of the Mandate.The two Articles,
it is respectfdy submitted, are interrelated and must be read in each
other's light.
If Article 6 of the Mandate has lapsed, as Respondent contends,
the first paragraph of Article 7 would be thereby rendered ineffectual.
There would be no supervisory organ to give or withhold consent to
modification of the terms of the Mandate.
Precisely the same result would follow frorn Respondent's second
alternative contention, namely that the Mandate as a whole has lapsed,
including Article 7, paragraph I.
The result is one which has long been contended for by Respondent
and repeatediy rejected by this honourable Court. In its written state-
ment, submitted to the Court in 1950, Respondent's then Counsel con-
tended :
"It is the considered view of the Governrnent of the Union of
South Africa that there is no international legal limitation upon
their cornpetence in respect of the territory and that their inter-
national obligations, arising from the status of the territory, are to
be determined accordingly."
This isfrom the 1950 Pleadings, pages 83-84, which we quoted in the
Oral Proceedings of 1962at page 305(17 Oct., morning).
Respondent's considered view in 1950 is presented to the Court again
in r965,despite the intervening opinion and judgrnent of this honourable
Court.
The absence of such "international legal limitation" is stili being
pressed. Article 7, paragraph r, Mr. President, is the major impediment
tooannex the Temtory. For, inasmuch as there is a functional relation-ght
ship between Article 6 and Article 7, paragraphs Iand 2,of the Mandate,
there is likewise a substantive relationship between Article 7, paragraph 220 SOUTH WEST AFRICA
I; and Article 2, paragraph I. The latter-Article 2, parag~aph I-
provides 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."
Those are the broadly formulated terms of Article 2, paragraph r, upon
which Respondent very heavily relies.
. This was one of the "international mles regulating the Mandate
[which] constituted an international status for the Territory", in the
words of the 1950 Advisory Opinion, at page 132- Although Article 2,
paragraph 1,vests in the Respondent "full power of administration and
legislation" over South West Africa "as an integral portion" of South
Africa, such grant of powers is of course limited by the international
status of the Territory and is. of course, subject to the provisions of
Articlezz of the Covenant and of the remainder of the mandate instru-
ment itself, notably Article2 (z) Article 6(1) and Article'7,paragraphs
(1)and (2).
An attempt, and this is relevant particularly in this context of the
discussion of Article 7, paragraph I,an attempt, direct or indirect uni-
laterally to incorporate or annex the Territory would constitute a modi-
fication of the tems of the Mandate without the consent of the super-
visory organ, to wit, the United Nations.
The correlation of Article2, paragraph 1, with Article 7, paragraph r,
underlies the Applicants' Submissions Nos. 5 and g respectively.
As formulated in the Mernoriais (E),at pages 184-195,and reaffirmed
in the Reply (IV), at pages 572-586,Respondent hastaken action reflect-
ing a purpose, objectively determined, to incorporate and annex the
Territory into the Republic of South Africa. Respondent has pursued
this objective by means of policies and acts ïvhich impair, and are in-
compatible with, the.separate international status of the Territory.
Such policies andacts are as set forth in the written pleadings of the
Applicantç: (r) compulsory conferment of South African citizenship on
the inhabitants by a process having general application; (2)inclusion of
South West African Representatives in the South African Parliament,
where they are entitled to vote on South African legislation applicable
to South Africa itself;(3) the transfer of the administration of part of
the Territory to the South African Government; (4) the vesting of the
title to "Native" Reserve Land in the South Africa "Native" Trust;
and (5) the transfer of "Native" administration from the Territorial
Administrator to a South African Minister of "Bantu" Administration
and Development.
The Applicants, relying upon~undisputed facts, request this honour-
able Court in their Submission No. 5 to adjudge anddeclare, inler alia,
that Respondent, by virtue of conduct described in Chapter VI11 of the
Mernorials, has treated the Territory in a manner inconsistent with its
international status. In Submission No. g, the Applicants request the
Court to adjudge and declare, interalia, that,by virtue of acts described
in Chapters V, VI, VI1 and VI11 of the Mernorials, "coupled with its
intent as recounted" therein, Respondent haç attempted to modify
the terms of the Mandate, wjthout the consent ofthe United Nations. ARGUMEST OF MR. GROÇS 22 1
The "intent" referred to in Submission No. g, as 1 have said, is the
conduct by virtue of the universally accepted principle that a person ors
entity is presumed to "intend" the necessary and reasonabIy foreseeable
consequences of his, or its, actions. Submission NO.gis the onlyone of the
Applicants' Submissions, Mr. President, in which explicit reference to
"intent" is made. Such reference is regarded by the Applicants as rele-
vant because of the fact that Article 7,paragraph1,is the only provision
in the Mandate which contemplates a consensual arrangement between
the Blandatory and the supervisory organ, a subsequent agreement to
accomplish a certain result.
Accordingly, conduct from which may be objectively inferred an
intent to evade the requiremenis of Article 7, paragraph I,by means of
unilateral action, takes on significance in the absence of a showing by
Respondent of any plan or purpose to seek consent of the supervisory
organ.
Respondent's conduct, as set forth in the chapters of the Mernorials
referred to in Submissions Nos. 5 and g,is relevant to a consideration of
the consequenceswhich would flowfrom lapse of Article 7, paragraph I.
Mr..President, 1 said at the conclusion of this morning's session before
the recess, that Respondent's conduct, as set forth in the chapters of the
Memorial, referred to in Subrnissions numbers 5 and 9, is relevant to a
consideration of the consequenceswhich would flowfromla se of Article
7, paragraph I.If the honourable Court were to accept gespondentts
contention concerning lapse of provisions for international supervision,
including Article 7, paragraph 1, the Applicants' Submissions numbers
5 and 9 would, thereby, and for that reason alone, become unavailing.
In çome, Respondent's conduct, upon which the said Submissions num-
bers.5 and g are based, demonstrates that Article 7, paragraph 1,is not
of merely hypothetical or theoretical consequence and importance, but
is of girect immediate practical significance in the light of the actions
and ,policiescomplained of in the Meinorials. Hence, Article 7, paragraph
I,isin a practical as wellas a theoretical sense, bath constitutionally and
organically of the essence. It is anaiogous to the amendment provisions
of constitutions,charters,ordinances orstatufesprovisionswhichembrace
structural and le al qualities unique to themsclves. The Court's rea-
sonjng in the 19%2 Judgment in respect of the essentiality of judicial
protection,' appiies with at least equal weight to procedures goveming
and,limiting the Mandatory's powers of modification of the terms of the
organic instrument itself.
The Court in the 1962 Judgment took speciai note of this point in the
context of the essentiality of judicial protection in the mandate pIan.
The Court, referring to-the unanimity rule of the Council, pointed out
that judicial protection was essential because of the possibility, inlia,
that a conflict between Respondent and the Council could occur if the
former should persist in adopting some measure in its administration of
the Mandate notwithstanding the objection of the Council that it was a
violation of the Mandate.
The honourable Court went on to Say:
"This possibiiity is not a mere conjecture or hypothesis. As a
matter of fact, the Respondent had more than once intimated its
desire to incorporate South West Africa into the Union and the
Permanent Mandates Commission of the League each tirne objected ARGUMENT OF hlR. GROSS 223
may be taken of the fact that, as the Court pointed out in 1950,Respon-
dent itself took actions in 1946which made clear its understanding that
Respondent did not have competence unilaterally to modifp the Terri-
tory's international status.
Relerence already has been made to Respondent's declarations and
actions in 1946a,s well as to pertinent resolutionof the United Nations
General Assembly, adopted in the same year, which are cited in the
rg5o Advisory Opinion and on the basis of wkich the Court concluded
that Respondent has "recognized the competence of the General As-
sembly in the matter" and that, as the Court said, the General Assembly
has "affinned its competence" therein.
For al1 these reasons, Mr. President and Members of the honourable
Court, the Applicants respectfully submit that this honourable Court
should reaffirm and hold that Article 7, paragraph I, of the Mandate
remains in full force and effect, and that the consent of the United
on the part of Respondent, directly or indirectly, to modifp any of the
terms of the hfandate for South West Africa.
Mr. President, with your permission, 1 turn now to a consideration of
the confirmatory effect and significance perceived by the Applicants to
reside in Article80, paragraph I, of the Charter of the United Nations.
13y way of preface may 1,Sir, proffer my regret to the honourable
President and Members of the Court for the incompieteness of presenta-
tion of this question during the preliminary objections phase of these
cases. The incomplete nature of the argument of the issue then before
this honourable Court is, indeed, manifest from the degree of misappre-
hension apparent from opinions on the part of learned judges concem-
ing the intended purport of the Applicants' submission on this matter.
In the joint dissenting opinion of the honourable President and Judge
Sir Gerald Fitzmaurice appended to the Judgrnent of 21 December 1962,
the learned Judges, and, in Ourrespectfulsubmission, quite appropriately,
cornmented that :
"The sole purpose of the Article [that is to say, Article 80, para-
graph I, of the United Nations Charter] was to prevent any provision
of Chapter XII of the Charter being construed so as to alter exist.ng
rights prior to a certain event." (I.C.J. Refiorts1962p. 516.)
The Applicants, with respect, did not intend to intimate a view in-
consistent with that expressed in the passage just quoted, and any
uncertainty engendered by the Applicants' argument in the premises
merely serves to confirm the inadequacy of their Counsel'spresentation,
for which 1 have tendered an expression of regret.
The Applicants have, indeed, conceived the sense and intention of
the so-called "conservatory clause" (as iwas described by its proponents
in the San Francisco Charter Conference) to be just asdescribed in the
passage which 1havequoted from the learned judges in the joint dissent-
ing opinion.
\Vithout ventunng to interpret the rneaning intended to be attributed
to the Article in the Advisory Opinion of 1950 ,he Applicants respect-
fully submit that the inclusion of Article 80, paragraphr, in the Charter
serves to confirm the understanding of the authors of the Charter that
certain rights, including those under mandates, did continue to exist,
notwithstanding the dissolution of the League. The Article, in the224 SOUTH WEST AFRICA
Applicants' view, did not establish, constitute, or maintain these or any
other rights. It is, as the President and the learned Judge cogently
pointed out, an interpretative or saving clause of a type frequentIy
to be found in legislative or treaty instruments.
The siaificance of the Article in these proceedings, as conceived by
the Applicants, is that the Article serves to confirm, or to make clear by
way of confirmation, that the authors of the Charter did consider that
certain rights were in existence, by force of other legal instruments or
arrangements, which were not to be altered in any manner as a result of
any constmction, or misconstruction, of Article XII of the Charter.
If such rights were not thought to be in existence, Mr. President,
there would seem to have been little reason to insulate or shelter them
from the possibly destructive consequences of a misconstruction of
Article XII of the Charter.
There is'no room for doubt that the "international instruments",
referred to in the saving clause, were intended to include the mandates.
Such a construction of the first paragraph of Article 80 never has been
is confirmed fby athe explicit reference to mandated territories in then
second paragraph of the same Article which relates to the first paragraph
thereof.
The Applicants' understanding of the assumption reflected in, and
confirmed by, the saving clause, to wit, that rights embodied in mandate
regimes continued in existence until superseded by other agreed arrange-
ments, and 1 stress the mord "until", is likewise confirmed by statements
made by Members of the United Nations, including Respondent, dunng
the relevant period.
Thus, Respondent's delegate to the United Nations General AssembIy
in 1946,announced that-
"arrangements are now in train for, ., consultations to take place
and, untilthey have been concluded, the South African Governrnent
must reserve its position concerning the future of the mandate,
together with its right of full liberty of actionas provided for in
paragraph I of Article 80 of the Charterw.-(II, pp41-42.)
This, indeed, if I may interject, gives to Article80,paragraph I, an
implication of affirmative or positive content not contended for by the
Applicants.
Several days later, Respondent's Representative in the Fourth Corn-
mittee of the General Assembly amplified the foregoing statement as
Referring to the text of Article 77 of the Charter, the Uelegate of the
Respondent to the Fourth Committee said:
". ..under the Charter the transfer of the mandates régimeto the
trusteeship system was not obligatory. According to paragraph I 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 paragraphI. The position of the Union
of South Africa was in conformity with this legal interpretation."
(11,p.42.)
&Ir.President, the Applicants do not cite these passages in any respect
to comment upon the validity, or othenvise, of their content or implica-
tions; they are cited simply to show that the Respondent, along with ARGUMENT OF MR. CROSS 225
other Members of the Organization, attributed some content of a positive
nature to paragraph IofArticle80, and itdoes not matter for the present
purpose what that content was, in the .view of the Respondent, or
whether such content was right or Iwong.
Rights were assurned to exist at that tirne, which rights were, by the
tenns of Article 80,paragraph I,insulated and sheltered from the cor-
rosive or destructive effects of a miçconst~ction, or possible rniscon-
struction, of Chapter XII of the Charter of the United Nations.
Respondent was not alone in giving to Article 80, paragraph I, some
sort of positive connotation, exceeding that contended for by the Ap-
pbcqts, as 1 have said. The Applicants have conceived'the Article in
question to be a saving clause which indicates the assurnption of the
United Nations Members that certain rjgh'ts were in existence which
jiiçtified safeguarding by such a clause .against a misconstruction of
another portion of the Charter. .
On 11 Aprilrg46, for example, the Belgian representative stated in the
United Nations General Assembly that: ,
"We expressed Ourconfidence that the Trusteeship Councilwould
soon corne to occupy in the United Nations Organization the im-
portant place which it deserves. We can only repeat that hope here
a and give an assurance that, pending its realization, Belgium will
'. remain fully aiive to a11the obligations devolving on filembers of
the United, Nations under Article 80 of the Charter."
Again here is a positive content, or implication, exceeding that which
the Applicants respectfully attribute to the paragraph in question.
* And more than two years later, during the penod that Members of
the .United Nations were hopefully'prodding Respondent to confonn
to the spirit of Chapter XII of the Charter and to relent in its refusa1to
submit a trusteeship agreement for South IVest Africa, the Belgian
representative, hlr. Ryckmans, made a statement in the Fourth Com-
mittee of the United Nations General Assembly, admonishing Respon-
dent in the following terms:
"On the other hand, Be, that is in the summary record to which
1 refer-he, Blr. Ryckmans] felt bound to draw the attention of the
South African representative and the Committee to the terms of.
Article 80, which provided that nothing in Chapter XII of the
Charter should be 'construed in or of itself to alter in any manner
the rights whatsoever of any States or peoples' [etc.]. That ïncluded
[said the Belgian representative] the people of South West Africa,
who, having had the benefit of international supervision under the,
Mandate Systern, could not be deprived of that right."
This is fromthe General AssemblyOficiaERecords,Third Session, Part 1;
Fourth Committee, 79th Meeting.
Mr. Ryckmans' concluding comment, to the effect that the rights of.
peopIes, inter alia,referred to in Article 80, paragraph I,"included the
people of South West Afnca who,having had the benefit of internationd
supervision under the Mandate System, could not be deprived of that
right", clearly confirms, it seems to the Applicants, that the authorofthe
Charter assumed that mandate rights, both of States and of peoples,
continued, notwithstanding the dissolution of the League, and that the
authors of the Charter, in Article 80, paragraph I, sought to make clear
that Chapter XII was not to be construed in a manner which WOU^^226 SOUTH WEST AFRICA
alter,in any way whatsoever, such rights which continue to exist by
foTo like effect, Mr. President, the 1956Advisory Opinion commented
as followsconcerning the Court's viewof Article 80, paragraph I, as set
forth in the 1950 Opinion:
"In discussingthe effectof Article80 (1)of the Charter, preserving
the rights of States and peoples under existing international agree-
ments, the Court observed :'Thepurpose must have been to provide
a real protection for those rights; but no such rights of the peoples
could be effectively safeguarded without internation4 supe~sion
and a duty to render reports to a supervisory organ.' " (I.C.J.
Reports1956,pp. 27-28.)
The phrase from the 1950Opinion in relation to Article 80 (1)may, with
your permission, Sir, be read again. "The purpose must have been to
provide a real protection for those rights."
It may be repeated, Mr. President, with respect, that the Applicants
do not contend that any positive.legal consequence was brought about
by Article 80, paragraph r. The language of the Court just quoted from
the 1950 Ophion might, with respect, imply a different view. In the
Applicants' view, the Article simply confirmed the understanding of
the authors of the Charter that there were rights, including those under
mandate, that those rights continued despite the dissolution of the
League until other arrangements would be agreed with the United
Nations, and that, as a saving clause, it made clear that none of those
rights couldbe arnended, superseded, or erased by a possiblemisconstruc-
tion of Chapter XII of the Charter. Moreover, as 1 have said, the com-
mon assumption among United Nations Members, that rights under the
Mandate did survive and would survive the dissolution of the League,
is to be found also in the actions and declarations of the Respondent
itself (including the declarations and statements 1have just quoted), its
acceptance of the League resolution of 18Aprii 1946,and other relevant
transactions and events in which the Respondent participated in the
period in question.
In this context, Mr.President, it seems appropriate to note what may
be a significant similarity of language employed in three related instru-
ments, as an aid to interpretation of the events and transactions in
question .
Article 80, paragraph I, itself, Respondent's declaration of g April
1946,andthe League resolution of 18Aprilrg46. Taking them in reverse
order :
First: The League of Nations resolution of 18 April 1946provideç, in
its fourth paragraph, asI have read, that mandatories (including Re-
spondent) would continue to administer territories under mandate "in
unldrdother arrangements have been a+reed between the United Nations,
and the respective Mandatory Powers '.
Secondly: Respondent's 9 April 1946 declaration likewise, in sub-
stantiaüy the same languqe, undertook to carry on its obligations under
the Mandate "until such tme as other arrangements are agreed upon".
Thirdly: Article 80, paragraph 1, of the Charter provides that nothing
in Chapter XII shaIl be construed to alter in any manner the rights
whatsoever of anyStates or peoples, or the terms ofcertain existing inter- ARGUMENT OF MR. GROSS 227
nationalinstruments (includingmandates) "uniil[trusteeship] agreements
have been concluded''.
These three instruments-Article 80, paragraph I, Respondent 's
declaration of g Apnl 1946and the League resolution of 18April 1946,
aiishare at least one decisively relevant common feature: each affirmed
the proposition that the mandate regjme would continue, with al1 the
rightsand obligations, unfil superseded by agreed arrangements.
In like terms, for example, New Zealand agreed to maintain its
Mandate "undil the conclusion of our Trusteeship Agreement for Western
Samoa". This is from the League of Nations Oficial Journal, Special
Supplement No. 194,at page 43.
It seems clear to the Applicants, with respect, Mr. President, that the
uniform use of the word "until" reflected, or tends to confirrn, the
common understanding that a legal situation then existed, in which
mandate rights and obligations were in effect, and would rernain so,
until the United Nations otherwise agreed.
Any other construction, furthemore, would render meaningless the
admonition in para~aph 2 of Article 80, that paragraph I "shall not
be interpreted as giving grounds for delay or postponement" of con-
clusion of agreements for placing "mandated or other tcrritories" under
the trusteeship system.
For the foregoing reasons, the Applicants respectfuliy subrnit that
Article 80, paragraph 1,is reasonably to be construed as confirming the
assumption of the authors of the Charter that mandate rights did
continue, and would continue in effect, until superseded by other agreed
arrangements, even though the saving clause (Article 80, paragraph I)
did not, in any manner, in and of itself create, maintain, or othenvise
ensure the continuance of such rights, except against possible ravages
which might result by reason of misconstruction of Chapter XII of the
Charter.
Mr. President, the foregoing considerations relating to interpretation
of Article 80, paragraph I,make pertinent a related question which the
Parties to these proceedings did not discuss before this honourable
Court in the phase dealing with the Preliminary Objections. 1refer, Sir,
to the question of the role of Article 73 of the United Nations Charter.
As has been said, Article80,paragraph I, the "saving" clause, refers
only to Chapter XII, and provides that nothing in that 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".
Andparagraph 2 of Article80 provides, as 1 have read:
"Paragraph I of this Article shall not be interpreted as giving
grounds for delay orpostponement of the negotiation and conclusion
of agreements for placing mandated and other territories under the
trusteeship system as provided for in Article 77."
It isto be noted, Mr. President, that the second paragraph of Artic80,
just quoted, does not refer to former mandated territories, but that it
speaks in the present tense, "for placing mandated and other territones
under the trusteeship system as provided for in Article 77".
No issue as to the relevance, or otherwise, of Article 73 was raised by
the Parties in the 1962 proceedings, nor does Respondent contend, in228 SOUTH WEST AFRICA
its written pleadings (so far asthe Applicants havenoted) that Article 73
has any application to the Territory for South West Africa.
An important question of United Nations Charterinterpretation, how-
ever, is raised in the joint dissenting opinion appended to the 1962
Judgment by the honourable President of the Court and Judge Sir
Gerald Fitzmaurice. It is, accordingly, with profound respect and as a
perceived duty that 1 submit to this honourable Court observations
concerning certain characteristics of Article 73 of the Charter which, in
the Applicants' respectful view, show that, despite certain affinities
between that Article and Article22 of the Covenant of the League of
Nations, the undertakings embodied in Article 73 differ sa markedly
from the obligations under both the mandates and the trusteeship
systems, that Article 73 is neither capable of serving, nor, in the Appli-
replacement of, either the mandates system or the trusteeship syçtem., or
Obviously it need not be said that the joint dissenting opinion does not
imply to the contrary, with respect, to the trusteeship systern.
The caption of Chapter XI of the Charter, of which Article 73 is the
principal of two provisions, is styled "Declaration Regarding Non-Self-
Governing Territories",
Unlike Chapter XII, Article 73 embodies no reference to "territories
now held under mandate", which phrase appears in Article 77 of Chap-
ter XII of the Charter.
As a mere "declaration", rather than an "agreement ", Article 73 ha
no relevance to, or correspondence with, so far as the Applicants can see,
the formulations in the 18April 1946resolution of the League, Respon-
dent's declaration of g April 1946, or Article 80, paragraph I,of the
Charter itself, all of which contemplated continuance of rightç and
obligations under the mandate regimes, until other agreementshad been
concluded. And here 1 stress the word "agreements".
The information which United Nations Members responsible for the
administration of non-self-governing territories undertake to transmit
to the Secretary-General, pursuant to Article 73, paragraph (e), of the
Charter, is limited-and I quote from the Article-"to statistical and
other information of a technical nature", and even this, Mr. President,
is subject to undefined "çecurity and constitutional considerations".
The sacred tmst of the Mandate, pursuant to which the material and
moralwell-being and social progress of the inhabitants of the Territory
is required to be promoted to the utmost, would be accounted for, if
at au, pursuant to Article 73 of the Charter, merely by transmittal of
statistical and other information of a.technica1 nature, subject to uni-
laterally determined constitutional considerations.
Even more, Article 73does not in terms precliide, directly or indirectly,
unilateral modification by the administering power of the constitutional
or political status of a non-self-governing territory. Accordingly, if
Respondent were subject only to the requirements of Article 73 of the
Charter (the "Declaration", as it is called), there would be no legal
inhibition against unilateral action on itspart, including incorporation
or annexation of the Territory.
It follows that the Respondent, uninhibited by international legal
obligations, could alter the character of the Territory so as toremove it
annexing it, or in any other manner devdepriving it of its character as ia, ARGühIENT'OF MR. CROSS '229
non-self-goveming territory. It could. do so, as -1;Say, by unilateral
action.
It would follow then, in the Applicants' respectful submission, thât
Article 73, in the light of Respondent's, express desire to annex the
Tefritory proclaimed byit in 1945 and thereafter, could not, under the
cifcumstance~, have reasonably been intended +bythe founders of the
.United'Nations .to supersede the mandates systern, since it would have
.given to Respondent a unilateral right to accomplish what it was openly
expressing its desire to see accomplished, that isto Say,the incorporation
of the Territory into the Union itself. And.therefore, in conclusion on
.the point of Article 73, Mr. President, in the Applicants' respectful
submission, the founding hlembers of the United Nations, the pre-
ponderant majonty. of whom also were Mernbers of the League of
Nations, would not have substituted for the regime of the Mandate a
declaration pursuant to whch Respondent would be free to 'carry out
its openly proclaimed arid avowed intention anddesire unilaterally 'to
alter the constitutional status of the Territorx, without.i..ernati..a.
sufirvision, accountability or consent.
' .It is for these reasons and on .the basiÇ of these considerations, which
jvere not presented to this honour~le Court in the 1962proceedings,
.that the Applicants have ventured to:present, most,respectfully, to the
Court these viewswhichwefeelmay have a bearing upon the construction
-'Bÿ way of conclusion of this Part- C of the Applicants' presentation,
1 should like with your permission, hfr. President, and .for convenience
of the honourable judges, to offer a concise summation. of the legal
onc cl usio nshich-appear to the Applicants to followfrom the consider-
ations cdduced with respect to the survival of judicial and administrative
supervision over the Mandate, as well as the survival of 'Article 7,
paragraph I, giving to the United Nations the right and duty to pass
upon requests for alteration or modification of the terms of the mandate
instrument itself;
..
.-I. The nature and purposes'of'the mandates system;~together with
the .history thereof, make it clear that ,the obligation of.international
àdminigtrative supervision, the normal security of the sacred trust, was
of the essence of the Mandate and that such~supervision accordingly
must survive so long as the Mandate itself endures.
'-.2. .NoMandatory, including Respondent, could justify retaining rights
derived from the Mandate and denying obligations thereunder. As this
horiourable Court held in 1950, in a proposition from whicb there was
no dissent, "The authority which the Union Government exercises over
the Territory is based on the Mandate". That'is from the ,195 0pinion,
at page 133. . .
3. So long as Respondent retains rights over the Temtory it is,.by
that very. fact, manifesting consent to international supervision. Dis-
claimers of any such consent are irreconcilable with the fa. of its
retention of rights. Such disclaimers would vaijy atternpt to exclude
the very essence of the Mandate, asthis honourable Court has said in
its 1962Judgrnent.
4. Lapse of.supervision would freeze the .Mandate in perpetuity in
its present form or else, equally infolerably, would.give to Respondent
the right to annex the Territory, inasmuch as there would be no super-230 SOUTH WEST AFRICA
visory organ in existence with capacity or authority to consent to or
Article 7,paragraphn I, thereof.s of the Mandate, in accordance with
5. This honourable Court has upheld the continuing right of recourse
for judicial protection against asserted abuses or breaches of the Man-
date. Respondent's contention concerning lapse of administrative super-
vision would leave, to the Applicant States andto ather States similarly
situated, as the sole and only recourse for relief for asserted breaches or
abuse of the Mandate, recourse to this honourable Court without possi-
bility of recourse to the normal securit through administrative super-
vision. Such a state of affairs would eave the Applicants and other
States similarly situated in the position of presenting to the Court, as
should have been the subject of enquiry and scrutiny andaction on the
part ofan administrativetribunal, as the mandates schemecontemplated.
It is not; in the Applicants' respectful view. pertinent or appropriate
that this honourable Court should or need be converted into the first
recourse rather than "the fînal bulwark of protection", in the solemn
language ofthe Court's Judgment in 1962(I.C.J. Re$oris 1962, p. 336).
6. The events, transactions and undertakings during the period of
the dissolution ofthe League of Nations and the commencement of the
United Nations were consistent with the objective elements of the situa-
tion arising from the demise of the League. The Mandate regimes were
another sort. It was hoped and expected that trusteeship agreements
would be the rule, and that the interirn period or transitional period
would be a short one.
Respondent manifested its understanding and undertaking consistently
with the basic nature ofthe obligation of international supervision and
its essentiality in the mandates system.
Respondent reaffirmsits-understanding and acceptance of such essen-
tiality, but only in the context of its second aiternative contention,
where it isadduced for the purpose of supporting an untenable conclusion
that the Mandate as a whole has lapsed and that the 1962 Judgment
should in effectbe reverscd.
7. The United Nations repIaced the League as the organization em-
bodying the organized international cornmunity. The obligation of the
sacred trust was, in the words of this honourable Court, "laid upon the
League as an organized international community", rather than merely
as a specificsupervisory organ with afixed rnembership.
8. The United Nations is legally and practically qualified to exercise
modificationfofcthe terms of the Mandate.ts consent is necessary to
g. By exercising its right to refuse to submit a trusteeship agreement
for South West Africa, Respondent has converted what was expected
and intended to be a transitional period into one of long duration.
Respondent has sought, and continues to seek, to avoid the consequences
of the fact that no agreement has been reached between Respondent and
the United Nations upon other arrangements. And Respondent persists
Mandate has lapsed because the League has ceased to exist.1950, that the ARGUMENT OF MR. GROSS 23T
Respondent thereby maintains and renews a position which the Court,
without dissent, characterized in the 1950 Advisory Opinion asone
"based on a misconception of the legai situation created by Article 22
of the Covenant and by the Mandate itself". 1 quote from the rg50
Opinion at page 132.
For all the foregoing reasons the Applicants respectfully submit that
the Mandate asa wholeisstill in force,that the obligation ofinternational
supervision survived the dissolution of the League, that the United
Nations General Assembly has replaced the League as the supervisory
the General Assembly, in terms ofArticle 6 and of Article 7,paragraphf1,
of the Mandate, and Article22 of the Covenant of the League of Nations,
and that Respondent remains under a duty to submit to judicial pro-
tection of the Mandate by the Court in terms of the second paragraph
of Article 7 of the Mandate.
Accordingly, Mr. President, and Members of the honourable Court,
the Applicants respectfully request this honourable Court to adjudge
and declare on the basis and in favour of the Applicants' Submissions
Noç. I,2, 5,7, 8 and g,al1of which are set out in the Mernorialsat 1,
pages 197-198.
Mr. President, this concludes our presentation of Part C, of this
phase of the Oral Proceedings dealing essentially with legal issues,and
with the President's permission, 1 turn now to Part D, the concluding
portion of our presentation at this phase, Part D deals with the legai
basiç and the legal nature of Respondent's obligations toward the
inhabitants of the Territory.
PART D
Mr. President, in the 1962 Judgment this honourable Court affirmed
its cornpetence to adjudicate the matter of the dispute between the
Applicants and Respondent regarding the interpretation and application
of the provisions of the Mandate, and the Court, moreover, in the 1962
Judgment, held that the Applicants-
"... have a legal right or interest in the observance by the Manda-
tory of its obligations both toward the inhabitants of the Mandated
Territory, and toward the League of Nations and its Mernbers".
(I.C.J. RePorts1962, p. 343.)
The Applicants' right and interest in the observance byRespondentof
its obligations under the Mandate thus being of a legal character, it
follows that such legal right and interest is judicially determinable. The
issues remaining for adjudication of the merits of the dispute accordingly
involve juridical interpretation of the terms and nature of Respondent's
obligations under an international instrument to which it is a Party.
The elements of a legal dispute, which the 1962 Judgment of this
honourable Court held did exist between the Applicants andRespondent.
were cogently çummarized by Judge Sir Gerald Fitzmaurice in his
separate opinion appended to the Judgment of the Court in the Northern
Cnnaeroo~~ csse. The learned Judge set the matter forth as foiiows-
"... there exists, properly speaking, a legal dispute (such as a court
of law can take account of, and which will engage its judicial func-
tion), only if its outcome or result, in the forof a decisionoj th5232 SOUTH WEST AFRICA
Cwrt, is capable of affecting the legal interests or-relations of the
:parties, in the sense of confemng or imposing upon (or confirming
for) one or other of them, a legal right or obligation, or of operating
as an injunction 0r.a prohibition for the future, or asa ruling
material to a still subsisting legal situation",
That -is from the learned' Judge's opinion in the I.C.J. Reports'1963,
at page 110. . ..
Mr. President, itis submitted respectfully that the disputein the cases
at bar meets the-criteria set forth in the passage .I have just quoted
from Judge Sir Gerald Fitzmaurice!~ opinion.
Notwithstandifig the holding of this honourable Court 'in tlie 19%
Judgrnent which 1have quoted at the opening ofthis section,Respondent
contends that its obligations under Article z,paragapli z, ofthe Mandate
are not justiciabIe or, alternatively,' that if they 'are 'justiciable, the
scope and mesure of such obligations is .-mifed to a test ofRespondent's
good or bad faith in the premises.
As originally set forth in the Counter-Jiernorial, II, pages 384to 398,
and as more fully developed in the, Rejoinder, V,pages 142to 174;'
Respondent's alternative major 'contention in this'regard'may . . fairly,
we think, be summarized as follows.
The first a1ternatii.e contention, set out at piges 159 and following,
of the Rejoinder (V), is that, iri the light of the aççerted nature of the
obligations of Article 2; paragraph 2,of the Mandate-
".... aIthough' the obugations under 'the 'article were of a legal
nature, the Court waç not intended to possess jurisdiction in vgqd
to alleged breaches thereof". (V, p. 146.)
Respondent's second alternative contention, which falis for consider-
ation only if the first is rejected, is thatunreviewable discretionq
powers over the Territory iue invested'in Respondent by Article 2,
paragraph 2, of the Afandate;subject only to the question whether such
powers are exercised by Respondent in good or bad faith. 1 sumrnarize,
without .quoting,.from the Rejoinder, V, page 157 and following. l
Respondent's second alternative contention, to which I have just.
referred, is formulated in what Respondent describes as several "simple
propositions", which are summarized in the Rejoinder under fivehëadings
at V,pages 157 to 158.
' These propositions may be concisely re-formulated andslightly amen-
ded. as follows:
(a) The grant to Respondent of "full power of legislation and adrninis-
tration" in Article 2, paragraph 1, of the Mandate, necessarily
. entails, in Respondent's submission, that Respondent is"required
and entitIed to use its discretion as to tlie need for and the manner.
of the exercise of its powers".
(b) It is of the essence of a discretionary power that an act purported
to be an exercise thereof, is not illegal unless it is contrary to some
legal provision regulating such exercise, or exceeds the limits
expressly o'rby implication placed upon the power. NOregulatorqi
provisions having been imposed, in Respondent's submission, the,
only remaining question is the nature of the limitation imposed
by Article 2, paragraph 2. ..
(cl The~only limitation placed by the Article in question on Respon-
dent's discretionary power is asserted to be that such power should ARGUMENT OF MR. 'GROSS ?33
'
be exercised for the purpose of promoting the well-being and
- progress of the inhabitants. .
!(dl Consequently, Respondent assertç,the Court can determine whether
e. anact or policy violates the Article in question only by examination
of the question whether the exercise of discretion was directed
. .at the purpose of promoting the well-being.and progress of the
inhabitants. Such an examination, Respondent contends, wouid be
limited to "enquiry as to the good or bad faith of the Mandatory".
.(.) The foregoing conclusioriis confirmed, in Respondent's submission,
by the consideration that, "whenever there is scope for honest
difference of opinion-"as to the effect of Respondent's policy and
" practices, "there are no legal noms-as distinct from political or
socialviews or theories-which a Court can apply for givirigprefer-
enceto any of the conflictingopinionsto the exclusionofthe others".
$- These five "simple ~ropositions'; are çummarized and set forth in the
;Rejoinder (V) from pages 157 to 158. 1 believe they have been fairly
stated in context but, in any event,they wili speak for themselves.
On the basis of the premise that there areno such legal noms appli-
cable by the Court, .Respondent finds confirmation of its view that
asserted breach of the Article in question can be determined only on the
mbasisof a determination that such policy or practices were not intended
to promote the well-being and progqess of the inhabitants. This is the
second alternative contention. .
..It will be apparent that a common denominator underlying both
so-cdled alternative contentions is the asserted absence of legal noms
or standards, according to which the Court could adjudicate upon the
legal interest of the Applicants which underlie their. dispute with Re-
spondent,, which dispute this honourable Court has expressly held in
the 1g6z'Judgment to be a dspute of a legal nature cognizable by the
CouMr.President, before proceeding to a detailed analysis ofRespondent's
two so-calledalternative contentions, t~o points properly may be noted,
concerningwhich the AppLicantsand Respondent appear to be in agree-
ment.
First. It appears to be undisputed that al1mandates, inclu.dingthat
one now before the Court, were conceived and executed as legally
binding instmments, as a whole and in each of their parts. I derive
this from the Rejoinder, V, page 144. Accordingly it appears to be
common cause that Res ondent's obligations .in terms of Article' 2,
paragraph 2, are of a legY character.
Secondly. It appears to be undisputed that it does not exceed the
power or proper function of a judicial tribunal to consider relevant
economic, political, ethnological, social or other factors, however com-
plex-
"... whenever the judicial duty is engaged to adjudkate upon le@
rights and interests of litigants with standing to invoke the compe-
tence of the Court".
. In respect of this second apparently undisputed proposition, it should
be noted, however. that Respondent has not made crystal clear-to the
Applicants at any rate-the exact nature of its position in this regard.
Thus,on the bais of what Respondent describes as '.'certainapparent
misapprehensions or misrepresentations on Applicants' part", Respon-234 SOUTH WEST AFRICA
dent takes occasionto ernphasizewhat it describes as"the true nature ot
its contention in this regard". The Applicants do not think it necessary
to comment upon the charactenzation of the Applicants' endeavour to
summarize their understanding of Respondent's argument. It sufficesto
note that by way of emphasizing the "true nature of its contentionw-
Memorial which were responsible in the first place for the Applicants'
confusion, if, indeed, it was confusion.
The relevant passages, quoted from the Counter-hlemorial in the
Rejoinder, V, at page 143, contain the following proposition, which 1
shall take the liberty of reading to the Court-
"... attention has been drawn [says Respondent] to the wide and
general provisionsof Article 2.In this respect it has been submitted
that it is foreign to the essential nature and purpose of a court of
law to entertain matters of a purely political or technical nature,
such as might well arise if the Court were required toadjudicate on
mote to the utmost the material and moral well-beingand the socialo-
progress of the inhabitants of the Territory.. .'"
This is quoted in their Reioinder, from the Counter-Memorial, II,
page 384.-
In another passage cited at V, pages 143 to 144 of the Rejoinder as
showingthe allegedly true nature of its contention, the same proposition
is restated in the foilowing form. This time Respondent was quoting
Book II of the Counter-Mernorial,at II,page 184.
"Respondent is mindful of the fact that legal questions are often
encompassed or intertwined with political issues, and that the
jurisdiction of the Court, if othenvise established, would not for
that reaçon be ousted. It is, however, foreign to the essential nature
and purpose of the Court to entertain matters of a purely political
character ..."
Mr. Preçident, careful reappraiçal by the Applicants of the foregoing
quoted passages does not, it must be confessed regretfully, yet bring
home to the Applicants the "tme nature" of Respondent's contention.
What gave the Applicants pause still remains a source of doubt, to
wit ,the significance properly attributable to Respondent 's use of the
word "purely" in both ofthe passagesquoted fromthe Counter-Mernorial,
which were designed to make its position crystal clear. Respondent's
statement, that it is foreign to the essential nature and purpose of a
Court to entertain matters of a perreiypoliticaf character, begs a major
question at issue between the Parties.
If Respondent's obligations in terms of Article 2, priragraph 2, afe
obligations of a legal nature, as Respondent appears to concede in
another context, and if, as this honourable Court has held, the Appli-
cants "have a legal right or interest in the observanceby the Mandatory
of its obligations" toward the inhabitants of the Territory, it must follow
that the obligations in question are 720of a "p%relypolitical character".
The Applicants, of course, would agree that it is foreign to the nature
and purpose of the judicial process to pass upon matters of a "purely
political nature". If the Applicants conceived that the dispute relating
to the interpretation of Article z, paragraph z, were of such a nature, ARGUMENT OF MR. CROSS 235
the Applications fded with this honourable Court would have included
no submissions in relation to that Article.
The Applicants, accordingly, have sought to penetrate the language
in which the passages quoted from the Respondent's Counter-Memorial
was couched, in order to ascertain some significance germane to the
issues in dispute.
In the course of such a quest, the Applicants noted, or thought they
did, that Respondent perhaps was in fact endeavouring to establish
the proposition that, in the light of the broad formulation of the sacred
trust, and the many elements which necessarily must underlie the duty
to prornote the welfare and progreçç of the inhabitants, that the Court
as a judicial, rather than a political organ, could not and should not, as
the Respondent says in another context, "venture on to [the] terrains",
in Respondent's phrase, of "social, ethnologicaI, economic and political
considerations". 1quote from the Counter-Mernorial, II, at page 391.
From closeranalysis of Respondent's contention, however, it appeared
to the Applicants that Respondent's submission that this honourable
Court should not venture on to such "terrains", was based on at least
two antecedent propositions:
I. that the scopeand content ofRespondent's obligations under Article 2,
paragraph 2,were Limitedto a showing "that a particular exercise of
Respondent's legislative oradministrative powers wasnot directed in
good faith toward such a purpose", i.e., the purpose of promoting to
the utmost the weii-being and progress of the inhabitants; and
2. the proposition apparently antecedent to that, again, in Respondent 's
words :
"If the Court were to decide whether in fact a particular policy
promoted the 'weli-being' of the inhabitants 'to the utmost', it
would have to consider that policy and weigh it against other
policies which might be foliowed in an attempt to achieve such a
purpose."
I have quoted from the Counter-Mernorial, ïï,at page 391.
Having set such a taçk for the Court, to consider one policy and weigh
it against any other conceivable policy which might be foliowed in an
attempt to accomplish the same purpose, a task which the Applicants
concede is indeed a formidable one-the Respondent reaches the conclu-
a judicial one". With that the Applicants would readily agree; in fact,ot
it would not be a suitable function even for an administrative organ or
anyother type of agency to be in a position in which it wouId have to
evaluate one line of action or poficy against "other policies which might
be followed in an attempt to achieve such a purpose".There is nothing
uniquely impossible of a judicial nature in such a task; it is just an
impossible task, generaily, for any organ of any kind.
The Applicants, in their quest to findthe "tme nature" ofRespondent's
contention, reached certain conclusionsthereon, which may be described
as tentative, though not, it is thought, fairly to be characterized as
"misapprehensions", to Say nothing of "misrepresentations".
The Applicants' conclusionscentre upon the consideration that the
needle of Respondent's logic oscillates from premise to conclusion and
then reverses its direction, travelling.from conclusion back .to-premiçe.
Respondent's line of argument seems to run as follows.Respondent's?36 .SOUTH WEST AFRICA
leGa1obligation, in terms of Article2,paragraph z, consists ofa discretion
unreviewable except on the basis .of Respondent's good or bad faith .in
exercising suchdiscretion. No legal noms or criteria exist by wliich the
discharge of such a good faith obligation can be judically appraised.
Wence, the obligation is a :'purely political". one, which is foreign to the
essential nature and purpose of a Court. AccordingIy, the obligation is
not justiciable. Alternatively, if it is justiciable; the only basis upon
which a Court can adjudicate a dispute conceming asserted breaches
of the obligation is a test.of.bona or mala fides, that is, the subjective
motivation, or mens yen, of a shifting group of individuals who-may
from time to time compose Respondent's government. : . , ..
The needlexofRespondent's logic points in opposite directions at. the
sama-time. . . ..,
The Court's judicial function to adjudicate diSputes of.a legal.,nature
concerning the appljcation or interpretation of Article 2, paragraph,~;
inter alia,of the Mandate, it isrespectfully subrnitted, canriot properly
be negated .by.stripping the obligation of ail qualities which give itwa
legal character: This is precisely the consequence of Respondent's first
alternative contention,namely that disputes concerningasserted breaches
of that Article are not justiciae, or.at the most,-that they are "legal
rights" which arenot enforceable and for wbch there is no re.meedy.
Respondent's second alterneive contention, in essence,,is a diffeient
wayof stating the first one,-= weunderstand it;,this is true, at any rate,
on the basis of major premises which appear to underlie both of.them.
Under the "good faith test:' alternative contention, there are said to be
no legal criteria by which the Court can exercise a judicial function. If
that is not the same as saybg that the rights are not justiciable, the
distinction eludesrthe Applicarifs..'.
The Applicants find.justification for this açsertion, that the major
premises underl ing both- of Respondent's alternative contentions are
common, by -re rerence back 't&the biisis upon which Respondent em-
phasizes the so-calied "true nature" of its contention in regard to the
proposition that. the obligations of Article 2, paragaph 2, were not
intended to-bejusticiable. The basis of that contention, it willbe recalled,
was that a court of law could not "entertain matters of a purely political
and technical nature". (Rejoinder, V, p. 143.)
In elaborating its secondalternative contention, the "good faith test",
Respondent likewise argues that a Court cannot 'adjudicate upon .Re-
spondent's obligations under Article z, paragraph z, of the Mandate,
inasmuch asthe only test is one of "good faith" in. the discharge of
those obligations and no legal criteria or'norrns exist by which such
"good faith" can be judicalIyappraised, Or, in Respondent's own.words:
"No legal criteria can be.used in such adjudication." (II,. 3p91.) If no
legal criteriacan be used in such adjudicationit would seemsynonymous
with saying that the dispute is not justiciable. . .
The distinction between the for'mulationsunderlying the contentions
appear tothe Applicants to be purely verbal; any difference is so un-
tobspin a thread from each of these so-called alternative contentions,'
and the .Applicants,with the President's permission,will nowendeavour
to foUoweach thread to a conc~usion. -4RGUMENT OF MR. CROSS
#. . [Public hearing of 24 iMarch 196jj' .
Mr. President and Members of the honourable court, at the conclusion
of Our last session 1 had stated that the distinction between the formu-
lations underlying both of the Respondent's alternative contentions
appeared to be purely verbal, that any'difference would be so unsub-
stantialas to be meaningless. 1 was referring, .as the honourable Court
may recall, to the first alternative contention of Respondent that the
obiigations under ArticIe 2, paragraph z, of the Mandate are not justi-
ciable and its second alternative contention, to wit, that if such obli-
gations are justiciable, they nevertheless are limited to, and measurable
by, a so-called test of "good faith" of mala or bona fides on the part of
the Respondent, in administering the Territory in terms of Article 2,
paragraph z.
1 had çaid, Mr. ~resident, that in view 'ofthe fact that Respondent
does spin a thread from each of these so-called alternative contentions,
the Applicants now will endeavour to foIloweach thread to a conclusion.
With the permission of the President, 1 turn to a consideration of
Respondent's first alternative contention. That contention is not ground-
ed upon evidence with respect to the history of the events and trans-
actions attending the formation of thé mandates system, ,in respect of
jurisdiction of the' Permanent Court to adjudicate disputes regarding
interpretation or application of Article'z, paragraph z,of the Mandate.
Respondent's first alternative contention, rather, is that, given the
generdity of formulation and the "political or technical nature'of the
obligations envisaged" (1,quote their language), it could not have been
the intent of the authors of the hlandate to'.confer upon the Court the
power of judicial review of disputes involving the interpretation or ap
plication of the Article in question. I have quoted the phrase "political
or technical nature of the obligations envisaged" from the Counter-
Mernorial, I1,'page 384 (repeated in the Rejoinder, V, p. 143) . he es-
sence of what 1 have said is in the cited passages of the written pieadings
of Respondent.
The reasoning'adduced by Respondent in support.of its interpretation
ofthe intentions of the.founders of the mandates system, in respect of the
justiciability of obligations under Article z, is not, in the Applicants'
view, persuasive.
.In the first place, Respondent has devoted considerable space to an
analysis of certain comments by the late Judge Sir Hersch Lauterpacht,
with respect to international judicial review. Respondent, however, has
quoted from this learned authority without regard'to the proper context
of his comments.
Judge Lauterpacht's corqmentary' 'prjncipally was concerned with
difficulties inherent in international judicial review of the interna1
policies of States, rather than such revieiv of govemmental policies
carned out under international agreements. Although Respondent, on
the one hand, concedes that "in more recent times the concept of inter-
national judicial review. of intemal policy is not generaliy regarded as
being quite as startling as formerly" (V,p. 156)R ,espondent concludes,
on the other hand, that, in the circumstances existing at the time of the
founding of the mandates system, it was. "unthinkable" that the Per-
manent Court could have been authorized to review.issues such as those
arising from alleged breaches of Article z, paragraph z, of the Mandate.238 SOUTH WEST AFRICA
Inasmuch as the issues in dispute in the present proceedings do not
relate to international judicial review of intemal State policies, but to in-
ternational judicial review of actions taken pursuant to international
undertakings, Respondent's discussion of international judicial review in
this context appears tobe largely irrelevant.The international status ofthe
Territory for South West Africa, aswellas the international nature of the
rules regulating the Mandate (an international institutionhave been up-
held by this honourable Court, as we have sought to bring out in Part
C Contrary to Respondent's analysis, scholarly authority hasfound
little difficulty with the proposition that thenthors of the mandates
system contemplated that the Court would exercise powers of judicial
enforcement with respect to disputes relati~ig to the interpretation or
the application ofany or aüprovisions of the Mandate, including Article
2, paragraph 2, thereof.
Thus, Professor Quincy Wright, celebrated authority on the mandates
system, cornments as follows:
"Courts act (1)by nullifying illegal actsof the administration
through power of review or injunction,(2)by requiting performance
of legal duties through mandamus or other process, (3)by holding
the administration financially responsible for illegal acts, (4) by
holding officialscriminaily or financially reçponsible for illegal acts,
(5) by perfoming administrative functions themselveç. In al1 but
the last of these methods, courts have no initiative. They can act
only incidentally to the settlernent of controversies initiated by
League clearlyyhasvno functions of the fourth or fifth class in relation
to mandates. .. It would seem that the Permanent Court of Inter-
national Justice might employ any of the first three methods in
litigation before it ansing out of the interpretation or application
of amandate." (MandatesUnderthe LeagzleofIVutio (n1930p ).194.)
Professor Wright indicates no doubt concerning the Court's power
of adjudication of disputes relating to asserted breaches of Article 2,
paragraph 2,of the Mandate. Indeed, in the same work, the learned
author expresses the view that-
"League members have rights in the mandated territories not
only for the protection of their national interests, and the interests
of their nationalç. but also for the protection of the interests of
the inhabitants ofthe area.
Every member of the League can regard his rights asinfringed by
every violation by the mandatory of its duties under the mandate.
even those prirnarily for the benefit'of the natives, and can make
representations which if not effective will precipitate a dispute
referable to the Permanent Court of International Justice ifegotia-
tion fails to settle i(Ibid p. ,75.)
Furthermore, Mr. President, in the light of the fact that al1mandate
charters have been treated by the League, by judicial tribunals, and by
scholarly authority as organic law for the mandated territories, there
isno reason to doubt that the founders ofthe mandates system did indeed
intend the Court to adjudicate disputes relating to the inte retation
and application of obligations embodied in the several man ates, in- ARGUMENT OF MR. GROSS 239
cluding Article 2, paragraph 2, of the Mandate for South West Africa,
Thus, again quoting from Professor Wright's work:
"The mandate texts or charters have been regarded by the
League and the mandatories as the fundamental law for the areas.
Legislation contrary to their tenns has been criticized by the
League Council and usually considered void by the mandatory's
own courts. They are, it is true, documents of international law,
resting on international agreement and interpretable by the Per-
manent Court of International Justice, but they are also the funda-
mental constitution from which internal governing authority in the
areas derives. In each of the areas thereis alsalocalconstitution ,..
These documents. . .are considered subordinate to the mandate
texts, by the League organs and also in most cases by the manda-
tories' courts. They usually recite that document as the basis of
authority, are interpreted in accord with it, and are void in viola-
tion of it." (Ibid., pp. 516-517.)
Although neither the Permanent Court nor this honourable Court
has had occasion to exercise such powers, disputes concerning the inter-
pretation and application of mandate instruments frequently have been
adjudicated in municipal tribunals.
The Applicantshave cited, in this regard, the case of District Governor,
J~usalGm/affu District v. Murva (1925-1926, Annual Dihb 46, No. 34),
in which an Ordinance of the Govemment of Palestine was examined
in order to consider whether it was in any way repugnant to the terms
of the Palestine Mandate. Murra's case invoived the question whether
the Ordinance was consistent with Article 2 of the Palestine Mandate,
pursuant to which the mandatory power was responsible for "safeguard-
ing the civil. ..rights of al1the inhabitants of Palestine irrespective of
race and religion".
Respondent seeks to distinguish this case on the ground that the
provisions Uivolvedtherein are "not analogous" (in Respondent's words)
to Article 2, paragraph z,of the hlandate for South West Africa. The
Applicants submit, however, that these provisions are indeed analogous,
in relevant respects, to Article2, paragraph 2, of the Mandate. Like the
latter Article, the provision of the Palestine Mandate in question was
humanitarian and protective in purpose, general in formulation, and
involved day-to-day administration of the mandated territory, and
accordingly a wide degree of discretion on the part of the rnandatory.
Similar considerations apply with regard to Altshuler'scase,cited by the
Applicants in our Reply, IV, at pages 480-481.
The case of Wiater v. The Minisfer of Defence, a case coming from the
South African Appellate Division of the Supreme Court, is likewise rele-
vant to the issue in question here. The Winter case dealt with an issue
arising under Article 2, paragraph z, of the hlandate for South West
Afnca. (iV, p.481.)
Although Respondent seeks to distinguish Winter's case on the basis
that the Court in that case referred to the reasons for the issuance of the
Proclamation without conducting an enquiry into questions of the
soundness or justifiability thereof, the Supreme Court of South Africa,
Appeliate Division, said :
"The Proclamation in question. ..recites asone of the reasons
for ifs issue that, under the circumstances therein set out, the240 SOUTH WEST AFRICA
. ordinary law of the land is inadequate to enable the Government
to idfil its duty in safeguarding the welfare of the inhabitantsand
in ensuring the security of the State. That being so, it cannot in my
opinion be said it is in conflict with the duty to promote the well-
being of the inhabitants of the territoj," (1938-19A 4n0n. Dig.
198. 1939.1
The Court in that case, therefore, did not refrain from adjudicating
the issue whether legisktion was in conflict with the obligations of
Article 2,paragraph z,of the Mandate. The Court expressed or indicated
no doubt concerning the justiciability of Article 2, paragraph 2. The
Court did not intimate a view that it was in any way, in Respondent's
laquage, "foreign to the essential nature and purpose of a court to
entertain matters arising under that Article".
The concept of judicial reviewof international obligations \vas farniliar
to the founders of the mandates system. One illustration arnong many
is to be found in the area of State responsibility for denial of justice.
This Iegal doctrine often had been applied to policiesand practices of
executive and legislative authorities, aswell as to decisions of judicial
tribunals.
Inasmuch as the doctrine of denial of justice applies to treatment of
aliens, international statal responsibilities often are involved in the
'applicationofthe doctrine. International judicial review of governmental
policies and actions with respect to aliens involve considerations 'oflaw
and of justiciability analogous in important respects to governmental
policies and practices affecting inhabitants of mandated territories.
There is, accordingly, no substantial basis for Respondent's assertion
that it was "unthinkable" that the authors of the mandates system
should bestow upon the International Court power of judicial review
over governmental policy in terms of obligations such as those embodied
in Article2, paragraph 2, of the Mandate.
Applicants also have set out, in the Reply, examples of the exercise of
the powerofjudicial reviewovergovernmental acts and policiestaken with
regard to broadly forrnulated international obligations, including those
encompassing political, economic, ethnoIogicaI or social considerations
if and when such considerations are relevant to a legal disputeconcerning
the interpretation or application of international undertakings. It is,
of course, in this connection and for this purpose that the Applicants
also cite decisions of high-domestic tribunals, including, inter dia, the
decision of the United States Supreme Court in the case of Brown v.
Board of Education, which has been discussed in this same context in
Part A of the Applicantç'.presentation in this phase of the OralProceed-
ings.
As has been noted, the Applicants conceive the Brown case to be
relevant to the proposition that courts do not hesitate to "venture ont0
[the) terrains" of "social, ethnological, economic or political" matters,
in Respondent'ç words (II,p. 3911w ,hen such considerations are relevant
to legalissuesin dispute. That case shows,moreover, that courts venture
upon such "terrains" when necessary to interpret broadly formulated
constitutional-type obligations, and that in'doingso they apply current,
parties at the time that the relevant obligations were conferred ande
accepted. These points arebrought out, Sir, in OurRepiy at IV, page 515.
In this context the Respondent coniments as follo~vs:. ARGUMENT OF'MR. GROSS 24 1
"Applicants in the Reply also refer to the testing power exercised
by the Supreme Court of the United States of America in deter-
mining the legality or otherwise of measures alleged to contravene
the provisions of the Constitution. There is, however, no reason to
think that the authors of the Mandate System intended to bestow
a simiIar power on the Permanent Court." (V,p. 150.)
Mr. President, needless to Say,the Applicants had no such point in mind
bv their citation of the Browncase as well as of other cases of domestic
tcibunals.
In the area of international jurisprudence the Applicants also cite in
their Reply several examples, including .the minorities treaties.
Respondent seeks to distinguish between the judicial interpretation
of such treaties, and of the relevant provisions of the Mandate, on the
ground that no general grant was made'in the minorities treaties purçu-
ant to which al1 Members of the League of Nations could invoke the
Court's jurisdiction. Respondent seeks also to differentiate the two sys-
tems on the ground that the minorities treaties were imposed on con-
'¶uered nations whereas, in Respondent's language, the mandates were
concludes that it was unlikely that the great powers would voluntarily
have granted legal interests and cornpetence to invoke jurisdiction to
'a wider number of States in respect of mandates than in respect of
minorities treaties. This is brought out in Respondent's Counter-Memo-
rial, II, page 187.
Mr. President, an answer to such a contention was &en asIong ago
as 1930, again by the learned scholar whom I have quoted, Professor
Quiny Wright. Professor Wright, in commenting upon the minorities
treaties,wrote in 1930-
"... the system was 'intended to prevent that questions concerning
minority protection should acquire the character of a dispute bes
tu7een nations', and 'to insure that States with a minority \vithiri
their borders should be protected from the danger of interference
by other powers in their interna1 affairs'. These reasons hardIy apply
to the mandated areas and also the compromissory clauses of the
mandates evidently foresee the possibility of disputes between a
mandatory and a League Blember in respect to the mandatory's
application of his mandate. .." (Matadales Under the League of
Ncilions(1930)~p. 522, footnote 74a.)
Inasmuch as the minorities treaties system was peculiarly concerned
with preventing disputes concerning minorities from acquiring the
cliaracter ofadispute between nations, a limited right ofjudicial recourse
was an appropriate method of acliieving that objective, of keeping to
a minimum the international disputes which might arise with regard to
this question.
No such consideration, however, applies to the mandates system. The
compromissory clause of Article 7 conferred upon ail Members the
capacity to seek judicial recourse in respect of "any dispute whatever"
relating to the interpretation or application of the Mandate in the cir-
cumstances envisaged in that Article. Hadthe considerations underlying
the restricted grant of the right of judicial recourse in the minorities
treaties been regarded as relevant to the mandates system, clearly the242 SOUTH WEST AFRICA
compromissory clause itself would have been couched in çimilarly re-
strictive tems.
The Applicantç alsohave referred, in the Reply, to the Constitution of
the International Labour Organisation, as well as conventions concluded
thereunder on the issue of justiciability.
Respondent seeks to distinguish between jus.ticiability of disputes
and disputes arising under Articlehz,paragraph,w2,lof the Mandate, onon,
the ground that the International Labour Organisation Constitution
and conventionsthereunder are not "motivateci solelyby a humanitarian
interest", but that in addition international regulation of Iabour con-
ditions within a state has a bearing upon international competitive
advantage or disadvantage.
On this bais Respondent concludes that it is not surprishg that the
I.L.O. Constitution provides means whereby a State can enforce com-
pliance with conventions to which both it and an allegedly non-comply-
ing State Member are parties. (a p,p. 189-190.)
With respect, the Applicants conceive such a purported distinction
between the I.L.O. system and the mandates system as a captious one.
The I.L.O. Constitution made manifest the humane objectives of
that system and this was made clear in the separate opinion of Judge
Jessup appended to the 1962Judgment (I.C. J. Regarts 1962, pp. 426ff.).
The Iearned judge referred to the cornplaint brought by the Republic
of Ghana against Portugal, alleging non-observance by the latter of
Convention No. 105, the Abolition of Forced Labour Convention, 1957.
No consideration of competitive advantage or disadvantage between
Ghana and Portugal was relevant to any issue in that proceeding.
Respondent also seeks to distinguish the case of theCustomsRégime
between Germany and Austria, cited in the Reply at IV, ages 485-486.
The question before the Permanent Court there was whet er a proposed
customs union was consistent with an international obligation under-
taken by Austria not to "violate her economicindependence by granting
to any State a special régime or exclusive advantages calculated to
the Permanent Court was not based upon an assessrnent of future polit-
ical contingencies,as asserted by the Applicants, but "purely on the
contents of the régimecreated bv the Austro-Gennan Protocol of March
~gth, 1931" .v, 151.)
The distinction sought to be drawn by Respondent between these two
situations isunsubstantial. Judicial consideration of the questionwhether
a customs regime would be a breachof Austna's obligation not to "violate
her economic independence" clearly encornpasseç isçueç heavily charged
with political, economicas well as technical considerations. The Court,
nonetheless, perceived no obstacle to justiciabilofthe question in that
case, which isthe consideration relevant to Respondent's contention at
issue in the context of the present discussion.
The Applicants also refer in the Reply to the European Convention
for the Protection of Human Rights and Fundamental Freedoms. Re-
spondent seeks to distinguish that convention from Article2,paragraph
2, in the aspect under discussion here, on the ground that the broadly
formulated rights under the Convention are-in Respondent's words-
"defined with reasonable exactness". Respondent, however, offers no
comment with regard to the Applicants' reference to the case ofLawless ARGUMENT OF MR. GROSS 243
v. Ireland, adjudicated by the European Court of Human Rights. In
that case, the tribunal held that an Irish Proclamation of 1957 was
justified by a "public emergency threatening the life of the nation".
It would be difficult, Mr. President, to find a clearerexample of inter-
national judicial review of governmental action encompassing political,
aswell as social questions.
In the premise then, Mr. President, it isnot at al1surprising, given the
numerous examples and wide knowledge and acceptance of the principle
those encompassing political, economic and technical aspects, that the
authors of the mandates system not only should have bestowed a like
power upon the Permanent Court, but that they did so without objec-
tion and even without discusçion. Indeed, in the light of the nature and
purposes of the mandates system-a novel institution embodying the
sacred trust of civilization-omission of the right of judicial recourse
wouid have stnick at the very heart of the mandates system. Such a
result would have been, indeed, unthinkable.
Mr. President, with your permission, I turn now to a consideration
of Respondent's second alternative argument which is set out at V,
pages 157 to 174of the Rejoinder. As 1have noted already, Respondent's
second alternative contention, in effect,is that the only limitation upon
the discretionary powers assertedly granted to Respondent in ArticIe 2,
paragraph 2, of the Mandate, is the requirement of good faith in the
exercise ofsuch powers.
1have referred earlier, Mr. President, to the Respondent's five so-called
"simple propositions" in which Respondent has formulated its second
alternative contention. Theçe are set out in the Rejoinder, V,pages 157
to 158.
Propositions {a) and (b) appear unobjectionable to the Applicants,
subject only to the cautionary comment that Respondent 's reference in
proposition {a) to "discretion" does not imply that such discretion is
not reviewable on the basis of objective criteriaand legal noms, and
subject to the comment that Respondent's reference in proposition (b)
to the absence of "regulatory provisions" does not exclude the inter-
national regulations of the mandates system itself.
Propositions (c) and (dj, however, are destructive of the sacred trust
and rob the obligation to submit to international supervision of any
meaningful realit y.
Respondent's proposition (cl isformdated in its own terms aç follows:
"The only limitation placed by Article 2,paragraph z, on the
discretionary power vested in Respondent was that such power
should be exercised for the purpose of promoting to the utmost
the well-being and progress of the inhabitants of the Territory."
(V,P. 1-57.)
Respondent's insertion in the formulation of the phrase "for the
purpose of promoting" is, of course, a gratuitous gloss on Article 2,
paragraph 2, and vitally alters its character. The actual terms of that
Article embody no such express or implied limitation, contain no refer-
ence to the purpose of promoting, but state a flat and unqualified
forth, in the words of the Article. In view of that fact, it may be fair to
comment that Respondent's formulation is not merely a gratuitous244 SOUTH WEST AFRICA
gloss, but implies a unilateral and off-hand modification of the terms
of that provision.
The consequence of such an amendment of Article 2,.paragraph 2.
injecting the concept of "for the purpose of", is made explicitly clear in
Respondent's proposition (d) which is fomulated in the followingterms:
"Consequently the Court can determine whether a legislative or
administrative act or policy constitutes an infringement of Arti-
. cle 2, paragraph 2, only by examining whether or not the exercise
of discretion involved in such act or policy, was directed at the'
purpose of promoting to the utmost the well-being and progress
of the inhabitants. Such an examination would, in the circum-
stances, involve an enquiry as to the good or bad faith of the
Mandatory." (V,pp. 757-158.)
Therefore, the amendment ofArticle z, paragraph 2, implicit in propo-
sition (c), is a vehicle for irnporting into the Article the good or bad
faith test, asis made explicitly clear in proposition (d) which I have
just quoted.
But, Air. President, Respondent's plan for re-fonnuIating Article 2
inclbdes the elimination of any vestige of rneaningful internation.
accountability which hight survive propositions (c) and (d), by reference
to its next, fifth, "simple proposition" (e), which 1read in Respondent's
own terms:
"The conclusion set out in sub-paragraph (d) is strengthened by
the consideration that, whenever there is scope for honest difference
of opinion (as there often must be) on the question whether a
- particular legislative or administrative measure or policp does qr
does nol, or will or will not,ia factfiromoie well-being afid firogress
lo th utmosi, there are no legal norms as distinct from political
or social views or theories-which a Court can apply for giving
,. preference to any of the conflicting opinions to the exclusion of the
. otherç. Consequently, the only legally prescribed bais upon which
the Court can determine whether the Article has.been violated, is
to enquire whether suchrneasure or policy was intended @ promole
well-being and firogresslo theutmost." (Ibid.)
The foregoing proposition is said by Respondent to strengthen the
conclusion set out in proposition (d), but it appears to ernbody both
cause and effect in one package.
Having posited an interpretation 'of Article 2, paragraph 2, which
involves amending itin a substantial respect by importing gratuitously
the reference to "for the purpose of", and deducing from such unilateral
amendment a limitation of supervision to an enquiry as to good or bad
faith, Respondent then concludes that no legal norms exist by which a
court can judge Respondent's exercise of good or bad faith. The last
blow, indeed, in proposition (e), need not have been struck, inasmuch
as the Article had already been drained of vitality by forceof propositions
(c) and Id).
. Mr. President, Respondent's contention that the scope and content
of the obligation entruçted to Respondent in terms of Article 2, para-
graph 2, is to be measured by its so-cal1ed good or bad faith in the
exercise of discretion under that Article, embodies its own built-in
reduclioad abszrrd~m.
Without any purpose or intimation of cornparison, or suggestion of ARGUMEXT OF MR. CROSS 245
analogy to.facts .in the cases at bar, the lesson of history teaches that
the greatest excesses of policy , and the most reprehensible doctrines,
fre uently 'are propounded.and executed with professions of good faith
an2 lofty purpose. Indeed, human experience and all of history shows
that when. sincerity of.purpose is carried to unreasonable lengthç, or
improper ends, it isroften difficult to distinguish from obsession.
If governmental policies.and actions merely are to be weighed upon
the.scale of 'a subjective intent of persons charged from time to time
with officia1responsjbiijty, and if no objective.tests are relevant for the
appraisal of the actual consequences of such policies and actions, it
would necessarily follow, we submit, that .organs of administrative
supervision and of..judicial protection would confront the necessity of
passing upon. the conscience. rather thari upon the conduct, of the
authorities concerned. With al1 respect and serious intendment, Mr.
President, it is subrnitted that such a task is neither an appropriate nor
feasible one, on the'temestrial level at any rate, for any tribunal.
Moreover, as also has been noted, the Applicants would be at a loss
to know how to marshal eVidencetending to prove subjective motivation
of bona fides or mala fides in respect of carrying'out apolicy which, in
the Applicants! view, is inherently and demonstrably illicit in terms of
the obligations of the Mandate itself. Proof of sub'ective motivation of
that sort would;.in any event, if relevant at ail, be presurnably basecl
upon the examination into the views of individual persons, .whose
testimony on the point could not but be inf1uenced.by.afiriorijudgme~its
peculiar to themselves.
There is, indeed, an ,imperative logic underlying Respondentrs propo-
sition (e),namely th'at~thereare no legal norms by which such subjective
motivation- could be'judicially appraised or-Respondent might have
added-adminjstratively determined, for that matter. The only legal
concept relevant in this context, as the Applicants have submitted,
would .be the universaiiy accepted principle .that persons or entities
must'6e presumed to intend the reasonably foreseeable consequences of
their policies..and actions. It is only in this' sense that the Applicants
have used the word "intent", or any other word indicating or irnplying
motive or purpose. '
, In the Counter-Memorial Respondent seeks to attribute. to the Appli-
cants the contention that .Respondent's' policies and practices are im-
permissible in te&-, of Article 2, aragraph ,2, because they ake im-
properly motiv,ated. Respondent fic nsfwords and phrases-in our respect-
ful submission,. over-reaches for them-in its effort to attribute. to the
In the Reply the Applicants have sought to make clear, and now reaffirm,
that Respondent has misconceived the purport of the Applicants'
relevant submissions in this regard. To the contr'ary, the Applicants
have submitted, and continue to submit, with respect,.that.the legal
nature and consequences of Respondent's policy and practices of apart-
heid in the Territory, as .described in the Applicants' pleadings, may,
and should be, adjudicated by this honourable Court on the basis of
objective criteria, 'reflecting widely accepted standards of a political,
moral and scientific -character,as well as universally accepted and
minimum international legal norms, which are derived from, and
based upon, such standards. Such standards and legal norms are elab-
orated by the Applicants in their Reply. These are -levant, of course, to246 SOUTH WEST AFRlCA
both of Respondent's so-cdled alternative contentions-equaliy relevant
to the contention of non-jüsticiability as to the good faith test. Such
Iegal norms, Mr. President, do not partake of a "purely political char-
acter", in Respondent's phrase. They are, to the contrary, legal obli-
gations of the most compelling nature,the application ofwhich isessential
to the accomplishment of the sacred trust ernbodied in Articlez, para-
graph 2, which isthe very heart of the mandates system and in the
absence ofwhich the Mandate for South West Africa would have little
real meaning or interest to the organized international community.
In the Reply, at IV, pages 268 and following, under the heading
"Analysis of Respondent's Policy", the Applicants set forth certain
heid. Such premises are derived entirely from Respondent's pleadmgs.rt-
Respondent's premises, which are undisputed in the record, include,
ilrteralia, such basic assumptions as that :"Differences between the
groups concerned are of so profound a nature that they cannot be wiped
out", and that it is "desirable to accept the position as it is and not
put idealism before realism" (IV, pp. 271-272). This is in respect of and
in purported justification of, along with other explanations, the policy
and practice described by the Applicants of allotment to individuals of
status, rights, burdens and privileges on the basis of mernbershp in a
goup without regard to individual capacity, quality, merit, or potential.
1 refer the honourable Court to the Reply, IV, at pages 268-271.
The Applicants draw their conclusion on the bais of the prernises and
assumptions which are esçentially undisputed, out of the rnouths of
Respondent's highest officials and largely quoted in Respondent's
written pleadings, and on the basis of public laws, administrative
regulations, and admitted practices. The conclusion of the Applicants is
as follows:
apartheid by which it is effectuated, are furthermore repugnant to
the generally accepted political and moral standards of the inter-
national community, as well as violative of norms, as accepted by
international custom and as reflected in the general principles of law
universally recognized by civilized nations.
Such assumptions and their irnplementation, moreover, are
neither factually valid nor logically tenable. Such 'difierences' as
may be inherent in 'ethnic classification' are in no way relevant to,
nor can they properly be advanced to justify, denial of equality of
opportunity based upon individual merit or capacity, or denial of
equality before the law, or of fundamental nghts and freedoms."
(IV P,.272.)
At this stage of the Oral Proceedings, Mr. President and Members of
the honourable Court. the Applicants forbear from engaging in a lengthy
exposition, indeed any exposition at aii, of the practices and policies of
which complaint is made, and with respect, Rlr.President, the Applicants
would reserve the right to revert to these considerations of a fegalnature
in the context of the discussionof facts which the Applicants understand
will follow conclusion of this phase of the Oral Proceedings.
In order to obviate any possible source of confusion on this matter,
discussion by the Applicants in the Reply with respect to thebothanthese ARGUMENT OF MR. GROSS 247
clearly enunciated concepts, as summarized in the passage I have quoted
from the Reply, IV, at page 272.
The Applicants conceive thatlegal principles and legal norms are
based upon, and reflect, human experience and the hurnan condition.
In the celebrated maxim: "experience is the life of the law."
The standards referred to in the Reply are of course of a political,
moral and scientific character. They are set out wjth numerous illustrative
examples in the Reply, in the following contexts.
At IV, pages 293to 302, the Reply sets out representative statements
of official overnrnental positions of a dozen representative States,
Memberç Of the United Nations, reflecting the views of govemments
in aliparts of the world, on the subject of Respondent's policy and
practices of apartheid. Of course, the policy and practices which are
the subject of complaint in these proceedings relate solelp to those
applied by the Respondent in the Territory of South West Africa. It is,
policies are, on Respondent's own showing in its written pleadings,
substantially identical with those in the Republic of South Africa itself.
andindeed, in numerous contexts in its written pleadings, Respondent
refers to its policies in the Republic by way of justification or explanation
of its policies and practices in the Territory. The Applicants in no way
- intend to present to this Court policies pertaining to the Republic of
South Africa itself, but it is respectfully pointed out that the Respondent
has, in its own written pleadings, made repeated references to the
policies pursued by Respondent in the Republic of South Africa itself
and has sought to draw inferences therefrom. Numerous examples wiLl
be further presented to the Court in connection with the discussion of
factual issues.
On this basis, the views of governments, representative examples of
which are set forth in the Reply at IV,pages 295to 302, are relevant to
issues in these proceedings, even though not dl ofthem relate explicitly
to Respondent's policies in the Territory of South West Africa.
It'doesnot appear to the Applicants, Mr. Presjdent, to be warranted
in the present discussion of the essentially legal issues to burden the
Court with extensive quotations from such officia1views of governments.
It may suffice-with one or two illustrations added, if1may be permitted
to quote them-it may suffice to note that their uniform tenor reflects
a criticism and condemnation of the policy and practices of apartheid
which can perhaps be most fairly described as rewlsion.
With respect to the Territory itself, for example, the Representative
of the United States to the Fourth Cornmittee of the General Assembly
of the United Nations reflects the officia1view of the United States
Government, with respect to the policy in question, as follows,ider alia:
"By extending the apartheid laws to South West Africa the
mandatory power is, in the view of my Government, cEearZy delin-
quent in its obligations to the international community and to the
#o@lation of South West Africa. These obligations are set forth
explicitly in Articl2 ofthe mandate which states that South Africa
'shall promote to the utmost the material and moral well-being
and the social progressof the inhabitants of the territory'.
Mr. Chairman, my Delegationbelievesnot only lhat fhereis neither
legalnor Political basifor the afiartheidlawsin South Africa; there
is also no moral basis for such laws anywhere in the world, let alone248 SOUTH NXST AFRlCA
: in a territory such as South West Africa which has a clear inter-
national character, which was given to the .goverpment of South
Africa as 'a sacred trust of civilization'." (IV, p. 296.)
The Representatives ofthe United Kingdom to the Fourth cornkittee
of the United Nations General Assembly reflect similar- views on the
partof their Governrnent. Thus, in a statement to the Fourth Cornmittee
at the Seventeenth Sessionof the GeneralAssembly, the United Kingdom
Representative stated, as reflected in the summary record of the pro-
ceedings :
". .:apartheid was wzorallyabominable,inte/leciually.g. rotesqusand
spirittlally.indefensible.Thus, the Government of South Africa was
sufficiently to be blamed for the existence in South West Africa
of a'situation in which the rights of the individual were set at
nought unless his skin was of the right colour." (IV, p.298.).
Itmay be noted, Mr. President, parenthetically, that Respondent in
its Rejoinder characterizes the foregoing statement by the British
,delegateas "perhaps the mostoffensive passagequoted by the Applicants
'underthe heading 'Viewsof Governments' ".That isfrom the Rejoinder,
V, at page 383.
hardly consider it necessary to assurenthishonourable Court that their -
purpose in citing the views of Governments was conceived to be part
of their duty to inform the Court conceming the political standards
by which widely representative governments of 'the world view and
measure the policy and practices at issue in these proceedingç. If Re-
spondent wishes to, or is in a position to, clarify the matter further by
informing this honourable Court of viewsofgovernments, less "offensive"
than those views available to the Applicants, Respondent of course has
,the privilege of doing so. The Applicants do not deem -it necessary to
draw inferences from the fact that Respondent has, in its written
pleadings, cited no views of governments.
Another Representative of the United Kingdom to the Fourth Com-
mittee reffected views of his Goverrunent again asfollows:
"The people and Government of the United Kingdom were
opposed to a artheid or to racial discrimination wherever they
a 'were practisef; they considered them to be reprehensible rnorally
and calamitous politically. The epality ofme@ before thelaw was
a fundamental$rinci#le u on whichthedemocracyofBritain rested ...
TheGowernmeia t#the 4 nited Kingdom was opPose4 to thePolicy of
apartheidwhereverib might be found." (IV,p. 298.) ,: .
Finaliy, the Delegate of Ireland to the Special Cornmittee of'the
Sixteenth General Assembly stated, inter dia:
"The unanimous repugnancsco ef the civilized world to 'apartheid'
as reflectedin the Commitfeefrom year to year, was in itselfa con-
demnationoftheinhererau t nwholesomenessof'apartheid'."(IV,p. 300.)
This sufiiceç, 1 believe, Mr. Preçident, Staternents of similar irnport
are quoted in the Reply on the part of the Governments of France,
Norway, Poland, Malaysia, Greece, China, Mexico, the Netherlands,
Pakistan. These are cited at IV, pages 298to 302,and are only a handful
of the many which could have been cited in the Reply as refiecting the
views of governments. ARGUMENT OF MR. CROSS 249
Mr. President, if virtually unahimous views, officiallyexpressed on the
part of governments, widely representative throughout'the world, dd
not reflect currently accepted political standards with regard to the'
question at issue here, it is difficult to know where to find sources for
such standards. -
In addition to universally accepted political &d moral 'standards,.
asreflected in the officialviews to which 1have referred, the Applicants
likewise set out in the Reply, at IV, pages 305-312;-the weight of con-
temporary scientific authority in relation to patterns of human behaviour
~elevant to the premises underlying Respondent's policy of apartheid,
as well + to the practic-gsby which such policy is effectuated.
Respondent's premises are couched for the most part in the form of
generalizations, and are set forth, intearlia, at pages 302 to 305 of the,
Reply. 1 refer to Respondent's premises as they formulate them.
Among the clearest examples in Respondent's written pleadings is the
is set forthinhBook VI1 of the Counter-Memorial at III,pages 527 to $30
and asquoted in the Reply at IV,pages 266to.268.I have already drawn
the Court's attention to this illuminative passage in Part A of this phase
of the Oral Proceedings; that may be found in the verbatim record,
page 115,supra. -
As fairly sumrnarized and excerpted in the Reply, the basic conten-
tions of Respondent which are expressed in pages of the Counter-Me-
morial, which .I shall cite, are the following and are in the Applicants'
formulations with occasional quotes from Respondent :
".. .that historical circumstances have created isituation in which
members of different 'groups' prefer to 'associate ~vithmembers of
. their own group'; that 'many Europeans, in all' probability the
' vast majority, are not prepared to serve in positions where Bantu
are placed in a position of authority over them' ; that these are
'socialphenomena whichexist asfacts, independently ofany govern-
mental policy, legislation or administrative practices'; and :what-
ever the moral rightç or wrongs pertaining to them in particular
situations,there can be no denial that such group reactions exist as
facts of which due cognizance must needs be taken by any realistic
government' .". (IV,pp. 302-303.)
In their analysis of scientific authority, the Applicants show that
basic to Respondent 's.premisesis the primary contention that its "policy
is'not based on people being inferior but being different". (II,,p..471.)
Mr. President, the preponderant weight of world scientific authority,
asset forth in the Reply, holds that "no scientific evidence supports an
assumption that groups or races differ innately". (IV,p. 306.) The alle ed
':diflerencet', in Respondent's words, between "people" in South &st
Africa is not defined by Respondent in any meaningful terrns, other than
on a basis which .serves to further its pre-detemined racial policies,
although purporting to justify and require such policies. The policy of,
apartheid and the practices which effectuate it, in the Applicants' sub-
mission, are falsely premised on a perceived difference, from a legal
point of view, between races and groups as such. Such an officia1policy,.
in the Applicantç' view, is irreconcilable with any scientific premises
accepted by the ovenvhelrning weight of scientific authority.
In their Reply the Applicants ais0 sumrnarize a second premise of250 SOUTH WEST AFRICA
Respondent's policy underlying apartheid, and this the Applicants
describe as the "contention of inevitable 'frustration' if al1inhabitants
of the Territory are accorded equal opportunity". (IV,p. 306.)
The concept of "inevitable frustration", if it may be cded that for
simplicity, is expressed in statements by Respondent's highest officials,
quoted by Respondent itself. For example, Respondent 'sPrime hlinister
has declared that a-
"... class of educated and semi-educated [Natives] . ..has learned
that it is above itown people and feels that its spiritual, economic
and pohtical homeisamong the civilizedcommunity of SouthAfrica,
namely the Europeans, and feels frustrated that their wishes have
not been complied with",
Or again,
"By simply blindly producing pupils who were trained in Euro-
pean ideas the idle hope was created that they could occupy posi-
tions in the European community in spite of the country's policy
[of apartheid]." (VI,p.41.)
The Applicants show, in a section of the Reply analysing the views of
scientificauthorities, that-
"The basic fallacy of Respondent's contention consists in the
scientifically demonstrable fact that the greatest 'frustration' is
heid itself." (IV,p. 306.)pportunity inherent in the policyofapart-
Again Respondent posits the premisethat asa "realistic Government",
it must support what it describes as existing "group reactions". This is
set forth, inter ah, in the same section of Book VI1 of the Counter-
Memorial to which 1 have previously referred, in the followingterms:
"... [these] social phenomena Wamely 'group preferences' and
'group differences',together with 'inevitable frustrationJ] . .exist
asfacts, independently of any governmental policy, legislation or
administrative practices-as indeed they manifest themselves, to a
greater or lesser extent, in mixed or plural communities throughout
the world". (III p,.528.)
rights or wrongs pertaining to them in particular situations, there
can be no denial that such group reactions exist as facts of which
due cognizancemust needs be taken by any realistic government."
(1bid.J
II Applicants concur that "due cognizancemust needs be taken" of such
mark Respondent's policy and practices.he sense or towards the end which
In al1civilized societies there prevail standardsof conduct and legal
noms of governmental policy which are directed towards arnelioration
and adjustment of the "social phenomena" to which the Respondent
refers, rather than to~vards their perpetuation in the frarnework of
"group preferences" accorded to a minority of the population, or indeed
a majority, for that matter, The ovenvhelming weight of scientific au-
thority in regard to this question is set forth at pages 308 to 312 of the
Applicants' Reply (IV), and such authority shows, in our respectful
submission, that- ARGUMENT OP MR. GROSS 2s
"... inasmuch as attitudes of prejudice, discrimination and fear
are generated by individuals through their social structure and
processes, such attitudes likewise can be modified through the
social structure and processeS.and, in particular, through govem-
mental action". (IV, p. 308.)
And, as 1have said, Mr. President, the Applicants respectfully reserve
the right torevert to these consideratjons in the context ofthe illustrative
and elaborative discussion ofthe essentially fact issues now being deferred
at this phase of the Oral Proceedings.
As 1 have stated, Mr. President, the Applicants, in the Reply at IV,
pages 493 and following, have aiso set out the Iegal norms which, in the
Applicants' respectful submissjon, are relevant and applicable to judicial
determination ofthe natureand scope of the admittedly legal obligations
of Respondent in terms of Article 2,paragraph 2,of the Mandate.
The attention of this honourable Court is respectfully drawn to the
fact that in their Memorials, at 1,page 107, the Applicants state, inter
alia, as follows:
"It is submitted that the terms of the second paragraph of Article
2 of the Mandate and Paragraph r of Article 22 of the Covenant ...
read in the light of the terms and stated purposes of Chapters XI,
XII and XII1 of the Charter, establish clear and meaningful norms
marking the duties of the Blandatory. In accordance with these
legal norms, the Mandatory's duties to safeguard and promote the
'material and moral well-being', the 'socialprogress' andthe 'devel-
* opment' of the people of the Territorymust reasonably be construed
to include certain objectives specified in the Memorials." (1,p. 107.)
As the Court will note, this includes specifrc reference to "clear and
meaningful norms", which are described as "legal norms".
In the Counter-Mernorial, Respondent refers to the foregoing quoted
passage from the Memorials and quotes the phrase "clear and meaning-
ful norms marking the duties of the Mandatory". (II,p. 395.)
However, in the Counter-Mernorial in that context, Respondent essen-
tially limits its discussion of the point involved to the proposition that
the principle of eari materia is not justified asan aid to interpretation in
the present case.
Respondent does not discuss in that context the Applicants' basic
contention that the relevant provisions of Article 22 ofthe Covenant and
of the Mandate establish clear and meaningful norms of a legal nature
marking Respondent's duties. The reference is made in the Mernorial to
such norms "read in the light" of relevant chapters of the Charter of the
United Nations.
In the Counter-Mernorial, nevertheless, Respondent has set out an
extensive "Statement of the Law", asit is called, in which it seeks to
establish, inter dia,that the onIy question before the Court in respect of
Article 2 is "one of intentions, or purpose, or good faith, in the words
of the Counter-Memorial (II,p. 392)R .espondent elaborates the point by
the conclusion that-
legislative or administrative act, practice or policy, if wasardevised
and performed or practised in the exercise of the Mandatory's
.discretion with the bona fide intention of benefiting the inhabitants
of the Territory, itwould not constitute a violation of Article 2 of
the Mandate." (II, p. 392.)2.52 SOUTH WEST AFRICA
-. It .is readily.apparent, Mr. President ,that the foregoing passage,
quoted from the Counter-Mernorial,embodies the ,contention more fully
elabooratedin the Rejoinder in Respondent's so~called."secondalternative
contention", to which reference has been made. Furthemore, as I have
previously stated, Respondent in the Counter-Memorial has contended:
"The Court is a judicial organ and can accordingly not corne to
.decisions otherwise than in accordance with legal norms, If the
.. Court were to decide whether in fact a particular policy promoted
the 'well-being' of the inhabitants 'to the utmost', it would have
to consider that policy and weigh it against other policies which
might be followedin an attempt to achieve such a purpose. In order
to arrive at a decision, the Court would thereupon have to decide
which policy it considers best. The Court's function in so deciding
would be one.which is, in its very nature, not a judicial one. No legal
criteria can be used in such adjudication. .The decjsjon can only be
based on social, ethnological, economic and political considerations."
(11,P. 391-1
As 1 have respectfully submitted, any*distinction between the ma-
jor premises underlpg Respondent's conclusion in the passage just
quoted, in the context of its second alternative contention, iç indistin-
guishable in any meaningful sense from the premises underlying Re-
spondent's first alternative contention that its obligations under the
Article are not justiciable.
However, in the light of Respondent's contentions in the Coiinter-
Riemorial in respect of the absence of relevant legal noms, and its denial
of justiciability of its legal obligations under the Article in question, the
Applicants conceived it.to be appropriate, and indeed necessary, in the
Reply, to make clear the respect in which Respondent's contentions,
as aforesaid, were erroneous and untenable. To that end, as a proper
function of their Reply (IV), the Applicantshave set out at pages 491to
510 thereof relevant legal norms or legal standards which may, and
should, in Our respectful submission, be applied by this honourable
Court in adjudicating the legal dispute conceming the nature and scope
of Respondent's adrnitted legal obligations in terms of Article 2, para-
graph 2. In the Reply the Applicants introduced their analysis of the
relevant minimum legal norms by defining. the sense of the principal.
terms used in the analysis. Thus, in the words of the Reply:
"In the following balysis of the relevant legal norms, the terms
'non-discrimination' or 'non-separation' are used in their prevaient
and customary sense: stated negatively, the terms refer to the
absence of governmental policiesor actions which allot status, rights,
duties, pnvileges 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 governrnental
policies and actions the objective of which is to prot'ect equality
of opportunity and equal protection of the laws tq individual per-
sons as such.
As is shown below, there has evolved over the years, and now
exists, a generally accepted international hurnan rights nom of
non-discrimination or non-separation, as defined in the preceding
paragraph. Such a nom is evidenced by international undertakings
in the form of treaties, conventions and declarations, by judicial ARGUMEST OF MR. CROSS 253
. .decisians, the practice of States and constitutional and statutory
provisions by which such a nom is incorporated into the body
of laws of States." (IV, p. 493,)
In the light of the nature of Respondent's contentions in the Counter-
&lemorial, to which 1 have referred, and the clear requirements of a
reply thereto, some cause for surprise may be found in Respondent's
comment in the Rejoinder that, inasmuch as the Applicants have elab-
orated certain "contents and sources of the s~ggested~norms",the Reply
"seeks to make out an entirely new case". . .
Mr. President and Members of the honourable Court, I have said that
in the light of the nature of Respondent's contentions in the Counter-
Memorial, to which.1 have referred, and of the clear requirements of a
reply thereto, cause for surprise rnay be found in Respondent's comment
in the Rejoinder that ,inasmuch as the Applicantshave elaborated certain
contents and sources of the suggested norms, the Reply seeks to make
out an entirely new case.
Respondent apparently , and no doubt unwittingly, misintérprets the
contention made by the Applicants in the Memorials that the terms of
the relevant Articles of the Covenant and of the Mandate "establish clear
and meaningful norms marking the duties of the Mandatory", as we
said in the Memorials (1) at page 107. The Applicants' reference to the
terms and purposes of Chapters XI, XII and XII1 of theUnited Nations
Charter was not, of course, intended to imply that these terms and
purposes marked the fullmeasure and extent of the legal norrns appli-
cable to the Covenant andrelevant to the interpretation of the Mandate.
Indeed, the chapters of the Charter of the United Nations referred to in
this context are of particular relevance in the Lightof the fact that they
deal with non-self-governing territories. (Chapter XI, the International
Trusteeship System, Chapter XII, and the Trusteeship Council, Chapter
XIII.)
.Determination of any legal questions or disputes which might arise
conceming the interpretation or application of these chapters of the
Uiiited Nations Charter would, likewise, necessarily invoive considera-
tion of the same, or similar, legal norms which are applicable to disputes
concerning the interpretation or application ofArticle 22 of the Covenant
or provisions of the Mandate, inciuding Article z, paragraph 2.
Even more surprising perhaps is the statement in the Rejoinder that,
by elaborating the legal noms relevant to judicial interpretation of
Article 2,paragraph 2,of the Mandate, the Applicantç have, in Respon-
dent's phrase, "introduced a new cause of action". (V, p. 105.)
The only "cause of action" involved in the present proceedings, Mr.
President, in the view of the Applicants, is that embodied in their Sub-
missions Nos. r through g, and the Prayer for Relief, al1 of which are
set out in .the Memorials at 1, pages 197 and 198. That ha been, and
remains, the "cause.of action". . .
In the context in which Respondent refers to an asserted "new cause
of action", by virtue of the elaboration of the relevant legal norms and
standards iipon which they are based, Respondent has deemed it appro-
priate, 1regret to Say,to.incorporate tendentious and unwarranted corn-
ments concerning the Applicants' asserted motivations in bringing these
proceedings. The Applicants do no$ perceive it to be appropriate, or
consistent with the dignity of this high Tribunal, or relevant to the im-
portant legalissuesraised in these proceedings, to engagein acontroversy=54 SOUTH WEST AFRICA
which may divert from consideration of the legal issues. It may suffice
to reaffirm, Mr. President and Members cf the honourable Court, that
the Applicants have sought recourse to the judicial processes solely for
the purpose of seeking a just, peaceful, and judicial resolution of the
legal issues involved in the long protracted dispute between themselves
and the Respondent which, as the Court has said, involves legal issues
identical with, although separate from, those involved in the dispute
between the United Nations, on the one hand, and the Respondent, on
the other.
It isrelevant, however, to note and to advert to the fact that there
has been no major, or indeed any other, "shift from thestand taken" in
the Memorials, to use Respondent's phrase.
Whether or not the legal norm, for which the Applicants contend,
appropriately may be described or labelled, as we respectfully do de-
scribe and label it, a "norm of non-discrimination" or of "non-separa-
tion", appears to the Applicants to be a question of no moment. This is
a mere cliaracterization of alegainom, the contents ofwhich are relevant
to these proceedings, and not a caption. The important points are
whether the legal norms and objective criteria which are elaborated and
analysed by the Applicants exist, and, if they do exist as the Applicants
subrnit ,whether they are applicable to Respondent 's admittedly legal
obligations in terms of Article 2, paragraph 2, of the Mandate and of
Article 22 of the Covenant of the League of Nations,
The Applicants, accordingly, and with respect, turn to a surnmary
consideration of such legal norrns and objectively determinable legal
criteria which, as 1have said, areset out in the Reply, at IV, .ag.s 476 to
5x9.
Mr. President, the concept of discretionary powers limited by legal
norms iswell known to international judicial tribunals. The concept was
equally well-known prior to the time of the establishment of the man-
dates system itself. Thus for example in 1910, hlr. Elihu Root, of the
United States of America, stated to the American Society of Interna-
tional Law, with regard to denial of justice, the following points qd
principles:
"The rule of obligation is perfectly distinct and settled. Each
country is bound to give to the nationals of another country in its
territory the benefit of the same Iaws, the sarne administration, the
same protection, and the same redress for injury which it gives to
its own citizens, and neither more nor less; provided the protection
which the country givesto its owncitizens conforms to the established
standards of civilization.
There is a standard of justice [said Mr. Root in I~IO]very simple,
very fundamental, and of such general acceptance by al1 civilized
countries as to form a part of the international law of the world.
The condition upon which any country is entitled to measure the
justice due from it to an alien by the justice which it accords to its
own citizens is that its system of law and administration shall con-
form to this general standard. If any country's system of law and
administration does not conforrn to that standard, although the
people of the country may be content or cornpeiIed to live under it,
no other country can be compelled to accept it as furnishing a
satisfactory measure of treatment to its citizens ... It is a practical
standard and has regard always to the possibilities of government ARGUMENT OF MR. GROSS 255
under existing conditions." (Root , Proceedings,A.S.I.L. 1910, pp.
16, 20-22.)
The discretionary powers of governments indeed are very wide with
respect to aliens living within their borders, but they are limited by
international noms, rather than by any asserted test of good faith or
mensrea.
It would serve little purpose to burden the Court by citation of the
many examples of analysis of such norms, or of decisionsof international
tribunal5 applying them.
The Government of the United Kingdom made the followingcomment
in its Observations, transmitted to the Secretary-General of the United
Nations on 24 August 1948, concerning the Draft Declaration on the
Rights and Duties of States which had been presented by Panama to the
first session of the General Assembiy:
"There is much international authority [says the British state-
ment] for the existence of a minimum international standard, with
which Statesare obliged to comply in their treatment of foreigners,
whether or not theydo soin thetreatment of their nationals. If, and
in so far as international law develops so as to limit the domestic
jurisdiction of States in the treatment of their nationals to such an
international standard,mis abreach of international law (and there-
forea matter on which other Statesmay intervene), then the existing
principle of international law with regard to the 'international
standard' will apply to both nationals and foreigners. Unless and
until that position is reached, His Majesty's Government consider
that the doctrine of the minimum international standard, with
regard to the treatment of foreigners, remains part of interna-
tional law and that agreement to abolish that doctrine wiUnot be
attained." (U.N. Doc. A/CN 412, 15 Dec. 1948, pp. 20-23, 71,188.)
It should also be'noted, Mr. President, that the concept of standards
capable of guiding policy and action in the mandated territories, and
providing a basis upon which the conduct of the mandatory might be
judged, has been analysed in some detail, again by the same scholarly
authority to whom 1 have previously referred, Professor Wright, in his
same study of 1930 on the mandates system.
In a chapter, which indeed is entitled "Establishment of Standards",
ProfessorWright comrnents: "The evolution of general standards willbe
perhaps the most important development of the mandates system."
(Mandatesunderthe Leagueof Nations,p. 225.)
After quoting from Article 22 of the Covenant of the League of Na-
tions, and referring to several relevant general conventions, Professor
Wright comments as follows:
"To what extent has the League developed this inchoate material
into standards capable of guiding policy and action in the mandated
areas?
For establishing such standards [Professor Wright answers his
own question], three distinct procedures have evolved: (a) the
growth of a jurisprudence from decisions on particular questions,
(b) the agreements on principles for its own use by the Commission
[that refers to the Permanent Mandates Commission,of course], and256 SOUTH WEST AFRICA
. (c) the passage of formal resolutions by the Councilofthe Assembly."
(Ibid., pp. 219-220.)
In respect of judicial protection, Professor Wright comments that-
"....the Permanent Courtof International Justice ha no irnmediate
control of mandatory policy but the fact that it is the finalauthority
on disputes over the inte~retation of the mandates 1s a valuable
..' safeguard against destructive interpretations by the mandatories".
. (Ibid., p. 191.)
And, further, Professur Wright says :
"The ~ea~ue gives validity to general rules br confirming and
interpreting the mandates and judges the acts O the mandatories
' ,according to their conformity with these rules, possibly in extreme
cases sanctioning its judgment by transferring a mydate, but at the
sarne time it gives general advice on policy and criticizes the activity
of the mandatory according to its results. The first type of activity
:' is mainly performed through the Council and the Permanent Court
of International Justice; the second through the Council and the
Permanent. Mandates Commission.''(Ibid., pp. 192-193.)
And, continuing in this valued work, in the course of the chapter
entitled "The Establishment of Standards", the leamed author stresses
the power of the Court to judge the administration in mandated areas
inthe light of such standards, which includesreferencesto matters wjthin
the.scope of Article 2, paragraph 2, of the Mandate, such asso-called
"Native" participation in ~overnment, economic and social policy, and
educati0.npolicy .- - - -
The validity of the Applicants' contention that the obligations of
Article 2, paragraph z, of the Mandate are to be regulated by the applica-
tion of minimum legal noms, rathei than by an asserted good faith test,
is confirmed also by the terms of Article 6 of the Mandate. Article 6
reads :
"The Mandatory shdl make to tlie Councii of the League-of
Nations an annual report to the satisfaction of the Council, con-
taining full information with regard to the Territory, and indicating
the measures taken to carry out the obligations assumed under
Articlesz, 3, 4 and 5."
The phrase "indicating the mesures taken to carry out the obliga-
tions assumed under Articles 2,3, 4 and 5" makes clear, in our sub-
mission, that the authors of the mandates system envisaged no distinc-
tion of a legal character between the obligations under Article 2, as
distingüished from Articles 3, 4 and 5, As 1 have said before, any such
distinctions are made by statements in the nature of a gloss wliich, in
effect, amends the clear terms of Article 2.
The Respondent , in the Cou,nter-Memorial, contends that although
the obligations under Articles 3.4 and 5 are, in their words, "couchedin
relatively ciear and precise language", the wording ofArticle 2, paragraph
2,is "in keepin~ with its nature as an expression of an idealistic obiec-
tive". (II, p.-387.)
The Respondent ïeans heavily upon this purported distinction between
the "relatively clear" formulation ofArticles 3, 4 and5(inits words) and
the broader formulation. in terms of Article 2. This is heavily relied
upon by Respondent, particularly in support of its contention that its ARGUMENT OF MR. CROSS 257
discretionary powers are lirnited only by the requirement of good faith.
But the wording of Article 6 of the mandate agreement indicates, in our
respectful submission, that no distinction was drawn or perceived by the
authors of the Mandate between, or among, these Articles on the basis
of the method of their formulation.
The fact that no such limited scope, as contended for by the Respon-
dent in the good faith test, was ever thought by the authors to be implicit
in the sacred trust provisions, clearly appears from the purposes which
reporting requirements. authors of the Mandate as to be served by the
The crucial importance, aswe! as the scope, of such reporting may
be seen from the report submitted to the Council of the League of Na-
tions by the Belgian representative to the Council, Mr. Hymans. As
mentioned by my colleague, Mr. Moore, in his presentation to the hon-
ourable Court in Part B of this presentation, the Hymans report was
adopted unanimously by the Council. Mr. Moore has referred to this
matter in the verbatim record, at page 145, s~pra.
The report stated, in relevant part, as follows: .
"1sthe Council to content itself with ascertaining that the man-
datory Power has remained within the limits of the powers which
were conferred upon it, or is it to ascertainalso whether the manda-
tory Power had made a good use of these powers, and whether this
administration has conformed to the interests of the native popuïa-
tion?
It appears to me thatthe wider interpretation should be adopted.
Paragraphs I and z of Article 22 have indicated the spirit which
should inspire those who are entrusted with administering peoples
not yet capable of governing themselves, and have determined that
this tutelage should be exercised by the State in question asrnanda-
tories and in the name of the League. The annual report stipulated
for in Article7 should certainly include a statement as to the whole
moral and material situation of the peoples under the Mandate. It
is clear,therefore, that the Council also should examine the question
of the whole administration." (League of Nations Council, P.V.
zo/zg/14, 8th Sess., p. 187.)
It will be noted that no riference is made in the Hyrnans report,
anymore than reference is made to any proceedings of which the Ap-
plicants are aware that took place during the formation of the Covenant
or of the mandates system, to purpose, motive, intent or good faith or
bad faith governing Respondent's officials in discharging their trust.
As was logical to expect, in the light of the purposes and nature of the
sacred trust, the Council was concerned, in the words of Mr. Hyrnans in
the report unanimously adopted by the Council, "whether the adrninistra-
tion has conformed to the interests of the native population", which in
al1respects is quite a different standard thantosayor to askwhether the
interests of the "Native" population have been served according to the
best judgrnent or good faith of the Mandatory. The covenant, as Mr.
Hyrnans said, indicated the spirit which should inspire the Mandatory;
good faith of course was axiomatic, it was presumed to be an axiornatic
condition. It would be inconceivable that the authors of the Mandate
would have reposed such responsibilities in the hands of govemments
which were thought to be capable of bad faith. The Mandate was to be
discharged in a manner conformable to the interests of the population,258 SOUTH WEST AFRICA
of Mr. Wpmans, the question of the whole administration, not the con-
science of the administrator.
As 1 have noted, Respondent, in the Rejoinder, elaborates upon a
distinction between norms and standards. In Respondent's analysis
norms and standards differ not in their content but in their legal effect,
if the Applicants understand the discussion in the Rejoinder, particu-
larly at V,page 167.Thus, while norms are legal des which in objective
terms define Respondent's obligations under the Mandate, standards,
in so far as they "refer only to practices, policies or theories of govern-
ments applied by States, or advanced or propagated by politicians,
experts, authorities, scientists, moralists, etc." are not legal rules ob-
jectively enforceable against Respondent and "cannot per seand in the
absence of consent on Respondent's part, render such standards legally
binding upon Respondent". And as is to be expected in the Iight of
Respondent's basic contention with regard to the good faith test, Re-
spondent treats such standards, as defined by it, as relevant only in so
far as they provide a basis for judging Respondent's good or bad faith.
(V, P. 167.)
Respondent's distinction thus drawn appears to the Applicants to be
quite unrealistic, as the Applicants have endeavoured to show. Legal
principles and norms, as has been said, are of course derived from and
reflect generally accepted standards of social behaviour. As I have said,
experience is the life of the law. Standards are the sources from which
the law derives its application to the human condition.
AIthough, of course, it is true that some sources of the Laware looked
to by judicial tribunals and accorded greater weight than others, it is true
likewise that a court of law \vil1look to any appropriate source relevant
generally formulated or not. Itais not in the nature of the judicial process
that courts make a conceptual distinction between legal norms on the
one hand and standards on the other, irom which such legal norms are
derived and which they reflect.
In the Reply, at IV, pages 485 and following, the Applicants refer to
judicial decisions in which concepts of the sort described by Respondent
asstandards have been applied not for the purpose of showing good or
bad faith, but rather for the purpose of measuring and limiting the dis-
cretionary powers of governmental authorities on the basis of objectively
ascertained and determinable standards.
Thus, in the Corfu Channelcase this honourable Court held that the
obligations incumbent upon the Albanian Government were based "on
certain general and weI1-recognizedprinciples, namely elementary con-
siderations of humanity" (I.C.J. Resorts 1949, p. 4). And in a separate
opinion Judge Alvarez stated that the "characteristics of an international
deliquency are that it isan act contrary to the sentiments of htrmanily"
(ibid.,p. 45).These are standards.
The learned and Iate distinguished Justice of the United States Su-
preme Court, Felix Erankfurter, corlcurring in a cekbrated opinion
entitled Louisiana exrd. Francis v. Resweber,cornmented that-
"... a State may be found to deny a person due process by treating
even one guilty of crime in a manner that violates sfa?tdardsof
decencymore or las universaHy accepted". ARGUMENT OF MR. GROSS 259
He commented further-
". . . the application of sZandaydsof faiyness and justice are very
broadly conceived [and these are relevant to the issue of cruel and
unusual punishment, which was the constitutionai question involved
" in that case]. They are not the apfdication of merely fiersonaEstan-
dards 'butthe im$ersonal standards O/ society whick alonejudges, as
the organsof Law, are empowered tu enforce." (IV, p. 487.)
The use of standards in the sense in which Applicants have viewed that
concept, for purposes of measuring legal limits upon discretionary powers,
in objectively determinable ways, rather than for the purpose of judging
good or bad faith, also 'isfound further in the denia1 of justice cases to
which 1 have referred in principle. To give but one example, in Uaited
States (RobertsClairn) v. Mexico, the General Claims Commission held
that-
"Facts with respect to equality of treatment of alienand nationais
may be important in determining the merits of a complaint of
mistreatment of an alien. But such equality is not the uitimate
test of the propriety of the acts of authorities in the light of inter-
national law. That test is, broadly speaking, whether aliens are
treated in accordance with ordinary standards of civilization."
(Opinionsof Commissioners(1927p ).,100.)
It is pertinent also to cite the comment of Alwyn Freeman, a scholar
of the United States, who in his study on the InternaLionalResponsibility
of Statescomments as follows:
"The doctrine of standards is essentially one of the reasonable
activity fairly to be demanded of a civilized State,and whatever
vagueness or indefiniteness may be said to surround it proceeds
from this fact. Yet neither this vapeness, nor the possibility that
the notion of 'international standards' may Vary with deciding
agencies constitutes a juridical defect, since even in municipal
legal systems liability is frequently made to depend upon concepts
which are equally vague and variable. An illustration in point is the
concept of the ordinary, prudent man in the Anglo-saxon common
law of negligence. Such uncertainty is always present in dynamic,
livingphases of the law and is especialIy noticeable in the unplowed
soi1of the international standard." (P. 569.)
' For al1 of the foregoing reasons, Mr. President, itis respectfully sub-
mitted that the distinction sought to be drawn, in terms used by the
Respondent, between norms and standards, is in this context based
upon a misapprehension on the role of standards in the judicial process
in accordance with its true nature.
On the other side of the equation between. norms and standards-we
have been discussing standards up till now-the legal noms upon which
Applicants rely are not to be distinguished from standards upon the
basis of an artificial conceptual basis,t is our submission,Mr. President,
that Respondent's legal obligations under Article 2, parag~aph 2, of the
Mandate, are to be rneasured by legal norms which are derived, inter
alia, from political, social and scientific sources and standards. This is
the correct relationship of the concepts of standard and nom, in the
appreciation of the Applicants.
Among suc& sources of legal norms are the standards established by 260 SOUTH WEST AFRICA
competent organs of the United Nations and by the International La-
bour Organisation.
As 1have pointed out, the Applicants likewise rely upon the views of
authorities, including those of governments, of social and political
scientists and other experts, as and among the sources contributing to
and illuminative of the generally'accepted international human rights
norm, defined by the Applicants in their Reply at IV, page 493, and
which prohibits the officia1allotment of rights, privileges and burdens
upon the basis of membership in a group or race, rather than on the
basis of individual aualitv or ca~acitv.
I should now likéwith you<per&içsion, Mr. President, to consider
more specifically the minimum international standard of non-discrimina-
tion or non-separation.
Mr. President, having shown that the founders of the mandates sys-
tem intended to beçtow upon the Permanent Court of International
Justice the power of judicial review over govenimental policy carried
and having shown that Respondent's discretionary powers in the Man-h 2,
dated Territory are not limited by good faith, but rather by minimum
international standards, it remains to discuss the nature of the minimum
standards upon which the Applicantç rely assources of the legal norms
which the Applicants contend exist and are applicable in these proceed-
ings.
As shown in the Reply, at IV, pages 493 and following, there has
evolved over the years and now exists a generally accepted international
human rights legal norm of non-discrimination or non-separation on
the basis ofmembership in a group, class or race. As also is shown in the
Reply, such a norm which, as 1have said, the Applicants have chosen to
describe as a norm of non-discrimination or non-çeparation, is a basic
minimum norm, and that to fa11short of such a minimum is a fortiori
to fa11short of the more demanding obligation to promote to the utrnost
the welfare and progress of the inhabitants of the Territory of South
West Africa.
Notwithstanding universal acceptance, Save by Respondent itself
alone, so far as Applicants are aware. of such a minimum international
norm of governmental conduct, Respondent contends that the Mandate
must be interpreted inaccordance with Respondent's intentions of 1920,
and that a contemporary norm is, in the absence of new agreement
by Respondent, not capable of what it calls "subsequent insertion"
into the terms of Article 2,paragraph 2. (V, p. 123.)
Respondent seeks to support its contention by reference to the prin-
ciple of contemporaneity and by a somewhat obscure distinction between
the interpretation and the application of documents. In the Applicants'
view, for reasons which have already been elaborated in the regard
to çound application of relevant principles of treaty interpretation to
the "novel internationalinstitution" which is the Mandate,Respondent's
arguments are untenable.
In view of the widely accepted, ifnot universally acclaimed, present
international rules with respect to non-discrimination, çet out in Chapter
V ofthe Reply at IV, pages 493 to 512, it is not necessary to comment
further upon Respondent 's concluçion that :
"The onli basis upon which interfirefa otithe relevant texts
could produce a result whereby current norms govern the content of ARGUMENT OF MR. GROSS 261
the Mandate, would be if Article z was ab iptitio subject to sorne
qualification such as:
'The Mmdatory shall, when exercising its full power of ad-
ministration and legislation, give effect to such standards or
norms as may at the time of such exercise be generally appljed
by other States'." (V,p. 140.)
Respondent characterizes such a "qualification" asbeing"an obligation
of uncertain content, posing ... many difficulties of application and
giving rise to the possibility of interminable dispute". Mr. President ,
the Applicants submit that the legal dispute now presented to this hon-
ourable Court is occasioned, inter dia, precisely by Respondent's failure
to apply currently accepted norms and standards to its administration
of the Territory.
Respondent's contention that when it accepted the Mandate it would
never be bound or prepared to accept the authonty of the clearly ex-
pressed view of the civilized community with respect to elemental
aspectsofadministration of the Territory in tems of Article 2,paragraph
2,would in itself effect a decisive alteratiof the nature and purpose of
Article22 of the Covenant and ofArticle 2, paragraph z, ofthe Mandate.
It should be noted that Respondent has conceded that this basic and
minimum international standard "would, if it existed, provide an ob-
also is conceded by Respondent that if the Mandate contains such a. It
minimum basic standard, then, again in Respondent's words, "Respon-
dent's adrnitted policies of differentiation would constitute a contraven-
tion of the Mandate". (V,p. 119.1
Further, although Respondent refers to this basic minimum standard
as a "so-called" or as an "alleged" norm, no senous attempt is made by
Respondent to deny the existence per seof the standards relied upon by
Applicants. Rather, Respondent appears to content itself with attempt-
ing to demonstrate that the norm which we have labelled non-discrimi-
nation or non-separation does not exist as $art of theMandate. Indeed,
Respondent states explicity that ". .,the sole issue between the Parties
on this aspect of the case is a Iegalone, viz., whether or not the Mandate
contains such a norm". (V, p. 119.) Indeed, Respondent's arguments
with regard to the basic minimum standard, set out at V, pages 119to
141of the Rejoinder. seek to demonstrate that the standard referred to
does not exist as an element of Article 2, paragraph 2, of the Mandate.
Respondent commences its discussion of the meaning of Article z,
paragraph 2, with the comment that the generally accepted standard of
non-discrimination or non-separation was not "containedin Article 2 of
the Mandate as at the date of its execution". (V,p. 123.) Applicants, of
course, have never contended othenvise; the issue is its inl~+relalion,
not its Iunguage.
Refemng to the several rninorities treaties followingthe First World
War,Respondent correctly states that it was "completely contrary to fhe
spirit of the times to sanction any measures directed at destroylng
national or cultural groups by their forced absorption into large: or
stronger groups". Respondent deduces that, inasrnuch as the minorities
treaties were designed to protect the existence of separate national
groups, they "necessarily involve a diferentiation in the treatment of
these respective groups ...". (V,p. 124,)262 SOUTH WEST AFRICA
In the Applicants' respectful submission, Respondent's contention is
completely wide of the mark. The minorities system was designed to
provide a free choice to members of minority groups; that is to Say, such
people could, if they wished, become assirnilated into larger, or stronger,
groups. If they did not so wish, they could look to the minorities treaties
to "protect tlieir existence as separate groups". Such a concept is the
very antithesis of Respondent's policy, which is the subject of these
eliminategan)' such, or tend to eliminate any such, element of freechoices
-the inhabitants of the mandated territory are allotted rights, burdens,
privileges and statuç on the basis of their membership in a group, class,
or race, without regard to their individual quaiity, capacity, or merit.
Respondent, in an attempt to demonstrate that a generally accepted
nom of non-discrimination or non-separation was not regarded as
binding at the penod of the inception of the mandates system, contends
that the principIe of "protecting the identity of national groups ... was
alço basic to the mandate systern". (V, p. 125.)Respondent elaborates
what appears to be an irrelevant argument designed to demonstrate
that various degrees of group differentiation were approved by the
Permanent Mandates Commission, that other Mandatory Powers "also
applied policies involving various forms and degrees of differentiation",
andthat the policy of indirect rule, as it was known, neceçsarily involved
such differentiation. Such considerations, however ,appear irrelevant to
the question at issue here. The question of differentiation assuch does
not arise; if it did, the minorities treaties themselves would be subject
of attack, which they clearly cannot be. What is at issue here is, as has
been said, the officia1governmental policy of allotting rights, duties,
burdens, etc., upon the basis of membership in groups. Neither the
League of Nations, nor other Mandatory Powers, nor govemmental
authorities generally, have approved a policy which protects the identity
of "national groups" by a policy of cornpulsory separation ofsuch groups,
andthe allocation to individual membersthereof ofstatus, rights,burdens
and privileges on the basis of their membership of such a group, and
without regard to the wishes, meritç, or needs of the individuals.
During that period there were, moreover, "fore-runners" of the now
generally accepted nom, and 1 speak now in a positive sense, prohibiting
officia1discrimination or separation on the basis of group or race. The
Applicants, in their Reply, have referred to several examples.
Among these is Article 4 of the Albanian Agreement of 2 October 1921 :
"Al1 Albanian nationals shall be equal before the law, and shall enjoy
the me civil and politicai rights without distinctioas to race, language
or religion ..." (IV, p. 496.)
Similarly, in 1929 the Institut de Droit International adopted a Dec-
laration of International Rights of Man, which included provisions in
regard to the equal right of every individual to life, liberty and property.
"without distinction asto nationality, sex, race, language, or religion",
and which stated, intertalia,that:
"No motive based, directly or indirectly, on distinctions of sex,
race, language, or religion elnpowers States to refuse to any oftheir
nationals private and public rights, especially admission to establish-
ments of public instruction, and the exercise of diflerent economic
activities and of professions and industries." ARGUMENT OF MR. GROSS 263
And s wilI be shown in the discussion of the policies andpractices at
issue here, the quoted statement is directly relevant and applicable.
But the point relevant inthe context of the discussion at this moment,
Mr. President, is that although the concept of genuine "group protection"
for those who desired and required it-protection as distinguished from
coercion-was widely accepted, as it is today, such a concept has, in the
process of evolution, now become a generally accepted, basic, interna-
tional, human rights norm, which is described by the Applicants as a
norrn of non-discrimination or non-separation. Such a norm, needless
to Say, far from being inconsistent with the concept of "group protec-
tion", is complementary thereto, both in purpose and in effect.
In their Reply, the Applicants have set out relevant instruments, dec-
larations, agreements and resolutions of international bodies which
establish the existence of such a legal nom of non-discrimination or
non-separation in the sense of these terms employed by the Applicants
in their written pleadings, specjfically in the Reply, at IV, page 493.
That definition, or description, the Court may be pleased to recall, is:
.".. . stated negatively [non-discrimination and non-separation].
refer to the absence of governmental policies or actions which allot
status, rights, duties, privileges or burdens on the basis of rnernber-
ship in a group, class or race rather than on the basis of individual
merit, capacity or potential: stated affirmatively, the terrns 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".
This is our description ofthe legal norm.
Applicants further stated in their Reply that the-
"... generally accepted international hurnan rights norm of non-
discrimination or non-separation ... is evidenced by international
undertakings in the form of treaties, conventions and declarations,
by judicial decisions, the practice of States and constitutional and
statutory provisions by which such a norm is incorporated into the
body of laws of States". (IV, p. 493.)
Numerous sources for the nom of non-discrimination and non-separa-
tion are set out in enumerated sections in the Reply, at IV, pages 493 to
510. These, it is submitted, demonstrate the existence and wide accep
tance of an international legal nom of non-discrimination applicable to
the interpretation of Article z, paragraph 2,of the Mandate, and give
to that Article "a concrete and objective content" which is justiciable.
First, during the League of Nations period-this is covered in the
Reply at IV, pages 493 to 497-the substantive content of the practice
of the Permanent Mandates Commission recognized and applied the
principlcs of "equal and regular justice to all" and of the protection of
fundamental hurnan rights. This was consistent with the status of the
mandates themselves as "human rights documents". Likewise the
protective provisions of the several minorities treaties to which 1 have
referred established international rules for the protection of fundamental
perçonsigbefore the law, Purther, private bodies during this period gave1
expression to the norm of non-discrimination or non-separation. 1 have
referred to the 1929 Declaration of International Rights of Man by,the
Institut de Droit International, and the Declaration on the Foundations264 SOUTH MST AFRICA
and Leading Principles of Modern International Law, asapproved by the
International Law Association, the Académie Diplomatique Interna-
tionale and the Union Juridique Internationale in 1936, which are
both referred to in the Reply as well. Both these Declarations prohibit
discrimination on account of race.
Second, we cite the United Nations Charter at pages 497to 501 of the
Reply (IV). The norm ofnon-discrimination is cleariy enunciated in four
Articles of the Charter, namely Article I (3),Article 13(b), Article 55 (c)
and Article 76 (c). Furthermore, Article 56 provides that al1 Members
are pledged "to take joint and separate action in CO-operationwith the
Organization for the achievement of the purposes set forth in Article 55",
and one of the purposes of Article $5is that of promoting-
"... universal respect for. and observance of, human rights and
fundamental freedoms for aii without distinction asto race, sex,
language, or religion".
The legally binding character of the human rights provisions of the
highest scholarly authority, which the Applicants point out in their
Reply from IV, pages 498 to 500. Such authorities include, for example,
Judge S iropoulos andJudge Jessup of this honourable Court, Professor
Quincy ?&ri&, Paul Guggenheim, Dr. C. Wilfred Jenks and Professor
James Brierly. Furthermore, the Applicants have referred to two deci-
sions of United States high courts-Oyama v. CaEifor.niaand Fujii v.
California-which have upheld the proposition that the aforementioned
provisions of the United Nations Charter "contain legally binding com-
mitments prohibiting Member States from discriminating or distinguish-
ing on the bais of race".
Then the Applicants refer to the Universal Declaration of Human
Rights, at page 501 of the Reply(1V). Adopted by the Generai Assembly
of the United Nations in 1948t, he Declaration states in its Article z:
"Everyone is entitled to all the rightç and freedoms set forth in
this Declaration, without distinction of any kind, such as race.
, colour, sex, language, religion, political or other opinion, national
or social origin, property,birth or other çtatus .. ."
Then the Applicants refer to theDraft Dedaration onRights andDuties
of States, cited at page 501of the Reply; the Declaration was adopted
by the International Law Commission in 1949 and provides in its Article
6 that-
"Every State has the duty to treat al1 persons under its juris-
without distinctiontasoto race, sex, language, or religion."eedoms,
Also, Mr. President, we cite the Trust Territories Agreements at pages
501to 502of the Reply (IV). Each ofthe II Trust Territories Agreements
contains or contained provisions recognizing and accepting the univer-
sallyadopted norm of non-discrimination or non-separation. The several
provisions are all worded with reference to Article 76 (c) of the United
trusteeship system is "to encourage respect for human rights and fore
fundamental freedoms for al1 without distinction as to race, sex, lan-
guage or religion".
Resolutions of the General Assembly of the United Nations are refened ARGUMENT OF MR. CROSS 265
toat pages 502 to 503 of the Reply. The Applicants have ventured to
list 33 resolutions of the General Assembly of the United Nations,
ail of lvhich specifically condemn racial segregation or discrimination.
Almost a.liof these resolutions expressly state that racial discrimination,
including the plicy of apartheid, is in violation of the United Nations
Charter. Futher, most of the resolutions relating to the Territory of
South West Africa state that the policiesof racial segregation or apartheid
are in violation of the mandate agreement itself.
Councilare referred to at pageso503to 504ofthe Reply (IV). The Secunty-
Council has on three occasions expressed the view that apartheid is in ,
violation of the United Nations Charter. In the resolution of 4 December
1963,the Security Council expressed "the firmconvicfionthat the policies
of apartheid and racial discrimination ... are abhorrent to the conscience
of mankind .. .",and the Council urgently requested the Respondent,
with respect to South Africa itself, to cease the application of its policies
which, in the words of the Council resolution-
" ... are contrary to the principles and purposes of the Charter and
which are in violation of its obligations as a Member of the United
Nations and of the provisions of the Universal Declaration of Hu-
man Rights ...".
And then, Mr. President, we cite the Human Rights Covenants at
pages 504 to 505 of the Reply (IV). The Third Cornmittee of the General
Assembly has, by overwhelrning majonties, approved the relevant Ar-
ticles of the Draft Covenant on Civil and Political Eghts and of the
Draft Covenant on Economic, Social and Cultural Rights. These Articles
are referred to at pages 504 to 505 of the Reply, and clearly reflect and
reinforce the international norm of non separation or non-discrimination
on account of race or colour.
We corne to the United Nations Declaration on the Ehination of
Al1Forms of Racial Discrimination, which is referred to at pages 505 to
507 ofthe Reply (IV). The 18th Sessionof the GeneralAssembly adopted,
Racial Discrimination in November of 1963.EliminThe first seven operativef
articles of the Declaration are set forth on pages 505 to 506 of the RepIy.
They include Article 2, paragraph 3, which specifically prohibits the
justification of racial segregation by the irnplementation of special mea-
sures to develop it, and Article 5, which expressly condemns apartheid
and "al1forms of racial discrimination and separation" resulting there-
imm.
And then, Mr. President, the International Convention on the Elimina-
tion of Al1Forms of Racial Discrimination is referred to at pages 507 to
508 of the Reply. The General Assembly in 1963requested the United
Nations Commission on Human Rightç to give what it termed "absolute
priority" to the preparation of a draft international convention on the
elimination of al1forrns of racial discrimination. A draft convention had
been adopted by the Human Rights Commission, and wa. to be con-
sidered by the General Assembly in its 19th Session. The approved Draft
Convention condemns in expressis verbis "poLicies of ajxwtheid", and
reflects with clarity the internationally accepted human rights norm of
non-discrimination or non-separation on. the ground of race or colour.
It also reflects, in its Article 1, paragraph 2, the illegality of official266 SOUTH WEST AFRIC-4
sanction or imposition of measlires of development which "lead to the
maintenance of separate rights for different racial groups", a concern
which was also reflected in the Declaration an the EIimination of AU
Forms of Racial Discrimination which 1 have just discusçed.
With regard to United Nations standardsand findings, in their written
pleadings the Applicants have çummarized certain findings of United
Nations organs or agencies which deal with the adverse effects of the
policy and practice of racial separationin education, ilateralta,in depen-
dentterritories; these are cited in the Reply at IV,page 398and iollowing.
As is noted in the Reply, the conclusion has been reached by United
ciple, is incompatible withtio(a)nthe broad goals of education, (6) thein-
basic rneaning of education, (cj the principle of equal opportunity, and
(d) the goal of unification of dependent territories. Respondent includes
in its reply to these conclusions of the United Nations the irrelevant
comment that it "is inno way obliged io comply with the said 'reqiiire-
ments' in the case of South West Africa"; this is the characterization in
the Rejoinder, VI,p. 161. The implication that Respondent has adduced
seemç to be that the United Nations findings or conclusions to which 1
have referred are asserted by the Applicantç to impose specific legal
requirements. This iç gratuitouç interpretation on Respondent's part.
The Reply makes it explicitly clear that the concIusions of the United
Nations agencies are referred to asindicative of "the purposes and prin-
ciples of administration of dependent temtories". Respondent, 1 çub-
mit, distorts even more the Applicants' reason for adducing the con-
clusions of the United Nations agencies on these matters by the protes-
tation by Respondent that the propriety, on the part of the Court, of-
".. .inquiry by it as to cornpliance or otherwise by other Govern-
ments with 'requirements' or 'standards' which have been laid down
by United Nations organs in respect of territories administered by
such Governments must be open to serious doubt". (VI,p. 161.)
Respondent thuç protests the "propriety" of an f'inquiry" "as to com-
pliance or otherwise by other Governrnents with 'requirements' or 'stan-
dards' which have been laid down ..,",etc. The Applicants fully concur
sider or pass upon, or enquire into, policies or practices regulating the
affairs of any State, territory or society other than the territory in
question in this proceeding. It has not been, and it is not now, the inten-
tion of the Applicants to suggest otherwise, and that of course waç not
the purpose for which reference was made in the Reply to the findings of
the United Nations agencies.
Respondent, in its written pleadings, quarrels with the application by
United Nations organs of their conclusions in respect of particular areas
(V1,pp.161-163).Respondent's comment5hereseem to bewide ofthemark.
The point is that these purposes and principleç, which are set forth in
the Reply at IV, page 398 are embodied in constitutions of agencies of
the international organization Iegally vested with supervisory functions
over the Mandate. They are clearly relevant and, indeed, persuasiv:, as
sources, dong with others, which evidence the existence of a widely
and, in this case,oficially accepted standard, irreconcilable with govern-
mentally enforced separation on the bais of mernbership of a race or
group, without regard to individual rnerit, quality or capacity. ARGUMENT OF MR. GROSS 267
Then the Applicants cite the International Labour Organisation Con-
stitution and Conventions, at pages 508 to 509 of the Reply (IV). The
Declaration of Philadelphia was adopted by the International Labour
Conference in 1944and was incorporated into the Constitution of the
International Labour Organisation. It contains an unequivocal recogni-
tion of the principle of equality of opportunity and treatment, without
regard to race-a principle enunciated in greater detail by the Conven-
tion concerning Discrimination in Respect of Employment and Occupa-
tion-which was adopted by the International Labour Conference in
1958-and expressed with cornplete specificity in the Convention con-
ceniing Social Policy in Non-Metropolitan Territories of 1947. The
relevant provisions of these Conventions likewise are set forth in the
Reply, at IV, pages 508 to 509.
Then, Mr. President, regional treaties and declarations are cited at
instruments, embodying and expressing the normitionoffnon-discriminational
and non-separation on account of race, Applicants have set forth the
relevant, and unequivocal, provisions of the European Convention for
the Protection of Human Rights and Fundamental Freedoms, the Charter
of Organization of American States, and the American Declaration of
the Rights and Duties of Man-adopted at the Ninth International Con-
ference of American States. These are cited ai pages 509 to 510 of the
Reply .
That the nom of non-discrimination, or non-separation, should have
been codified as a fundamental minimum standard by regional associa-
tions of States of the world, serves again to confirm its character as an
intemationally recognized minimum of conduct and of obligation in the
interpretation and application of international undertakings, including
the Mandate, of a human rights character.
The Applicants respectfully submit, on the basis of the foregoing in-
struments, declarations, agreements and resolutions of international
bodies to which 1have referred, that :
(a) an international legal norm does exist which may fair$ be described
as a norm prohibiting officia1govemrnental allocation of status,
rights, duties and privilegesuponthe basis of mernbership ofa group
class orrace, without regard to individualrnerit, capacity or quality;
(b) that such legal norm isapplicable topand determinative of. Respon-
dent's obligations in terms of Artic2, paragraph 2, of the Mandate;
and
(c) that this honourable Court should apply such legalnorm in the light
of the standards, ~vhichhave been referred to, in adjudicating the
legal dispute which the Court has held to exist between Applicants
and Respondent, in respect of the interpretation and application
of Article2, paragraph z,of the Mandate.
In conclusion of this Part D, Mr. President, therefore, the Applicants
respectfully submit, for the reasons set forth in the Applicants' Memo-
rials and in their lieply, as well as those adduced, and to be adduced,
in the Oral Procecdings, and on the basis of the norms relevant to a
determination of Res ondent's obligations as stated in Article 2,para-
graph 2, of the Man $ ate, that Respondent's canduct has been, and is,
in violation of these obligations.268 SOUTH WEST APRICA
In Applicants' subrnission the policy and practice of apartheid is ipso
jactaa violation of inteinational law, in terms of Article 38,paragraphsI
(6) and (c),of the Statute of this honourable Court.
The international custom outlawing discrimination and separation,
together with the wide introduction of such a norm into the general
principles oflaw recognized by civilized nations, warrants a determina-
tion that the policy of apartheid, as defined in the pleadings of the Ap-
plicants, strikes at the heart of the Mandate and Article 22 of the Cove-
nant of the League ofNations, and is a violation of international law.
Even in the absence of such a determination, hawever, Mr. President,
itissubmitted thatthe policy and practice ofapartheid or separate devel-
opment, as deiined and analysed in the hlernorials and in the Reply,
violates Respondent's obligations, asstated in Article22 of the Covenant
and Article 2, paragraph 2,of the Mandate, as measured by the relevant
and generally accepted legal norms and standards described in the Me-
morials, the Reply and these Oral Proceedings.
Having concluded the Applicants' presentation of Parts A, B, C and D,
of this phase of the Oral Proceedings, the Applicants would, with the
permission of the President, state their submissions upon the basis of
the relevant allegations of fact and statements of law set out in the
wntten pleadings and in the Oral Proceedings herein, and supplemented
by such otherstaternents of fact and law ashereinafter may be made.
May it please this honourable Court to adjudge and declare that:
I. South West Africa is a Territory under the Mandate conferred upon
His Britannic Majesty by the PrincipalAltied andAssociated Powers, to
be exercised on hisbehalf by the Government of the Union of South
Africa: accepted by His Britannic Majesty for and on behalf of the Gov-
ernment of the Union of South Africa, and confirmed by the Council of
the League of Nations on 17December 1920.
z. The Republic of South Africa continues to have the international
obligations stated in Article22 of the Covenant ofthe League of Nations
and in the Mandate for South West Africa as weUas the obligation to
transmit petitions from the inhabitants ofthat Territory, the supervisory
functions to be exercised by the United Nations, to which the annual
reports and the petitions are to be submitted.
5. The Republic of South Africa, by word and by action, in the respect
set forth in Chapter VI11 in the Memorials, has treated the Territory in a
manner inconsistent with the international status of the Territory, and
has thereby impeded opportunities for seIf-determination by the in-
habitants of the Territory; that such treatment is in violation of the
obligations of the Republic of South Africa as stated in the first para-
graph of Article 2 of the Mandate and Article 22 of the Covenant; that
the Republic of South Africa has the duty forthwith to cease the actions
surnmarized in section Cof Chapter VI11of the Memorials and to refrain
from sirnilar actions in the future;and thatthe Republic of South Africa
has the duty to accord fullfaith and respect to the international statusof
the Territory.
Next submission :
The Republic of South Africa 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 haçtaken to
carry out its obligations under the Mandate; that such failure is a viola-
tion of its obligations as stated in Article 6 of the Mandate; and that the ARGUMENT OF MR. CROSS 269
Republic of South Africa has the duty forthwith to render such annual
reports to the General Assembly.
Next subrnission, Rlr. President.
8. The Republic of South Africa has failed to transmit to the General
Assembly of the United Nations petitions from the Territory's inhabi-
tants addressed to the General Assembly; that such failure is a violation
of itç obligation as Mandatory; and that the Republic of South Africa.
has the duty to transmit such petitions to the General Assembly.
aFinally.
9. The Republic of South Africa, by virtue of the acts described in
Chapters V, VI, VI1 and VlII of the Memorials, coupled with its intent,
as recounted therein, 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 dutiesas stated in Article 7 of the hlandate
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 ofthe Republic of South Africa directly orindirectly to modify
the terms of the Mandate.
The Applicants respectfully reserve the nght to request the Court to
declare and adjudge in respect of events which may occur subsequent to
this phase of the Oral Yroceedings, including any event by which con-
stitutional or juridical relationships now existing may be changed if, and
to the extent that, relevant to the issues herein.
In conclusion, Mr. President, with my profound gratitude to the Court
for the patience it has shown in thisrather lengthy discursive exposition,
1 terminate, on behalf of the Applicants, the first phase of these Oral
Proceedings, and reserve to the subsequent phase a fuiler discussion of
issues involved in Article 2, paragraph 2, of the Mandate, including the
legal issues there involved and the submissions relevant thereto, which
1 have not now presented to the Court, and al1other issues and prayers
for relief which may seem to the honourable Court to be appropriate to
grant.
Thank you. Mr. President. 6. ARGUMENT OF MR.DE VlLLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC
HEAKIXCS OF 30 MARCHTO 14 APRIL r965
hlr. President and honourable hlernbers of this Court, it ishardly
necessary for me to say that this case raises issues of the greatest im-
portance, not only for the govemments involved, but alsa, and in par-
ticular, for the very large nmnber of human beings whose very liveç
may be affected by the outcome.
At the heart of tliese proceedings there lies the Applicants' charge
that the Government of the Republic of South Africa has violated its
fundamental sacred trust obligation under the Mandate, that is the
obligation to promote to the utmost the material and moral well-being
and the social progress of the inhabitants of the Territory of South
West Africa. All other issues and aspects othis case are subservient to
this particular one, atany rateas far as their practicat significance is
concerned. That this is so, Mr. President, is apparent first of al1 from
the antecedent history leading up to this litigation. Thataisubject on
which Ishall have some more.to say at a later stage. Secondly, it emer-
ges from the written pleadings which have been filed, about which 1
shall also have some more to Say at a later stage. But most important,
Mr. Presjdent, it emergesalso from theoral addresses of theApplicants'
representatives to which we listened last week and the week before, al-
though these addresses were, in the main, intended to be confined to
the legai issues between the Parties.
At the very ope~ngof kis address on Thursday, the 18th of this
month, my learned friend,&Zr : ross, stateas foiiows:
"... seldorn in the hiçtory of judicial administration can there
have been involved legal issues, the determination of which more
profoundly will affect the 'material moral well-beinand the social
progress' ofa multitude of individual human persons". (P. 107,
sup...)
Mr. President, at least in that one respect, iin no others that 1 can
see for the moment, there seems to be agreement between my learned
friend and mysell. He added, very shortly afterwards, on the same
page of the record :
"The Applicants have not sought judicial recourse in order to
requite a narrow material or selfish interest peculiar to themselves.
[I skip somewhat] The Applicants' legaI interestencompasses
nothing less than observance by the Respondent of the totality of
its legal obligations under the 'sacred trusofthe Mandate."
That, then, Mr. President, is the fundamental issue-allegedviolation
by the Respondent of the sacred trust regarding the well-being and
progress ofthe inhabitants of Soutli West Africa. There are of course
certain legal issues to be dealt with before this fundamental, crucial
issue is reached, Depending on the outcome of those legal questions,
itmay be that this particular chargemay not arise for decision at all. ARGUMENT OF MR. DE. VILLIERS 271
But, Mr. President, there can be no doubt about it that that is the
$;ce de rksisfance at .which the Applicants have set their targetç.
My learned fnend, Mr. Gross, in his opening oral address surnmarized
this charge concisely in these words-"The policy of apartheid, as prac-
tisedin South West Africa, is repugnant to the Mandate". (P.113, sztpya.)
1repeat, Mr. President, "The policy of apartheid, as practised in South
West Africa"-a fundamental, factual question that is alleged to be
"repugnant to the Mandate".
My learned friend proceeded to refer to criteiia on which he subrnit-
ted that this charge was legally determinable. 1 shall deal with those
criteria in the course of our legal argument, which we also intend to
present before dealing. with the factual considerations involved in the
issues on the merits, in terms of the general arrangement at which we
have arrived.
.But, MT. President, there is one respect in wkich I should like to
depart from that general scheme of things. There is one aspect of the
canvassing of the factual side of this case to which1 would like to refer
straight away because of the effect may have onpractical arrangements
for the further conduct of these proceedings-arrangements whicli may
have to be made well in advance in order to serve their purpose and in
order to avoid unnecessary delay. 1refer,Mr. President, to the possibility
of an inspection in locoas a means of assisting this Court in coming to
a just conclusion on .the factual aspects of the case. The Court will no
doubt be aware that we were desirous of raising this matter at the very
outset of the proceedings, even before the presentation of the Applicants'
case, but, in view of the fact that the necessary agreement could not be
reached in that regard, we have had to await our normal turn, which
ha now arrived. We have considered waiting with this application until
after disposal of the legal arguments, but that wouId appear to involve
a further delay of possibly some weeks and consequently, Mr. President,
in view of the time factor 1 have mentioned, we have considered it best
not to delay the matter any further but to raiseit straightaway.
On Saturday morning, during tlie Coiut's recess, we advised the rep
resentatives of the Applicants that we would raise this matter this
morning and we also advised them that we would add in one respect to
the proposal as previously comrnunicated to them. We also informed
them that we would have no objection to a deviation from normal pro-
cedure so as to enable .them to reply at once to this proposai, if they
should wish to do so, or,as soon afterwards as it might suit them, even
if that should mean breaking into our legal argument. But that, of
course, hlr. President, ia point on which they will have to please them-
selves, subject of course to the wishes of the Court. Our respectful sug-
gestion is that this ia rnatter which should not be delayed unduly.
Now, Mr. President, before 1 put the exact content of the proposa1
to the Court, rnay1 be permitted some brief observations as a back-
ground thereto, and in support thereof.
In their pleadings, the Applicants go so far as to assert that, in regard
to the Native inhabitants of the Territory of South West Africa, the
South African Government has not only failed to promote their well-
being and progress tathe zltmostbut that it has failed to do so toany
significa?tdegree whatever. Those words whicli I have stressed 1 quote
from the Memorials, 1,aipages 108 and 162. The Applicants proceed to
allege that Respondent's efforts have in fact beeladirectedto theopposite272 SOUTH WEST AFRICA
end. That we find in the hlemorials, 1, at page 108. Now these charges
are,of course, strenuously denied by us. In the pleadings that have been
filed we have dealt at some considerable length with the efforts and the
sion undertaken by the Respondent Governmentsuit of ,especially as regards
the Native inhabitants of South West Africa.
With special reference to the practical realities of the situation in
South West Africa, Mr. President, the South African Government has
attempted to demonstrate why it is sincerel convinced that itsmuch-
maligned policies are in fact those best suitecfto the ideals of the sacred
trust. In these expositions we have not spared any effort whatsoever to
give the Court the fullest measure of information possible, in presenting
al1the relevant facts that the Court might consider helpful in coming to
a decision. And, Mr. President, we are not leaving the matter at that-
at the presentation of the written material to the Court. As we have
already notified the Court, we intend presenting the testimony of wit-
nesses and experts, testimony that cari be tested by the ordinary proces-
ses of cross-examination and the like, in order to assist the Court in
coming to a just conclusion.
But, Mr. President, in all these expositions, as well aç in the issues
with Ethiopia and Liberia which have ernerged therefrom, one factor
has arisen constantly, a factor with which it is alrnost impossible to deal
adequately on paper or in speech, and that factor, Mr. President, is the
question of difference between Afncan circumstances, African realities
and Africanstandardsand those pertaining to, Say,American, European
or Asian countries and peopIeç. These differences, in so far as they are
relevant to the present proceedings, are, in some respects, of very great
significance-in some respects they are of lesser importance; in part,
they are readily apparent to the searcher after truth, but in part, Mr.
President, they are extremely subtle. And in our submisçion it is quite
clear that, in view of its very nature, African reality is something which
cannot be conveyed properly and adequately merely by the spoken
and the wrjtten word. African reality requires to be seen in arder to
be appreciated properly and effectively. And that, Mr. President, is a
fundamental aspect, a fundamental reason, in support of this applica-
tion which I am putting to the Court.
It is, in our submission, no doubt important in any lalv suit that the
court is to be informed asfully and as adequately aspossible of a11
relevant facts which could Iiave a bearing on each decision. But, Mr.
President, that truism can hardly be dernonstrated in a more vivid
perspective than in the present case because this is no ordinary case.
The issues involved in this case, and the decision which the Court is
ordinary limits.ake, have implications which extend very far beyond
The proceedings, as the Court would know from the pleadings, are
the culmination of a vehement campaign which has been waged against
the South African Government for a long period and persistently in the
international political arena, particularly in the United Nations. The
leaders of that campaign,who are represented herein by the Applicant
States, like to portray that campaign as sornething in the nature of
a holy crusade of modem times-as something required to liberate fel-
low human beings from conditions which are said to be worse than sla-
very. That is the way in which this carnpaign isportrayed from the ARGUMENT OF MR. DE VILLIERS 273
side of the adversaries of the South African Government in this respect.
From the South African point of view we see that campaign as being
one of abuse and vilification, motivated on the part of its leadersby
purely political objectives with very littleif any, bearing on the real
merits of administration of the Territory of South West Africa, or the
real interests and needs of the population of that Territory. 1 know,
Mr. President. that that isa point on which my learned friends are par-
ticularly sensitive and 1fully expect protestations to high heaven about
this. But protestations or no protestations, this is what we are going
to demonstrate. The record is, in our submission, particularly clearon
that point. 1 do not want to elaborate it now.I shall do so in the presen-
tation to the Court of Our case on the merits. At this particular stage
my only concern isto point out to the Court the extraordinary implica-
tions of this dispute of which a phase is now being conductedinthis Court
in the present proceedings.
Mr. President, in regard to this carnpaign, rnoreover, we dso point
out in the pleadings that the South African Governrnent has hardly ever
had a proper opportunity of defending itself.The reason for that is that
the campaign was waged in organs of the United Nations under circum-
stances where there was a dispute about the fact whether those orgms
had any supenrisory jurisdiction in respect of South West Africa at all.
The South African Government was put in this difficult position that it
had to guard itself against what it regarded as an assumption of juris-
diction on the part of organs that did not have such jurisdiction, and
an assurnption moreover of power which could be extremely dangerous
in the circumstances.
Those were the conditions under which South Africa had to defend
itself, if at aI1, against the ments of these attacks made upon it, and
those arethe circumstances under which, asI have said, it was harnpered
in the presentation of its case on the merits.
hlr. President , it is not only in regard to these antecedents of the case
and in regard to the motivation mbehindit that there is such an extreme
divergence between the attitudes of the Parties. When we corne to the
merits on the policy aspects, when we corne to the policies which are
suggested should be pursued by the South African Government in pur-
suit of the sacred trust, we find an equal if not a greater, divergence
between the Parties,
We find that the Applicants advance that a multitude of people is
suffering as a result of a policy which they allege to be oppressive and
tyrannical. On the other hand, the Respondent denies these allegations.
The Respondent saysthat its policies are airned at thu$lijtmentof al1
the peoples concerned, at making it possiblefor al1of them to live together
in circumstances of friendship, harmony and CO-operation,on the basis
of full recognition of the hurnan dignity of all of them. The Respondent
çays also, Mr. President, that although the situation and the problems
attaching to it are admittedly very difficdt, and although no solution
can be said to be perfect, very real, steady and substantial progress is
in fact being made in the Territory with the people concerned inpursuit
of these idealsand in pursuance of the policies of the Respondent.
The Respondent gaes further, Mr. President; it points to the alter-
native policy which the Applicants very clearly suggest in the pleadings
as the one that ought to be adopted and pursued by the South African
Governent in South West Africa, That is a policy of attempting to2 74 SOUTH WEST AFRICA
.treat al1the peoples of South West Africa as an integrated political unit
with universal adult suffrage. Respondent states, Mr. President, as its
fim conviction, that this alternative is likely to lead to untold mise-
and strife to the probable extent of violence, bloodshed and chaos, of a
nature similar to what is unfortunately experienced in other parts of
Africa.
In Respondent's view, hlr. President, this would be a situation that
might be pleasing to revolutionaries and their associates, but hardly
to anybody else. And, Mr. President, Respondent points out that this
campaign, of which these proceedings form part, is quite openly airned
not only at conditions in South West Africa, but also at conditions over
the whole of southern Africa, with the same implications and prospects
for al1of the peoples concerned. When we take those factors into account,
Mr. President,-these crucial issues and their practical significance-
then it becomes evident, in our submission, that this case can indeed,
in my learned friend's lords, be said "profoundly to affect the well-
being and progress of a multitude of individual human persons", in a
much larger sense than the representatives of the Applicants are appar-
ently prepared to acknowledge.
Itis hardly necessary to add, Mr. President, that in these circumstan-
ces it is, in Our respectful submission, imperative in a particularly mean-
ingful sense that no stone should be left unturned to place at the Court's
disposa1 every possible means of enlightenment in order to enable itto
corne to a just conclusion on these issues with these implications 1 have
mentioned.
hlr. President,inmaking these comments we realize full well that the
Applicants have indicated a certain attitude in regard to the facts on
the record which may in a sense be said totend towards curtailing the
issues of facts to the minimum. They have, asthe Court is aware, indi-
cated that, subject to argument as to relevance, they do not dispute anp
of the facts, asdistinct from inferences from facts, which are set out in
the Respondent's pleadings, Save in so far as they may indicate other-
wise in their pleadings or in their presentation of their case to the Court.
But as 1 have just pointed out, hlr. President, the Parties have arrived
at tremendous extremes of divergence as to the evaiuation of these facts;
asto the conclusion at which the Court is to arrive in regard to policies
to be applied with a view to promoting the well-being and progress of
the inhabitants of the Territory. This very extreme divergence makes it
evident,in Our submission, that the major sphere of contention between
us relatesto the meaning, to the value and to the weight to be attached
to the facts in coming to a conclusion about policies.
hfr. President, it is self-evident that for the purposes of deciding such
an issue the facts have to be properly kwown; they have to be properly
underslood and they have to be vie~vedin proper pers ective in relation
to one another and to policies, theories and principlestgat may be raised
for consideration. OnIy then, in our submission, can proper weight and
value be attached to the facts, and it is, amongst others, this ~vhole
process of weighing, of analysing and understanding in perspective
that we referto under the tem "evaluation and adjudication". It seems
to us to be a task on which any court would welcome any assistance it
could get, and it is rnainly for this very important purpose, Mr. President,
that we intend to cal1 witnesses and experts and for which we are pro-
.posing this inspection irloco. ARGUMENT OF MR.'DE VILLIERS 275
It may also be desirable for me, Mr. President, to refer very briefly to
the different attitudes taken by the Parties in regard to the basis upon
which there cm be adjudication of the charge regarding alleged violation
of Article 2 of the Mandate-regarding the well-being and progress of
the inhabitants. As the Court knows, our first contention in that regard,
aç to the basis or criterion for adjudication, is tliataoproper construc-
tion of the Mandate, and on viewing the probabilities in that regard,
this Court waç not intended to adjudicate on issues of that nature at
all.Of course, if that proposition is to be accepted thenno further ques-
tion asto a decision of disputed facts, or of evaluating those facts, or
of applyingpolicies to those facts .,ould arise forthis Court.
But, Mr. President, our alternative is that if the Courtfin& there isa
basis upon which it can adjudicate, that bais is, in our submission,
confined to testing whether there has been a legal use, a proper use, of
the discretionary powers conferred upon the South African Government
in that regard, or .whether there has been an abuse of power. We submit
that in the practical considerations which apply to this case, the only
possible basis upon which there could be an allegation of an abuse of
power would be of thenature which appears to be suggested in the Appli-
cants' pleadings, namely that of bad faith on the Kespondent's part-
bad faith in the sense that the Respondent ha been granted powers
with a trust purpose, with a purpose of promoting well-being and pro-
gress of the inhabitants, and that that power is now beiiig abused ad
applied with a different purpose, namely the purpose of oppressing
certain of the inhabitantsof the Territory for the benefit of other inhab-
itants.
That is the nature of the charge as we understand it, as it was brought
againstu in the Memorials of the Applicants; that is the way in which
we have analyçed it; that is what we suggest as a matter of law to be
the only possible basis upon which thcre could be adjudication on the
question ahether the discretionary power, the discretionary function,
the discretionary obligation of the mandatory power, has in this respect
been-violated.
Now my learned friend &Ir. Gross, suggested that if that basis were
to be adopted for adjudication, then that also would be equivalent to
no adjudication at all. 1must frankly Say that 1do not understand that
suggestion at all. The question whether, in the sense 1 have described,
a governmental power is imbued with good faith directed at the autho-
rized objective of the powers given to it, or whether it is imbued with
bad faith directed at an unauthorized objective, that surely, hIr. Yresi-
dent, must under aElcircumstances be a question of fact.1t isa question
of the type which arises regularly in municipal systems where there is
an esercise of a power of review on the part of a court of the very ques-
tion lvhether there has been a violation ofa discretionary power or duty
by some authority, some body, some individual person, some incurnbent
of an office.
In some legal systems, as far as we know, there are special courts
which deal with this type of case-in deciding ~vhether there ha~ been
an abuse of power on the basis of the type of principle I have men-
tioned-and particularly, in an appropriatc case, on the bais of good
or bad faith of the person or body concerned.
In some cases, ordinary courts of the land-the superior courts-fulfil
that function and decide cases on the baçis of this criterion. But, Mr.276 SOUTH WEST AFRlCA
President, the point 1 want to stress is this, that in al1 those instances
issues of fact, where necessary. It calls also, and under al1circumstances,
for a proper understarading,for a proper evaluatiop~f,or a proper assess-
ment, of alEthe facts involved in a given situation. Now, that is particu-
larly the case where the allegation of the party alleging bad faith takes
a particular form, which it very often does in proceedings of such a
nature. The form of the degation is very often this, that the action, or
decision, of the person or body concerned, is so manifestly wrong. so
obviously unfair, so clearly inhumane, or sornething sirnilar, that that
authority could not honestly and genuinely have corne to its conclusion;
that as a matter of inference there must have been something of the
nature of bad faith,or an ulterior motive on the part of suchan authority
or person. That is the form that an allegation of this type very often
takes.
Itappeared to usto be the formof the charge which was brouglit
against us also by the Applicants in the Memorials (1), where they
said, Mr.President, at page 104thereof, that the issues regarding Article
2 "do not involve conjectureM-those are their words-so that "differ-
ences of opinion codd aise" about thein. They say that is not the type
of situation that we have here at all, where there could be conjecture or
differences of opinion. Their allegation is, asstated in the Mernoriah,
that Respondent's violation of duty regarding the well-being and pro-
gress of the inhabitants is "beyond argumentu-those were their rvords.
Mr. President. it is hardlynecessary to stress how important evaluation
of the facts is with a view to adjudication upon such an averment and
an enquiry along those lines.
Now it is true, Mr. President, that in their Reply the Applicants indi-
cate a different linof attack. They Saythat the criteria for adjudication
on the issue relating to welI-beingand progress are to be objective ones-
objective critena-for determining the question whether Respondent's
policy and conduct are, or are not, in violation of its obligations under
the Mandate. And they introduce for this purpose of objective evalua-
tion so-called univedy accepted noms and standards, as appli.
by civilized governments in the government of their peoples and terri-
tories. And they Say, in effect, Mr. President, that South Africa is not
complying with the minimum standards involved in these universally
accepted practices.
Now Our answer to that, Mr. President, is that the Applicants are,
to a very large extent, confusing in their submission a question of
method with a question of principle; the principle being the factor
that relates to standards, the method being something completely
different.
We are dealing with the problem of a number of different peoples,
with different cultures, with distinct identities, living in one geographi-
cal territory. The principle involved, the objective, the standard or the
of everybody concemed; of making it possible for them to live in happi-s
ness, in harmony and full self-realization. That is the principle. The
method is the question "How does one set about that?"-"How does
one set about achieving that principle?" Does one set about it by at-
tempted integration, as is suggested in this particular case bythe Appli-
cants, or does oiie set about it on the basis of recognizing the separate ARGUMENT OF MR. DE VILLIERS
277
identity of the various units comprising the whole, of respecting that
separate identity, of developing upon that basis in order to find a sound
method of future CO-operationbetween the various peoples concerned.
That is the question of method, as distinct from standard.
Mr. President, in al1cases where there are plural societies of this na-
ture, the ançwer to be arrived at on the question of method isnot neceç-
sarily thesame.
instance, the Tamils have been, to regardlarge extent, repatriatedoto the
Indian continent. That is the method for a solution sought for the par-
ticular problem existing on that island.
In the case of Cyprus a different solution is being attempted, in the
tragic circurnstances that apply there. Whether that is the correct soIu-
tion, whether it will prove to be the correct one in the course of time,
1am unable to Say. I do not suggest that 1 know enough of the circum-
stances there to beable to suggest an answer to that question, but the
point 1 wish to make, Mr. President, is that the solution to be found to
a problem of this nature depends upon the merits of each particular
case. The very point 1 wish to make is that one is not to judge, or to
prejudge, a problem of that kind without knowing al1 aspects of the
facts involved in the particular situation.
It is, in Ourrespectful submission, cornplete nonsense to Saythat there
is a universally accepted standard applicable to the method to be ap-
plied in al1circumstances where a problem of this kind anses. That is a
complete confusion between the question of method and the question
of standard orprinciple,
In sofar, Mr. President, as these suggested universally accepted norrns
and standards do involve principles at all,they are indeed principles
of a somewhat elementary character which are, in fact, universdly
accepted, such as principles to the effect that thereis to be no oppression.
Then, Mr. President, the only question involved is whether, in a partic-
ular situation, where a particular problem arises, the atternpts ata
solution for that problem are to be viewed as involving oppression or
asinvolving avoidance of oppression. 1 am just using the example of
oppression; there are other elementary noms of good conduct, of ideals,
that one puts in that regard, which also, indeed, are accepted, not the
least by the Bespondent Government. 1 ernphaçize, however, that when
it cornes to a problem of fmding a basis for different peoples to livein
harrnony with one another, then it becomes a question of method. If
one thinks of standards in this regard at all, one has to investigate the
facts of the particular situation very clearly in order to see whether there
is indeed anyvioIation of generaliy accepted standards, or whether there
is fuIi compliance with them and a mere differcnce of opinion asto what
would be the best method of compliance with them.
Sothat, Mr. President, 1ernphaçize that in whichever way the question
of adjudication on the merits of the cornplaint regarding Article 2-well-
being and progress-is considered, on whatever basis one approaches
that adjudication, the one suggested by my learned friends on behalf of
the Applicants, or the one we suggest, it cornes back to the same therne
properly understood and seen in their perspective. Mr. President. it is be
against this background, and for these reasons which 1have mentioned,
that we propose this inspection. It is against the background of the278 SOUTH WEST AFRICA
extraordinarily \vide divergence between the Parties, both in respect of
the motivation behind these proceedings and in respect of the merits of
importance of ttppreciating al1aspects of the facts, and particularly thee
factor which I mentionedearlim, the importance of seeingAfrican reality,
as distinct from just reading or hearing about it.
Mr. President, we submit respectfully, for these reasons, that an in-
spection of acertain minimum number of African territories is absolutely
essential for a just and proper adjudication upon the factual aspects of
the crucial issues regarding the promotion of well-being and progress.
We contend further, Rlr. President, that if the purposes which 1 have
mentioned are to be properly served, then various categories of States
or tenitories ought to be included in the operaiion. Ive submit that,
apart from South West Africa, and portions of the Republic of South
Africa, there ought to be included African States fdling both in the
category of the Applicant States which have for a long time been in-
dependent, and,hfr. President, in the category of newly independent
States which were until recently under colonial rule or trusteeship ad-
ministration. It seerns evident that considerations pertaining to these
categories of States-long-independent ones or newly independent
ones-would not necessârily be the same.
Mr. President, on the specific authority of the South African Govern-
ment, 1 hereby propose that such an inspection be undertaken, either
by the Court, or by a committee of the Court, whichever rnay be pre-
ferred, and at an opportune time to be decided by the Court, after con-
sultation with both Parties. Likewise on specific authority, Mr. Presi-
dent, 1 hereby offer every practical assistance and CO-operationat the
command of the South African Government with a view to putting this
proposa1 into practical effect.
it falls into three parts, the first of these parts being itself sub-divided
into two sub-parts-if 1 rnaycal1them that.
Firstly, we propose and offer to the Court, or to its committee, as rnay
be decided, an inspection of the Territory of South West Africa. WCdo
not wish to impose any restrictions in that regard. In addition to
matters to which the Respondent itself would wish to draw the attention
of the Court, or the inspecting committee, this part of the inspection
made in the Territory may include anything which the inspecting body
itself rnay wish to see, or which the Applicants rnay wish to bring to its
attention.
Mr. President, while the South African Government does not lay any
cIairn to perfection-no earthly government could do that-it certainly
considers that in relation to the issues in this case it has a great deal
which it would like to show to such an inspecting committee in South
West Africa, and nothing to hide from it, The invitation naturally in-
cIudes provision for representativcs of both Parties to accompany the
inspecting body. Practical details about itinerary, the size of the travel-
ling group and soforth could be arranged by discussion,or by such other
means as the Court rnaythink fit,
In addition to such an inspection of South West Africa, this part of
our proposal encompasses, as a distinct sub-part thereof, a limited visit
to the Republic of South Africa itseIf-limited, that is,in the sense of
being confined to matters that are relevant in respect of South West ARGUMENT OF MR. DE VILLIERS 279
Africa. As the Court will readily appreciate, there are reasons of principle
and relevancy why this part of the proposai cannot be so completely
unLimited and unqualified as in respect of South West Africa itself.
The Court is asked in this case to adjudicate regarding policy and con-
duct in respect of South lest Africa, not South Africa. Apart, therefore,
from precepts of relevancy which the Court itself would no doubt wish
to impose and observe for that reason, the South African Government
considers that ithas a special responsibility itself in this regard, namely
to guard against the danger that an act of courtesy on its part may be
misconstrued assubmission of its domestic aifairs to adjudication in
wholly inappropriate and hasnt-never been intended. At the same time,be
Mr. President, as the pleadings show, there are matters within the
Republic which, within a limited sphere,are relevant to the adjudication
in respect of South West Africa. In the circumstances our proposa1 is
that the extent and particulars of a visit to the Republic be determined
in consultation with the South African Govemment, with due regard to
any wishes that the Court and any of the Applicants may express in
respect thereof, What applies to the Republic applies also to the area
of Walvis Bay, whichis part of the Republic and not part of the Territory
of South West Africa.
Secondly, Mr. President, wepropose that a visit tothe Applicant States
Ethiopia and Liberia be included, for the purpose, and to a sufficient
extent, to enable the Court orits committee to form a general impression
of comparable conditions and standards of the material and moral weil-
being and social progress of the inhabitants concerned; a limited pur-
pose, lirnited to what 1have just mentioned. The SouthAfncan Govern-
ment is fuiiy aware of the fact thatitis its ownpolicies and achievements
in South West Africa that stand indicted, andnot those of the Applicant
Governrnents in their own countries. Nevertheless, Mr. President, in our
subrnission a visit tothese countries would yield information very higkly
relevant to the particular purpose, though a limited one, which 1 have
mentioned. For the reasons I gave before, it is ahost impossible for visi-
tors frorn outside Africa to view and evaluate well-being and progress in
an African territory like South West Africa fairly and in a proper per-
spective dess they have had an opportunity of observing comparable
standards and conditions in other parts of Africa. In the absence of such
anopportunity it stands to reason that there is a very great danger of
perspective becoming warped, quite unconsciously, by the introduction
of European, or American, or Asian standards into an African context.
The Applicant States are the only sub-Saharan African States which
have not to any extensive degree been subject to colonial, mandatory
or trusteeship administration. Mr. President, on account oftheir avowed
interest in the material and moral well-being and the social progress of
the inhabitants of South West Afrjca, tIieir Governments would no doubt
.be similarly concerned about the pursuit of these same objectives in
their own countries relative to their own populations. We submit, there-
fore, that inspection by the Court, or its committee, ofpractical attempts.
achievements, standards and conditions in the Applicant States, partic-
ularly as regards the large maçses of the population, could therefore be
.practices of the South African Govemment in South West Africa. This and
is not a matter of introducing policies and their applicatioin the African280 SOUTH WEST AFR~CA
States for adjudication by this Court;it is a matter of assisting the Court
in properly fulfilling its task in regard to adjudication and evaluationof
the policiesapplied in South WestAfrica. It seemshighlyreasonable there-
fore, Mr. President, in Oursubmission, to expect of the Applicant Govern-
ments, which are askingthe Court to make this adjudication, that they
should render such assistance to the Court by making possible such a
visit to their territories.
Thixdly, Mr. President, we propose that a visit should be included to
one or two additiond sub-Saharan countries of the Court's own choosing,
also forthe purpose of gaining a general impressionregarding comparable
standards of the same nature as I have just mentioned in regard to the
any way, we would respectfully suggest that, by way of contrast, at least
one of these tenitories should be a former mandated and trusteeship
territory. Zt is in Our submission quite obvious from the record that the
Applicants are in these proceedings acting asthe representatives of al1
independent African States. Consequently, in our submission, they ought
to have no difficulty at al1 about obtaining, at the Court's request, the
necessary invitations for an inspecting group to visit one 01 two of such
territories, or in assisting the Couras far as may be necessary, to obtain
the necessary co-operation of the governments concerned.
That then, Mr. President, is the proposal which we respectfully make
for the consideration of the Court. We shail await the Applicants' reaction
to that with interest. Perhaps 1 should first, Mr. President, with your
leave, give my learned f~iendan opportunity of indicating now whether
he would like to ~eplynow or at a later stage. I thank you.
Mr. President, I shall proceed now to deal with the legal issues which
form the subject-matter of, shali 1Say,this first phase of the proceedings.
The broad scheme in which we intend to deal with the various questions
may be indicated shortly aç follows.Firstly, we shall deal with the legai
issues underlying the Applicants' Submissions Nos. I,z, 7 and 8-1 refer
to the numbers given to the submissions in their bfemorials (1), at pages
197-198 M.r. President, these legal issues are whether the Mandate is
stiil in force, and, if so, whether Respondent is obliged to report and ac-
count in respect thereof to the General Assembly of the United Nations,
as it was obliged to report formerly to the Council of the League, and
whether it içobliged for that purpose also to transmit petitions from in-
habitants of the Territory to the Generd Açsembly. There is, as we in-
dicate in the pleadings, no dispute about the fact that the Respondent
Govemment has refused to render reports andto transmit petitions to the
General Assembly, as it was previously obliged to do to the organs of the
League. The dispute therefore turns on a question of law-a question
whether there is any legal obligation to render such reports and-to trans-
mit such petitions. That is the first part of the legal argument with which
we shall deal.
The second part comprises the legal issues as distinct from the factual
disputes concerning Applicants' Submissions 3 and 4, that is, regarding
the charge of violation of Article z, paragraph 2, ofthe Mandate.i.e.,
failure to promote to the utmost material and mord well-being and
swhether the factual disputes in this regard asthey have now emerged,ns
are in law justiciable by this Court at all, and ço, on what basis or on
what criterion. ARGUMENT OF MR. DE VILLIERS 281
Thirdly, Mr. President, we shall make brief reference to some of the
legal questions pertaining to Applicants' Submissions 5 and g, that is,
regarding aLlegedviolation of the Territory's separate international status
and alleged attempts at unilateral modification of the terms of the Man-
date. I have said "brief reference to some of the legal questions", Mr.
President, because it seems to us that al1the legal questions arising in,
this regard cannot appropriately be dealt with in full by us now, since
some of them are intertwined with facts and with detailed aspects of the
Applicants' charges which have not been elaborated by them at all in
these Oral Proceedings. And we shall have to wait for a full elaboration
in that regard in order to know exactly what case it is that we now have
to meet in that regard.
Those are the three broad headings under which our treatment of
the legal issues will faii, and 1 shall proceed now to deal with the first
one, namely the issues underlying Submissions r, 2, 7 and 8-the ques-
tion whether the Mandate is still in force, and, if so, whether there is an
obligation of accountability to the General Assembly of the United
Nations.
The Court will recall that we deal with these legal questions in the
topic, and wealdeal with it further in the Rejoinder, in answer to the Ap-
plicants' Reply (V,pp. 13-99).
Mr. President, the arguments relating to existence or non-existence of
the Mandate and to existence or non-existence of an obligation of ac-
countability to the General Assembly of the United Nations are to a
considerable extent inter-related, and cannot be separated completely
into watertight compartments. But, hir. President, the conclusions on
the two questions do not necessarily go hand in hand. If one concludes
that the Mandate isstill legdly in existence, it does not folloasa matter
of course, that accountability must necessarily be in existence-account-
ability to the General Assembly of the United Nations. Vice versa, if
one concludes that accountability is no longer in force, it does not neces-
sarily mean that the Mandate is no longer in force. There is a possibility
of divergent conclusions about these two questions-they do not neces-
sarily go hand in hand. There are contentions before the Court, of course,
that they ought to go hand in hand; we are not dealing with the rnerits
of those at the moment. I am just pointing out that there isthe possibility
of diverging conclusions, and, therefore, the argument relating to the
two questions is not entirely one integral whole-there are certain con-
siderations which pertain to both questions, but there are also certain
considerations which pertain separately to one and separately to the
other. In so far as that kind of separation is possible and is desirable_
it is desirable in our submission-1 shall follow the same order as we did
on the pleadings, andthat is to deal first with the question of accountabil-
ity and thereafter with the question of the existence or othenvise of the
Mandate itself.
The reason for that is, Mr.Preçident, the nature of our contention in
this regard. Our contention is that accountability lapsed with the dis-
solution of the League, and that aç a result of the lapse of accountability
the further question arises, namely whether under those circumstances
the rest of the Mandate could, in accordance with the intentions of its
founders, survive, that is, without accountability. That is therefore the
sequence in which the questions in this regard arise, in our subrnission,282 SOUTH WEST AFRICA
on a proper approach to the question. Our hrst and main contention is
that accountability lapsed.
Mr. President, it is first necessary to go to the foundations and to in-
dicate as plainly as possible how these two qiiestions arise. They emerge,
of course, firstly frorn the terms of the compromise agreement which was
arrived at between the interested parties at the peace settlements follow-
ing on the First World War; and secoiidly they arise from the manncr
in which those terms-the terms of the compromise-were affected by
new settlements which were made after the Second World War.
The original compromise agreement after the First World War con-
cerned the disposa1 of certain conquered territories which were, in terms
of the agreement, to become rnandated territories. The agreement was
set out in Article 22 of the Covenant of the League and waç in conse-
quential respects elaborated in the actual mandate instrument issued in
pursuance thereof .
The terms of the compromise agreement are well known-the terms
of Article nz-and of the mandate agreement. 1 merely want to stress,
for purposes of the present argument, certain aspects thereof. In para-
graph I of Article 22 of the Covenant of the League there iscited the
agreement of the interested parties, viz., that to the colonies, territories
and the peoples in question "there should be applied the principle that
the well-being and development of such peoplcs form a sacred trust of
civilization and that securities for the pcrforrnance of this trust should
be embodied in this Covenant".
Paragrapli 2 of Article 22 tells us some more about the method by
which effect is to be given to this principle. It says that:
"The best method of giving practical effect to this principle is
that the tutelage of such peoples should be entrusted to advanced
nations who ... can best undertake this responsibility, and who
are willing to accept it, and that this tutelage should be exercised
by them as Mandatories on behalf of the League."
So we find the principle of a sacred trust; we find the method of giving
effectto it isatutelage, a guardianship, by an advanced nation, and that
that guardianship, thattrust function, is tobe exercised by the advanced
nation concerned as a Mandatory on behalf of the League. That is the
basic concept.
Now, Mr. President, paragraphs 3 to6 of Article zz proceed to indicate
what different kinds of mandates there should be, the differentiation
between them, and different substantive provisions and safeguards which
are to be imposed in the various mandates. 1 skip those for present pur-
poses, and 1 pas on to paragraph 7, which provides that: "In every case
of mandate, the Alandatory shall render to the Council an annual report
in reference to the territory committed to its charge." Here then, the
idea of an advanced nation, acting in a fiduciary capacity as atmstee or
a guardian, and doing so as a hiandatory on behalf of the League; and
in consonance with this conception of a Mandatory on behalf of the
League-that particular Organization, the League of Nations-the
Mandatory is to make a report tothe Cwncil of the League, a particular
organ of that Organization specifically mentioned by name.
In paragraph 9 provision ismade for the constitution of a Permanent
Mandates Commission "to receive and examine the annual reports of the
Mandatories and to advise the Council on al1 matters relating to the
observance of the mandates". ARGUMENT OF MR. DE VILLIERS 283
Now, Mr. President, we turn to the Rlandate for German South West
Africa, which was one of the mandate instruments issued in pursuance
of Article22 of the Covenant of the League. We find again, in the third
preamble, that the fact is stated that the Mandatory "has agreed to
accept the Mandate in respect of the said territory and has undertaken
to exercise it on behalf of the League of Nations .. .".That element is
then firmly introduced into the Rlandate itself.
In Articles I to 5 of the Mandate-I am not goirig to deal with them
now-there are set out substantive powers, substantive obligations, to
be imposed upon the Mandatory-substantive powers conferred, sub-
stantive obligations imposed. Article 6 provides : "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 obliga-
tions assumed under Articles 2,3, 4 and 5."
We find then, Mr. President, this concept of a Mandatory on behalf
of the League, this specific intemationaI organization whose constitution,
composition, conditions for membership, manner of operation and so
forth, are al1 set out and determined in the very same instrument of
which Article 22 foms a part.
In keepingwith this concept of a mandatoryon behalf of this particular
Organization, we find an obligation to report and account to a specific
organ of that Organization, viz., the Coiincil of the League,toitssatisjnc-
tion.More specific it could hardly have been-with a provision that that
organ is to be assisted by another specific one, the Permanent Mandates
Commission.
Now, Mr. President, following on the Second World War, we know
that the League was diisolved and that there was no longer a Council of
the League or a Permanent Mandates Commission, and now the question
arises, firstly, must that obligation to report and account not now be
regarded as having lapsed? The obIigation is defined in respect of its
vcry content, as relating to a specific body, a specific organ ofa specific
organization, the powers, constitution, and manner of operat ion which
are described in the very same instrument. That Organization falls away,
the organs fa11away. On an application of ordinary legal principle, that
obligation would become incapable of performance and would lapse.
That is the first question that arises, andthe second question is, if it then
did lapse, can the rest of the mandate be regarded as having survived
in law?
Now, Mr. President, consideration of these questions, and particularly
the first one,whether there was a lapse of the obligation of accountability,
is of course affected by the fact that a new international organization,
viz., the United Nations uTasbrought into existence at the conclusion of
the Second U'orld War. Itwaç actually brought into existence some nine
months before the dissolution of the League and it existed contempora-
neously with the League for that period. That waç a new international
organization and we have the submission beforc the Court that, whereas
the obligation of accountability was previously owed to the organs of the
League of Nations, which 1have mentioned, that obligation is now owed
to a new supervisory authority, namely the General Assembly of the
United Nations.
The fundamental question is,Mr. President, whether by some process
or pnnciple of law a substitutionof supervisory organ has been effected in284 SOUTH \VEST AFRICA
sucha way as to be binding in law on the mandatory; in such a way as to
convert the original obligation of the mandatory to report to organ A
into a new obligation now to report to organ B. That is the fundamen-
ta1 question. The Respondent's submission is that there has been no
such substitution of the supervisory organ. The Applicants Say there
has been a substitution of the supervisory organ, and that is the
argument.al issue with which 1 have to deal in this first part of my
Now, Mr. President, where one party avers a positive, as the Applicants
do in respect of this issue-they make the positive averment that there
has been this substitution of the supervisory organ-and the other party
makes a negative averment, or, shall weSay,denies the positive averment,
aswe do in this instance, then it is custornary to have regard first to the
grounds advanced by the party making the positive averment, soas to
see what are the grounds upon which he seeks to corne to his conclusion,
to analyse those grounds to see to what extent they are sound ornot, and
then to consider in relation to the case which has been made out, the
case for the other side, the case whichisto the effect that such a positive
has not been established.
In this instance, Mr. President, in so far asthis initial exposition of the
broad issue between the Parties is concerned, 1 am going to invert that
order, and 1 am going to do it for an elernentary practical reason. The
reaçon is that the statement of the Respondent's attitude in this regard,
which we are nowgoing to present first, isa simple,elementary one which
can be set out concisely and clearly without any difficulty at all. On the
other hand, if 1 am to state now to the Court, even broadly, what the
Applicants' attitude is in that regard, then 1will have to go into a good
deal of analysis, of dissection, of reconstniction amounting in some re-
spectsalmost toguesswork, in order to find out what exactly is the gist of
the Applicants' present attitude. And 1 streçs "present attitude" inthat
regard, Mr. President, because the matter does not stop there. 1,unfortu-
nately, have to point out also, and in advance, that the Applicants' case
inthis regard through the various stages of these proceedings ha under-
various phases of these proceedings the case, this positive case on behalf
of the Applicants which we are called upon to meet, has changed, so that
difficult to know from time to time exactIy what the case is
now an what we have to meet.
Ido not say this in any derogatory sense, Mr. President, or in order
to be facetious about it. I Say it because I subrnit that this factor ha a
strong bearing, although an indirect one, on the merits of the respective
contentions. 1 submit that that reflects the difficulty the Applicants in
being able to submit to the Court a cogent and coherent case in this
respect. They are clear about one thmg, and that is the result at which
they wish to arrive. They are any-thing but clear about the grounds upon
which they wish to arrive at that result.
1can now put the Respondent's case to the Court very broadly. 1shall
deal ~4th the various details at a later stage when it cornes to weighing
the Respondent's case against that of the Applicants.
The Reçpondent's case can be put by way ofthe folbwing propositions.
Firstly, Mr. President, there is this very basic fundamental principle
reIating to international obligations. What weare concerned with here is
an obligation-an alleged obligation to report and account, in respect of ARGEIhIENT OF MR. DE VILLIERS 285
administratioii over a territory, toan international supervisory organiza-
tion. From its very nature, Mr. President, that obligation is one which
could not have derived from ordinary pnnciples of civilized law, as
applicable in various States, and as may have been seen to be incorpo-
rated in international law. There are, as faras 1am awarc, no principles
of general law which oblige anyone to submit to supervision by any
orpnization, unless there is specificprovision to that effect. And specific
provision in the international law context in this regard can only be an
obligation incurred with the consent of the party on whom it is sought to
impose this obligation. It can only be an obligation of the nature of a
treaty obligation, something which has acquired the consent of the party
said to be obliged.
Mr. President, 1 had begun with a very broad exposition of what our
case is in regard to Article 6 of the Mandate, the obligation of account-
ability. The first point which 1 was emphasizing at the time of the
adjournment was that the obligation is of such a nature that it could
only have arisen frornthe actual consent on the part of the Mandatory
in this case-on the part of the State upon whom it is sought to impose
this obiigation. When 1 say an obligation of the nature of atreaty obliga-
tion, it does not of come necessarily mean that the mandate instmment
itself is to be viewed asa treaty or convention. The Court knows of the
difference of opinion which was expressed in that regard in the 1962
proceedings on the preliminary objections, on the question whether the
mandate instrument is not to be viewed as an international agreement
or treaty in itself. The viewisnevertheless that it proceeded from a treaty
or convention,namely the Covenant of the League, that it was an instru-
and that it therefore possessed a "certain background of consentn-ifn 1
might borrow that phrase from the dissenting opinion of the honourable
President of the Court and Sir GeraId Fitzmaurice. The view, as far as
that point is concerned, is that it is completely immaterial whether one
views the mandate instrument as being in itselfa treaty. The fact 1s.
however, that this obligation of reporting and accountability codd not
have arisen Save in the manner of a treaty obligation, that is from the
consent of the State concerned.
That is a fundamental consideration. I shall endeavour, in analysing
the Applicants' case, when 1 come to that at a later stage, to point out
the vagueness that exists in that respect, because this after al1is the most
important part of this particular aspect of the controversy, viz., whether
there is an obligationarising from consent on the part of the Respondent ,
or whether it is sought now to impose an obligation upon the Respondent
irrespective of its consent. And 1 submit that at certain phases of the
presentation of Applicants' case in this regard, it has assumed the charac-
ter of, in effect, wanting to impose an obligation upon Respondent
independently of its consent, but 1know of no principle of international
law which would make such a result a possible one. That would destroy
the very basis upon which the relationship between States works in
international society-in international law.
The next important step in OUI reasoning, Mr. President, is the one
which 1have already foreshadowed,namely that in its wording and in ~ts
probable intent, when regard ishad to the circumstances under which the
mandate system was brought into existence, it seems quite clear that the
obligation in its initial forrn related to a specificbody, a particular organ286 SOUTH WEST AFRICA
of a particular organization, and that the reporting and accounting had
to be to its satisfaction.
This isso, Mr. President, in our submission. not only in a narrom or
technical or forma1 sense. My learned friend, hlr. Moore, on behalf of the
Applicants, suggested that the Respondent is incurring difficulties
because of a narrow, formalistic appraach. Our submission is that our
approach is anything but narrow or formalistic, as far as this içconcerned.
When we look at the wording of the particular obligation, in the places
where we find it-the only places where we find it-in Article 22 and in
the mandate instrument, we do not divorce it from its context, we read
lt in itscontext aspart of the document of which it forrns a part-part of
the whole system of the concept of a mandatory on behaIf of the League.
We look at .the wording. We do not prefer any particular meaning to any
other particular rneaning. It is nota matter of applying the rule that the
natural construction of the naturaI meaning of the words in the context
is to be preferred to any other meaning of which the words rnay be
capabIe, because the mere application of that principle presupposes that
the words are capable of more than one meaning. Here there is nothing of
the kind. It is nota matter of preferring one meaning to another; it is
giving effect to theonly meaning which the words are capable of bearing.
The words cm only mean that particular body to whose satisfaction the
report was to be made. It does not speak of international supervision in
general. It does not speak of accountability to an organized international
community or to a similar vague concept. It speaksonly of this particdar
concept and there is no question of difficulty of interpretation-of
prefernng one meaning to another. As a rnatter of interpretation it can
mean only one thing.
Then, Mr. President, as a matter of probable, practical intent, again it
can mean only one thing. I am not going to deal with this aspect of the
argument fully now-1 shall elaborate it later in weighing our argument
against that of the Applicants, but 1 do want to point out broadly that
there were practical considerations in the League's system which per-
tained to the constitution and to the manner of functioning of the
supervisory body, the Council of the League. And those considerations
operated to protect a mandatory against the possibility of an abuse of the
supervisory power or against the possibility of unfair interference with
mandatory administration. There were very carefully devised checks and
balances in the whole system so as to prevent abuse or to prevent unfair
interference with mandatory administration.
The history shows, as we shall demonstrate later, that, inthe negotia-
tions which preceded the compromiseagreement which went into Article
22 of the Covenant, very matenal weight was placed by certain of the
Mandatories, including Respondent's representatives, upon the fact that
the supervisory organ would consist of certain States, or representatives
of certain particular States. The history of the negotiations shows,
further, thatmarked jveight was attached to the fact that, before there
could be final consent on the part of the parties concerned-n the part
of the mandatory States-to submit the particular territories in their
possession to the mandatory system, they should know how this whole
system-the whole League system-was going to work, and, therefore,
there could not be any definite agreement upon that point until the
whole League systern and the manner of voting, the manner of func-
tioning, wasfinally devised, al1of which, in Our submission, goes to show ARGUMENT OF MR. DE VILLIERS 287
and to emphasize that as a matter of practical importance, not as a
matter of technicality, the obligation related to particular supervisory
machinery and to none other.
Consequently, Oursubrnission is that consent on the Mandatory's part
to supervision by that particular body cannot imply any consent on its
part to supervision by any other international body. Supervision by any
other international body would bring about an obligation of a different
content to the one originally consented to by the mandatory power, and
inasmuch as that would then be in essence and in substance a different
obligation, therefore, a fresh consent on the Mandatory's part would be
required inorder to make itliableto such an obligation.
It is against this background that one has to view the events of the
years 1945 and 1946-the end oI the Second World War-and what
furtheremerged therefrom. The United Nations, inour submission, and
it seems to be entirely common cause, was not in any sense a general
successor in law to theLeague of Nations or a continuation of the League
ofNations. In fact there were politicai recasons,stressed by some ofthe
leading founders of the United Nations Organization, why they preferred
not to have any-notion of a general successorship or of the United Nations
being mereIy a continuation of the League of Nations. It was a distinct
international society.
To a large extent there was overlapping as far as membership was
concerned, the same States being Members of the United Nations and of
the League of Nations at the time of its dissolution, but that was ço only
to someextent-it was not completely so. There were anumber of States
which were founder Members of the United Nations and were not at the
time Members of the League of Nations. Conversely, there were a number
of States that were stiIl Members of the League of Nations at the time of
its dissolution which did not become founder Members of the United
Nations.
In the Charter of the United Nations no provision was made for
supervision by any United Nations organs in respect of mandatory
administration-administration under a mandate. The United Nations
Charter, as the Court is aware, created its own system of trusteeships,
but in order that any territory, whether mandated territory or any other
territory, be brought into it, that would require new agreement-volun-
tary submission-by the State in control of the particuIar territory to
place it under the trusteeship system of the United Nations. That
appears to be common cause and that isalso what the Court found in its
1950 Opinion.
In providing for supervisory organs for the purposes of this trusteeship
system, the United Nations Charter created organs which would function
in a materially different way from the supervisoryorgans in the League's
system relating to mandates. The unanimity principle which appLied in
the Council of the League, whereby decisions could only be taken by
unanimous vote, would not apply in the United Nations' organs. The
principle which applied to the constitution of the Permanent Mandates
Commission, that itwas to be a commission ofindependent experts and
not a political body, did not applin respect of the Trusteeship Council.
These differences, Mr. President, in Our submission, affected the very
features which made the Leque supervisory system, as a system, more
attractive and acceptable to Mandatories, and whichostensibly influenced
them in agreeing to place themselves under the supervision of organs so288 SOUTH WEST AFRICA
then, the difference between what supervision by the United Nationszes,
organs would be ascompared with supervision by the League organs, and
again emphasizes that the distinction is not a technical one but one of
great practical significance. Therefore, it becomes clear that the consent
of the Mandatory to subrnit to supervision by the League organs in itself
could not bind it to an obligation to submit to supervision and account-
ability to the United Nations organs.
In order to achieve that result, in order to achieve a substitution of
supervisory organs for thepurposes of this obligation of accountability,
there would have to be new agreement, new consent,on the Mandatory's
part.
Our next proposition is, Mr, President, that the events of the years
19451 ,946 and thereafter make it perfectly plain that no such consent
to a substitution of supervisory organs was ever given by Respondent.
In particular we submit-1 am just putting the submissions broadly
now-that Respondent's agreement to the United Nations Charter
involved no such consent. 1have made that point already.
SecondIy, we submit that analysis of the events during the establish-
ment of the United Nations and the dissolution of the League shows
cIearIy a general understanding between the States concerned. The
or other special arrangement between a mandatory power and the United
Nations, no Mandatory would be obliged to report and account to the
United Nations regarding compliance with its mandate obligations. We
submit that that general understanding emerges very clearly.
We submit further that the understanding is further confirmed by
attitudes expressedshortly after1945-1946,and in particular during the
years 1947 ,948 and 1949 ,y United Nations Members in debates and
proceedings of the United Nations. We submit that the analysis further
shows that Respondent itself in fact never agreed, either expressly or by
implication, either to a tniçteeship agreement or to any other special
arrangement involving accountability under the mandate to the United
Nations; and, Mr. President, very important because it bears on the
same point, that Respondent was never understood by other interested
States to have agreed to such accountability.
That brings usto the 1950 majority opinion in this respect. Our sub-
mission in that regard is that,spresented to the Court aiready in the
earlier phase of the proceedings ands we present it again, that opinion
was on a clear interpretation based upon a finding of a tacit agreement
in 1945-194 b6tween al1the interested States concerned-the Members
of the League at the time of its dissolution, thender Members of the
whereby Respondent was bound to report and account to the United
Nations.
The analysis makes it clear thatthatas the view the Courttook ofthe
situation; that although there was no express agreement at that time, the
conduct of thevarious interested parties showed a general understanding
-a tacit agreement or arrangement on this point-thatis, that therW~S
to be a substitution of supervisoryorgan, ora transfer ofpowers,rendering
the Respondent now bound to United Nations supervision.
Our submission is, Mr. President, that when regard is had to certain
vital facts concerning events in that period, 1945-194 6,d shortly ARGUMENT OF MR. DE VILLIERS 289
thereafter-facts which were not presented to the Court in rg5o and
which therefore could not have been taken into account by the Court in
arriving at its conclusion-if those facts are taken into consideration
then, in Ourrespectful subrnission, that conclusion of the majority cauld
not have been arrived at in 1g50.
These new facts are very important because they deal directly with
the question of the intent of the interested parties during 1945an1946-
the basis on tvhich the Court came to the conclusion ofatacitagreement
or understanding. They concern, firstly, the fact that, during the pro-
ceedings for the bringing into operation of the United Nations organs,
there was an express proposal to create United Nations machinery for
supervision of mandatesnot converted into trusteeships, and that express
proposal was rejected and nothing was substituted for itThe significance
of this point, in Our submission, emerges from this: in various other
respects, arrangements were made at that time in the United Nations for
special steps to be taken in order to transfesome assets, some functiom,
some powers, from the League of Nations to the United Nations, but this
particular subject, the powers of the League of Nations in respect of
mandates, the obligations ofthe mandatory powers to report and account,
was specificallyraised as aproposition for possiblespecial arrangements-
for the possible creation of special machinery. It was raised and it was
tumed down and nothing was substituted in its place. That is, in itself,
very significant as being indicative of what the intentions were on the
part of the United Nations founders.
On the other hand, as far as the intentions on thepartof the Members
of the League were concerned, we find the very significant Chinese
proposa1at the Final Sessionof the League Assembly :thatwas a proposal
that there was to be express provision for the League's supervisory
functions regarding mandates to be transferred to the United Nations
and for Mandatories to be obIiged to report and account to the United
Nations, outside of trusteeship. The facts that we now present to the
Court, which we have presented in the proceedings already, which are
now before the Court, but were not before the Court in 1950, show that
there was this proposal and that it had to be abandoned because of
opposition thereto. Again the significance is self-evident and need not be
stressed.
Finally, we brought ovenvhelming evidence, not before the Court in
1950, of proceedings in the United Nations during the years 1947-1949,
ovenvhelming proof, Mr. President, of a general understanding that there
was no obligation on a Mandatory to report and account to the United
Nations, outside of trusteeship. Those are the facts-some of the facts.
They are not to be seen in isolation; they are to be seen in the totd
framework of the events of the time and 1 shall deal with them in that
context in more detail later. But those are the significant new facts,
which bear so pertinently and so directly upon the question which the
Court decided and which it decided, in Oursubmission, to the effect that
there was a generd understanding of the opposite nature, namely that
there was to be a transfer of functions from the League to the United
Nations in this respect: that there was to be an obligation on the Manda-
tories t~ report and account to the United Nations, even outside of
trusteeship.
So, Mr. President, to summarize OUT attitude, Our contentions are,
firstly, that the original obligation waç related to specific supervisoryz9° SOUTH N'EST AFRICA
machinery only. That being so, an agreement would be required in order
to render the Mandatory bound in respect of new supervisory machinery
but there was never any agreement, involving consent on the part of the
Mandatory, for substitution of any other supervisory machinery. That
plainly and basically is our case. It has always been our casein regard to
accountability. We hâve never wavered from that. That is the way in
which we have put it throughout these proceedings.
We nowtum, Nr. President, to a consideration of the Applicants' case
in that regard, asit has emerged through these proceedings. We start
with the Applications filedby the Applicants, even before the filin6ofthe
Mernorials.There it is quite clear that the Applicants pimed their faith
entirely on the 1950 majority opinion of this Court, without presenting
any argument in support of it. They simply said,in paragraph 5, at
page 12 (1), of the Applications:
"the Union has violated, and continues to violate Article 6 of the
Mandate, by itsfailure to render to the General Assembly of the
United Nations annuaI reports . ..".
In a later passage the Applicants, when atternpting to establish the
existence of a dispute between the Parties, amplified their attitude as
follows :
"Ethiopia [or Liberia] has contended ... that, as established by
over the Mandate are to be exercised by the United Nationsfunct..."
(Applications, p. r4 (1), para.gA (r).)
That then is the position as far asthe Applications are concerned. \ive
now turn to the Memorials.
There, Mr. President, for the purposes of both their Submissions
numbers I and 2-that the Mandate is in force and that the United
Nations has supervisory authority-Applicants relied solely upon the
affirmand they devoted pages 95 to 103of their Memorials (1) to an to re-
argument asto why there is to be reaffirrnation by the Court of a con-
clusion arrived at in an advjsory opinion and to the general principle
of that proposition of reaffirmation,without any argirment on the merits
of the question, relative to Article 6 of the Mandate.
So there we find no argument at al1in support of the reasoning of the
Court in its Advisory Opinion md no additional arguments for reaching
the sarne result.
Then, hlr. President, came our preliminary objection, in which we
foundit necessary, in view of the form which the matter then took, to
raise the whole question of the possibility of succession,or otherwise, by
the United Nations to the League's supcrviçory functions. le there
stated our attitude, broadly as 1 have just indicated it. We stated thiç
attitude particularly in regard to the opinion of the Court which was
founded, as wesubmitted, on tacit agreement, and that there were these
new facts which cast an entirely new light on that factual question and
which, ifknown to the Court, would, in al1probability, have very materi-
ally affected its conclusion.That westated in the Preliminary Objections
at page 346 (1).
Now the Applicants reacted to this and their first reaction we find in
their Observations on the Preliminary Objections. There they stated
what their interpretation {vasof the Court's Opinion in 1950 regarding ARGUMENT OF &IR. DE VILLIERS
zgr
the continuedoperation of the provisions of Article 6of the Mandate, and
this is what they said (1 am reading from the Observations, p. 429 (1)):
"There is a certain interconnection between Articles 6 and 7, but
it is not onewhich Respondent willwish to recognize.
Both the Majority and the hlinority in the1950 Advisory Opinion
held thatthe Mandate instrument did not lapse with the dissolution
of the League ... Having achieved this cominon understanding,
the Majority and Minority then divided on one question: succession
of the United Nations to the League's supervision of the Mandate.
The Majority found that there had been an automatic succession; the
Minority did not agree. Although the Minority held that the instru-
ment of Mandate continues in existence, in declining to employ the
doctrine of succession, Judges h,IcNairand Read held that Article 6
couldnot be enforced only for the mechanical reason that there is no
Council of the League to which Respondent could report. Both
Majority and Ninority held, however, that Article 7 is in force. In
this connection, Judges hlchTair and Read found no mechanical
problem since Members of the League at the time of its dissolution
clearly continue in existence.
The interconnection, then, between Articles 6 and 7, is this:
according to the Majority viewofArticle 6,Applicants have standing
to invoke Article 7 by virtue of membership in the United Nations;
according to the Minority viewof Article 6,Applicantshave standing
by virtue of membership in the League at the time of the League's
dissolution."
1draw attention to the expression "autornatic succession". Mylearned
friend, in these proceedings, if 1 understood him correctly, seemed to
apologize for the use of that expression, particularly as far asthe word
automatic is concerned and he said it might be better to speak of the
substitution of supervisory organs.
hlr. President, it is not quite easyas that. It isnot only a question of
terminology; it is a question of notion. The two notions-the two
concepts-are entirely different. In the passage which I have just read,
the concept waç quite clearly that of a devolution, of a transfer of powers,
from the League organization to the United Nations Organization and,
hand in hand with that, a transfer of competence to invoke the Court's
jurisdiction from League Members to United Nations Members. That
argument could not work without being seen in that light, as being a
transfer of powers, of competencc, of rights. That is the concept which
the Applicants were advmcing at that particular stage. As regards the
word "automatic", my Iearned friend has made it clear now, that he did
not have in mind in the use of that word, any concept of a general
principle of international law, falling outside of consent or treaty obliga-
tion, or outside of ordinary principles of treaty interpretation: that much
is now clear. hlr. President, on analysis of the attitude stated in the
Prelirninary Objections proceedings, in the Observations and aftenvards
in the oral argument, the word "automatic" had another significance.
It had this significance, that there was no need for an agreement during
the period 1945-1946,inorder to bring about a substitution of supervisory
organs, or a transfer of supervisory powers. The word "autornatic" in the
context quite clearly was intended to indicate that the institution-the
obligation as originally agreed to by the Mandatory Power-had, in SOUTH WEST AFRICA
292
itself, elements which brought about this substitution-this succession,
tbis devolution of pow-ers-when the events of 1945 and 1946occurred.
in elaborating what they meant by this concept of automatic successiony
and in interpreting the majority opinion of 1950 as having rested upon
such a notion of automatic succession.
1 would like to refer the Court first of al1 to the Observations (1)
themselves at page 481, where after reference to various authorities,
various decided cases in which a broad interpretation, in the Applcants'
submission, was given to instruments involving humanitarian objectives
and high ideals, they made the submission that-
paramount importance, should, therefore, be interpreted liberally,
in the spirit of the whole agreement."
They proceeded:
"This mode of interpretation has already been accepted by the
Court in interpreting Article 6 of the hlandate. [The reference is to
the 1950Opinion.] In the Advisory Opinionthe Courtconcludedthat
Respondent isrequired to submit to the supervision ofthe General
Assembly of the United Nations andrender annual reports thereto.
In reaching its conclusion, the Court interpreted Article 6 of the
Mandate soas to accomplishits purposes. The Court thm established
the effectiveness of one of the implements for the enforcement of
this 'sacredtrust of civilization'."
That is very convenient and very broad language, Mr. President, glossing
over a host of difficulties.It says that rnerelybyaproceçs of interpreta-
tion-not saying how exactly it worked, how the conclusion was justi-
fied-by a process of broad, liberal interpretation of thisinitial instru-
ment, of this initial obIigation on the part of the mandatory power,
provision waç made for an automatic succession which then resulted in
the obligation eventually being an obligation to report and account to
United Nations organs.
There are further passages in the Observations which makethis clear.
At page 430of the Observations (1) there is a reference to the Court's
United Nations, andde1tquote what the Applicantstherecosaidtaboutit :
".. .when it did so [that is, the Court], it did no more than appll
the principle of giving effect to a basic international inçtrument
which has asits purpose more than mere contractual relations
between t~o entities, but which creates an international institution
-a sacred trust. The Court employed the same type of legal rea-
contentiont ofma trustee or tuteur that his duty to account had the
'lapsed'."
Mr.President, 1emphasize that if one reads the wholeof the argument
asthen presented, the whole purpose was clearly to avoid the necessity
of facing upto the proposition of establishing an agreement in 1945or in
1946 in order to bind the Respondent to United Nations supervision.
Tcome under the interpretation to be put upon the initial instrument, and
no reliance whatsoever need then be placed on the events of 1945 and ARGUMENT OF MR, DE VILLIERS
293
1946as creating anew obligation. This becomes clearer as we go dong.
The Applicants interpreted the Court's Opinion of 1g50, the majority
opinion,relative to the events of 1945and 1946,as being merely confirma-
tory of the interpretation which it gave to the basic instrument. We find
this in the followingpassages of the Observations (1), page 430: .
"The Court furthemore found, for purposes of confirmation,
that the League of Nations relied on declarations of Mandatories,
including Respondent, that they would continue to honour their
obligations as mandatories; and that neither the League nor the
United Nationsintended the obligations ofmandatories to disappear
without their being replaced by new obligations under trusteeship
agreements."
This argument about a succession or a devolution relative to the power
of the Organization to supervise mandates under Article 6, was then
transferred in the Observations to an argument relative to Article 7,
the compromissory clause, suggesting then ais0 that the .cornpetence of
League ofNations Members to invoke the jurisdiction ofthis Court passed
to the United Nations Members and became vested in them. We fuid in
the Observations (1) at pages 442to 443this passage :
"The Mandate isa creature of the organized international com-
munity, as well as the subject of a Iegal interest of such community
.and its Members. Its existence today rests upon the continued
vitality of the authority conferred upon Respondent by the or-
ganized international community andby the continued vitality of
the rights of such community anditç Members to ensure that the
Mandate is properly administered, The only question is, which
representative of the organized international community does one
look to, the League ofNations orthe UnitedNations, theorganin exi-
stence when the Mandate wasconferredor the organnowinexistence?
The Majority Opinion [in 19501 applied the doctrine of succession
and looked to the United Nations, Judges McNairand Read declined
to apply the doctrine and looked to the League."
Later in the Observations, at page 445, we hd much to the same effect
the following :
of"Justice has replaced the Permanent Court and that the Unitedrt
Nations has replaced the League of Nations for purposes of the
Mandate, similarly applied the principle of succession, explicit in
one case and implicit in the other, in order to give effect to the
purposes of the Mandate."
So, MI. President, it becomes perfectly clear from this analysis of the
Observations-and 1shall pass on from here to the oral argument in the
1962 proceedings just to detemine the analysis of the Observations in
this respect-that the Applicants, aithough not very clearly saying where
they found their legal basis for this succession or devolution, make it
perfectly clear that they had something in mind which operated inde-
pendently, automatically; there was noneed fora new consent in 1945 or
1946,no need on the Applicants' part to establish a new agreement; it
whatsowas agreed to-fromd bewhat went into the initial instrument in 1920.
I may point out also that in this part ofits case, in the Observations,294 SOUTH WEST AFRICA
the Applicants stated that in support of its reasoning the Court in 1950
referred to the purpose of Article 80, paragraphI,of the Charter-that is
in theObservationç (1), pages 44.4-445.1 dooot intend to refer now to the
arguments concerning Article 80, paragraph I; 1am mereIy pointing out
in passing that that waç referred to by the Applicants in their Observa-
tions, and relied upon by them asbeing a factor whch influenced the
Court in 1950.
Now,hlr. President, lookingat the Oral Proceedings on the Preliminary
Objections, there we find the significant attitude on the Applicants' part
in keeping with what 1 have just been trying to explain to the Court.
We presented our argument first, as the Court will recall, and we pre-
sented full reasoning regarding Article 6 and-for the reasons which we
then indicated-why we considered that that rnight be relevant for the
purposes of deciding on the Preliminary Objections. We also repeated
Our contention about the manner in which the Court's Opinion of 1950
was to be interpreted, and of the important bearing which the new facts
could have had on the conclusion at kvhichthe Court had then arrived.
One will find that argument in the Oral Proceedings on the Preliminary
Objections (VU) at pages g~ and following. In the course of this argu-
ment we also dealt, h1r.President, with the apparent significance which
the Court attached-the majority of the Court attached-in 1950 to
Article 80, paragraph r,of the Charter. We stated that in our submission
the Court was not seeking in 1950 to apply the content of that Article
to the problem before it-that the Court was seeing behind the Article a
presupposition, a probability, a certaincontemplation on the part of the
authors of the Charter, and that it sawin that a factor which tended as a
matter of probability towards establishing this tacit agreement which the
Court found to be established; that wasour interpretation, asweput it, on
the Court's reference in 1950 to Article 80, paragraph I, of the Charter.
. Nowcame the Applicants' reply in their Oral Proceedings. They started
off by referring to the fact that the Court in 1950relied on the "inter-
national rules regulating the Mandate", which "constituted an inter-
Proceedings (VII) at page 302 by the Applicants' learned Agent.the Oral
They then contended, Mr. President, that Respondent's subjection to
the supervision of the Council of the League was "tvhat the Court took
as showing the essentially international character of the Mandate
institution" (VII,p. 302).And they proceeded to say (at p. 303) :
"Going on from its finding that the international rules regarding
both substantive rights and accountability, and again 1 quote,
'constituted an international status for the Territory', the Court
said (at page 133[of the Opinion]) and, I think, reached an inescapa-
ble conclusion by saying so, with respect:
'If the hlandate lapsed, as the Union Government contends, the
latter's authority would equaliy have lapsed'."
The Court will notice: still arpmentation to the effect that this result
contended for relative to Article Gwas sornething to be found in the
international rules regarding this basic institution.
The argument proceeded. It referred to the Court's statement that
"to retain the rights derived from the Mandate and to deny its obligations
would not be justified", and the Applicants then contended that the
Court in its Opinion- ARGUMENT OF MR. DE VILLIERS
295
"laid down as the law of thecase thatthe machinery for implementa-
tion [that is, supervision], together with the substantive rights and
obligations, survived the dissolution of the League". (VIIp.303.)
Mr. President, this is the important point, that nowhere in the Oral
Proceedings on the Preliminary Objections did Applicants attempt to
justify the Court's finding, as interpreted by them, which according to
<<eir wntten Observations was based upon a so-called "doctrine" or
principle" of succession. The Applicants advanced no independent
argument of their own in support of this so-called doctrine. They simply
relied on the hding of the Court-the Opinion of the Court-which
they interpreted asinvolving such a principle or doctrine, and they
quite frankly, although rather surprisingly, in their Reply, stated as
follows during the Oral Proceedings:
"But, Mr. President, it is not the Applicants who 'rely on' United
Nations succession. The Court itself decided that issue in the Ad-
'visory Opinion of 1950. We draw the necessary inference from the
Court's Opinion. We do not bear the burden of sustaining the valid-
jty of the Opinion of the International Court of Justice." (VU,
P. 319.1
There we have it, the whoIe argument and reliance upon the Court's
Opinion in 1950, the majority opinion, and an interpretation of that
Opinion as being based, not upon an agreement in 1945or 1946,butupon
a special kind of interpretation of the basic international instrument.
Then, Mr. President, in addition to this argument regarding what they
cal1the "law of the case" as laid down in the Court's Opinion, the Ap-
plicants addressed a very lengthy argument to the Court regarding the
significance of Article 80,paragraph I,of the Charter.
This argument was introduced with a survey of the history of Article
80, paragraph I.
It might be advisable to revert again to the wording of that Article:
"Except as may be agreed upon in the individual tmteeship
agreements, made under Articles 77, 79 and 81, placing each terri-
tory under the trusteeship system, and until such agreements have
been concluded, nothing in this Chapter shdl be construed in or of
itself to alter iany manner the rights whatsoever of any States or
any peoples or the terms of existing international instruments to
which Rlembers of the United Nations may respectively be parties."
The gist of the articleisthat "nothing inthis Chapter shall be construed
in or of itself to alter in any manner the rights whatsoever of anyStates
or any peoples ...".
It is quite clear, Mr. President, that that was merely a savings clause,
a clause aimed at assisting in the interpretation of a particu1a.r chapter
of the Charter. Now, how did the Applicants rely on that clause in their
argument in the Oral Proceedings in 19507 They dealt with the history
of the article at length in their argument at pages 269-270 of the Oral
Proceedings (VII), and they placed this interpretation on the COUF'S
use of that articleon the way in which the Court utilized the article
in its1950 Opinion :
of the Charter clearly appears from the stress of phrases used by the
Court, suck as:'under al1circumstances' and 'in ai lespects', phrases296 SOUTH WEST AFRICA
characterizing the Article's pervasive intention to safeguard the
rights, all the rights, of the inhabitants of Mandated territories."
(VQ P. 304.1
In other words, there is ascribed to the Court an interpretation and ap-
plication ofthis Article, giving to it a positive significance,not a negative
significanceof preventing a certain type of interpretation of the Charter,
but a positive significance and effect of maintaining and safegua~ding
rights. The argument proceeded at page 305of the Oral Proceedings
(VII) :
"The Court's emphasis concerning Article 80, paragraph I, its
scopeand forceand meaning, isreinforced by the Court's subsequent
references in the Opinion to that paragraph of Article 80, particu-
larly in the light of the context in which the subsequent references
appear."
The Applicants then deait in detail with every reference which the
Court made in the 1950 Opinion to Article 80, paragraph I, and inter-
preted the Opinion as having attached the foilowing weight to that
paragraph :
"The Court obviously is thereby construing Article 80 (1) in a
sense which safeguards, for the people of Mandated territories, the
righi to have the protection of international judicial supervisi...
the Court thereby attributes to Article 80 (1)the positive quality
of 'maintaining' the right of the inhabitants to petition to an inter-
national agency . ..
These four successive references to Article 80 (r), each in a dif-
ferent though related context, and each based on the same inter-
pretation of the clause, have accurnulative significancein our 'udg-
fient. They demonstrate, it seernsto us, thatthe Court wx
Article 80 (r) so asto givea full scopeand an enduring vitality to
the 'international functions' which had been entrusted to the Re-
spondent, to the 'new international institution' which had been
created by ArticIe 22 of the Covenant andthe Mandate and to the
'internationai status for the territory', which had been created by
the 'international des regulating the Mandate'." (VII,p. 307.)
Again, Mr. President, this whole argument regarding Article 80, para-
graph I,is brought into iine with what 1 suggested before waç the Ap-
plicants' sole argument-that argument being to interpret the 1950
Opinion asresting purely upon an interpretation of the original instru-
ment and its application to the circumstances of change which came
about in 1945 and 1946,without any necessity to find any fresh consent
or any fresh agreement during that period of transition.
Now, Mr. President, we corne to the Judgment on the Preliminary
Objections and the various separate opinionsand the further proceedings.
1do not wish to deal in any detail at this stage with t1962 Judgment,
or with the separate opinionson the Preliminary Objections, but 1rnerely
want to point out this, &Ir.President, that it seems fairly evident that
not a single Memberof this Court was in 1962 prepared to accept the
Applicants' contention regarding a transfer or succession of rights-
rights passing from the League organization to the United Nations
Oganization, and consequently from League Membersto United Nations
Members. That wrasthe one basis, the Court will recall, and the main ARGUMENT OF MR. RE VILLIERS
297
basis-the first one relied upon by the Applicants-why they contended
that Article 7 of the Mandate was std in force. They contended that
"hlembers of the League", the expression used in Article 7, now had to
be read as being "Members of the United Nations", because of this
principle of succession-this automatic succession which had operated.
But, although the majonty of the Court-eight Members of the Court-
rejected our contentions in regard to the Preliminary Objections, rejected
our Preliminary Objections, and found that there was competence on the
part of the AppLicantStates to institute the proceedings notwithstanding
the dissolution of the League, not a single Member of the Court founded
their judgment or their opinion on thebasis of this succession argument.
The basis was the alternative propounded by the Applicants at the time,
League,thinthe States that were Members of the League at the tirne ofe
dissolution. No findingwas therefore made on the basis of this suggested
succession*or devolution, by the Members of the Court who found in
favour of the Applicaqts.
This matter is dealt with, Mr. President, in Our Counter-Mernorial,
Book II (II), pages 152-163.
Further, Mr. President, we point out that not one of the honourable
judges in 1962 placed any reliance for the purposes of their opinions
and judgment on the provisions of Article80 of the Charter of the United
Nations. In fact, Mr. President, Judge Basdevant in his separate opinion
mentioned "the silencepreserved in the reasoning of the Judgment with
regard to the Applicants' reference to Article 80, paragraph r, of the
Charter". (I.C.J. Reports1962, p. 459.)
We dealt with this matter also in our Counter-Memorial, Book II
(II), at page 128.
That is the only comment which I wish tamake for the moment on
the 1962Judgment and opinions in this respect.
Then, Mr. President, in order of sequence came our Counter-Memonal
in which we again set out our argument regarding Article &the ar-
gument basically the same as propounded before, baçically the same as
we are putting to the Court now. And we pointed out further this con-
sequence in so far as the reaction of the judges inthe 1962decisions were
concerned, regarding this contention of succession advanced by the
Applicants.
And the Applicants deal with this new situation in their Reply-the
Keply to the Counter-Mernorial; there, we find, Mr. President, that they
no longer used these expressions "automatic succession", "doctrine of
succession", or "principle of succession", as they did in their earlier
pleadings. That is not surprising, in the light of the purport of the Court's
Judgment and opinions to which 1 have just referred. 1 may add that
we also pointed out in regard to the Judgment and opinions in 1962 that
certain Members of the Court positively found that there was no justifi-
cation whatsoever for this contention relative to automatic succession
or any devolution of powers from the League to the United Nations.
Certain Members of the Court positively found it, and the other hlembers
remained silent; not a single Member found in favour of it. This is the
situation now which we find has to be dealt with in the further pleadings
presented to the Court. And now we fmd that the Applicants do not use
those expressions of "automatic succession", or "doctrine of succession",
or "principle of succession", any more, as they did before. They now298 SOUTH WEST AFRICA
put the matter in a sornewhat different way. They Say in their Reply
that Respondent'ç obligation to report and account in terrns of Article 6
waç owed to the organized international comrnunity. From that point of
view they argue further that during the existence of the League, the
League was the organized international community, or was to be regarded
as the representative of the organized international comrnunity, and
that it was in that capacity that the League, and the League organs,
performed supervisory functions with respect to mandates.
from pageum539 of the Reply (IV)f: by the contention which 1 quote
"The United Nations has replaced the League of Nations as such
'organized international community,' andRespondent's obligation
of international accountability, accordingly, is owed to the United
Nations in that capacity."
&Ir. President, we then in our Rejoinder dealt with this argument.
We dealt with it by indicating in the first place that, on analysis, the
Applicants' case as it was now presented in the Reply in effect rested on
an implication that had to be read into the mandate instruments. That
one finds in the Rejoinder, (V), ages 41-42. Our contention was that
the express language of the man ha'e instruments talks about "specific
supervisory organs". Here we are told that another effect is to be given
to those provisions; they are to be read as if they referred not to tliose
specific organs but as if they referred to organs in a certain capacitas
representing an organized international community-something of
course which the article does not say-something which its language 1s
not capable of meaning-and therefore ithas to rest on an implication
to be read into that Article.
We pointed'out further, Rfr.President, that as a matter of interpreta-
tion, having regard to al1the surrounding circumstances, and asa rnatter
of implication, the mandate instruments were not capable of any such
instrument to that effect, 40r for implying such a provision in the man-e
date instrument. In passing, 1 would point out that, although the name
"automatic succession", or "doctrine of çuccession", or ' principle of
succession", was no longer applied to this argument, on analysis it really
amounted to the same approach as before, in the particular sense that
it was still an attempt at avoiding the challenge of establishing an agree-
ment in the years 1945 and 1946.Again the approach was to find some-
thing in the original agreement-the original instrument as determi?ed
in rgzo-which urould of itself automatically cope with the situation
lvhich arosein 1945 and 1946.This is still the essence of the argument
which we findin the RepIy.
We pointed out, hlr. President, thatthat constmction was not justified
either asa matter of interpretation oraç a matter ofimplication of any
provisions not expressed in the terms of the original instrument. In ad-
dition, Mr. President, we pointed out that even if, as we disputed, the
Applicants were correct in saying that the authors of the mandate in-
tended to create an obligation of international accountability, or one
to submit to international supervision, asdistinct from submitting to the
supervision of particular organs-even if they were correct in saytng
that the League organs were specified rnerely as the means for givmg
effect to such obligation-then that premise wodd still not lead them ARGUMENT OF MR. DE VILLIERS
299
to their desired conclusion of arriving at the substitution of supervisory
organs in 1945 and 1946 without new agreement.
We contended that even on that premise which the Applicants put
for themselves, the result in 1945 and 1946 would have been that ~4th
the dissolution of the League, the supervisory organs indicated for
giving effect to the generd obligation, would have fallen away. The
obligation might possibly have survived on that premise. 1 do not con-
cede that it did because 1submit the premise iswrong. But 1say follow-
ing on that premise the obli ation to submit to international supervision,
or international accountabiEty, rnight have suruivecl, but then it would
tion ofaoparticular new supervisory organ.w agreement for a substitu-
In support of this contention we referred to the recent decision of
this Court in the BarcelonaTraction case. We did so in our Rejoinder,
(VWe pointed out also in our Rejoinder, Mr. President, that the Appli-
cants did not in their Reply contend that the events 1945-19 4rated
any new basis for the succession or substitution of supervisory organs in
respect of mandates.
In their Reply they merely reIied on such events as:
"... manifest[ing] the clear intention of al1concerned to preserve
and assure proper discharge by the organized international com-
munity with respect to its responsibilities toward the inhabitants
of mandated territones". (IV, p. 539.)
They referred then to the events of 1945-1946noas constituting a new
agreement, but as being consistent with and confimatory of this inter-
pretation sought to be placed upon the initial mandate instrument. We
deal with this point in the Rejoinder, (V), pp. 53-54.
We also pointed out that inthe Reply the Applicants did not refer at
al1 to Article 80, paragraph I, of the Charter. (Rejoinder, (V), p. 35,
footnote 5.)
That is how the matter then stood at the end of the written pleading.
We found al1dong different nrunes givcn to a concept and aiialong the
attempt is to find something automatic in the original arrangement which
would avoid the necessity for the Applicants to establish a new consent
or a new agreement in 1945-1946.
How do we stand now, Mr. President, on the presentation of the Ap-
plicants' case regarding Article 6 in the Oral Proceedings-in the argu-
ment to which we listened last week and the week before.
Again, 1 am afraid, we have not complete clarityand precision in the
formulation. On the one hand we are told, as 1 have pointed out before,
that Applicants do not seek to show a general principle of international
law asgoverning the mandate, other than general and applicable prin-
ciples of treaty interpretation. That we findin the verbatim record at
page 126, supra:
That looks quite promising because now it seems we have astraight-
forward case of interpreting what the basic instruments Say,and possibly
seeing whether there was any fresh agreement which could be regarded
as an amendment of the original agreements in so far as that might be
necessary.
Unfortunately, Mr. President, we find Iater on other elements which
disturb this apparent clarity. First of all, urefind affirmation of the fact300 SOUTH WEST AFRICA
that no general principle of international law is relied upon in the ver-
batirn record at page 132,supra. There my learned friend stated:
"With respect to the international niles regulating the Mandate,
the Applicants have never conceived, nor do they do so now, that
the United h'ations acquired title to the League's supervisory power
over Mandates by virtue of some generaI international legal principle
of devoliition or succession, alizrndethe Mandate."
Again they made it clear that there was no reliance on something
outside the Mandate itself. The Applicants then expressed regret for
having used the expression "automatic succession" in their written
observations on the prelirninary objections, in which, as \vehave already
indicated, they also used the exp~essions "doctrine of succession" and
"pnnciple of succession".
As 1have made clear, that does explain away any suggestion that they
might haveintended to rely on something outside of the Mandate. 1t does
not explain awap the fact, Mr. President, that they did, on the basis of
interpretation of the Mandate, rely ona principle of successionwhichwas
to operate automatically: something coming out of the Mandate and
having that effect.
Now, Mr.President, another respect in which they have now sought to
eliminate misunderstanding as to the casewhich they make,relates tothe
relevance and significanceofArticle 80,pwagraph 1,ofthe Charter.
TheApplicants now expressregret for the "incompleteness of presenta-
tion of this question during the preliminary objections phase of these
cases" (p.223, supra). It is a rather strange reference to the incomplete-
ness of presentation during the Oral Proceedings, because I should have
thought that nothing could have been more complete than their repeated
reference in those proceedings tothe significanceofArticle 80, paragraph
I-the significance which, in the Applicants' subrnission, was attached
to it by the Court. But the Applicants now say they did not intend to
intimate a view inconsistent with that which was expressed by the
honourable President and Sir Gerald Fitzmaurice in their joint dissenting
opinion when they said that "the sole purpose of the Article was to
p~event any provision of Chapter XII of the Charter being construed so
as to alter existing rights prior to a certain event". In other words, the
Applicants indicate that with that view of the interpretation of the
Article, they are in agreement andthey do not advance any contention
putting the matter higher than that (p. 223, supr~).
The Applicants then Sayfurther on the same page:
"!Vithout venturing 'to interpret the meanhg intended to be
attributed to the Article in the Advisory Opinion of 1950, the
Applicants respectfully submit that the inclusion of Article h,
paragraph I,in the Charter serves to confirm the understanding of
the authors of the Charter that certain rights, including those under
mandates, did continue to exist, notwithstanding the dissolution
ofthe League. The Article, in the Applicants' view, did not cstab-
lish, conçtitute or maintain these or any other rights." (P. 223,
supra.)
In other words, they do not rely on any positive effect on the part of
Article 80,paragraph I-the type of subrniçsion which they made to the
Court in 1962duringthe Oral Pmeedings. ARGUMENT OF MR. DE VILLIERS 301
[Public heariitgO/31 Marcl~196 j]
Mr. President and honourablc Mernbers, before 1 take the argument
further from where we left off yesterday, may 1 be allowed to gather the
thread somewhat as to what it isal1about, otherwise you may lose me
or I may lose myself. 1 was dealing yesterday aftemoon with the rival
contentions of the Parties regarding the continued existence or othenvise
of the obligation of accountability under Article 6 of the Mandate. I
referred in broad outline to what the attitude of the Respondent is in
that regard-what it hasalways been throughout these proceedings.
Summarizing, in the end it arnounts to this, thatthe Respondent says
it waç an obligation from the start to submit ta the supervision of a
specific supervising authority and no other. Respondent says further
that when that supervising authority disappeared it was consequently
necessary to enter into a new agreement-to have new consent on the
part of the Respondent-in order to convert that obligation into a new
obligation to account to a new supervising authority.
Respondent says further that such an agreement was never entered
into, that çuch consent was never given by the Respondent.
1 then dealt with the Applicants' case in the way in which it haç
emerged through the earlier stages of these proceedings until today. 1
indicated that initially the Applicants relied absolutely on the 1950
Sdvisory Opinion of this Court-the majority opinion of ra to2 relative
to this question. The Applicants offered no argument in support of the
Opinion or independent arguments supporting the conclusion arrived at.
That was in the hrst stages of the proceedings.
Then came the Preliminary Objections in which we ofiered our argu-
ment,and on the basis of that argument we dealt with the 1950 Opinion.
We placed an interpretation upon itto the effect that that Opinion was
based on a tacit agrcement arrived at in the years 1945-1946, and we
placed further information before the Court which it did not have in 1950.
This inâicated, in our submisçion, that that conclusion could not stand
because the information \vasdirectlyrelevant to the question ofintentions
during the yearj 1945-1946.
The Applicants had to react thereto, which they did in their Observa-
tionç and in their oral argument on the Preliminary Objections. At that
stage the attitude indicated by them was this. They placed an inter-
pretation on the Opinion and they still rested purely on the Opinion, but
on the basis of the interpretation placed by them on that Opinion. They
indicated that the Opinion rested not, aswe said, on a finding of a tacit
agreement during thé yearç 1945-1946, but on some construction to be
placed on the original mandate instrument, or an implication to be read
into it, to the effect that there would be provision autornatically for
successjon relative to a supervisory authority in the event of dissolution
of the League. That \vas the nature of the theory of succession, or
doctrine of succession,relied upon by the Applicants in the Preliminary
Objections proceedings, and they contended that that was the ivay in
which the Opinion of 1950 had to be interpreted, so that there tas no
need at dl for an agreement during the years 1945-1946.The transition
-the succession-\vas provided for in something which had to be found
in theoriginalinstmment itself. What happened in 1945-1946 \vas merely
pretation placed upon the initia1 instrument.consistent kvith that inter-302 SOUTH WEST AFRICA
On that bais, then, the Applicants attempted to exclude the relevance
or sipificance of the furthcr facts pIaced before the Court, which they
cal1the new facts.
The Applicants further contended, Rlr. President, that the Court in
1950pIaced particular reliance on Article 80, paragraph x,of the Charter
of the United Nations. They contended, on the basis of the language used
by the Court, that the Court gave to that Article a positive meaning and
significance,viz.as having the effect ofmaintaining rightç and obligations
in respect of mandates even after the dissoIution of the League. Andthey
indicated that that was a very important part of the reasoning of the
Court, leading it to its conclusion of a succession both in regard to the
issues on Article 6 of the Mandate, pertaining to administrative super-
vision, and on the issues which were then before the Court relative to
Article 7 of the Mandate, on the question of compulsory jurisdiction or
the cornpetence of another State to bring an'action under the Mandate
before this Court.
1 was dealing at the adjournment yesterday with the attitude now
stages-thetheattitude now takenfurtbyr the Applicants on these variousg
matters-and 1 !vas dealing in particular with their present .atitude
regarding Article 80, paragraph I, of the Charter. That is where 1 wish
to resumenow.
1 read to the Court immediatelÿ before the adjournment a passage
from the oral argument now presented by rny learned friend which
concluded that the Article, in Applicants' view. did not establiçh, con-
stitute or maintain these or any other riglits.
hfr.President, there is a further passage which explicitly shows the
Applicants' present attitude in that regard. Itis to be found in the ver-
batim record atpage 227,supra. It may be repeated, Mr.President, with
respect, that the Applicants do not contend that any positive legd
consequence waç brought about by Article QG, paragraph I.The language
of the Court quoted from the 1950Opinion might, Mth respect, imply a
different view. In the Applicants' view, the Article simply confirmed the
understanding of the authorç of the Charter that there were rights. These
rights included those under mandate. Those rights continued, despite the
dissolution of the League, until other ai-rangements would be agreed to
with the United Nations, and the Article being a savings clause it was
intended to make clear that none of those rights could be amended,
superseded or erascd by a possible misconstruction of Chapter XI1 ofthe
Charter.
Mr..Yresident, we submit that this is a very significant change of
attitude on the part of the Applicants. Tt is significant and strange,
particularly when regard is had to their previous attitude in the proceed-
ings on the PreIiminaiy Objections to which 1have referred: the absolute
reliance which they placed on the rgjo Opinion, the fact that they asked
this Court without more ado to reaffirmthat Opinion, and their contention
that the Court placed such prticular significance in its reasoning on this
Article in orderto corne to its conclusion about continued existence of
the obligation of accountability and to link it to United Nations super-
vision.
In their Rlernorials, for instance, Mr. President, if 1 may recall. the
Applicants çaid this in regard to Article 80-that is on the question of
jurisdiction under Article 7 (as 1 have said, the attitude on the two ARGUMENT OF MR. DE VILLIERS 3O3
questions of Article 7 and Article 6 at the PreIiminary Objections stage
went hand in hand) :
"The Applicant founds the jurisdiction of the Court on Article 7
of the Mandate and Article 37 of the Statute of the International
Court of Justice, having regard to Article 80, paragraph r,of the
United Nations Charter." (Memorials, 1, p. 88.)
The Applicants quoted the text of the Article in the MernorialsThey
cited from the 1950 Opinion on the question of Article 7 of the Mandate,
where the Court in the majority opinion dso referred to Article 80,
paragraph 1, and they asked the Court to reaffirm its ruling in regard to
Article 7,including this reference to Article 80, paragraphI.
In the Memorials (1) at page 89 the words they used were that they
açked the Court to "reaffirmits aforesaid ruling and ... hald that the
said ruling sets forth the law of this case". The Courtinthat ruling had
said :
"Having regard to Article 37 of the Statute of the International
Court of Justice, and Article 80, paragraph I,of the Charter, the
Court is of opinion that this clause in the Mandate is still in force."
(I.C.J. Reports1950 ,. 138.)
The general attitude of the Applicants, as they stated itin the Oral
Proceedings, is very welI and concisely surnmarized in the following
passage in the Oral Proceedings (VII) of 1962 at page 321.
[This is my learned friend, &Ir.Gross, speaking.]
"As 1 have pointed out, the Court, in its Opinion, has three times
prior to this point cited Article 80, paragraph x, as having been
designed to conserve dl rights of peoples of Mandated territories to
international supervision and judicial protection."
1 repeat, Mr. President, "as having been designed to conserve al1rights
judicial protection".d territories to international supervision and
Mr. President, we indicated yesterday in the quotations 1 gave to the
Court that the Applicants dealt at length in those proceedings with
Article 80. They stressed the positive quality of maintaining rights,
lvhich the Court assigned to the Article. They spoke of the significance
of the Court's reliance on the Article ; of the emphasis put on it by the
Court; of the accumulative significance which the Court's repeated
references to the Articlebore-those references I gave the Court yester-
day. Consequently, they played up the Court's reliance on this Article
very highly-if I may put it that way. They attached a particular
significance to that as an essential, ora hjghly important part, of the
Court's ruling regarding both Articles 6 and 7-that ruling which they
were asking the Court to reaffirm as the law of the case.
Now we find,Mr. President, we are told, firstly, that there wa~ in-
completeness of presentation of this question in 1962. Secondly, we are
told that the Article haç a very limited significance, to the effect tha1
have just read to the Court. Thirdly, we are told that the Court in 19.50
apparently attached a higher value to the Article than the Applicants
do now. Yet, Mr. President, they still ask the Court to reaffirm that
Opinion of 1950 as the law of the case, despite the fact that this crucial
role ïvhich they assigned to Articl80,in the reasoning of the Court, is no
longer supported by them.304 SOUTH N'EST AFRICA
The question arises-"Why this change of attitude?" Our submission
is that quite clearly it cornes from this: the Applicants saw, as faras
Article 80, paragraph I,\vasconcerned, a"writing on the wdl" when the
Judpent and the opinionson the Preliminary Objections were given in
1962T ,hey saw, quite clearly, that nowhere in the majority opinions was
any reliance placed at all-neither in the Judgment nor in the majority
opinions-upon Article 80,paragraph I; and that in the minority
opinions-in passages containing , with respect, very cogent reasoning-
it was indicated why no reliance in this regard could be placed upon
Article 80,paragraph 1.Therefore, the Applicants had to find some way
ofgetting away from this strong reliance which theyhad placed, through
their interpretation of the Court's Opinion of 1950 ,n the effect of
Article 80,paragraph r, in this whole matter. They were faced with this
dilemma: they either had toadmit that their interpretation of the Court's
Opinion in 1950on this point was wrong, or they had to contend that the
Court'sreasoningon this point waswrongin 1950 .hey chose, apparently,
the latter. They did not admit that tlieir interpretation of the Court's
Opinion wasivrong. They suggested rather that there was incompletenesç
of presentation, on their part, on this question in 1962. They ended up
different view.hat the language of the Court might, with respect, imply a
In other words, Rlr. President, they did not walk away from the
Opinion; they crawled away from it. This is perhaps to be understood
in view ofthe fact that they are still asking this Courto reaffinn that
Opinion.
1shall deal later with the merits of the Applicants' present contention
regarding Article 80, paragraph r,and1 shall submit to the Court that
they still assign to it a meaning, or a value, which it cannot have-a
meaning, or a value, regarding possiblepreservation of rights,or contin-
ued existence of rights, subsequent to the dissolution of the League.
That is a question of merit-1 shall corne to that later.
At the moment 1am merely concerned with indicating how the Appli-
cants' case in this regard has changed, andthe significanceof the changed
position in so far asthe Applicants' reliance on the majority opinion of
1950 is concerned.
1revert now to the question of the substantive grounds. nolv indicated
by the Applicants, for contending that Article 6 is stillin force and that
the obligation of accountability isnow owed to United Nations orgms.
The Applicants' contentions, Rlr. President, are in my submission,
still not clear, despite al1that they have said in these Oral Proceedings.
This is due mainly to the facthat ,aIthough the Applicants Saythat they
rely on "general and applicable pnnciples of treaty interpr+etationHT-we
find that in the verbatim record at page 126,supra-they still import ~nto
the argument matters which, strictly speaking, or shall I Say,on the face
of it,seem to fail outside the sphere of treaty interpretation, asif some-
thing from outside the Covenant of the League and from outside the
mandate instruments themselves were being imported into the matter.
They use expressions such as "international regulations [particular to
and] governing the mandate institutions". That we find in the verbatim
record at page 127 ,ZL~YU.They speak of "mandate 1aw"-that isin the
verbatim record at page 180 upra. Thcy speak of "law of the mandates
system" and "principles of objective mandate 1alv"-that is in the
verbatim record at page 207, supra. We find that rny learned friend ARGUMENT OF MR. DE VILLIERS 305
speaks of the Mandate as a "novel ... institution, endowed with essential
attributes"-that is in the verbatim record at page 125, SUPY HUe.
speaks of its "novel character as a new international institutionJ'-that
isin the verbatim record, atpage 126,supra. He says "that the Mandate,
although an agreement, alço is an institution, which created and intro-
duced new international regulations particular to itse1f"-that isin the
verbatim record at page 126, supra-and he quotes the phrase "the
international rules regulating the Mandaten-that is in the verbatim
record atpage 126,swm an,d is a quote from the Court's Opinion of 1950.
Air. President, al1 this, in my submission, is quite unobjectionable,
provided we bear in mind that these mandate rules-these mandate
regulations-did not corne into existence mysteriously from nowhere, or
at any rate from some source outside the Covenant or the mandate
instruments. As long aswe keep in mind that the only place where they
are to be found, and where their extent and their meaning can be ascer-
tained, is in the Covenant and in the mandate instruments made in
pursuance of the Covenant, then there can be no objection to language
ofAlr. President, that indeed is made very cleaas being what this Court
contemplated in 1950 when it used some of those expressions. If we
refer to the1950 Opinion at page 141 we findthis passage:
"The international status of the Territory results from the
international rules regulating the rights, powers and obligations
relating to the administration of the Territoryand the supervision
of that administration, as embodied in Article 22 of the Covenant
and in the Mandate." (I.C.J.Reporfs 1950, p. 141.)
Alr. President, it stands to reason that this must beso.1 know ofno
mysterious source of law outside the mandate instruments which could
have brought into existence mandate regulations as a special status, as a
special regime-with some special mystery attaching to it all-mandate
regulations, which are not to be found in the instruments themselves
but somewhere else,and the place where they are to be iound is nowhere
indicated by my leamed friend.
If he indicates in his argument that he uses those expressions as
sornething coming from the instruments and as mereIy being a figurative
description of the provisions of those instruments and their le$al effect.
then 1 have no objection. It is not clear at al1 from his exposition that
that iswhat he has in mind. At times, his language, in rny submission,
strongly suggests that he açcribes to such international regulationç, or
international rules, an origin and a legal force operating outside these
instruments themselves.
1 refer the Court, for instance, to the verbatim record atpage 127,
szipra,where this passage occurs:
"Interpretation of Article 6 ofthe Mandate, as is true of al1 its
other provisions, is to be based upon both the international regda-
tions governing the Mandate institutions,in the words ofthe Court,
and the relevant principles of treaty interpretation, soundly applied
in the light of the international rules thus regulathegMandate."
In that passage, Mr. President-let us pause there-it starts off, not on a
basis of saying: "Now, what are the provisions of the instruments and
what effect is to be given to them, how are they to be interpreted?"
It starts off with a referencto "the international regulations governing306 SOUTH WEST iZFRICA
the mandate institution",and it says that interpretation of the Article
"is to be based upon" those regulations.1should have said, MT .resident,
that when we interpret Article 6 of the Mandate, that is part of the
interpretation of the regdations: there is nothing that is be based upon
these regulations; they are part and parce1 of the sarne instrument. The
passage proceeds "interpretation ... [also] is to be based upon .. .
relevant principles of treaty interpretation,soundly applied in the light
of the internationalrules thus regulating the Mandate". In other wordç,
the ordinary rules of treaty interpretation are also to be applied with
some qualification-that qualification being the way in which they are
affected by international ruleç regulating the Mandate.
Clearer evidence is afforded in later passages.\Ve find the following in
the verbatim record at page 169 ,u$ra:
"Indeed, the requirement of international supervision is not incon-
sistent with a presumption that an administering power will,andmust,
endeavour in good faith to promote the welfare of the inhabitants;
thiswould seem to be an axiomatic, primitive and basic requirement,
underlying al1international agreements, or any other agreements of
any characier. The submission to international accountability is
based upon the prernise that decisions affecting the destinies of
dependent peoples should not be unilateral and unsupervised,
however weil-intended, or well-motivated, or ill-intended, or iU-
motivated, such decisions, with respect to their destiny, progress,
and u~elfare,may be."
Mr. President, where does it sta.rt? Not with a provision of the Covenant
or of the mandate instrumen t,t with a presurnption, obtained from
where we do not know-a presumption that an administering power will
do certain things; that itis axiomatic, primitive and basic that when
there is a government of a dependent people, or government in the in-
terest of the people, in a trust capacity, theisto be international super-
vision of some kind. This suggestion clearly is something coming from
outside those instruments, something of the nature of a presumption,
something appearing to be based on principles oflaw not to be found in
the provisions of the instruments themselves. But Isubmit, Nr. Preci-
dent, that no basis whatsoever has been laid foi thus approaching the
matter. Theie is, as far aç 1 am aware, no legal principle-no principle
or international law generally recognized-applying to this particu1a.r
matter in this substantive way, as suggested by the Applicants-no
principle of that kind isto be found outside the relevant instrument at
all.
In the verbatim record, page 170, supra, we find this passage in the
argument of the Applicants:
".. . the unsupervised government or regulation of the territory, is,
as a matter of mandate law, mandate re.yulation, per se a violation
of the Mandate if, as we assume and as the Court has twice held,
the Mandate continues in existence".
Again it is a matter of mandate law, mandate regdation, and there is
no indication that that mandate law, mandate regulation, is to be found
jnthe only way in which 1 submit itcsn be found, namely by ascertaining
and jnterpreting the content of the relevant instrument.
Mr. President, the Applicants have at kt, however, nomrtaken note
of the hasic contentions of the Respondent in regard to Article 6,and ARGUMENT OF MR. DE VILLIERS 3O7
virtually for the first time we find an attempt on their part to meet Our
argument on the crucial aspects of the general attitude which we take.
We welcome that. Previously it waç almmt a game of hide-and-seek to
see where our argument iç met, wheie it is evaded, where there is an
attempt at side-stepping the ïvhole issue. Now that an attempt is made
to meet the argument. in its crucial aspects, itgives us an opportunity
of discussing those crucial aspects further and of stressing their signifi-
cance in answer to the attempt which has been put up to meet those
arguments.
The Applicants begin by restating our contentions as they see them,
and they state them as involving "two major premisesU-the expression
used by my leamed friend in the verbatim record at pages 124-125,
st~fi~i. nd he proceeds to Say, in the same record at page 131:
"Under Respondent's premise, that is, that of a limited original
obligation to report to a specificsupervisory organthe disappearance
of such an organ without more would necessarily have ended the
obligation."
That is a correct restatement of that premise in our argument.
The Applicants then proceed to concede the Iollowing, at tlie same
page of the record:
"It would legally follow from such a premise that a wholly new
undertaking would haire been necessary to amend the original
agreement in a material and, indeed, essential respect. It likewise
would follow that an amendment of such a nature would have to be
estabiished by evidence so unequivocallp clear as to permit of no
other reasonable conclusion."
That again; Mr. President, is a very fair staternent-restatement-of
the consequences that would flow from our basic argument as to the
interpretation to be put on the obligation as originally described.
But then the Applicant s go further ,and contend that Respondent's
propositions are "irrelevant because they proceed from a false prernise
r-egarding the essential natureof the Mandate which is before the Court"
-1 quote from the same page of the record. The correct premise, ac-
cording to the Applicants, isthat the authors of the mandates systern
intended to create, and did c~eate, an obligation of "international ac-
countability" as a "basic and integral feature of that system"-that we
hd in the verbatirn record at page 126,szcpra.So here we have a meeting
of two basic contentions-a contention on our part that the obligation
related to specificsupervisory machinery, and a contention on theother
side to meet that, that the obligation related to "international account-
ability" as a general concept, as a basicand integrai feature of the man-
dates system.
Now, Mr. President, on the basis of their premise of "international
acconntability", the Applicants then Say the following-I read from the
verbatim record at page 131, st@ra:
"[They] do not think it necessary to malie extensive and detailed
argument to support the conclusion that the events and transactions
during the relevant period do indeed permit of no other conclusion
than that, had a wholly new agreement been necessary to amend the .
Mandate in an essential respect at thattime, such a new agreement
\vas, in fact, concluded among al1 the parties to those transactions
and events".30~ SOUTH WEST AFRICA
It isa long 'andsomewhat involved sentence. but on analyçis, &Ir.Presi-
dent, it seemsto me to mean this: that the Applicantsstill do not accept
the challenge of establishing or contending that the facts of the period
1945 and 1946 establish unequivocelly and clearly that "a wholly new
agreement", to use their phrase, was entered into relative to supervjsion
of a mandate administration. They do not think it necessary to enter-
tain an enquiry of that kind, or to embatk upon an argument of that
nature, because they submit that our premise is wrong. In other yords,
they seem to rest essentially on the differcnce between the basic conten-
tions-the basic difierence between a specific supervisory authority, on
the one hand, and a general obligation of international accountability,
on the other hand.
As we go along, however, \ve find that although they do not accept
that they have to establish-and apparently they do not atternpt to
establish-a wholly new agreement in 1945 and 1946,they are prepared,
indications to the contrary-toly accept that to a Iesser extent. FIo~ving
from their premise, there arises a question whether a consent \vas given
to a substitution of supervisory organs, and they subrnit that such con-
sent was in fact given in the period 1945-194 B6ut 1shall come to that;
perhaps 1 should take their exposition in that regard step by step. Ac-
coiding to the Applicants the obligation of accountability which they
say is an essential and an integral element of the Mandate "must survive
so long as the Mandate itself endures". That is a contention which they
rnake-we find it in the verbatim record at page 132, supra. 1 take it
that that is a conclusion at which they arrive-they do not attempt to
point at any langage in the mandate instrument or in the Covenant
which puts the Mandatory's obligation in that form.
They then argue that upon acceptance of their premise of a general
obligation of intemationd accountability, the only question for the
Court to decide wodd then be "whether the function of supervision
passed to the nearest equivalent of the League, to wit, the United
Nationsu-verbatim record, page 132. And they contend that if the
function of supervision did not pass to the United Nations, Article 6
would not have lapsed but, in their words-
"... would have become inoperative for lack of asupervisory organ
with capacity to replace the League Council. In such a case, and
pending establishment of an international administrative orgaii,
if any, the only continuing method for insuring international super-
vision over the sacred trust would be that of judicial protection,
as a first and only recourse, rathes than asthe 'finablulwark'."
(P. 132,~~p/fl.)
And it is upon this line of reasoning that the Applicants conclude as
follows. Tliey Say:
"The answer to the question whether Articles 6 and 7, para-
graph 1, of the Mandate becarnc inoperable, or whether the United
Nations rcplaced the League as the suprvisory organ, hinges upon
both a legal analysis of the 'international rules' regulating the Man-
date, andirpon ascertainment of the intentions of the arties with
respect to the events and transactions which transpire 1 during the
period when the League wasdissolved and the United Nations began
operationç." (Ibid.) ARCUhfENT OF MR. DE VILLIERS 309
The two elements, then, are analysis of the international niles regulating
the Mandate and ascertainment of the intentions of the interested parties
during the period of transition. For the first time it seems now that this
element of the intentions of the inteiested parties during that period of
transition is introduced or acknowledged by the Applicants as being a
relevant and significant aspect of their case regarding Article 6.
How is al1this to be understood, Mr. President? On analysis it seems
to us to mean the following. Eirstly, that our prernise is false regaiding
its obligation under Article 6, narnely that it was obliged to report and
account to a specific supervisory authority. That is the first proposition
in the Applicants' case as presently advanced. This seems to be a neces-
sary element in their case, because if Respondent's premise is held to be
correct, the Applicants apparently do not take up the challenge of
demonstrating that the events and transactions over the years 1945 and
thereafter establish an unequivocally clear, affirmative agreement to
accept the supervision of the new organ, that isthe United Nations.
Secondy, on the basis that the Applicants' premise is correct, narnely
thatthe obligation under Article 6 was one of international accountabil-
ity, they then say that the discoIution of the League could not put an
end to the obligation, but would merely have rendered it inoperative,
or dormant-they use the word "inoperative". That would be the posi-
tion on their submission if the United Nations was not substituted as a
supervisory organ.
And then, theii third proposition is apparently that the events of the
period 19.1a5 nd 1946and thereafter established that there was in fact
consent on Respondent's part tliat the United Nations would replace
the League as supervisory organ. In other words, they do not accept the
task of establishing awholly new agreement, as they cal1it, but they do
accept the task of establishing a new agreement, a new consent, directed
at the more limited objective, as they put it, of getting a substitution
of a supervisory organ for the puIpose of keeping in operation a general
obligation of international accountability which would otherwise be-
come dormant.
Mr. President, unfortunately this proposition, that consent on the
Respondent's part, even in this limited sphere, was necessary, and that
it was in fact given during the relevant period, is not put expIicitly and
absolutely clearly in the Applicants' case, aithough it does appear on
analysis that itis implicitin their case asthey now formulate it.
They speak in this regard in the last passage wIrich 1 quoted of "as-
certainment of the intentions of the parties concerned during the period
of transition", and on analysis of their arguments one finds that they in
fact seek to find in such events and transactions consent on Respondent's
part to acceptance of the United Nations as the new supervisory organ.
Thus, after a lengthy review of the'events and transactions over the
years 1945 and thereafter, they seek to dernonstrate manifestations of
consent on Respondent's part, and they Say first that : "Acceptance by
Assembly] clearly involved an explicit undertaking of some sort." League
(P. 212, ss~pra.)
On the same page we findthis: "Respondent's undertaking must and
can only be read asa clear commitment to submit to supervision by the
United Nations."
In the verbatim record at page 212 we find that Rcspondent "agreed31° SOUTH \\'EST AFRICA
to, or acquiesced in, an undertaking to carry on an obligation which
this honourable Court has defined as the very essence of the Mandate",
and on the sarne page: "The Mandatories, including Respondent, ac-
cepted the continuance of the existing regimes, including the substitu-
tion ofthe United Nations for the League asthe supervisory organ."
These formulations then seek fairly clearly to attribute to the Respon-
dent and, it seems, to the other Mandatories as well,a consent to accept
the substitution of the United Nationç for the League as supervisory
organ, so that this obligation of international accountability under the
Mandate would not become dormant but ~vouldcontinue in operation
with this new substituted organ.
And it would seem f~omthis analysis which I have just given to the
Court that that consent on Respondent's part in the years 1945to 1946
is now accepted by the Applicants as being a necessary eIement in their
case.
Through all the phases throügh which thiç case has gone, this is the
first time thatwe find that onthe Applicants' part. Formeily the position
which they interpreted in such a wayiethat our corise~?twas not necessary
-our consent ducing the years 1945 to 1946. They interpreted it, as 1
have pointed out, as resting on a doctrine of succession, or a principle
of succession, which was to be found in the original mandate instrument
and which then operated independently of any furthcr consent; the
events in 1945 and 1946 merely being referred to for purposes of con-
firmation. They did the same in the Oral Proceedings, and the Court will
remernber that in so far as this doctrine of succession was concerned,
when we challenged the A plicants on that, they eventually said that
they did not bear the bur ea of sustaining the validity of the Opinion
of 1950.
The Applicants' Agent, my learned fnend Jlr.Gross, then said specifi-
cally, andthis was a very important aspect of the presentation of the
Applicants' case in 1962 :
". ..the fact is that ... none of the decisive reasons underlying
the Opinion of 1950 rests on a premise of 'tacit consent', whether
on the part of the Kespondent, the League of Nations, or the United
Nations. Tiie 'general considerations', as the Court itself describes
them in its Advisory Opinion at page 136, which in fact undezlay
the Court's conclusion, proceeded from the very legalnature and
legal consequences of the Mandate institution itself. Theçe 'general
considerations' ... involved the most basic concepts of the authors
of the Covenant and the authors of the United Nations Charter."
(VW P. 299.1
Also, Jlr. President, in their Reply-the final pleading filed on behalf
of the Applicants-the Applicants still argued on the bais of an "or-
ganized international community" theoqr, the contention being:
"The United Nations has replaced the League of Nations as
çuch 'organized international community', and Respondent's
obligation of international accountability. accordingly, is owed to
the United Nations in that capacity." (IV, p.539.)
That again, although it was not cailed a theory of succession or a prin-
ciple of succession,involved the same thing, It involved that the instru-
ments of 1920 were to be so interpreted, or there was to be read into ARGUMENT OF MR. DE VILLIERS 311
them an implication, to theeffect that the supervisory authority would
not be the Leape organs as such, but the League organs in a special
capacity as representing or being the organized international comrnunity.
The result was that there was an automatic succession of the supervisory
organ in 1945-194 ndependently of consent, because the United
Nations was said to replace the Leaguc of Nations as the organized inter-
national community.
And they then also referredtothe events of1945and thereafter merely
as "manifest[ing] the clear intention of al1 concerned to preserve and
assure proper discharge by the organized international community with
respect to its responsibilities towards the inhabitants of mandated
territories".
This, then, hlr. President, is inmy submission the major point that
emerges from this review of the Applicants' attitude through these pro-
ceedings, until we corne to the statement of their attitude today. They
now acknowledge the need for establishing consent on the Respondent's
part, and they contend that the events establish consent on Respondent's
part at this stage of transition. They still, in that respect, attempt to
draw a distinguishing finebetween, on the one hand, establishing a
wholly new agreement and, on the other hand, establishing something
less-something merely involving a substitution ofa supervisory organ.
Mr. President, in my submission, in principle there isno distinction.
If neur consent-a ncw agreement-has to be established, then a new
agreement has to be established. Whether it relates to proposition A or
proposition B does not matter, as a matter of legd aapproach. And al1
the requirements which are to be laid down for the establishment of a
consent by implication apply to the one asuch as it applies tothe other,
but that isamatter which 1shall develop at a Iater staofthe argument.
First, Iwould like to indicate to the Court the possible reason why it
seems to us the Applicants have now suddenly changed the basis of
their case regarding Article6,because this may throw some light on the
type of difficultwith which they are faced in theircase in this regard.
1 must admit that what 1 am saying to some extent isspeculation;
1 can only draw inferences from what we have before us. They themselves
would best know why they have changed their case in thirespect.
Mr. President, in Oursubmission, the explanation lies in a combination
of certain factors. The first one is that the Applicants,n reading the
1962 Judgment of this Coult and the opinions of the individual honour-
able judges concerned, found quite clearly that a principle or doctrine
of succession found no favour whatsoever with this Court in1962 .have
already pointed out that in regard to their case on jurisdiction the Ap-
plicants' main 8ne of argument was a doctrinc of succession-a doctrine
of succession to the effect that the powers of the League organization,
as an organization regarding Mandates, were transferred to the United
Nations as an organization, and that hnnd inhand with that devolution
of powers therewaç alsoa transfer of the co~npetence of League Members
to invoke the jurisdiction of the Court to United Nations Members.
That was the first of two alternative arguments upon ~vhichthe Appli-
cants sought to establish the jurisdiction of this Court, and although
the majority of the Court found in favour of the proposition that the
Court had jurisdiction, not a single judge based his opinion or judgment
on that contention.
On the contrary, not only did three judges in the minority indicate3x2 SOUTH \\'ESTAFRlCA
expressly that there was no justification for anydoctrine of succession
of that nature either in relation to Article 6 or in relation to Article 7,
but there was alsoone of the judges in the rnajority-Judge Bustamante
-who expressly said that in his view the theory of succession could not
be established. We quote a relevant passage in the Countei-hlemorial,
II,at page 153.Judge Rustamante said:
"The above findings do not in any way imply an intention to
establish or to regard asestablished the principle of automatic or
exofici uccession of the United Nations to the League of Nations.
It has been suficiently clearly shown, in the course ofthe written
and oral proceedings in this case, that the theory of automatic
succession is inconsistent with the historical background of the dis-
cussions and resolutions of the two great bodies during the transi-
tional period in rg45-1946.''(1.C.J.Reports1962, p. 364.)
It is true that the Applicants still persistedin their Reply with a
presentation of an organized international community theory which,
however, they àid not cal1 a theory of succession or devolution. But,
Mr. President, in ou Rejoinder, V, where we went through this matter
at pages 31-34w .e demonstrated that that isthe only possible way in
which this theor , or contention, regarding an organized international
comrnunity eoulibe viewed. It could only be viewed asanother forrn of
putting a contention regarding a principle of succession which would
operate autornatically and independently of consent at the stage of
transition. And tve pointed out that if that theory was to be accepted,
it would have to be on the basis of an implication to be read into the
initial instruments, viz., the Covenant of the League and the mandate
instiument. l!c pointed out, hlr. President, what difficulties there would
be in the way of arriving at such an implication, rendering it, in 01.1s
submission, an entirely impossibleproposition. \Vereferred in that regard
toan extract from the opinion by the honourable President of the Court
in the United Natioqrs Ex$elises Opinion in JuIy 1962, indicating the
difficulty there is in the way of a contention that a basic instrument
such asthe United Nations Charter, which was being dealt with in that
case (but the observations would apply also tc an instrument of the
nature of the League Covenant)-what difficulties there are in the way
of imfilyirtg in an instrument of that kind something which was not
expressly stated, or is not clearly and implicitlconveyed by the wotds
used.
Although such an instrument arises by way of processes of agreement,
and to that extent then the ordinary processes of treaty interpretatlon
and the ordinary approach of treaty interpretation are applicable, never-
virtually as statutes. They aie to have a very long period of apphca-pe'ate
tion; they are to affecta multitude of States and their interests; they
are to affect not only the original contracting parties ~ho brought the
instrument into being, but alsonumerous parties who may become parties
to the instrument at later dates and who had no part at al1in the pro-
cesses that brought those instruments into effect. Those factors were
stated in the opinion of the honourable President in the United Nations
Ex$enses case, and we refer to that in oitr Rejoinder, V, at pag32, ln
this particular context. We also dealt with the facts in our Rejoinder
and pointed out how impossible it would be, in the light of the clrcum- ARGUMENT OF MR. DE VILLIERS 3I3
stances which existed at the time of the formation of the League of
Nations and the establishment of the mandates system, to infer a com-
mon intent on the part of the parties concemed to have such a vague
form of obligation which would render the mandatory powers bound to
organizations which could not be contemplated at that stage, of the con-
stitution of which they would know nothing, of which the only thing
the organization could in some waywoddconfonneeto the description of being
an organ of the organized international cornmunity, then you must be
willing to submit to supervision by such an organ." We pointed out that,
from a practical point of view, that was a coiiipletely impossibleproposi-
tion to establish to overcome the difficulty, under al1circumstances, of
establishing an implied term in an instrument of the type with which
we are dealing.
That was the position as it stood at the conclusion of the pIeading.
Before the Rejoinder, Mr. President, there was another development,
namely the judgrnent of this Court in the BarcelonaTraction case, and
it seems that the Applicants realised their dilemma, viz., that for any
theory or principle or doctrine of succession, they had to find samething
else. They thought that they could find a solution on the basis of the
reasoning in the Barcdona Traction case, with which they now appear
to attempt to identify tlieir case.
In that case, if the Court will recall, the question at issue was the
effect ofa particular adjudication clause, and the effect on the adjudica-
tion clause of the dissolution of the Permanent Court, which was the
tribunal referred to in that clauseThe Court's construction of the clause
itself in theparticulai. instrument in which it occurred, and in the par-
ticu1a.rcircumstances in which it came to be agreed upon, was as follows:
"It was not the primary purpose to specify one tiibunal rather
than anothe~, but to create an obligation of compulsory adjudica-
tion. Such an obligation naturally entailed that a fom wouId be
inacated; but this was consequential.
If the obligation exists independently of the particular forum ...
then if it subsequently happens that the forum goes out of existence,
and no provision is made by the parties, or othenvise, for remedying
the deficiency, it will follow that the clausecontaining the obliga-
tionwilIfor the tirne being become (andperhaps remain indefinitely)
inoperative, Le., without possibility of effective application. But if
the obligation remains substantively in existence, though not func-
iionaIly capable of being implemented, it can always be rendered
operative once more, if for instance the parties agree on another
tribunal, or if another is supplied by the automatic operation of
some other instrument by which both parties are bound." (I.C. J.
Reports1964,pp. 38-39and V, p. 47.)
Mr. President, there then is the analogy which the Applicants now
seek to apply by saying that the original obligation here was not
tied up to a particular supervisory administrative organ but that it
was a general obligation of international accountability; one that could
become dormant upon the falling away of the organ, but would not
disappear.
But now, having accepted that astheir basis, the Applicants aIso had
to accept the further implication as set out in this Judgrnent, i.e., they314 SOUTH WEST AFRICA
had to accept the further implication that this obligation would remain
domant unless some new agreement was entered into regarding a
substitution of supe~sory organs, or unless some other instrument by
which both parties were bound provided such an organ relative to the
particular obligation. And that is why,it seems tuç,the Applicantshave
now acceded to the position that they have to establish at least this
substitution of supervisoryorgans by a process involving the consent of
the mandatory, in order to bririg them to a substantiation of their
subrnission that ive are now obliged to account to the organs of the
United Nations.
dilemmaowas farPasthe Igjo Opinion wasconccrned. 1may say, in paren-
thesis,1shall deal later with the merits of the Applicants' attitude as now
based on this analogy of the reasoning in the BarcelolraTracliofl case.
1do not intend to deal with that notv. I am just sketching the develop-
ment of their attitude. FVhat1 want to stress now is that the Applicants
were now placed in a dilemma asfar as the 1950Opinion was concerned.
They had to sbide by their former interpretation of the Opinion ashaving
held that substitution of the United Nations for the Leape took place
by virtue of a doctrine or principle of succession, in which case they
would be taking up an attitude at variance with their owninterpretation
of the Opinion. They would then no longer be able to rely so strongly on
the Opinion assuch. In other words, they would then have to çay "our
earlier interpretation of the Opinioisstill correct". The Opinion did not
rest upon anything that happened in 1945 or 1946T.he Opinion rested on
a doctrine of succession which emanated from the original instrument.
That is, too, their interpretation of the Opinion, but their oïvncontention
is now different-their own contention now is that the matter really
rests on something which happened, or is dependent upon an essential
link of something which happened,in 1945 or 1946.Then they could now
no longer rest upon the Opinion assuch.
That was the one alternative open to them, the onehorn ofthe dilemma.
The other one was this. They had to concede that theirformer inter-
pretation of the 1950 Opinion was wrong and that the Court in fact, in
1950. based itsfinding that the United Nations had rcplaced the League
assupervisory authority, not only on what they described as the inter-
national rules regulating the Mandate but also on tacit consent, on
Respondent's part, in the years 1945 to 1946A.nd as soon, hfr. President,
asthey conceded that-that the Opinion in 1950 also rested an this
necessary element of a new consent or agreement in 1945 and 1gq6-then
the Applicants would at once acknowledge something which they were
never prepared to ackno\vledge before, namely the potential relevance
and significance of the new facts which we have brought before the
Court, affecting the weight to be attached to the 1950Opinion.
Now, Mr. President, how did the Applicants react to this dilemma?
Thcir rcaction is,in effect, in our submission, rather pathetic. In effect,
they represent that they still rely on the 1950 Opinion but they give a
new interpretation to it, away from the succession idea, and, 3s a bsçis
for that, they adjust theiown attitude so as to fit in with this new view
ofthe 1950 Opinion asnot being based on asuccession idea but asbeing
Mandatory's partecandeas beingçaimedheat the maintenance of the status the
quo. ARGUMENT OF MR. DE VILLIERS 3I5
So we find, Mr. President, that first they adjust their own attitude and
they Say in the verbatim record at page 132,supra:
"Reference to 'succession'in the Applicants' pleadings is intended
to refer to the fact that there was no mechanical or operational
problem of succession. The terrns 'replacement' or 'substitution',
might, indeed, have better conveyed the intended sense, and the
Applicants wodd have preferred to hâve used them and regret that
they did not."
1 have pointed out before, Mr. President, that this change now is not a
mere change of tenninobgy; it isa change of substance, and I do not
have to explain again what the change of substance involves. It involves
a complete departure from the concept of a succession operating in-
dependently of consent in 1945 or 1946, to acceptance of a proposition
that new consent in 1945 and 1946 is a necessary link in the Applicants'
case.
Then, Mr. President, tliey proceed toassociate themselves witk state-
ments made by the then President of the Couit, the honourable Judge
Winiarski, and other judges-the other judges who gave a minority
opinion-in 1956, in the1956 Opinion regarding South West Africa, on
the question of the further interpretation of the 1950 Opinion. And the
Court will recall that there wasinthat Opinion (that was on the question
of the oral hearing of petitioners at the United Nations) the question
whether the granting of oral hearings to petitioners at the United Nations
would be in keeping with that part of the Opinion of1950 which said tbat
the degree of supervision to be exercised by the United Nations organs
was not to exceed that exercised by the League organs, or words to that
effect. It was common cause that during the time of the League the
League orgms never gave oral hearings to petitioners. In fact, it was
contended, and the majority of the Court found, that the League had the
power to grant such oral hearings but never made use of it, and the
question then arose as to the interpretation of the1950 Opinion. Would
this indication, that the degree of supervision is not to be more onerous
than in the time of the League, refer to the powers which were vested in
the League, or wouId it refer to the actual practice in the time of Fe
League? Would the United Nations have to continue the actual practice
and be bound by the limits of the actual practice, or could they go to the
full extent of the limits of the powers actually vested in the League,
whether the League exercised them or not? And the Court will recall
that there was a difference of opinion between the rnernbers of the Court
on the manner inwhich the 1g5c Opinion was to be interpreted in that
respect.
President Winiarski sided, in a separate statement, with the conclu-
sion arrived at by the majority, nameIy that the United Nations organs
were competent to grant oral hearings, but he arrived at his con-
clusion for different reaçonfrom those stated by the majority in a joint
judgment.
The majority's judgment rested on the proposition that there had been
a succession or a devolution of powers from the League to the United
Nations. Therefore, the United Nations had the same powers as the
Eeague had in this respect and the United Nations could exercise the
sarne powers. The limit set was, therefore, the limit of the powers and
not the limit of the actual practice in the time of the League. That was36 SOUTH WEST AFRICA
the effect of the joint rnajority judgment-1 am leaving out of account
forthe moment that separate one of President Winiarski.
The minority opinion was based on the proposition that there was no
a continuation of the status quotofexisting practice, and that part of the
existing practice was the rendering of reports. The majority opinion
indicated thatthe Court in 1950 (asthe minority understahd it) held that
there was an agreement on the part of al1 conccrned to maintain the
status quo-that therewas in that regard alsoconsent on the mandatory's
part.
1shall read a passage at the top of page 65 in the 1956Opinion of the
minority in this regard :
"An important element of the situation then existing was referred
to on a number of occasions by the Court in the reaçoning of its
Opinion: that is, the willingness expressed by the Union of South
Africa to regard itself as continuing to exercise its Mandate, to
continue to administer the Territory in accordance with the provi-
sions of the Mandate and to continue ta render reports to the United
Nations."
1 shall deal later with the question whether that view of the situation
-whether there waç any such expression of willingness as regards the
But that is as a matter of interpretationasfto what the minority opinion
in 1956said regarding theOpinion of 1950.
President Winiarski sided with the judges in the minority as to this
interpretation of the 1950 Opinion but, as1have said, for a different and
distinct reason, came to the conclusion that iwas nevertheless competent
for the United Nations to exercise their power in regard to petitionern
The reasoning in that regard is not relevant to present purposes.
Xom, that, then-the effect of the 1956Opinions-demonstrateç the
significance of the Applicants' attitude where they say that they now
associate themselves with the statements made by the then President
IViniarski and by the judges who gave the minorit opinion. The extract
which they quote from President Winiarski is the $ollowing:
"... the whole structure of the Opinion of 1950 was founded onthe
objective elements of the situation which arose as a result of the
disappearance of the League of Nations, and thatthat Opinionfound
in the General Assembly the organ qualified to exercise those
functions which could not be allowed to goby default". (Pp. 132-133,
supra.)
The further passage quoted is this:
"The Court, unattracted bythe idea of succession, of the trkfer
of powers, based itself on the objective elements of the situation
-the importance of international supervision under the Mandates
System aswell as the provisions of the Charter of the United
Nations." (P. 133, sup/a.)
And the Applicants then state their ow attitude so asto agree with
this conclusion, as follows,that upon "evaluation andappreciation ofthe
events and transactions and undertakings which occurred in 1946 ,nd
during this period .. .","it becomes obvious ... that all the parties,
including the Respondent, the League of Nations, the United Nations, * ARGUMENT OF MR. DE VILLIERS 3I7
acted in a manner entirely consistent with the 'objective elements of the
situation which arose as a result of the disappearance of the League of
Nations' ".
Mr. President, 1 pointed out that the Applicants now identify them-
selves with the view which was taken by the minority judgeç in 1956,
together with Judge Winiarski, on the interpretation of the1950 Opinion,
as to whether there was a succession involved, or whether itwas a
maintenance of the status quo, and rest on objective elements of the
situation, including consent on the Respondent's part to a substitution
of the supervisory organ. The Applicantç, having identified themselves
with the attitude there taken up by the minority judges, and by Judge
Winiarski, Saythat they will present to the Court-
"... relevant events and undertakings which took place during the
period when the United Nations Charter was formulated, the League
of Nations aas dissolved, and the United Nations commenced
operations". (P. 133,s2cpra.)
And what would be the purpose of this survey, Mr. President? In the
Applicants' own words they indicate that they would show the follow-
ing-
"... that the League of Nations took alIaction which was appropri-
ate under the circurnstances, to make clear the intention of the
Members, including the Parties to these proceedings, that despite
its dissolution the obligations under the Mandate would continue-
'... until other arrangements have been agreed between the
United Nations and the respective mandatory Powers' ".
They say in the same recold (p. 134, su$ra):
"Respondent voted in favour of the 18April1946 resolution, thereby
acquiescin~ in what the Court termed a presupposition of the
~ea~ue that the United Nations would takêove; the supervisory
functions ofthe Mandate."
Clearly then, Mr. President, the object is to establish consent on the
part of Respondent. This is in contrast to the previous attitude of the
Applicants which was to the effect that-
rests on a premise of tacit consent, whether on the part of the Re-
spondent, the League of Nations or the United Nations".
Now if the matter hadiested there one could state with some conviction
buttit is not quite so easy, Mr. President. It may be some policy on the
part of theAppIicants to keep one guessing, because they Saysomething
and then Iater on in the recordwe againfind something which appears to
be either contradictory or a qualification of what theyaid before. In this
particular respect, the Applicants later in their oral presentation revert
to an interpretation of the 1950Adviçory Opinion. There they seem to go
back to the old story that consent in the period of transition was not
necessary. I quote from the verbatirn record at pages 207-208, supra :
"This honourable Court in the 1950 opinion defined and described
the legal and organic relationship between the League and the
United Nations in respect of the lawof the mandates system.
First, within the ambit of itsgeneral purposes and functions, the
United Nations, in fact, was the only organized body capable of318 SOUTH WEST AFRICA
perfoming an essential function under the Mandate. It was the only
body in which the internationalaccountabilityofthe Mandatory could
be satisfied. Hence, the power and capacity to perform the function
of internationaladministrativesupervision was reposed in the United
Nations, as a matter of international law, created by Article ofthe
Covenant, andthe rules regulating the Mandate itself. This legal con-
sequence was recognized in the hding of the 1950 Opinion, that:
'It cannot be admitted that the obligation to submit to super-
vision has disappeared merely because the supervisory organ has
ceased to enist, when the United Nations ha another international
organ perfoming similar, though not identical, supervisory
functions.'"
Again we see, Mr. President, a statement to the effect that the Court's
finding in the1950 Opinion regarding Article 6 did not rest ona prernise
of tacit consent but on the Iaw of the mandates system. But then, Mr.
President, again, irnmediately thereafter, in dealing with Respondent's
contention that the Court in rg50 had found, by inference, that Respon-
dent had tacitly agreed to accept United Nations supervision, the
Applicants Say (on pp. 207-208, supra):
"On the contrary, Mr. President, in the Applicants' respectful
view, the Court's conclusion patently is based upon a series of inter-
related reasons, ail of which reflect objective principles of la~varising
from and, inherent in, the mandates system itself,as well asconsent
manifested appropriately by Respondent and others during the
relevant period.
Thus, in the IgjO Advisory Opinion, the Court's conclusion rested
on both the objective situation created by the law of the Mandate
in the light of the League's dissoIution, and Respondent's consent
made manifest in that situation."
Mr. President, 1should have thought that \&en there was reference to
the objective situation created, and that that was the basis upon which
the Court made a finding, the Respondent's consent (to continue the
previous situation in regard, inler alia,to reporting and to there being
a new supervisory organ in respect of that) would be an element in that
objective situation-that in fact the objective elements, of which the
Court spoke in 1956 , ould reaily be evidential factors f~omwhich that
element of consent on the Respondent's part would be inferred-that
general agreement on the part of al1 concerned. Othenvise. 1 do not
understand what legal significance the reference to objective elements of
the situation could have. Eut here the Applicants speak of the objective
situation as being something additional to Responde~it's consent made
manifest in that situation.
Mr. President , the question then arises, what do the Applicants mean
exactly in this regard? Do they abide by their 1962 statement that none
of the decisivereasons underlying the 1950 Opinion rcsts on a prernise of
tacit consent? If that isso-if they abide by that-then in admitting
that they now have to establish consent they are departing from their
interpretation of the 1950 Opinion. And that, in effect, ~ould mean that
they now disagree with that Opinion in tu70major respects. The one is in
regard to the significance which they thernselves say that that Opinion
gave to Article 80, paragraph I (a matter with which 1 have dealt with
before),andthe other is in this respect, that they said the Opinion rested ARGUMENT OF MR. DE VlLLTERS 319
on a doctrine of succession,rendering consent i1945-19 u46necessary,
whereas the Applicants now reject a doctrine of succession and they
accept a necessity of consent in 1945and 1946.
That is the one possibility. The other possibility is, have they on
reconsideration changed their mind as to the interpretation which should
be placcd on the Court's Opinion of rgso? -4nd if they have, then they
cannot reasonably contest, Mr. President , that that Opinion rested
squarely on an interpretation of th1945-19 4vents, and inferring from
that a tacit consent on the part of al1concerned.
The mcre fact that it has taken the Applicants two years-more than
that-over four years from the start of these proceedings, MrPresident,
in 1960-to fmd out what their case really is in regardto Article 6 and
how it is to be justified in lawa11this vacillation about it, al1this un-
certainty, really raises the question ~vhetherthe Applicants could have
much rcalconfidence in their case in this regard.
On an analysis of what the Applicants now say, and stripping the
verbiage from the essence, it seems to us thatthe conflicting contentions
before the Court for consideration are now theollo~vîng.
Firstly, the Respondent contends that the obligation undertaken byit
in Article 6 of the Mandatewas to report to, and to submit to supervision
of, aspecificorgan ofa particular organization, narnely the Councilof the
League of Nations. The Applicants, on the other hand, contend that
Respondent's obligation is one of international accountability,that is,
that Respondent was subjcontends that upon the dissolution of the League
of Nations, the 'provisionsin the AIandate for supervision by the Eeague
were not modified or replaced by others serving the same purpose, and
that such provisions consequently lapsed. Applicants, on the other hand,
contend that the obligation of international accountability did not come
to an end at the dissolution of the League and that by consent, acquies-
cence, and so forth, on Respondent's part, the United Nations replaced
the League as the supervisoryorgan.
Those are the basic issues, and 1 might add as a corollary that the
Applicants apparently do not contend in the alternativethat-
". ..the events and transactions during the relevant period do
indeed permit of no other conclusion than that, had a wholly new
agreement been necessary to amend the Mandate in an essential
respect at that time, such a new agreement was, in fact, concluded
among dl the parties to those transactions and events". (P. 131,
szcpra.)
So what does this review show, Mr. President? Ithas shown, 1submit,
on balance and wading through the bit of uncertainty which apparently
still esists, that the former attitude relied upon by the Applicants as to
an automntic succession-something operating from out of the original
instrument rendering consent in 1945-19 4nnecessary-haç now been
dropped. That is no longer relied upon and the necessity for an element
of new consent in 1945-19i4 saccepted.
Secondly, Mr. President. in that same respect the Applicants' inter-
pretation of the mg50Opinion appears to have changed.
They now also interpret the 1950 Opinion to the effect that it rested,
at least in part, oanessential link of consent i1945-1946.
The third implication is (although the Applicants do not say so), that320 SOUTH WEST -4FRICA
facts, as they cal1them, which we introduced and which were not beforeew
the Court in 1950.
The fourth implication is that in saying that they are not deaiing rvith
the succession at all,that they associate themselves with the rninority
view in 1956 ,arnely that it was reliance on objective elements,mainte-
nance of the status quo, and so forth the Applicants now find themselves
in thispeculiar position that whereas they formerly rested on a view of a
majority of 12 to 2 in the 1950 Opinion, they now have to rest on a
minority view, asthe judges separated on this question of interpretation
in 1956.
Together, Mr. President, with the fact that they are now no longer
pressing Article 80, paragraph I, ashaving the positive force previously
ascribcd to it and ~vhichthey apparently still say was ascnbed to it in
the 1950 Opiion, al1 these factors indicate how open the whole question
now IS 3s to whether this Court ought to follow the 1950 Opinion or
whether itisto regarditself as freeto reconsidedl the relevant evidence
-al1 the relevant arguments-that are now before it, and come to its
own conclusion. 1Saythat with the greatest respect to the authoritative
weight that is normally given to a pronouncement of this Court. But in
dl these particular circurnstances, and having regard to the fact of the
inadequate presentation of facts in 1950-the significance of which now
becomes apparent aswell asal1these other factors which 1 have men-
tioned, which corne into operation jointly in that regard, Isubmit that
clearly the Applicants, by their own change of attitude, have amply
demonstrated the soundness of Ourcontention that the matter is to be
thoroughly reconsidered de novo, and that it is indeed an cntirely open
question on which this Court has to pronounce its judgment.
Now, hlr. President, we come to deal with the merits of the conflicting
contentions, those as they have now emerged, and those as 1 have just
summarized them. The Applicants said in that regard in the verbatim
record at page 181,sufiru:
"... appraisal of Respondent's first major contention rests upon
analysis and interpretation of events. transactions and undertakings
occurring during the period of the formation of the League and of
the mandates system. Similarly, proper evaluation of Reçpondent's
second contention, that is that when the League dissolved and the
United Nations commenced operations the United Nations did not
decide to assume supervisory authority, nor did Respondent agree
to subrnit to supervision by the United Nations, proper evaluation
of that contention involves analysis and interpretation of events,
transactions and undertakings occurring during the period of demise
of the League and the birth of the United Nations."
Now we quite agree with that statement, Mr. President, namely that
it is necessary to revert to the events of those two relevant periods. As
the Applicants did, we intend to cover both those fields in order to show
the correctness of our contentions and the fact that the answer attempted
to be given on behalf of the Applicants falls very far short of its mark.
But before 1 deal with the events themselves in those periods,1would
like to Saysomething on the general nature of the problems involved and
on the general legal principles involved ina resolution of the part~cular
issue. ARGUMENT OF MR. DE VILLIERS 321
The first issue is that which 1 might summarize as that of a specific
organ versus international accountability; Ourcontention being that the
obligation related to a specific advisory organ only; the Applicants' con-
tention being that it was a wider, and a vaguer, obligation of being obliged
to submit to international supervision-in other words, an obligation of
international accountability.
Mr. President, 1 have already referred to the assistance which the
Applicants apparently seek to obtain frorn some~vhat vaguely stated
concepts, which rnight be intended to relate to sornething outside of the
mandate instruments and the Covenant of the League itself-concepts
such as mandate law, mandate regulationç, rules of the institution, and
so forth. 1have made the submission and 1confirrn it-I cannot conceive
of any source outside those relevant instruments for any niles, orregula-
tions, orlaw, of this kind. The Court is, in terms of its Statute, Articl38,
required-
"... to decide in accordance with international law such disputes
as are submitted to it, [and the Court is enjoined by the Article to
apply] .. .:
{a) international conventions, whether general or particular estab-
lishing rules expressly recognized by the contesting States;
(b) international custorn, as evidence of a general practice accepted
as law;
(c) the general principles of law recognized by civilized nations;
(d) subject to the provisions of Article 59, judicial decisions and
the tcachings of the most highly qualified publicists of the vari-
ous nations, as subçidiary means for the determination of rules
of law."
The last one is subsidiary, the real sources being stated in (a), (b) and
(c). It does seem to me, hlr. President, that perhaps my learned friend
could elucidate this aspect when he addresses the Court again. 1 could
see no basis for classifying any mandate law, or any mandate regulatio?~,
under any of those headings, except in so faras they fall under heading
(a), narnely the particular instruments agreed upon and emanating from
those agreements-the Covenant and the mandate instruments.
In our submission, what is not part of the provisions of the instruments,
what is not part of the agreements set forth in those instruments, ex-
prcssly or by implication, cannot play any role in this matter. The foun-
dation for this obligation sought to be impoçed upon the Respondent,
of accounting to the United Nations Assembly, must rest on consent on
the Kespondent's part.
In other words, Mr. President, the question to be determined in regard
to this issue of specific organ versus international accountability, 1sa
question which must depend either on the interpretation of the expressed
text of the relevant instruments, or on an implication of a tacit agree-
ment in those instruments-an implication of something which is not
expressed in those texts-something which nevertheless could be sa~d
to be part of the actual, common intent of the parties as being part of
their agreement.
Those are the only two concepts of law which, 1 submit, really corne
into operation here: interpretation of a text; and the concept of implica-
tion of something which is not set forth in a text.
It may be relevant to refer to one or two of the principles which may32Z SOUTH WEST AFRICA
come into operation, or under discussion, with regard to the present
issues.
Before I refer to them, may 1 just indicate the nature of the dispute
in regard to the events of 1945-194 That isthe second phase of the
vital issues between the Applicants and ourselves. There again it seems
to be common cause between us that there was never any express agree-
ment-any express consent-to the effect that the United Nations was
to be substituted for the League as the supervising body. Therefore, Mr.
President, if such consent was given, asthe Applicants allege that it was
given, it would have to appear, in their own words "from something
which is so unequivocally clear as to admit of no reasonable doubt, as to
admit of no reasonable alternative".
In other words, the ordinary principles have to be applied there of
reasoning by inferencereasoning from circumstantial evidence-and
of finding whether that evidence establishes a certain proposition by in-
ference-the proposition here being that such consent was,in fact, given,
although it was not expressed.
In relation to that question, hourerrer, some of the çubmissions ad-
vanced on behaIf of the Applicants wouId appear to suggest that the
Respondent might be held bound on a basiç of preclusion or estoppei-
in other words, on the basis that, although it may not have actually
consented to a certain proposition, it soconducted itself that it was under-
stood by other persons or other interested parties to have consented, and
on that basis, the other parties having changed their position to their
prejudice, the Respondent must then be held bound to that proposition
as if it had consented. That would çeem to be what Applicants contend,
although they have not introduced it by that name. Some of their con-
tentions would seem to introduce a possible consideration of the principle
of preclusjon or estoppel, in that particular context. 'IVhen~vecome to
deal with that issue I shall also have to referbrieflyto the relevant prin-
ciples applicable there, but 1do not intend to deaIwith those now. 1shall,
for the present, confine myself to the principles of interpretation andthe
principles of possible implications of a tacit consent, in so far as they
relate to the original creation of the mandates system and the mandates
themselves.
Now, Mr. President, we have the two concepts: the concept of inter-
pretation of a text and the concept of possible implication.
As far as the first concept isconcerned-interpretation of a textTI
submit that it is realIy unnecessary to refer to any canon of interpretat~on
at all, that is, with regard ta the particular issue now confronting the
Court-the issue of choosing between a conclusion of a specific super-
visory organ ora concIusion of a vaguer concept of international account-
ability. That is so for the simple reason, Mr. President, that none of the
texts speaks of international supervision or of international accountabll-
ity: none of the texts is capable of bearing any meaning to that effect.
It is not a matter of saying that the text is capable of meaning (a), but
possibly also of meaning (b); that it is capable of meaning (a) and (b),
but the one is more natural than the other-that one is a more natural
construction in the context and therefore that is to be preferred to the
other as a general rule, in the absence of strong indications to the con-
trary, and so forth. No question of that kind arisesbecause the only
texts there are, are explicit ones-explicitly referring only to particular
supervisory organs to whom there is to be accounting to their satisfaction. ARGUMENT OF MR. DE VILLIERS 323.
So there is, Mr. President, no question of interpretation of an expressed
text which arises here. \men the suggestion by the Applicantç is that
the texts are to be construed as having the effect that the obligation
imposed upon the Mandatory was a general one of international account-
ability, then they are seeking to read something into the texts which is
not there. They are, in other words, seeking to imply an agreement sup-
plementary to the agreement and to some extent, as 1 shall indicate,
contradictory to the agreement as contained in the actual texts.
Now, Mr. President, in our Counter-Mernorial, in Book II, as my
learned friend bas already stated, we give a review of certain relevant
principles of treaty interpretation and of the principles appIicable to a
proposition of inferring a tacit agreement in particular instances. 1 do
not wish to deal with those in full atall.1 want to refer only to certain
aspects emphasized there in regard to this particular question of in-
ferring a tacit agreement in particdar cases. 1refer to page III of Book
II of the Counter-Mernorial (II). We put the matter in this way, MT.
President :
"The principle of actuality referred to above involves that the
parties must prima ,fuciebe considered to have expressed their full
agreement in the written text . Exceptionally, however, a conclusion
may be warranted that something 'goes without saying', i.s.t, hat
the parties were in fact agreed upon something additionai to the
test without giving expression to such agreement.
Courts in al1legal systems guard themselves against assenting to
such a proposed implication on any but the most cogent grounds,
realizing that implication on a basis of speculation, or of what the
parties ought reasonably to have done, wouId amount tothe making
of a new bargain or compact for the parties, as distinct from the
Court's true function of giving effect to the bargain or compact
actually agreed to by the parties themselves. Consequently the re-
quirement is stressed that an implication of such tacit colasensus
must arise necessariZyor inevitablyfrom the relevant facts, in the
sense that al1other reasonable inferences are excluded."
We submit that two further corollaries arise from the principles çtated
above: firstly-
"The term sought to be implied must be capable of formulation
in substantially one way only. If the content of the term sought to
be implied is doubtfd, then one cannot conclude that the parties
tacitly agreed on anything at all." (II,p. III.)
This may not be inapposite at all, Mr. President, to this vacillation in
Applicants' case on the question of whether Respondent assertedly
rendered jtseIf liable to an organized international community, or
whether it. undertook a more vaguely formulated obligation of inter-
national accountability or to subrnit to international supervision.
The other corollary is:
"Where the written document makes express provision for any
eventuality, there is increased difliculty about finding that there
must in addition be an iniplied term covering substantially the same
ground as such express provision." (lbid.)
Again not inapposite, Mr. President; where we find that there is express
provision for a supervisory organ, a part of an organization intended by SOUTH \\'ESTAFRICA
324
its founders to esist for an indefinite time; where there is in fact no con-
templation of that organization's going to terminate its existence; how
any scope or room for implication of an additional provision there to the
tion of international accountability-howat that can be said to arise is, ina-
myMr. President, the exposition here which 1 have read refers back to the
Oral Proceedings in 1962, in which we referred extensively to authority.
1am merely giving the Court the reference-it wi1lbe found in theOral
Proceedings of1962 at page 46 (VU) and the followingpages. Extensive
reference is given io international authority, but inasmuch as the prin-
ciples are in their essence the same as are applied by municipal courts
in respect of implications in contracts or agreements, some reference is
also made to pronouncernents of municipal courts in that regard; and
there are, because of their particuIar apposite nature as faas the issues
in this case are concerned, three pronouncements in that regard to which
1would wish to refer very briefly.
The first one is referred to at page50 (VII) of the Oral Proceedings.
at the bottom of the page. It is a reference to a statement of the relevant
principles by a judge of appeal, later Chief Justice of South Africa, in a
passage which we here cite from the Preliminary Objections (1) atpages
343-344, where the Iearned Justice Waterrneyer said the following :
that "there are two cardinal rules of logic which cannot be ignored" in
reasoning by inference. The first is that-
"The inference sought to be drawn must be consistent ~4th al1
the proved facts. If it is not, the inferencc cannobe drawn."
And secondly :
"Theproved facts should be such that they exclude every reason-
able inference from them Save the one sought to bedra~vn.If they
do not exclude other reasonable inferences, then there mut be a
doubt whether the inference sought tobe drawn iscorrect."
That accords, in rnysubmission, hlr. President, with formulations given
al1over thc world in regard to this question of reasoningby inference-
whether it is a question pertaining to irnplication of a term in a contract,
or whether it is a question in general pertaining to a concIusion to be
arrived at by having regard tocircumstantial evidence.
Then, at page 51 (VII), of the Oral Proceedings we cite this very well-
known pronouncement by Justice Scrutton in the case of Reigate. v.
UnionManzlfacturing Co.,where the matter was put in a manner which
is particularly apposite from a practical point of view to the type of
questions which arise:
"These principles [the learned Lord Justice said!, however, have
been clearly established: The first thing is to see what the parties
have expressed in the contract; and then an implied term is not to
be added because the Court thinks it would have been reasonable
to have inserted it in the contract.. ..A term can oniy be implied
if it Lis]necessary in the business sense to give efficacy to thcon-
tract;that is, if it is such a term that it can confidently be said that
if at the tirne the contract was being negotiated someone had said
to the parties, 'What will happen in such a case', they would both
have replied, 'Of course so and so wili happen; we did not trouble ARGUMENT OF MR. DE VILLIERS
325
to Say that; itis too clear'. Unless the Court comes to some such
conclusion as that, it ought not to imply a term which the parties
tiiemselves have not expressed."
And then, Mr. Preçident, there is thisfurther pronouncement at the same
page of the Oral Proceedings from Lord Justice McKinnon in Broome v.
Pardess Co-op.Soc., a case decided in 1940 in the United Kingdom. He
stated: "1 will add only one observation to those passagesJ'-this was
after a reference to,inderalia, the passage 1 have just read, and simiIar
passages in other decided cases. He said:
"Where the parties have made an express provision as regards
some matter with regard to the contract, it is, and must be, ex-
tremely difficult for either of them to Say in regard to that sub-
ject matter, as to which there isan express provision, that there is
also an implied provision or condition in the contract."
Those, then, are the basic principles in regard to implicatioof a term
not expressed by the parties.
Then, Mr. President, we corne to the principle of effectivenessreferred
to by rny leamed friend in his argument. We find his reference in the
verbatim record at page 182, sq5~a. There one sees that my learned
friend cites from what we had stated on the subject in our Book II, and
he cites the following:
"This principle takes account of the objects and purposes of the
instrument to be interpreted, and presumes that the partiesintended
for particular provisions the maximum effectiveness; consistent
with the clear text, towards achievement of such objects and pur-
poses."
At once, hlr. President, the words "clear text" stick out, i1rnay put it
that way, and it strikes one as an expression which ought not to occur
in such a formulation at ail. And indeed, my leamed friend immediately
proceeds to comment on that expression, and he says:
"Although Respondent's comments, just quoted, appear to the
Applicants in general to be a correct formulation, note might be
taken that the phrase 'clear text' in the second quoted passage may
involve a latent ambiguity:"
And so it goes on from the "latent ambiguity" to the effect that the
question introduces another canon of interpretation of natural and or-
dinary meaning, and so on, and that the Court has said that that rule
of interpretation is not an absolute one-that was the linc ofmy learned
friend's argument. Mr. President, the whole answer, the very simple
answer, to al1this is that the word "clear" does not appear in Ourformu-
lation at all.It was something interpolated-I don't know by whom,
but it came to be interpolated in this version which my learned friend
read out to the Court; and where my learned friend therefore speaks,
at page 182 of that record, of the "phrase 'clear text' as employed by
the Respondent", it isa misnomer. If we refer to page 112 of Book II of
the Counter-hlemorial (II),one will çee that the formulation is there
exactly as quoted, except for the omission of the word "clear", and of'
course that is the çound formulation of the principle: the Court, in ac-
cordance with what it regards as the intention of the parties, atternpts
to give to the provisions their maximum effectiveness consistent with326 SOUTH WEST AFRICA
the text-maximum effectiveness towards achievernent of the object
and purposes of thc particular agreement or instrument.
Now, Rlr. President, the way in which this principle can arise here
is notas an aid to interpretation, because, as 1 have said before. there
is no question here of competing possible meanings in a text to be inter-
'preted; there is a possibIe field for application of this principle; viz. in a
case where a text is not clear, where there are cornpeting possible mean-
ings and where that principle can assist the Court in preferring one mean-
ing to another, but that is not the sense in which it could arise Iiere.
The only sense in which it could arise would be as an nid to a court in
applying a proposition, or in considering a proposition,whether aparticu-
lar term is to be implied inaparticular instrument. We deal at page 112
of our Counter-Mernorial (II), with that difference in the possible field
of application of thisprinciple, and 1 proceed jmmediately then to this
second possible field. which is dealt with as from the bottom of page I12
and running on to page 113,paragraph 30 there:
"In its operation relative to implied terms, the principle of effec-
tiveness also has a relatively limited application. Basically it only
means that, for the purpose of deciding whether a term is to be irn-
plied or not, regard is to be had to the probability that the parties
wouId have intended a result which is in consonance with the general
object or purpose which they had in mind. To put it in a different
way, the fact that the parties had a certain object or purpose in
mind may in certain circumstances Pve rise to grounds for inferring
an implied term. In al1 cases the ordinary rules relating to implied
terms would still apply. Thus it would not be sufficient to have
regard merely to the purpose or object of the parties.The purpose
or object would be only one of the circumstances to he considered,
although in some cases it might be a very important one. It would,
however, always be necessary to examine al1the relevant facts and
circumstances, givi~lg due weight to each one. Furthermore, the
ordinary de applies that an implied term cannot override the ex-
press tems of the instrument, or operate to regulate some aspect
for which express provision is made in the instrument. Thus a
finding that the parties had a certain purpose or object in mind,
would not justify a radical amendment of the instrument in order
to give effect to such purpose or object. In this regard, particulai.
reference rnay be made to the follo\vingpassage from The Law O/
Treuties,by Lord McNair :
'The mle of effectiveriess must mean something more than, the
duty of a tribunal to give eflect to a treaty; that is the obvious
and constant duty of a tribunal; that is what itis there to do.
The rule must surely mean, in the mind of the party invoking it:
"If you (the tribunai) do not conçtrue the treaty in the way that
1 submit to you to be correct, this treaty will fail in its object."
But that isa fieti trincip'i,because, as has been submitted in
the previous chapter, it is the duty of a tribunal to ascertain and
give effect to theintention of the9ariies as expressedin the words
used !y them in the lightof the surroufiding circumstances. Many
treaties fail-and rightly fail-in their object by reaçon of the
words used, and tribunal5 are properly reluctant to step in and
modify or supplement the ianguage of the treaty."' ARGUMENT OF MR. DE VILLIERS 327
Again, Mr. President, in the footnote relative to the passages which 1
have read, there are references toour treatment of a nurnber of authori-
ties, international and from municipal courts and authorities. on this
aspect of t.he matter. One finds that at pages57 and the following of the
Oral Proceedings (VII). There again, there is only one very brief passage
-a pronouncement of the late Judge Lauterpacht, to which 1 would
refer, as being something in Iine with the passage from Lord Rlcllair
which 1 have just read. It is at pag62 of the Oral Proceedings (VII) of
1962:
". ..absence of agreement could not properly be supplemented by
an inference aiming at securing for the instrument in question a
higher degree of effectiveness than waç warranted by the intentions
of the parties".
That, Rlr. President, brings us immediately to my learned friend's
contention to the effect thain decidingwhether one deals with an obliga-
tion related to a specific supervisory organ only,or, as he says, a more
general one of international accountability, one is to have regard not
only to what the parties actually contemplated at the time, but also to
what they might be expected to have thought or to have decided if some-
thing of which they evidently did not think had been brought to their
attention. That is how 1 understood him in the verbatim record at page
183, su ru, and he proceeds also to page r84 on the same subject. At
page It3 my learned friend says thiç:
"Respondent's contention that the obligation of international
supervision, imposed and assumed under the Covenant and Man-
date, merely was intended to refer to a specific supervisory author-
ity, to wit,the League Council, is based upon the argument, inter
dia, that:
'Since in fact nobody in 1920 contemplated the possibility
of the future dissolution of theLeque, it would be unredistic to
impute an intention to the authors of the Mandate to guard against
the possible consequenceç of such dissolution."'
That is the quotation from our Rejoinder. My learned friend proceeded :
"This argument, with al1 respect, seems to the Applicant to in-
volve a fion seqzcituand, moreover, rnisapplies principles of inter-
pretation. It is, we think, non sequitur because the undenied fact
that nobody in rgzo foresaw the dissolution of the Leque of Nations
hasnothing to do rvithwhat they would have wished toguard against
had the possibility been envisaged."
hlr. President, perhaps 1 should just conciude by referring also to the
passage at page 184, supra, ~he~e my learned friend says:
"Courts frequently determine, in the light of circurnstances, the
nature and other provisions of an agreement, what the parties
could have intended had they foreseen certain possibilities."
&Ir. President, as a proposition applying to the question whether an
implication is to be read inta contract-whether something issaid to be
in fact and in law part of a contractual or treaty relationship between
parties-this is the first time1 have ever heard of such a proposition.
It must inherently, on an examination, on first principles, be unsound.
Courts are there to give effect to agreements in fact arrived at between
parties. Courts are not there to make agreements for parties, to saywhat3~~ SOUTH WEST AFRICA
parties ought reasonably to have done under certain circumstances, what
they ought to have agreed upon had they thought of something, or what
they probably would have agreed upon, had something been brought
to their notice. By recognizing an implication in a contract, and saying
that something was tacitly part of an agreement,although not expressed,
the Court gives effect to something which it finds as a fact, something
which it finds as having in fact been contemplated by the parties as being
part oftheir agreement. The onlyreason why they did not express it must
be the reason aswe have heard it from theaut horities 1have quoted, that
to express that pointdbecause it was too clcar. It was something thatuble
must have therefore been present in their minds, although they did not
trouble to express it. But as soon as we come in the sphere of something
of wliich they admittedly did not think (and here we have it on record
by our learned friend for the Applicants-that istheadmitted fact-that
nobody thought of the possibility of dissolution of the League), and as to
what provision was to be made for the situation that might then arise,
what groünd can there be in law and in logic forçaying that the parties
in fact had any contemplated agreement about that matter?
The formulation is inherently unsound not only as compared with
basic principles, but also on the authorities to which 1 have referred.
It is basically unsound. I can give the Court one reference which perti-
nently deals with this point, viz. in the Oral Proceedings of 1962 (VII),
at page 52. Itis acase of which the name is not given in the Oral Pro-
ceedings at that particular page. The name of the case was actually
Rapp and Maisfer wersus Oranowsky, 1943, W.L.D. 68, at pages 74-75.
It was a case in which a South African judge, Judge Millin of the Wit-
watersrand LocalDivision, had to apply these principles of implication of
tacit agreement. The learned judge referred to the same authorities to
which 1 have referred here, the well-known pronouncement of Justice
Scmtton andthe others that gowith it. And he said as follows:
"The cases show thatthe Court has to be continually on its guard
against being persuaded to introduce a term which,on analysis ofthe
argument, appears to be no more than a lem which wodd make the
carrjing out of the contract more convenient to one of the parties or
to both ofthe parties and might have been included if the parties had
thought of it and if they had both been reasonable. You are not to
imply the terrn merely because if one of the parties or a bystander
had suggested it, you think only an unreasonable person would have
disagreed. You have to be satisfied that both parties did agree. It is
quite a different proposition, if in the hypothetical case ScrrcL.J.
puts in, you feel the parties rnight Say: 'You have calledour minds
to sornething we have not thought of and what you Say 1s not
unreasonable, let us discuss it.I'f that is aU that the Court feels
might have happened then the Court is not entitled to imply the
term."
As 1Say,it follows from an application of the basic principles, pnnciple
that the Court is to give effect to an agreement actually arrived at and
not to something speculative which it thinks the parties may, or would
probably even have agreed upon, if it had been put to them. That is not
the function of the Court.
The only type of case in this type of creative confusion,Mr. President ARGUMENT OF MK. DE VILLIERS 329
-the only type of case where that kind of approach to what the parties
would probably have intended had their min& been directed to a point-
where that kind of approach is to be followed-is not one in relation to
finding what was a term or a provision of an agreement between the
parties. It arises only in whatmight cd1 an ex+es acto situation where
the Court is confronted with a difficult question, Say, of severabilior
inseverability ofa contract, or of a statute. The position arises that the
Court finds that a particular part of a contract is illegal,a particular
part of a statute is ultravives,or a particular part of a contract or a
treaty or an agreement has become inoperative, and the like. Then a
question arises: Can the rest of that instrument stand-will it be a
statute, or a treaty, or a contract? And the test to be applied, as we
know, on the principles, is again atesttosthe intention of the creators-
of the authors-f that instrument, be it a legislature or contracting
parties. And then very often the Court cornes before this artificial
position, and it ia position which arises in this case too, on an issue on
which we shall have to deal later. Rut if it is quite clear that the parties
did not actually apply their minds to that particular point-the parties,
or the legislature, or whoever it might be-the Court ha to a certain
extent to surmise from objective indications what the parties or the
legislature would have intended had they thciught specifically of that
particular point.And that question, because of no other means of deter-
mining it, the Court may very often have to determine on a preponder-
ance of probability, one way or the other. But that is because the Court
is then forced to corne to a conclusion one way or the other because of
thisexpost factosituation which has arisen. But thatisno criterion, and
it cannot ever be a criterion for determining, Mr. President, whether in
fact the parties were agreed upon a proposition which is said to operate
as a part of an agreement between them.
Then, Mr. President, my learned friend, Mr. Gross, referred tapassage
in the dissenting opinion of Mr. Justice van Wyk in 1962 in this Court.
We find that at page 185, supra, of the verbatim record. The passage
reads as follows:
"In the course of a consideration of principles of construction, in
his1962 dissenting opinion Judge van Wyk made the following
comment, pertinent to the question under discussion :
'One must also bear in mind that parties frequently deliberately
use wide terms so as to provide for al1possible situations, foreseen
and unforeseen, and it follows that when a situation not foreseen
by the parties arises which falls within the meaning of the words
employed by them they are deemed to have had a common
intention in regard thereto."
That certainly, hlr. President, with the greatest respect, is a very sound
proposition, but totaily inapplicable to the situation in which my learned
friend seeks to ap ly it, that is, thtype of situation ivhere a specjfic
formulation is usea with the intent that its meaning is to cover anything
that might fa11within that meaning, whether that particular practical
situation is then thought of or whether it is not thought of.
Ifa treaty ismade applicable in al1British territories whena certain
situation obtains, then surely that treaty will apply at the time of its
applicatiori in every territory that could be called a British territory.
Whether it was such a territory at the time when the treaty was entered33O SOUTH WEST AFRICA
into, whether there was any contemplation at that tirne whether that
territory would later come into British domain or not, could not affect
the position. That is the type of situation in which this formulation by
the learned &Ir.Justice van Wyk would apply.
Again, if parties agree that some agreement would operate between
them in respect of all public holidays, and the next year a new public
holiday were declared which they did not contemplate at the time, then
certainly this would be included as being part of their bargain because
that is what they intended. If, of course, there are other indications of
intent-an indicationivkich limits their intent only to things which they
contemplated at the tirne-then, of course, effect would be given to that
intent. But that is the type of thing that could arise.
The basic requirement is that there must first be an agreement-a
formulation which is in terms applicable to a particular thing. Then the
question of whether that thing was specifically conternplated in advance,
or whether it was not contemplated in advance, can come into operation,
andthe question whether it was then intended to be included, or not to be
included in the formulation would fall to bedecided. But one has to have
that foundation first-that premise-before anything of this kind can
arise.
Now how does my learned friend seekto applyit ?My learned friend says:
"Article22 of the Covenant of the League used very 'wide terms'
indeed in formulating and innovating the legal principle-
'.. . that the well-being and development of such peoples [that is,
peoples not yet able to stand by themselves] form a sacred trust
of civilization and that securities for therformance of this trust
should be embodied in the Covenant.'. .,
Read in the light of this overriding purpose, the conclusion is not
merely permissible, but, with respect, it seems to be unavoidable,
that the intention of al1 the parties to the Covenant and to the
mandates system must be presumed tohave been that, if the League
were to dissolve, which was not foreseen and not predicied, some
otlierway would have to be found by which the Mandate would be
supervised." (P. 185,szcpra.)
Now, Mr. President, with the greatest respect, 1 see not the least
possible connection between this submission-this contention-advanced
to the Court, and the principle quoted from the judgment of Mr.Justice
van Wyk.
The portion of Article22 which my learned friend cited to the Court
merely statesthe broad principle of asacred trust of civilization and that
securities for the performance of this trust should be embodied in the
Covenant. It says nothing more. The sacred trust of civilization in itself
rnay or may not include accountability, depending upon what people
decide about it. Articl73 of the Charter of the United Nations speaks of
a sacred trust of civilization in that regard and has no provision for
accountability in respect thereof. We al1 know that the formul t'on
"sacred trust" was used long before the mandates system came into
being, in relation to various colonial situations without any form of
accountability. The mere fact that there is such a sacred trusof civiliza-
tion in itself imports no concept of international accountabilitywhatso-
ever.
Next, Mr. President, there is the statement that "securities for the ARGUMENT OF MR. DE VILLIERS 331
performance of this trust should be embodied in the Covenant". That
surely isa reference to particular provisions to be found in the Covenant
providing for security, and if one isto see what securities were intended
to be provided, one looks at the particular provisions of theCovenant to
see in what way those securities were expressed-in what way the
intention of the authors of the Covenant was expressed in reIation to
those securities. Then one finds the words and to what they apply. Then
one fin& the specific words that the "Rlandatory shall make to the
Council of the League of Nations an annual report" and to nobody elçe,
in çofar as is relevant tothe particular point under consideration,
So, Mr. President, there is nothing in the Covenant and nothing in the
mandate instruments emerging from the Covenant which could be said
to involve an application of a principle stated by Judge van Wyk. If
there is a wide formulation, anything falling within that formulation
could be taken to be included, even though not actually contemplated.
The wide formulation presupposed in a statement of that kind is non-
existent relevant to the particular point which my learned friend wishes
to make.
In any event, there is this strangeness about the concluding words of
the quotation reading "some other way would have to be found by which
the Mandate would be supervised". One may ask the question if there
was such a contemplation, what would the contemplationhave permitted
so far as some other way was concemed? Would the parties have con-
templated that a court of law could now decide whether some other
international organization is to be regarded, for practical purposes, asa
good and a sound substitute for the League superviçory organs and that
the Parties would have to be bound by such a determination. This is, in
effect, what rny learned friend seems to suggest.
Surely, hlr. President, if there was a contemplation on the part of
parties that "some other way would have to be found", the normal
contemplation would be that there wouid have to be no agreement upon
the point. The mandate instrument jtself makes specific provision that
if and when the circumstances may require it, there can be agreement
between the Mandatory and the Council of the League so as to effect a
modification of its terms and provisions.
[Public heuring ofi Aprilr9651
Mr. President, at the concliision yesterday 1 was dealing with certain
principles of law and of interpretation and of implication of provisions
of a contract, or an agreement, or a treaty-certain considerations that
are basic to the consideration of the dispute between the Parties-with
which 1 propose to deal further this morning.
There is one of these underlying principles an which 1 would still Iike
ta Say something more, and that is my learned friend's reference to the
possibility that if one has regard to implied intentions on thepart of the
contracting parties-a possible tacit agreement between themane
looks not only at what they actually contemplated but also atwhat they
wauld have contemplated if something about which they had not
thought at a11was brought to their attention. I submitted on principle,
and with reference to authority, that thatwas an untenable proposition.
My learned friend in the course of developing that argument referred
the Court also to the decision in the BarcelonaTraciion case. LVefind that332 SOUTH WEST AFRICA
reference in the verbatim record at pages 185-18 6upra. After reading
from the Judgment of the Court in the Barcelona Tractioli case, my
learned friend said, at page 186:
"The BarcelonaTractioncase, it is submitted, demonstrates that
the Court will construe the intention of the parties to an agreement
in the light of what their common intent would have been, if they
had foreseendevelopments relevant totheir common purpose."
Mr. President, with submission, 1 have read the BarcelonaTraction
case very carefully and 1 do not find a word of support anywhere in that
Judgment for a proposition of this kind.
My learned friend went further. He said that the pardes to the com-
prornissory clause in the Barcelona Tractioli case did not foresee the
dernise of the Permanent Court, and yet the Court had no difficulty in
.reaching the conclusion that, in view of their purpose, the parties would
have intended to subrnit their dispute to the new Court, had they antici-
pated the dernise of the old one. Mr. President, 1 find no reasoning
whatsoever on these Enes inthe Judgment in the Barceloraa Traction case.
IVhat the Court did find, in my submission, was this: the Court found that
settlement of a dispute and that that obligation could stand, and jwascinl
tems of their agreement to stand, independently of the question of the
particular forum, which was under discussion in relation to another tenn
of that same agreement.
The Court found, in other words, that there was an actual agreement
between the parties that that general agreement to submit to adjudication
could stand even though the particular forum referred to in one of the
clauses relating to that obligation was to fall away. The Court gave
effect to that agreement which it found, in fact, existed between the
parties.The effect of the agreement was that when the particular forum
fell away,the agreement to be subject to adjudication rernained-that
obligation remaiaed. The clause in question became dormant and it could
not be operative again until a new forum was substituted by agreement.
A new forum was substituted by agreement at the stage when both
parties became signatories to the Statute of this Court. So, al1the Court
did in the BarcelonaTractimrcase was to give effect to what it found tbe
the actual agreement between the parties. There was nothing which
rested upon a basis of what the parties would have thought, or would
have decided, if sornething theyhad not thought of, hadbeen brought to
their attention.
Now, Mr. President, on the basis of that background we proceed to
deal with the first of the basic issues between the parties regarding
Article 6-that is, what 1 termed yesterday, the issue of a specific
supervisory authority versus the contention of a general obligation of
international accountability, or ta submit to international supervision.
For the purposes of weighing that issuebetween the parties we also have
to traverse the field ofthe history and the çurrounding circumstances
pertaining to the eçtabIishment of the League of Nations and of the
mandates system.
We noted earlier, Mr. President, that the actual terms of Article 22
.of the Covenant, and of Article 6 of the Mandate, providing for super-
vision by League organs, were entireIy clear and explicit. We submitted
that no implication of the kind which is contended forby the Applicants ARGUMEST OF MR. DE VILLIERS 333
could be derived from the actual terms and provisions of those instru-
ments. We have also indicated that the question then arises whether it
would be permissible at all togo beyond the wording and the context of
the instruments and to attempt to establish the existence of an implied
term from material contained in the documents themselves. We referred,
in that regard, tothe opinion of the honourable President of the Court in
the case of the Expefises of the UniteN dations. We also referred in our
Rejoinder to certain other authorities, which will be found inV, page 32
thereof.We indicated, Mr. President, that when one has a basic instru-
ment of'the nature of the Covenant of the League-the same question
arose later in regard to the Charter of the United Nations-the question
is whether it is permissible in siich circumstances to look at what the
contracting parties who brought that instrument into effect initialIy,
might have thought amongst themselves without expressing it in words-
without making it possible for successive generations to know what it
was they had in their min&.
\Ve submit that there is strong authority in favour ofthe proposition
that one has to be very conservative-to put it at its lowest-in regard
to instruments of this nature about any excursion intoextrinsic material,
in order to arrive at intentions of parties, which are either not clearly
expressed, or clearly implicit, in what is set out in the instruments
concerned.
But, Mr. President, we do not wish to rest our contention purely on
that. It does not embarras us at al1to undertake an excursion into the
history and the surrounding circumstances pertaining to the estabiish-
ment of the League ofNations and the mandates system. On the contrary,
such a review, in our submission, entirely confirms our contention and
militates very strongly against that of the Applicants. It shows, in our
siibmission conclusiveIy, that there is no justification whatsoever for
saying that as a matter of necessary inference the parties had in mind
such aconcept 8f international accountability, divorced from the actud
Leaguemachinery, as is contended for by the Applicants. On the contrary,
the indications of probability are very strong that there are at least
certain of the interested partieswho would not have been prepared to
agree to a vague concept of that nature.
May 1 draw attention first to the nature of this implication which is
sought to be drawn by the Applicants. They Say that the obligation for
which they contend is one to submit to international supervision-an
obligation of international accountability.ut when we analyse that and
the manner in which they seek to apply it in this case, Mr. President, it
will be quite obvious that they cannot contend that that was the sole
content of the obligation at the time when the League was inexistence
and inoperation. In the agreement it stood quite clearly on record that
a report was to be made to the Council of the League, to its satisfaction.
If we suppose now that some other political international organization
had also corne into being at the time, consisting of other States not mem-
bers of the League-there was a time when a considerable number of the
States of the world were not mernbers of the League. Some had not
joined. Some had joined and then resigned fram the League again-if we
suppose that some parallel organization came into existence while the
League was stil1in existence, then surelitcould not have been contended
that the Respondent, having submitted to international supervision, as
is contended by the Applicants, wodd have become obliged to report and334 SOUTH WEST AFRJCA
account also to tliis other organization. with which it might have no
connection whatsoever, Surely that could not have been the contention.
Again, hlr. President, if we take the example of other international
organizations that did exist at the time-let us take the International
Labour Organisation, which existed side by side with the League.
Supervision by an organization of that kind could slço bc classified as
international supervision. If there were accountability to such an organi-
zation, it would also be international accountability and yet, surely,
there couId be no contention to the effect that there was any obligation
on the part of the Respondent to submit to supervision of that nature
because itcouId be classified as international supervision.
Now, Rlr. President, if one analyses this contention, it really carries in
it the germ, 1 may cal1 it, of a succession idea, although it ir no longer
called that. It really carries with it this implication, that the parties
contemplated that there would be a general obligation of international
accountability, but that as long as the League was in existence that
obligation of accountability would be discharged by reporting and
accounting to the Council of the League; so that the importance of this
general concept of international accountability would arise only ifand
when the Leaguc's existence should come to an end. That is the implica-
tion, and the important implication, in this contention of the Appficants;
that is what the are in effect contending for, otherwise it makes no sense
and does not a vance their case in the least. In other words, they have
to contend that one should read into the relevant instruments an implica-
tion of something of this nature: that there is to be a regular report-an
annual report-to the Council of the League to its satisfaction, and that
if the League should be dissolved, the mandatory would continue to be
under an obligation of international accountabiljty. Thar wodd be one
way of putting it-I am just suggesting various ways in which it could be
phrâsed. Another possibility would be that the obligation was intended
to read somewhat as follo\vs: the mandatory shall be obliged to submit
to international supervision, which obligation shall, during the lifetime of
the League, be discharged by rendering annual reports to the Council of
the League to its satisfaction. That concept of sornething which will have
to change on the dissolution of the League-something which will have
to take on a new form after the dissolution of the League-is a cornmon
factor underlying any formulation of the kind which one will have to
put forward in order to assisthe Applicants' contention. In other words,
there must be inherent in this contention a contemplation on the part of
the authors of the mandates system to provide for something after the
League has becorne diçsolved; otherwise it brings them nowhere. And
that renders so extrernely important, Mr. President, the fact that it is
conirnon cause, as a matter of fact, that there was no contemplation on
the part of the authors of the system that the League would come to an
end, and that tliere was quite obviously no intent on their part to rnake
contractual arrangements or agreements about that eventuality. They
did provide in the mandates themselves for the possibility of modification
of the terms of the mandate, if and when that should be necessarp, and
that isquite obviously, in our subrnission, where they left the matter.
That is a result which is in complete accord with the admitted fact that
.her-was no contemplation of what would happen after the dissolution of
the League.
Our argument in regard to this point, Mr. President, will be found in ARGUMENT OF MR. DE VILLIERS 335
the pleadings in the Counter-Mernorial, II, at page 123, and also in the
Rejoinder, V, at page 34. The argument in the Rejoinder in this regard
relates to the contention then advanced by the Applicants in their Reply
regarding the "organized international community" theory. But, Mr.
President, in view of the fact that, as 1 have just dernonstrated, this
contention regarding international accountability, or being accountable
to international supervision, also bnngs the Applicants nowhere ifthere
had not been any contemplation on the part of the authors of the system
extending beyond the lifetime of the League, the same argumentsapply,
mrrtatismutandist. o this contention.
And that makes it so important to have regard to the submissions 1
made yesterday afternoon, and emphasized again this morning, that there
is no basis in law for finding a contractual obligation on the basis of what
parties did not think-did not have in their minds-but would probably
have had in their minds if somebody had raised the matter and had said
to them "Let us discuss it".
Mr. President, we contended further in Our pleadings that even if this
factor were disregarded {thefact that nobody actually thought of what
would happen after the dissolution of the League) it would still have tbe
borne in mind that certain of the mandatories ivere reluctant to accept
the extension of the mandates systern to particular territoriesoccupied
by them, and that they were influenced in their eventual acceptance of
the mandates system, amongst others, by the nature of the supervisory
machinery. LVepointed out in our pleadings that the supervisory machi-
nery was carefully checked and balanced so as to render unlikely any
injurious, biased or unfair interference with mandatory government,
and so as to contain a minimum of a political element and a maximum of
an independent expert approach, We referred there to the unanirnity
rule applying in the case of the Council; we referred, Mr. President, to
the constitution of the Permanent Mandates Commission as a body of
experts and not as a political body, and one which exprcssly stated its
task,and its view of its task, to be one of CO-opcrationand collaboration
rather than one of sitting in jugdment. The references one will find in the
Counter-Mernorial, II,pages 119-121 and 123-12 a4,d a1soin the Kejoin-
der, V,at pages 34-35.We pointed out that some of the statementsmade
in the deliberations that eventually led to the compromise agreement,
made it perfectlyclear that the composition ofthe supervisory organ was
in fact, and as a practical consideration, a matter of importance to these
parties who were reluctant tohave the system extended to theirparticular
cases at all, and they included the then Prime Minister of the Union of
South Africa. hlr. President, Ive submitted that under those circum-
stances, having regard to the attitude which the particular parties took
before the compromise agreement was arrived at-when they could
only with reluctance be persuaded to accept this compromise agreement
as Ear asit went-there could surely be no warrant for saying that if
something more had been sought to be imposed upon them-something
which was in fact not discussed-if it had been suggested to them not
only that they should be wiILingto submit to supervision by the particulnr
Leaguesupervisory organs of which they knew how they were going to be
constituted, but alçothat they were to be subject toa vaguer concept of
international accountability-surely there could be no justification for
saying that they wodd have agreed to that-that they wouid have sard
"But that is understood; it is something we did not trouble to express; ARGUMENT OF MR. DE VILLIERS 337
continual element of discussion and difference of opinion on the very
nature of the relationship between the League and the Mandatory. It
amounted to this, that the adherers to the principleof non-annexation-
the adherers to the principle that the mandates system was to be extended
to al1 the colonies and posçessions in question-initially had in their
minds a very absolute form of League control over the possessions in
question-an extreme Iorm of League control-so that the Mandatory
was to play a compIetely subordinate part-the Mandatory was to be
there as a mere agency, which could even be chopped and changed at the
discretion and on the basis of decisions taken from time to time by this
controlling power, the League. That was the type of conception which
President Wilson and those who agreed with him had before this agree-
ment was eventually reached.
And in terms of that conception, hfr. President, as we shall point out,
there was initially not even provision for reporting, the idea having been
that the League itself would be in such absolute control that that would
not be necessary. That might then well have become a mere incidental
matter, to be arranged administratively arising out of that very relation-
ship.
It. also went so far, then, that expenseç of mandatory administration
would have to be borne by the Members of the League, and not by the
Ilfandatories themselves-that was one of thenatural corollaries. It was
when representatives of other States said:"No, but we have to be more
practical about this situation.We cannot put ideals of that nature into
practice and expect them to work", that the whole concept began to
change, and that it becarne necessary eventually to define the position in
terrns whereof the Mandatories would be in primary control and the
relationship between them and the League one of supervision, not of
control, on the League's part. There was to be no idea ot chopping and
changing of Mandatories. In other words the Mandatories were to have
security of tenure, if one might cal1 it that. Then the arrangement was
necessary to define how this supervision was going to work, and for the
purposes of that it was necessary to define the content of an obligation of
report and accountability. That is how, eventually, this whoIe agreement
came about.
As is well known, Mr. President, we admit that President Wilson
strongly advocated a policy of "no-annexations" (we refer to that in the
Counter-Memorial, II, p.II, para. 5), and that he sought to appIy the
mandates system to al1 conquered German colonies and possessions.
In this aim he eventually succeeded, but at the same time, inorder to
succeed in this aim, he had to compromise on some of the very vital
aspects of the whole scheme, in that he had to abandon quite a number
of his earlier ideas.
On the point that President Wilson initially had in mind that the
League would be vested with cornplete authority and control, reference
rnay be made to the following, hlr. President. Firstly,there was President
Wilson's Th.irdDraft, aIso referred to as theSecondParis Drrsft, dated
20 January 1919 1.refer to ArticIeII of the SufifilementaryAgreemmts
annexed to the draft Covenant ; andthat read,inter alia:
"Any authority, control, or administration which may be neces-
sar in respect of these peoples or territories otherthan their own
selldetermined and self-organizeedautonorny shali be the exclusive
function of and shalle vested in the League ofNations and exercised338 SOUTH WEST AFRICA
or undertaken by or on behalf of it.(VideD. H. Miller,TheBuafti~&g
oftheCovenant, Vol. II, pp.103-104.)
Now in the sarne document we find in Article III the foilowing:
"The degree of authority, control, or administration to be esercisecl
by the Mandatory State or agency shall in each case be esplictly
defined by the Executive Council in a special Act or Charter which
shall reserveto theLeagzlecornfiletepoweî.of sufiervisio..." (Ibid.,
P. 104.1
The factor to which I wiçh to refer and which 1 omitted earlier was
that the Mandatory under this scherne of things did not need to be a
State at all. Therecouid have been a specialized agency who could have
performed this function of being a Mandatory. Irefer in regard to this
quotation also to Miller, at page 104.
Kow, Mr. President, Air. Lloyd George, in wrjting of the events of
30 January 1919, when there was this eventual clash between President
Wilson and the repreçentatives of Australia and New Zealand. of which
we speak in the pleadings, on the very question of mandates, Lloyd
George writes in that regard as follows:
"Feeling was at moments intense. President Wilson had Iiis
own idea of Mandates. Tt was hardly a plan, for he had clearly not
worked it out and he had therefore not subrnitted to the Congress
any detailed project. But he vaguely indicated that what he had
in mind was an Administration of the German Colonies by Manda-
toriesunder 2k direct mders of the League." (David Lloyd George,
The TrcsthaboutthePeace Treaties, p. 541.)
This concept of complete control, Mr. President, naturally entailed
also that the League should have been responsible for administrative
expenses in mandated territories, and in this regard Lloyd George says
in the passage which follows irnrnediately upon the previous one which
1 have read:
"When asked who was to defray the cost of carrying out tliese
orders, he (i.e., President Wilson) replied that the League wo~ld
bearthefinancialburden. He could not explain how the money was
to be raised. That essential detail had somehow escaped his consi-
deration. Xevertheless he stuck to his original notion, and as my
proposa1 contemplated placing the financial responsibilit~ on the
mandatory, he regarded my plan asan incornplete concession to Iiis
ideas." (Ibid.pp. 541-542.)
Mr. President, we could refer in this regard also to President I~rilson's
Third Draft, called the SecondParis Draft, of 20 January 1919. Article
III of the SufiplementaryAgreements annexed to that draft says, i~iter
dia, the following:
"Any expense the Mandatory State or agency may be put to
in the exercise of its functions under the Mandate, so far as they
cannot be borne by the resources of the people or territory under
its charge upon a fair basis of assessrnent and charge, shabe borne
by the several signatory Powers, thejr several contributions bcjng
assessed and determined by the Executive Council in proportion to
their several national budgets, unless the Mandatory State or
agency is willing itself to bear the excess costs; and in al1cases the
expenditures of the Mandatory Power or agency in the exercise of ARGUMEKT OF MR. DE VILLIERS 339
the Mandate shall be subject to the audit and authorization of the
League." (D. H. Miller,The Drafting ofth Covenant, Vol, II, p.104.)
>Ir. President, i\vil1be noted that this provision was omitted from
President Wilson's Fourth Draft, also called the ThirdParis Draft, of 2
February 19~9I. refer to Miller, Volume II,pages r~z-153. In the course
of coming to the compromise agreement, this idea had to be dropped.
The other important aspect of President MTilson'soriginal concept of
al1 control being vested in the League was that it was not a matter of
any great moment whether any particdar country would be appointed
as a Mandatory. His idea was that the hlandatory couId be something
in the nature of an "organized agency". As 1 have pointed out (the ex-
pression used in this quotation is from his Third Dvaft, or SecondParis
Dra/t, of zo January rgxg) i,could be an organized agency. It need
not necessarily be a State. This idea he also eventually dropped. It no
longer appeared in the FourthDvaft of z February 1919 (that is also
referred to by Miller in his Volume II, pp. 145-154 T)he FourthDrajt
provided that the tutelage of those peoples who could not yet stand by
themselves "should be entrusted to advanced nations who by reason
of their resources, their experience or their geographical position, can
best undertake this responsibility". That was the eventual notion. We
find that alsoin Miller, Volume II, page 152.
Another incident of President Wilson's original conceptMr. President,
of an all-powerfui League, was that hlandatories could freely, at the
discretion of the League, be removed or substituted. The references are
paragraphs 1, II and III of his Second Dvafl, or Firsf Paris Draft. We
find it inMiller, Volume LI, pages 87-89. and again, in paragraphs 1, II
and III of thisThird Draft, orSecond Paris Druft (Miller, Vol.II, pp.
103-104). This question of cancellation of mandates by the League was
expressly discussed in January 1919. It appears from "The Intimate
Papers of Colonel House" (Seymozrr, Vol. IV.p. 306) that on 27January,
Lord Robert Cecil of Great Britain indicated to Colonel House that
Australia and South Africa would consent to being Rlandatories of South
West Africa and the Pacific Islands "providing there was no question
of cancelling the Mandate"-again, Mr. President, indicating how irn-
portant that element became. Colonel House, putting the American
viewpoint, is reported to have argued "that the League of Nations must
reserve the right to cancel the Mandate in cases of gross mismanagement",
but that the President-that is Preçident Wilson-"would agree that
the peoples concerned should be able at any time to vote themselves
part of Australia and South Africa, thereby cancelling the Mandate".
But, Mr. President, this concept of making express provision for
cancelIation of a Mandate on the grounds of mismanagement, was, of
course, not maintaiiied, nor was the idea thatthe League could "at any
time release" from guardianship a people or a territory which itthought
capable of taking charge of its own affairs. That initial idea is sforth
in paragraph III, being part of the SupplemLntaryAgreements annexed
to the President's draft of20 January Igrg.
Xow, hIr. President, it remains to refer to certain aspecofthe accep-
tance by al1 concerned of the proposal hvhich eventually divided the
mandated territories into "A", "13" and "C" hIandates.
On 24 January 1919, hlr. Lloyd George made it clear that South
Africa, Australia, and New Zealand laid claim to the Germân territories340 SOUTH WEST AFRICA
which had been conquered by them. (That we find in the Foreig~ relu-
tims of the United Scates, VolIII, pp. 718-720 A.)d although he stated
that Great Britain "saw no objection to the mandatory system" (that
is at p. 719), he surnmed up his remarks by saying the following (that
is, Mr. Lloyd George) :
".. ,he wouid like the Conferencc to treat the territories enumerated
as part of the Dominions which had captured them rather than as
areas to be adrninistered under the control of an organisation estab-
lished in Europe which might find it difficuto contribute even the
srnaIIest financiassistance to their administration."
That is at page720 of the work to which 1 have referred.
Then we find, Mr. President, that the Dominion Ministers personally
came and stated their claims to the territories and the reasons why
they wished to annex them. (Foleign Relations of rhe Unitzd States,
Vol. III, Mr. Hughes, Australia, pp. 720-722; General Smuts, South
Africa, pp. 722-723; hlr. Massey, New Zealand, pp. 724-727,) These
claims were repeated on subsequent days. (Ibid.South Africa, pp. 743-
745, 27 January; Australia, pp. 745-747, 27 January; and New Zealand,
p. 751, 28 January.) Discussions then reached a stage of near breaking-
oint, as can be seen in the same work at page 763, where President
hilson said "... it looked asiftheir roads diverged".
That, MT. President. was the basis upon which further discussion took
place-in which the eventual compromise agreement was arrived at-
but 1emphasize that, at that stage, itwas only a provisionalagreement
-provisional in various senses which 1 shall explain, and which emerge
verjr clearlyfrom the record.
First, it is clear from this background, and from the relevant provi-
sions of the Covenant as finally deterrnined, that the Applicants grossly
over-simplify the position when they argue that the solution finally
accepted was a compromise only in so far as there was no provision for
the open door in the C Mandate provisions.
Thc important question isnot simply one of these being a compromise
on the narrow issue of annexation. It was a compromise on the relation-
ship between the Mandatories and the League, and in this regard, ive
submit, the history shows, as we have sketched it, that as time went on
President Wilson changed ideas he had previously held in regard to the
powers to be assigned to the League vis-à-vis mandate States and Man-
datories.
There isample historical proof therefore, Mr. President, that our
summing up of this position, in regard to the compromise, in our Couii-
ter-Mernorial is perfectly correct:
". ..President Wilson had to abandon certain of the extreme as-
pects of his proposals concerning League supremacy and control
and the consequent payment of expenses of Mandate administration
by League Members. Al1Mandatories were to be States, not 'orga-
nized agencies'. The Mandates were to be allocated by the Principal
Allied and Associated Powers (not the League), and at any rate
in the case of C Mandates the allocation 'wozlld have:to be' to the
adjacent claimant States." (Counter-hlemorial, LI,pp. 13-14.)
The Court will recall that that is the expression which occurred in
Mr. Lloyd George's statement of 30 January 1919 , hen he laid before ARGUllfENT OF MR. DE VILLIERS 34I
the Conference this compromise formula on which he said the Dominions
were prepared to agree.
The relationship between the League and the Mandatories was, in
each case, regulated by a mandate instrument, the tenns of which were
assented to by the Mandatory and would normally require its consent
for alteration. Al1 this was very far removed £rom the envisaged free
League discretion to appoint and change Mandatories. In the case of
"C" Mandates, the Mandatories tvere to have powers to administer the
territories as integral portions of their own, and there would be no objec-
tion to eventual amalgamation which could naturally resuIt from such
administration, if agreed toby the inhabitants. Those were the important
elements of thiscompromise, showing this middie-point, if 1 rnight cal1
it that, where the extreme ideas eventually met.
1 tum now, Mr. President. to the other reason why we undertake this
historicalsurvey, and that is in regard to the Applicants' contention:
"... it is apparent that the primary concern of the founders of
the mandates system was the obligation of international accoun-
tability, and not the details which uvould spell out the rnanner in
which the obligations would be carried out". (Y.144, supra.)
In developing this point, the Applicants first referred to the pre-
Conference evaluation of the mandates system which, in their vlew,
gave paramount importance to the idea of international supervision,
and for this purpose quoted extracts from various sources containing
phrases such as "in trust for civilization" and "as trustees for al1 man-
kind". (Pp. 142-143 su,pra.)
These phrases were quoted, Mr. President, as if they were applicable
to the concept of a mandates system.
Mr. President, we do not deny that in the initial discussions before
the Conference, perhaps even in the first stages of the Conference, con-
cerning this whole idea of a mandates system and the idea of international
control or supervision, there would have been very little discussion on
questions of detail as to the manner in which supervision or control,
and so forth, was to be exercised. That is the way in which any discussion
originates. There is an idea, and the principles of the idea are discussed
first; then one proceeds from the principles to a question of detail with
a view to putting those ideas and those principles into effect.
We must point out, bfr. President, that most of the sources quoted
by the Applicants do not bear out their contention that in the pre-
Conference era there was unanimous agreement on the desirability and
necessity of international supervision of mandated areas,with the accent
on "mandated areas". So, for instance, they create, unfortunately,. a
misleading impression when they refer to P. H. Kerr, of the Round
Table, stating "that the Mandatory Power 'ought to govern the depen-
dency as trustees for al1mankind' ". (P. 143,supra.)
Jlr. President, even a superficial perusalof this source cited by the
Applicants, Introduction fothe Sttidy of Itternafioîlal Relations (1916).
page 179,shows that Mr. Kerr did not have in mind a mandates system
which would creste some form of trust relationship between a manda-
tory and an international organization. Mr. Kerr was, in fact, dealing
in general tvith the problems which arise out of the contact ktween
advanced and backward peoples. The first of three general prfnciples
advocated by him was that so long as thereare people seriously below342 SOUTH WEST AFRICA
the level of rnost civilized nations, commercial intercourse was bound
to lead to evils which can only be ended by a more civilized people as-
suming charge of the government of the more backward race. When
this has been done "... the ruling people ought to govern the depen-
dency as trustees for al1mankind ...".
It shouldbe noted that the author used the words "the ruling people",
and not "the Mandatory Power", as suggested by the Applicants.
It is clear, therefore, that Mr. Kerr hadin mind a general moral obli-
gation resting on al1 colonial powers, and not a legal obligation owed
by mandatories to an international organ. He was speaking in general
of the concept which should govern relationships between a colonial
power and a dependency governed by it. This could include a mandatory
under the new system which uras already under discussion, but it was
not something which related specifically to mandatory powers in the
mandates system as is represented by the Applicants.
The same applies to the passage from the Nm Stalesman quoted at
page 142, supra. Here again there was a concept of territories "held in
trust for civilization", and as quoted, it was suggested that it related to
a mandates system. In tact, Mr. President, ifone looks at the extract
from the NewSlatesman and considers the context in which this expres-
sion appiied, it becomes quite clear that what was referred to ?as again
the general relationship of colonial powers to territories administered
by thern. l'here was a suggestion by the learned author that a distinc-
tion was to be drawn between countries in which white men could settle,
and countries in which they could not. He suggested as a general prin-
ciple that while temperate colonies which white men were living in and
developing might properly be governed in the interests of the white
inhabitants, tropical colonies ought to be governed primarily in the
interests oftheir black inhabitants, and not in the interests of the Euro-
pean trader.
The NewStatesman continues: "The ideal solution of the whole prob-
lem, we suggest, would be the deliberate abolition of al1 international
fences in the tropics. Al1Central Africa from the boundaries of hIorocco
and Egypt in the north, to those of Rhodesia in the south, should be
neutralized and adrninistered by an international commission for the
benefit primarily of the races which alone can live there and secondarily
of the traders from al1countries on equal terms. But ideal solutions are
not always practicable." The author went on to describe what would be
useful beginnings in this regard. That iç the context in which this expres-
sion occurred which the Applicants quoted, narnely-
"if the AIlies determine at the end of the war to retain control
of the German colonies they might and ought to give a solemn under-
taking to hold those territories in trust for civilization, to treat
the interests of the natives therein as paramount . .."(P.142,~~$7a.)
It was again, hIr. President, a general discussion on the principles
which ought to govern the relationship between colonial and dependent
peoples.
Now, Mr. President, as we have said, it may well be that in the pre-
conference era writers and statesmen devoted more attention to the
abstract idea of international supervision than to the actual manner
in which such supervision would be carried out, Itis really inconceivable
that it could have been otherwise. The framework of an idea in point ARGUMEST OF YR. DE VILLIERS 343
of time always precedes the details oI the framework, in much the same
way as the idea conceived by a painter precedes the complete painting.
But that does not mean that, when the details are eventually filled in,
they are unimportant. On the contrary, if this idea can only take effect
by way of agreement between interested parties with conflicts of interest
to a certain extent-conflicts of ideas, conflicts of objectives-thenthe
exact machinery and details eventunlly agreed upon in order to put the
ideas into practice to the estent agreed upon-surely become of the
utmost importance.
Mat we do dispute, therefore, is the Applicants' generalization that
the idea of international supervision remains superior to the details of
the mandate system regarding the organs of the League of Nations to
which mandatories would be accountable. And our contention in this
regard is, in our submission, Rlr. President. borne out entirelby refer-
ence to the discussions at the Peace Conference.
The Applicants allege :
"Perhaps the most succinct statement of the nature of the obli-
gation of international accountability was made by President
Wilson himself. To use hiç words, 'the administration will be so
much in the view of the world that unfair processes could not be
successfully attempted'." (P. 142,supra.)
As we have already pointed out, Mr. President, it shoiild be observed
that President Wilson came to the Peace Conference without having
developed a practical outline of the mandate system and that this very
fact gave rise to much misunderstanding and heated discussion.
1 quote again from Mr. Lloyd George-from another passage from
TheTrdk ab041the Peuce Trealies,1938, Volume 1, page 271. He stated
there :
"He (President Wilson) was definite and clear as to the objec-
tives he desired to reach ... but . ..he had never developed for
himself the practical outlines of any of the ideas which inspired
hiç speeches. He had not, for instance, taken any serious trouble
with the formulation of his detailed and workable scheme for a
League of Nations."
Now at the Peace Conference, Mr. President, after President Wilson
had outlined his ideas concerning the League of Nations-these broad,
eneral ideas of a League of Nations and of a mandates system-M.
&mon of France said that France favoured annexation of the German
Colonies, and then Mr. Balfour of England, at a meeting of the Council
of Ten on 28 January 1919 ,xpressed misgivings about the whole idea-
misgivings which were shared by most of the delegates.1 quote here
from Fmeign Relatiolasofthe United Stat~s,Volume ILI,pages 763-764:
"Mr. Balfour enquired whether it was not true that ~hilst a
good deal ofthought had been given to the League of Nations, very
little thoughhad been given to the positionof a hlandatory Power
...He ... was strongly in favour of the principle. But he was con-
scious that ithad not been worked out. He knew of no paper or
speech in which the practical difficulties which they had to face
had been worked out in detail. ..
No conclusion had been reached and no authoritative statement
had been made rcgarding another point, namely should the tenure SOUTH WEST AFRICA
of the rnandatory be made temporanly or not? Ifthe tenure were
merely temporary difficulties wou1d arise and there would be per-
petual intrigues and agitation."
At the same meeting, hlr.President, M. Clemenceau, Prime Minister
of France, also pointed to the lack of practical detail and here 1 quote
from the same source at page 768:
"13ut it appeared that they had naw gone beyond that limit when
they proposed to create a League of Nations with governrnental
functions to interfere in interna1 affairs,with trustees in various
places sending reports to...hedid not know whom. Throughout the
world, even in Europe, . ..a control would be set up. President
Wilsonhimself had said su,and, as a result,appeals would be heard
from al1parts of the world. Who would deal lvith those appeals? It
had been said that an International Legislature and sorne sort of
executive power ... would have to be created. The idea of an un-
known mandatory acting through an undeterrnined tribunal gave
him sorne anxiety."
Mr. President, that was the context in which people spoke of this
whole concept of relationship between a mandatory and the League.
Was the League to be in control or was the position of the League, in
relationship to the mandatory, to be one of mere supervision only-the
main responsibility resting with the mandatory. And the other impor-
tant point isthat the practical men were asking for details. They said:
"Now we want to know what is this system through which we are going
to be controlled." The idea of an unknown mandatory, acting through
an undetermined tribunal, gave them some anxiety.
So, nlr. President, we come to 30 January 1919, the important date
on which Mr. Lloyd George outlined the proposals contained in the
document-the so-called Hankey-Latham draft-which had been draft-
ed by officials of Great Britain and the Dominions. This document was
entitled Draft Resolcrtionsin referenceto Mandatories and one finds it
at pages 785-786 of Volume III of the Foreign Relations of the United
States.It is important because, with very few changes, it contains the
eventual Article 22 of the Covenant. Mr. Lloyd George is reported to
have said the following. (We quote briefly from it, Mr. President-
certain excerpts-in our pleadings. It may, perhaps, be worth while
to give the full statement in its contest.)
"That document did not represent the real views of the Colonies;
but it had been accepted by them as an attempt at a compromise.
Great Britain had deliberately decided to accept the principle of a
mandatory; but that decision had not been wholly accepted by the
Dominions. The Dominions, however, were prepared to accept the
conclusionsreached in the document as a compromise, because they
fully realized that there could be no greater catastrophe than for the
delegates to separate without having come to a definite decision. It
had been decided to accept the doctrine of a mandatory for al1
conquests in the late Turkish Empire and in the German Colonies.
But three classes of mandates would have to be recognized, namely:
Firstly: Mandates applicable to countries where the population
was civilized but not yet organized-where a century might elapse
before the people could be properly organized. For example, Arabia. ARGUMENT OF MR. DE VILLIERS 345
In such cases it would be impossible to give full self-government
and at the same time prevent the various tribes or units from
fighting each other. It was obvious that the system to be applied
to these territories must be different from that which would have to
be applied to cannibal colonies, where people were eating each other.
Secondly: Mandates applicable to tropical Colonies situated a
long way from the country of the possible mandatory. In other
words, territories whichdid not form an integral part of any particu-
lar mandatory country. For example, New Guinea. In these Colonies
the full principle of a mandatory would be applied, including the
'open door'.
Thirdly: Mandates applicable to countries which formed alrnost
a part of the organization of an adjoining power, who would have
to be appointed the mandatory."
The third one, the third class, was the cause of particular difficulty
before this compromise agreement could be arrived at, and it of course
included the case of South West Africa. It included also the case of the
conquests of Australia and New Zealand, and that is why it becomes
very pertinent to refer now to the attitude takcn up immediately after-
wardç by Mr. Hughes on behalf of Australia.
After Mr. Hughes had pointed out that hisGovernment had asked for
full details concerning the mandatory principle, and that he was there-
fore compelled to withhold his assent to the proposals until his Govern-
ment had communicated its decision, President Wilson also showed an
awareness of the importance of the practical details necessary to give
concrete content to the mandatory ideal. 1 quote, Afr. President, from
the same source (Foreign Relations of the United States, Vol. III,pp.
788-789), Preçident Wilson speaking :
"To return to the imrnediate subject, could they take a clean sheet
and Say that Australia, for example, would accept a mandate about
New Guinea?How would that mandate be exercised? What would it
involve? No one could give an answcr to Australia. ..He surmised
that the character of the mandate would be left in the hands of an
executive of the League of Nations, consisting of the Great Powers
with a minority representation of the Smaller Powers. He imagined,
also, that no action could be taken by that Council in the face of
three negative votes. Should that system be adopted itwould be
impossible for any harmful conditions to be irnposed upon the
mandatory State."
Already, Mr. President, the significance of this aspect of the situation
was stressed in these very deliberations in pursuance of the point raised
by Mr. Hughes. 1 quote further from President Wilson:
"But that arrangenient had not yet becn adopted; no agreement
had as yet been reached. He had been accused of being a hopeless
Idealist, but as amatter of fact he never accepted an ideal until he
could see its practical application. The practical application was
always the more difficult. Mandatories might work unsatisfactorily
under one programme whilst they might work well under another.
Therefore no one should accept the scheme unlecs it was shown how
it was going to work. . . Further, it would be necessary to define the
methods of self-expression of the ward or people under tutelage. SOUTH WEST AFRICA
There must be a responsible body which would be in a position to
hear that self-expression and not be carried away by its sympathies."
Here, Mr. President, the emphasis is on the fact that this could not be
a definite, a final, arrangement, untpeople knew how the whole scheme
was going to work. Mr. Hughes, later in the meeting, expressed a similar
sentiment. 1 quote from the same source at page 793:
"It was proposed really to govern the fate of people by declaring
that a certain principle should apply, but to what extent that
principle should apply, or by whom that principle should be applied,
or when it should be applied, no one knew. For that reason President
Wilson had pointed out that the acceptance of hïr. Lloyd George's
resolutions would not settle anything until the League of Nations
had been created and clothed with authority and with certain
powers, duties and functions.. . Now he would have to tell the
people of Australia liow the whole matter wasto be settled, and they
would ask, how? His repIy would be that the mandatory principle
was to apply but he did not know how except that the arrangements
would be such that the scheme would fit like a glove to the hand.
Having lived al1 his life in Australia and knowing the Australian
temperament , he thought it would be impossible to expect them to
accept a principle the nature of which was not known. A definite
decision could only be expressed when they knew what it al1meant."
It seems, therefore, bfr. President, in Our submission, perfectly clear,
firstly, that there was a general recognition of the fact that no power
could be asked to accept undefined mandatory obIigations towards an
undefined international organ. At the same time, there was already a
contemplation, and that appears to have been generally assumed, that
the supervision would be exercised by an executive of the proposed
League of Nations, which would consist mostly of the great powers. 1
mention that point because in reading the Hankey-Latham draft, one
will find that the clause relating to a report speaks of a report to the
League. It does not yet Say specifically a report to the Council.
But it is significant, hir. President, in that regard, that not only
President Wilson referred in the passage from which 1 have read to the
idea that the controlling or supervising authority should be the executive,
on which three negative votes, as he put it, would be sufficient to make it
impossible for a resolution to be adopted, and that thatexecutive would
consist of the great powers with some minority representation of smaller
powers, but that the matter was also referred to in the speech by the
South African Prime Minister, General Botha. This is of particular
importance in this regard. 1 will corneto that a little later. First 1 wish
to refer to a statement by President Wilson on 28 January 1919, in
answer to a question by Sir Robert Borden. The question was: "whether
the nomination of a rnandatory need be postponed until the League of
Nations was constituted. Under the scheme for the creation of a League
of Nations, he understood that the five Great Powers would form a
Council controlling the work of the League. Therefore the difference
between making the decision now or leaving it to the Council of the
League of Nations was not great. He \I-ould, therefore, ask whether
President VCTilsonwould take that suggestion into consideration."
(ForeigwRelatio nfthe Unite dtates,Vol. III, pp.766-767.)
President Wilson replied to this question in the affirmative. He said ARCUXfENT OF MR. DE VILLIERS 347
that he would take that suggestion into consideration-that the difference
between inaking a decision nomrand Ieaving it to the Council of the League
was not great.
At the council meeting of 30 January, Illr. Hughes is reported to have
enquired whether they should await the acceptance of the League of
Nations by the conference and by the world. Was not the de factoLeague
of Nations already in existence in that room? He suggested that they, as
a League of Nations, should act as the executive of the future League of
Nations and settle the various problems which awriited settlement.
Then, hlr. President, President Wilson's remarks at that very same
meeting (which I quoted earlier), will be recalled, and in that same
context came the speech of the South African Prime Minister, General
Botha, which we recorded.
hlr. President, at the adjournment 1 was dealing with this factor that,
although at the stage of the compromise agreement, or arrangement, of
30 January 19x9-at the Paris Peace Conference, no specific details were
worked out in regard to supervision of the respective mandatory adminis-
trations, there was, quite obviously, general acceptance of the idea that
the responsible organ in the League would be an executive and that
executive would consist largely of the Great Powers, with a certain
minority representation from the smaller powers. 1 have just read
to the Court certain statements-speeches made by various delegates
-which al1 show that contemplation. 1 was referring to that Iact at
the adjournment, that in an extract from a speech of the same date by
the South African Prime Minister, General Louis Botha, which extract
we cite in Our Counter-Mernorial, II, page 119, he also expressed his
understanding that, if the idea fructified, the League of Nations would
consist mostly ofthe same people present there that day, who understood
the position and who would not make it impossible for any mandatory
to govern the country.
The people there that day were, of course, representatives on the
Council of Ten-really representative of the five Great Powers, together
with the representatives of the Dominions, were some of the prospective
mandatories.
The other factor that 1 want to stress about the situation as it had
emerged on 30January ~grg in this: that there was, at that stage, final
agreement. Everybody had regard particularly to the comments made
by Mr. Hughes of Australia and by President IVilson to the effect that it
was important for al1to know what the details of this scheme were-how
was it going to work. Therefore, nobody could be expected to agree
finally before knowing those important details. The details related
particularly to the exact manner in which the League would be consti-
tuted-how its organs would function-because those things had, asyet,
not been settled.
That this was the understanding emerges very clearly from various
passages in the record. hlr. Lloyd Georgefirst of al1expressed the hope-
"... that his coileagues would provisionally adopt the resolutions
he had submitted, subject to such reconsideration as might be
required when the complete scheme of the League of Nations was
forrnulated". (Bliller, ThDraftz'ngoftheCovelaaat,Vol. II,p. 199.)
Those were the exact words of Mr. Lloyd George in introducing this
compromise formula and laying it before the meeting of the Council.34& SOUTH WEST AFRICA
After hm, the one delegate after the other expressed his understanding
that the agreement reached was provisional.
President Wilson said that he was-
". ..willing to accept hlr. Lloyd George's proposais, subject to
reconsideration when the full scheme of the League of Nations was
drawn up". (Ibid.)
Baron Makino of Japan "expressed his satisfaction that a provisional
agreement had been reached on the question of Mandatories". (Ibid.,
p. 201.)
Sir Robert Borden of Canada "expressedhis pleasure atthe fact that
an agreement, if only provisional, had been reached". (Ibid p. 202.)
That was the situation as it emerged in general, at that particular stage.
It was not a question of the parties having agreedto a general concept
of international accouritability, without being interested in what the
details of the scheme were or hour they were going to work.
1 wish to turn, Mr. President, more specifically to the Respondent's
part in this whole arrangement-how it affected the Respondent 's
position-what the Respondent's position was before and after this
agreement. The Respondent's position was generallp considered, by
everybody concerned-to be something special-something extra-
ordinary-something unique-that is,so far as the South West Afnca
question was concerned at that particular stage. 1 do not think it is an
exaggeration to say that there was general agreement beforehand that
the South West Africa case was so special that, although the mandates
system might extend to al1 the other colonies, it would not extend to
South West Africa. One knows, of course, that the initialproposa1 by
General Smuts, for instance, was that al1the German Africanpossessions,
should be excluded-and also those in thc Pacific Islands. Other ideas
prevailed eventually.
1wish to refer to some ofthe views expressed, particularly in so faas
South West Africa was concerned, where even the case of South West
Africa was distinguished from al1the others.
At page 138, serpra, of the verbatirn record, the Applicants quote a
passage from Mr. Lloyd George's The Trath About thePeace Treaties,
Volume 1 (1938) pa,ge 6,in order to show that prior to the Peace Confer-
ence the Imperia1 War Cabinet accepted the principle that, as part of the
general mandates scheme applying to enemy colonies, there would be a
right of appeal from the rnandatory power to the League of Nations on the
part of anyone who considered himself ill-treated or claimed that the
conditions set down by the League of Nations were not being fulfdled.
That is the purpose of the Applicants' reference to that particular
passage in the book of Rlr. 1-loyd George,
Mr. President, the author rnakes it perfectly clear that the ideas
expressed at that meeting were not intended to apply to South West
Africa, or to certain islands in the Pacific. 1quote from page 123:
"The outstanding feature of the conversations that took place
was the camplete unanimity with which the Imperia1 War Cabinet
accepted the doctrine of the Mandate in respect of enemy possession,
except in South West Africa and the islands conquered by Australia
and New Zealand." (Georgc, The ITuth About the Peace Treaties,
Vol. Z(1938) p,123.)
That was the exception made at that particular time. SOUTH WEST AFRICA
what was essentially part of the same country. The President did
not seem prepared to contest that contention, but of his own accord
retorted that the position of Australia with regard to the Pacific
colonies was not quite the same."
That was the attitude indicated before the Peace Conference hy the
President.
At the Peace Conference the three dominions, as we know, outljned
their cases for annexations of the colonies concerned, and none of the
delegates except President Wilson voiced any opposition to this idea.
Mr. Lloyd George expresses the position as follows in the same work at
page 515:
"As the time approached for deciding whether the Mandate
principle shouid be incorporated in the Treaty, and ifso in what
form, the opposition to the ïvhole idea assumed formidable dimen-
sions ...1 think it is fair to state that President Wilson and 1were
alone in supporting the principle of vesting the German Colonies in
the League of Nations as a trustee, with hlandatories nominated by
the League to undertake the duties of administration."
And even Mr. Lloyd George, as we know, was of the opinion at that stage
that the mandate principle should not apply to the colonies in possession
of the three dominions.
It is, Mr. President, fair to conclude, our submission (it is of course
a measure of speculation now, ex Post facto)that ifthe claim of the other
two dominions had not been made at the same time, and if, as a result,
certain other questions had not then been voiced by othcr States, it
seems quite likely that the arrangement in regard to South West Africa,
as proposed before, could have gone through without objection. 1am just
speculating on that possibility for what it is worth, but we emphasize the
particular position in which South Africa found itself at thattirne, prior
to agreeing to this compromise. When the question was raised at the
Conference, after the three dominions had stated their case, we find that
M. Simon of France also spoke in favour of the principle of annexation
in respect of certain possessionshen occupied by France. We find that in
ForeignRelatio nolume III,pages 758-753.
And it was in those circurnstances, Mr. President, that a complete
breakdown threatened, ivhen the one after the other of those of the repre-
sentatives present at that particular meeting of the Council of Ten-
when one after the other spoke in favour of annexation-that was when
the position reached the point of near breakdown, or iiear explosion.
There then came this violent reaction from the side of the President, and
it was with a view to preventing a complete breakdown that there were
further discussions, quite obviously behind the scenes, which led to this
compromise formula eventually introduced by Mr. Lloyd George as the
Hankey-Latham draft.
1 am emphasizing that from Respondent's point of view there was
probably less reason than from the point of viewofanybody else to agree
to this compromise-to agree to the inclusion of South West Africa in
the mandates'system, because of itç special position.IfSouth Africa, in
other words, had wanted to hold out on this particular question, em-
phasizing the distinction between its case and the other cases, then it
could possibly have won the day. But, Mr. President, there were of
course reasons which operated in the other direction, why South Africa ARGUMEXT OF MR. DE VILLIERS 351
was prepared to be CO-operative, but on its terms, in reaching an agree-
ment and in not threatening a complete breakdown of the whole Con-
ference.The terms were of great importance to South Africa-the whole
forniula of being able to adminjster this Territory as an integral portion
of South Africa's own territory; and in regard to the question of account-
ability, the factor that the accountability would be to the executivthef
League, consisting largely of the great Powers with minority representa-
tion of the smaller powers-that in itself also played a very important
part.
Another factor that played a very important part was the gradua1
change which this whole mandate idea had undergone in course of time,
from the extreme ideas of League control, where the League could do
everything and the mandatory's position was just that of a kind of a tool
in this whole situation. The mandatory could be chosen or abandoned
by the League at will, as it were. That whole idea had been changed now
to one in which very much more responsibility was being placed on the
mandatory powers themselves and the League's role would be one of a
more indirect supervisory nature.
The fact that that is sMr. President, iç emphasized by a point which
Idid not mention before but to which I could give the Court references
now, and that is that in President Wilson's draftof20 January, to which
1referred before, there was no provision for reporting to the League on
the part of a mandatory. The reason for that was-if one reads that
draft as a whole-the whole idea of the draft was-that the league itself
would be in complete control. The text of the mandates, as proposed at
that stage in the draft,is tobe found in Miiier'Draftingof the Coveaanl,
Volume II,at pages 103-104.
The first place in which we find, in the President's drafts, any reference
to reporting, is in the draft o2 February 1919. That we find in Miller,
Volume II,page 152, in paragraph 3, and that was at the time when it
had already been decided thatthe League would not be vested with com-
plete control. The whole idea had changed and the League's function
would now be a more indirect one of supervision. Now it became impor-
tant to formulate exactly what form that supervision would take and
through which medium-through what machinery, it would be exercised.
A major factor in this transformation was the question of the wholô
approachto the function of the League vis-à-vis the mandatory. In Book
II of the Counter-Memorial, II, at page 119, we quote a statement by
Mr. Lloyd George, made on 28 January 1919. (This was in the coime of
these discussions as to what exactly this relationship was going to be.)
"MR. LLOYDGEORGEsaid that he agreed with M. Clemenceau
thatif the League ofNations were made an executive for purposes
of governing, and charged with functions which it would be unable
to perform, it would be destroyed from the beginning. But he had
not so interpreted the mandatory principle when he had accepted it.
PRESIDENT WILSON said he too had not so interpreted it.
MR. LLOYD GEORGE ,ontinuing, said that he regarded the syçtem
merely as ageneral trusteeship upon defined conditions. Only when
those conditions were scandalously abused would the League of
Nations have the right to interfere and to cal1on the mandatory for
an explanation. For instance, should a mandatory allow fou1 liquor
to swamp the territories entrusted toit, the League of Nationsuld
have the right to insist on a remedy of the abuse."352 SOUTH WEST AFRlCA
Al1 that is part of thc background-part of this gradually changing
picture-until we corne to the 3oth, when this provisionai agreement
was entered into. And it is, Alr. President, against this background that
we have to view the speech made by General Louis Botha on the 3oth,
from which 1 read a part to the Court before. Perhaps I should again
refer to the extract in full, in its context. We get that also in the Counter-
Mernorial, II,at page 119:
"Yersonally he felt very strongly about the question of German
South-West Africa. He thought that it differed entirely from any
question that they had to decide in this conference, but he would
be prepared to say that he was a supporter of the document handed
in that morning, becausehe klzew thatif theideafructifiedth8 League
of Nadiolzswozcldconsis.?mostly of thesaniepeople wh werepresent
thme that day, who understo~d the position andwho would notmake
Ztimfiossiblefor alty mandatory to govern thecountry. That was why
he saidh wouldaccepl it."
Now, hfr. President, in that context, and against this background,
how can the Applicants possibly Say that the question of the exact na-
ture of the supervisory machinery-its composition, its manner of func-
tioning-was a matter of rnere incident,was not a matter of importance
in coming to the agreement at all?
Here, from the mouth of one of the most vitally interested parties,
the Prime hIinister othe Respondent in this case,we have the evidence
of what a tremendously important-what a crucial-role he played in
bringing about agreement in so far as this compromise was concerned.
hlr. President, the Applicants are not consistent eithein their line of
reasoning. They argue, on the one hand, that inasmuch as in the begin-
ning of these negotiatioiis which eventually led to the agreements (the
pre-conference era and the earlier stages of the conference) there was
discussion of a general principlc of accountability or international super-
vision or control-for that reason the agreements eventually arrived at
in regard to machinery are not , from a practical point of view, to be re-
garded as being of importance. They put it in thiway in the verbatim
record at page 144,supra:
"...the primary concern of the founders of the mandates system was
the obligation of international accountabiiity, and not the details
which would spell out the manner in which the obligations lvould be
carried out".
Mr. President,1 Saythey are not consistent because, on the other hand,
when they deal with the historical background ofArticle 2,paragraph 2,of
C Mandates, they stress very strongly the fact that the finaltext of the
C Mandate Agreements goes considerably beyond the terms proyosed in
Lord Milner's original draft, since the insertion of the phrases "promote
to the utrnost" and "social progress" involved expansion of the said
paragraphs. That argument we find in the verbatim record at page 147,
supra.
The Applicants regard it there as perfectly natural, and we do not
dispute their contention,that Ourobligation in regard to the inhabitants
of the Territory is to be read in the light of whawas ultirnately agreed
upon-of the obligationas ultimately formulated. That is perfectly cor-
rect. But when it cornes to the general obligation of accounting and
reporting then theySay that is not tbe readin the light of the agreement ARGUMENT OF MR. DE VILLIERS
353
as it was ultimately reached and as it was dtimately recorded in the
relative instrument but, that it is to be read in the light of what people
said in the early stages of the discussions while they were still discussing
general ideas and'while they had not come dom to details yet. 1submit,
Mr. President, it is a completely illogical and unfounded manner of argu-
ment.
The fact that theje details-the actual rnachinery and the actnd com-
position of the organ-were important appears not only from what 1
have already laid before the Court. If it were necessary to add anything
at all, thereis sorne indirect evidence in regard to the formation of the
United Nations which again shows how important machinery, and how
important a manner of exercising a function of supervision, can be to the
parties affected by it. 1 refer, Mr. President, to the provisional discus-
sions'at the San Francisco Conference on the question of the trusteeship
provisions of the United Nations Charter. Ive have a discussion on the
subject in a work by Russel, Ruth B., and Muther, Jeannette E.-
A Bistory oftheUnitedNafions Charter{1958) at,pages 838-840. One wiIl
see.from that discussion, from which 1 will read a portion-certain ex-
tracts-that there were various ideas. There was a general idea, of course,
of trusteeshipa general idea of accountability in respect of that trustee-
ship-but there were a multitude of ideas as to the manner in which
provision should be made for carrying that idea into piactice and the
parties took very strong attitudes about it-the varioh interested States
-and eventually they had to compromise between .ideas in order to
come to a solution at all. 1 quote from the.work at the pages I have
mentioned: ,, . . . .
"In the Five Power Consultative Group there. were'considerable
differences over supervising machinery for the tnisteeship system.
Great Britain and Australia wanted an expert commission, sirnilar
to the Permanent Mandates Commission.of the League, to inform
the Assembly, through the Economic and Social Council, on the
observance of trusteeship terms. They argued that the Commission
would be primarily concerned with economic; social and humani-
tanan matters and should therefore be directly responsible to the
organ CO-ordinating such United Nations activity. The United
States, however, maintained that the trusteeship organ would have
to deal with governmentsadministering the trusts, and should there-
fore have a higher status as well as political representation. In that
event, it should logically report directly to the Assembly. The other
members of the Consultative Group supported this type of organ
and the United States title for it-The Trusteeship Council."
1 skip a paragraph and the quotation proceeds: .
"The Powers to be given ,that organ were also subject to con-
troversy, despite general agreement that the administering States
should report to it annually in accordance with the prescribed fom,
and that it should act in some way on those reports. The United
States, however, would not agree to any reporting on the strategic
trusts, rejecting even a Chinese suggestion that such reports might
be made to the Security Council on the basis of a questionnaire
drawn up by it. As for nonstrategic territorieç, the United States
was anxious to give the Trusteeship Council the right to receive
petitions and to institute investigations. The Soviet U,nionwanted it SOUTH WEST AFRICA
recommendations given by sending Lits]'representatives and inspec-
tors to the trust temtories. The Soviet Union also proposed that the
five major powers formdate the questionnaire for the administering
authority. On the other hand, both Great Britain and France ob-
jected to giving the Trusteeship Council a free hand to investigate
as it might undermine the local authority of the administeringstate.
TheUnited States and China maintained that petition and investiga-
tion were éssential means of safeguarding the rights of dependent
peoples."
Mr. President, no doubt theabstract idea of trust territories wasaccep-
ted by al1 the delegates before discussion took place as to the precise
machinery which would serve to give concrete effect to that idea. Never-
thelesç, it appears thatthat machinery wasregarded as being so important
that prolonged discussion was necessary in order to arrive at a compro-
mise agreement.
The founders ofthe trusteeship system wouId certainly be surprised to
hear the suggestion that they considered the practicai machinery asof
relatively minor importance in relation to the abstract idea of trustee-
ships, but not more surprised, we submit , than the eventual founders of
the mandates system would be in respect of the Applicants' suggestion
at present under consideration. I subrnit that those founders would be
extremely surprised to hear that in their min& this question of the exact
formation-the exact composition, the exact manner of functioning and
the exact relationship between the supervisory organ and the mandatory
-was a matter which they regarded as of relatively minor importance;
and thatthat portion of their agreement was not to be regarded as being
at least of equal importance to any other portion.
They would be surprised to hear that where they took time and trouble
to agree on a system of careful balances and checks that it is now to be
simpIy to be viewed as beingone relating in general to a vague concept of
international accountability, which is to be applied to some other body
in respect of which they never intended to give any consent whatsoever.
Mr. President, then, to conclude this historical survey regarding the
establishment of the League and of tlie mandates system, in Oursub-
mission the survey entirely confirms the contentions which we have ad-
vanced on our pleadings, regarding the indications of probability in this
regard. It conhs in particular that, in the firçt place, the compromise
operated, arnongst other things, as between ideas of extreme powers of
League control, on the one hand, and, on the other hand, those of keep-
ing some temtories out of the system altogether. Those were the extreme
ideas which somehow had to meet.
The transformation of the envisaged relationship between the League
and mandatory-from one of extreme control to one of restricted and
CO-operativesupervision-waç one of the important features which made
the system acceptable to those who were initially against it-initially
against it either in the sense of being opposed to the principle, or being
opposed to its extension to particular territories. It was one of the practi-
cal factors which rendered it more acceptable to those perçons.
The transformation and the ultimate compromiseincluded the element
that in the case of certain "C" mandates particular States would have
to be the mandatories. ARGUMENT OF MR. DE VILLIERS
355
In the second place, Mr. President, the survey conhs that the ques-
tion of composition of the supervisory authority and its manner offunc-
tioning was an element ofgreat importance. Amongst others, to the Res-
pondent itself it wasexpresçed to be so. That was clearly understood by
everybody before final agreement was reached. Therefore this evidence
tendsvery stronglyagainst and not infavour of the implication contended
to showthat, with reference to this extrinsic evidence, the actual pro-s
visions of the instruments concerned and everything that can have a
relevant bearing on the question-as a matter of necessary inference it
must be concluded that everybody was agreed upon this vaguer and
wider concept of international supervision-international accountability
-in contrast to the precise terms of the instruments, as they are set out,
relative only to specific supervisory machinery.
And far from satisfying the Court, Mr. President, that there can be
a necessary inference to that effect-that it can necessarily be said that
those parties were agreed about the matter-that they did not trouble
to express it because it was too clear-that if someone had asked them
they would immediately have said that that is what they understood
about it-far from satisfying the Court to that effect, Mr. President,
the Applicants have introduced the subject which, when viewed in its
whole, as we submit it isto be, and with reference to the further facts
which 1have now brought before the Court, makes it absolutely clear that
the probabilities were dead against certain of the interested parties
agreeing to such a vague concept.
I wish to refer the Court on this regard, with submission, to a passage
in the dissenting opinion of Judge van Wyk in the 1962 Preliminary
Objections-a passage with which 1 respectfully, and with submission,
wish to associate myseIf :
"When an agreement is the result of a compromise and an issue
arises whether any given term should be irnplied or not, common
sense dictates that one should have due regard to the attitude of
the parties prior to the concession, or concessions, which madethe
agreement possible. It should not be inferred that a party intended
to concede more than the words of the agreement conveyed and
more than was necessary to effect the compromise. It was with
great difficult that certain States were persuaded to accept the
supervision O? the organs of the League; on what basis can it be
assumed that they would have agreed to the supervision of the organs
of another undefined organization? The words of a compromise
should never be whittled down by way of interpretation, so as to
arrive at a resdt not contemplated by the parties. The Court clearly
cannot infera common intention to contract on the basis ofaterm not
conveyed by the wordsemployed by theparties where the surrounding
circurnstances reveal that someofthe parties at least would nothave
agreed thereto had it been raised." (I.C.J. Reports1962, p. 609.)
1 submit, Mr. President, with respect, that that expresses the rnatter
as aptly as cm be in the circumstances, and that further support is de-
rived for that approach from the very facts to which 1 referred this
morning, and which make it perfectly clear that there is no justification
for an implication of the nature suggested by my Iearned friends for the
Applicants.356 SOUTH WEST AFBICA
Mr. President, it remains for me, before concluding my argument on
thiç aspect of the caçe, that is, on the conflict between our submissions
mentç-on the question of specific supervisoryorgan as against a generalnstm-
obligation of international accountability-to dealwith certain isolated
contentions of the Applicants on this aspect.
First, 1 wish to refer to my learned friend, Mr. Gross's contention,
which we find in the record at page 205,supva. There my learned friend
refers to our starting point, 'namely that Respondent's original .under-
taking was limited to an obligation to report and account to .a'specific
organ of a specificorganization of certain the nations of the world, and
he submits that this leads to demonstrably false conclusions. Now what
are those "dernonstrably faIse conclusions", Mr. President, which he
submits?
He proceeds to state'that-
"... neither the composition of the League of Nations, nor th6
Cit is contended], never asserted duringthe life-the ofthe Leape that
when the League'soriginalmembership wasalteredby the addition of
new.members, or the,departure of original members, that Respoii
dent's obligations lapsed by 'virtue of such changes in membership.
Respondent's contention that it contracted for a supervisory
organcomposedof only.'certain nations ofthe worId'henceisarederctio
adabsurdamofifs emphasis onthe contractual nature of the Mandate,
to the exclusion of its-essence as'an international institution regu-
lated by internationalniles."
.!
hlr. President, this line of argument in itself amounts to a reductioad
argument atthall. It refers only to the expression used in our contention,
an expression referririg to an organization consisting of "certain of the
nations of the world". That was a part of our contention ernphasizing
that'we were dealing with a particular organization and with an or an
of that particular organization. Wenever contended, or suggested, t at
we were liable o'nlyto a certain group of nations statically definas at
the date when that organization came into existence. Surely we tould
never contend that andwe never suggested that.The provisions of the
constitution of that organization made it possible for new mernbers to
join-made it possible for some members to terminate their membership
of the organization. We knew al1that when we accepted a Mandate on
behdf of the League, and that is the very point we make. The point is
that we knew what the constitution of that organization was, and we
knew what it was we were binding ourselves to. Obviously we could have
had no right to object to a change in mernbership through the ordinary
proceçses provided for in the constitution-of new members joining or
old members departing. That was something we knew beforehand. It was
part of Our bargain. We could never object to that.
What we could object to, and that we point out in the Counter-
Mernorial,Ii ,ages 121-122,waç an amendrnent of the provisions of the
Covenant which would detrimentally affect Oursituation as a mandatory
in relationship to the supervisory organs. We point out in that passage
in the Couriter-Mernorialthat there is provision for an amendrnent of the
provisions of the Covenant, but that there is specific provision to theeffectthat such an amendment wouldnot bind any Memberofthe League
that had not agreed to such an amendment.
Therefore, Mr. President, if there had been a change in this regard-a
change in regard to which organ of the League was to conduct the super-
vision-say the Assemblyof the League and not the Council-or if there
was to be a change in the sensethatthe Council couldin relation to manl
date'matters cometo a conclusionby a majority vote or by a two-thirds
vote instead of by a unanimous decision-those would be matters which
would prejudice the mandatory's positionin relation to the originalagree-
ment and therefore the mandatory wouldhave the right to object tothem.
If a change in the constitution came about to which the mandatory did
not agree, the mandatory would not be bound by it although the manda-
tory would then Ioçehis membership of the League. That was the effect
of the League constitution on this particular point, but there was never
any suggestion on Our part,,>and there never could have been, that wé '
could object to a mere change in mernbershi of the League itself.
If that is the basis upon whichmy leamed Priend suggeststhat he kould
dernonstrate that wereduce our grgument toan absurdity,'then .sub.mit
that the attempt has failed entirely. ' . .
The question arises, why doesmy Iearned friend not rather concentrafe
on the elements that,do count-the element of it being a. specificorganii
zation, where the Covenant itself says "a mandatory on behalf of,the
LeagÙeW-and that where the Covenant speaks in the clearest terms of
the specificorgan of that organization to which accounts are'to be made,
to its satisfaction? I have not heard any argument directed at the'object
of saying'that that argument led to any absurd concIuçion.
Mr. President, then In the same'passage;oneof the other demonstrably
false conclusions, suggested by my Iearned friend, appears to be the one
which he mentions at page 206, supra, of the verbatim record.
He submits there that : . ;
"Respondent's premise of an original undertaking limited to a
. .. 'çpecificorganization', composed-of 'certain nations', leads to the
equally untenable conclusion that at the moment of the dissolution
of that Organization, Respondent's right ot annexation would have
been perfected, in the absence of a new undertaking, in expressis
verbis,to an amendment of the languageofArticle 22ofthe Covenant;
and of Article 6, and of paragraph I of Article 7, of the Mandate."
In other words, my learned friend suggests that that would have in-
volved a contemplation-that our 'contention scribes to the authors of
the Covenant acontemplation that at a certain point of the the Respon-
dent might have a complete right of annexation. Mr. President, what
kind of contemplation is that, which is now ascribed to the authors of the
Covenant? Doeçit not again cany in it the same germof false reasoning
that the authors of the Covenant, although they did not in fact, as%
admitted, conternplate the termination of the League'sexistence, never:
thelesç mut be deemed to have thought of what would happen, should
the League come to an end? It is again part of that reasoning. The mere
expression 'that "Respondent?~ rjght of annexation would have.been
perfectedH-how does my learned friend amve atthat? Surely the mat:
League came to an end-if the obligation of accountabilitywodd bthen carne to
àn end:-Would.that niean the right of annexation on the part of.Responl358 SOUTH FST AFRICA
Covenant? My learned friend seernsto me to go directly in conflict with
submissions he himself is making to the Court. My Iearned friend is con-
tending that the Court was right in finding that the Mandate continued
in existence, after the dissolution of the League-thit still carried, as
part of it, this same trust conception as before, and that this Court would
have supervisory jurisdiction-he calied it "right of 'udicial supervision
in-respect thereof". Would that arnount, Mr. Presi ent, to a "right of
annexation"? 1 do not understand that. Surely there is a complete con-
fusion ofides here. One has first to make out, whether the termination
of supervision would also mean a termination of the Mandate-that is
our contention. If my iearned friend accepts that contention he appa-
rently then amves at the right of annexation. He has not explained to
us how. He seemsto have challenged us on the pa ers to Sayifthe Man-
date no longer is in existence, what title we 1ohave to the Territory
at all. And here apparently he talks0f.a "right of annexation", which
would have been contemplated by the authors of the mandates system.
Surely the crucial question to be made out there is whether there was
noclonger exist.Iftherewaspeno contemplation on this point, then surely
no question could arise of acontemplation of a "right of annexation" on
Our part.
If the contemplation was that there was severabiiity between the
provisions for supervision.and the substantive ravisions providing for
the sacred trusas regards the administration ofthe Territory, Uienthis
question of a "right of annexation" as a result of falling away of super-
vision, could never arise. My learned fnend has not demonstrated that
therewas any actual contemplation on the part of the authors of the
mandates system on this particular question, nor any contemplation on
their parasto what would happen if, and when, the League should corne
to an end and there could no longer be any supervision by the League
organs.
1submit therefore, Mr. President, that this conclusion, in the sense of
something that could be attributed to the contemplation of the authors
of the mandates system, is again one which is completely unfounded.
is at variance with another contention which they are advancing to the
Court and thatis that, if there should have been no newagreement in the
years1945-19 4n6a substitution of a supervisory organ, thour origi-
nal obligation wodd not have lapsed relative to supervision. It wouid
simply have become inoperative or dormant. They advance that argu-
ment on the basis of the decision of this Court in the BarcelomaTraction
case. 1indicated to the Court before that 1would deal with the merits of
that attitude taken by the Ap licants-theattempt made, on their part,
to put the circumstances of ris case, with reference to administrative
supervision, on a par with the reasoning of the Court in the BarceEona
Tractioncase, and 1 think this may be a convenient stage at which to
deal with that factor.
The reference to the case is in the I.C.J. Refiorls 1964 and the parti-
cularpassageswe hnd at pages 38-39,Perhaps for background it may be
necessaryto refertothe wholetreatment of whatwas there the secondob-
jection tojurisdiction-the second Prelirninary Objection.The commence-
mentofthetreatmentof that subjectonefindsatpagez6of therecord,second ARGUMEST OF MR. DE VILLIERS
359
Preliminary Objection, and it proceeds, 1 think, as far as page 40. The
and Belgium. It concerned, amongst others, the subject of adjudication
in the event of dispute between the parties regarding matters dealt with
in the treaty. Those provisions regardlng adjudication, wefind, werenot
conciselystated in one provision only, They were spread out overa num-
ber of provisions and they contained different elements. We find that
.right at the beginning of the Court's expositionon this part of the case
(it is stated at the top of p. 27), with reference to the Treaty of 19
July 1927: .
providedTbyatits Articl2lfor a reference to adjudication of al1cùs-
putes between the parties, involvinga disagreement abouttheir legal
rights. For this purpose, and if the methods of conciliation also
provided for by the Treaty failed, or were not utilized, the parties
were in each case to draw up a com$ronris,If, however, agreement
couldnot be reached upon the terms of a compromiw sithin a certain
period, then the fourth paragraph of Article 17 of the Treaty, now
invoked by the Applicant Govemment, provided that :
[Translatio~
'...either Party rnay,on the expiry of one month's notice, bnng the
question direct before the Permanent Court of International Justice
by means of an application'."
So,Mr,President, there is not one provision providing for ad'udication
by a particular tribunal, but a series of provisions proiiding, ktforan
obligation of ad'udication of the dispute and then for certain machinery
earlier parts of the rnachinery, then this particular step may be taken by
,the party involved. That was the type of treaty which had to be inter-
preted in that particular case by the Court.
May 1 also point out at once that the subject-matter with which the
Court was dealing there was different from the concept with which we
are dealing here, and which is submitted to the Courtfor consideration
by the Applicants' contention. The Court was dealing there with the
concept of an obligation to submit to adjudication. Here the parallel
concept suggested for consideration by the Applicants is a concept of
submission to international administrative supervision. Mr. President,
immediately it will stnke one that there is, in so far asa possibility of
legal obligation is concerned, a wide distinction between those two con-
cepts. When one speaks of a concept of being obligedto submit to adju-
dication, thatis aconcept with a content which has become established,
by understanding, and by practice, in course of time. One knows that
adjudication in respect of a dispute is a concept with a defined content.
One can go jnto details as to how it is to be worked out in a particular
case, but one knows that adjudication is adjudication, whether it is to be
an arbitration tribunal, whether it is to be by an international court.
whether it is to be by a different judicial tribunal-always the basis of
adjudication is judicial. It is something which is to be accomplished by
the process of applying the law to the facts-ascertaining what the law
is and applying the law to the facts of the particular case. That is an
established concept-one knows what it is-and it is quite possible to
reason, as the Courtdid-1 Say "quite possible" with respect-that par-360 SOUTH WEST AFRICA
ties could notionaiiy be agreed on a concept of that kind and that that
concept could be sufficiently precise to create an obligation on a party's
part in regard to a concept of that nature.
It becomes another matter, Mr.President, when we speak of a vaguer
concept of being obliged to submit to international supervision. What is
established about that concept-what was established about it, parti-
cularly in the years 19x9-1920,when the agreements with which we are
established concept ofinternational accountability orinternational super-
vision. The whole concept carries in itself the possibility of large grada-
tions of what could be contemplated and what could be comprised in it,
Immediately it is cIear that, if there is supervision, there is no definite
criterion of the kind which one ha in the concept of adjudication. A
supervisory body of an administrative kind doesnot lookmereiy at legal
obligations-does not onIylook at application of the law to the facts-it
looks at very much more. It looks at policy applied. It looks at action
taken. It looks at the manner in which a discretion is exercised. It looks
at the question whether good use is made of the powers-in the expres-
sion of one of the reports made to the League on the subject.
In other words, it jsscimethng which codd very vitaiiy affect the
actual day-to-day exercise of a power-the exercise of a discretion-the
manrier in which one acts in pursuance of a power, and it would depend
upon the exact manner in which one prescribes the concept of super-
vision, to what extent that interference would be possible.If there is no
specificprescription as to what the function of supervision is to involve-
how far it may go, and how far it may not go-then ths question of how
far it could go would very largely rest with the supervisory authority.
It wodd then become very important to know who that supervisory
authority is, how it would be constituted and cornposed, and what its
approach would be to its task. AUthose things would have to be known
before there could be any dehite content ascnbed to a concept of inter-
national supervision or international accountability, before it codd be-
corne, in my submission, anything precise enough to fom the subject-
matter of an obligation.
In the absence of something more precisethan this vague concept, the
wholeidea of an obligation to submit to international supervision would,
in my submission, be void for vagueness, because it would not relate to
anything which couid be said to be a subject of common understanding
or agreement between the Parties.
Therefore, a certain measure of definition,exactness and preciseness,
to indicate what is meant bythat concept when it is tobe translated into
practice, would be necessary in the case of administrative international
supervision, as op osed to a concept of being liable to adjudication.
Now, Mr. hesi8ent. when we look at the aetual reasoning of the Court
in the Barcelona Tractioncase, we hd that it proceeds very strongly on
tpossibIeto separate an obligation of submitting to adjudication from thes
particuIar tribunal which was concerned in the later clause-Article 17,
paragraph 4, of the Treaty.
The Court in the first place came to the conclusion that, even if the
Articleproviding foradjudication wouldhave lapsed in the normal course
due to the cessation of existence of the Permanent Court-even in that
event, Article 37 of the Statute of this Court would stdi have resulted ARGUMENT OF MR. DE VILLIERS
361
in a position thatthat would not have mattered. Assoon as both Parties
Article 37 would be.that the adjudication clause would stil apply witht of
a substitution of the present Court for the Permanent Court.
This reasoning, the Court stated, on the basis of the exact provisions
of the Treaty, was additional to the conclusion at which it had aiready
arrived on the basis of Articl37 of the Statufe of the Courtalone. The
Court made that clear on page 37 of its Judgment:
"The Court ha thought it desirable to base itself up to this point
in its opinion, would (in the absence of any relevant special factor)
be applicable to the case of all tbe jurisdictional clausesin the trea-
ties and conventions to whichArticle37applies. In the case of trea-
ties having the character of the Hispano-Belgian Treaty of 1927,
however, there are special features ivhich afford additional support
for the conclusions arrived at on ,the basis of Article 37 alone."
(I.C.J. Repmts1964, p. 37.)
It was on the basis of these special features that the Court proceeded
with its reasoning, of which a portion wasextracted by my learned friend
for the purposes of placinghiscase within the principle there enunciated.
The Court proceeded: - 7 .. .
"Article 17 (4) of the Treaty was discussed between the Parties
in the courseof the written and oral proceedings, largely in relation
this question, which has implications reaching far beyond the scope
of the present case, the Court does not consider it necessary to go.
What must be true, on any view of the matter, is that Article17 (4)
isan integral part of the Treaty as a whole; and its judicial fate
cannot be considered in isolation.
It is at this point necessary to note that Article 17(4).the relevant
temS of which are cited above, had as its primary object in the
scherneofthe 1927Treaty, what wasmore a matter ofmechanics ..."
(Ibid.)
1ernphasize, Mr. President, that was the primary object in the scheme
of the 1927 Treaty. The primary objed of Article 17 (4) was "more a
matter of mechanics". The Judgrnent continues :
"... namely to indicate in what circumstances, and at what precise
have the right to take the rnatter to the Court. This gt was to be
exercisable if the (optional) conciliation procedure provided for by
the Treaty had not been made use of, orhad failed; andifagreement
had not been reached within a certain period on the terms of a
com#romis for the subrnission of the dispute by mutual consent to
the Court or to arbitration; and if, thereuponamonth's notice wasi
given ofthe intentionto take the matter to the Court unilateraüy.
The basic obligation to submit to compulso adjudication,
however, wasand is carried by two other provisionO the Treaty ..."
(lbid.)
And that 1cannot emphasize heavily enough. That basic obligation was
.netfound bythe Court in thisparticular clause oArtic1 l7e(4). .SOUTH .WEST APRICA
"The basic obligation to submit to cornpulsory adjudication,
however, was and iscamed by two other provisions of the Treaty,
namely Article 2, and the first paragraph of Article17. The relevant
paragraph of Article z reads as foiiows: .
'Al1 disputes of every kind between the High Contracting
Parties with regard to which the Parties are in conflict as to their
respective rights, and which it may not have been possible to
settIe amicably by the normal methods of diplomacy, shall be
submitted for decision to an arbitral tribunal or to the Permanent
Court of International Justice.'
The Treaty then goeson to provide for the cobciliation procedure,
and continues in Article 17 (1) to reah the essence of Article 2
as foHows:.
'In the event of no amicable agreement being reached before
. the Permanent Conciliation Commission, the dispute shall be
submitted either to an Arbitral Tribunal or to the Permanent
Court of International Justice, as provided in Article 2 of the
present Treaty.' "
And it was only after that, Mr. President ,that this particular clause,
Article 17 (4),followedwhich indicated that "either party may on the
expiry of one month's notice bringthe question direct before the Perma-
nent Court of International Justice by means of an application". That is
the basis on which the Court separates the generd obligation to submit
to adjudication, and this particular part of the machinery finally related
solely to this Court.
[Public haring of z April1965]
Mr. President, at the conclusion yesterday I was deahg with someof
the rernaining contentions of the Applicants regarding the first major
issue between the Parties regarding Article 6 of the Mandate-the issue
whether the obligation related to specific supervisory machinery only,
or whether it was of a Mder nature contended for by the Applicants.
And 1 was dealing with the reliance which the Applicants placed in that
regard on the decision in the Barcelonn Traction case in support of their
contention-the attempt of the Applicants to argue by analogy from the
reasoning of the Court in that case regarding a compulsory adjudication
.clause to the contention which they now advance about international
supervision. And 1submitted to the Court, Mr.President, that there was
a distinction between'the concepts of compulsory adjudication and
international supervision for the purposes of this suggested analogy. 1
submitted that it was conceivable that the concept of compuhory
adjudication could be regarded as established to such an extent-to have
a sufficiently definite meaning in order to be the subject-matter of a
legal obligation-so that it could not be said that if parties stipulate for
an obligation to submit to compulsory adjudication, such a stipulation
should be regarded as void for vagueness. One can see that questions
could arise in that regard, depending on a particular instrument and
particular circumstances. The minonty judges; including Judge Morelli,
in the.Barcelona Traction case apparently had difficulty with that idea in
itself. But there is, Mr. President,a strong case to be made out for the ARGUMENT OF MR. DE VILLIERS
363
proposition that one could have an obligation relating to compulsory
adjudication without more-without having to stipulate a specificforum
for the adjudication.
That is the one side of it. The other side of the picture is this: when it
cornesto the concept of international supervision, I submit, even asit is
today, it is a matter of such uncertain and such variable content that
that cancertainly not be the subject-matter of an obligation. But if there
international supervision, without more, that stipulation wuld surely to
have to be regarded as void for vagueness.
The reasons for that distinction 1indicated to the Court yeçterday, and
1need not repeat them now. The Court, in my submission, in the Barcelo-
na Traction case found that on the basis of the particular provisions in the
instrument before it-the Hispano-Belgian Treaty of 1927 there was an
agreement between the parties whereby there would be an obligation to
submit to compulsory adjudication, and that that obligation could stand
independently of a particular clause which referred to adjudication by
the Permanent Court. 1pointed out, hlr. Preçident, that the question in
the Barcelona Traction case concerned the disappearance of the Perma-
nent Court and the effect which it had on the particular adjudication
provision. The circumstances, as the Court will recall, were that Spain
first became a signatory to the Statute of this Court çorneyears after the
Permanent Court had disappeared, and the question then arose whether
under those circumstances Article 37 of the Statute of the Court could
still provide for a substitution of Courts, or a changedver of Courts; in
other words, whether the adjudication provisions had not already lapsed
completely and beyondtredemption. The Court, as 1pointed out, gave as
its main answer that Article 37 in'itself, on a true construction of the
Article, avoided that result, and that despite the fact-despitthe possibil-
ity, that the particular provisions might have lapsed had it not been for
Article 37, Article 37 prevented such lapse. But in addition, as 1.pointed
out, the Court said at page'37 of the Judgment that there were special
features in the Hispano-Belgian Treaty of 1927 which afforded additional
support for the conclusions arrived at on the basis of Article 37 alone.
Now what were those special features, Mr. President? They were, in the
first place, the fact that there was a series of provisions on the question of
adjudication-not only one provision, which waç inevitably linked and
necessarily linked with a particular tribunal. The provision which was in
issue there-Article 17,paragraph 4, of the Treaty-the one which gave
a party the right to institute proceedings unilaterally in the Permanent
Court and which mentioned, in that regard, the Permanent Court as the
only tribunal-that provision, Mr. President, was an ultimate one which
was only to apply after a number of other provisions which provided for
internat ional adjudication-for compulsory adjudication-had failed.
Those other provisions, Mr. President, preceding Article 17,paragraph 4,
of the Treaty, provided in the first place for conciliation procedure. They
provided also that agreement could be reached to bring the dispute to
adjudication by joint action, either before the Permanent Court or before
an arbitration tribunal. So that there were al1those possibilities which
the parties to be bound to an obligation to submit to compulsory adjudi-
cation, before this particular provision could. corne into operation after
a month's notice-after al1the others had broken down,-the provision364 SOUTH WEST AFR'CA
by which one party could then unilaterally take the matter to the
Permanent Court.
In those circumstances the Court held, and 1refer to page 37, that this
last provision (Article17,paragraph 4)-
"... had as its primary object in the scheme of the 1927 Treaty,
what was more a rnatter of mechanics-namely to indicate in what
circumstances, and at what precise point in the attempt to dispose
of the dispute, either party would have the right to take the matter
to the Court".
dealing with this Judgrnent of the Court.f1wish to refer further to what
the Court said at page 38. The Court said:
"In the light of these provisions, it would be difficult either to
deny the seriousnessof the intention to createan obligation to have
- failing-ortoaççert that this obligationwas exclusive1ydependent on
theexistence ofaparticular forum,insucha way that it wouldbecorne
totally abrogated and extinguished by the disappearance of that
forum. The error ofsuch an assertion wouMliein a confusion'ofends
with means-the end being obligatory judicial settlement, the
- means an indicated forum, but not necessarily the only possible one.
This double aspect appearç particularIy clearIy on the bais of the
. . several jurisdictional clauses of th1927 Treaty, taken asa whoie;
and these considerations fumish the answer to the contention that
the obligation of compulçory adjudication in the Treaty was so
indissolubly bound up with the indication of the Permanent Court
as the fom, as to be inseparable from it, and incapable of continued
- existence in the absence of that Court. On the very language of
Articlesz and 17 (1).this is not the case. An obIigationof recourse to
judicial settlement wiU, it is tnie, normally fuid its expression in
terms of recourse to a particular forum. But it does not followthat
this is the essence of the obligation."
That was the basis, then, upon whichthe Court found that it was possible
to speak of this double aspect of the adjudication provisions of the1927
Treaty, andthat there was, independentIy of this particular clause that
was in issue in that case-Article 17, paragraph 4-an obligation to
subrnit to adjudication which could stand independentIy of the dis-
appearance of the forum-of the Permanent Court-which would in that
particular respect be dormant-but only in that particular respect-
because it could still apply in so far as the parties could corne to an
agreement to submit a dispute to arbitration. In that particular respect.
however, it would then become dormant, but upon the new agreement
between the parties-as soon as both of them became signatories to the
Statute, andas won as both became parties therefore to Article 37 of the
be revived in full.gation would, in regard to its application in practice,
Another significant aspect of the language of the Court in this regard is,
still at page 38, the following:
"If the obligation exists independently of the particular forum
(a fact implicitly recognized in the course of the proceedings,
inasmuch as the alleged extinction was related to Article 17 (4)
rather than to Articles2 or 17 (I)), then..." ARGUMENT .OFMR. DE VILLIERS
365
certain consequences folIow, which 1 need not read.,bly emphaçis is on
the fact thatthe Court says it was "implicitly recognized in the course of
the proceedings" thatthe obligation existed independently ofthe particu-
lar forum "inasmuch as the alleged extinction was related to Article 17
(4) rather than to Articles2 or 17 (1)".That, Mr.President, 1 submit,
makes it perfectly clear on what special features the Court based that
particular finding in the BarcelonaTractioncase.
1 have, Mr. President, with respect and with subkission, heard no
contention on the part of the Applicants pointing to sirnilar special
features in the present case upon which the Court shou1d:come to the
conclusion that the provisions of the Covenant of the League'and of the
mandate instruments,in so far as they relate to international supervision
should be construed as relating to a vague obligation of 'submitting to
international supervision and are not inseverably linked to the particular
organs mentioned inthem, aswe'contend.There isnocontention, as 1Say,
on behalf of the Applicants, which refers to such suggested special
features. There can be none, Mr. President. There is no double aspect to
the provisions inthis instance as there was in the case of the adjudication
provisions in the Hispano-Belgian Treaty in the Barcelm Traction case.
In the case of the instruments now under consideration by the Court, we
have only two provisions specifically referring to the question of inter-
national supervision. They are: Article22, paragraph 7, of the Covenant
of the League, and Article 6 of the mandate instrument for South West
Africa. Both of them, Mr. President, define the obligation to submit to
supervisory organ-and refthe secondone ofthem-Articlem-a 6ofthe Mandatear
itself-it says that the reporting is to be to the satisfaction of that organ;
In other words, there is nothing inthe language of the instruments
concerned on which to base a contention analogous to the finding of the
Court in the BarcelonaTraclioncase, and as 1 have pointed out, the
language in that case-the language of the particular treaty there-was
something very strongly relied upon by the Court.
Apart from language, we have dedt at length with surrounding
circumstances and history, and we have submitted that on a fd review
there is nothing in that extrinsic material on which the Applicants could
rely as justifying a finding ofspecial features of a dual aspect of the nature
for which they contend. Again, the indications both of the language-
which is clear and unambiguous-and of the surrounding circumstances
-which point to very strong probabilities in favour of our contention
and which militate against that of the Applicants-exclude any possi-
bility oafinding that the obligationwas intended to beavague onerelating
to international supervision, and not one which was dependent entirely
upon the existence of the particular forum.
I submit that, Mr. President, in addition to the contention which 1
mentioned to the Court yesterday, viz., that surely in 1919and 1920,
there could have been no suggestion that an idea of submitting to
international supervision could in itself have been an establiçhed concept
-sornething on which there could, without more, have been a concur-
rence of mind-a consensusad ideman the part of contractingparties.
Without further stipulation, without indicating what forum, \vithout
indicating its composition, its manner of functioning, it wouid have been
impossible, 1 submit for the parties to know what it was that they were
required to submit toby way of legaiobligation. And allthe probabilities,366 SOUTH WEST AFRICA
and al1the indications of language, are against the contention that that
wasintended to be the agreement of the Parties.
1 proceed now to another of the contentions of my learned friend on
between the Parties,ththentissue of specific organ versus internationalment
accountability. This is the contention which we find, Mr. President,
stated in the verbatim record at page 125, supra. My learned friend,
Mr. Gross, stated it as follows:
"It appears to be common cause between the Parties that super-
vision, or the right of recourse to supervision, is normal and essentia1
in anysituation in which control and benefit are separated, that is to
say, in which oneperson. or entity, exercises a power over property
This, of course, is the essential underlying concept of tmt,s torreof.
tutdle, in al1 legal systems, of which the Applicants are aware."
Mr. President, 1 do not know where this idea of common cause origi-
nates from, because if there is anything which isnot cornmon cause in
with respect, that that should have been perfectly clear from the way in
which we deal with the subject in our Rejoinder, V, pa es41-42. I shall
revert in a moment to what we say in that regard in t%eejoinder. First,
may 1point out thatthe Applicants develop the contention which 1have
just referred to, in the verbatim record, at pages 188-sufia. 1am not
going to read al1of it to the Cou1tshall indicate br3ay what the main
essentials of the line of argument there were. My learned friend started
off by saying:
"Mr. President, 1 had reached the point of stating that in their
Reply the Applicants have demonstrated that the basic principleç of
the Mandate structure, being a combination of the concept of trust
or tutelleand omandatum, require that the hlandatory, the trustee,
or thetuteur,be subject to accountability. This is discussed in our
Reply (IV) at pages 525-540."
And my learned friend goes on to refer,in fact, to the answer which we
gave in our Rejoinder. He refers twice-both at page 188,supra, of the
verbatim record thereofto page 43 (V) of our Rejoinder; and he refers to
the answer wegave,although 1must Say,with regret, he takes Ouranswer
somewhat out of perspective. And what is it he says? At page 188of this
record his submission is, frrçtly, thaour rebuttal "consists of a mere
assertion". He says further thatthat rebuttal is "coupled with doubtfully
relevant propositions concerning principals and agents, masters and
servants, and certain types of brokers"and then he adds the contention
in regard to the trust in England. That is satlpage 188. And then still
at page 188he ascribes to uç a contention, which we never advanced,
namely that is that we have a duty to report and account to the inhabi-
tants of the Territory. These would seem to be the main elements in the
answer which he gave to our exposition, and 1should therefore like to set
the perspective straight and to refer to what our exposition was, in the
main, and to showto what extent these cornrnents are or are not justified.
The Court willrecall that these contentionson behalf of the Applicants
were advanced also in the Reply, where they sought to apply an analogp
from municipal Iaw institutions of trust and tzttetl olhe case of the
mandates system. Our ansrver broadly was that their generalization in ARGUMENT OF MR. DE VILLIERS 367
regard to municipal law was wrong, and, therefore. that the application
of their generalization to the mandates system wasalso wrong. In giving
that answer we distinguished, hlr. President, very clearly between our
contentions regarding municipal law and our contentions regarding the
mandates system. In fact, we dealt with those three subjects separatel
under separate headings. At page 42 of our Rejoinder (Y) we dealt witz
the first one, under the heading "Fiduciary Institutions in Municipal
Law"-in the series of paragraphs commencing with paragraph 31.Then,
at page 45,weproceeded to deal with the other subject under this heading,
"The Analogy between the International Mandate and MunicipaI
Fiduciary Institutions", in the 5oup of paragraphs starting with
number 34.
Mr. President, in regard to the situation in municipal law we made
certain points. I will just mentiothemain ones, 1 am not going to read
it al1to the Court now.We made the point that there aremany categories
and a very large number of fiduciary institutions in municipal law in
which control and benefit are split or severed from one another-when
of another, which is essential in the trust idea. We made the point thatt
that concept applies not only to a trust properly so called-notonly to
cases of guardianship or tutelle-but in a variety of other cases having
different names but containing a similar fiduciary eIement, We referred
in that regard at page 42 (V), of Our Rejoinder, to an extract from
Quincy Wright in which he refers to a large number of such situations
which bear some analogy to the situation in the mandates system. He
refers there to agents, to executors, to administrators, to attorneys, to
directors of corporations, to guardians "and others who are not strict
trustees but whose functions are Iike those of the trustee in that they act
forothers and areentrusted with power over, and title to or possession
things to be used for the advantage of another". We pointed out, at the
next page, that there could even be additions to that list, and we men-
tioned as a few examples certain types of servants and employees. We
had in mind, for instance, perçons in a managerial capacity in a com-
pany, andso forth, or in a partnership or ordinfim, or members of club
cornmittees; onecould think ofmembers ofChurch councils, and so forth.
Then, Mr. President, we proceed to submit at page42 (V) thatl
''When regard is had to the wide class of fiduciary relationships
referred to above, al1of which involaedivisionbetween control and
benefit, it imrnediately becornes obvious that Applicants are wrong
in saying that one of the consequences of such division is that 'there
must be supervision by a public authority', or that reporting to, and
supervision by, such authority are 'necessary corollaries of the
fiduciary character' of such relationships. Such supervision is not as
amatter oflogicinherent in the divisionbetween control and benefit,
and, indeed, there must be few, if any, municipal systems which
even mostof thern." supervision in respect of aUsuch relationships, or
Illr. President, it seems, with respect, that our contentwas stated
very explicitly and clearly, and 1 still do not understand where the
concept of common cause cornes from. .
We proceeded to point out, Mr. President, that the true position is
that the only obligation with respect to accountability which is norrnally368 SOUTH WEST AFRICA
regarded as incidental, in pnnciple, to a fiduciary relationship, is the
duty to render account to the beneficiaries, and that was the distinction
we drew, purely in regard to municipal law. We made it clear that one
could not Saythat it wasnecessarily incidental to a fiduciary relationship
of a type where control is separated from benefit, that there must be
accounting to a public supervisory authority. What is incidental, is that
there must always be accounting to the beneficiaries themselves, but
that accounting is of a different kind. The accounting is of the essence of
the obligation itself. Accounting rneans, on the one hand, that there is to
be given to the beneficiaries what is due to them under'the particular
legal arrangement. There is to be accorded to them what they are
entitled to. and, in order to accord to them what they are entitled to,
the trustee, or quasi-truçtee, or whatever his title mightsbe in theparticu-
lar situation, is obliged to indicate what hehas done with histrust-what
are the results of his trust. The results are paid over-made available-to
the beneficiaries. .
But, Mr. President, supervision by a public authority is a different
regular accounting byhat attrustee, or quasi-trustee, to such a supervisorye
authority, but that does not flow from the institution of a fiduciary
relationship as a 'necessary corollar , or as something inseverably
connected with it: It is'something whic i;is, in specificinstances, provided
for by a special'arrangernent, and in municipal law mostly by legislation.
We say then, hfr.President,in our Rejoinder:
"In addition to the duty to account to the beneficiary,sorne forrn
of accounting to and/or supervision by a public azrthorilyha been
introduced in rnany systems, in respect of the performance of
fiduciaryobligations faliing inspecifiedcategories. Such introduction,
which commonly occurs by way of legislation, has in no case of
which Respondent is aware, resulted in a uniform duty falling upon
a11fiduciaries to account to, or submit to the supervision of, sorne
public authority. Much the reverse is the position-in a11probabiiity
. the majority of fiduciary institutions in the civilized worId.are not
subject to such supervision at all, and where it does exist, it does so
by virtue of a special provision made ad hoc *th respect to a
particular category of fiduciary institution." (V,p. 43.)
It is that proposition which we proceeded to illustrate with reference to
various systems and known fiduciary relationships.
1 çubmit, Mr. President, that that position is indisputable (it appears
from the very authorities which the Applicants themselves have put
before the Court) and 1 pointed out the significance of it but have had
no reply from my learned friend, that in the United Kingdom, which is
the home oi the Anglo-saxon trust, there is no provision for regular
supervision by an administrative supervisory authority, or for accounting
to such an authority. We refer in that regard to theauthority in footnote
4, age 46,ofthe Rejoinder(V),
Le aalsorefer to the authorities relied upon hy the Applicants thern-
selves in regard to the situation in the United States of America, wliere
they point out that in somestates, but not in all,there is provision for
accounting to authority by trustees, or at least trustees acting under a
will-in other words. not alEtrustees, and not in al1 states-tmstees
acting under a will in somestates, but not in all,leaving out of account ARGUMENT OF MR. DE VILLIERS 369
al1other fiduciary relationships, even tmtees acting under a deed inter
uivos.
We further pointed out, Mr. President, in the Rejoinder, V, paragraph
33, pages 44-45,that thereis a need forspecial provision in municipal law
to have supervision of this nature-accounting to a supervisory public
authority-and that in municipal law such provision is normally to be
foundin legislation.
Then, hlr. President, one cornesto questions asto the nature andscope
of the supervisory power, and of the obligation to submit to it, which is
the particular question with which we are concerned here, namely
whether the obligation was inseverably linked with a particdur super-
visory authority, or whether it codd continue to exist independently of
that authority, ifthat authority should cease to exist.
. Those are questions of interpretation of the relevant legislation in
every case. In each instance it is aatter of ascertaining the intention of
the legislature. The normal situation is that the legislature provides for
the obligation and for the supervisory authority as two things linked
with one another. If the supervisory authority should fa11away for any
reason.,the 1egisIatureis always there to make a new provision, if neces-
sary. -- ',
That is generalizing. The main point is that,as a matter of principle, it
is a question of interpretationin every case-of ascertaining the relevant
intent of the legislature-to see whether it is intended that a particular
obligation to submit to supe~sion should survive when the particular
supervisorybody, mentioned in that legislation, falls away.
That, Mr.President, brought us to the,A plicants' suggested analogy
regarding the mandates system, their app fication of the principles of
municipal law to the case of the mandates system. Obviously, we stress,
therefore, that in so far as one dqes find ln the mandates systern an
obligation relating to accountability, that obligation did not originate
because of any necessary, or inseverable, connection between such an
obligation and an institution of trust, or tutelle. It arose for one reason
only, and that is that the authors of the mandates system considered it
desirable to rnake such provision, just as the legislatures in municipal
systems consider it desirable to make'such provision in particuZarcases,
but not in allcases.
Therefore, it was again the question of a need to have law-making,as
in municipal systems, and the law-making here consisted of the treaties
and conventions in question-the Covenant of the League and the
mandate instruments made in pursuance of them. And, therefore, if one
is to. ascertain the question whether that particular supervision was
intended to survive the particular supervisory organization, it again
becomes a matter of ascertaining the intent of those responsible for this
law-making-in other words, the authors of the Covenant andthe parties
that gave their consent to the mandates instrurnent.,That, and that only,
is the basis upon which one can deterrnine a question of this kind.
We dealt with that question, Mr, President, in the Rejainder, page 45
(V), particularly paragraph 35.
So that sets out Ourattitude. Ive, of course, did not dispute that the
authors of the mandates system found it desirable to make provision for
supervision by a supervising body, but the question of the nature and the
the Parties as to the continued existence of the obligation in the absenceen SOUTH.WEST AFRICA
370
of the supenrisory authorities, is a matter.\vhich can only be determined
on the basis of ordinary interpretation and implication, relative to joint
intent-in other words, by applying the ordinary principles to ascertain
the joint intent of the authors of the instrument.
are now, under the mandates system, liable to report to the inhabitants we
of the Territory is to ascribe to us something which wenever said. We do,
of course, accept that we are responsible for the inhabitants of the
mandated Territory. We accept that we have a trust obligation in regard
to them. We accept that we have to administer the Territory for their
benefit, and we are doing that ;we assis them in buiIding up their own
political institutions as a means of responsible deliberation and consulta-
tion between them and the Mandatory Government, and also as a means
of self-expression in case they may have any cause for juçt cornplaint.
In any case, Mr. President , the Respondent Government acts openly and
before the eyes of the world, whether it is liabletosupervision, or not. It
has not treated the Odendaai Commission report or the Government's
reaction thereto, in the White Paper and the Parliamentary debate-as
officialsecrets or as matters ofunderhand scheming. These things proceed
openly before the eyes ofthe world, andtheyare done by way of fulfilling
a sacred trust towards the inhabitants of the Territory. But to suggest
that we Say that we have to make reports to the inhabitants of the
Territory is ascribing to us something which we never said.
In dealing with this aspect of the matter in the Rejoinder, &Ir.Presi-
dent, we said:
"In order to determine the nature and content of the duty of
accountability, it accordingly becomes necessary, as in municipal
law, to examine and interpret the relevant law-making instrument.
The content of the duty of accountability to be thus determined,
must provide the answer to the question whether provision was
. made for a substitution of supervisory organs. This answer can
consequently be obtained oniy by ascertaining the intentions of the
authors of the Mandate System as expressed or implied in the
. Mandate documents." (V,pp. 45-46.)
We proceed to discuss that question with relevant reference to the
facts, as 1 have done in the course of this oral argument, and 1 do not
wish to reiterate, except to state these conclusions as they are set out in
the Rejoinder :
"They [the Applicants] do not show . ..[that] the authors of the
System, in the circumstances then prevailing, [induced] to make
unknown circumstances, to counter the effects of a situation (the
dissolution of the League) which they did aot expect to arise and
which could be dealt with if and when it did arise." (V,p. 46.)
And we conclude, Mr. President, with this:
"Al1this becomes the more evident from the fact that the Appli-
cants do not show why, if there had been an intention to provide
for succession as regards supervisory organs, it was not espressed
in the documents themselves, or in any preparatory debate or
negotiation or why it was not referred to in the Iater discussions
on that subject." ARGUMENT OF MR. DE VILLIERS
37I
And that, 1 submit, may be a suitable note on which to conclude this
review of the hst major issue between the Parties.
1 proceed, Mr. President, to deal with the next stage in the develop-
ment, narnely with the eventç of the years 1945 and 1946when the
United Nations wasformed and when the League of Nations kvas dis-
solved. In the Iight of the issue between the Parties, i.e., the rival con-
as originally stipulated in the Covenant of the League and the mandateon
instrument-we have to determine the significance of the events of the
years 1945to 1946. -
If the Respondent is correct in its submission that its obligations of
accountability under the Mandate related only to the specificsupervisory
organs referred to in the relevant instruments, the consequence wodd be
th'at, on dissolution of the organs in question, no duty oi accountability
would have rernained, unless specificprovision \vas made for a subçtitu-
tion of organs. In other words, there lvould have had to be what the
Applicants term in that regard a wholly new agreement. The Applicants
have conceded that that would have been necessary and 1 do not have
to refer to the passagesagain.
1 have also shown, Mr. President, that the Applicants apparently do
not attempt to show that if such a wholly new agreement was necessary
for the purpose of providing, or keeping alive, theduty of accountability.
it was in fact entered into. Their submission is, as we have shown, that
the Respondent was obliged initially to submit to international account-
ability, and not to supervision by specific supervisory organs. But we
have also indicated, Mr.President, that theyadmit thatthat leaves thern
with the problem that when the specific authority-the only supervisory
authority-initially mentioned fell away, that obligation, on their
premise, would have become dormant unless there was agreement for the
substitution of anew supervisory organ. So, on their premise as wellas
on ours, it becomes necessary to show that there wasin this regard a new
agreement in the years 1945and 1946-a new consent-a new arrange-
ment-involving consent on the mandatory's part.
The Applicants contend that that consent was given ab initio in the
original arrangements of 19x9 and 1920. They admit that they have to
establish some consent in the years 1945 and 1946.
And, Mr. President, whether one approaches the matter from the
Applicants' point of view-from their premise-or from the Respondent's
premise, it becomes clear that the same principles oflaw must apply to
this inquiry. It is common cause between the Parties that there was no
express agreement on this question in the years 1945 or 1946-no
express agreement whereby the United Nations, or any organ of the
United Nations, was accepted by the Respondent as the new supervisory
authority in substitution for those provided for in the initial agreements.
Therefore, the only basis upon which consent could be established would
be by way of the showing that it was tacit. It would be by way of a
process of inference from fact-by way of showing a proposition by
circurnstantial evidence. The ordinary principles would apply in that
regard, it beingnecessary as the Applicants put it themselveto establish
room for any reasonable alternative.o unequivocally clear as to leave no
In other words, Mr. President, we submit that irrespective of which of
the Parties is correct in its interpretation of the extent of the dutyof372 SOUTH WEST AFRICA
implied or tacit agreement was concluded during the transitional years an
whereby Respondent consented to submit to the supervision of the
General Assembly of the United Nations. And, asa matter of law, no
such agreement can be implied unless the inference is consistent with al1
the proved facts, and unless no other reasonable inference may be drawn
frorn the relevant facts and circumstances. That, as 1 have said, would
apply on either bais.
The only difference between the Applicants' approach and Our ap-
proach would seem to relate to a question of assessrnent of the facts.
The only conceivable difference could be this, that if the Applicants'
approach is correct there was still an obligation, although a potentially
dormant one, of a wide nature, to submit to international supervision.
Then, perhaps, someutteranceor someevent,or the totality of utterances
and events during the years 1945 and 1946,rnay, as a matter of fact, have
to be given somedifferent weightfrom what the position would have been
if it had been necessary to establish a whoIly new agreement. That, of
course, ispurely a question ofappraisal offactinparticular circumstances.
It doesnot affect the legalprinciple which 1have mentioned which makes
it necessary for the Applicants to establish their proposition as aneces-
sary inference fromall the relevant facts.
As far as we are concerned, Mr. President, it does not matter to us, in
this particular review which 1am going to undertake now, which of those
approaches is followed. In our submission,.the result is the same, in any
event.
May 1 first put to the Court the way in which the Applicants have
stated their approach? They said in the verbatim record at page 132;
supra :
"... whatever conclusions might be reached in respect of the degree
or quality of truth necessary to demonstrate a new amendment
under the false premisefrom which Respondent proceeds, a different
set of considerations, we submit, isapplicable if one proceeds from
the premise that the obligation of international accountability isan
essential and integral element of the Mandate and that itmust
survive so long as the Mandate itself endures. It would follow from
this prernise, upon which the Applicantsrest,that the only remaining
question-although an important one indeed-would bewhether the
function of supervision passed to the nearest equivalent of the
League, to wit, the United Nations. If not, these Articles would not
have lapsed, but would have becorne inoperative for lack of a
supervisory organ withcapacity to replace the League Council.' '
In our submission, Mr. President, as 1 have said, there can' be no
different set of circumstances as far asthelegai principles are concerned.
The only basis upon which the Applicants could establish, in their own
words, that "the function of supervision passed to the nearest equivalent
of the League, to wit, the United Nations", would indeed be consent on
thepart of all the interested parties, andin particular, on the part ofthe
Respondent. And that is, therefore, the purpose of this review.
As I have said, Mr. President, it does not matter to us whether this
review foliows the Applicants' approach or ours. In our submission, the
events of the years 1945 and 1946 are so clear that they not only show
that there can be no necessary inference of a general agreement on this ARGUMENT OF MR. DE VILLIERS
373
point, but that they also show definitely that there was no such general
agreement, and we say that that is so whether one has to establish a
wholiy new agreement, or a Iesser propositionof consent to a substituted
organ.
Now, Mr. President, before reviewing the events themselves, it may be
necesçary to draw a distinction with respect to something which arises
in the manner in whch the Applicants have presented their review of the
facts of this period, and that is a distinction between the question
whether the Mandate survived the dissolution of the League and the
question whether provision was made during the transitional period for
a substitution of supervisory organs.
questions were inseparably linked with one another-as as if ifa tpositive
answer to the one would necessarily imply a positive answer to the other.
They seem to approach the matter more or less in this way: firstly, that
the Court must findthat accountability was an essential element of the
Mandate, or that it was the very essence of the Mandate, as they have
put jt,with the result that if the.Mandate can be said to exist it must
necessarily follow that accountability under the Mandate also exists.
That seems to be their first proposition, viz., that the Court mwt come
to that conclusion. , .
Then, Mr. President, arguing from that prernise, they seem to suggest
that it must follow that al1States which dealt with this problem in the
earlier stages must, at al1times, have held a similar view about the sit-
uation with the result that ifanyState indicated that it thought that the
Mandate would stLL1 exist aftea certain event, say, after the dissolution
of the League,.then that must necessariIy also carry the implication that
that State considered that accountability would still exist after thedis-
solution of the League.
Mr. President, tkat, in my submission, is of coursea compIete fallacy.
The two questions are entirely distinct: i.e., what the Court finds now as
a matter of law and ex ost facto,and what various States thought
at various stages whilst t &'s question was emerging and while it was
being discussed and dealt with in the various organs. If the Court should
now find that on the basis of interpreting the intentions of the authors
of the mandates system the element of accountability is indeed an
essential part of the Mandate, then the Court would bemaking something
which 1 yesterday described as being in the nature of an ex postfacto
finding.
We proceed from a factual basis which is common cause, viz. that the
authors of the mandates system did not contemplate the dissolution of
the League. Therefore, Mr. President, it seems quite evident that it can-
not be said that they specificallycontemplated what would happen in the
event of the League, as supervisory body, falling away, i.e., whether the
mandates could or could not still remain in existence after that ,event.
That is a matter which is not specifically dealt with in any of the instru-
ments which have to be interpreted. It is a matter on which there was
no expression of opinion at the time ofthe creation of the mandates syç-
tem, and, Mr. President, it is a matter in regard to which the probabi-
lities show that it was never in fact contemplated by the authors of the
system at al]. They did not think about it. They did not intend to make
my provision in that regard.
Now the Court may be faced with the question, namely that if itfin&374 SOUTH WEST AFRICA
that supervision has lapsed whether the rest of the mandate instrument
canstand without supervision. Then the Court has to relate that ques-
tion to the probable intent of the authors of the mandates system. That
somewhat artificial, and alrnost speculative, basis, particularly in viewa
of the facts which 1have mentioned, namely thatas far as we know, and
in a11probabitity, the authors of the systern gave no thought to this
question at au, or that, if they did, they diclnot express their thoughts
anvwhere so as to serve as a guide for us-neither in writing at the time
or dinspeech. We accordingly have.no guidance directly and specifically
on that question from the authors of the mandates system.
In the circurnstances it becomes a somewhat artificial task now for the
Court to determine-but one on which the Court must necessarily em-
bark-whether, in the light of general indications of what the intent of
the authors of the systern would have been on this particular question,
they uiould have intended the rest of the Mandate to survive in this
truncated form. As 1indicated before, that is thetype of question which
a court rnay well, in particular circumstances, have to decide on a pre-
ponderance of probability, because there would be no other basis upon
which it couiddecide it. But that does not follow,because it is a situation
which is to be entirely distinguished from the question which ariaes when
the Court isto determine from circurnstances whether an inference of an
agreement to operate between the parties was, in fact, entered into in
any particular respect. In that instance the principie is that there must
be an inference, which is the onIy reasonable inference in the circum-
stances. It must be a necessary inference. That is the proceçs by which
the Court can then corne to its conclusion that parties actudly bound
themselves to an obligation.
But where it deals with the converse question which we have here, Le,,
may still stand, it may wellbe, and it very often happens, that the Court
has to decide on what 1have just described asa somewhat artiiicial basis.
It therefore follows immediately from that situation, Mr. President.
that the mere fact that the Court may now, ex $est factofind that those
two elements were to be regarded as inseverably connected with one
another, so that if one takes away the supervision then the whole struc-
ture must colIapse, can surely not by itself afford any indication'as to
what the various interested parties and States must have thought at
various stages of the historical developrnent of this matter, especially in
the years 1945-194 an d especially if we accept the premise that no
positive thought was given to that question in 1919 and 1920 when the
original instruments were forged.
That is one factor, Mr. President, which immediately distinguishes
those two situations.
Another factor which lends emphasis to the distinction is this, that in
the Opinion of rg$o on the South West Africa question, given by this
Court and its Blembers, it seems to have been fairly generally accepted
that accountability under the Mandate-the duty of a report under Arti-
cle 6-could be regarded as severable from the restof the mandate insti-
tution. That that was the contemplation of the two judges who gave
minority opinions, Sir Arnold McNair and Mr. Justice Read, 1s quite
apparent from the very result-from the very conclusions-at which
they arrive. They concluded that the Mandate was still in existence, but ARGUMENT OF MR. DE VILLIERS 375
that there was no obligation of reporting and accountability as from the
time of the dissolution of the League.
As far as the majority opinion on that point is concerned, there is
no statement whatsoever to the effect that those two elements were re-
'garded by the majority as having been inseverably linked with one
another-no indication really that the majority embarked upon that
inquiry at all. On the contrary, the reasoning and the manner in which
it was set out in the Opinion, seerned to imply that the majority re-
garded the two questions as severable because the majority dealt first,
Mr, President, with the question whether the Mandate could be said to
be still in existence after the dissolution of the League. The Opinion
dealt with the whole of that question without bringing into relationship
with it the problems arising under Article 6 as to the question of a super-
visory organ which has fallen away.
It came to its conclusion that the Mandate as an institution was still
in existence,without adverting to the problerns regarding Article 6 at al].
It was only in a separate part of the Opinion that it proceeded to discuss
the problems relating to Article 6. The indications are, hlr.President,
that the.Court, toail intents and purposes, regarded those two questions
as severable, because if it had approached the matter from the opposite
premise-if it had considered that the question whether the Mandate
was still in existence, was inseverably linked with the question whether
Article 6 was still in existence-then surely it could not have come to
problems regarding Articlend6tat al].ved without having discussed the
That lends ernphaçis to the fact,Mr . President, that whatever the con-
clusion of this Court may now be on the question of severability or in-
severability between Article 6 and the rest of the institution, that that
was not necessarily the contemplation of parties dealing with this ques-
tion over the years that have passed, and particuIarly during the years of
transition and when this dispute took shape.
The Applicants' own attitude, as now presented to this Court, shows
that this assimilation of the probable views of parties, all alongthe line
with what the Court is now asked to find upon the question of insever-
ability, is an artificid one, that is, in so far as they now place themselves
on the bais of the reasoning in the BarcelonaTraction case-of the dis-
tinction drawn there-and in so far as their suggestion is that the Man-
datory (andthis is their contention) isnow obliged to report and account
to the General Assembly of the United Nations. They cannot now come
and contend that, if the Mandatory indicated, or if any State indicated,
a contemplation that the Mandate would still be in existence, that that
,necessarily irnplied an obligation on the part of the Mandatory to report
and account to the General Assembly of the United. Nations because
they themselves Saythat, if there was no agreement about a substitution
of supervisory organs, it could not have resulted.in a lapse of the obli-
gation of accountability. The obligation of accountability would survive,
although dormant. Therefore, Mr. President, no question of lapse of the
Mandate could arise on that premise. The obligation of accountability,
even if an inseverable partof the Mandate, would still survive and, there-
fore, the Mandate as a whole would still survive-only one of the obli-
gations would have becorne a dormant one and no question of the lapse
of the old institution could then, on this premise of the Applicants, have
arisen.376 SOUTH WEST AFFUCA
Surely it then follows that, if somebody under those circumstances
spoke of the Mandate as surviving, and adopted the Applicants' premise
and approach to this whole rnatter, but yet did not in any way imply
that the Mandatory was liable to report and account toan organ of the
United Nations, it wodd indicate, Mr. President, that the Applicants'
approach to the events of the period, in so far as they identify the two
questions of lapse of the Mandate, or continuedexistence of the Mandate
andcontinued existence of accountability to an organ of the United Na-
tions, is fallacious,
It ifurthershown to be fallacious by the very facts of the peri1945-
1946and the first years ensuing after those, becausethe facts show, as
we shd indicate, that there were a number of States which indicated a
view to the effect that the Mandate was still in existence and, at the same
time, indicated that they did not think that there was any obligationof
accountability to organs of the United Nations.
In other words, the manifested attitude of various States during.that
accepted the possibility that the Mandate might still be regarded as be-
ing in existence, without any accountability to any supervisory organ.
1 thought it was necessary to make that distinction clear because, if
one does not do that, then one falls into the confusion to which the Ap-
plicants' analysis of the events of1945-19 46ust necessarily lead one.
On that basis,Mr. President, and for those purposes 1 now proceed to
consider the first phase of this history, namely the events concerning the
foundation of the United Nations andthe first period of its existence up
to, and until, the dissolution of the League. After that 1 shall consider
the events at the dissolution of the League andturnto a consideration of
further developments in the United Nations in the period thereafter. 1
shd deal with the matter with reference to those three phases, the first
one being the foundation of the United Nations.
Now, Mr. President, these eventsaredealt with in Ourpleadings, fairly
extensively, as well as the significance which we place upon them. 1 do
not intend to review them al1in fd. 1shall give the Court the references
to the places where we deal with them and shall indicate very briefly,
for the convenience of the Court, what significance we attach thereto.
Firstly,we point out in the pleadings that the establishment of the
.United Nations Organization Aowedlargely frominter-allied CO-operation
during the Second World War. The prelirninary negotiations and con-
ferences leading upto the drafting and coming into effect of the Charter
al1took place while the League of Nations stili remained in existence. In
fact, the Charter came into effect o24 October 1945 whereas the League
of Nations was dissolved only in April 1946. We deal with that in the
Counter-Memorial, II, page 32-33T.here, Mr. President, we also point
out that there was a substantial difference in the membership of the two
organizations and we give details in that regard, which I need not repeat,
at Page 33.
Next, Mr. President, we point out that aIready at the drafting of the
Charter at San Francisco in the period between20April and 26June 1945.
the question of the future of the Mandate for South West Africa was
raised. OnII May 1945 the South African representative made a state-
ment in which he gave reasons wh the South African delegation claimed
"that the Mandate [for buth dst Africa] should be terminated and
that the Territory should be incorporated aspart of the Union of South ARGUMENT OF MR.DE VILLIERS
377
Africa". Those were his words and we quote that statement in full in
our Counter-Memorial, II, pages 33-34. The statement indicated, Mr.
President, that the matter would not be pursued further at the San Fran-
cisco conference, but would be raised .at a future contemplated Peace
was contemplated in that regard 1 do not know, but that was the tenor
of this statement. The statement as far as 1 have repeated it now, Mr.
President, indicates impiicitly that the Union of South Africa was not
intending to place this Territory under trusteeship and that it did not
want its.participation in the proceedings leading to the drafting of the
Charter to be misunderstood as involving any commitment on its part
relative to this new trusteeship system and its possible application to
South West Africa. That, as 1 said, was impIicit from that statement
itself.
It becomes more emphatically so, however, if one looks at the addition
which we cite in the footnote at page 34 (as the Courwillrecall, thver-
batim officia1records do not contain that, but it iscontained in our record
and the person who made the staternent, Dr. Smit, confirmed to the Re-
spondent that he had made it). The words were:
"As stated in the rnemorandum, this is not a matter that can be
decided here, but 1 am directed to mention it for the information
of the conference so that South Africa may not afterwards be held
tohave acqujesced in the continuance of the hlandate or the inclu-
sion of the territory in any form of trusteeship under the new Inter-
national Organization."
Mr. President, at the adjournrnent 1 had quoted frorn a statement by
a South African representative at the San Francisco Conference. I may
just add that in the Counter-Mernorial, II, page 35, there is a quotation
1946,ain which he explained what the significance and the purposer of
this previous declaration had been. He explained that it was necessary
to ensure-1 ag quoting from the statement as we have it at page 35-
"... that, when the proper time arrived for consideration of any
change in the status of the Territory, such considérationshould not
be prejudiced by any prior commitment on the part of the Union
Government by virtue of its membership of any organization which
might replace the League of Nations;".
The statement went on to explain that when eventually, in ArticIe 77 of,
the Charter, the word "may" was substituted for "shall", that made the
application ofthe trusteeship system "a matter of voluntary agreement",
and then the real necessityof thisstatement, as it had been seen earlier,
to that extent fell away. But nevertheless, Mr. President, issignificant
that the emphasis falls on the need to have no-
"prior commitment on the part of the Union Government by virtue
of its mernbership of any organization which might replace the
League of Nations".
Now, hlr. President, the next element in this review is that the United
stated in the1950tsOpinion- no provision inthe future for a mandate. AS
"...the Charter has contemplated and regulated only a singlesystem, SOUTH WEST AFRICA
the International Trusteeship System. It did not contemplate or
regulate a coexisting Mandates System."
The qu&ation is given in the Counter-Mernorial, II ,t page 127and also
the reference.And so,Mr. President,we find that in the provisions ofthe
Charter not only was there no provision for power on the part of the
United Nations, or any of ~tsorgans, to exercise çupervisory jurisdic-
tion in respect of mandates as mandates, but there was no provision for
any machinery in that regard either.
obligation on the mandatory powers to submit or conclude trusteeships no
agreements-that was a voluntary matter. The reference to rnylearned
friend's statement on that point is in the verbatim record at page zog.
supra.
We now corne to the next important step, Mr. President. Towards the
conclusion of the San Francisco Conference, on25 June 1945 a,Prepara-
tory Commission of the United Nations was established, intea rlia, to
"formulate recommendations regarding the possible transfer of certain
functions, activities and assets of the League of Nations which it might
be considered desirable for the newrganization to take over"-that was
the phraseology used in this regard. The details of the Commission's
activities andthe resolutions finally adopted by the General Assembly in
that regard are set out in the Counter-Memorial (II), at pages 35-38.
AIthough, Mr. President, there is now no contention on the partof the
Applicants that there was a transfer of powers from the League to the
United Nations-no contention any more of a general succession in
respect of powers in that regard-these eventç-these special arrange-
ments here-remain of particular significance, because of the light which
they throw on the intent of everybody concerned, and particdarly onthe
way in which the whole question of mandate was differentiated from the
other matters with which the Conference was dealing. 1shall explain in
what particularly significant way that indicated the intentionsin regard
to mandate.
The following aspects we see to be important in regard to this aspect
of the matter-the work of the Preparatory Commissionin this regard.
proposals that provision should be made for the transfer-1andemphazise
the word "transfern-of functions and activities of the League. That,
after debate, was altered-the phraseology was altered, because the
word "transfer" was-1 quote from the debat~ne which could "imply
a legal continuity which would not in fact exist"; so careful were the
States concerned to make it clear that there was no legal continuity
between the League of Nations and the United Nations. Consequently,
Mr. President, the terminology was altered, and the new terminologywas
"the assumption of responsibility for certain functions and powers" by
the United Nations-we give that at page 38 of the Counter-Memorial.
NevertheIess, Mr. President, although this terminology was altered,there
was a very carefully devised resolution to provide for such an assumption
of functions and powers-I shall give some of the other significant
aspects of it ia moment-but the rnost significant aspect of was that
there wasan exception in regard to mandates. Nothing was provided
for in regard tomandates, and inthe circumstances, which 1 shall deal
with, the only inference is that the omissiwas a deliberate one.
The next step is, Mr. President, specifically as regards mandates. ARGUMENT OF MR. DE VILLIERS
379
It will be recalled from what we set forth in our pleadings (Counter-
Memorial, XI,p. 40) that the Executive Committee of the Preparatory
Commission recommended that the General Assembly should create a
temporary trusteeship committee which *wouid have the function,
arnongst others, 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",
1 emphasize those words, Jlr. President-"the transfer to the United
Nations" of the functions and responsibilities concerned. And in the
proposed provisional agenda of this temporary trusteeship committee,
the following item was included: "Problems arising from the transfer of
functions in respect of existing mandates from the League of Nations to
the United Nations" (ibid.)-again the same concept, that there was a
necessity for a transfer of functions. The recommeildations regarding the
temporary trusteeship committee were, however, as the Court is aware,
not accepted by the Preparatory Commission, but the Commission
replaced them by a recommendation that the General Assembly should
adopt a resolution calling on States administering mandated territories
Mernorial, II, pages 40-41-andanothing, Mr. President, was substituted
in that resolution or in any other resolution for these previous suggestions
of making some arrangement in regard to the transfer to the United
Nations of any functions and responsibilities hitherto exercised under the
mandates system.
The next step is that during the discussions preceding this recommen-
dation of the Preparatory Commission-in a debate on the same subject
in the Preparatory Commission and also aftenvards in the General
Assembly-Respondent 's re reçentative repeatedly emphasized that
Respondent was not underta 7i~g to enter into a trusteeship agreement,
but that in its view the interests of the Territory could best be sbyved
incorporation with South Africa, and thatthe matter would subsequently
be raised at an appropriate time and on an appropriate occasion. That
we fmd dealt with in the Counter-Mernorial, II, page40-42.
Another important factor is that other mandatories also indicated in
debates and in statements that they would not, or might not, submit
or conclude trusteeship agreements in respect of certain mandated
(II), pages 42 and 131The Court wilIrecall thatthe reference isamongstl
others, to the United Kingdom-its intentions in regard to Palestine.
Those intentions were at that stage not entirely clearly formulated as
regards the future, and the United Kingdom found it necessary to reserve
its position entirely in regard to Palestine. In regard to Trans-Jordan it
indicated that there was an intention to give independence to that
territory-again, in other words, a clear int~mation fhat that territory
would not come under the trusteeship system.
The position with regard to the Pacific Islands, previously under
Japanese mandate, was entirelyuncertain, and the United Kingdom and
France in any case indicated in their statements that, in so far asthey
proposed to negotiatein regard to tmsteeship agreements, thejr intention
was subject to the obtaining of satisfactory terms in that regard.
Next, Mr. President, the resolution regarding the conclusion oftrustee-380 SOUTH WEST AFRICA
shipagreements which was eventually adopted by the GeneralAssembly,
indicated that its mernbers-the rnembers of the General Assembly-
were well aware that trusteeship agreements would not be submitted in
respect of all mandated territories. We find that in BookII of the
text of this relevant portion of the resoIution, and we refer there in one
of the paragraphs to these words-
"... the General Assembly :
Welcomesthe declarations, made by certain States administering
territories now held under mandate, of an intention to negotiate
trusteeship agreements in respect of someof those territories..."
In the result, Mr. President, and by reaion of the failure to provide
any specific provision for the transferof functions under the mandates,
it follows that such functions could have been transferred only by
applying the general provisions agreed upon by the founders of the
United Nations, that is, under the resolution to which 1 have referred,
before regarding the assumption of responsibilities for certain functions
and powers.
The Court willrecdl that there were two ~esolutions.~~~.XI was the
the other one, regarding the assumption of functions and powers, was, and
No. XIV.
Inasmuch as the tmsteeship resolution XI made no provision in regard
to mandates as mandates, or 'the taking over of any functions-the
transfer of any functions or powers in regard to mandates aimandates-
the oply way in which that function could then have been dealt with, if at
dl, would have been under this other resolution XIV, providing in
general for the taking over or the assurnption of responsibility for
functions and powers.'But in this regard, Mr. President, 1tissignificant
that the General Assembly in that. resolution distinguished between
League functions contained in treaties having a non-political character,
and League functionscontained in treaties having a political character.
In regard to non-political matters generally, including those falling
under treaties, tliere was a statement in the resolution XIV of general
willingness on the part of the United Nations to assume those functions.
We find that in the CGimter-Memorial,II, pages 38-39and again at'page
130.The text is at page 39, and 1 read this one portion of the resolution-
paragraph 3 t5fPart 1:
"3, G-ral Asse-bly 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 Fume the exercise
of certain functions ,and powers previously entrusted to the League
of Nations, and adopts the followingdecisions, set forth in A, B, and
C below." . .
This resolutionpf being willingin principle was qualified in some rninor
respects which are not relevant to our theme, but subject to those it was
a general willingness and it related to these various matters of a non-
political character. The portion A following dealt with. functions per-
taining to aSecretariat. The portion B followingdealt with functions and
powers of a technicai and non-political character, and there the expression
of general willingness was confirmed. The full wording is set out in the
Counter-Mernorial, 1 need not even read it to the .Court. . ARGUMENT OF MR. DE VILLIERS 381
These functions of a non-political character wouMobviously not include
the function of supervision in regard to mandates, and sothe only portion
of the resolution XIV under which that function could possibiy fa11
would be Part 1, 3, C, which read as follows:
'"C. Functionsand PowersunderTreaties,International Conventians,
Agreemerats and Othe7InstrumentsHaering a Pol.iticaECharacte7
TheGeneraE Assembly willitself 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 . .." (II, pp. 39 and
: 130.)'. . . ..
In other words, MrTePresident,for the purPoSe of an assumption, of a
supervisory function'regarding mandates, if the matter was to be,dealt
with in terms of this resolution there would have'to be, firstly, a request
from the parties to, or legally,interested in, the respective mandates and,
secondly, there would'have'to be a decision acceding to that request by
the General Assembly or the other United Nations organ considered to be
the appropriate one. That was the procedure env-saged' for.the assumption'1
of functions having a political character.
Mi. President, if one merely looks at the face of thik ~euolution~f thé
provisions generaliy regarding tliese functions under.instruments havin
a pol&icaI.character-it would then seem to .be a resolution which cou1 8
cover the'case of mandates if somebody wished to bring it. under that
resolution. However, it becomes clear from the history ofthis resolution
and coupIed with resolution XI that that ,wasnot the scheme intended
by the proposers of. the 'resolution. They dib not, in fact, foresee, or
contkmp1ate;that mandateswould'be dealt with under this resolution
at all..That emerges very clearly from the history, as 1 Say, from the
history of,this resolution read in conjunction wifh'that of resolution XI.
It will be recalled, Mr, President, that thiç reçolution was based on a
recommendation of the Preparatory. Commission,.and this Preparatory
Commission had in turn considered a prior report from its Executive
Committee-that we frnd in Counter-Mernorial, II, pages 36-38-and the
re1evant:portion of the Executive Committee's report stated, inter alia,
the folJowing :
, "Since the questions arising from the winding up of the Mandate
system are dealt with in Part III, Chapter IV, no recommendation
on this subjectis included here." (II,p. 36.) ,
So, MT.President, thepropoçalçwhichledup eventually to reçolution XIV
were not intended to include any recommendation on the subject of
mandates and the reason given was because thé matter in regard to
mandates .was dealt with in other parts :of.the proposals-those other
parts being part of the history which led up to resolution XI, the eventual
resolution calling on powers to submit to trusteeship agreements. The
reference to Part III, Chapter IV, may be çomewhat misleading, but if
one correlates it, it seems that the only portion to which it could refer
was that portion which dealt with the establishment of the trusteeship
system-the portion which contained the proposals regarding a tempo-
raq trusteeship committee, which 1havealreadyread-and thesuggested
function of that committee of advising the.Genera1 Açsembly on any382 SOUTH WEST AFRICA
matters that might arise with regard to the transfer to the United
Nations of any functions and responsibilities hitherto exercised under the
maAs we have shown, Mr. President, those proposals were rejected by
the Preparatory Commission without anything of a sirnilar nature being
substituted in their place.
In other words, therefore, also in regard to resolution XIV we find an
exclusion of an intent to deal with anything in the nature of a transfer
of functions in regard to mandates because it is intended to be dealt with
in the proposals leading to resolution XI. In the deveIopment of those
proposals leading to resolution XI we find the specificproposals in regard
to the temporary trusteeship cornmittee-those particular functions to
be assigned to it to cope with this problem of providing machinery for
a supervision of a mandate outside of trusteeship itself-providing fora
necessary transfer of functions in that regard. If those proposals are not
acceded to,they faii away; nothing is substituted in their place.
So, Mr. President. in those circumstances, we subrnit, it is very highly
significant that there was no express provision anywhere in regard to
future supervision of mandatory administration. Against the background
that 1 have put to the Court, the fact that there was no such provision has
not only a negative value but also hasa positive value, It has the positive
value, 1 submit, of showing by inference that that question was deliber-
ately avoided-that the decisionto have noagreement in that regard was
a deliberate decision.
The States which drafted and signed the Charter and which were the.
foundation members of the United Nations were aware, firstly, that time
would elapse before the coming into effect of the trusteeship system.
Secondly, they were aware of the fact that there was no certainty that al1
mandated territories would end up as trust territories. Yet, Mr.President,
no attempt was made to arrive at the general arrangement, either for
tories until they should become trust temtories, or for any supervision at
al1 in respect of mandated territories which might not become trust
territories. They knew there were these contingencies-that tirne would
elapse in regard to those that might become trusteeship territories. They
knew there were contingencies that some rnight not end up as trusteeship
territories at al1and yet they refrained from making any provision for
supervision to cover those instances-ither dunng the interim period or
at all, in respect of those that might not end up at al1as trust territories.
The United Nations made elaborate provision for the assumption of
certain Leape functions and powers and for transfer to it of League
assets know~ng,however, that its resolution XIV in this regard was not
designed for the transfer of supervisory functions in respect of mandates.
The specific proposa1 envisaging investigation and recornmendation
regarding possible transfer of functions under the mandates system was
rejected and nothing was substituted for it. There was no provision
whatsoever for machinery to exerûse any supervision over mandates as
mandates, in spite of the proposals that were made emphasizing the need
for having such machinery if there was a contemplation of such a provi-
sion.
hlr. President,in those circumstances my submission is that the infer-
ence is inescapable that these omissions were deliberate omissions. The
situation in toto amounts to a deliberate decision to take no decision in ARCUMEXT OF MR. DE VILLIERS
383
regard to mandates-a deliberate decision to make no provisionin regard
to mandates-and when 1 Say "no provision"-1 mean no provision,
expressed or implied.
sible to achieve a general arrangement applicable to al1mandated terri-
tories in viewofthe widely varying circumstances pertaining to them and
the different intentions of the mandat0 powers in respect to their fu-
ture. The result was that the matter ha 7 perforce to be left to a special
arrangement, if any, to be amved at in each particular case. There was
no provision and everybody knew that there was no provision of a gen-
eral nature dealing with al1mandates so as to bringthem under super-
visionoutside of trusteeship.
Mr. President, as 1 understand the Applicants' contention in this
regard, it seems to agree with ours to this extent, that the decision to
have no express provision was a deliberate one. We come into conflict
on the question of tacit consent. The Applicants contend that, despite
the circumstances 1have just dealt with, there existed a comrnon intent
among al1the members of the United Nations, that the United Nations
would be substituted for the League of Nations as supervisory organ in
respect of mandates.
Now, Mr. President, if that were so, the first question that arises is. if
there was that common intent and if there was al1this specific express
provision in regard to similarcommon intent relating to other matters,
why was nothing expressly said in regard to mandates? All this elaborate
machinery is created-aii these elaborate provisions are made-but there
is this common intent in regard to mandates that there isno express pro-
vision.We find in the verbatim record at page 213, sufira, the answer
suggested by the Applicants, namely :
"The United Nations membership risisted and avoided explicit
measures or steps, such as the establish'ment of a ternporary trus-
teeship cornmittee, for fear that any such measures or steps rnight
encourage delay in the completion of trusteeship agreements."
I refer, Mr. President, to the first part of that sentence-"TheUnited
Xations membership resisted andavoided explicit measures or steps".
That shows the agreement to which 1have just referred-the effect that
the decision to have no express provision wasa deliberate one. The reason
given is the fear thatany such measures or steps rnight encourage delay
in the completion of trusteeship agreements.
h'ow,Mr. President, in so far as this is advanced aspossible explana-
tion-even a probable explanation-of the fact that no express provision
was made, I have no quarrel with it at all-it is perfectly acceptable.
It confirms, as 1have said, that the decision to have no express provision
was a deliberate one.
But, Mr. President, in sfar asthjs cxplanation is offered asindicating,
or even being consistent with, an intention-a general tacit intention-
that there would nevertheless be such a provision-such a transfer of
powers-such supervision to be exercised over mandates not converted
into trusteeships-1 submit that a moment's reflection will show that
that argument is completeiy without foundation and that it really bor-
der~on the absurd.
lrhat does it amount to? We know that a tacit, oran implied, agree-
ment has exactly the same legal forceas an express agreement. It brings384 SOUTH l%%ST AFRICA
about the same consequence and it cornes into existence on the basis
much impressed with this common agreement that exists between every-d so
body in that regard, that they do not trouble to express it because it is
too clear. So both in legal effect, and in regard to thefact that everybody
is aware of it, an irnplied agreement stands, for present purposes, in
exactly the sarne position asan express agreement.
So, Mr. President, if the mandatories would be encouraged to delay
in submitting trusteeship agreements by the express transfer to the
United Nations of supervisory functions in respect of mandates, then
they would surely be equally encouraged by a tacit agreement, clearly
concluded and accepted by everybody concerned. The only difference
between those two agreements would lie in their rnanner of proof in the
event of a later disagreement about the matter-in the event of a later
conflict or dispute. The express agreement wouId be an easier one to
prove than the tacit, or implied, agreement.
Therefore, Mr. President, ifthe Applicants' argument were to have
any validity at ail, it would amo-unt to this, that those mernbers ofthe
United Nations which were not keen to encourage delay in the. sub-
mission of trusteeship agreements-which preferred to conclude an agree-
ment which isdifficulto prove rather than one which is easy to prove-
would do that as a measure in order to discourage delay in the concluding
of the trusteeship agreements.
But now, how would that suit their purpose, Mr. President? Appar-
ently, if I understand the Applicants correctly, or if it is to assist their
argument at all, if it should suit their (i.e., the United Nations Mem-
bers') purpose later that there was an agreement, then they would Say
there was an agreement. If it would suit their purpose to Saythere wa~
no agreement, then they would Say there was no agreement-in other
words, a suggestion of rank dishonesty of purpose. The suggestion is
apparently that if it became clear that a large number or all of the man-
datory powers concerned weretaking steps, or were intending to place the
territories under trusteeship, then the attitude taken in regard t8 the
mandatory powers would be: :'Yeu are not under supervision at the
moment. Therefore you ought to expedite the submission of trusteeship
agreements." This would appear to be the implication of the suggestion
made on behalf of the Applicants. On the other hand, in the case of a
mandatory power which might, in regard to a specific territory; decide
not to place it under trusteeship, then the powers that be wouid have
to be in the position of saying to that power: "No, there was a tacit
agreement. as weal1know. It was generally agreed that although we do
not make any express provision there would be a transfer of powers in
respect ofMandatories, and you would have to fa11under the supervision
of the United Nations even though you do not subrnit a trusteeship
agreement." Thesewould appear to be the implications of this suggestion
on behalfof the Applicants if it were to make any sense at ali.
mission, because how could this scheming take place without the manda--
tory powers knowing about it, and how could therebe this scheme which
was intended to be uçed against the mandatory powers and at the same
time, although the mandatory powers do not know about it, there is
general agreement,between al1concerned so clear as not to need expres-
sion at all, to the effect that there would be a transfer of supervisory ARGUMENT OF MR. DE VILLIERS 385
powers and an obligation of the mandatories concerned to submit to it?
Surely it does not make any sense. If there was in fact a tacit agreement,
then everybody concernedwould know that there was such a tacit agree-
ment, and then that in itself would discourage the mandatories to an
as would be the case with an express agreement. Whether the agreement just
was express or tacit, therefore, would make no difference whatsoever in
regard to this factor mentioned by the Applicants, namely the fear that
measures or steps mjght encourage delay in the completion of trusteeship
agreements. We cannot admit, with respect, that there would have been
anysuch intention of rank dishonesty on the part of United Nations
Members as seems to be implicit in this suggestion. We cannot accept, on
the other hand, that it would have assisted them at all.If there was a
tacit agreement, everyone must have known about it, and this could
have brought them nowhere.
The only suggestion, therefore, made bythe Applicants, Mr. President
-the only reason why they Saythat the omission to have provision was
deliberate only in respect of express provision, but that it nevertheless
provided scope for an implied agreement-the only reason advanced by
the Applicants iscompletely without foundation. 1submit the only con-
clusion that one can corne to is that the deiiberateness of the decision to
have no provision extended botli to express provision and to tacit or
implied provision.
That is indeed, Mr. President, the logical conclusion to bedrawn from
the very practical premise which the Applicants here suggest-the pre-
mise that there was a desire not to encourage delay in the submission of
trusteeship agreements. Accepting that there was such a desire, the logi-
cal conclusion would be that the Members of the United Nations were
induced to conclude no agreement at all regarding transfer of powers in
regard to mandates, or exercise of supervision on mandates outside of
tmsteeship. That would be the logical conclusion of a decision not to
encourage delay in the submission of trusteeship agreements. It would
then enable the United Nations Members to say that the supervisory
functions of the League had fallen away and they would then have an
added argument for urging the speedy subrnission on the part of every-
body concerned of trusteeship agreements.
That, Mr. President, was the view adopted in the 1962joint opinion
by the honourable President and Sir Gerald Fitzmaunce. 1 would iike
to quote from page 539 of the report, leadirig on to page540, a passage
with which 1 very respectfully wish to associate myself and the conten-
tions on behalf of the Respondent :
"Our concem here is simply to show that the twoAssernblies -.*
[the General Assembly of the United Nations and the League
Assembly at its final session]were (except for Article 73 of the
Charter) unwilling to provide in any specific way for the conse-
quences of the termination of the League and its membership, or
for a possible eventual failure to bring a rnandated territory into
trusteeship. In this lies the key to the tvhole matter.
It is the key to the whole matter because it is strikingly evident
that the two Assemblies (and the Applicant States were Members
of both) reiied, and@refewedtovely, on the hope or expectation that
the mandated territories would eventually be brought into tnist-
eeship. Whether this was a reasonable assumption in the case of SOUTH WEST AFRICA
South West Africa, considering the declarations that were made on
behalf of the Union Government, is another matter. The fact
remains that it was relied upon, in the full knowledge of facts from
which it was manifest that the expectation might not be realized,
and of the fact that the Mandatory was under no legal obligation
in the matter.
It seems to us fair1 clear as a rnatter of reasonable inference that
an important part OY the reason for this attitude was the desire to
avoid even the suggestion that any mandated territory might not
be brought into trusteeship; or, by providing for the situation that
might arise if that was not done (and if the League had in the mean-
time been dissolved) to appear to be countenancing sucha situation
by providing for it. or to be giving grounds on the basis of which
any Mandatory could contend that, express provision having been
made for continuing the Mandates as Mandates, no further action
was required.
ven the view that they took of the whole matter, those
concerned t ought it unnecessary to pravide for this situation and
better policy not to. This course having been chosen, and the possi-
ble consequences it entaiIed accepted, there is no legal principle
wbich would enable a Court of law to put the clock back and,by
judicial action, make provision for a case which those concerned
and sufficient at the time."or reasons which appeared to them good
That, with respect,MT. President, we submlr LUDe tïieonly logical
inference one can draw from the events which 1 have tried to depict to
the Court this morning-the events relative to the iormation of the
United Nations and these initial decisions taken in regard to the assump-
tion of functions in various respects, and the creation of the trusteeship
system.
1 must still make brief reference; that is, in the verbatim record atich
pages 152-153,swpr~.1 read from it a staternent of my learned friend,
Mr. Moore:
"1 emphasize, Mr. President, that no argument was presenxea by
any delegate to the Preparatory Commission that the proposa1 for
a temporary trusteeship cornmittee was not acceptable on the
gounds that the United Nations had no supervisory authority over
Preparatory Commission that the United Nations did have such bythe
supervisoq authority, but that the most expedient method, not the
only method, for giving effect to such authority was the rapid con-
clusion of trusteeship agreements and the formation of the Trustee-
ship Council."
Mr. President, my Ieamed friend did not indicate in any way the
source from which he seeks to derive this interpretation of the view of
indications are that they considered that therwasOnno provision in law
for any such supervisory powers on the part of United Nations organs-
no provision for any macliinery in that regard-and that if therewas a
desireto exercise such supervision, special provihadnto be madefor it.
That indication is apparent from a number of circumstances, including ARGUMENT OF MX. DE VILLIERS
387
the very wording of these proposais that were made in regard to a pos-
sible temporary trusteeship cornmittee. The words which 1have empha-
sized, the words "with regard to the transfer to the United Nations of any
functions and responsibilities hitherto exercised under the Mandates
System" (Counter-Mernorial, II, p. 40) emphasized, Mr. President , the
apparent acknowledgment of a need to have such trançfer if it were
wished to exercise such functions on the United Nations side. Again, in
the provisional agenda item appears the wording "Problems arising from
the Tralasfer of Functions in respect of Existing Mandates from the
League of Nations to the United NationsJ' (ibid.)Those words in them-
selves emphasize the contemplation of a need to make çpecial arrange-
ment in that regard. The contemplation in that regard isfurther empha-
sized exactly by the fact that al1 these other elaborate resolutions and
provisions were arrived at in order to make provision for transfer of
of functions in other respects, non-politicai, and some poiitical respects,
the word "transfer" later being altered to one of assumption of the func-
tions and powers concerned.
The mere fact that there was al1this concern and special trouble taken
to corne to these specific arrangements in regard to al1 these matters,
emphasizes what is, in any event, inherent as a probability in the old
situation, namely that everybody concerned knew there was no express
provision for any supervision of mandates in the Charter, and if there
was any intent to have supervision of that nature, then special provision
would have to be made for it.
1 have not found any argument submitted by the Applicants which
points to any evidential factor on the recordtending to showthe opposite.
1 conclude this survey, therefore, Mr. President, with the submission
that there was very definitely no provision, either express or implied,
for a transfer of supervisory functions in regard to mandates, or for the
exercise of any supervision over mandates, as mandates, outside qf
trusteeship. I submit that this result was arrived at by deliberate deci-
sian, and that everybody concerned ktzew that that was the position.
That is a very important factor to be borne in mind as a background to
the next phase of the history relating to the final session of the League
Assembly, and the dissolution of the League.
Before 1 corne tothat, Mr. President, there is one more aspect relating
to the foundation of the United Nations and the possible bearing of the
Charter and arrangements in regard to the United Nations on the ques-
tion now before the Court. That is the question of the interpretation now
put on Article 80, paragraph I, by rny learned friends-the interpreta-
tion put on it, or the significance attached to it.
1 need not read the text of the Article to the Court again, the Court
will recall that 1 have read it before, and will know the terms of it very
well.
The Court will recall that, after apologizing "for the incompleteness
of presentation of this question duringthe preliminary objections phase
of these cases" (p.223, sztva) my learned friend expressed his agreement
with a proposition, statei?by the honourable President of the Court and
Sir Gerald Fitzmaurice, in their joint dissenting opinion in 1962,in the
followingwords :
"Thesole purpose of tlie Article was to prevent any provision of388 SOUTH WEST AFRICA
Chapter XII of the Charter being construed so asto alter existing
rightsprior to a certain event." (I.J. Reports1962, p. 516,f. n. 1.)
(Ibid.)
My learned friend indicated that they associate thernselves with that
interpretation, butthey stU contend, Mr. President, that the Article
may be invoked to show the understanding of the authors of the Charter
-the pre-supposition in regard to continued existence of rights under
the mandates, even after the dissolution of the League.
In order to evaluate this argument properly, Mr. President, one must
have some regard to the chronology of events during this relevant period.
As we have pointed out, the Charter was drafted and signed during the
San Francisco Conference,between 25 April1945 and z6 June 1945-in
other words, some IO to12 months prior to the dissolution of the League.
We give that in the Counter-Mernorial, II, at page 32.
The Charter came into force on 24 October 1945 ,s we stated in the
Counter-Mernorial, II, pages 32-33-in other words, some six monthç
prior to the dissolution of the League,
It is, therefore,r. President, quite understandable that, at the signing
of the Charter and itç coming into force, the authors of the Charter would
have contemplated the existence of rights and obligations under the
Mandate. The League was still in existence. It had not become diçsolved,
the dissolution of the League, rights or obligations under the Mandate
came to be altered. There is nothing inconsistent with Ourcontention in
a contemplation on the part of the authors of the Charter, at the time
when the United Nations was formed, and at the time when the Charter
came into effect, that there were unaltered rights and obligations under
mandates-unaltered, that is, by any of the provisions of Chapter XII
of the Charter, because that was what Article 80 (1) was dealing with.
We must emphasize, Rir. President, that Article 80 (1) could clearly
do no more than indicate which rjghts were, in the views of its authors,
in existence as at the stage of its drafting and possibly the stage of its
coming into effect. Nevertheless, we find that my learned friend for the
Applicants said :
"... the inclusion of Article 80, paragraph I, in the Charter serves
to confirm the understanding of the authors of the Charter that
certain rights, including those under mandates, did continue to
exist, notwithstanding the dissolutionof the League". (P.223,supra.)
Later, Mr. President, inthe same record we hd the following:
"... the authors of the Charter assumed that mandate rights, both
of States and of peoples, continued, notwithstanding the dissolution
of the League, and that the authors of the Charter, in Article 80,
paragraph 1,sought to make clear that Chapter XII was not to be
construed in a manner which would alter, in any way whatsoever,
such rights which continue to exist by force of other instruments
or undertakings". (P. 226, supra.)
Now, Mr. President, taking these submissions, or contentions, as they
stand literally, the only way in which they would appear to make sense,
with respect, would be to assume that there must be some misapprehen-
sion on thepart of my leamed friend as to the proper sequence of events.
because othenvise they do not seem to makeçense. ARGUMENT OF MR. DE VILLIERS 389
It is not clear how there could have been a contemplation, at the time
xvhenthe Charter came into existence or when it was being forged, of
any pre-supposition regarding the position after the dissolution of the
League. That, surely, is not çomething which could be derived from
Article 80 (1) itself, particularly not in the light of the Applicants'
admission that it is to be construed as any clause of that nature. It is a
mere aid to interpretation and merely makes it clcar that certain provi-
sions of the particular instrument are not to be construed asaltering an
existing position. That existing position was as at that date, and the
wording of the Article certainly, and nothing which hasbeen advanced in
regard to its background or surrounding circumstances, would suggest
any contemplation that this Article of the Charter, or anything in the
contemplation of its authors, would have any eflect on what would
become of mandates as from the dissolution of the League-an event
which was not yet there, and was yet to corne.
The only way in which one could make sense, with respect, of this
submission, would be to suppose that it is intended to mean something
more than it literally says. In other wordç, that it is intended to mean
that Article 80 (1)in someway shows a contemplation on the part of the
authors of the Charter, that rights under mandates would,in fact, remain
unchanged until trusteeship agreements were entered into-that they
contemplated that ai the time of providing for Article80(1)-in other
words, a sort of tacit agreement amongst themselves on that point.
Now, Mr. President, in the first place, it seems most inherently un-
likely that the authors of the Charter would have intended to make a
relationships of certain States with another organization-annceorganiza-
tion of which al1the authors of the Charter were not rnembers, and also
an organization which included members which were not Membersof the
United Nations or included amongçt the authors of the Charter.
It would have been a most unusual provision, quite apart from an
uniikely one, and if, Mr. President, it was the intention to have such an
unusual provision, then one would surely have expected it to have been
set forth with cxplicit clarity, in order to have no mistake about it in the
future. But, Mr. President, apart from the fact that it would be a most
unusual provision, that argument would completely ignore the wording
and the purpose of Article 80 itself. The Article dealt only with nghts
existing at a particular time, that is, at the time of the drafting or the
coming into force of the Charter. Consequently, the Article itself shows
no contemplation other than that certain rights were in existence as at
that stage.
As to the future of these rights, the Article was only concerned with
making it clear that the provisions of Chapter XII would not affect
them unless and untiI trusteeship agreements, in tems of the said
Chapter, were concluded. That was the only indication which the Article
gave of being concerned with the futlareof those rights and obligations
at all.
That, clearly, does not show a contemplation that nothing would
affect those rights until trusteeship agreements were concluded. Purely
as a matter of language, Mr. President, and as a matter of logic, no
contemplation to this effectcan be derived from the Article, nor from the
circurnstances surrounding its creation. 1 would like in that regard to
refer the Court to a passage in the joint dissenting opinion, to which 1 ARGUMENT OF MR. DE VILLIERS 391
recall. There is a quotation, on page224 of the record, from a statement
by Respondent's delegate to the United Nations General Assembly
that-
". .. arrangements are now in train for .. .consultations to take
place and, until they have been concluded, the South African
Government must reserve its position conceming the future of the
mandate, together with its ri ht offull liberty of action, as provided
for in paragraph I of Article5O of the Charter".
That, again, Mr.President, is a reference to a statement which was made
before the dissolution of the League. The statement was. in fact, made
in January 1946-we find the reference to that in the Counter-MemoriaI,
II, at page 41-in other words, still some months prior to the dissolution
of the League. At that stage the only question was whether the Charter
had in any way affected rights under the Mandate. The effect of the
dissolution of the League, which was at that stage still in the future,
although contemplatcd, was, for that reason, not an actual issue. The
League Members still had to decide for themselves in what exact manner
they were going to deal with the mandates.
No doubt, Mr. President, ifthe matter had arisen, the opinion might
well have been expresscd that the effect on the mandates of the projected
dissolution of the League would depend on the arrangements to be made,
or to be omitted to be made, during the final session of the League.
In anyevent, Mr.President, ifone looksat the provisions of Article 80,
paragraph I,rnerely the negative effect that certain provisions of the
most to a contemplation that certain rights would, but for normal leads at
terminations, stay in existence. Howcouid an article ofthat kind possibly
cope with a problem of a substitution of supervisory organs in respect of
an obligation such asthat incurred by the mandatory under Article 6.
On my learned friend's contention, aswell as on our contention, a new
agreement was necessary-a new consent was necessary-with a view to
affecting such a substitution in order to keep such an obligation either
alive or operative, asthe case might be. SureIynothing in Article 80, and
nothing indicated as a possible contemplation of its authors, could by
any stretch of the imagination be said to have been intended to cope with
a problem of that kind.
Our submission is, therefore, in condusion, that no agreement, express
or implied, was embodied in the Charter, or otherwise concluded by the
founders or hlembers of the United Nations, at any stage prior to Apnl
1946,whereby the United Nations assumed the supervisory functions of
the League in respect of mandates, or whereby any mandatory was
rendered obliged to report and account, outside of trusteeship.
We can proceed now to a consideration of the later events which
succeeded these.
[Public heurittoo f April19651
Mr. President, and honourable Members, at the adjournment on
Friday 1had just conduded a review of events dunng the establishment
of the United Nations Organization and during the first fewmonths of its
existence, up to and including the time immediately prior to the last
session of the League Assembly in April1946, The purposeof the enquiry3g2 SOUTH WEST AFRICA
was to ascertain whether there was any general agreement between
interested parties, including the mandatories in generaland the Respon-
supervisory powers over mandatory administration outside of trustee-cise
ship. We concluded the review, Mr.President, with the submission that-
"... no agreement, express or implied, was embodied in thecharter,
or othenvise concluded by the founders or Members of the United
Nations, at any stage prior to April 1946. whereby the United
Nations assumed the supe~sory functions of the League in respect
of mandates, or whereby any mandatory was rendered obliged
to report andaccount, outside of trusteeship". (P. 391supra.)
Earlier, wehad contended thatthat result was arrived at, not by accident,
but by design. By deliberate design the Mernbers of the United Nations
preferred not to make any provision for supervision of rnandatory
administration outside of trusteeship. and we indicated the reasons why
we made that submission to the Court on the basis of a review of the
relevant facts.
We now come to the next phase of the factsin the historical develop-
ment, namely those pertaining to the final session of the Assembly of the
League of Nations in April1946, and the purpose of the enquiry is the
sarneasbefore.
Previously, Mr. President, the Applicants gave very little attention
to this last session of the League Assembly. In the pleadings that have
been filed, and in their oral argument in regard to the Preliminary
Objections in 1962,they hardly deait with these events at al1and they,
in fact, relied on arguments which reduced the significance of events at
this particular session-arguments which were aimed at avoiding the
sigNow, the Applicants do make a serious attemptto meet our arguments
based on the events at the last sessionof the League, and they do attempt
to derive from those events support for their contention of consent, on
the Respondent 's part, to accept a substitution of supervisory organs-
consent which they now acknowledge to be a necessary element forthe
purposes of their test. The Applicants now contend, Mr. President, that
al1the parties concerned rnanifested an intent to substitute the United
Nations for the League as the supervisoryorgan in respect of mandates.
Respondent's contention is, as it has always been, that the very oppoçite
is the case,viz.that the States that attended the session showed a clear
contemplation that no such substitution would take place.
We submit that it is not only acase of the Applicants being unable to
justify anecessary inference of tacit agreement, as they are required to
do in order to establish their contentionWe submit that the facts show
the opposite. They show an absence of such an agreement, and they show
an overwhelming understanding that prior to new arrangements, which
might be agreed upon between the mandatones and the United Nations,
there would be no accountability under the mandates to the United
Nations, and alço that there would, in fact, be no accounting under the
mandate by any mandatory. That is what the facts in our submission
show.
Now, hlr. President, it must be recaIled at the outset (as 1pointed out
on Friday) that at the time when this finalmeeting ofthe Assembly ofthe
League took place. the United Nations had already been in operation for ARGUMENT OF MR. DE VILLIERS 393
some months. Mthough the membership of the two organizations differed
in substantial respects, the sarne States formed the majority in both
organizations-both in the United Nations and in the League of Nations.
It must further be borne in mind, Mr. President, that for resolutions
of the League Assembly unanimity was required. These factors, taken
together, form a very important background to the deliberations at the
final session of the League Assembly.
We indicated, in our review of events at the formation of the United
Nations and during the first months of its existence, that the Members
of this new Organization deliberately abstained from making any provi-
sion for a transfer to the United Nations of supervisory functions in
respect of mandates, and we submit, as 1have said, that that result was
arrived at deliberately.
In the circumstances, MT. President, one could hardly expect that a
few months later an Organization consisting, as far asthe majority was
concemed, of the same States, would, without more ado and without
very special reason, have corne to a diametrically opposite conclusion as
to the ensuing position, they wanted, afterthe dissolution of the League.
It was not impossible, of course, that there couId have been a complete
such a remarkable turnabout in intention, one would but if atelestd have
expected that there wouId have been a special reason for it-a specia1
reason leading to specificdiscussion ofthe subject, and leading eventually
to an explicit and unrnistakable resolution on that subject, so that
everybody could know where they stood.
But, in fact, Mr. President, in Our submission, an examination of the
events will show that the Le- Assembiy, just as the founders of the
United Nations, deliberately abstained from making any provision
whatsoever for a transferof supervisory fimctions. They knew very well
that that was the result at which they had arrived deliberately, and we
submit that the picture in that regard is, in the case of these final events
at the last sessionof the League Assembly, if anything, even more clear
than in the case of the United Nations during the first few monthç of its
existence.
At this final session of the League Assembly, the first occasion on
whjch the question of the future of mandates was raised, was the plenary
meeting on the morning of g April, and the delegate whoraised it was the
representative of the United Kingdom. We give a relevant extract from
his statement in the Counter-Memorial, II, at page 46.
Mr. President, itwill be recdled that, at that time, Transjordan had
already become independent, and the gist of thestatement, as wegave it,
at the page which 1 have rnentioned, was to the effect that, pending
fresh arrangements about Palestine, the position of which was still
uncertain, and pending satisfactory terms of trusteeship for the other
territories under British mandate at the fime, "it js the intention of
His hfajesty's Government in the United Kingdom to continue to
adrninister these territoriein accordance with the general principles of
the existing mandates".
1wish to invite attention at once to the words "it is the intention".
1 submit, Mr. President, that they do not bear out the suggestion that
there was any contemplation of a binding obligation in law. 1 am merely
pointing that out in passing, because it wasan element which was neces-
sary for the purposes of the Applicants' argument to show that what394 SOUTH WEST AFRICA
was said by mandatories there, in the particuiar context, was intended
to be an expression of a legal undertaking-a legal commitment-on
the part of mandatories to the other members of the League. 1 submit
that the wording in itself certainly does not bear out that construction.
However, hfr. President, the major dispute between the Parties hinges
on the interpretation ofthe words "the general principles of the existing
mandates", the intention being expressed to continue during this interim
period to administer these territaries in accordance with thuse general
principles. This phrase was not explained or defined on that particular
must have. included the obligation of accountability, and they suggestds
that since the United Nations was then the only body capable of exer-
cising international supervision, this statement, like the statements of
the other mandatories, muçt be taken to involve a promise or consent to
submit reports to the United Nations. That they make these contentions
with reference to aiithe mandatories, and not only with reference to the
Respondent, is abundantly clear from the way in which their submissions
are phrased in this regard.
1wish to refer the Court first to the verbatim record at pa149 ,upra.
This is a contention by my learned friend, Bir.Moore,folIowingimmedi-
ately upon extensive quotations from the declarations made by aU the
mandatories on that occasion. The contention reads as follows:
"The declarations by each of the mandatory powers make it
that al1of the obligations of the mandate agreements remained inas
force pending the conclusion of trusteeship agreements."
Later on the same page of that record, in relating this general sub-
mission specifically to the case of the Respondent, my learned friend
made it c1earthat when he spoke of al1the obligations of the mandate
agreements in this regard he included the obligations under Articles G
and 7 thereof. This point is also made explicitly clear by my learned
friend Mr. Grass in the verbatim record at page 212, supra:
"The Mandatories, including Respondent, accepted the continu-
ance of the existing regimes, including the substitution of the United
Nations for the League as the supervisory organ, for what everyone
concerned hoped would be a short, transitional period."
So that would inchde, MT. President, the representative of the United
Kingdom.
blr. President, if that had been the intention of the representative of
the United Kingdom, the question immediately arises, why did he not
Say so? M%ydid he use these vague, general words, viz. "in accordance
with the general principles of the existing mandates"? And why did he
relate them only to the question of the administration of the territories
and not to anything falling outside the concept of administration, such
asthe conce t of accountability or the rendering of reports?
Mr. Presi ent, in fact, in my submission, those words in no way sup-
port the Applicants' contention. If the intention was to comply in full
with al1the obligations prescribed in the various British mandates, in-
cludingan obligation of accountability, then surely, Mr. President, the
words "in accordance with the general principles of the ... mandates"
would have been inappropriate. They would not have been used. At ARGUMENT OF MR. DE VILLIERS 395
least, Mr. President, if there had been any contemplation in regard ta
reporting and accounting,one would have expected the speaker to advert
to the problem which would arise by reason of the fact that the only
supervisory body mentioned in the mandate instrument, namely the
Council of the League, would cease to be in existence. He would at least
have adverted to that problem, and he would have indicated in what
rnanner there could still be cornpliance with that obligation of account-
ability, as defined with reference to that particular supervisory organ.
But we find nothing of the kind, Mr. President. We findthat the word-
ing was confined to the question of administering these territories, and
the basis upon which that was to occur, was said to be "in accordance
with the general principles of the existing mandates". The wording of
that statement itself, Mr. President, is therefore, in my submission, de-
structive of the Applicants' contention.
But the matter goes very much further than the wording alone. There
the actual intent of the British deIegate in using those words. Inthe very
next year the United Nations appointed the United Nations SpeciaI
Committee on Palestine and they, in their report, said, with reference to
this particular passage, how it was in their view to be understood. One
finds the passage in the report, in the Counter-MemorialII,at page 137.
It reads:
"Following the SecondWorld War, the establishment of the Uni-
ted Nations in 1945 and the dissolution of the League of Nations
the followingyear opened a new phase in the history of the manda-
tory regime [this is now with reference to Palestine]. Themandatory
Power, in the absence of the League and its Permanent Mandates
Commission, had no internationalauthorityto which itmight submit
reportsad geaerally accountfor the exercise of its reçponsibilities
in accordance with the terms of the Mandate. Having this in mind,
at the final session of the League Assembly, the United Kingdom
representalive declared that PaIestine would be administered 'in
accordance with the general $rinciples' of the existing Mandate
until 'fresh arrangements had been reached'." (Italics added.) a
Mr. President, this waç a report by an II-nation committee. It waç
not a report by the United Kingdom itself, but in the first place it seerns
most unlikely that the committee would have given this interpretation
of the words used bythe British delegate, unless they had obtained that
explanation at the very source of the statement, i.e., from the delegate
himself, or from the British authorities. That seems inherently unlikely.
Apart from that, Mr. President, even if we should assume that they did
not get the information directly from British sources, one must bear
in mind that there was in fact never any repudiation by the British
authorities of this explanation given by the committee.
On the contrary, the conduct of the British authorities in this regard
was entirely consistent with this explanation given by the committee,
because one finds that, infact, the United Kingdom withdrew from the
administration of Palestine as latas 15May 1948.That was nearly three
years after the Charter came into force and more than two years after
the dissolution of the League, and during the whole of that period no
report under the mandate was in fact made to the United Nations by
the United Kingdom. In other words, this conduct entirely confirms the3g6 SOUTH WEST AFRICA
interpretation put upon that initial statement at the final session of the
League Assembljr by this Comrnittee, the interpretation to the effect
that there was an intimation that in the interim period there wouId be
no reporting and accounting under the mandate.
At the very least, Mr. President, this interpretation put upon the
pretation of that statement in its coritext and historical setting. And it
shows more than that. It showsthe way in which other interested States
actually understood the statement made on behaif of the mandatory
power, in this case the United Kingdom.
The States which were members of this Committee are mentioned in
the Counter-Mernorial, II, at page 141 They were Australia, Canada,
India, the Netherlands, Uruguay, Czechoslovakia,Guatemala, Iran, Peru,
Sweden and Yugoslavia. We have checked, Mr. President, and we find
that nine of these States were Members of the League at the time of its
dissolution. They were therefore represented on the occasion when the
statement was made, and this is the clearest evidence one can get of the
manner in which the expressions of intent on the part of the mandatory
powers were in fact understood by the other States present.
(Mr.President, I could give the Court a reference indicating where we
got that figureof nine in regard to membership. We have not got it hem,
unfortunately, but 1 will give it to the Court on a later occasion.)
1submit, therefore, Mr. President, that this British staternent alone,
taken on the basis of what it meant in its setting-in its context-and
having regard to these further events which throw a iight on what was
intended to be conveyed by that statement,and on how that statement
was understood-then that statement is in itself totally destructive of
the Applicants' contention. How can the Applicants under these circurn-
stances Say that the agreement-the general consensus for which they
contend-is consistent withaU the proved facts andinconsistent with
any other reasonable inference from the facts?
was the South African representative. That was later on the morning ofs
9 April 1946.
1refer to the uotation of his statemenat pages 46-47ofthe Counter-
MernorialII, an2 1submit, Mr. President, that from this statement itself
clearly emerges exactly the same contemplation aswe found in the case
of the statement of the United Kingdom. The staternent began by re-
ferring to the intimations that had already been given, viz., that, on a
future occasion, there would be a presentation of a case on behalf of
South Africa to the effect that the Mandate forSouth West Africa was
tobe terminated and that the Territory was to be incorporated within
the Union. The statement intimated that the intention of the Union
Government was to raise this case at the forthcoming session of the
United Nations General Assembly in New York.
Then the staternent proceeded to deal with what would happen inthe
meantime, and 1 proceed to read from that point:
"In the meantime the Union will continue to administer the terri-
tory scrupulouslyin accordance with the obligations of the mandate,
for the advancement and promotion of the interests of the inhabi-
tants, as she has done during the pst six years when meetings of
the Mandates Commissioncould not be held." (IIp,. 47.) ARGUMENT OF MR. DE VILLIERS
397
There we find, Mr. President, the statement of intent on the part of the
Union Government. This is its main statement of intent. The further
portion of the statement goes on to explain in more detail.what is meant
by this statement of intent, The statement of intent will be seen to be
concerned again with the question of administration of the Territory, i.e.,
it willbe"scnipulously inaccordance wlth the obligations of the Mandate,
clearly confined tothat alone. To make it doubly clear that this was not
intended to refer to anything beyond that concept-to anything of the
nature of reporting or accountability-the statement proceedç to add
"asshehas done during the past six years when meetings of the Mandates
Commission could not be held". Nothing could be clearer than that, Air.
President.
The rest of the statement, as 1 have said, is clearly explanatory and
has to be read in that context. It reads as follows:
"The disappearance of those organs of the League concerned
mission and the League Council, will necessarily preclude complete
cornpliance with the letter of the mandate." (II, p. 47.)
It is again, in the context of what has just gone before, a reference to
an intent to continue to administer the Territory as had been done dur-
ing the previous years when meetings of the Permanent Mandates Corn-
mission could not be held. This clearly indicates a contemplation that
there would be no accounting or reporting under the Mandate in this
inThe çtatement proceeds:he statement of intent relates.
"The Union Government will nevertheless regard the dissolution of
the League as in no way diminishing its obligations under the man-
date, which it will continue to discharge with the fuli and proper
appreciation of its responsibilities untilch time asother arrange-
ments are agreed upon concerning the future status of the territory."
(Ibid.)
The Applicants in this regard, Mr. President, place reliance on the
words "the Union Government will nevertheless regard the dissolution
of the League as in no way diminishing its obligations under the man-
date. .." hlr. President, they contend that this expression is to be taken
not only as relating to obligations regarding administration of the Terri-
tory for the benefit of the inhabitants, but also, Mr. President, as relating
to obligations to account and report. Rut surely the first part of the
statement, where the ambit of thestatement of intent has been indicated
so cIearly, rules out any construction of that kind. It is quite clear that
where the statement speaks of the obligations of the Mandate, it rneans
obligations relating to the advancement and promotion of the interests
of the inhabitants-relating, in other words, euc1usively to the concept
of administration of the Territory.
question of context outyofoconsideration for the moment. Let us assumee
that the South African delegate made a bare staternent to the last
session of the League Assembly to this effect, that, after dissolution of
the League and prior to entering into new arrangements with the United
Sations the Union Government would continue to honour its obligations
under the Mandate-would regard those obligations as still being in full3g8 ' SOUTH WEST AFRICA
force and effect. Surely a statement of that kind, in the circumstances in
which it was made, would have imported an enormous ambiguity on this
very question of reporting and accountability. The statement was made
in circurnstances where everybody knew that the dissolution of the
League was imminent and that the disappearance of those organs of the
League, which were charged in the mandate instruments and in the
Covenant of the League with the supervision of mandatory administra-
tion, was also imminent.
Now clearly, as I have said before, a problem in that regard arose of
which everybody is aware-a problem to the effect that if there was now
to be further reporting and accountability under the Mandate, to whom
was that reporting to be made? Was it to be made to any organ of the
United Nations Organization, when everybody also knew that there was
no express provision anywhere in the Charter of the United Nations, or
United Nations to make provision andto create machinery for that typen of the
ofsupervision on the part ofthe United Nations? Surely it was a question
that did not resolve itself. If there was to be anyntent that there wasto
be continuation of an obligation to report and account, then it could
only have happened in the event of a reference to the question of substi-
tution of a supervisory organ and, therefore, in the absence of any
reference to that particular point-any general staternent to the effect
that obligations under the Mandate would still be honoured mut-in
itself, be an ambiguous one.
Mr. President, if one takes into account the context of this whole
statement. any ambiguity that rnight reçult from the use of that phrase
itself, divorced frorn its context, is immediately resolved. As I have said,
the statement commences by indicating the ambit of the intent in this
regard, and the ambit corresponds exactly with that which had been
indicated on behalf of the United Kingdom, that is, the statement of
intent related purelÿ to the question of adrninistering the Territory in
accordance with the obligations of the Mandate. And that it was in that
context, and in that context alone, thatthe South African delegatemade
clear that his Government would not regard the obligations of the Man-
date as having been diminished. It could hardly be clearer, hlr. President,
following as it does immediately on the statement that disappearance of
the particular organs of the League would preclude complete cornpliance
with the letter of the Mandate.
If one goes back further and sees the pointed reference to "as shehas
done during the past six years when meetings of the Mandates Cornmis-
sion could not be held' ',any doubt that there could otherwise have been
on the point must sureIy disappear.
Further support -for this contention is derived frorn circumstances
outside the statement itself-from extrinsic factors. Firstly, there is the
factor of probabilities in the light of the surrounding circumstances and
the surrounding events. Further, Mr. President, support is derived from
the subsequent conduct of the parties themselves.
On the first point-the question of probabilities. Why should South
Africa have wished to renew voluntarily an obligation of accountability
which was about to lapse or which, at the very least, on the bais of the
Applicants' contention, wasto become dormant by reason of the falling
away of the supervisory organ,despite the view which the South African
representatives had indicated so clearly before "that the Mandate should ARCUMEXT OF MR. DE VILLIERS
399
be terminated and that the Territory should be incorporated as part of
the Union of South Africa". (II, p. 34.) This aspoint with which 1have
dealt before.
Further, Mr. President, there is the statement which had been made
previously by the South African representative-
"... that South Africa may not afterwards be held to have acqui-
esced in the continuance of the Mandate or of tlie inclusion of the
territory in any form of tmsteeship under the new International
Organization".
Conference and that the subsequent explanation of that statement madeo
clear beforehand that the real wish of the South Afncan Government
-the real intent-was that this Territoryought notto be included under
the trusteeship system at al], and that it was destined to become in-
corporated within the Union of South Africa itself. These previous
statements had been designed to make it clear that the Union was not
to be regarded as having committed itself in any way to supervisory
powers on the part of the United Nations in regard to this Territory.
Surely, then, it becomes most highly improbable that the South African
delegation, on this particular occasion, would have indicated an intent
to regard itself asbound to report and account under the Mandate to
this new organization-the United Nations.
What is equally important, Mr. President, if not more so, is this. Wy
should the South African delegation alone, of al1the mandatory powers,
have manifested an intention of that kind? 1 have inàicated a clear
intent to the contrary on the part of the British delegation, and 1 shall
proceed to indicate a clear intent to the contrary on thepart of the New
Zealand, the French and the Australian delegations, the Belgian delega-
tion's statement being neutral on this particular point. The question then
arises, why should the South African delegation, when it did not intend
to put the Territory under United Nations trusteeship, and when it had
made clear that intention, alone have decided to put the Territory under
interim supervision until-new arrangements had been entered into?
Furthemore, Mr. President, the subsequent conduct of the South
African Government itself, and the subsequent conduct of other States
who were present on this occasion, again show, firstly, that nothing of
that kind was intended and, secondly, that there was no understanding
on the part of the other delegates concerned of such an intention on the
part of theSouth African delegation. That is made perfectly clear by the
subsequent history. 1 am not going to deal with it now-I shall come to
it at the appropriate stage.
We come next, Mr. President, to the statements by the representatives
of France, New Zealand and Belgiurn. They are aU quoted at pages 47-48
of the Counter-Mernorial (II). They al1followed much the same pattern.
Al1of them, it will be observed, were confinedtaexpressionsof intention.
Secandly, Mr. President, not one of these statements indicated any
intention whatsoever of reporting and accounting underthe Mandate,or
substituted forthe Councilofthe League for that purpose. The statements
of France and Belgiurn were completely silent on those points-n the
question of reporting and accounting, orof regarding the United Nations
General Assembly as substituted as the supervisory organ. That again is@O SOUTH WEST AFBICA
in itself remarkable, for the çame reason as 1 streççed before in the case
of the statements of the United Kingdom and South Africa. Everybody
knew of the problem which would result from the disappearance of the
supervisory organs of the League; everybody knew that if there was to
be further reporting and accounting, sorne special arrangement would
have to be made in view of the existence of that problem. 50 these
statements being silent on that particular point is in itself significant,
especially as that is a feature which runs right through every one of the
statements of the Mandatories. May 1 just say in that regard, that if
there had been, on the part of these hlandatories, which had obviously
discussed the rnatter with one another, as appeared subsequently from
the debate, and which had conferred with one another as to these
expressions of intent of which they were to inform this meeting of the
League Assembly-if there had been any intention on their part to
regard the United Nations as having been substituted for the Eeague of
Kations as a supervisory authority, then one would surely have expected
at least one of them to have said so in one of their statements, but not a
single one of them did so. Every one of their statements isconfined to
the question of what they would do with relation to administration of
the territories in the interests of the inhabitants.
And then we find, Mr. President, that the statement of New Zealand
in fact goes further. It intimates positively, and 1 submit in an implicit
sense, that there would be no reporting and accounting as far as New
Zealand was concerned in this interim period. The relevant statement
reads as follows:
"New Zealand does not consider that the dissolution of the
League of Nations and,as a consequence, ofthe Permanent Mandates
CommissionwiIl have the effect of diminishing her obligations to the
inhabitants of Western Samoa, or of increasing her rightç in the
Territory. Until the conclusion of our Trusteeship Agreement for
Western Samoa, therefore, the territory will continue to be adrninis-
tered by New Zealand, in accordance with the tems of the Mandate,
for the promotion of the well-being and advancement of the in-
habitants." ,
Again, there isa clear intimation that the dissolution of the League and,
as a consequence, the disappearance of the Permanent Mandates Com-
mission, will have some effect; implicitIy that iç so-it will have some
effect, but one effect, New Zealand says, it will not have, and that is,
to diminiçh her obligations as far as administration for the benefit of the
inhabitants of the territory is concerned.
Again, therefore, there is this cornmon theme running through all these
statements. And, hlr. President, on this same point, we come to the
staternent which is in that respect the most significant and the most
explicit of all, and thaisthe Australian statement. That we find quoted
at page 48of the Counter-Memonal (II), and because it isso very explicit
and so very çignificant in this respect, I would liketo refer to it fairly
fdip. The third line of the statement reads as follows:
"After the dissolution of the League of Nations and the consequent
liquidation of the Permanent Mandates Commission. it u1ll be
impossible to continue the mandates system in itçentirety."
That in itself,r. President, is very explicit.There is nothing ambiguous
when it is said that "it will be impossible to continue the mandates ARGUhIENT OF MR. DE VILLIERS 40r
system in jts entirety". Something would be lacking; something would
not be present. And what could that be but the very function exercised
bythe Permanent Mandates Commissionas an organ in the League-the
function of supervision of mandatory administration? The Australian
statement proceeds :
"Notwithstanding this, the Government of Australia does not
regard the dissolution of the League as lessening the obligations
imposed upon it for the protection and advancement of the in-
habitants of the mandated territories, which it regards as having
still full force and effect."
There is.the same common theme, here explicit, which we find implicit
in the New Zealand statement and in the South African statement,
namely that notwithstanding the disappearance of supervision, the
obligations relating to the protection and advancement ofthe inhabitants
would not be regarded as in any way lessened.
The staternent proceeds:
"Accordingly, until the coming into force of appropriate trusteeship
agreements under Chapter XII of the Charter, the Government of
Australia will continue to administer the present mandated terri-
tories, in accordance with the provision of the Mandates, for the
protection and advancement of the inhabitants."
Again the statement of that same intent, in the same way as we find in
the other statements to which 1 have referred.
The quotation continues-
"In making plans for the dissolution,of the League, the Assembly
will very properly wjsh to be assured as to the future of the man-
dated territories, for the welfare of the peoples of which this League
has been responsible, So far as the Australian territories are con-
cerned, there is.full assurance. In due course these territories will
be brought under the trusteeship system of the United Nations;
until theri.. ."
I break here because this is of the highest importance:what is the intent
of the Australian Government in regard to this interim period-what iç
its intent in regard to the future of mandated territories-the question
on which the League would want to be assured? "Until then", the
statement says-
"the ground iscovered not only by the pledge which the Government
of Australia has given to this Assembly to-day but also by the
explicit international obligations laid down in Chapter XI of the
Charter, to which 1 have referred, There will be no gap, no inter-
regnum, to be provided for."
So, hlr. President, for that interim period the ground iscovered by two
things. The one thing is the pledge which the Australian Government
gave to the Assembly on that day: the pledge relating to the manner in
which administration of the mandated territory would proceed for the
benefit of the inhabitants of the territory. The other aspect was the
explicit international obligations laid down in Chapter XI of the Charter.
to which the Australian representative had referred before. And, as we
indicate at page 48 of the Counter-Mernorial, in the earlier part of his
statement in which he had referred to Chapter XI of the Charter, the
Australian representative had said the following:402 SOUTH WEST AFRICA -
"Amongst other things, each adrninistering authority under that
chapter undertakes to supply to the United Nations information
concerning economic, social and educational conditions in its
dependent territories."
Now, Mr. President, Australia therefore speaks in its statement not only
of this factor to which al1the other statements were confined, viz. the
factor of what the actual administration of the mandated territory would
be like ,nd on what principles-on what obligations-it would be
founded. It speaks also of the other element on which the other state-
It speaks pertinently of the question of report and accountability. Andn.
what does the statement indicate? That there would be a continuation
of report and accountability as under the League system? No, Mr.
President, clearly the statement indicates in its earlier portions, which I
stressed, that Australia contemplated there would be no such further
report and accountability under the mandate: instead there was an
explicit international obligation laid down in Chapter XI of the Charter.
And now, Mr. President, ifwe come to analyse what that explicit inter-
national obligation is, as laid down in the Charter, we find that it is not
an obligation ofaccountability under amandate at all.It isnot anobligation
involving supervision on the part of supervisory organs. It ismerely a
economic, social and educational conditions in its dependent territorieson
for the information of the United Nations. The fact, Mi- President, that
that obligation under Article 73 was not intended to involve accountabil-
ity as under a mandate-accountability in the sense of having to report
on and account regardrng cornpliance with substantive obligations laid
upon the administering power-the fact that that is so appears firstly
very clearly from the very wording of Article 73 ofthe Charter itself.
The Article which, together with Article 74, comprises Chapter XI of
the Charter, is headed "Declaration regarding non-self-governing
territories", As my learned friend stressed also in his address, this is a
declaration. It does not take the form of an agreement, and history
shows that this was a very deliberate choice of wording, because the
their cornmitment was not tocuberput on a higher level thanaideclaration.
It provides that :
"Mernbers of the United Nations which have or assume responsi-
bilities for the administration of territories whose peoples have not
yet attained a full measure of self-government, recognize the prin-
ciple that the interests of the inhabitants of these temtories are
paramount, and accept as a sacred trust the obligation to promote
to the utrnost, within the system of international peace and security
established by the present Charter, thervell-beingof the inhabitants
of these territories, and, to this end:
(e) to transmit regularly to the Secretary-General for information .
purposes, subject to such limitation as security and constitutional
considerations may require, statistical and other information of a
technical nature relating to economic, social and educational
conditions in the territories for which they are respectively respon- ARGUMEXT OF MR. DE VILLIERS
403
sible other than those territories to which Chapters XII and XII1
appiy." (Art. 73.)
We find immediately that this information is to be transmitted for
information purposes only. We find that it may be subject to such
limitations as security and constitutional considerations rnay require, and
we find that it is to relate to economic,social and educational conditions
this with the definition of the obligation of reporting and accountability
as set out in the mandate instruments-and for the purpose 1 read
specifically from ArticIe 6 of the Mandate for South West Africa-the
contrast is a glaring one:
"The Mandatory shaii make to the Council of the League of
Nations an annual report to the satisfaction of the Council, con-
taining full information with regard to the territory, and indicating
the mesures taken to carry out the obligations assumed under
Articles2,3, 4 and 5.''
The fact is, therefore, Mr.President, that the obligation under Article
73 (e) is not an obligation of reporting and accountability regarding
compliance with substantive obligations. It is very clearly a very much
lesser obligation-a very minor obligation-as compared with the obliga-
tion of reporting and accountability under the Mandate. That appears
from the wording itself, and my learned friends who represent the
Applicants, admit that this distinction exists as a matter of law. As a
matter of law this obligation cannot be equated with oneof accounting
and reporting under the Mandate. We hd their admissions in that regard
in the verbatim record at pages 227-230, supra. 1 do not have to read
the passages to the Court.The Court willrecall what the gist of it was.
Rut, Mr. President, we also refer in our Book II of the Counter-
Mernorial, at page r38 (II), to the history of Article 73 which had
occurred during the middle and later portions of the year194541 1 ther
words, only some months prior to this final meeting of the League
Assembly-a history, therefore, which was very much in the rninds and
within the knowledge of the delegates \vho were presenton that occasion
in April 1gqf3-at least those delegates who were also Members of the
subject-debates Ivwhich emphasized the very points which I have on this
mentioned now, regarding the construction of the provisions of Article 73
le). And we refer to certain passages in Hall, and 1 should also like to
amplify those, hfr. President, with a reference to certain passagewhich
we do not give in OurCounter-Memorial. LVefind them in A History of the
UniteN dationC sharter,by Russell and Muther. It is the edition in this
Library, and 1 wish to refer the Court particularly to passages at pages
821 and 822. There was, according to the authors, considerablediscussion
on the question of the title "Declaration" on the question whether the
operative portion was to speak of "undertake", or "agree", and on what
language should be employed in that regard. And they state at page 822,
at the particular stage when this topic was under consideration:
".. .Great Britain pojnted out that the section was voluntary and
that 'undertake' \vent too far for some States. A Chinese proposa1
also to drop 'agree'was accepted. Thuçthe opening paragraph only
cornmitted administering States to recognize the 'paramount
interests' of the inhabitants of dependent territories, to acce... SOUTH WEST AFRICA
the obligation to promote to the utmost their well-beingand, 'to this
end', toensure political advance, develop self-government, etc., as
listed in the subparagraphs."
That shows what care was taken on that particülar point. But even
more specifically important for our purposes is the question whether
there was a concept that there wodd be supervisory powers on the part
of the United Nations or any organ of the United Nations pursuant to
this declaration. And that was a point on which the colonialpowerswere
specifically insistent, namely that there was to be no conception of ariy
supervisory power on the part of the United Nations.
At page 821 of the work to which I have referred there is a reference
to one of the occasions when there was a suggestion, made on behalf of
the Soviet Union, that the word "political" should be inserted in sub-
paragraph o-"political" in addition to "economic, social and educa-
tional conditions". But there was objection on the part of Great Britain
and France particularly, on that occasion, and Franceis reported to have
declared that "the imposition of specific commitments amounted to
establishing international supervision of colonies under national sover-
oppositionhon the part of the colonial powers.ere was very strong
Duncan Hall deals with tliis same matter in Mandates, Depeladencies
and Trusteeshi@1. wish to refer the Court first to a passage at page 285.
After referring to Articl73 (e), the author states:
"This, according to the Charter, istrammitted 'for information
purposes'.The British Commentary on the Charter noted that 'the
general declaration ... does not empower the United Nations
Organization to intervene in the application of these principles by
the Powers concemed."
That was a British commentary on the Charter to whch reference is
made by the author.
At page 286, the author states:
"The limitations in the Charter, that the data should be of a
'technical naturey-not politicai-and should be transmitted to the
Secretary General 'for information purposes', were the result of a
compromise at San Francisco. The purpose ofthe limiting words was
to prevent the information being used for political purposes. e.g., to
prevent outside interference in the government of the territories."
The author proceeds, Mr. President, to point to subsequent events
during the years 1946and 1947 on the question of the procedures that
would be adopted in regard to the submission of information under
Article 73 (e). He aho points out that the General Assembly appointed
an ad hoccomrnittee, interalia, for the purposof going into the question
of procedures, andthe author's general comment is that in the Prepara-
tory Commissionof the United Nations, in the autumn of 1945 hrough-
out the 1946meetings of the GeneralAssembly, as in the ad hoccommittee
in 1947 and the second General Assembly, there was strong pressure on
the part of a number of dclegations to go beyond the wording of the
Charter, in order to prepare the ground for intervention by the United
Nations organization in the application of the principles ofChapter XI.
The author points out, at page 287, that there was opposition againçt
the very establishment of this ad hoccommittee, and that the opposition ARGUMENT OF XR. DE VILLIERS 4O5
included the United Kingdom, the United States, France and other
colonial powers. Nevertheless, the committee was appointed and it
proceeded with its deliberations.
At page 288the author records:
"In the course of its meetings the Committee rejected several
proposals by the Soviet and other delegations, including
(a) visits by the United Nations to non-self-governing territories,
(b) the right of the United Nations to receive and examine petitions
from such territories,
(c) instructions from the Secretary General to rnake use in his
analysis of information drawn from unofficial sources in the terri-
tories.
The ad hoc committee agreed by a majority that there was no
obligation under Article 73 to submit information on 'political
progress'; if, however, governments sent such information volun,
tarily there was noobjection to the Secreatry General incIuding it in
his summary."
The author proceeds, at page 289, to point out that there were a
number of resolutions in the Fourth Committee adopted eventually by
narrow margins, whch had been proposed by, what he terms,"the anti-
colonial bloc", led by the Soviet Union and India in the Assernbly's
Fourth Cornmittee. He says that they succeeded by a series of votes,
carried by very narrow margins, to undermine the agreement reached in
the ad hoccommittee, and he gives examples of these decisions of the
Fourth Committee, at page 289:
"Under the Fourth Cornmittee's new proposal, the sending by
governments ofinformation onpoliticaiprogress wasto be recommended
by the Assembly. The position of the minority was that as a result
of an agreement at San Francisco, the Charter excluded political
information from Article 73 (el.Thus, governments were under no
obligation, either legal or moral, to supply it. To attempt to make
them to do so was an attempt to rewrite the Charter by Assembly
resolution."
After a few lines he continues:
"A further resolution greatly widened the powers of the Special
Committee by enabling it to make such recommendations as it
respresentative as an attempt to change the Charter, since the
United Nations does not have any power of supervision over the
administration of non-self-governing territories. The resolution, he
pointed out, blurred the fundarnental difference between Chapters
XI and XII to XII1 of the Charter, and placed no limits on the
powers of the Special Cornmittee. The United Kingdom representa-
' tive added that the specid committee as now proposed would be a
rivalorgan to the Trusteeship Council. These Fourth Cornmittee
resolutions were rejected by the General Assembly on 3 November
1947 bp substantial majorities and the resoIutions of the ad hoc
committee were adopted in their place."
Mr. President, 1 have referred at some length to this question ofthe
history of Article 73 le), and also to the very firm attitude adopted406 SOUTH WEST AFRICA
consistently by the Powversconcerned irnmediately aftenvards when
attempts were made to impose upon them a more onerous obligation
under Article 73 than that to which they considered themselves com-
mitted. I have stressed that because that history must, in fact, have
brought the fact very firmly to the notice of everybody concerned in the
years 1945 and 1946 ,iz.that Article 73 was not intended to impose an
obligation of reporting and accountability. Bearing that in rnind, we can
revert now to the statement of the Australian representative that he
considered that, inthat interim period, his Government would deal with
mandated territories on the basis of Article 73, and would submit
information of the limited nature and for the limited purpose referred to
in Article73. That, in itself, Mr. President, excluded any contemplation
whatsoever on the part of the Australian delegation that there would be
an obligation of full report and accountability under the Mandate. And
that rnust have been present in the mind not only of the Australian
delegation, but of everybody present who was aware of this history and
of the content of Article 73(e)of the Charter.
a matter of law, in considering that Article 73e(e)swould apply in that
interim period in relation to the mandated territory under Australian
control, is immaterial, to rny contention. What is important is that the
Australian representative, in fact,thought that Article 73was applicable,
and that he indicated that that was the view of his Government-that
his Government was going to deal with the situation on the basis of the
applicability of Article3(e)-and, therefore, that excluded very clearly
any contemplation on the part of his Government of a continuation of
an obligation of report and accountability under the Mandateitself.
Mr. President, 1 promised to give the Court a reference to authority
on the point that nine of the members of the Special Comrnittee on
Palestine were hlembers of the League, at the time of its dissolution. The
reference isWalters' Hislory ofthe League of Nations V olume 1,pages
64 to 65, The two countries that were not members at the time of the
dissolution of the League were Guatemala and Peru.
Mr. President,1 now surnmarize the conclusions to be drawn from the
various statements by the mandatory powers. 1 submit it can fairly be
said, firstly, that not one of those statements indicates, in express
language, that reports under the mandate would, in future and until
termination of the mandate status, be rendered to the United Nations.
Secondly, not one indicates any contemplation of any substitution of
supervisory organs, for the purposes of the obligation of report and
accountability under the mandate. Thirdly, al1 of them indicate an
intention of continuing with those obligations under the mandate which
relate to the manner of administration of the territory. Fourthly, in four
cases-those of the United Kingdom, South Africa, New Zeatand and
Australia-a clear indication is given that no reporting and accounting
under the mandates would occür. \Vesubmit that it iperfectly plajn that
that is the rnanner in which the statements were also understood. That
follows, not only from the arguments which 1 have already addressed to
the Court, but also from consideration of the furtherevents which led up
to the eventual resolution of the League on that subject, and the very
wording of that resolution itself. FVegive the wording in Book II of the
Counter-hlemorial (II), at pages 51 to 52,and just on this particular
point, I refer to paragraph 4 of the resolution which- ARGUMENT OF MR. DE VILLIERS 407
"Takes note of the expressed intentions of the mernbers of the
League now administering territories under mandate to continue
to adrninister 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 andthe respective mandatory powers."
The concept, which we find in al1those statements of expressions of
intention, is limited to the concept of administering the territories ia
particular way, viz., in accordance with the obligations of the mandate
for the welfare of the peoples concerned.
This, in itself, in Oursubmission, Mr. President, dispels any suggestion
that al1States, at the final session of the League, had a cornmonintent to
. effect a substitution of a superviçory organ. The mere fact that the
mandatories themselveç were so clear on that point makes it obvious
that at least it cannot be said that the mandatories (and they were, after
all, the crucial parties concerned-those upon whom it is sought to
impose this obligation) agreed to this obligation.ut the lack of consent,
not onIy on the part of the mandatories but on the part of everybody,
becomesmore manifest when Ivehave regard to the history of the resolu-
tion on mandates.
On the afternoon of g April (that was after the statements by the
United Kingdom and South Africa which hadbeen made on the morning
of the gth, but before the other statements by mandatories), the Chinese
representative, Dr. Liang, proposed for discussion a draft resolution
which is quoted at page 49 of the Counter-Memorial (IL). I am not going
to read its terms now. 1 shall do so presently. The Chairman, on that
occasion, ruled, in the Cornmittee concerned. that the proposa1 was not
relevant to the item then under consideration. (That is on the same page .
of the Counter-Memorial.)
Subsequently, Mr. President, three days later, on 12 April 1946, the
sarne Chinese delegate, Dr. Liang, introduced a new draft, in the Com-
rnittee concemed-that is Cornmittee 1 if 1 remember correctly-and of
this new draft, Sir Hartley Shawcross, the United Kingdorn representa-
tive, said, when seconding the proposal, that it "had been settled in
consultation and agreement by al1countriesinterested in mandates, and
he thought it couId, therefore, be paçsed without discussion and with
complete unanimity". (II, p. 50.)
This draft, as introduced on 12 April, was the basis of the eventual
resolution concerning mandates, andthe resolution is quoted, as 1 have
said, at pages51 to 52 of the Counter-Mernorial (II).
This may be a convenient time to refer to the wording of the two
proThe first one, the one of 9 April, read as follows:
"The Assembly,
Considering that the Trusteeship Council has not yet been consti-
tuted and that al1mandated territories under the League have not
been transferred into territories under trusteeship;
Considering that the League's function of supervising mandated
territories shouId be tyansferredto the United Nations, in orderto
avoid a period of ilaterregnum in the supervisiolz of the maladatory
regime in these territories; (Italics added.)
Recommends that the mandatory powers as well as those adminis- SOUTH WEST AFRICA
tering ex-enemy rnandated territories shaU continue to submit
annud reports to the United Nations and to submit to inspection
by the same until the Trusteeship Council shall have been consti-
tuted." (P. 49,)
That was the first proposal.
The final proposal, settled afterthe discussions and consultation, read
as follows:
"The Assembly :
Recailing 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 strenu-
ous conditions of the modern world form asacred trust ofcivilization:
O
[1skip paragraphs I an&z, and proceed to 31
"3. Recognizesthat, on the termination of the League's existence,
its functions with respect to mandated territories will come to an
end, but notes that Chapters XI, XII and XIITof the Charter of the
United Nations embody principles corresponding to those declared
in Article22 of the Covenant of the League;
4. Takes note of the expressed intentions ... [1 read that to the
Court recently]."
Mr. President, before we consider the differences between these two
drafts (or the first draft and the eventual resoIution), it may be as well to
have regard to the similarities, and there are two similaritieç which are
very important. The first one is that both of these drafts contemplated
the falling away of the League and of the League supervision, and that
there would be an eventual creation of new arrangements, by agreement
- with the United Nations. Secondly, Mr.President ,both of them were, in
their wording directed al the situationwhich wodd exist in the interim
period, that is, bet~veen the two contemplated events-between the
falling away of League supervision and the new arrangements to be
effected by agreement with the United Nations. It is in the rnanner of
two drafts are poles apart.tor-with this interirn situation, that these
The first draft, Mr. President, would, if accepted, have included the
specific provisions contained in its Iast two paragraphs-specific provi-
sions relating to this interim period-the first being that the League's
function of supervising rnandated territories would betransferred to the
United Nations, and the second that mandatories should continue to
submitreports to the United Nations and to submit to inspection by the
sarne-express rovisionç to that effect.
The second 1raft, hfr. President, is in its wording very much more
lirnited, its terms being confined to taking note of the expressed inten-
tions of the mandatories regarding the manner in which they prvposed
to adrninister the territories in that interim period, That is the marked
contrast.
Mr. President, what then is the effect of this alteration in wording-
what is the significance of it? My learned friendç now advance a con-
tention about it, whereas they previously did not really deal with this
situation as being significant at all. Their contention now is that the
alteration brought about no change whatsoever in the meaning and in
the effect of the resoIution. They Say in effect,Mr. President, that this ARGUMENT OF MR. DE VILLIERS '409
new resolution merely represented a different, and a less explicit, way of
saying the same things as the first resolution. That is what the argument
amountsto. If we look at the verbatim record of 19March, we find that
my leamed friend, Mr. Moore, in dealing with this subject-the contrast
between the two resolutions-made various submissions about it, and
the cnicial ones were two-fold. One, 1 find at page 151,supra, where he
says-"The word 'principles'isnot qualified in any way, and must sureIy
part of his interpretation of the speech of the Chinese delegate with refer-
ence to the ha1 resolution.
Then he says at page 152, su$ra-
"... it would seern obvious that the general understanding of the
League Members in adopting the resolution was that a11the obli-
gations of the various mandates survived the dissolution of the
League and were binding upon the Mandatory Powers pending the
conclusion of new arrangements under the United Nations tmstee-
ship system".
One hds sirnilar contentions, Mr. President, which 1 need not read, in
the verbatim record at page 148,su#ra.
Those are the contentions for the Applicants. In other words, the final
resolution in effect means the same as what was originally raised for
consideration.
Our contention is,Mr. President, that this change in wording very
clearly reveals a change in intent and in effect. Before 1 weigh the rela-
tive merits of these contentions, with reference to the wording, let me
refer to the reason which was given by the Applicants for the alteration
in the wording of the resolution-the reason which the Applicants sug-
gest for altering the wording, and the reason which we suggest for alter-
ing its sense. The Applicants state their attitude in that regard at page
151, supra, of the verbatim record-
". ..it is most Iikely that the League of Nations, notwithstanding
the several undertakings by the mandatory powers to carry out al1
of the obligations of the mandate agreement pending the establish-
ment of the United Nations trusteeship system, did not wish to
appear to encourage delay in the early formation of the trusteeship
system".
Now, Mr. President, the Court wiiirecall that 1 dealt with a similar
contention in regard to the proposa1 concerning aternporary trusteeship
cornmittee as it came before the Preparatory Commission of the United
Nations. I indicated the absurd conclusions to which it leads-the
absurd implications in its context as seen against the background of
events at the United Nations. 1 submit, MT. President, that the result
is even more obviously absurd in this context of the League dissolu-
tion. Applicants' contentioti would involve this, that, in the expression
used by Sir Hartley Shawcross, al1 countries interested in mandates
solemnly agreed with one another on this formulation rather than on a
more explicit one, and the object was to encourage themselves, or at
any rate some of those interested, not to delay insubmitting trusteeship
agreements.
in other words, we have a number of States specially interested in
mandates, the mandatories themselves and some others whowere partic-410 SOUTH WEST AFRICA
ularly interested for various reasons. They have a full discussion about
al1 the implications. They corne to a basic arrangement which is then
eventuaIly proposed for unanimous adoption bythe last Assembly of the
League. Al1the mandatories are included in this circle, this circle that
may be caiied "the proposers" of the particular resolution. They evolve
a scheme as to what isto be done and, according to my learned friends,
any United Nations supervision in respect of mandates outside ofto be
trusteeship, because that would discourage the early submission of
trusteeship agreements.
And my learned friends say that, despite the fact that the proposers
do not have an express agreement on that point, they stiii have an
irnplied agreement, which is to the same effect, namely that there will be
United Nations supervision over mandates outside of tnisteeship. Never-
theless, despite the fact that they all know that-they are al1agreed upon
that-they do not regard that as discouraging the early subrnission of
tnisteeship agreements. It simply, in my submission, does not make
sense, Mr. President.
The much more likely and, in our submission, the obvious explanation
for the change in wording, is that amongst al1the countries that were
intereçted in mandates it becarne apparent, during discussions, that they
could not obtain unanimity on the objectives that were involved in the
first Chinese proposal. That is perfectly obvious when we consider the
attitude of the various parties in relation to specific mandates as we
summarize them in the Counter-Mernorial, II,at page 133-firstly, the
attitude of Respondent itself-Respondent which had stated in effect
that neither the mandates system nor the trusteeship system should in
future apply to the Tenitory of South West Africa; secondly, the atti-
tude of the United Kingdom in relation to Palestine, when it had made
it clear that it had resenved its future intentions regarding Palestine
completely, and thirdly the attitude of Egypt which considered that
Palestine had to be regarded as having outgrown the need for being
agree to a resolution which would make it obligatory on the mandatory
power (Great Britain) to submit to United Nations supervision in regard
to Palestine.
Then Mt. President, in addition to those States, to which we refer in
the Counter-Mernorial, there rnay weil have been certain States which
were concerned about the possibility that if specific machinery was
created-even an express resolution was taken-on the subject of
United Nations interim supervision over mandates not converted into
trusteeship, that that would have the effect of discouraging the early
submission of trusteeship agreements. We noted that that waç quite a
probable attitude-explaining the actions of the United Nations Members
during the early months of operation of the United Nations. We have
noted the fact that the majority of the members of the United Nations
constituted also the majority of the Members ofthe League of Nations.
We have noted that it wasunlikely thatthat line of approach would have
changed in this short period of months unless some speciai reason for it
arose why the States concerned should see the matter in a new light to
that which theyhad seen it in before. It, therefore, seems quite probabIe
that States which had this view of the situation, would also have been
opposed to the first Chinese proposa1and that the grounds of their oppo- ARGUMENT OF MR. RE VILLIERS 411
to make no provision athaval1 for interim supervision, because, as I have
said before, they could hard ly, in taking this view, have distinguished
between a tacit agreement and an express agreement-a tacit agreement
being concerned with something about which everybody is so clearly
agreed that there can be no dispute-there can be no question about it.
Everybody knows itis so, it is too clear. But how they could have
entered into a tacit agreement that there was to be supervision by
United Nations of territories outside trusteeship without the rnanda-
tories knowing of it-1 simply cannot seehow that could have happened.
So, hlr. President, those reasons indicate, in our submission, very
strong probabilities that in the discussions, which we know occurred,
unanirnity codd not be obtained about the objectives of the first Chinese
proposal and that was the simple explanation for the change in wording,
as far as the second draft was concerned. It appears that the represen-
tative of China himself was, in our submission, fully aware of the signi-
ficance of the contrast. That appears from the contrast between what he
said on the first occasion on g April 1946and what he said on rz April
1946.In both of these addresses he commenced by posing the problem,
as he saw it, namely the fact that, pending new arrangements between
mandatory powers and the United Nations, there would be a period of
interregnum in the supervision of the mandatory regime, unless special
provisions to the contrary were made. That was the problem as he posed
it. In addressing the Committee first on g April he raised this problem
as follows: he referred to-
"... the position of territories under mandate and to the position
which wodd arise on the dissolution of the League, in view of the
fact that the tmsteeship council of the United Nations has not yet
been appointed and was not likely to be set up for some time".
(11,P. 49.)
lutioneweelfind his conception of what the position would be in thatso-
interim period. There, he states that :
"Considering thatthe League's function of supervising mandated
territories should btransferredto the United Nations, inorder toavoid
a period of interregwm in thesupervisiolr ofthemadatory regime ..."
(Ibid.)
That then was the problem as he saw it and ashe stated it.
The same problem he mentioned also at the beginning of his second
address some days later. 1shall refer in a moment to the manner in which
he raised it there. The contrast cornes, Mr. President, in the manner in
which he proceeded to indicate how that problem was to be dealt with.
On the first occasion he irnmediately proceeded to state:
"The Chinese dclegation wished to submit a resolution recommend-
ing that the mandatory powers should continue to submit annual
reports on the mandated territories to the United Nations and that
they should agree to inspection b the latter, pending the constitu-
tion of the trusteeship council." (%id.)
Now we come towhat Dr. Liang said on the later occasion on 12 April.
"The United Nations Charter in Chapters XII and XII1established SOUTH WEST AFRICA
a system of trusteeship based largely upon the principles of the
mandates system, but the functions of the League in that respect
werenotIramferred ardmtically to theUnjtedNations."(lM., p.50.)
This is a statement, Mr. President, of the same problem mentioned
before, narnely that special provision was necessary for a transfer of
functions otherwise there would be an interregnumin the supervision of
the mandatory regimeç. Ne proceeded in the next sentence: "the Assem-
bly should therefore take steps to secure the continued application of the
principles of the mandates system." 1 agree with my leamed fnend,
Ilr. hloore, that the word "therefore" is significant. It is because of the
fact that in the absence of special arrangements'there would be an
interregnum that it was necessary for the Assembly to do something.
hlr. President. the difference turns on the question what it is sug-
gested the Assembly was to do. LVesaw what the previous suggestion
was namely directed to the point of providing for interim supervision
words "the Assembly shodd therefore take steps to secure the continuedl
application of the principles of the mandates system" (II,p. 50) and if
we read what the learned speaker said further, we find that it becomes
absolutely clear that hewasproposing a new method of dealing with that
situation.
The new method proposed, Mr. President, was adopted from that of
the Australian declaration, namely that : "The League would wish to be
assured as to the future of mandated territories."
50 what do we find: inthe first proposalthere is a proposed resolution
involving positive action on the League's part-a positive resolution
affecting a transfer of powers and caliing upon the mandatory powers to
subrnit reports and to submit to supervision on the part of the United
Nations. The other proposaI is that the League is to play a passive part-
the League would "wish to be assured as to the future of mandated
territoriesW-in complete keeping with the whole basis that mandatories
are making statements or declarations to the League, containing assur-
ances in the form of statement of intention of the mandatones.
hlr. President, since that assurance of the League was, in fact, estab-
lished by the various statements of the mandatory powers and since
they were taken note of in the resolution proposed, it was entirely con-
sistent in those circumstances that the Chinese delegate should express
his gratification because that was the new method which he had
accepted-which he had, in my submiçsion, become forced to accept in
order to deal with the probiem.
As we have seen, these statements pointedly made no reference to
reporting and accounting to the United Nations inthat interim period.
They were Limited to the factor of administration of the territories in
accordance with the obligations under the mandate. It was, therefore,
to be understood, Mr. President, that the statement of the Chinese repre-
be confined to the element of administration of the territones in accor-o
dance with the principles and the obligations of the mandates system and
that is what we, in fact, hd.
We find that the Chinese delegate proceeds to state:
"It was gratifying to the Chinese delegation, as representing a
country which had always stood for the principle of tmsteeship, ARGUMENT OF MR, DE VILLIERS 4I3
administer the territories under their control in accordance with to
their obligations under the mandates system ulatil other arrange-
mentsweveagreedupon." (II,p. 50.)
That was understood then as being the method by which this problem
would be dealt with. That was the method by which the Assembly was
to take steps to secure the continued application of the principles of the
mandates system: itshodd take steps by being assured by the state-
ments of the mandatory powers.
The Applicants, Mr. President, place reliance upon the concluding
tions under the mandates system", but again, in doing SO,they takeliga-
those words out of their context. The context of those words is entirely
confined to the concept of administering the territories under their con-
trol in accordance with those obligations.
The Applicants aIso, Mr. President, place reliance in their argument
upon the fact that the Chinese representative regarded this resolution
as a step taken by the Assembly to secure the continued application of
the principles of the mandates system and they place particular emphasis
on the words "continued and "principles". Their suggestion is that in
this context principles must then include the principle of report and
accountability to a supervisory organ. But, Mr. President, apart from
al1the arguments I have already adduced to the Court to show that that
was not contained in the statements of the mandatory States-that that
was not understood to be so-there is also the factor of context to which
I have just referred, and there is this further factor which the Applicantç
thernselves admit in their argument, by way of a quotationfromDuncan
Hall. They Say that "the weIfare of native people5 ...is the real heart
of the system". We fmd that quotation in the verbatim record at page
147, supra.
The solution is this: that in the first resolution the Chinese delegate
had sought to ensure the continued welfare of the Native peopbs by a
particular method. That particular method was to make specialprovision
for United Nations supervision of a mandatory administration in the
interim period. His proposa1 in this regard could not command general
support, and in the end he had to be satisfied with this other method
directed at the sarne purpose, and this method was that the League WZ
to rely on the expressed intentions of the mandatories to give epct
this "real heart of the systern"-"the weIfare of native peuples"-in their
administration of mandated territories. And therefore Iilss tatement 1s
confined to that factor. It was a different method of dealing with tk
tories. That this was so trealized by Dr. Liang himself is manifestrrnet
only from what 1have already referred to, but alsofrom asentence whch
wz not quoted by my learned friends in reading this passage to the
Court, and this sentencereads as follows:
"Tt was to be hqbed that the fatztrearrangements tobe made with
regard to these territories would apply, in fulthe princz+lcof trust-
eeshif rsnderlyingthe mandates system." (II,p. 50.) (Italics added.)
There could hardly be a clearer, further manifestation of the realization
that the principles of trusteeship wodd not in the interim period apply
in full, and that the respect in which it would not apply in full WOU^^414 SOUTH WEST -4FRIC-4
be exactly in relation to what was the subject-matter of the first proposal,
namely specificprovision for interim supervision.
In the context, therefore, this address by the Chinese delegate leaves
no doubt whatsoevet that he realized full well the change that had corne
about-the change that had corne about in the provision to be made for
this interim period:that now there was to be no provision for accounting
and reporting under the mandate-it was merely to be a matter of the
mandatories giving a fullassurance that they would act in accordance
with the principles of the system for the well-being of the peoples con-
cerned in the administration of the territories. And he hoped that the
aspect which was lacking would be supplied in full atthe later stage in
the new agreements to be made between the mandatories andthe United
Nations.
Mr. President, we must have regard to the way in which my Iearned
friend for the Applicants sought to interpret the wording of the resolution
itself so as treach the same result as that expressed in the first Chinese
draft. His argument on the wording of the resolution was this. First of al1
he had to construe the resolution as referring to explicit undertakings of
a binding legal nature on the part of the mandatories, and his contention
was therefore this: that acceptance by Respondent of this remlution
clearly involved an explicit undertaking of some sort. Othenvise, he said,
the phrase "until other arrangements have been agreed between the
United Nations and the respective mandatory Powers would have been
meaningless, if not, indeed, mis1eading"-we find that in the verbatim
record at page 212, supra. In this way my learned friend attempts to get
round the explicit wording of the resolution, which does not purport to
embody or record any iindertaking, but merely says that it "takes note"
of "expressed intentions". In this respect hisargument departs, in my
submission, from the clear meaning of the resolution. But his argument,
1subrnit, is untenable when he says that acceptanceb Respondent of the
resolution clearly involved an explicit undertaking Oisorne sort because,
in our submission, there isnothing anornaIous or meaningless in expressing
an intention, as distinct from giving a binding undertaking, to continue
with a present course of conduct until other arrangements are made.
The effect of the acceptance of the resoiution is simply an expression of
intent to continue with a certain course of conduct which is now being
engaged upon until new arrangements are made. And why that should be
construed as being from itsvery nature a kind of undertaking of some
sort, as opposed to aere expression of intention-that, 1 must Say, 1do
not understand,
It may be noted, Mr. President, in passing, that the ordinary meaning
of this resolution, therefore, confirms Respondent's submissions regarding
the sense in which the statements by mandatories are to be understood,
by indicating an appreciation onthe part of the Assembly as a whole that
the said States did not purport to give binding undertakings, that they
merely gave expressions of intention.
The second step in the Applicants' argument isthe one that k of
particular significance here, and that concerns the legal scope of ths
statement of intent, or of the suggested undertaking, as they put it.
They Say that the scope of the undertaking was deterrnined by the
significance of the phrase "in accordance with the obligations contained
in the respective mandates". They contend, Mr. President, that the
"obligations" must include "international supervision" with the conse- ARGUMENT OF MR. DE VILLIERS
quent effect that the resolution must be read as embodying agreement
to render reports to the United Nations.
Mr. President, we submit that even as a matter of wording that
contention is far-fetched. In itç context in the resolution the word
"obligations" refers only to the exercise of the functions to which the
expressed intentions relate, namely "to administer them [the mandated
territories] for the well-being and deveiopment of the peoplesconcemed".
These are the "ohligat.ions" which are intended to be continued, and
there is no warrant, in theinterpretation of that resolution, for extending
the word beyond that meaning which it clearly has in the context, and
which is, 1submit, in that context capable ofno otherinterpretation.
We have pointed out, Mr. President, that that quoted phrase, "to
administer them for the well-being and development of the peoples
concerned", corresponds exactly with the terrns of some statements by
the mandatories and with the general tenor of al1 of them. And in
addition to the wording of those earlier statements on behalf of the
mandatories, Mr. President, the matter becomeseven more emphaticaily
established by reference to what.the French and the Australian repre-
sentatives said on the occasion of the adoption of the resolution itself
in the First Cornmittee. We find the reference to that in the Counter-
Mernorial, 11, at pages 50-51, The French representative, speaking in
support of this proposed resolution on 18April, said as follows-he
". .. wished to stress once more the fact that al1territories under
the mandate of his Govemment would continue to be administered
in the spirit of the Covenant and of the Charter". (Italics added.)
1repeat-"continue to be administered in the spirit of the Covenant and
of the Charter" which in other words, emphasized again the crux of the
whole situation-no reference whatever to accounting or reporting. The
Australian representative-
".. .welcomed the initiative of the Chinesedelegation in moving the
resolution,which he supported. The Australian delegation had made
its position clear in the Assembly-nameIy, that Australia did not
regard the dissolution of theLeague as weakening the obligations of
countriesadministering mandates. They regarded the obligations as
still in force and would continue to adminider their mandated
territories in accordance with the provisions of the mandates for the
well-being of the inhabatants, Over and above that, Australia recog-
nized obligations under the Charter which she had already assumed
as a Member of the United Nations and others which she would
assume in bringing the Territoriesunder the international trusteeship
system." (II, pp. 50-51.) (Italics added.)
Clearly, then, there is the reference again to the two things which we
noticed in the original Australian statement-the intention to continue to
administer the mandated territories in accordance with the provisions
of the mandates for the weli-being of inhabitants,and, secondly,over and
above that, the obligations under the Charter which, ashas been ex-
plained before, were to be the obligations under Article 73 (e) of the
Charter-the limited obligation of supplying information for the infor-
mation of the United Nations in the limited scope of Article 73 (e), and
therefore the exclusion of a contemplation of accounting under the
mandate.
We wish to emphasize, Mr. President, the similarity. in concept, and416 SOUTH WEST AFRICA
even in language, in al1the important steps of the process, the first step
being the statements of the mandatories made prior to the resolution of
18April; the second the address of the Chinese representative in moving
the resolution; the third, the words of the French and the Australian
delegates in supporting the resolution, which 1 have just read; and the
fourth, the terms of the resolution itself. All these various expressions of
intent indicate the future conduct of the mandatories to consist of
administration for the benefit of the inhabitants-thatwas al1 the League
was being assured of, and al1that it understood itwas being assured of.
The contrast, Mr. President, with both the terms of the first Chinese draft
proposa1 and with the words of the Chinese representative as at that
initial stage is, in the words of the honourable President and Sir Gerald
Fitzmaurice in 1962, "absolutely glaring and revealing" to such an
extent that they require, in my submission, no further comment.
As we will show later, Mr. President, subsequent events on behalf of
al1 the interested parties show an entirely consistent and continuing
understanding that the scope of the expressed intentions, and therefore
dso of the resolution, was limited, in the way 1have indicated, to admin-
istration, and that it did not extend to reporting or accountability
under the mandate. Taking these various elements in the situation, that
picture emerges very clearly from the history of this resolution, and
from the wording of the resolution, and, hlr. President, that is, 1submit.
therefore an indication of intent which agrees entirely with the intent Ive
find on the part of the Members of the United Nations in the history
with which I dealt yesterday.
Mr. President, it may be useful at this stage to give some attention
to the question whether the events at the dissolution of the League show
any contempIation on the part of the States there present asto the
in our Rejoinder, V, at pages 60-63, andtweiopoint out that there cannot
be said to have been an expIicit, uniform staternent of opinion on the
part of the States concerned. What we want to emphasize, aswe did in
the Rejoinder, is this: that this duality in the attitude of the States
concerned, or in the possible interpretation of their attitudes regarding
the proceedings on mandates at the last session of the League-that
duality-hfr. President, concerns the choicebetween the two alternatives
for which the Respondent contends-the two alternatives being either
that the mandate as a whole lapsed, or that the mandate survived
without accountability to a supervisory authorit y. Those were the two
alternatives between which their attitudes appeared to waver. There
was a clear exclusion on the part of the States concerned as far as their
actual attitudes were concerned; there was a clear exclusion of the
position contended for by the Applicants, namely that the mandate
would survive, together with accountability to the United Nations, as
an integral portion thereof.
The Applicantspoint out in the verbatim record of theiroralargument
at pages 151-152, supra, that the Egyptian delegate stated his Govern-
ment's resemation to the League resolution asit affected Palestine, and
that he then said:
"The opinion of my Government is that Palestine has intellec-
tually, economically, and politically reached a stage where it should
no longer continue under mandate or trusteeship or whatever
otherarrangements may be considered." ARGUMENT OF NR. DE VILLIERS 417
The delegate further stated: "It is the view of my Government that
Mandates have terminated with the dissolution of the League of Na-
tions ,.." and that in so far as Palestine is concerned there should beno
question of putting that country under tmteeship.
Mr. President, as far as this statement is concerned, my learned
friends argued as follows. 1 read from the verbatim record at page 152,
supra :
"It is important to note that the Egyptian representative clearly
felt that the resolution under consideration was not acceptable
because it signified that mandates continued in force and were not
terminated by the dissolution of the League of Nations. Since the
opinion irnplicit in his reservations was not controverted by any
hfember of the League of Nations, it would seem obviouç that the
general understanding of the League Members in adopting the
resolution was that al1 of the obligations of the various mandates
Mandatory Powers pending the conclusion of new arrangementsn the
under the United Nations trusteeship system."
hlr. President, we submit that this contention which I have just read
is a completely untenable one. The Egyptian attitude was that Palestine
was to be given independence immediately; that was what Egypt
wanted-that was the practical result for which jt was contending-and
for that reason the resolution was not acceptable to the Egyptian
representative. His statement that the mandates had terminated was
only one of the reasons advanced for advocating the immediate indepen-
dence ofPalestine. In the result, Mr. President, itisnot clear why any
of the other States should have controverted this view. Even if the
other States agreed with him that as a matter of law the mandates
would lapse on the dissolution of the League, there would have been no
point in their saying: "1agree with you that the Mandate wili lapse on
dissoIution of the League, and the resolution is not in con0ict with that
future of Palestine." There would nothave been any point, Mr. President,e
in the delegates answering in that manner, because the important thing
was not the question of the view whether the Mandate had lapsed or had
not lapsed, but the important thing was, what was to happen in the case
of Palestine? And inasmuch as the Egyptian delegate in any event was
not opposing the reçolution, bul mereIy explaining whyhe was abstaining,
it was quite unnecessary to take him up on that point at all.
But, Mr. President, even if the Applicants were to be correct in saying
that there was a general contemplation that the mandates would continue,
it does not followthat this contemplation extendedso fas asto embracea
substitution of supervisory organs. There is nothing in the history of this
Egyptian reservation to suggest such a contemplation. The Egyptian
reservation did not object to supervision. It objected to the status of
Palestine as a dependent or mandated territory. The silence on the part
of the other delegates could therefore indicate no more than a view that
this status would survive the League, the status ofbeing a mandafed
territory. That view, Respondent has conceded already, is a view which
may have been held by a number of the delegates-it may have been
held by al1of them. 1am not concerned with that for the moment. What
I am concerned with is the view which they took on the question whether418 SOUTH WEST AFRIC.4
there was to be reporting and accounting under mandates to United
Nations supervisory organs. In that regard, after all,it will be recalled,
Mr. President, that the Chinese representative had said previously in
that same debate, "that the functions of the League jn that respect,
[that is in respect of mandates] were not transferredazttontaficicaloythe
United Nations". (LT p, 50.) (ltalics added.) And it wiIlaIso be recalled
that nobody in the debate controverted the Chinese representative on
that point.
occurring at the &al session of the League Assembly shows that therets
was a general contemplation on the part of the Members of that Organi-
zation that supervision would lapse, or at least that it would become
dormant or inoperative, on the dissolution of the League. Although this
point was pertinently brought to the attention of the League by the
first Chinese proposal, and again when it proposed the second resoIution,
the League deliberately, in ou subrnission, refrained from making âny
provision for interirn supervision.
But, of course, it is unnecessary for us to go so far. It is unnecessary
forthe Respondent to say, as wedo say, that there was general agreement
on this contemplation that there would be no United Nations supervision
after the dissolution of the League and prior to new arrangements. Ai1
that it is necessary for us to show is that the Applicants have not estab-
lished the contrary-that the Applicants have not estabhshed a general
consensus by a process of necessary inference-a general consensus to the
effect that there would be such supervision after the dissolution of the
League. That, it seems clear beyond any doubt, the Applicants have
entireIy failed to establish. If we disregard even anything else, the
Australian attitude makes it perfectly clear that there was no agreement
on the part of Australia in that regard. We, of course, contend that the
British, the New Zealand, the South African, and the French statements,
read in their context,madetheir attitudes equally clear.
Mr.President, there jsa finalfactor in this part of thcase with which
1have to deal, andthat is the treatment which was accorded in practice,
at thisfinalsessionofthe League andthereafter, to the various resoiutions
which hadpreviously been taken by the United Nations General Assern-
bly on the question of transfer of assets and assumption of functions
and powers previously exercised by the League. I would like to deal with
this subject, Mr. President, in reIation to three matters. Firstly,1 would
like to deal with it in relation to those earlier resolutions of the United
Nations. Secondly, 1would like to deal with it in reIation to the provisions
of Article 102 of the Charter, which requires "registration of al1treaties
and international agreements entered into by Members of the United
NationsnJ. And thirdly, Mr. President, 1 would like to deal with it in
relation to the activitiofthe Board ofLiquidation, which was appointed
at the final session of the League Assembly.
First, itmay be convenient if 1were to refer tlieCourt to the wording
of Article 102 of the Charter. It reads as follows:
"r. Every treaty and everyinternational agreement entered into
by any Member of the United Nations after the present Charter
cornes into force shaII as soon as possible be registered with the
Secretariat and published by it.
z. No party to any such treaty or international ag~eement which
has not been registered in accordance with the provisions of para- ARGUMENT OF hZR.DE VILLIERS
419
graph I of this Article may invoke that treaty or agreement before
any organ of the United Nations."
Mr. President, 1 revert to the question of the manner in which the
LeagueAssembly dealt with these prior resolutions ofthe United Nations
General Assembly. We deal with the subject in Book II of our Counter-
Memorial (II), at pages 44-46. We point out there that the League
Members were fully informed beforehand-even those who were not
Members of the United Nations-f these various resolutions that had
been taken by the United Nations General Assembly. That was done in a
communication from the Secretary-General of the League dated 20 Sep-
tember 1945 . suggestion was made that in regard to the proposed
transfer of assets the Supervisory Commission of the League should be
empowered to negotiate with representatives of the United Nations, and
for that purpose todraw up provisional terms of transfer, subject to the
final decisionof the League Assembly. 1am sorry, that suggestion reIated
not only to assets. It related to transfer in general of functions and
powers, as well as assets. But eventuaiiy, because of limitations in
resolutions taken on the United Nations side, the actual negotiations
between the representatives of the Organization were limited to the
question of the transfer of assets. Nevertheless, the League Members
were fulIy informed of the other resolutions which had been taken in
regard to functions and powers. Inthat regard, we find that the authors
of the publication TheLeagtldHundsOvmstated as followsin a quotation
at page 44 of OurCounter-Mernorial(II) :
"Thus by the time the Assembly met in its twenty-first session
it was in possession of the United Nations' plans forking over the
League's materiai assets and for carrying on, either directly or
through one of its related agencies, all the League's most important
functions and activities of a non-political character. Its main
business, therefore, was 'to make provision for bringing the League
of Nations to an end in orderly fashion, so that as much as possible
of its surviving work can be continued without interruption and as
much aspossible of its property can be used to promote those high
purposes of international peace and CO-operation for which the
League itself was founded'."
And so, Mr. President, we find that in these negotiations, a common
plan was drawn up for the handing over of assets,and that cornmon plan
was approved by a resolution of the League at its final session. It was
actually one ofthe paragraphs providing for the dissolution ofthe League.
Another paragraph in that same resolution provjding for dissolution,
provided for the appointment of a board of liquidation, which was to
represent the League for the purpose of effecting its liquidation. This
board, Mr. President, was specificauy enjoined to do the following:
"Subject to the provisions of this resolution and other relevant
decisions taken by the Assembly at the present session, the Board
shall have full power to give such directions, make such agreements
and takeal1such measures as in its discretion it considers appropriate
for thispurpose." (II, p. 45.)
In other words, in taking action, in pursuance of this resolution to
dissolve the League, the board had to act not only with reference to the40 SOUTH WTST AFRICA
provisions of the resoiution itself, and not only with reference to its dis-
Assembly at the present session. This is a point which assumes particular
significancein view of the nature of the Applicants' contention of a gen-
eral tacit consensus regarding a transfer of powers, or a substitution of
supervisoryorgans in respect of mandates.
Mr.President, wefindthat for the guidance of this board ofliquidation,
in generd, and with a view to CO-operatingwith the ideas of the United
Nations in regard to the resolutions which had already been taken con-
cemingfunctions and powers, the League passed two resolutions, which
are set out at page 45, of the Counter-Memorial (II]. The first one is set
out in paragraph 39, under the heading "The Assumption by the United
Nations of Functions and Powers hitherto exercised by the League
under International Agreements". In so far as is relevant, it adopted
certain resolutions regarding the custody of the original texts of inter-
national agreements, and also regarding functions and powers ansing out
of international agreements of a technical and non-political character.
The resolution about custody of original texts of international agree:
ments içnot quoted in our Counter-Mernorial, but the effect of it was an
instruction to the Secretary-GeneraI to trans fer ali those texts and rele-
vant records to the United Nations Secretariat, at a time that rnight be
convenient to the United Nations. One finds that in the relevant League
document, referred to in the footnote on page 46.
The resolution about functions and powers arising out of international
agreements of a technical and non-political character, took the form that :
"The Asçembly recommends the Governments of the Members of
the League to facilitate in every way the assumption without in-
terruption by the United Nations, or byspeciaiized agenciesbrought
into relationship with that organization, of functions and powers
which have been entrusted to the League of Nations, under inter-
national agreements of a technical and non-political character, and
which the United Nations is willing to maintain." (II, p. 45.)
The gist of itis,Mr. President, a recommendation to the governments
of Members of the League to facilitate the assumption of powers and
functions out of instruments'of a technical and non-political nature.
There is nothing here of the nature, shall 1 Say, of an international
agreement between, Members of the League on this point, or between the
League and the United Nations on this point. It is merely a matter of
encouraging overnments of Members of the League to CO-operate with
the United Ifations in that regard.
So here, therewas no question of any agreement arising, which might
require registration.
The same applied to the resolution "The Assumption by the United
Nations of Functions and Powers hitherto exercised by the League",
wtiich conccrns, in general, various non-political activities, anagain the
effect of iwas that the Secretary-General of the League was kected to
afford every facility for the assumption by the United Nations of-those
non-political activities. So, again, in that respect, there was riothing in
required registration.of the nature of an international agreement which
plan referring to assets, because that related to international agreement, ARGUMENT OF MR. DE VILLIERS
421
and the position would, in rny submission, also have been different in
relation to the suggested common tacit consensus on the part of every-
body concerned, regarding a possible substitution of supervisory organs
in respect of mandates, because what would that have amounted to? It
would have amounted to an agreement between al1the Members of the
League and the mandatory powers, that mandates could now be regarded
as being amended in that particular respect-that whereas the Mandate
spoke of supervision of mandatory administration by organs of the
League, the mandates are now to be regarded as amended to the effect
that there will now be supervision by organs of the United Nations. That
could only come about by agreement between the interested parties, who
were the Members of the League, and the mandatory. It would arnount
-to imposing upon the mandatories either a new obligation, in that, re-
gard, or an amended obligation, depending on how one looks upon it,
and that could only come about by new international agreement.
In the light of this background, it is interesting, Mr.President, to note
how the matter was further dealt with, first, by way of registration,
under Article 102,in the Treaty Seriesof theUnitedNations and then in
regard to the further actions of this board of liquidation-how itviewed
these various matters, and how it saw its task, and reported on the com-
pletion of its task in that regard.
The TreatySeriesofthe UnitedNaiioionsV , olume 1, forthe period 1946-
1947 .ontains an introduction by the Secretariat in which it explains
the system to be followedinthis Treaty Series. It refers first, at page XIV
of this introduction, to the provisions ofArticl102 of the Charter, which
the Series would cover cases faLlingunder Articlere102eof the Charter. .It
aIso points out, at the same page, that this Treaty Series would not only
contain treaties or agreements falling onIy under Article 102. Tt would
also contain treaties and agreements falling under Article IO of certain
regulations adopted by the United Nations General Assembly, which
provided, intea rlia, for the registration of treaties or international agree-
ments entered into by the United Nations, or by one or more of the
specialized agencies.
It sxplained, in regard to this latter class of treaties and agreements
to be registered, that they would come in Part II of this Treaty Series.
Mr. President, one other point 1wish to emphasize from the introduc-
tion is found on page XVI, and that concems registration, under Part 1,
of treaties and international agreements falling under Article 102 of the
Charter.. The Secretariat says:
"The exact meaning of the terrn 'treaties and international agree-
ments' has been the subject of discussion. In this connection, the
Secretariat thought itneceççary to confonn to the interpretation of
the term 'agreement' given in the report of Cornmittee IV12, of the
San Francisco Conference which includes 'unilateral engagements
of an international character which have been accepted'. "
So that interpretationisthen given to treaties and international agree-
ments for the purposes of this registration, and on the basis thereof we
turn to the contents of Parts 1and II, in which is set out what it was con-
sidered necessary to register in respect of these events that passed at
the last session of the League Assembly.422 SOUTH .WEST AFRICA
[Public hearing of 6Afirit 19651
Mr. President, at the adjournment yesterday I was dealing with
certain events which followedupon the dissolution ofthe League as being
relevant material, in that they threw further light on the intentions of
the States which attended the last session of the League in April 1946.
I dealt in that regard with the United Nations Treaty Series, and
referred the Court to the introduction written by the Secretariat of the
United Nations to the scheme set out in the introduction to Part 1
thereof, which relates to treaties fallingunder Articl102 of the Covenant,
and then to Part II thereof, which covers cases falling under Regulation
IO of the regulations approved by the General Assembly. The differences
for Ourpurposes were that under Part 1, that is,under Article 102 of the
Charter, fall those cases where the parties, or some of them, were Mem-
bers of the United Nations, and the treaties or agreements had of course
to be entered into after the coming into force of the Charter. In the other
case, under Part II-that would be under Regulation IO-fa11 cases
outside Article 102 :they could be of various classes,but for Ourpurposes
the important class would be treaties or agreements to which the United
Nations itself,or a specialized agency,was a party.
I referred the Court also to the definition which was discussed by the
Secretariat for purposes of their work on this introduction (at p. XVI),
namely that international agreements would include unilateral engage-
ments of an international character which had been accepted. Mt.
construction which my learned friends for the Applicants put upon the
the rnandatories' acceptance of the League's Iast resolution regarding
mandates. The Court willrecall that their construction is that, by accep-
ting that 1st resolution ofthe League, the mandatories accepted engage-
ments to observe al1 obligations under the mandate, including accoun-
tability, with the United Nations then substituted as the supervising
authority.
On that construction the engagements by the various mandatories
would have been accepted by the other Members of the League which
participated in that resoiution, and we would iherefore have an exact
.casecovered by this definition, set out by the Secretariaas a bais upon
which they were registering treaties and international agreements in this
way.
Now, Mr. President, in Part 1of the volume, falling under Article 102,
we find nothing of devance to our purpoçes. There is nothipg about
mandates, as one would have expected if the construction of my leamed
friends was the correct one and ifthat had been the intent of the perçons
concerned.
As far asthe other rnatters which were diçcussed at the final session of
the League Assembly are concerned, it is not surprising that Part 1
contains no referencethereto. For instance, the matter of the transfer of
assets took the funn of an agreement between the twoorganizations,
nameIy the League and the United Nations. One would therefore expect
that to be dealt with in the second part of the Series and one finds, in
fact, that it is dealt with there.
In regard to the question of assumption of functions, powers and
activities ofa non-political character by the United Nations, the Court
willrecall that there was nothing of the nature of an agreement, either ARGUMENT OF MR. DE VILLIERS 423
between the organizations or bettveen the States concerned. The bal
resolutions of the League partook of the form that either the States or the
Secretary-General was requested and enjoined to take al1necessary steps
to CO-operatewith the United Nations in the assumption of such func-
tions and powers,so that there was nothing ofthe nature of an agreement
involved in those resolutions themselves. The situation was different in
regard to mandates-on the construction which the Applicants wish to
place upon it-and yet itis significant, that no snch agreement in regard
to mandates is contained in Part 1of the Series.
1 rnight point out further, Mr. President, in that regard, that the
League itself,at its final session, did not adopt any resolution on the
question of political functions which corresponds with the United
Nations resolution on that point. The reason for that was probably the
fom which the United Nations resolution took on that very point. The
United Nations resolution did not express any general willingness to
accept or to adopt functions of the League in regard to instruments with
a political character. The idea was that each case would be adjudged by
the United Nations on its own merits and there would have to be an
application by the parties concerned and a decision by the General
Assembly, or other organ acceding to that application. The League
probably considered that it had no function in that regard, that that was
a matter to be left to the ad hoc treatment which was envisaged in the
United Nations resolution.
But, Mr. President, onthe Applicants' construction ofwhat the general
agreement was in regard to mandates, that would certainly have been
an exception. That would have invoIved engagements on the part of
the mandatories and acceptance of those engagements on the part of the
other States concerned; in other words, an agreement between filembersof
the United Nations and Members of the League-but also, to a large
extent, >lembers of the United Nations-which would require registration
under Article 102.
In the second part of this Treaty Series, Mr. President, falling under
Regdation IO,one finds that the first six items al1emanate from matters
which were dealt with at the final session of the League Assembly. But
again one finds in al1 those six items no reference at al1 to the case of
mandates. One finds item No, z of Part II on pages log to 117 of this
volume, which is the agreement to give effect to the common plan for the
transfer of assets. The agreement partook of the form, as I have said, of
the United Nations being a party to it,the League being the other party
came to be registered under Part IItiofthe Series, agreement therefore
matters which were concerned with the transfer of assets. More detailedific
aspects, particular problems which arose, are to be found at pages 97,
131 and 140, respectively, of this first volume, and the same considera-
tions apply to them as in the case of item No.2.
Items Nos. 3 and 5 are agreements which refer, in part,to a transfer of
assets, but they are, in fact, mainly concerned with the trmsfer of certain
services and activities, such as library services, stenographic services,
roneo services, and so forth. One finds them at pages xrg etseq.and 137
etseq. of this work.
These agreements in regard to the transfer of these services and activi-
ties were made in pursuance of the resolutions of the League and of the424 SOUTH WEST AFRICA
United Nations on the very question of an assumption by the United
Nations of non-political activities.
So, Mr. President, 1 submit that the omission of any agreement in
regard to mandates £rom this whole treatment of the subject is very
significant. Apart from the effect which such an omission might have
on the validity of any such agreement, as is contended for on behalf of
the Applicants, 1submit that the more significant aspect of this omission
is the indication whch it affords as to the intent of the perçonsconcerned,
on the question whether there was any conception on the part of those
who participated in the last session of the League Assernbly and on the
part of those who were charged with the execution of the decisions and
resolutions arrived at on that occasion, that there was any such agreement
as is contended. My submission is that this omission serves as a clear
indication to the contrary, and the matter becomeseven more clear if we
proceed to consider, in conjunction with the registration aspect, the
report of the Board of Liquidation which was appointed at that last
session,
The Court will recall, Mr. President, that this Board was enjoined to
have regard in the performance of its task to al1relevant decisions of the
League Aççemblytaken at its last session. 1 quoted that portion from its
terms of reference yesterday. It is contained in our Counter-Mernorial,
II, page 45. (P. 420, supra.)
In the report itself we find, Mr. President, that the Board "very con-
scientiously endeavoured to comply with this requirement", and to have
regard in its task to al1those relevant reçolutions and decisions. We find
that Part 1 ofthe report, running up to page IO,is headed "General" and
it is concerned, in the main, with financial aspects of the liquidation.
That was in accordancewith the main resolution which the League took
on the question of the liquidation.
Then we pass to Part II and we find that is divided into a number of
chapters, and that the headings of three of the first four chapters are
very significant. The heading of Chapter I of Part II is "Disposa1 of
Material Assets". The heading of Chapter 3 is "Assumption of Activities
by the United Nations and Specialized Agencies". The heading to
Chapter 4 is "Disposa1 of Non-Transferable Activities, Funds and
Services".
In Chapter I there is a reference to the common plan and to the steps
that were taken in pursuance of the common plan in regard to transfer.
There is in this regard, therefore, also a reference to the agreements to
which I have referred and which are registered in the volume of the
Treaty Series,which I have discussed. That part of this report we find at
pages 11-12.
Shen, Mr. President, in Chapter 3 under the heading "Assumption of
Activities by the United Nations and Specialized Agencies", we find
references in the first introductory paragraph to the various resolutions
taken ai the last session of the League Assembly on these subjects. The
matter is grouped under three headings and the report proceeds to deal
with the subject-matter underthese three headings. The first heading is
"(a) Treaty Registration". The report states in this regard that-
"The continuity of this work is of prime importance to ailStates
and the maintenance of the system inau ated by the League has
been asrured bythe Charter of theunitegations. Thus thereshould
be no break in the Treaty Series,of which 205 volumes have been ARGUMENT OF MR. DE VILLIERS 425
published by the League. Forma1 transfer took place on I August
1946.The originals of international labour conventions had already
been handed over to the International Labour Office."
One has here a recording of an actual transfer which took place in this
respect in pursuance of the relevant resolution of the League.
The second group iç entitled "(b) Transfer of Powers and Functions
Performed by the League undei International Agreements of a Technicd
and Non-Political Character". The report's reference to this group reads:
"This group includes powers and functions provided for in more
than fifty Conventions on communications andtransit, economicand
financial questions, the work of narcotic hg control, health
questions, legal questions and questions of a social and humanitarian
character. The duties of the League in respect of these subjects were
transferred to .the United Nations at dates convenient to that
Organization, the Iast being handed over on IOctober 1946"-
again, Mr. President, action in pursuance of the relevant parallel resolu;
tions of the United Nations, and particgarly of the League, instructing
its Secretariat to take the necessary action in that regard and calling
upon Member States to CO-operateand assist.,
Thirdy, under the headmg "(c) Transfer of Certain Non-Political
Activities to the United Nations", we find these words:
"The responsibilities of the Secretariat, relating to matters
mentioned under (b) above, the Library Service, Publication
Service andthe Central and Interna1 Serviceswere transferred to the
United Nations at dates convenient to that body, with the resdt
that the latterwas able to ensure their continuation without inter-
.ruption. The last of these services was transferred on 1 October
1946."
Again,Mr.President, the sarne comment applies as that in regard to the
previous group.
This makes the treatment of mandates in the next chapter stand out
in very marked contrast. The heading of the chapter, Chapter 4, page 19,
is "Disposal of Non-Transferable Activities, Funds and Services". The
chapter deals,in the course of the next two pages, with somesix subjects
under various headings andthe last heading is "(F)Mandates; Protection
heading. The first two sentences apply to the case of mandates and thet
last one to protection of minorities. 1 shall read the first two.
"On the proposal of the First Committee, the 1946 Assembly
adopted a resolution whereby it 'recognizesthat, on the termiiiation
of the League's existence, its functionswith respect to the mandated
territories will come tan end, but notes thal Chapters XI, XII and
XlII of the Charter of the United Nations embody principles
corresponding to those declared in Article22of the Covenant'."
Those wordswere a quotation from the resolution. The report continues:
"The mandates system inaugurated by the League has thus been
brought to aclose,but the Board isglad 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's archives. which should afford valuable426 SOUTH WEST AFRlCA
guidance to those concemed with the administration of the Trustee-
ship system set upby the Charter of that organization."
Mr. President, itiç very significant that al1that is taken over here is the
mandates section's archives with the small remaining staff-nothing
else-no functions or activities. Also, Mr. President, the expectation, the
anticipation, of valuable guidance which this transfer should afford,
doeçnot relate to the question ofsupervision over mandates as mandates.
The guidance is foreseen as being valuable.only to those concerned with
the administration of the trusteeship system set up by the Charter.
Clearly, Mr. President, there was no contemplation whatsoever on the
part of the authors of this report that there was to be any supervision of
mandates outside the trusteeçhip system.
So we find that the evidence mounts independently from ail sideç. We
saw the very strong-the unanswerable indications of intent, as 1
analysed them yesterday, resulting from the actions of the mandatories;
the statements on behalf of the rnandatories,the history inregard to
the Chinese proposals; the wording of the finalresolution of the League in
contrast with the earlier indications and the accumulative effect of all
these factors. We pointed, also, to the way in which the mandatories
were obviously understood and the light which was thrown on that by, for
instance, the subsequent conduct ofthe parties and by the passage in the
Palestine Commission's report, to which 1 referred. Here we get inde-
pendent evidence. We get officialç-we get office-bearers-who were
specially charged with the execution of the decisions taken at the final
session of the League, and with the duty of taking further steps in
pursuance thereof. They conscientiously performed their task in relation
to treaty registration and registration of international agreements, they
performed their task in regard to the liquidation of the League and to
assisting in the handing over of al1 furictions and activities that were
intended to be handed over to the United Nations; and they recorded
that, in the case of mandates, that everything had corneto an end, exce t
for archives and a small remaining staff and the assistance which it cou d
give in the administration of the trusteeship system.
This, Mr. President, then takes us to the next phase in the historical
development, namely the further events inthe United Nations after the
dissolution of the League.
The Applicants in this regard gave, in their oral statement, a detailed
survey of events which took place as from the time that the United
Nations began operations in 1946. They then reached the following
conclusions :
"... while there was disagreement among several Members of the
United Nations with regard to the existence of the mandate and the
obligations of international accountability, the view of the United
Nations, aç a whole, expressed through its resolutions on the subject,
demonstrated its understanding that the Mandate remained in full
forceand effectandthat theUnited Nations hadsupervisory authority
over the Territory.
a,. . . . . . ..... .......... ..
~es~okent, through the several declarationç and çtaternents
heretofore discussed, also demonstrated its recognition of the
continuance of the obligations of the Mandate after the dissolution
of the League. It was not until the autumn of 1947that supervisory ARGUMENT OF MR. DE VILLIERS 427
authority of the United Nations was questioned, and not until
November 1948 was it argued by Respondent that the Mandate
had lapsed.
Hence, the actions ofthe LeagueAssembly, ofthe United Nations,
and relevant statements and actions of the Respondent, combine to
support the conclusion that the Mandate and al1of the obligations
contained therein survived the dissolution of the League, and that
the United Nations replaced the League as the supervisory organ
over the Mandate." (P. 165, supra.)
Those are the Applicants' contentions in regard to this penod 1am about
to deal with although, of course, it covers, in their contention, an ante-
cedent period also, with which I have dealt, namely the history upto the
time of the dissolution of the League in April1946.
1intend to dealwith this same topicin the next phase:on the onehand,
the actions of the League and the United Nations, as the Applicants call
them; and on the other hand, what they term the "relevant statements
and actions ofthe Respondent".
We shall concentrate first, Mr. President, on the question of the
"relevant statements and actions of the Respondent", with due regard
to their setting in relation to other events which occurred at the tirne,
because these "relevant statements and actions" on the part of the
Respondent form the cm of this whole matter. If therewas to befound
on the part of the Respondent an7 consent to or acquiescence in a
substitution of supervisory organs, it would have to be found in these
"statements and actions"; it could not be found anyvhere else. And the
Applicants accept that it isnecessary to establish such consent or
acquiescence on the part of the Respondent. It is,therefore, necessary,
in the first place, to ascertain what these "statements and actions",
fairly construedin their context and in their setting, conveyed. Secondly,
the question arises, how they were in fact understood by the otherparties
concerned. We concentrate on this first part first, andhen we proceed to
Nations Members. Mr. President, this last factor is important, because
of the indications which it affords as to the view which United Nations
Members took in general of the situation in relation ta mandates, and
particularly the Mandate for South West Africa, but also because it
affords the best evidence one can get of how the statementsand actions
of the Respondent were actually understood by the other Members of the
United Nations. We submit, Mr. President, that when this review ha^
been undertaken fully, and with proper regard to context, it wiil be
apparent that the result is diametrically opposed to that contended for
by the Applicants. But for the purposes of this review we have to avo~d
certain errors which are, in Oursubmission, inherent in the Applicants'
approach, and it rnay be best to point them out straight away at the
beginning.
In the first place, Mr. President, the whole of the relevant evidence is
to be considered, not isolated bits and pieces taken out of their setting
and out of their context, and thrown together as if they afforded thenly
relevant evidence on the subject.
Secondly, the matter is not to be approached, as the Applicants do,
from a wrong premise, to the effect that, as at the diçsolution of the
Leagüe, the Respondent had already indicated, and had already been
understood to indicate, acceptance of a continued obligation ofaccount-428 SOUTH \YEST AFKICA
ability under the mandate, with the General Assernbly of the United
Nations substituted as supe~sory organ. That isthe premise fromwhich
the Applicants approach their review of this part of the relevant facts
-as if there had alread , prior to th. period, and at the stage of disso-
lution of the League ancleven prior to that stage, been manifestations on
Respondent's art of acceptance of al1 obligations-f the continued
operat ion of al obhgations under the mandate, including accountability,
and with substitution of a new supervisory organ. That premise, 1
contrary, Respondent together with ail the other mandatories had indi-
cated, very clearly that in respect of accountability the previous position
could not be maintained: itand the othermandatories hadintimatedvery
clearly, that they considered that therecould be no accountability under
the mandate, and they were very clearly understood by the other
hlembers of the League andthe Members of the United Nations to have
taken that attitude-the attitude being not only that there would be no
accountability, but also that they would in fact not report and account
in regard to cornpliance with their obligations under the mandate.
The Applicants, Mr. President, are also wrong in another assumption,
and that is that an indication on the part of a State that the mandate
itself continued in existence implied, at the same time, continued
accountability under the mandate, either in reIation to the suggested new
supervisory organ, or at all. I have dealt before, Mr. President, with the
logical distinction between those two things: with the reasons why, if at
a particular time any State said that in its contemplation the mandate
was stiliin existence, it did not necessarily mean that in that State's
contemplation accountability under the mandate also remained in
existence. 1do not want to deal \vith the logic and the general pnnciples
of that distinction again at this particular stage. When 1 dealt with the
matter before, I indicated to the Court that in our review of the facts we
wouId demonstrate that that assumption is factually not true and that,
whatever the legal position might be asto severability or inseverability
of accountability from the rest of the mandate institution, the States
which expressed themselves on this subject,in fact, from tirne.to tirne
took up the attitude that a mandate could exist but that there would
particularly clear in the history of the events with which we are about to
deal now.
1 must concede at the outset, Mr. President, that statements made
on behalf of the South African Government during those first fewyears
after the dissolution of the League did convey a conception on thepart of
the South African Government that the Mandate as such could be
regarded as still in operation, or at least that the situation was being
handled by the South Afncan Government as if the hlandate \:as still
in force. That is clear-whatever legal significanceone wants to attach
to that factor isanother matter with which 1shall deal later in relatito
the question whether the Mandate is still to be regarded as in existence in
law-that that was in fact the kind of intimation that was given by the
Government at that particular stage is so, and itisa fact from which 1
will not in the least attempt to escape.
It is also a well-known fact of history-1 need not try to hide it,
because there is no secret about it-that in this particdar regard, i.e.,
on the question whether the Mandate could legally still be regarded as ARGUMENT OF MR. DE VILLIERS 429
in existence or not, there was a difference of opinion between the then
South Afncan Governent and the one which çucceeded it in 1948.
And that is why one hds this reference by my learned friends to the
changed attitude expreçsed on that particular subject as from the years
late 1948-beginning 1949. and so fortki. As the Court knotvç,there wasa
change of Government in 1948-we might, for convenience, refer to
the previous Government as the Smuts Government; the later Govern-
ment, which succeeded it in 1948,was under the leadership of Dr. Malan.
And it is a well-known fact that leading members of those two Govern-
ments differed with one another on this legal question regarding the
continued existence of the Mandate qw Mandate. That isnot surprising,
Mr. President, in view of the fact that those were not the only quarters in
a which there was a difference of opinion on that subject..The difference of
opinion extended to a number of States. In our review of theattitudes of
States weçha11indicate to what extent States themselves, in this relevant
period, differed from one another on this question, and to what estent
they were inconsistent even with themselves on that point.
It is also a well-known fact that lawyers, discussing the various
problems which arose in regard to the mandates system, differed from
one another on this particular point. That again is not surpriçing, in view
of the fact thatthe mandate was in fact a novel internationalinstitution.
It did not fit in a ready made manner into the classical conceptions of
sovereignty-of a cession of temtory and the like-and a new under-
standing wasnecessary to asçign to this novei institution its exact place in
the concepts of international law.
We know, for instance, Mr.President, that manystudentsof the subject
looked upon the mandate institution aç something which involved a
cession of territory to the mandatories, subject, however, to conventional
obligations-treaty obligations-which comprised both the substantive
obligations under the mandate and the obligation of accountability to the
League. In other words, according to that view the mandate institution
was something in the nature of ownership subject to an onus-subject to
what we might call,in Ourlaw, a servitude-or what is called an eascment
in English Saw-çomething of the nature of a burden resting on title-
so that, if and when the League diçappeared, and if with the diçappear-
ance of the League that burden was seen as disappearing, then the
ownership itself blossomed forth into something absolute. (1use the term
ownership, of course, by way of anabgy-the concept here would be full
çovereignty purçuant to a cessionof territory in the beginning.) 1am not
well-known fact that manylawyers held that type ofviewofthe situation.a
This Court in 1950 showed that it was very fully aware of that fact-f
those differences of opinion which had arisen between lawyers in this
regard. That is why one finds that in its discussion of the basic question
whether the Mandate was still iexistence,the Court itçelf, in the main
opinion, and particularly Sir Arnold McNair in his separate opinion,
concentrated on questions of this kind. The Court emphasized that the
whoie concept of a cession of tenitory was inapplicable here; that itwas
not a question of cession of territory subject to treaty obligations, but
that the title that was given to a mandatory was a iimited one, that the
powers given were limited to the purpose of executing the trust which
was impoçed on the mandatory for the benefit of the inhabitants of the
territory. But 1am pointing to these various questions of what one might430 SOUTH WEST AFRICA
cal1 a legal nicety which arose between lawyers, between States, and
between al1interested perçons, as being a very natural explanation forthe
degree of vacillation and difference of opinion which manifested itself in
that period also between thetwo successive South African Governments.
And, Mr. President, what 1do want to emphasize at this particular stage
is that there was no difference of opinion whatsoever between the said
South African Governments on the question whether there was account-
ability under the Mandate to the United Nations. There the attitude
taken by the two Governrnents was exactly the same and absolutely
consistent.
It was not only so,as far as theSouth African Governrnents-those two
successive Governments-were concerned; it aiso applied to United
situation. A number of them,namelastI have said, expressed themselves to
the effect that the Mandate had lapsed. Others considered that the
Mandate had not lapsed, but our review willshowthat during the period
1946 to 1949there was almost complete agreement on the part of
United Nations Mernbers on the fact that, outside trusteeship, there
was no accountability in respect of administration over mandated ter-
ritories to the United Nations.
Then, Mr. President,there iça further respect in which the Applicants
approach this whoie review in the wrong manner, in our submission. It
relates to a confusion between twoother concepts which are realiy to be
kept separate-an attempt to equate or assimilate those two concepts.
There is, hlr. President, on the one hand, the concept of supervision by
an international organization of administration of a territory, and, on the
other hand, the concept of coming to an agreement with such an inter-
national organization about the future status of such a tenitory. The one
is the continuing concept of international supe~sion, the other isthat of
a specific arrangement made with an organization-an agreement made
with it regarding the future status of the territory. These two concepts,
as the Court will be aware, the Applicants attempted to assimilate in
their argument, and, 1 submit, completely without any justification
whatever. Notionally and as a matter of logic the two concepts are
entirely distinct. Under the concept of supervision by an international
organization, that is,one of a continuous process involving the passing
of value judgrnents over acts of government and administration asand
when they ariçe-depending on the policy purçued in the particular
organization. or on the specific mles that there may be in regard to the
exercise of its power of supervision-there may be a greater or a lesser
amount of interference in the acts of government and administration oii
the part of the supervisory authority. And that might happen at any
time. The whole process, as 1 have emphasized, is of a continuous and
recurring kind. It is, therefore,seen, from the point of view of the party
who submits to it in practice, as an extremely onerous obligation. How
onerous, would depend, of course, on the exact policy of the supervising
authority.
The othcr concept, Nr. President-thnt of coming to an agreement
with an organization-an international organization-about the future ,
status of a territory-is something quite different. It is something which
is confined to a particular occasion, that occasion being the attempt to
secure agreement between the State whichseeks itand theother Members
of the organization. It is an act which is intended purely to avoid subse- ARGUMENT OF MR. DE VILLIERS
43 I
quent disputes and controversies about the status of a territory. The
whole approach to a case of that kind on the part of States which may
refer such a question to an organization like the United Nations, appears
to be this: here we have an international organization, composed of the
large majority of the States in the world, and, if we can now, by agree-
solution to the question of the future of a particular territory, then that
should for al1practical purposes exclude further controversy and difficulty
about it-at any rate, controversy as to questions of the status of that
territory and the exact relationship between it and the State which
referred the matter to the international organization.
The fact, therefore, Mr. President, that such an agreement is sought
about a new arrangement in regard to the future status of a territory,
cannot by any stretch of imagination imply, or hold within itself, any
concept of submitting to the supervision of that organization regarding
administration of that territory.
There are many practical examples by which 1 can illustrate this
distinction. Let me take as a first exampie the.fina1 resolution of the
League Assernbly. The Court willrecall that in the last paragraph of that
resolution the League gave expression to a contemplation that other
arrangements between the mandatory powers and the United Nations
might be agreed upon. Nevertheless, the history of that resolution, its
wording, and al1 the factors with which 1 dealt yesterday and this
morning, demonstrate that on the part of the participants in that
resolution there was no concept of supervision by the United Nations
over mandated territories before such nelvor fresh arrangements rnight
be agreed to. The distinction between those two notions was quite clear
in the contemplation of the very States which were present at the time
of adoption of that final resolution. Andit stands to reason that it should
have been so. They contemplated that the new arrangements might have
results one way or the other, as my learned friends concede. The new
arrangements-the new agreements-mi ht involve trusteeship over a
territory previously under mandate, an f that trusteeship would then
the United Nations in respect of trusteeship. The arrangements might of
provide that a territory should become independent-a situation which
would involve no supervision whatsoever. Or the arrangements might
provide that a territory would be divided, as eventually happened in the
case of Palestine. Or they rnight have provided that there would be
incorporation of a territory with another territory, as was proposed in
regard to South West Africa. Surely, therefore, the mere fact that there
was a contemplation that such new agreements might be entered into
with the United Nations did not involve any concept ofsupervision by
the United Nations as a necessary corollary. It was sornethingwhich, if
itwas to originate, would have had to originate from a new agreement
with the United Nations.
The next example 1 would like to bring to the notice of the Court 1s
cases where reference to the United Nations for purposes of corning to a
new agreement about status did not concerna mandated ortrust territory
at all. Let us take, hIr. President, the case of Eritrea. That case was dealt
with in the Peace Treaty of Paris-the treaty with Italy--ofIOFebruary
1947 -n terms of that treaty it was decided that Eritrea would remain
under British control until the United Kingdom, France, the United432 SOUTH WEST AFRICA
States and the Soviet Union had decided on the territory's future. It was
further decided andagreed that if those four owerscould not agree, the
matter should be subrnitted to the Genera y Assembly of the United
Nations. In fact, the four powers could not reach agreement, and the
matter was then submitted to the General Assembly. On 17 May 1949
there was a vote on a resolution providing, interalia, that Eritrea should
be split into a western part,to be given to the Sudan, and an castern part,
to be ceded to Ethiopia; but this proposed resolution was rejected by
the General Assembly.On 21 November 1949 the Assembly adopted by a
rnajority of votes a resolution that Eritrea should form a federation with
Ethiopia. Onefinds the references, Mr.President, in the GeneraIAssembly
Oficial Records,Fourth Session, 250th meeting, dated21 November I949.
The reports from the First and the Fifth Committees which were con-
sidered, were documents A/1o8g and A/rxog, respectively. There waç a
minority proposal, supported, inter alia,by the Soviet Union, that
Eritrea should be made independent, but that was rejected.
Then, Mr. President, wehave a case where parties try to agree amongst
between themselves on the future of a territory, pursuant to a situation
which has arisen after a war. The territory is not a trust territory; it is
not a mandated territory; it is not under any international supervision
whatsoever. They, however, agree amongst themselves that if they
cannot corne to agreement on this particular point, they will submit the
matter to the international organization; and when a decision is given by
that international organization which leads to complete agreement upon
the subject, the question is settled. Then one gets a settled condition, and
the potential dispute isno longer in existence. It is, Mr. President, an
action similar to action which is taken by a State through ordinar?;
diplomatic channels after there has been an upheaval like a revolution,
or a çimilar condition,and that State or government therefore finds it
necessary to obtain international recognition. It is the same idea,
although not exactly fitted into the same Iegalmouldç and legal concepts,
of course. Iam not suggesting that; but there is the same idea of eradi-
cating a difference of opinion, and disputeabout it, soas to have a settled
situation.
That is indeed the rnanner in which the South African representative
at the last session of the League expressed his conception of the matter.
May1 refer the Court to the statement in the Counter-Memorial (II), at
Page 47 :
". ..it is the intention of the Union Government, at the forthcoming
formulate its case for according South-West Africa a status under
which it would be internationally recognized as an integral part of
the Union".
Another example, Mr. President, falling in the same categorp as
Eritrea, is the caseof West Irian-the same category in the sense that
this was not a trust temtory, or a territory under international super-
vision-and yet the question of its future was, at a particular stage,
referred to the United Nations bp the powers concerned. There was an
agreement of 15 August 1962 betrveen the Netherlands and Indonesia,
and that provided, amongst other things, that after the General Assembly
of the United Nations had accepted a joint resolution proposed by these ARGUMENT OF MR. DE VILLIERS 433
two States, the Netherlands would cede West Irian to a new international
body to be called the United Nations Temporary Executive Authority,
Thistemporary body would cede West Irian to Indonesia on r May 1963.
We find the reference to this in United Nations document AI517o.There
was a draft resolution sponsored by Indonesia and the Netherlands
(reference AIL 393))incorporating this agreement, which was proposed
to the General Assembly and adopted by it on zr September 1962
(reference in the records of the General Assembly, 17th Session, 1127th
Meeting, pp. 49et seq.)-again, Mr. President, a case where there was no
question whatsoever of international supervision, but where thjs proce-
dure was adopted in order to get a settled condition-in order to achieve
a new arrangement with a settled practical resuit-inregard to the future
status of a territory.
The fact that this had nothing to do with any concept of international
supervision was, indeed, stressed in the debate by the representative of
India, &Ir.Krishna Menon. We find this at page 57 of this debate. His
words wcre these :
"We aIsowant to Saythat this period of the presence ofthe United
Nations is in no sense a period when its authority will be exercised
as a kind of supervisory authority in the pIace. The United Nations
will have very limited functions."
Palestine itself, of course,Mr. President, afforàs a sirnilar example,
escept for the fact that Palestine was a rnandated territory. But there,
too, the filandatory Power, the United Kingdom, in referring the matter
to the United Nations, made it perfectly clear that this was not submit-
ting the case of Palestine to United Nations supervision. The details of
the situation in that regardhave been brought intodispute by my learned
friend's argument, and those details will be dealt with at a Iater stage
when dealing with the attitudes of the various States upon the question
of mandates at that particular time. 1 am merely mentioning at this stage
in broad outline what, in Our submission, and as the details will later
show is clearly a case where a matter was referred to the United Nations
for a solution asto the further status of a territory, although there was
no anticipation whatsoever and noconception ofinternational supervision
over that temtory.
Air. President, the United Nations Charter, Article 1, might usefdy
be referred to in this regard, to indicate the wide objectives of the Organi-
zation and the sense, the @radical sense, in which questions of this na-
ture rnay be brought before that Organization. In paragraph I,Article I,
we find one of the purposes of the United Nations stated as follows:
principles of justice and international law, adjustment or settlement
of international disputes or situations which might lead to a breach
of the peace."
In the third paragraph we find this:
"To achieve international CO-operationin çolving international
problerns of an economic, social, cultural, or humanitarian char-
acter ..."
In the fourth paragraph, Mr, President, we find: "To be a centre for
harmonizing the actions of nations in the attainment of these common
ends."434 SOUTH WEST AFRICA
It seems perfectly obvious that when a matter of that kind isreferred
to the United Kations, itneed have no bearing whatsoever on any ques-
tion of supervision of administration.
1 know, Mr. President, that the Applicants have a rather ingenious
argument in this regard. They go back to the time of the League and of
the mandates systern, and they let us look at the interrelationship be-
tween Article 6 and Article 7, paragraph r, of the Mandate. They Say
Article 6 provided for supervision, and that the body assigned to that
task of supervision was the Council of the League.
Now, Article 7 (1) provides for a possible modification of the terrns of
the Mandate-a modification which may, or may not, lead to a change
in the statusof the temtory. Machinery is agreed upon whereby it wodd
be possible to effect such a modification. The rnachinery provides for
agreement between the mandatory and an organ of the international
organization. For that purpose, the choice is made of that same organ
which exercises the supervisory function, and my learned friendç Say,
and 1 agree with them entirely, that ifone makes an agreement of that
kind, itiç sowid common-sense to make one's choicein that way because
that is the organ which would know most of the intirnate details of the
problem and would be in the best position to exercise a judgment on the
question whether there isto be amodification ofthe termsof the Mandate,
or not.
So far, so good, 3lr. President, but it does not follow that that com-
bination is al~vaysto apply. In particular, Mr. President, it does not fol-
Iow that the reverse process is to apply. We must remember that in the
League system we begin with an agreement on the part of al1concerned
that there is to be international supervision. That wc find in Article22
of the Covenant. It is only when we come to the mandate instruments
that we find this provision in Article 7 (1).It does not appear in the
Covenant itself; it is something consequential-something subsequently
agreed upon. That js the order of events, therefore, in the case of the
arrangements actually made in the case of mandates. But, Mr. President,
if one starts from the initial position that there is no conception of inter-
national accountability, and there is an intention of making provisionfor
a change in the status of the territory, or an idea of taking actual steps
in order to secure a change in the status of the territory, then the mere
organization about it, surely cannot possibly carry with it a contempla-l
tion that there must also be this more onerous obligation, about which
nobody has said anything, namely that of international supervision by
that organization over the actual administration of the territory.
The logic simply does not work, Mr. President. It does not apply.
It is, then, against this background, and with an appreciation of these
distinctions, that the facts of the pcriod under consideration are to be
reviewed and dealt with.
In comrnencing their analysis of the relevant historical occurrences,
as they cdled them, at the United Nations between the years 1946 and
1949 he Applicants said the following, in the verbatim record at page
153, srcfi~a:
"It is quite clear that events at the United Nations during the
autumn of 1946,that is to Say, several months after the dissolution
of the League of Nations, indicate the general understanding of the
United Nations Organization and of the Respondent, that the man- ARGUMENT OF MR. DE VILLIERS
435
dates had not lapsed and were subject to the supervisory authority
of the United Nations."
Jlr. President, this period during the auturnn of 1946,referred to by
the Applicants in this passage which 1have read, may perhaps be called
the crucial period in issue between the Parties in this case in regard to
the question now under dissussion-the question concerningArticle 6, or
international accountability-because, Mr. President, the Applicants ad-
mit that as from September 1947 there were explicitly clear statements
on behalf of the South African Government at the United Nations; in
other words, during the time of what I have terrned "the Smuts Govern-
ment", there were these explicit statements which rejected any idea of
United Nations supervision in respect of South West Africa. They are on
record; the Court knows what they are. But the Applicants suggest that,
somehow, these staternents are to be seen as involvinga change of ground
inconsistent with a prior cornmitment on the part of the South Africanas
Government on this question.
Mr. President, 1 shall show, with respect, that this contention rests
purely on a fallacy. The scrutiny of the events, and 1submit that it has,
for purposes of this confiict between the Parties, to be a very close scru-
tiny, will show, in my submission, that there is no substance in this
suggestion on thepart ofthe Applicants at all. But it does make it neces-
sary, as I have said, to look very closely at the record of the period April
1946to September 1947.
Ishaii refer, fist, to the Applicants' contentions in that regard, and,
in answering thcm, 1 shall endeavour to make clear what the attitude of
the Respondent is in regard to this period. The Applicants refer, first,
to a memorandum prepared by the Secretariat of the United Nations-
that isUnited Nations document A1117 of 16 October 1946. In that
document refercnce was made to a letter addressed by the Secretary-
General on 29 June 1946 to "the States administering territories now
held under mandate", those being the words used in the letter. Those
States, of course, included the Union of South Africa, andthe Applicants
also drew attention to the following expressions in the letter, namel
"States adrninistering trust territories now held under mandate" and:
aïso, "the mandatory powers". These are quotations from the verbatim
record at page 153.supra.
Xow, Iilr. President, the Applicants also say that according to that
memorandum the Secretary-General received from the mandatory pow-
ers replies which indicated that four of the mandatory powerç under-
stood that their mandates were still in existence, notwithstanding the
dissolution of the League. He contended that they had indicated that,
by the use ofsuch expressions as "the mandnted territory ofNewGuinea",
"the mandated territories of Togoland and the Carneroons", "the terri-
tories in Africa under United Kingdom mandate", "the Mandated Terri-
tory of South West Africa". This we find in that same verbatim record
at pages 153 to 154, supra. Now, Mr. President, this statement by the
Applicants may becorrect, as faas it goes. Iisalso correct, as the Appli-
cants Say, that Belgium gave no indication of her view as to whether it
considered the territory of Ruanda-Urundi still to be under mandate,
and that New Zealand, in its reply, referred to Western Samoa as "the
former mandated territory". This indication by Xew Zealand is the op-
posite of the view expressed by Australia, the United Kingdom, France436 SOUTH WEST AFRICA
and South Africa. Those features are there in the report. That is certainly
Secretary-General of the United Nations may have been at the timeof ase
to the continued existence of the mandates-views whichfrom the very
memorandum itself appear not to have been unanimous-there isnothing
in the memorandum which suggests that either the Secretary-General or
any of the States in question heId the view thatthe United Nations had
replaced the League as supervisory authority or organ under the man-
dates. There is nothing on that point in the memorandum. Indeed, Mr.
President, as we shall indicate later in our argument, al1of those States,
with the sole exception of Belgium, expressed, in the proceedings oi the
United Nations, contrary views in the years 1947 and 1948,making it
clear that, in theiview, there was no supervisory power on the part of
the United Nations in respect ofmandatesnot converted into trusteeship.
So, Mr. President, that memorandum and the covering letter and the
replies thereto do not assist the Applicants one jot towards establishing
that there was submission to United Nations supervision.
Next, Mr. President, Applicants deal with the Respondent's sub-
mission to the United Nations in 1946of its proposal regarding the in-
corporation of South West Africa.
The Applicants refer, inthis regard, to the statement made by the
Respondent's representative to the Fourth Committee of the General
Assembly on 22 January 1946when he stated, amongst other things,
that, when the freely expressed will of both the Euro ean and Native
populations of South West Africa had been ascertainet the decision of
the Union "would be submitted to the General Assembly for judgment".
(P. 154. supra,and Counter-Memorial, II, p. 42 for a fuller text of this
particular statement.)
Mr. President, 1wasdealing with the Applicants' arguments concern-
its proposal regardjng jncorporatjoofSouth West Africa instheiterritory
of the Union. The Applicants Say that the meaning of the words "for
judgment" was elucidated by the Respondent's Prime Minister in a
staternent to the Fourth Committee on 4 Novernber 1946w ,hen he, that
is, General Smuts, said:
". .international responsibility precluded it from taking advantage
of the war situation by effecting a change in the status of South
West Africa without proper consultation either of al1the peoples of
the Territory itself, or with the competent international organs".
(p.154, SUPY~~.)
In addition, hir. President, Appiicants quote froma memorandum sub-
mitted to the United Nations by Respondentwith regard to this proposed
incorporation, and a coveringletter dated17October 1946 . he reference
is to the verbatim record, pages I5j to 156,swfira,and that letterwas
United Nations document A/rz3.
Nowthe Applicants make a point of the fact that the letter itself twice
referred to South West Africa as the "mandated territory", and they
Say that the memorandum was based on the assumption that the Man-
date was still in force. Onthe same point they cite portions of the merno-
randum in whichexpressionswere used such as-"the termination of the
mandate", "the future status of the mandated territory", "the manda-
toryJ',and so forth. That isstillin the verbatim record, pag155to 156. ARGUMENT OF MR. DE VILLIERS 437
They then quote, Mr. President, three short passages from statements
made in the Fourth Committee regarding Respondent's proposa1for the
incorporation of South West Africa. The fmstpaççageisfrom a statement
by Respondent's then Prime Minister, General Smuts, to the effect that
Respondent could not ignore the wishes of the people of South West
Africa who wanted incorporation, and "had no alternative but to bring
their wish before the General Assembly". That we find in the same ver-
batim record, page 157 ,u$m.
The other two statements which they quote, one by Mr. Dulles of the
United Statesand the other by Mr.Liu Chieh of China, will be dealt with
Iater byus.
And now comes the Applicants' contention, or conclusion, based upon
these factors to which 1 have referred-that is stated by them in the
verbatim record at page 158, s@ra-
"Thus by the end of 1946 Respondent had not, at any time, in-
dicated a view that the Mandate for South West Africa had lapsed,
or that the United Nations had no supervisory authority over the
Territory.
On'the contrary, Respondeiit had on several occasions indicated
its understanding that the Mandate was still in force and effect and
that the United Nations had supervisory authority."
Mr. President, of courseone part of this conclusionis correct, asve
intimated before. The Respondent's Government at the time was, as
appeared from its conduct and the expressions it used, apparently of
the opinion that as a matter of law the Mandate had not corne to an
end with the dissolution ofthe League. But apart from that, al1these con-
clusions stated by the Applicants in this passage, .which 1 have read
to the Court, are unfounded, particularly two, on which the ~vhole
passage turns-the kst one being that by the end of 1946 Respondent
had not, at any time, indicated a view thatthe United Nations had no
supervisory authorit y over the Territory ;and the second, the state-
ment that Res ondent had on several occasionsindicated its understand-
ing that the dited Nations had supervisory authority. Neither of those
statements is supported by the facts reIied upon by the Applicants, or
by any facts on record, or by any relevant evidence that we could find.
There was no such occasion at any time on which Respondent had
indicated its understanding thatthe United Nations had supervisory au-
thority. And the suggestion that the first indication to the contrary was
given by Respondent after the end of 1946and not before, is also factu-
ally incorrect. In this respect, Mr. President, there is one item in the
record of events which isvery significant and which was omitted by my
learned friends, on behalf of the Applicants, in their review of this part
of the history. That is a fact dealt with in Respondent's Counter-Me-
morial, II, at page 54.
The Applicants cite passages from statements made by General Smuts
in adàressing the Fourth Cornmittee in November 1946,with regard to
the incorporation proposal. In the verbatim record at page 154, supra,
they refer to the statement of 4 November 1946,and at page 157 of the
same record they refer to an extract from a statement of 16 November
1946.But, Mr. President,in sodoing they omit to mention a very perti-
nent statement made by General Smuts in adebate of 13November 1946,
when he explained that it would not be possible for Respondent, and that438 SOUTH WEST AFR1C.I
Respondent was not obliged, to submit a tmteeship agreement for South
West Africa. And he went on to Say that ifthe Assembly did not agree
toincorporation,as was then being proposed by him, then Respondent-
"...couldtake no other course than to abide by the declaration it had
made to the last Assernbly of the League of Nations to the effect
that it would continue to administer the territory as heretofore as
an integral part of the Union, and to do so in the spirit othe prin-
ciples laid down in the mandate".
The passage is set out in full in the Counter-Mernorial, II, at page 54.
It may be noted, Mr. President, that General Smuts used the expres-
sion "in the spirit of the principles laid down in the mandate". It has
that correspondence of phrase with what was stated by the United
Kingdom representative, regarding the principles of the Mandate, in the
statement at the final League session. Andin regard to the spirit of the
principleç laid dorvn inthe Mandate, that accords with an expression
which, the Court will recall, was used by the United Nations Special
Cornmittee on Palestine.
General Smuts proceeded to add something which had not been con-
tained in the statement to the last Assembly of the League, when he
said this:
"In particular the Union would, in accordance with Article 73,
paragraph. (e) ,of the Charter, transmit regularly to the Secretary-
General ofthe United Nations 'for information purposes, subject to
such limitations as security and constitutional regulations might
require, statistical and other information of a technical nature re-
lating to economic, social and educational conditions' in South
West Africa."
That is at page 54 of the Counter-Memorial (II).
Mr. President, I demonstrated yesterday, and the Applicants have
conceded, that the subrnission of information in accordance with Article
73 le) of the Charter does not amount to report and accountability as
contemplated in Article 6 of the Mandate, and that it does not involve
supervision as that term was understood in the mandates system.
1 dernonstrated, Mr. President, in relation to the Australian statement
at the last session of the League Assembly, that an attitude of being
obliged to send the limited information under Article 73 (8) is neces-
sanly inconsistent with the view of being under the more extensive and
onerous obligation of reporting and accounting under the Mandate.
General Smuts' statement is, therefore, very significant in that on this
first occasion after the àissoIution of the League on which any South
African representative ever said anything to any of the international
organç on the question of reporting, it was brought directly into line
with the provisions of Article 73 (e) of the Charter. He did not use the
word reporting-he said that the Union would "in accordance with
Article 73 (e) ... transmit regularly to the Secretary-General ... for
information purposes" this limited information.
The statement of General Smuts was ambiguous in one respect,
>Ir.President, when read in its full context, and that was in the use of
the phrase "in accordance with"-"in accordance with Article 73 (e) of
meant that General Smuts was expressing a contemplation that there ARGUMENT OF MR. DE VILLIERS
439
was, in law, an obligation on the Union Government to act in accordance
~4th that Article in respect of South West Africa, as long as it remained
outside trusteeship. That is one possibility. The otherossibility is that
he was merely indicating something which he woul a do voluntarily,
although not obliged thereto. and that the type of information wliich
as that referred to in Article (e).That is, asa1dSay, the ambiguity in-
herent in the use of this expression ''inaccordance with Article(e)".
This ambiguity was cleared up in later statements made in regard to
this attitude of the South African Government by its representatives
at the United Nations. It was then made clear that the latter of these
two alternatives was what was intended. But that is not my point for
the moment.
What is important for Iny present purposes is this, that the mere fact
that General Smuts indicated that there would be no reporting and
accounting beyond this limited extent to which he was referring here,
that in itselfMr. President, indicated an attitude entirely inconsistent
with acceptance of an obligation of reporting and accountability, and
it intimated at the same time, in fact, that there would be no such
reporting and accounting under the Mandate, with the United Nations
as the supervisory organ.
This factor is of fundamental importance in asseçsing what Respon-
dent's statements and actions during the time under review amounted
to and what significance is to be attached thereto. The statement there-
fore, Mr. President, entirelyrefutes the assertion by the Applicants that
by the end of 1946Respondent had not at any tirne indicated a view that
the United Nations had no supervisory authority over the Territory.
The statement is also important because of the time at which it came.
It was the very first occasion after the dissolution of the League upon
which itwas appropriate for the Respondent to Say anything on the
subject at all-upon which it could be said to have become incumbent
upon the Respondent to Say anything to international or ans. It was
that the statement came. It came after the submission of the application
for incorporation of SouthWest Africa-of the proposa1in that regard-
which had corneunder covering letter of 17October, the Court will recdl.
That was only about six monthsafter the dissolution of the League, and
the statement to which 1 have referred came in the debates which fol-
lowed upon the submission of that proposal to the United Nations. It
came in the very next month-in November 1946.
After the dissolution of the League, Mr. President, the Respondent's
ht concern in respect of South West Africa was to bring this application,
or this proposal,inregard to incorporation, before the Generai Assembly
as soon as possible and it did so. Ididso at the very first opportunity,
that being when the General Assembly met again in the fa11of 1946,and
it was, as1Say,in relation to this very proposal during the debate, when
the question arose in the Fourth Cornmittee: "Now suppose the applic);
tion for incorporation is not acceded to, what are you then going to do?
And weget this reaction from General Smuts that there was no obligation
to submit a trusteeship agreement and that the intention of his govern-
ment was to proceed with the status quo-to administer the Territory
in accordance with the principles oi the Mandate-in the spirt of those
principles-and, in addition, hadded that there would be this reporting44O SOUTH WEST AFRICA
-this submission of information of a Iimited character-under Article
73 (8).
The Iater attitude, Mr. President, expressed in a letter of July 1947,
to which 1shall refer, and in the statements by the South African re re-
sentative, Yr. Lawrence, to the United Nations in September an{ in
November of that year, wasentirely consistent with the attitude taken
up by General Smuts.
Mr. President, this consistency of the attitude of the Respondent
appears more clearly, when we have regard to these various facts men-
tioned bythe AppIicantç in support of their statement to the contrary-
understanding that the United Nations had supervisory authorit y. Whents
those statements are analysed it will be found in each instance, Mr.
President, that they have no bearing whatsoever on this question of
supervisory authority at all.
The Applicants appear to argue that inasmuch as the Respondent
had placed its proposai regarding the incorporation of South West
Africa before the General Assembly for judgrnent the Respondent had,
therefore, thereby recognized that the United Nations had supervisory
powers over the Mandate. That appears to be their argument. Now this
contention, in our submission, is entirely unfounded for the reasons
which 1gave this morning as to the distinction between the two concepts
-the concept of submitting to supervision by an international organi-
zation, and the concept of approaching that organization with a view to
agreement about the future status of a territory. The object of Respon-
dent's proposal for incorporation to the GeneralAssembly was very clear
in the context. It was to obtain agreement between the Respondent and
the Unite dations to a change in the status of South West Africa.
The Court will recall that it was conternplated in the last resolution
of the League Assembly that "other arrangements may be agreed" upon
between the United Nations and mandatories as to the future of man-
&ted territories. That very contemplation, corning as it did from a
unanimous decision of the Assembly of the League, indicated a view that
such a course wouid have effective results in practice; thatif and when
there should be agreement between the mandatories and the United
Nations on points of that nature in regard to the future status ofman-
dated territories, then that would be a result that would from a practical
point of view be effective, in that it would be recognized by other mern-
bers of the international community.
And therefore, Mr. President, it was quite natural to regard the United
Nations as one of the competent international organs for that purpose.
1 might point out that when General Smuts spoke of the "competent
international organs", he was speaking in general-he was speaking of
what the contemplation had been inwartime, before the creation ofthe
United Nations Organization and while the League was still the com-
petent international organ; but he spoke in general because he was
really speaking ex Poslfaclo of what the contemplation had been before,
namely that there could, for purposes of bringing about a change of
status of thisnature, be a change in competent international organs, and
there had, in his yiew, occurred such a change, there being a competent
organ, that is,competent in the sense that when agreement was reached
effective in the sensethat it would be recognized byother members of the ARGUMENT OF MR. DE VILLIERS 44I
international community. And 1have pointed out that this was the very
way in which the matter was put by the Respondent's statement to the
League on the subject in April of 1946.
And Mr. President, the very fact that the Respondent, through
General Smuts, in the debates on this same topic, indicated that it
recognized no supervisory authority on the part of the United Nations,
that it would merely submit information in accordance with Article 73 (e)
-that in itseIf refutes the suggestion that Respondent saw, or was under-
stood as seeing, its submission of the incorporation proposa1 as a sub-
mission to United Nations supervision. Surely the evidence on a subject
of that nature is to be viewed as a whole, and not in its pieces the whole
here being that there is a submission of the incorporation proposal, and
in the debates on it the South African representative, the Prime Minister,
intimates clearly that there is no submission to United Nations super-
visory authority. That part of the evidence surely cannot be ignored,
and the other part relied upon as if that carried any intimation of an
acceptance of the United Nations as a competent authority from asuper-
viBut the Applicants, Mr. President, by a process of what one might
cd1 telescopic reasoning, seek to apply a passage in the 1950 Advisory
Opinion in such a way as to find support for their contention-in such
a way as if sornething in support of their contention had been stated in
the 1950Opinion. I shalI have to refer the Court to the relevant passages,
both in the Opinion and in this argument of the Applicants, to trace how
this particular point was made by them and to analyze its value or Iack
thereof.
The Court willrecall that there occurs in the1950 Opinion at page 142
the following passage :
"By thus submitting the question of the future international
status of the Territory to the 'judgment' of the General Assembly
as the 'competent international organ', the Union Government
recognized the competence of the General Assemblyin the matter."
Now, Mr. President, that "matter" with which the Court was dealing in
this passage was the matter of modification of the status of South West
Africa. That was the "matter" dealt with by the Court as an entirely
separate question, put to it with a view to its advisory opinion-an
entireIy separate question from that of continued supervision under
Article 6 of the Mandate. The question of the modification of the status
of the Territory was dealt with in the Opinion at pages 141 to 143. It is
dealt with under a heading of its own, namely Question (c), as had been
put by the United.Nations to the Court. Question (c) read:
"Was the Union of South Africa the competence to modify the
international status of the Territory of South-West Africa, or, .in
mine and modify the international status of the Territory?"o deter-
and it is in the course of discussion of that question that the passage
occurs which 1 have read.
The other question, namely whether the Union of South Africa was
obliged to submit to supervision by.the United Nations after the dissolu-
tion of theLeague, is discussed in a much earlier portion of the Opinion,
at pages 136 to 138, and in between came the discussion of certain other442 SOUTH WEST AFRICA
questions, particularly the question whether there was an obligation to
submit to a trusteeship agreement.
So, Mr. President, the words in the passage "competence of the
General Assembly in the matter" therefore had to do only with modifica-
tion of status and nothing with the question of supervisory organs.
Immediately after this passage the Court proceeded, in this later part
of its Opinion dealing with modification of status,to Saythe following-
1 read at the top of page 143:
"The General Assernbly, on the other hand, affimed its compe-
tence by Resolution 65 (1)of December qth, 1946. It noted with
satisfaction that thestep taken by the Union showed the recognition
of the interest and concern of the United Nations in the matteru-
still, Mr. President, therefore, "in the matteru-this same matter of the
question of modification of the status of the Territory.
Now we find that the Applicants, by a peculiar process ofpiecemeal
reference, transplant these statements and tindings of the Court ont0
the question of supervisory powers-the question in respect of which
they werenot intended to bestated by the Court at allAt page 154. SU$YU,
of the verbatim record the AppIicants say this-that "The subrnjssion
of the question of the termination of the Mandate to the General Assern-
bly is of particulat significance".They then quote in this context the
passage from the 1950 Opinion at page 132,I have read, which indicated
that the Union, by submitting the matter to the judgment of the Assern-
bly, recognized the competence of the Assembly in the matter. On the
very next page of the verbatim record this passage is again quoted, but
now we find it is quoted ina different context-it is quotedin the context
of a submission made regarding the lapse or existence of the Mandate
and of supervisory authority. 1would like to read that to the Court-the
introductory reasoning which leads up to the quoting of this passage
again at this particular page. Mylearned friend, Mr.hloore, is speaking:
"Since, in the autumn of 1946,Respondent had not yet begnn to
argue that the Mandate as a whole had lapsed, or that the United
Nations had no supervisory authority over its administration of
South West Africa, the only reasonable inference to be drawn iç
that reached by this Court in 1950, which is: [and then foliows the
quote again]
'By thus submitting the question ... the Union Government
recognized the cornpetence ofthe GeneralAssembly inthe matter'."
Later in that same record, Mr. President, at page 158of the verbatirn
record, the Applicants then refer to General Assembly resolution 65 (1),
which featured in this further passage which 1 have read to the Court
regarding the question of modification of status. And the Applicants
there Say this:
"A final observation concerning this point is that the General
Assernbly, by resolution 65 (l), ' ... affvmed itscompetence ... '
over the mandated territory of South West Afnca."
These Iast words, Mr. President-"over the mandated territory of South
West Africa"-are of course the Applicants' own words, but just pnor
to those they had put in quotes the words ". .. amed its compe-
tence ...", being the words used by the Court in this different context
of competence regarâing a possible modification of status, It will be ARGUMENT OF MR. DE VILLIERS
443
observed therefore that something said by the Court in the 1950 Opinion
regarding modification of status is gradually modified into "competence
Court will see, is only a half-way stage-the Afprocess goes further, and
the full circle is joined at page 15SUPY oL h,e verbatim record. Here
the Applicants Say this :
"Whereas by resolution 65 (1)of 14 December 1946 the General
Assembly 'affirmedits competence' (to use the phrase of this Court)
over the administration of South West Africa, 'this competence
was in fact exercised bythe General Assernbly in resolution 141 (II)
of November ~st, 1947 ...' " [and they say] "[see the rg50Opinion
at page 1371.''
Now, Mr. President, if we then look at the Advisory Opinion at page 137,
it becomes clear immediately from the page reference that that falls in
the earlier part of the Opinion dealing with the question of supervisory
jurisdiction in respect of South West Africa. As 1 indicated to the Court
before, that part of the Opinion appears on pages 136 to 138, and that
is where we find this statement by the Court to the effect that by resolu-
tion 141 (II) ofI November 1947 the General Assembly had exercised a
cornpetence-a competence relating, in that context of the Court's
reasoning, to the question of supervisory powers.
And so, Mr. President, statements from the portion of the Opinion
dealing with the change of status have been transplanted into, and
linked with, the statement in the different portion dealing with super-
vision, to produce what 1 submit to be an entirely distorted result,
which isnow imputed to the Court as if it werethe reasoning of the Court.
In fact,the statement of the Court regarding competence exercised by
resolution 141 (2)had no connection with the nature of the competence
which the Court later, and in an entirely different part of its Opinion,
found to have been affirmed by the General Assembly through its reso-
luThe AppIicants have used this device of interposing their own words
-the words being "over the administration of South West AfricaH-
between the two unrelated phrases taken from the Court's Opinion;
and they thereby create the misleading impression that the Court in its
1950 Opinion expressed the view thatthe General Assembly, by its reso-
lution 65 (I), regarding the incorporation proposal, affirmedcompetence
over the administration of South West Africa, that is, in the sense that
the United Nations had supervisory authority. The Court never said that.
By this process-to which I could give a name, but 1 would rather desist
from doing so-something is imputed to the Court which is the Applil
cants' contention, but which was certainly never saidby the Court. The
Court could not have expressed any such opinion, because it was clear
that resolution 65 (1) had nothing to do with supervision of mandated
administration.The resolution merely stated that the General Assernbly
was unable to accede to the proposal forincorporation, and that it recom-
mended that South West Africa should be placed under the trusteeship
system. There was nothing in that resolution to indicate thathe General
Assembly was regarding itself as possessing supervisory jurisdiction in
respect of South West Africa.
Apart from this process relating to the Court's reasoning in 1950,
Mr. President, the Applicants in Our submission in fact advance no SOUTH WEST AFRIC.4
444
argument regarding Respondent's proposal for incorporation, in support
that the United Nations had superviso~ authority. Those words, in the
Applicants' contention, wefind in the verbatirn record at page58 ,ufira.
.There is nothing which they advance in support of that contention that
would indicate an understanding of that kind. The only argument we
fuid is this processof reasoning with reference to the Court. They do,
however, Mr. President, seek to make the point that the debates in the
Fourth Committee of the General Assembly in the autumn of 1946
"indicate clearly thnt the general understanding of the Members of the
United Nations and of the Government of the Union of South Africa
was that the Mandate was still in force and that the United Nations
had general supervisory authority over Respondent's administration of
the territory". That is in the verbatim record at page 157, supra; and
in support of this statement they quote three short extracts from
speeches made in the Foiirth Committee during November 1946.
The first extract is from the speech of General Smuts, to which 1have
already referred. That isthe extract in whihe referred to the fact thatthe
people of South West Africa wanted incorporation, that the Union
Government could not ignore that wish and in which the words relied
upon by the Applicants appear, viz. that the Government "had no alter-
native but to bring their ivish before the General Assembly".
The other two extracts were from speeches made by Mr. Dulles of the
United States of Arnerica and Mr. Liu Chieh of China. We find the
references in the verbatim record at page157 ,upra.
Now, Mr. President, in neither of these two speeches,nor in the address
of General Smuts, was any view indicated regarding supervisory author-
ity orsupervisory functions. Mr. Dulles merely stated that "the informa-
tion at the disposa1ofthe General Assembly did not enable it to approve
that could be said to haveany bearing on the question whether there was
a conception that the GeneralAssembly as at that time was possessed of
supervisory jurisdiction in respect of South West Africa, 1simply do not
understand.
Mr. Liu Chieh of China expressed the view that "South West Africa
should be placed under the Trusteeship System rather than continued as
a Mandate". How that could have any bearing on the question of super-
visory jurisdiction, 1do not know.
General Smuts, in using the expression that the Union Government
had no alternative but to bringtheir wish before the General Assembly,
was speaking in the context of what the wishes of the peaple-inhabi-
tants-of South West Africa were. He was indicating that there were
these strong wishes on their part, and he, as representing the mandatory
government, therefore could not sit still aboutthe matter; somethinghad
to be done about it. In that senshe had no alternative but to take steps
for incorporation that would be internationally recognized, and therefore
to adopt the course which he was adoptingin bringing the matter before
the General Assembly. SureIy in the context nothing mare emanates
from that statement than this general purport, and how that can be sa~d
to have any bearing on a question of supervisory jurisdiction is again
sornething which I do not understand.
Not one of these speeches, therefore, Mr. President, in any way
supports the Applicants' contention of a general understanding that the ARGUMEST OF MR. DE VILLIERS
445
United Nations had general supervisorp authority over Respondent's
administration of the territory. We shall later show that in fact the
general understanding among Members of the United Nations was
indeed the very opposite, but 1 am stiIl concentrating for the time being
on the acts and statements of the Respondent in this particdar context
in order to see whether they afford any basis whatsoever for these
arguments on the part of the Applicants.
Now, in the context ol'tkis argument of the Applicants regarding the
significance to be attached tthis referring of the incorporation proposal
to the United Nations judgment in 1946, the Applicants advert to
something ivhich they caU "The near identit y of Respondent's actions
with regard to proposals for incorporation, taken in 1935under the
League ,. ."That is the end of the quote from the verbatim record at
pagThis may be a convenient place, therefore, to deal with this matter of
what happened in 1935 n order to indicate how completely the Appli-
cants can take events out of their context; put a distorted significance
upon them, and then use that distorted significance as a basiç upon
which to build an argument.
My learned friend, Mr. Moore, on behalf of the Applicants, stated as
follows in the verbatirn recorat page 139, supra:
"In 1935 Respondent put before the Permanent hlandates Comrniç-
sion a proposa1 for the incorporation of South West Africa as a
fifth province of the Union, but when met with a critical attitude
by most of the members of the Commission,decided not to go ahead
with its plan for incorporation."
1 stress these clear words, Rlr. Preside:the Respondent put before the
Permanent Commission a proposa1for incorporation, but when met with
a critical attitude Respondent decided not to go ahead with its plan for
incorporation.
In the verbatim record we finno authorityquoted for thiç proposition
stated by my learned friend, Mr. Moore, and no authority was subçe-
quently furnished by the Applicants to us. Later on the same day,
hlr. President, rny learned friend, Mr. Moore, referred to astatement by
the South African representative to the Permanent Mandates Commission.
Quoting Mr. Moore's words, the statement waç made "in response toa
critical reaction from the Commission on the proposed incorporation of
South West Afnca as a fifth province of the Union". That is in the
verbatim record at page 155 ,upra.
Then this statement made by Respondent's representative himself is
quoted from the Counter-Memorial, IV, page 80. I need not read that
statement now because it is not relevant. Mypoint concerns Mr.Moore's
phrase, "the proposed incorporation ofSouth West Africa".
Mr. President, when regard is had to the factsset out in the pleadings,
with full reference to the relevant authorities, it irnmediately becomes
clear that there is no justfication for using this language at all-of
tdking ofanyproposalfor incorporation on the partof the South African
Government at the time, of talking of any plan for incorporation at the
time-of talking of any proposed incorporation of South West Africa a~a
fifth province of the Union asat that tirne.
1 now give the Court brief references to what the pleadings contain on
this point. In the Memorials, the Applicants stated that "the Union gave446 SOUTH WEST AFRICA
indications at an early date of its intention to incorporate the territory
of South West Africa as afifth province". That is inthe Mernoriais,1,page
39. The Applicants then referred to a debate during the sixth session of
the Permanent Mandates Commission, and the Mernorials continued:
"Thereafter, the proposa1 frequently drew the Commission'ç attention
and, in 1934 ,he Legislative Assembly of South West Africa adopted a
resolution contemplating the incorporation of the Territory." That is
still in the Memorials, at page 39.
Then followed, Mr. President, in the Memorials, a brief discussion of
of the Van Zyl Commission by the Respondent Government, appointmenof the
findings of the Van Zyl Commission, of the reaction of the Union Govern-
mentthereto, andof theattitude of the Permanent Mandates Commission.
All this we find in the Memorialç,1, at pages 39-40.
We found it neceçsary to deal in our Counter-hiemorial with these
facts, because of the impression created by the Appiicants' exposition
that there was a proposai or plan forincorporation at the time O* the
part ofthe Utaion Govertament. The references to Our dealing with the
matter are to be found in the Countei-MemoriaI, II,pages 29-31, and
IV, pages 78-81.And what we stated in regard to this 1935epiçode was
as follows. Firstly, we pointed out that during 1934 the Legislative
Assembly of South West Africa, as a reaction to certain Nazi activities
in the territory, adopted a resolution which urged, interalia, that South
West Africa "be administered as a fifth province of the Union, subject to
the provisions of the ... Mandate". Those were the words forming the
gist of the resolution adopted in South Weçt Africa by its Legislative
Assembly. We give that in the Counter-Mernorial, IV, page 79.
We pointed out next that during 1934the Permanent Mandates Com-
mission discussed this resolution, merely because it had come to their
attention, and not because any proposa1 in that regard had been put
before it by the Respondent Govemment. We pointed out that although
opinions between individual members of the Commission differed, the
majonty who spoke tended to regard such an arrangement aç being in-
compatible with the Mandate. As 1 Say, individual members differed on
that point, but the majority who took part in that discussion appeared
to think that such an arrangement would be incompatible with the Man-
date.
mission's resolutionhwasamerely to this effect. It was-ut that the Com-
"... to [reserve]its opinion as to the compatibility of the course pro-
posed by the Legislative Assembly with the mandate system until
it had been informed in due course of the point of view adopted by
the mandatory Government in this connection and been acquainted
with al1the factors of the problem". (IV, p. 80.)
Again, this is an indication ofthe fact that the Union Government did
not indicate what its point of viexvwas and, whether it intended doing
anvthina about the matter. The discussion rnerelv emanated from the
fa& of t6e passing of this resolution by the ~e~içlathe Assernblyof South
West Africa.
We pointed out next that, in 1935,the South African representative
toId the Permanent Mandates Commission that the Constitution Com-
mission had been appointed-that was the Van Zyl Commission-that ARGUME'TT OF MR. DE VILLIERS
447
the purpose of that appointment was, inter alia, to considcr the future
constitution of South West Africa, and that South Africa, and 1quote
from his hvords,"wouId never take any action in this respect until it had
first communicated its intentions to the Mandates Commission itself".
The Permanent Mandates Commission welcorned this statement, which
we find in the Counter-Mernorial, II, p. 30, and IV, p. 80.
The Constitution Commission, or VanZyl Commission, then expressed
the view that there was no legal objection to the administration of South
West Africa as a fifth province of the Union subject to the terms of the
Mandate. The Union Govenunent endorsed this Iegal opinion but, hlr.
that it felt "that sufficient grounds have not been adduced for taking
such a step". That we give in the Counter-Mernorial, IV, p. 81.
Al1we have at this stage is a legal opinion to the effect that it would
be competent ,and not inconsistent with the Mandate, to administer
South West Africa as a fifth province of the Union. Nevertheleçs, the
Union Government did not intend to take any active steps in that regard
because it found that, from a practical point of view, sufficient grounds
had not been adduced for taking such a step.
When this wascommunicated to the Permanent Mandates Commission,
the Commission expressed no view on-
". . a method of administration the scope of which it has had no
opportünity of judging and the adoption of which, according to the
statement of the mandatory Power, is not contemplated". (II, p. 31.)
Consequently, the Permanent Mandates Commisçionconfined itself "to
making al1legal rese~ations on the questions". (Ibid.)
So that exposition is crystal-clear. There was no suggestion of any pro-
posal by the South African Government, and no suggestion of any plan
for incorporation. In so far as there was any diçcussion in this regard, it
emanated from a resolution of the South West Africa Legislative Assem-
bly on the question of possible administration, under the Mandate, of
South West Africa as a fifth province of the Union. Viewswere expressed
by the Constitution Commissionas to the legality, or otherwise, ofa pro-
posal of that kind, but there was no proposa1 whatsoever even to put
that into effect, let alone to have any incorporation of South West Africa
into the Union.
Now, Mr. President, we find that after me had given this exposition,
there was no challenge of it in the Applicants' Reply at all. Indeed, at
page 252 of the Reply, IV, there is a reference to a statement made dur-
ing the 26th session as a reactiontowhat is correctly stated there to have
been "a resolution of the Legislative Assemblyof South West Africa...
advocating the incorporation of South West Africa as a fifth province of
South -4frica 'subject to the provisions of the said Mandate' ".
So, there is no contesting of our survey at all, and yet Applicants now
corne fonvard with what 1have read out to the Court in this regard from
their oral statement. In particuIar, Mr, President, no "proposal" as al-
leged \vas "put before the Permanent Mandates Commission" ;secondly,
the actual proposal, the resolution of the Legislative Assembly, did not
involve the incorporation of South West Africa, but merely a particular
rnethod of administering it under the Mandate, and, thirdly, itfollows
that the Respondent did not decide, inthe Applicants' words, "not to go
ahead with its plan for incorporation".448 SOUTH WEST AFRICX
cants can make such completely inaccurate aHegations at this stage, after
the full discussion of the incident in the pleadings, in which our version
was apparently accepted and not challenged by the Applicants in their
Reply, and without putting any fresh authority before the Court for the
version which is now given to it.
It need hardly be said, Mr. President, that on this true view of the
events of 1935they in no way lend support to the contentions now ad-
vanced by the Applicants regarding the significance and effect of Re-
spondent's submission in 1946to the United Nations of its proposals re-
garding incorporation of South West Africa.
The Applicants Say that the Respondent's statement in 1935 to the
Permanent Mandates commission,namely thatit "would never take ac-
tion in this respect [that is, to administer South West Afnca as a fifth
province] until it had first comrnunicated its intentions to the Permanent
Mandates Commission itself" (IV, p. 80) and those are the Applicants'
wordç-was a recognition on Respondent's part of the Permanent Man-
dates Commissionas "the competent international organ". (P. 155,szrpru.)
They argue from there that submission of a similar proposal to the Gen-
eral Assembly of the United Nations in 1946,must be construed as being
a recognition, on Respondent's part, of the General Assembly of the
United Nations as the competent international organ.
Mr. President, surely the analogy is completely false, and there is no
substance in this comparison at all, quite apart from the fact that there
was, indeed, no proposa1 regarding incorporation whatsoever in 1935.
The Permanent Mandates Commission, it will be recalled, had, in the
first place, itself noautliority to take decisions regarding mandates; it
could not impose its wiIl upon any mandatory ; it was an advisory body
advising the Council of the League, which was the supervisory body.
For that reason alone, the analogy fails. But it fails, hfr. President, for
tion involved of a change of status. The debates which arose in the Per--
manent Mandates Commission really concerned the question of whether
such administration of South West Africa, as a fifth province of the
Union, was compatible with the present status of the territory as a man-
dated territory. It was a legal question, therefore, narnely whether, if
there was to be such administration, that could occur within the frame-
work of the existing status of South West Africa asa mandated territory,
or whether Iegally a change of status would be involved. That was the
subject of debate in the Permanent Mandates Commission. But the mat-
ter never came to any proposa1 or to any consideration being given. to
the possibility of a change of status, for thvery reason that the Union
Government never made a practical proposa1 to the effect that it was
going to administer the territory as a fifth province of the Union.
The Union Government treated that question, which was purely one
of desirability. as a matter of policy. It decided at that stage that there
was no such desirability. Therefore, at that particular time the matter
was purely one relating to discretion on the part of the mandatory and,
in so farasit rnay be relevant, of supervision in respect thereof on the
part ofthe supervisoryorgans of the League. This was, therefore, purely
and simply a question, to the extent to which it had developed at that
particular stage, which could only involve a matter of supervision and not
a question of a change of status. It had never corne to a situation where ARGUMENT OF MR. DE VILLIERS 449
there was.acceptance on al1sides that something could only be done by
effectinga change of status, so that there was a proposa1to be considered
for a change of status.
There is, therefore, Mr. President, no andogy whatsoever between the
two events, andnothingwhich can help the Applicants in their contention
that, by bringing before the United Nations General Assembly in 1946
the question of apossible change of status of South West Africa, any-
thing was being suggested or conveyed by the Union Government re-
garding a question of supervision.
Next, Mr.President, we consider the question of Respondent's conduct
after its proposa1forincorporationwas rejected by the GeneralAssembly.
The Applicants introduced this part of their argument with the follow-
ing statement :
"Although Respondent in September 1947 indicated for the first
time a view that the United Nations had no supervisory authority
over South West Africa, statements made by Respondent up to
that time, during the year 1947, indicated precisely the opposite
view." (P. 158,s@ra.)
Mr.President, insupport of this statement the Applicantscite passages
from two communications addressed by Respondent to the Secretary-
General of the United Nations in the year 1947.
The first communication was a letter dated23 July 1947 in which Re-
spondent repiied to the GeneraI Assembly's invitation in resolution 65
(1) of14 Decernber 1947 to propose a trusteeship agreement for South
West Africa.
The Court will recall that there was that resolution65 (1)in response
to the incorporation proposal, inviting South Africa to submit a proposed
trusteeship agreement for South West Africa, andthis letter was written
in response to that invitation.
Respondent in its letter stated that it could not ignore the wishes of
the inhabitants of South West Africa who wanted incorporation, and
Respondent said :
"In the circumstances, the Union Government has no alternative
but to maintain the status quo and to continue to administer the
Territory in the spirit of the existing Mandate." (P. 15sufiru.)
Another passage in the letter, which was quoted for their purposes by
'theApplicants at the next page of the verbatim record, read asfollows:
"It will, however, be recalled that the interestofthe native in-
habitants were fully provided for wjth specificsafeguards under the
Mandate and that the administration of South West Africa and the
tory ever since the inception of the mandatory system. They feel
confident, therefore, that their continuedadministration of the Tem-
tory in the spirit of the Mandate will equaliy merit the satisfaction
of the United Nations.
To that end the Union Government have already undertaken to
submit reports on their administration for the information of the
United Nations."
advance the contention that Respondent evidencedidena,recognition of thets
supervisory .authority of the United Nations. In Respondent's submis-45O SOUTH WEST AFRICA
sion, the passages do not bear out that contention whatsoever. The im-
portant fact of this.letter-thcruciaiiy important fact-isthat when it
speaks of reports-"the Union Govemment have already undertaken to
submitreports on their administration for the information of the United
NationsH-the reference is to the speech by General Smuts in November
of the previous year where he made it ciear that those reports would
be furnished in accordance with Article 73 (e) of the Charter. Twas,
in fact, the oniy previous occasionon which anything at al1had been said
on the subject of submission of reports and that was, in fact, the occasion
on their administration for the information of the United Nations".s
As 1explained earlier, Mr. President, there could, in terms of this ex-
planation of General Smuts, be no accounting and supervision as had
been the case during the time of the League of Nations, but merely sub-
mission of certain information for a lirnited purpose, and ifirecisely
and al1that was confirmed by the Ietter of 23 July 1947 .he letter,
therefare, does not in the least support this contention of the AppIicants
re arding recognition of the supervisory authorofythe United Nations.
ln fact, Mr. Preùdent, it is intererting to hote, as wgo along, the
'links between these various relevant and crucial statements on behalf
of the Respondent-first,the statement at the finalsessionof the League,
of an intention to continue with the present administration for the bene-
fit of the inhabitants, in accordance with the obligations of the mandate,
then, a reference by General Smuts in November 1946,back to what had
tenance of the status quo and that he intended also to send re orts in
accordance with Article 73 (e),and, finally, this letter of 23 Ju y refer-
rin back again to the previous statement by General Smuts where he
haf made it clear that his only reference to giving information to the
United Nations at al1was in accordance with Article 73(e).
[Public hearing of7 Afiri11965]
Mr. President and honourable Members, 1was dealing at the conclusion
yesterday with the subject of Respondent's conduct after its proposa1
for incorporation was rejected by the General Assembly. 1 referred in
that regard to an argument advanced by the Applicants in the Oral Pro-
ceedings to the effect that statements by Res ondent, upto September
1947 ,ndicated precisely the opposite viewfbp 1.58-15 9,pra.) AS 1
argument by reference to two communications addressed by Respondents
to the Secretary-General of the United Nations in the yea1947.
The first one was the letter 23July 1947 ,ith which 1have dealt-
the letter responding to the invitation of the Assembly in resolut65n
(1)to submit a trusteeship agreement for South West Africa. 1submitted
that this letter does not support the Applicants' contention regarding
recognition of the supervisory authority of the United Nations, but that,
on the contrary, the letter identified itself with the previous statement
by General Smuts in this regard, in which he had made itquite clear
that the information to be furnished would be of the lirnited nature in
accordance with Article73 (e) of the Charter.
The second cornmunicatioii, hfr. President, relied upon by the Appli-
cants in our submission, likewise does not support their contention. ARGUMENT OF MR. RE VILLIERS 451
That is the communication dated 22 September 1947r, eferred to by the
Applicants at page 159 ,upra, ofthe verbatim record. Al1that that letter
intimated was that the Legislative Assembly of South West Africa had
fdly discussed General Assembly resolution 65 (1)of 14December 1946
and had passed a resolution expressing appreciation of and thanks for
the firm stand.taken by General Smuts before the United Nations Or-
ganization in connection with the proposed incorporation sf South West
Africa, It added, Mr. President, that the Legislative Assembly-
"trusts that the United Nations Organization will grant the wishes
of the largernajority of the inhabitantsof this Territory, European
as well as non-European". (P. 1.59,supra.)
Now, Mr. President, this resolution 65 (1)of the United Nations dealt,
of course anly with the proposa1 in regard to incorporation. It made no
discussion and contents of the resolutionionbyfthe Legislative Assembly
and its expression of its appreciation of and thanks for the stand taken
by General Smuts can, therefore, have no bearing whatsoever on the
question of supervision. '
Perhaps the Applicants' contention is that the sting lies in the tail of
this resolution, where the Legislative Assembly said that it trusted that
the United Nations Organization would gant the wishes of the large
majority of the inhabitants. But, Mr. President, even that, at the most,
contemplates a competency on thepart of the General Assembly to grant
such a request-a request relating to the future status of the Territory-
in other words, again a matter which is totally unrelated to the subject
of a supervisory power on the part of the General Assembly.
We now corne, Mr. President, to statements made on South Africa's
behalf, as from September 1947,which, on the Applicants' representation
of the situation, are to be seen as constituting a completvoltefaceon the
part of the Respondent. It will be recalied, Mr. President, that the Appli-
cants Saythat it was only in September 1947that Respondent "indicated
for the first time a view that the United Nations had no supervisory
authority over South West Africa". (P. 158, supra.)
Later the Applicants put this point as follows: "Itwas not until the
autumn of 1947 that supervisory authority of the United Nations was
questioned." (P. 166, supva.)
Now, Mr.President, this first statement is factually incorrect, ahave
already demonstrated-the statement to the effect that it was in Septem-
ber that Respondent first indicated a view that the United Nations had
no supervisory authority.
The second statement, namely that it was notuntil the autumn of 1947
that this supervisory authority of the United Nations was questioned-
isnot onlyincorrect in the same respect, but givesan incorrect impression
of what actually happened when the staternent to which the Applicants
refer, was made. The impression created, Mr, President, is that the
United Nations was already exercising, or was seeking to exercise,super-
visory authority over the Territory of South West Africa and that South
Africa, after at first agreeing toor acquiescing in, this situation, or.re-
maining silent about it, then turned round and questioned that authority.
Mr. President, in fact, nothing of that kind occurred. Up to September
pression of view, either by Respondent, or sbyw,any other memberno of-the452 SOUTH WEST AFRICA
United Nations, that the United Nations had superviçory authority in
respect of South West Africa-none whatsoever, either from Responl
dent's side or from the side of any other Member of the United Nations.
In these circumstances, in Our submission, there could have been no
questioning of authority in September 1947 and; in fact, the statement
which the Applicantshave in mind did not take the form of a questioning
linkbetween these events in a somewhat fuUerform than we gave themnd the
in the pleadings,particularly in order to meet this argument-thpresen-
tation of the.facts-on the part of the Applicants.
The matter began in this way: A question was asked by the represen-
tative of Denmark at the thirty-first meeting of the Fourth Committee
of the General Assembly on 25 September 1947 and 1 wish to read in
that regard from the Summary Records, General Assembly,OficialRec-
ords, SecondSession,Fourth Cornmittee, page 8.
1
"Mr. Lannung (Denmark), considered that there was no Iegal ob:
ligation on the UnionofSouth Africa to submit a trusteeship agree-
ment. He noted with appreciation statements bythe Govemment of
the Union of South Africa that the Territory would be adrninistered
iUnion of South Africa to be good enoughto explain certain passages
ofdocument A/334, especially with regard to theslatus quoand the
transmission of reports,to indicate if possible, wastin the mind
of his Government asto the procedure to be followedin examining
the information transmitted, and to state whether the Union of
South Afnca would agree to the submission of petitions." . .
May I point out, Mr. President;the context of this debate. It was con-
cerned, inter alia, with document Al334 (Fourth Cornmittee, Second
Session,p. 133)i;.e., the letter23fJuly 1947which wediscussedyester-
day-the very letter on which the Applicants rely as indicatinintheir
wOiUrs,2 rthat that letter was the one to which 1 aIso referred when 1
commencedthis morning-the letter written in response to the.invitation
of the General .Assemblythat a trusteeship agreement should be sub-
mitted. in resgect of South West Africa. It was in that letter, after the
request had been declined for reasons given therein, that the statement
was made that the status quo would be maintained and that, with refe-
rence to the question of reporting, the Union had already indicated its
willingnessto submit reports for the information of the United Nations.
The fact that this document Al334 was this very sameletter appears, Mr.
President, from this same volume of the Summary Records of the Fourth
Cornmittee, to which I have just referred,.at page 134There the docu-
ment is set forth asan annexure in that volume.
That was the subject of discussion. It was the fact that South Africa
wûs not acceding to the invitation of the General Assembly to submit a
trusteeship agreement and its intimation that it would maintain the
status quo but submit reports for the information of the United Natiovs.
That, then, was the subject-matter on which Mr. Lannung of Denmark
asked for further clarification, remarking that, in his view, there was,
also,no legal obligation on the Union to submit a trusteeship agreement.
Mr. Lawrence, on behalf of the South African Government, replied
two meetings later, two days later, Le., at the ,33rd Meeting of the ARGUMENT OF MR. DE VILLIERS 453
Fourth Committee on 27 September 1947. There is,Mr. President, a
Surnmary Record of his reply in the sarne volume to which 1 have just
referred, at pages 15-16. The extract which we quote in our Counter-
Mernoriai, II, at page57,is not an extract from ths Summary Record,
It is a fuller report which we found in a report of the Fourth Committee
to the General Assembly. That report was an annexure in the Records
of the PIenary Sessionsfor that penod, and we give the reference in our
footnote I at page57 of the Counter-Memorial (II) ;the reference is U.N.
Duc. A/422, in G.A.,O.R., SecondSess., PlenaryMeeti~gs,Vol. II, p.1537.
1should like for present purposes to refer the Court to both the Sumrnary
Record and this more detailed version of what Mr. Lawrence said. From
the SummaryRecord at page 15 it appears clearly that the information
was supplied in reply to the request of the Danish representative at the
31st Meeting regarding clarification of Document A/334, Now, for the
fuller version of what Mr. Lawrence said,1 should like to refer the Court
to the other source, which 1 have mentioned: the annexure in the Rec-
ord of the PIenary Meetings, It starts at pag1537 a,nd is a report of the
Fourth Comrnittee to the General Assembly. 1 read at page 1538:
"At the thirty-third meeting of the Committee on 27 September
1947, in response toa request by the representative of Denmark for
amplification of the proposal to maintain the stutus q~o in South
West Africa and to continue to adrninister the Territoryin the spirit
of the Mandate, particularly with regard to the United Nations and
its organs, the representative of the Union of South Africa explained
that the annual report whichhis Government would submit on South
West Africawould contain the same type ofinformation onthe Terri-
tory as is required for Non-Self-Governing Territories under Article
73e of the Charter. Zt was the assumption of his Government, he
said,that the report wodd'not be considered by the Trusteeship
Council and would not be deaIt with as if a trusteeship agreement
had in fact been concluded. He further explained that, since the
League of Nations had ceased to exiçt, the right to submit petitions
would no longer be exercised, since that right presupposes a jurisdic-
tion which would only exist where theris aright of control or super-
vision, and in the view of the Union of South Africa no such juris-
dictionis vested in the United Nations with regard to South West
Africa."
Mr.President, there was, therefore, nothing of the nature of questioning
authority which was being asserted against the position of the Union of
South Africa. It was purely a statement made in reçponse taa request
for clarification of a position which had already been stated in the earlier
letter o23 July (Document A/334),and every itemin this statement was
in response to that request.
1 may in that regard point out, also, that this statement resolved the
arnbiguity to which1 referred before,which waspresent inGeneral Smuts'
statement of the previous year, in November 1946 ,hen he .had said
that information would be submitted in accordance with Article 73 fe).
The Court will recall that 1 pointed out that that did not make it clear
whether General Smuts accepted that there was an obligation in law to
deai with the situation in terms of Articl73 (el,or whether he merely
indicated that he wouId voluntarily, although not obliged to do SO,act
in accordance with Article 73 (e)-i.e.,submit information correspond-454 SOUTH WEST AFRICA
ing with that required under Article 73 (e).That ambiguity is cleared
up in this statement by Mr. Lawrence, in which he said that the informa-
tion-the annual report-
"would contain the sarne type of information' on the Tenitory as
is required for Non-Self-GoverningTerritories under Article 73 (8)
of the Charter". (II, p.57.)
That point is, if anything, made even clearer by one statement in the
Surnmary Record. In the Record of the Fourth Cornmittee deliberations
to which 1 referred before, at page 16, we read this sentence:
"The Union of South Africa did not claim that South West Africa
was a colony, but itwas willing to subrnit annual reports like those
required for the Non-Self-Goveming Territories under Article
73 (ej." (G.A.,O.R., 4th Cornmittee, Second Session, at p. 16.)
In other words, he made it perfectly clear that there was no conception
that the case fell under Article 73 (e) as a rnatter of law, but that to
subrnit information of the kind as is provided forin Article 73 (e) would
bea voluntary action on the part of the Governrnent of the Union of
South Africa.
So, Mr. President,there was no questionhere of United Nations super-
visory authority being chaIlenged or questioned in any way; this was
merely an amplification of an attitude which had previoudy been ex-
pressed, and the way in which the explanation originated makes it per-
fectly clear that there is no substance whatsoever in the Applicants'
suggestion of a change of front, or a change of ground, on the part of
the South African Government. Thiswasan explanation given in Septem-
ber 1947,some three months after the letter of 23 July-an explanation
meant in that letter. It gave more details as to what the attitude con-s
veyed in the letter was intended to mean.
Later, during that same session of the United Nations in November
1947, Mr. Lawrence had occasion to revert to this point, and he stated
it in much the same way as before, but in slightly different words. In
the Counter-hlemoriaI, II, at page 57, we quote his statement in the
General AssembIy, as follows :
". ..the Union of South Africa has expressed its readiness to submit
annual reports for the information of the United Nations. That
undertaking stands. Although these reports, if accepted, will be
jurisdiction in respect of this territory they will serve to keep the
United Nations informed in much the same way as they will be kept
informed in relation to Non-Self-GoverningTerritories under Article
73 (elof the Charter."
Again the position was made explicitly clear, 1 may just emphasize the
wording of that first sentence : "the Union of South Africa has expressed
its readiness to submit annual reports for the information of the United
Nations." It isstriking that the language is really of the same import as
that contained in the letter of 23 July on that same point.
Upon analysis, therefore, Mr. President, it is in Oursubmission clear
that whatever conclusions may be drawn from Respondent's conduct
over the years 1946-1947asto its view regarding the continuation of the
Mandate, the record shows that, with regard to the question of super- ARGUMENT OF MR. DE VILLIERS 455
vision, the Applicants are entirely wrong when they say,.as they said
in the verbatim record, at page 166,sztfiva,that the relevant statements
and actions of Respondent over the period "support the conclusion that
...the UnitedNations replaced the League as the supervisory organ over
the Mandate". Indeed, Mr. President, in our.subrnission the only conclu-
sion which can be drawn from Respondent's actions and statements
over that period points in the opposite direction and, as has been made
clear in Respondent's pleadings, Respondent's attitude in this regard has
been consistent throughout. We deal with this whole subject of later con-
duct on the part of the Respondent in the Counter-Memorial, II, pages
57-96, and there,is no dispute between the Parties, as far as 1 can see,
on the aspect of later conduct,except'for a minor point witwhich 1shdl
deal later. The essence ofthe dispute in this regard seemsto centre around
the period upto September 1947 A,pplicants! contention being that there
was a change of attitude on Respondent's part in Septernber 1947. For
the reason1 shave just given 1 submit that that contention is entirely
witNow, Mr. President, as to çubsequent events, events subsequent to
September 1947, it is not necessary to go into detail-can very briefly
refer tosome of the salient features.
In September 1947Respondent, in compliancewith its earliervoluntary
undertaking, submitted to the United Nations a document containing
information regarding South West Africa. The information was of the
type and of the limited nature mentioned in Article 73(e)of the Charter.
The document was referred to as a report, but it in no way resembled the
report which Respondent had made in the life-time of the League in
tems of Article 6 of the Mandate.
Indeed, Mr. President, when the report was examined by the Trustee-
ship Council, mention was made in the debates of the fact that that re-
port consisted of only 56 pages, whereas, so the debates revealed, Re-
spondent's report to the League Council in 1939, in cornpliance wit1-1
Article 6 of the Mandate, had consisted of about 250pages. We findthat
reference in the record of the Trusteeship Council'ssecond session, 15th
meeting, 12December 1947 ,t page.483.
In addition, Mr. President, it was,as the Court is aware, customary
during the life-time ofthe League ofevery mandatory to have a represen-
tative present at the deliberations of the Permanent Mandates Comrnis-
sion, when the annual report for the particular mandated territory was
discussed.
Throughout the existence of the League, Respondent was always
represented at such discussions, and, in fact, Respondent was responsible
for introducing the practice of sending the Administrator of the Terri-
tory himseIf to represent the Mandatory at such discussions. But, Mr.
President ,when this information was submitted to the United Nations
in 1947there was, in this regard also, a markedly different attitude on
the part of the Respondent ;the Respondent declined to send a repreçen-
tative to attend the discussion in the Trusteeship Council.
Al1this was stiil in 1947, Mr. President. I mentioned yesterday the
difference of opinion which appears to have arisen between thesuccessive
Governments-the Smuts Government, and the later Government ofDr.
Malan-on the legal question whether the Mandate was stiU in force.
I emphasized that on the question of the United Nations not having any
supervisory jurisdiction the attitude of the two Govemments was exactly456 ÇOUM WEST AFRICA
the same, and wnsistent. Al1these events took place in 1947,in the time
of the earlier Government.
The Trusteeship Council, Mr. President, at its second session1947,
decided asfoilows (1 read frorn the record of the Trusteeship Council's
second session, first part, sixth meetingI December 1947, p. 132):
"The Secretariat would be requested to furnish the Government of the
in accordance with a resolution of the General AssembIy,and to Saythat
the Government's representative wauld be welcome,if it wished to send
one." A Ietter was duly sent to the Respondent on2 December 1947,to
which the Respondent replied on 5 December 1947 .One finds the refe-
rence inthe same volume to whjch 1have referred-a recordof thetenth
meeting, 5 December rg47, p. 294.) The reply read, in the relevant part:
"1am directed to thank you for your letter of and instant notify-
ing that the Report of South West Africa,which was submitted for
the information of the United Nations, is to be examined on Decem-
ber 8th. MyGovernent isappreciative ofthe finalparagraph of the
letter, and, although it willnot avail itself of the courtesy expressed
therein, desires me Say that if, after exarnination, any supplemen-
particulars within the Chapters of the Report are desiredit
wl be happy to transmit further available data in writing, for your
information." (Trusteeship Council,2nd Session,1st Part, 10thMeet-
ing, 5 December 1947p ,. 294.)
In the result, Mr. President, the report was discussed in the Trustee-
ship Councilwithout any representative of the Respondent Government
being present. After consideration of the report, the Trusteeship Council,
on 12 December 1947, passed a reçoIution which in its relevant parts
reads as follow:
"Waving taken note of the communication of the Government of
the Union of South Africa dated 5December 1947;
Resolvesthatthe report in certain particulars appears to be incom-
plete and that opportunity should therefore be taken of the offerof
the Government of the Union of South Africa to transmit, if desired,
further available data;
That the Government of the Union of South Africa be invited to
supply supplementary information before the month of June rg48
on the questions attached hereto in order that the Council may be
able to submit its observations to the General Assembly at its next
session." (Truçteeship Council,and Session1stPart, 15th Meeting.
12 December 1947, p. 509.)
The reference is to the same volume as before, the record of the fifteenth
meeting of the Trusteeship Council12 December 1947p ,age 509.
In response to this request, Mr. President, the Respondent submitted
further information under cover of a letter dated 31 May 1948.The rele-
vant part of the letter is quoted in the Counter-Mernorial, II, page 59,
and theletter is instructive because it contains an apt summary of the
developrnent of the matter up to that point, and of the attitude of the
Government of the Union of South Africa in that regard. I read,Mt.
President, from the quotation at page 59 of the Counter-Mernoria(II).
The Respondent there-
"re-iterate(d) that the transmission to the United Nations of in-
formation on South WestAfrica, in the form of an annual repartor ARGUMENT OF MR. DE VILLIERS
457
any other form, is on a voluntary basis and is for purposes of infor-
mation only. Theyhave on several occasions made it clear that they
recognize no obligation to transmit this information to the United
Nations, but in viewofthe wide-spread interest in the administration
of the Terriiory, and in accordance with normal democraticpractice,
facts and figures as are readily at their disposal..eThe Union Gov-
ernment desire to recall that in offering to submit a report on South
West Africa for the information of the United Nations, they did ço
on the basis of the provisions of Article 73(e) of the Charter. This
Article calls for 'statistical and other information of a technical na-
ture' and makes no reference to information on questions of policy.
In these circumstances the Union Govemment do not consider
that information on matters of policy, particularly future policy,
shodd be included in a report (or in any supplement to the report)
which is intended to be a factual and statistical account of the ad-
ministration of the Territory over the period of a calendar year.
Nevertheless, the Union Government are anxious to be as helpfd
and as CO-operativeas possible and have, therefore, on this occasion
replied in full to the questions dealing with various aspects of policy.
The Union Government do not, however, regard this as creating a
precedent. Furthermore, the rendering ofreplies on poiicy should not
be construed as a cornmitment asto future policy or as irnplying any
measure of accountability to the United Nations on the part of the
Union Government. In this connexion the Union Government have
noted that their declared intention to administer the Territory in
the spirit of the mandate has been construed in some quarters as im-
plying a measure of intemational accountability. This construction
the Union Government cannot accept and they would again recaI1
thatthe League of Nations at its fina sessionin April1946, explicitly
refrained from transferring its functions in respect of mandates to .
the United Nations."
repeated in a statement to the Fourth Cornmittee on g November 1948. waç
1wish to read only a brief extract from that statement. The Respondent's
representative said :
"the Union could not admit the right of the Trusteeship Council
to use the report for purposes for which it had not been intended:
still less could theTrusteeship Council assume for itself the power
claimed in its resolution, i.e. 'to determine whether the Union of
South Africa is adequately discharging its responsibilities under the
terms of the mandate ... ' Furthermore, that power was claimed
in respect of a territory lvhich was not a trust territory and in re-
spect of which no tmteeship agreement existed. The South African
delegation considered that in so doing the Council had exceeded
its powers." (II, pp. 59-60,)
Mr. President, our Counter-Mernorial also sets out the attitude adopt-
ed by the Respondent in a letter dated II July 1949to the Secretary-
General. The relevant part of this letter is quoted at page 61 of the
Counter-Mernorial (II), and 1 wish to read just a brief portion of it,
because much of it is repetitive of what 1.have just read.out of the
earlier communications :458 SOUTH WEST AFRICA
"The recommendation of the General Assembly that the Union
should continue to supply information on its administration of
South West Africa has been given most careful consideration.
It wiUbe recalled, however, that the Union Government have at
no time recognized any legal obligations on their part to. supply
information on South West Africa to the United Nations, but in a
spirit of goodwill, CO-operationand helpfulness offered to provide
. the United Nations with reports on the administration of South
West Africa, with the clear stipulation that this would be done on
a voluntary basis, for purposes of information only and on the
distinct understanding that the United Nations has no supervisory
, jurisdiction in South West Africa."
I stop there for the moment. This was the letter, Mr. President, which
proceeded to state the reasons why the Union Government had come to
the conclusion that it would serveno good purpose to continue to submit
these reports. 1do not have to gointo alithese reaçons ;the Union Govern-
ment pointed out that it hoped that the Trusteeship Council-
"would approach its task in an entirely objective manne; and
. examine the report in the same spirit of goodwill, CO-operation and
helpfulness as had rnotivated the Union in making the information
available.
These hopes have not been realized. Instead th; submission of
. information has provided an opportunity to utilize the Trusteeship
. Council and the Trusteeship Cornmittee as a forum for unjustified
criticism and censure of the Union Government's administration not
only in South West Africa but in the Union as weU.Inferences and
. deductions have been drawn from the information submitted which
are quite inconsistent with facts and realities. The misunderstand-
ings and accusations to which the United Nations discussions of this
subject have given rise have had repercussions both in the Union
and in South West Africa, with deleterious effectson the maintenance
of the harmonious relations which have hitherto existed and are so
. essential to successful administration. Furthemore, the very act of
submitting a report has created in the minds of a number of Mem-
bers of the United Nations an impression that the Trusteeship
Council is competent to make recommendations on matters of
interna1 administration of South West Africa and has fostered other
misconceptions regarding the statuç of this Territory.
In these circurnstances the Union Government can no longer see
that any real benefit is to be derived from the submission of special
reports on South West Africa to the United Nations, and have
regretfdy come to the conclusion that in the interests of efficient
administration no further reports should be fonvarded.'In coming
to this decision the Union Government are in no way motivated by
a desire to withhold from the worId factual and other information
regarding South West Africa publisked in accordance with the cus-
tomary practice of dernocratic nations, and information of this
nature previously embodied in annual reports to the League of
Nations or the United Nations will continue to be made available
to the general public in the formof statistics, departmental reports,
reports by the Administrator to the South West African Legislature,
blue books, and other governmental pubIications." (II, pp. 61-62.) ARGUMENT OF MR. DE VILLIERS 459
Mr. President, the later history makes it clear that this attitude on
thepart of the Respondent was maintained throughout, and the Appli-
cants, as 1understand them, do not argue to the contrary.
In the result,1 submit that the record clearly shows that, in so far as
Respondent's acts and statements are concerned, it at,no tirne consented
to or recognized United Nations supervision over the Mandate. On the
contrary, as from'the time that the United Nations began operations,
Respondent indicated that there would be no accounting and no super-
vision, and Respondent acted accordingly throughout.
It rnay, at this stage, Mr. President, be convenient to deal with a
further point which the Applicants made regarding conduct on the part
of Respondent. This is the one exception to which 1referred before con-
cerning conduct on Respondent's part after September 1947 to which
reference was made by the Applicants in their argument.
They said according to their verbatim record:
nqtwithstanding ~eç~ondent's ne& assertion in 1948 that
the Mandate as a whole had lapsed, Respondent indicated several
tirnes that it was still possessed rightsunder the Mandate Agree-
ment for South West Africa". (P. 163, supra.)
For this proposition Applicants rely on three statements made during
1948 by Mr. Eric Louw, Respondent's representative, in the course of
debates in the General Assembly-Plenary and Fourth Cornmittee.
Now, Mr. President, let me say at once, before dealing with these
statements, that Respondént does not, in its submission to this Court,
contend that if the Mandate haç lapsed, Respondent would, neverthe-
less, retain rights or powers under the, Mandate. That is not our con-
held by lawyerspo'atvarious tirnes before this Court pronounced on thees,
subject in its Advisory Opinion of 1950 ,uch a result would have been
a logical possibility. If the Mandate were to be viewed-as 1 indicated
yesterday it was apparently viewed in terms of certain theories-as in-
volving a cession of territory subject to ntreaty obligations (the treaty
obligations being the obligations under the Mandate, the trust obligations
operating for the benefit of the inhabitants, the additional obligations
of submitting to the League's supervision in that regard), one could have
the result that the treaty obligations could fa11away, and that the ses-
sion would then operate as vesting sovereignty absolutely in the manda-
tory. That, we know, was a view which was propounded. It is in confiict
with the subsequent finding of the Court in that regard in the Opinion
of 1950.It is not a view which 1am submitting to the Court as one which
ought to be accepted. 1am only pointing out that, on the basis of viewing
the situation in that liglit, the result arrived at (namely that the powers
or the rights, which the Mandate conferred, could remain in existence
without the legalobligatio wnsich were contained intreatieç, continu-
ing to be binding upon the Power to which the cession had been made)
would have been a perfectly iogical one. And the attitude could then be
that the sacred trust, as provided for in treaty obligations-which treaties
would have fallen away, according to that theory-would no longer have
Eegalforce, although the moral obligation to act in accordance with the
spiritofthe Mandate, would still exist andstill be recognized by the Power
concerned.
Whether that was a theory which Mr. Louw had in mind when he460 SOUTH WEST AFRICA
made these staternents,or whether he approached the matter on a much
more practical footing, in refemng to the poiicy of acting in accordance
with the spirit of the Mandate, is not clear to me on reading these state-
rnents. Some of them appear to have indications one way; some, the
other way. The attitude is not fully explained in any of them. For
instance, Mr. President, the kst statement made by Mr. Louw, on 18
November 1948,when he addressed the Fourth Cornmittee with regard to
a draft resolution which recomrnended,inter dia, that South West Africa
be placed under the Tmteeship System (p. 163, supra), suggests that
Mr. Louw may quite possibly have had in mind either of these alter-
natives which 1 have mentioned-either the alternative that, on a par-
ticular theory of la~, the obligations codd have falien away, leaving
the rights or powers under the Mandate, or, the more simple alternative
that, although the Mandate lapsed in lotoas a matter of law, there was
a course of conduct which recognized the spirit of the Mandate, and,
that, in order ta test whether Respondent was, in fact, acting in the
spirit of the Mandate, regard was accordlngly to be had to what the
nghts and obligations of the mandatory had been under the Mandate
which was to be regarded as having lapsed.
The staternent reads asfollows:
"Mr. Louwpointed out that the provisionsof the second operative
paragraph of that draft resolution precluded any possibility of artiv-
ing at the agreement contemplated in the League of Nations' last
resolution on the question. According to that resoIution, the man-
datory power was to continue to fulfd its functions until new agree-
ments had been concluded ... The representatives of the Union
of South Africa felt that the paragraph was contrary to the pro-
visions of the Charter inasmuch as it disregarded rights possessed
by the Union of South Africa under the Mandate and the Charter."
(P. 163, supra.)
The Court will see that the context is one of questioning whether the
United Nations had any right to interfere with a particular situation.
The last sentence may have emanated from a legal theory of the nature
1have rnentioned, or the idea may merely have been that South Africa
was, in terms of the resolution of the League on 18April 1946.to fulfd
its functions until new agreements had been concluded, and that this
expectation necessarily entailed a continuation of the situation as it
existed under the Mandate, andthat the United Nations had no power
to interfere with it. That may have been the simple basis upon which
this argument was propounded.
It is not clear, Mr. President, which of the two ideas underlay the
statement. but, as far as 1 can see, it does not matter whatsoever for
purposes of the present argument.In particular, 1 cannot see how any-
thing involved in the question whether one is to interpret that particular
statement in one way or another, can possibly affect the question of
supervision of mandatory administration, because this statement is not
directed to such aquestion at ail.
The Applicants seek to comect this statement of Mr. Louw in 1948
GeneralAççemblyt main1946, whichincluded these words:spond".. . together
with its tight of full liberty of action, as provided for in paragraIhof
Article80of the Charter." (P. 164, sufiru.) ARGUMENT OF MR. DE VILLIERS 46r
A propos of.this, my learned friend,MT. Moore, said in his argument:
"The view seems to have been that Article 80 (1)of the Charter provided
for rights, but notfor.obligations." (Ibid.)
of this last statement. That date wasee17 January 1946, as.will appearte
from the Counter-Mernorial, II, p. 41. #In other words, it was sorne
months firiortothe dissolution of the League.
,The Respondent has never suggested thatthe Mandate lapsed in whole
or in part, whether as regards rights or as regards obligations, prior to
the dissolution of the League. During the period between the coming into
force of the Charter and the dissolution of the League, Article 80 (1)
would, indeed, have been significant in demonstrating that nothing con-
tained in the Charter derogated from Respondent's rights or obligations
under the Mandate. Therefore, that earlier statement, Mr. President, is
not at ail relevant on the question of what the effect of dissolution of the
League would be.
The next statement by Mr. Louw, which is relied on by the Applicants,
is one ofgNovember 1948 m,ade in the Fourth Cornmittee,when he said:
right to incorporate-thetemtory of South West Africa was inherent
in the former Mandate. .." (P. 164,supra,)
We can consider this statement, Mr. President, in conjunction with
the third one relied upon by the Applicants, which was made by hlr.
Louw on 26 November 1948,when he quoted a cable received from the
South African Prime Minister, ~vhichstated:
"The South African Government is exercising a right which has
never been disputed to adrninister the territoryas an integralpart
of the .Union, pursuant to the power granted in the original Man-
date." (Ibid.)
.Mr. ~resident, -the rnatter then in issue concerned the provision for
direct representation of South West Africa in the Union Parliament,
and the question was whether South Africa, by announcing its intention
to rnake such provision, was going back on its previous statement that
itwould not proceed with incorporation of the Territory. That was the
question at issue in these debates.
Itwas purely a matter of comparing what South Africa was proposing
to do, with a staternent it had made before to the effect that idid not
intend, as a matter of policy, to proceed with incorporation of South
West Africa, and of seeing whether there was any inconsistency between
those two things. Now, the South African attitude, expressed in the
telegram from the Prime Minister and by Mr. Louw himself, wasthat
the projected step did not amount to annexation, but invoIved the per-
formance of an act which had been pemitted by the Mandate. The
Mandate was, in this context, specifically called "the former Mandate",
by Mr. Louw, and in the telegram of the Prime Minister itwas referred
to as "the original Mandate". In this context, Mr. President, the state-
that South Africa was acting entirely in accordance w~thits self-imposed
limitation of adrninistering the Territory in the spirit of the Mandate.
That .was al1 that the context indicated. This limitation involved a
voluntary abstention from unilateral incorporation, but not an under-
taking to abstain from acts of closer association which had been per-462 SOUTH WEST AFRICA
mitted under the Mandate. That was what Hr. Louw was intirnating
to the United Nations. Theextent of the rights granted by the Mandate
was consequently relevant to this discussion. The gist of the argument
was mereIy that, if one acts in the spirit of the Mandate, one has regard
not only to the obligations imposed bythe Mandate, but also to the
rights whichcodd be exercised under the Mandate. A few days'previ-
ously Mr. Louw had put this matter explicitly in the same way to the
Fourth Committee, and 1 uote from the Fourth Committee records 1948,
Part 1,8rst Meeting, 16d ovember 1948 ,age 346. Mr. Louw said:
"The closer union scheme was nothing new or startling. The right
to incorporate the Territory of South West Africa was inherenin
the former Mandate, and the present Government was going no
fürther than the Union Government had proposed to go in 1934,
when the League of Nations had raised no objection.
Mr.Louw repeated that it was the intention of the Union Govern-
ment to administer the Territory of South West Africa in the spirit
of the mandate of the Leape of Nations." (Fourth Committee, 1948.
Part 1, 81st Meeting, 16 November 1948,p. 346.)
Upon analysis, therefore, hlr. President, nothing in Mr. Louw's state-
rnents appears to be relevant to the present issue. There is certainly
nothing in them, as far as 1 can see, which even tends to support the
contention of the Applicants to the effectat Respondent had by its
conduct recognized that the United Nations had replaced the League as
the supervisory organ over the Mandates. How these statements could
have any bearing upon that question has, 1 must Say, somehow escaped
me.
to the actions and statements of the Respondent, as referred to by the
Applicants, in their arguments, namely from the date of the dissolution
of the League until the enof 1947 .hat is the crucial period on which
the Applicants rely, the periodduring which the Say that a certain
attitude of acquiescing in, or consenting to, BnNations supervision
over the Mandate was manifested by the Respondent, before the change-
about came in the Fall of 1947,
MT.President, one finds, on analysis, that the only relevant statements
from Respondent's side during that period-the only relevant ones on
the question of accountability as distinct from the question ivhether the
Mandate was still in existence-amountedto three. The first one was the
statement of General Smuts in November 1946, which we find in the
Counter-Mernorial, II, at pages 53-54. The second was the letter of
23 July (also referred to as United Nations Document A/334) which is
ment of Mr. Lawrence in SeptemberII,1947pquoted in the Counter-Me-e-
morial, II, at page 57, and followed by his Iater stateofNovember
of that year, quoted on the same page of the Counter-Memorial.
\mat is significant about these statements, Mr. President, is their
absolute consistency and the link which there is in each of them with
the earlier statement on the subject the Union Government.
The statement of General Smuts inNovember of 1946 referred back
to the intention which had been expressed on behalf of the SouthAfncan
Govemment at the last session of the League Assembly. It identified
itself with that expression of intent and added something which had not ARGUMEXT OF MR. DE .VILLIERS
463
been stated before, namely that there would now be a submission of
statistical and other information, in accordance with Article 73 (el of
the Charter. The very first intimation, on behalf of the South African
Government, of the submission of any information, or reports, or any-
thing of that kind, was limited to the scope of Article 73 (ej of the
Charter. And that, in itseIf, indicated that there was no contemplation
of the more onerous obligation of reporting and accounting under a
mandate. . .
The second staternent to Gluch 1 have referred, narnely in the letter
of 23 July 1947 (Document A/334), although it did not in terms refer
ofcits words and by its context, only have referred back to that state-
ment because there was no other statement to which it. could have
referred in stating that the South African Government had already in&-
cated its willingness to submit reports for the information of the United
Nations. The Smuts' statement was the only one to which that sentence
could have been intended to relate. It mentioned specifically, "for the
information of the United Nations", thus identifying itself on that
point, with theearlier statement by General Smuts; and more than that,
when Mr. Lawrence came to give his fuller explanation of what the
attitude of the Union Government was inthis regard-i.e,, maintenance
of the status quo and submission of reports for the information of the
United Nations-he~specificaliy gave that explanation with reference to
what had been intended to be conveyed in the letter of23 July 1947.
There was, therefore, Mr. President, an absolutely consistent attitude-
al1these relevant statements, one after the other, were linkedand clearly
maintained the same attitude throughout. It was mere1y.a matter of
arnplifying later what )ad already been stated before.
In these circurnstances, it seems, Mr. Preçident, that there was pos-
sibly a measure of misapprehension in one portion of the minqrity opin-
ion of this Court in 1956-a portion on which the Applicants appar-
ently rely, dthough they do not specifically refer to it in this portion of
their argument. It is the portion, at page 65 of that 1956report, which
reads as follows:
"An important eIement of the situation then existing [that was
after dissolution of the League] was referred to on a number of oc-
casions by the Court [that is the Court in 19501in the rcasoning of
its Opinion: that is, the willingness expressed by the Union of South
Africa to regard itseif as continuing to exercise its Mandate, to con-
tinue to administer the Territory in accordance with the provisions
of the Mandate and to continue to render reports to the United
Nations." (I.C.J. RePortsr956, p. 65.)
There is this reference, Mr.President, to a willingnessexpressed by the
Union of South Africa to continue to render reports to thenitedNations.
It is put as if that was a general attitude expressed by the Union of
South Africa-and that that was how it indicated its attitude with re-
gard to the consequences of dissolution of the League.
Inen we refer back to the 1950 Opinion on this point we find that in
the portion of the Opinion which deals specifically with the question of
accountability there is no reference whatsoever to any statements made
by, or on behalf of,the Union Government. That is the portion of the
Opinion at pages 136 to 138 to which 1 referred yesterday. We find a464 SOUTH WEST AFRICA
reference to the statements of, and on behalf of, the Union Government
only in respect of the earlier question decided by the Court, namely
whether the Mandate was still to be regarded as of legal forceand in
existence. We find that those statements are dealt with at the bottom
of page 134 ,ver on to page 135 and up to the top of page 136.We find,
Mr. President, that there is nothing in any of the statements, there re-
ferred to, which resembles the general description we find in the 1956
Opinion-in the passage which 1 have just read-except on one point,
and that 1 shall mention in a moment.
The various matters referred to in that portion of the Opinion were,
firstly, the declarationmade on 9 April 1946in the League Assembly;
next, the memorandum submitted on 17 October 1946 on the question of
proposed incorporation, in which the Union Governrnent was still re-
ferred to as being the mandatory-purely on the question, therefore,
staternent of 4 November 1946by General Smuts, not the one to whichto the
1 am refemng about reporting-about giving information under Article
73 (e)-but an eartier statement in which General Smuts had repeated
the declaration which the representative of the Union had made previ-
ously to the League of Nations, and lastly, a reference to the letter of
23 July 1947 to the Secretary-General of the United Nations. This last
constitutes the only exception tohich the general statement in the 1956
minority opinion could possibly have been intended to relate. 1 shall
read that passage inthe 1950Opinion:
"In a ietter of July z3rd, 1947, to the Secretary-General of the
United Nations, the Legation of the Union referred to a resolution
of the Union Parliament in which it was declared 'that the Govern-
ment should continue to render reports to the United Nations Orga-
nization as it hasdone heretofore under the Mandate'. It was further
stated in that letter: 'In the ~ircumstances the Union Government
have no alternative but to maintain the statusquo and to continue
to administer the Territory in the spirit of the existing Mandate."
(I.C.J. Reports1950p ,. 135.)
Now, Mr. President, the reference to this phrase "continue to render
reports to the United Nations.. .as it has done heretofore under the
Mandate" is not a reference to anything said by, or on behalf of, the
Union Government to the United Nations, or in any international con-
text. It is purely a reference to a phrase occurrinin a resolution, asit
is here called, of the Union Parliament. Itwas not even a resolution of
the Union Parliament. It was a resolution of one of the Houseç of the
Union Parliament-a resolution of the Houe of Assembly in the Union
Parliament.
, The distinction is a very important one. In South African constitu-
tional law, which follows the British pattern in this respect, which will
be well-known to mernbers of the Court,the individual Houses of Parlia-
menthave no legislative powers, except forinterna1 des ofprocedure and
so forth. In law the effect of a reçolution is, therefore, rnerely something
in the nature of a communication to the Government-a request to the
Government-an expression of opinion which it is expected that the
Government will heed but which the Government is not bound to do SO.
A government which does not pay heed to an expression of opinion, or a
request, or a resolution of one of the Houses of ParLament, rnay incur ARGUMENT OF MR. DE VILLIERS
4%
certain political consequences as a result thereof, but no legal consequence
will result therefrom.
To put the matter at its extreme, Mr. President, suppose in such a
resolution of one of the Houses of the Union Parliament there had been
an express provision to,this effect, viz. thatthe Union Governmentought
to accept accountability to the United Nations and continue to render
reports on the basis of being accountable under the Mandate to the
United Nations, it would have had no legal force or effect whatsoever
unless the Union Government, the Mandatory, had acted upon that re-
tude. That would be the only step which could have any effect in thisi-
regBut, Mr. President, if one readç this resolution of the House of Assem-
bly of the Union Parliament in its proper context, it is perfectly clear, of
course, thatnothing of the kind which I have just suggestedwas intended
to be suggested in that resolution. The fuu terms of the resolution were
quoted and set out in the letter of 23 July, and we quote them, as being
part of the letter in the Counter-Mernorial, II, at page 55.That state-
ment at the end "that the Government shodd continue to render reports
to the United Nations Organization asit has done heretofore under the
Mandate", is to be read in the context of the resolution as awhole, and
the second paragraph of the preamble reads asfollows:
"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 infact do so."
In otherwords, Mr. President, the contemplation of this resolutiowas
that there was to the United Nations no transfer of powers or rights
which had vested on the part of the League in regard to mandates.
Mr. President, 1 was referring the Court to the terms of the resolu-
tion of the House of Assembly of the Union Parliament, set out in the
Counter-Memorial, II, at page 55,and conveyed in Respondent's letter of
23July 1947 to the Secretary-General of the United Nations. 1pointed
out that, in terms of the second prearnble of that resolution, the Houe
of Assembly clearly expressed its view that no supervisory powers in
respect of mandates had passed from the League to the United Nations.
In the light of that context, the phrase at the end of the resolution "that
the Government should continue to render reports to the United Nations
as it has done heretofore under the Mandate" can, at most, be said to be
a piece of ambiguous draftsmanship. It could hardly, in the light of the
second preamble, have been intended to mean reporting of the exact
kind which had taken place to the League of Nations under the Mandate,
in the sense of accounting in regard to compliance with mandate obliga-
tions. Ttcould at most, have been intended to refer to the act of sending
reports as had happened under the Alandate. That this wa~, how the
matter was understood by the Union Government appears clearly from
the manner in which this resolution was then conveyed to the Secretary-
General and also from the statement, in this very letter of23 July 1947,
by the Government on that subject. And that, after al], js the operatiye
attitude to the United Nations, the wording there being: "The Unionxts4fJ6 SOUTH WEST APRICA
Governmenthave already undertaken to submit reports on their adminis-
tration for the information of the United Nations", thus referring back
to the earlier statement by Generai Smuts and the further explanation
byTherefore, Mr. President, titappears that nothing occurred in this
period which was relevant as being an expression of Respondent's atti-
tude about the matter, nothing more than these items to which I have
referred, namely Smuts' statement, the letter of 23 July and then Mr.
Lawrence's further explanations in September and November 1947 and
these make the consistent attitude of the Respondent Government in
this regard clear beyond any doubt.
In fact,what is also significant about this is that nobody in the United
Nations misunderstood the Respondent 's attitude in this regard.
This appears frorn the immediate reactian in debates by United Nations
Members during the years 1946 and 1947 ,nd even in 1948 and 1949
when certain of the governments concerned-a very small minority-
seemed to have had second thoughts about the whole position. But as
far as immediate reactions were concerned, reactions indicating the man-
ner in which the other governmentç-the other Members of the United
Nations-had understood the Union's attitude, there was absolute
unanimous confirmation of what 1 have been submitting to the Court,
nameiy that outside of tmteeship there would be no obligation on the
part of the Union Government to report and account to the United Na-
tions in respect of its administration of South West Africa.
In the light of the Applicants' oral contentions on this aspect of the
matter, i.e., the actions of the United Nations in relation to thestatements
and actions of the Respondent, my learned colleague Mr. Muller. gave
very special attention thereto. The intention was that he would deliver
this portion of the argument to the Court but unfortunately he is indis-
not have the benefit of hearing his address on the matter. However, 1
have the benefit of his very fuii notes and, fortunately, the story, in its
main essentials and features, is absoiutely clear and is not a difficult one
to tell.
TheApplicants in their presentation, in theiroralargument, contended
in this regard that actions of the United Nations supported the conclusion
"that the United Nations replaced the League as the supervisory organ
over the Mandate". That we find in the verbatirn record at page 166,
supra. Now, in the elaboration of their presentation the Applicants con-
tended that these actions comprised, firstly, certain resolutions of the
General Assembly and, secondly, statements made by Members of the
United Nations regarding the Mandate for South West Africa and also
regarding other mandates.
1shall deal first with the resolutions, Mr. President. The first of the
resolutions relied upon by the Applicants was General Assembly resolu-
tion 65 (1)of 14 December 1946T .he Court will recall that thawas the
resolution taken on the Respondent's proposal regarding possible incor-
poration of the Temtory. The Court will also recall that in this resolution
the GeneralAssembly rejected the proposais regarding incorporation and
recommended that South West Africa should be placed under the trustee-
ship system. Taking into account, therefore, this scope and purpose of
.the remlution, it seems quite clear that it did not indicate atal1 any
understanding that supervisory powers of the League of Nations over the ARGUMENT OF MR. DE VILLIERS
467
exercise of the Mandate had .passed to the United Nations. The wording
ferred from it, contains any indication to that effect. Indeed, Mr. Presi-
dent, as we pointed out, it was in the very dcbates leading up to this
resolution that Generd Smuts made his clear statement, in Novernber
1946, that reports concerning South West Africa would be furnished for
limited information purposes only. It is significant that in those very de-
bates, this statement by General Smuts elicited no protest from any of
the Members of the United Nations to the effect that Respondent would
be subject to United Nations supervision in respect of the Mandate for
South West Africa, outside of trusteeship. There was not a single State
which, in those lengthy debates on the subject of possible incorporation
of South West Africa, reacted to General Smuts' statement by saying:
"You are now intending to do less than what your obligation requires of
S'OUY. ou are obliged, quite outside of any trusteeship, to report and
account for cornpliance with the Mandate to the United Nations." Not
a single State took that attitude.
ClearIy, Mr. President, the three extracts wliich the Applicants quoted
frorn the Fourth Committee speeches in 1946(wefindthem inthe verbatim
record at p. 157,supra) do not evidence such an understanding, in any
way. 1 have dealt with those already and 1have indicated that each one
of those dealt merely ~4th Respondent's proposa1 for incorporation and
did not touch upon any question of supervision at dl. That isal],as far
as resolution 65 (1)and the debates in regard to that resolution are con-
cerned. ,
But now we find that the Applicants also rely on General Assembly
resolution 141 (II), oI November 1947 n presenting an argument re-
garding actual exercise of competence by the United Nations of super-
visory authority over South West Africa. That was the contention ad-
vanced in the verbatim record at page 159 ,upra. They refer in this re-
gard, Mr. President, to a passage in th1950 Advisory Opinion in which
the Court stated: "this competence was in fact exercised by the General
Assembly in resolution 14r (II) of Novernber I,1947." (P.C.J.Reports
1950 ,. 137 and the verbatim record at p. 159, sufira.)
1shall deal later, Mr. President, with the view expressed by the Court
in this regardin 1950 1.shall submit that in its context it is not whatis
contended for by the Appbcants, but 1will deal later with that question.
At present 1 merely want to deal with the content of the resolution
and with the Applicants' own arguments in regard thereto. At page 159,
supra, of the verbatirn record the Applicants Say that: "The resolution
urged the Govcrnment of the Union of South Africa to propose a trustee-
ship agreement for South West Africa", and 1quote from what they Say.
They say it authorized-
"the Trusteeship Council in the meantime to examine the report on
South West Africa recently submitted by the Governrnent of the
Union of South Africa and to submit its observations thereon to the
General Assembly ".
That statement, as far as it goes, Mr. President, is correct. But yow, what
is important regarding the matter in issue is the understanding which
the United Nations had of the nature and the purpose of the report in
question, and correspondingly of the task which was being assigned by
the General Assembly to the Trusteeship Council in that regard. This468 SOUTH WEST AFRICA
contemplation appears from the preamble of the resolution, which read
as follows:
"Whreus the Govemment of the Union of South Africa in a letter
of 23 July 1947 infomed the United Nations that it has decided not
to proceed with the incorporation of South West Africa in the Union
but to maintain the datecs quo and to continue to administer the
Territory in the spirit of the existing mandate, and that the Union
' Government has undertaken to submitreports on its administration
for the information of the United Nations;" (Gen. Ass. Res. 141 (II)
of I November 1947).
That isthe preamble of'thisvery resolution relied upon by the Applicants,
a preamble indicating a contemplation exactly in accordance with what
1have been advancing to the Court al1this morning and part of yesterday,
on what the attitude was as expressed by the Union Governrnent to the
United Nations.,
In no way, in our submission, does this resolution indicate that the
actions which it set in train were to involve an exercise of supervisory
pqwer. Indeed, Mr. President, 1 shall show that the very body to which
this report was referred, namely the Trusteeship Council, did not regard
it as such. The Trusteeship Council did not consider that it was required
to exercise a supervisory power in respect of this report.
The Applicants Say in this regard in the verbatim record, page 160,
supra:
"In accordance with resolution 141(11)of the General Assembly,
the Trusteeship Council did examine the report subrnitted by the
Respondent for the year 1946.
Although the Council, in the exercise of its cornpetence, did not
agree upon the extent of supervision, there was no doubt as to the
legalauthority of the Councilto examine the report ofthe mandatory
power and subrnitobservationsthereon. Notwithstanding the dissolu-
tion of the League, it\vas agreed that the Mandate continued in full
force andeffect, and that the United Nations was the proper super-
visory authority."
The Court will note that the Applicants make this ernphatic statement
that it was ageed in the Trusteeship CounciI, firstly, that the Mandate
continued in force, and, secondly, that the United Nations was the proper
supervisory authority. In support of this statement-a completeiy un-
qudified one, the Court will notice-the Applicants cite three extracts
from staternents made in the Trusteeship Council by representatives of.
respectively, China, Belgiurnand the United States of Arnerica. That we
find in the verbatim record of 19March, page 160, supra. 1 submit, Mr.
President, that an analysis of the attitudes adopted by the Members of
the Trusteeship Council, andby saying the Members 1mean al1the Mem-
bers. and not only some, Ieads toan entirely different conclusion. 1 em-
phasize the attitude of al1 Mernbers, because this again appears, with
respect, to be a case where the Applicants have isolated a smaii portion
of the relevant evidence,presented it as being al1that is to be taken into
account as relevant and then drawn their conclusions from that.
In accordance with Article 86 of the Charter the Tmsteeship Council
in the years 1947-194 c9mprised the representatives of the following
States-T shallgivethem numbers in alphabetical sequence :(1)Australia,
(2)Belgium, (3) China, (4) Costa Rica, (5) France, (6) Iraq, (7) Mexico, ARGUMENT OF MR. I)E VILLIERS
4%
(8) New Zealand, (9) the Philippines, (IO)the Soviet Union, (II) the
United Kingdom, and (12)the United States ofAmerica. It willbe noted,
Mr. President, that five of these States were former mandatories-
Auçtralia, Belgium, France, New Zealand and the United Kingdom.
They wouId in the nature of things have had a particular interest in the
future of these territories; it is to be expected that they would have
given serious thought to this whole question, and, in particular, Mr.
President, they wouid have been aware of al1 the antecedents leading
up to the situation with which this Council was then confronted, parti-
cularly if therehad been tacit agreements between al1interested parties-
general understandings which were so clear that it was not necessary to
reduce them to writing or express terms, because everybody knew about
arrangements and such understandings.llencewould have known of such
In these circumstances 1 shall analyse the attitude adopted by each
of the member States of this Trusteeship Council in the order 1 have
'indicated, Le., the attitude they adopted with regard to Respondent's
obligations to the United Nations in respect of its administration of
South West Africa. In somecases the attitude appears clearly from state-
rnents made on behalf of these States in the Trusteeship Council itself.
In some cases it is necessary to go beyond what was stated in the Trust-
eeship Council, and to read those statements in conjunction with others
made by delegates of the same States dso in the Generai Assembly-
Plenary and Fourth Cornmittee at the relevant tirnes.
1 begin, thei-efore, to deal with (r} Australia. Mr. President, the atti-
tude adopted by the Australian representatives was absolutely clear
and unambiguous. I refer, first, to extracts from the statements of
Mr. Evatt and Mr. Forsyth as set forth in the Counter-Memorial, II,at
page 275. I do not intend to read them all, but 1 would like to read
Mr. Evatt's statement made in Plenary Session, as given on that page.
"Therefore, there is no gap in the Charter of the United Nations.
If the Union of South Africa does not bring itç Territory under the
Tmsteeship System, it is çtill, in my view, a Non-Self-Governing
Temtory. The Union Government will have to give, voluntarily,
reports for the information ofthe Secretary-General. The Secretary-
General can do ashe chooseswith this information."
In regard to Mr. Forsyth's staternent in the Trusteeship Council.
Mr. President. there is a short extract quoted in the Counter-Memonal
at page 275. 1would prefer to read a fulier extract from the same state-
ment, that is, from the source indicated at page 275 of the Counter-
Mernorial-a statement in the Trusteeship Councilon 12December 1947:
"Further, 1 think the position is strengthened when we ask Our-
selves this question:what is the purpose for which this report was
submitted? That purpose appears in the resolution of the General
Assembly in which it is stated that the 'Union Government has
undertaken to submit reports on its administration for the infor-
mation of the United Nations'. The purpose is quite clearly stated
there: 'for the information of the United Nations.'
That is quite different from the purpose for which reports are
submitted on Trust Territories. The reports on Trust Territories
are submitted not merely to inform the Trusteeship Council but to
enable the Trusteeship Council to exercise its main function, the SOUTH WEST AFRICA
supervision of administration. In the case of South West Africa,
which isnot a Trust Territory, the Trusteeship Councildoes not have
the function of supervising administration. The administration of
South West Africa has been reserved by the Government of the
Union of South Africa asits own concem, and that Government, not
having placed the territory under trusteeship, does not recognize
the power of the Trusteeship Council to supervise its administration.
There is, therefore, a fundamental difference between the purpose
for which the report on South West Africa is submitted and the
purpose for which reports on Trust Territories are submitted. That
also explains why, in the case of Trust Territories, there are the addi-
tional functions of considering petitions and of sending visiting mis-
sions to the territory.I submit that the purpose of this report is
entirely diflerent or, at least, tis avery great differencebetween
the purpose as regards this report andthe purpose for which reports
on Trust Territories are submitted." (Trusteeship Council;Second
Session, First Part, 15th Meeting, p. 477.)
One could hardly have it more clearly and explicitly stated, Mr.Pres-
ident. The attitude is perfectly clear-therewas no obligation at allto
enter into a trusteeship agreement. Respondent, in the absence of a
trusteeship agreement, would have to give, voluntarily, reports forinfor-
mation purposes in terms of Article 73 of the Charter, but that wodd
not involve supervision, as in the days otheLeague. The purpose would
be a limited one directed at giving information, in contradistinction to
supervision, as made so clear in the staternent by Mr. Forsyth which
I have just read.
Then we corne to the case of Belgium, and1 refer to the extract from
a statement by Mr. Ryckmans in the Fourth Committee on 'rzNovember
1948 ,s quoted in the Counter-Memorial, II, page 282:
"Under the Mandate System,SouthWest Africa had been admin-
istered under a C Mandate, and it had always been understood that
the Territory would eventually be incorporated in the Union of
South Africa.
On the other hand, [he] felt bound to draw the attention of the
South African representative and the Committee to the terms of
Article 80,which provided that nothing in Chapter XII of the
Charter should be 'construed in or of itself to alter in any manner
the rights whatsoever of any States or any peoples ... '. That in-
efit of international supervision under the Mandate System, couId
not be deprived of that right."
I also refer, Mr. President, to statements made by the same represen-
tative jn the Trusteeship Councilon I December 1947 and in the Fourth
Trusteeship Council-reads 1as follows: one-I December 1947 to the
"... there is-a point arising out of the President's statement upon
which 1 should like to comment. 1 do not think it advisable to tell
Councilrwilltexamine the report submitted by the Union Govern-eship
ment as if it were a report from a Power adrninistering a Tmt
Territory. This is a controversiai question. We shaUin fact examine
this report as we examine any other, but in principle we should ARGUMENT OF MR. DE VILLIERS 47:.
: consider it in the same way as it would have been consideredby the
Permanent Rlandates Commission. There is, however, no need to
mention this. It is sufficientto Saythat the Trusteeship Council will.
as authorized by the General Assembly, examine the Union of
South Africa's report on the Territory of South West Africa on a
given date,and it is unnecessary tostate that the report willbe dealt
with in the same way as a report on a Trust Territory. Should we
do so, we might receive the reply: 'Thisreport must not be examined
as a report on a Trust Territory but as one on a mandated territory.'
1therefore tkink it unnecessary to s@cify this." (Trusteeship Coun-
cil, Second Session, First Part;. Sixth Meeting,I December 1947,
pp. 124-125.)
Asregards the other statementto the Fourth Committee on 17 Novem-
ber 1948, 1 wish to read only a brief portion. I quotc again from Mr.
Ryckmans :
"It was 'to be hoped that the Comrnittee could agree upon a
workable resolution which would imply that the Union of South
Africa was not legally bound to place the Territory of South West
Afrjca under the Tnisteeship System, but which would ask the
Union Government, in exchange for United Nations recognition of
the situation, and acceptance of its administration of South West
Africa, to admit the Trusteeship Councilasthe heir of the Mandates
Commissionand to grant it the right to examine annual reports and
petitions." (Fourth Cornmittee, 17 November 1948, pp. 362-363.)
Here, we find, Mr. President, a kind of in-between attitude, if1 may
caUit that, an attitude that under Article 80, paragrapI of theCharter,
the peoples of South West Africa had a "right" to international super-
vision; but an acknowledgement apparently, on the other hand, that
the machinery for bringing into existence such international supervision
had not yet been established; and therefore urging upon the Trusteeship
Councilthe finding of a workable resolution which wouldask the Union
Government to recognize the Trusteeskip Councilin exchange for recog-
nition from the United Nations. It was to be an agreement "in exchange
for United Nations recognition of the situation, and acceptance of its
administration of South West Africa". The Union Government would
then be asked "to admit the Tmsteeship Council as the heir of the
Mandates Commission, and to grant it the right to examine annual
reports and petitions".
In so far as the representative of Belgium may have attached to
Article 80, paragraph I, higher significancethan 1 have just attempted
to express, it is significant that the Applicants now say that they do
' not in their argument attribute such a higher significanceto Article 80,
paragraph 1.
We corne to the third one on the List-China. The Applicants in their
oral presentation at p. 16sq%a, quote a passagefroma statement made
by 3lr. Liu Chieh in the Trusteeship Council on I December 1947 ,n
which he stated, inter dia,as follows:
"1 think that by design and by general acceptance the functions
and responsibilities of the Mandates Commission have fallen upon
the shoulders of the Trusteeship Council."
1 would like to refer the Court to statements made in the same year
by the samexepresentative of China, in the General Açsembly-Plenary SOUTH WEST AFRICA
472
and Fourth Cornmittee-as quoted in the Counter-Mernorial, II, page275.
I read first the statement in the Fourth Cornmittee:
"The only choice Iay between trusteeship and the grant of inde-
pendence. Article 80, paragraph z, of the Charter further proved
the obligatory characterof the [the trusteeship] system... If the
Union of South Africa placed South West Africa under trusteeship,
it would not be deprived of the administration of the territory; and
the only change would be the placing of that administration under
international supervision."
This was in September 1947 t was a contemplation, therefore, that
if the territory were not placed under tmsteeship, it would not be under
international supervision. But we have that very much more clearlyand
explicitly, Mr. President. in the next statement, the one in plenary on
I November 1947:
"We are told that the Union of South Africa would adrninister
the Territory of South West Africa in the spirit of the Mandate of
the League of Nations.T do not doubt the sincerity of ths statement
on the part of the Union ofSouth Africa, but weal1know that the
mandate system has ceased to exist and that the Tmsteeship System
has been established. Would it not be more desirable to administer
the Territory in question under a living systern than under the
shadow of a ghost system?" (II, p. 276.)
And then, Mr. President, 1 want to follow this up with the statement
made in the Trusteeship Councilby the çamerepresentative on 12 Decem-
ber 1947:
"As the draft resolution submitted by the representative of Iraq
might be brought fonvard at a later stage,1should like to take this
opportunity to make one or two brief remarks. 1think the hst three
paragraphs just statethe facts, although1do not know whether the
third paragraph is called for because it is evident from the Charter
that we are not claiming jurisdiction over South West Africa as a
Trust Territory.
If we state that the report is in fact not as comprehensive as
reports previously submitted by the Government of the Union of
South Africa, as Mandatory, to the Permanent Mandates Commis-
sion, it may be contended atonce that this report wasnot prepared
as a report to the Permanent Mandates Commission or to any
Commission of that nature. 1Say this because it is a report of the
Government of the Union of South Africa on South West Africa
and was not prepared on the basiç of questionnaires either by the
Permanent Mandates Commission or by the Trusteeship Council."
(Trusteeship Council, Second Session, 15th Meeting, 12 December
1947, P. 498.)
The points which emerge from these various statements, Mr.President,
in my submission, are these:
In so far as there ia statement by the representative of China, that
by design and by general acceptance, the functions and responsibilities
of the Mandates Commission have falkn upon the shoulders of the
Trusteeship Council, that is suggested very tentatively. He makes it
plain that they have to be careful in their approach to this whole matter
in order to attempt to arrive at agreement with the mandatory power, ARGUMENT OF MR. DE VILLIERS 473
which is much the same attitude that was expressed by the representa-
tive of Belgium in the staternents to which 1 have already referred.
We start off with statements which indicate that, but for trusteeship,
there would be no international supervision-statements indicating the
contemplation that outside of the trusteeship system, there was no room
for international supervision.
We find, then, this somewhat inconsistent statement that, by design
and general acceptance, the functions and responsibilities ofthe Man-
dates Commission have fallen upon the shoulders of the Trusteeship
Council. But, Mr. President-and this is important-we do laofind that
the Chinese representative said that South Africa had, by consent, sub-
mitted to such supervision; that South Africa, by doing sa-and-so, or
stating so-and-so, had done anything of the kind. We do not find the
Chinese representative saying that the general understanding at the
final session of the League Assembly was that there would be a transfer
of supenrisory powersfrom the League to the United Nations, in respect
of madates not converted into trusteeships, as was originally contem-
plated and proposed in the first Chinese proposa1 on that occasion, and
as was allegedly maintained as a general intent underlying also the ha1
resolution.
1 proceed with State number four on the list, Costa Rica.
I wish to refer to a statement made by Mr. Canas in the Fourth Com-
mittee on 17 November 1947 ,s quoted in the Counter-Mernorial, LI,
page 282 :
"The United Nations should not act as though its han& were
tiedby the Mandate. It had not been a party to the mandate agree-
ment, and could not therefore beobligedto actin accordance with
its provisions. Indeed, the Union of South Africa itself did not con-
sider that the Mandate was stillin existence, since it hadstated that
it would administer the Territory of South West Africain the 'spirit'
of the Mandate. As a legal contract between the Union of South
Africa and the League of Nations, the Mandate had disappeared
with .the League, and there had been no provision whereby the
United Nations became a party to the Mandate."
I wish to refer, Mr. President, to a further extract from a statement
by Mr. Morales inthe Trusteeship Council on 12December 1947:
"The point under discussion is whether the Mandate has expired
or not.1 do not know how far the Council can succeed in determin-
ing hastily whether or not the Mandate is still in force.
It would be weli to avoid the word 'Mandate' and any reference
to the spiritor letter of the mandate. Perhaps we could use some
better word in conforrnity with the spirit of the Charter, for al-
though weknow the Charter isbarely two years old, the Government
of the Union of South Africa is one of the Members of the United
Nations and, as such, is bound to fulfil the tenns of the Charter.
That would obviate the difficulty of using the wor'Mandate' which
is, as we have said, so controversial." (Trusteeship Council, Second
Session,15th Meeting, 12 December 1947 ,. 506.)
So it seems, Mr. President, that in the views of the representatives
of Costa Rica, the Mandate had disappeared with the dissolution of the
League; consequently, there could have been no contemplation on the474 SOUTH WEST AFRICA
part of these representatives that there was any obligation of reporting
anNext we come to State number five, France.e United Nations.
We cite in the Counter-Memorial, II,at pages 276and 283,statements
made by Mr. Garreau in the Trusteeship Council in 1947, and in the
Fourth Committee in 1948. I shail first read the statement made in the
Trusteeship Council in 1947:
"That text [of the General Assembly Resolution] was very care-
fuliy drafted after lengthy discussion because the Assembly, in'
referring the report of the Government of the Union of South Alca
to the Trusteeship Council, wanted above al1to take the first step
in the direction of international supervision over the former man-
dated Territory of South West Africa, pending reconsideration of
Africa and a decision of that Government in that connexionSou...
Indeed, in the absence of a trusteeship agreement, the Council-
and the same would have been true of the Fourth Committee-
conld examine the report of the South African Government only
for information." (II, pp. 276-277.)
This is a very clear and expricitly stated attitude.
'I now quote from the Fourth Committee records in 1948:
"The French delegation had frequently had occasion to recall
that the Trusteeship System had been substituted for the'Mandate
System. Once the League of Nations had ceased to exist, so had
the institutions which functioned under its aegis. When the United
Nations was set up, there remained nothing of the Covenant of the
League of Nations except its moral influence. The Mandate System
was reconstituted as the Trusteeship System with certain charac-
teristic difference...
The South African Government had on several occasions expres-
sed its desire to administer the Territory of South West Africa in
the spirit of the Covenant. It accepted the moral obligation of
ensuring the well-being and the development of the population,
dence." (II, p. 283.)rse to autonomy and ultimately to indepen-
The attitudes of these representatives, Rlr.President, are clear. They
go so far as to suggest that, with the disappearance of the League, the
legal force of the Mandate disappeared, and with it also the legal obli-
gations, so that what remained was the moral influence of the Charter
and a moral obligation in the case of the South African Government to
ensure the well-being and development of the population. This is an
attitude entirely inconsistent with any suggestion of supervisory powers,
Mandate-supervisory Unitpowers in respect of an obligation of account-
ability under the Mandate-and, therefore, a conclusion that the infor-
mation is submitted for information purposes only.
We come to number six on the Est, Iraq.
We have statements by Mr. Khalidy and Mr. Jamali in the General
Assernbly-Plenary and Fourth Cornmittee-and in the Trusteeship
Council, all in1947.
In the Fourth Committee, Mr. Khalidy- ARGUMENT OF MR. DE VILLIERS 475
"... pointed out that the trusteeship systern of the United Nations
had replaced the mandate system ...
The mandate system had ceased to function. The Union of South
Africa had not accepted the trusteeship systern, to which there was
no alternative. The trusteeship system offered the only legal right
to administer a territory formerly under mandate." (II,p. 277.) 1
Mr. Jamali stated in the Plenary :
"Now the League of Nations is dead, but the principles under-
lying the mandates are not dead. Chapter XII of the Charter cer-
tainly replaces Article22 of the Covenant ...
There is no obligation [to place a Mandated territory under the
Trusteeship system], but those memb-s of the General Assembly
who worked on the trusteeship Chapter of the Charter at San
Francisco will remember that, although there was no obligation on
the mandatory power to put a territory under the Trusteeship
System, it was implied that the mandatory Power would either put
such a territory under trusteeship in due course, or declare its
independence ... . &.
There is no further alternative ...
1 believe that the retention of the Territory of South Weit Africa,
neither under the Trusteeship System nor as an independent terri-
tory, is a retrograde step:Itis contrary to the spirit of the Charter,
and itis a denial of the right of the United Nations to supervise the
welfare and freedom of al1peoples al1over the world." (Ibid.)
Mr. Khalidy made a statement to the same effect in the Trusteeship
Council in 1947, Mr. Preçident-shorter but still to the same effect-
cited in the Counter-Mernorial, II, page 278,which 1amnot going to read
to the Court.
The attitude is a clear one. The Mandate is dead and, therefore, there
is no possibility of supervision in terrns of the Mandate-nly two pos-
sible alternatives-trusteeship or independence-nothing in between.
Then we have Mexico, number seven on the list.
The attitude adopted by Mexico, Mr. President, appears from state-
ments made by its representative on the Trusteeship Council during the
years 1947 to 1949 ,nd the representative was Dr. Luis Padilia Nervo,
who was then Ambassador Extraordinary and Minister Plenipotentiary,
and Permanent Representative of Mexico to the United Nations.
1 have to refer to certain aspects of these statements, in order to get
the gist of the attitude taken on behalf of Mexico on that particular
occasion. -
The attitude is best understood, Mr. President, after consideration of
a fd statement made by the honourable representative for Mexico on
the subject of South West Africa, in the General Assembly on INovem-
ber rg47:
"The Government of the Union of South Africa decided not to
place the mandated Territory of South West Africa under the TI-US-
teeship System, but to continue to maintain the statusquo and to
administer the Territory inthe spirit of the Mandate. That position is
not,1 believe, in accordance with the spirit and the intent of Chapter .
XII of the charte^of the United Nations, which provides that au
terntories previously held under mandate. if not granted indepen-
dence, shall be brought .under the Trusteeship Systern. .476 SOUTH WEST AFRICA
Could we say that the fourth paragraph of the prearnble of the
resolution before us (document A/422) goes too far? [That was the
paragraph which urged the Government of the Union of South
Africa to propose a trusteeship agreement.] We do not think so. We
believe that the discussions held in San Francisco with regard to
this rnatter, which concluded with the establishment of an Intema-
tional Trusteeship System, are in themselves evidence of the fact
that the signatory Powers were determined to ensure that the man-
dated territories would continue to be under international super-
vision. They were detennined to ensure that the mandated terri-
, tories would not revert to the status of colonies by the very fact of
the liquidation of the League of Nations and the termination of the
mandate system. The Charter, which is far superior to the Covenant
of the League of Nations asan instrument of international co-opera-
tion, had to include and did include precepts which represented a
step forward, not backward. in respect of the system of mandates.
It ha been said that the world took a very long step forward
when Article 22 of the Covenant of the League of Nations came into
force. Can we now deny that Chapter XII of the Charter of the
United Nations was intended to be not only a substitute for Article
22 of the Covenant of the League oi Nations but, what is more im-
portant, a step along the sarne road? Neither the framers of the
Charter of the United Nations nor the framers of the Covenant of
the League of Nations ever intended that the mandated territories
should revert back to the status of colonies. South West Africa will
be nothing but a colony if we agree to the position taken by the
Govemrnent of the Union of South Africa.
The representative of the Union of South Africa has stated in the
Fourth Committee that maintaining the statrrsquodoes not , ofcourse
mean that the Government of the Union of South Africa claims that
the Mandated Territory is a colony, The Govemment of the Union
of South Africa recognizes that it is not a colony.
to beeaeTrust Territory, what will be the result? The representative
of the Union of South Africa devises a new and anornalous category
and states that the position of the territory sui generis.The repre-
sentative of the United States of America very correctly stated in
the Fourth Committee that the Union ofSouth Africa 'doesnot have
a legai title to the Territory of South West Africa'." (Plenary Meet-
ings, 105th Plenary Meeting, x November 1947 p,p. 594-595.)
Now, Mr. President, may 1refer back to his statement in the Trustee-
ship Council on I December rg47-that was at the Trusteeship Council
meeting, 6th Meeting, znd'session, 1st Part, I December 1947-at page
129 of the record:
"As every mernber ofthe Councilknows, my Governrnent adopted
a clear position in regard tothe matter of South West Africa when
itcame before the Generai Açsembly. But 1 believe the question
before this Councilnow ismuch simpler. [Thisisnowbefore the Trus-
. teeship Council.]The Union of South Africa has voluntarily placed
before the General Assembly a report which concerns the Territory
- of South West Africa. The General Assembly, as the sole judge of
what to do with that report, decided to send it to the Tmsteeship ARGUMENT OF MR. DE VILLIERS 477
Coiincilfor its consideration, and requested that the Council make
its observations regarding the report. That is al1this Council,my
opinion, has to do now."
1refer next to a statement in the Trusteeship Councilon 23 July 1948;
by the same honourabIe representative. The reference is to the records
of the Trusteeship Council, 3rd Session, pst Meeting, 23 July 1948,
page 408 :
"hlr. PadiIla Nervo (Mexico)pointed out that his delegation Lad
Assemblyhatodthe effect that the Government.of the Union of South
Africa should propose a draft trusteeship agreement for the Terri-
tory of South West Africa. The fact that the Councilconsidered the
report presented by the Union of South Africa did not in any way
mean that it consented to deal with a 'tiii~dcategory of territories
not specifiedin the Charter, Mr,Padilla Nervo observed that, follow-
' ing the debate in the Fourth Committee, it had been decided to
. entrust the consideration of the report in question to the Trusteeship
Council,and not to another Committee of the General Assembly or
to the Committee on Information from Non-Self-Governing Terri-
, tories, preciselso as not to create the impression that South West
Africa was receiving the same treatment as a non-self-governing
temtory. Sincethe report in question related to a former mandated
Territory,it wasnatural that it should be dealt with by the Tnistee-
ship Council,as it was the latter's duty t? study reports relating to
al1other former mandated Territories.
In studying the report, the Council would not in any sense be
approving the South African Government's attitude, but only dis-
charging the duties inposedon it by the General Assernbly." :.
Then we corne to a further.statement in the Trusteeship Council, at
the same meeting, 23 July 1948-pages 414-41 o5f the record:
"Mr. Padilla Nervo said the Councilwas examining the report of
the Union of South Africa in 'quite special circumçtances. That it
had been called upon to do so by a resolution of the General Assem-
bly did not mean it would bethe practice of the Councilin the future
to examine the reports which the South African Government might
submit to the United Nations. The next session of the General As-
sembly would have to take a decision on that point."
NOW, MT. President, upon analysis, it would seemthat the view of the
representativc of Mexicowas that it was an essential characteristic of
dl mandates to be under international supervision. His attitude was,
further, as we understand it, that there was at leaçt a moral obligation
to enter into a trwteeship agreement. If this moral obligation was not
complied'with, then South West Africa would, in effect, be nothing but
a colony, and, in this context,allit codd mean would be that it would
be free of international siipervision. We note, Mr. President, that the
honourable representative of Mexico agreed with a statement made by
Mr. Dulles of the United States, and which read asfollows:
"The Union of South,Africa had no leial title to the Territory at
..present, because its oniy titlwas a mandatory under the League
of Nations." (G;A., O.R., Sécond Session,38th Meeting, 7 October
1947 ,. 50 and II, p.281.) 478 SOUTH WEST AFRICA
That indicates, Mr. President, that the attitude waç that the Mandate
had lapsed-the Mandate was legally no longer in operation-and that
being the premise surely it would follow that there could be no concept
of international supervision, of a duty to submit to report and accounta-
bility under the Mandate, as a mandate, That fits in entirely with the
concept that, if South West Africa was not put under the trusteeship
system, then it would, in effect, be nothing but a colony.
We note, ako, Mr. President, that the honourable representative said
inthe Trusteeship Councilthat "the Union has voluntarily placed before
the General Assembly a report" ; secondIy, "the fact that the Councilhad
considered the report did not in any way mean that it consented to deal
with a third category of States not mentioned in the CharterH-a third
self-governing territories". We note, Mr. President, that hetourther re-
ferred to a "former mandated territory".
It seems perfectly clear that this representative of Mexico certainly
did not understand that the South African Government had, inany way,
previousiy committed itself by consent, or by acquiescence, or by any
similar process, to accountability in terms of the Mandate to the United
Nations.
1 have had to read through several extracts from these statements in
order to extract the gist from them, because there was no particular
statement which, in a few lines, specifically directed attention to the
point, but, upon this analysis, and upon taking the salient features of
these staternents, they admit of only one constniction, in my subrnis-
sion-only one interpretation-and that is that there was no contempla-
tion whatsoever of an arrangement, as contended for by Applicants,
namely that the Mandate was in existence and that South Africa had
accepted substitution of United Nations organs, as supervisory organs,
in respect of its obligations under the Mandate-rgans to which it
would have to report and account for compliance with substantive
obligationsunder the Mandate. The statements make it perfectly clear
that there was no contemplation even of the Mandate still being in exis-
tence, but, apart from that, no contemplation of any international
supervision on the basis of the Mandate, and that, if the Territory was
not placed under trusteeship, it would, in effect, have the status of a
colony.
Next we come, Mr. President, to the case of New Zealand, that is NO. 8
'on the list. We refer first to a statement by Sir Car1Berendsen, in the
Fourth Committee, on 27 September 1947:
"Speaking as the representative of New Zealand, he favoured
the international supervision of al1 backward peoples, but main-
tained that there was no legal obligation on any Mandatory Power
to place a mandate under the trusteeship system. The Committee
could not therefore accuse the Union of South Africa of failing in its
duty." (II, p.278.)
1 proceed to refer to a statement in the Trusteeship Council on 12
December 1947 ,y the same speaker, quoted at the same page of the
Counter-Memorial. We have a fuller extract available, hlr. President.
The reference is the same as is given in the Counter-Memorial, and to put
thisjnto jts proper perspective,1 would like to read from this fuller ex-
tract: ARGUMENT OF MU. DE VILLIERS
479
"1 am sorry to Say, and I shall explain why in a'rnoment, that 1
must agree with the representatives of Australia and Costa Rica.
[The Court will recall this is a staternent in the Trusteeship Council,
it is on the question of the nature of the function which the Council
now has to perform in regard to this report which the South African
Government had sent to the United Nations and which had been
sent to the Council for its attention by the General Assembly.] This
is not a Trust Territory. We derive no powers from the Charter.
Our only polvers are derived from the resolution of the GeneraI
Assembly, and our powers are limited by that resolution. Under
that resolution we are specifically authorized to examine the report
on South West Africa recently submitted bythe Govemment of the
gatory or not obligatory on a former mandat07 to bring the man-obli-
dated area under the Trusteeship System. That isno concern of ours
at all. It is no concern of ourswhether the Government of the Union
of South Africa wasright in not bringing that area under the Trustee-
ship System. It is no concern of ours whether they have the legal
power to decline to do so. All of those things are quite beyond our
purpose here.
There was, as we al1 remember, a very considerable argumentin
the paçt two General Assemblies as to whether there was a duty
on a mandatory to bring a mandated area under trusteeship. There
was a difference ofopinion, a very considerable difference of opinion.
1am one of those who felt-and 1am convinced as usual that 1was
right-that there is no legal obligation, that the Union of South
, Afric.awas legally entitled to take the course that it took. But I am
also one of those, one of very many, who feel it is unfortunate that
the Union of South Africa did take the course it did.
1 wo$d not suggest for a moment that in examining this report
the representatives around this table are confined to the actual words
of.the report. They are entitled, ifwe are to deal with the report
responsibly, to take into account what is within their knowledge.
But we are not entitled-and 1regret it .very much indeed-we are
clearly not entitled to send a visiting mission. We are clearly not
entitled to accept petitions. We are clearly not entitled to hear oral
representation." (Trusteeship Council, Second Session, First Part,
15th Meeting, 12 Decernber 1947, pp. 478-480.)
A very clear statement, Mr. President, in which regret is expressed
sentative would very rnuch have preferred to have the practical situa-re-
tion different but, as he saw the legal situation, quite obviously the
United Nations had no supervisory powers in respect of this matter.
Next, No. gon the list, we corneto the Philippines. We have two state-
ments by General RomuIo in the Fourth Cornmittee during 1947, as
quoted in the Counter-Mernorial, II, page 279. The first statement was
madeon 25 September 1947and read as follows :
"The Union of South Africa had contended that it had obtained
its power from the League of Nations, but it had forgotten the new
obligations it had assume'dunder the Charter. Chapter XI of the
Charter contained a declaration which applied to allthe Non-Self-
: Governing Territories, whether mandated or not. That declaration480 SOUTH WEST AFRICA
emboàied obligations which far exceeded those of the mandate sys-
tem. The resolution of the Union Parliament irnplied that these
obligations would be fulfilled by the submission of information."
Next we have his statement of 8 October 1947, still in the Fourth Corn-
mittee :
"While supporting the draft resolution submitted by the repre-
sentative of India, [he]could not subscribe to the fifth paragraph of
that proposal, to the effect that South West Africa was 'at present
outside the control and supervision of the United Nations'. Chapter
XI of the Charter applied to ail the Non-Self-Governing Territories...
According to Article 103 of the Charter, obIigations under the
present Charter superseded other international obligations, and that
meant in effect that the Union of South Africa was bound to fulfil
its obligations under Chapter XI as long as South West Africa re-
mained outside the trusteeship systern."
In other words, Mr. President, there is a contention for no more than
what isprovided for in Article 73, or Article 73 (e), of Chapter XI of
the Charter in so far as may be relevant to this particular point.
We also refer,Mr.President, to extracts from statements by Mr.Ingles
in the Trusteeship Council later in the same ear. The first one was at
the meeting of I December 1947-T.C.O.R., %cond Session, First Part
(to which 1 have referred before), at page 128:
"The point has also been raised that we are not considering a
report from a Trust Territory but a report from a territory under
mandate. One of the obligations assumed by the Mandatory Power
in this particular territoryis to receive petitions. As 1 understand
it, under its mandate the mandatory is to receive petitions. 1 refer
to the procedure followed by the Mandates Commission; that Com-
mission could receive etitions from people of the mandated terri-
tories. Ifas contende by the representative of China, the Trustee-
ship Council takes the place of the Mandates Commission, then
pursuant to the authority of the Mandates Commission to accept
petitions, the Trusteeship Council may accept such petitions as long
as they concern matters ernbraced in the report.
1 should like to support, therefore, the suggestion made by the
representative of Iraq that, in case a petition is made by the people
of South West Africa that they should be heard on the report, their
petition should be accepted by the Trusteeship Council." (Trustee-
ship Council, Second Session, First Part, 15th Meeting, I December
1947 ,.128.)
A further statement on 12 December, Mr. President, in the same Trustee-
ship Council,page 476, reads :
"lt is stated in the resolution that the Union Govemment is going
to 'maintain the statrisquo and to continue to administer the terri-
tory in the spirit ofthe existing mandate ...'
The least that this Council could do, therefore, is to examine this
report in the same .way that the Permanent Mandates Commission
used to examine the reports of the Union of South Africa. 1Saythat
is the least which this Council could do, because 1 also associate
myself with the observations of the representative of China to the
effect that the Trusteeship Council could examine the report as if ARGUMENT OF MR. DE VILLIERS 481
it were a report from a Trust Territory." (Ibid 12,December 1947,
P. 476-1
Mr. President, .there we see an inconsistent attitude, inconsistent with
the earlier extracts which 1 read to the effect that there could only be
consideration of voluntary information on the basis of Chapter XI of the
Charter.
It was not consistent attitude but still, in so far as it identified itself
with the general statement of the Chinese representative that for pur-
poses of examination of this report the Trustceship Council was to be
regarded as having taken the place of the supervisory organs of the
League, there is no reference whatsoever to anything which may be said
to have invoIved agreement or consent on thepart of the Union of South
Airica. On the contrary, there is apointed reference to theattitude taken
up by the Government of the Union of South Africa, namely that it was
continuing to administer the Territory in the spirit of the Mandate.
[Public heariag of8 A#riL 19651
1was dealing yesterday with the attitudes expressed, one by one, by
the 12 States which were members of the Trusteeship Council during the
years 1947-1949.Thiswas in answer to the Applicants' contention that
within the Council it was agreed that the Mandate continued in fui1force
and effect, and that the United Nations was the proper supervisory
authority. I dealt at the conclusion 14th the attitudes expressed by nine ,
of the States, and 1proceed now to the tenth one, the Soviet Union.
The statements to which I shall refer are al1contained in the Counter-
Mernoriai, II, the first one being at page 281. There Mr. Stein said as
follows :
"It is also known that the South African Government refused to
comply with this recommendation [to submit a trusteeship agree-
ment] and set up an absurd juridical status for South West Africa
which consisted in the administration of South West Africa being
carried out 'inthe spirit of the League of Nations Mandate'. 1 çay
that this is an absurd juridical status, since now, in 1947a ,fterthe
League of Nations and the mandate system have ceased to exist,
and reference is made to this system in order to conceal the actual
annexation of South West Africa."
The next reference is on page 284 (II) ofthe Counter-Mernorial-a state-
ment in the Tmsteeship Council in July 1948by Rlr.Tsarapkin:
". ..his delegation held that the Tmsteeship Corncil could not con-
sider the report submitted by the Government of the Union of South
Africa, because the sfatus of the Territory was at present undeter-
mined. While it was tme that the Union of South Africa had declared
that it would administer the Territory in the spirit of the existing
, mandate, it should not be forgotten that both the mandate system
of the League of Nations and the Permanent Mandates Commission
no,longer existed. Hence, there was no le al basis for the administra-
tion of that Territory by the Union of Luth Africa."
In August of the same year there was a further statement by the same
speaker :
"He was of the opinion that a report on the.Territory of South
West Africa could be considered only after this Territory isincluded482 SOUTH WEST AFRICA
. in the Trusteeship System and a Trusteeship Agreement is approved
by the General Asçembly ...He considered that there euist on1 two
alternatives todeal with the former Mandated Temitory of louth
West -4frica-either this Territory should become an independent
Stateors!iould beincluded inthe Trusteeship System ..." (II, p. 284.)
So, Mr. President, there was a very clear and unambiguous attitude-
the mandates system no longer exiçted, nor did the Mandate, and the
UnThen Nweicome to the attitude of the United Kingdom, the next one onm.
the list, No.II,1refer to the same page of the Counter-Mernorial, where
the following statement by Sir Alan Burns in the Trusteeship Council
on 4 August 1948appears:
"The Council had been asked to consider the report on the ad-
ministration of South West Africa simpiy because that Territory
wto see it placed under the Trusteeship System. Itrnwas himportant,
therefore, to bear in mind that the Council's consideration of the
report on the administration of South West Africa and its report
thereon to the General Assembly were sui generis;the Council had
no right to assume that the General Assembly would take any par-
ticular course of action on the basisofthe Council's reports."
1 emphasize, Mr. President, the staternent that the Council had beeit
asked to consider the report "simply because that Territory was formerlp
under the Trusteeship System".al Assembly hoped soon to see it placed
Then there is a later statement, given at page 286 of the Counter-
Memorial (II)-a very esplicit one:
"It could not be said tliat the Government of the Uiiion of South
Africa had repudiatcd its previous assurance since it had cornplete
liberty to decide whetheror not to transmit information."
That was saidin the course of the debates on that subject on November
1949, when the deciçion of the Union Govemment had been conveped
that it would no longer subrnit information as before.
That again makes it clear, Mr. President, that in the contemplation
of the United Kingdom there could be no accountability to the United
Nations because Respondent had complete freedom to decide whether or
not to transmit information.
The last one on the list-not the least-No. 124s the United States
of Arnerica. There 1would Iike to refer the Court first to a statement by
Mr, Dulles in the Fourth Committee in October 1947 ;e get that in the
Counter-Mernorial, II, at page 281:
"The Union of South Africa had no legal title to the territory at
present, because its only title wasMandatory under the League of
Nations."
This is, therefore a clear attitude, Mr. President, that the Mandate no
longer existed. This was in October 1947.
a statement by Mr.Gerig which is not quoted in the Counter-Mernorial. is
1 shodd like to read it to the Court now-the reference is.Tmsteeship
Council, Second Session, 1st Part, 6th Meeting, pages 130-r31: ARGUMENT OF MR. DE VILLIERS 483.
"Mr. Gerig (United States of America): '1 am substantially in
accord with the representative of Mexico. 1 think the only real ques-
tion left before us is what to do with the petitions relating to South
West Africa referred to in document T/55. 1 think there were some
members of the Council who felt that we should hear such petitioners
orally. If we did that, we wodd be treating this territory as if it
were a Trust Territory, and 1 think everyone now agrees that we are
not going to treat it as a Trust Territory.
On the other hand, it is a mandated territory, recognized as such
by everyone, including the Union of South Africa. As has been said
here before, petitionswere examined by the Mandates Commission,
and we actually have apetition before us. 1 think the question will
be whether we shail consider this petition to be admissible or not.
That seems to be still an open question. Otherwise,.it seems to me
that the procedure with reference to this report is entirely clear'."
The Court will recall that the Applicants in the course of their argument
quotedthis excerpt : "... it ia mandated territory, recognized as such
by everyone, including the Union of South Africa" (p. 160,supra). Before
commentingon that, andthe contrast between this statement and the one
by Mr. Dulles which I have just read1 should also like torefer to the state-
ment by Mr. Gerig, the same speaker, in the Trusteeship Council on 12
December: we cite that in the Counter-Memorial, II,at page 281. Mr.
President, 1 wish to emphasize that this statement was made on xz De-
cember 1947 ,ome 12 days after the previous statement 1have just read,
and during the course of the same debate in the Trusteeship Council as
to what the approach of the Council ought to be to the particular report
which had been submitted by the Union for information purposes:
"It was said here [Mr. Gerig said] earlier this afternoon, and 1
did not hear any member object, that while we al1 hope-my dele-
gation as much as any delegntion feeIs that way-that there will
be a trusteeship agreement for this territory, we do not, in the
absence of a trusteeship agreement, have supervisory functions over
this territory.Therefore, 1 do not think we ought to imply that we
do have supervisoryfunctions to ensure that the Union Government
discharges its duties under the present mandate, admitting that it
exist." (IIp. 281.)
Mr. President, in these various statementç on behalf of the United
States we find an exact replica of the general situation which we find
amongst the various States at the time. We find uncertainty, disagree-
ment, or inconçistency-call it what you will-on the point whether the
Mandate was still in existence. Here we have two representatives of the
same State, one saying that in his view South Africa no longer had any
title to administer South West Africa, because the Mandate must be con-
sidered as having lapsed; the other representative saying, two months
later, that everybody was in agreement that the Mandate was in exis-
tence.
But, Mr. President,the other important aspect isthis, that this second
speaker proceeded from the basis that the Mandate was in existence
but as a clear and explicit view to the effect that the United Nations
had no supervisory authority in respect of the Mandate. That illustrates
the antithesis which existed at the time; it was an antithesis between
these two attitudes or views, namely that either the Mandate had lapsed,44 SOUTH WEST AFRICA
or that if it existed,it existed without supervisory authority on the part
of the United Nations. There was no support whatsoever, hlr.President,
for the attitude contended for by the Applicants, namely that the Man-
date was in existence, with supervisory authority on the part of the
..ited Nations.
1 have now corne to a stage where 1 should summarize the effects of
this total review, but before doing so, 1 would like to revert to the atti-
tude adopted by China. The Court \vil1recall that 1 looked for a passage
yesterday which 1had in mind but could not find it at the ttime. It is on
record in the Counter-Mernorial, II, at page 282. It isa statement that
wasmade byMr. Liu Chieh in the Faurth Committee on 9 November 1948.
It may be as well that 1 could not find it.yesterday, because on checking
it forcontext yesterday afternoon, 1found that in the speech as a whole,
which avasmade on that occasion, there are other passages which very
cléarlyindicate what the attitude of the Chinese delegation was at that
time. 1refer, Mr. President, to the OficialRecords oftheFourthCommittee,
Part 1, which relate to the period 21 September to 22 November 1948.
1 quote from page 294 (G.A.,O.R., Third Session,4th Cornmittee), where
the address by the representative of China started:
"Mr, Liu Chieh expressed appreciation of the gesture which had
been made by the Union of South Africa under the administration
.-' of Field Marshal Smuts in transmitting to the United.Nations a re-
port on South West Africa."
Mr. President, 1 need hardlk emphasize the significance of the expres-
sion "the gesture which had been made by the Union of South Africa",
It clearly reveals no contemp1,ationon the part of the speaker that there
had been a legal obligation to submit any information at all, let alone
to report and account under a mandate.
The speaker proceeded-I am reading from tlie same page:
"He refuted the South African representative'~ assertion that
. the Trusteeship Council had exceeded its competence by examining
.>. the report on South West Africa submitted to the United Nations
by the Union Governrnent, and, in turn, reporting thereon to the
.. General Assembly. The Trusteeship Council in so doing, had merely
carried out the instructions of the General Assembly to that effect,as
expressed in its resolution of the previous year."
.Mr. President, again there is no reliance on the premiçe that the& was
an .obligation to report and account on the part of the Union and the
corresponding power of supervision on the part of the Trusteeship Cam-
cil. There is merely a reference to the fact that the Trusteeship Council
was re uired to act on the instructions of the General Assembly, and in
fact di1 sa.
Then, Mr. ~reiident, at the top of the next page we find this passage:
"H; felt that certain of the points iaised by the South frica an
representative required an irnmediate answer. Only a year ago, the
Union Government had informed the United Nations that ithad
decided not to proceed with the incorporation of the Territory,+but
that it intended to maintain the status quo and continue to adminis-
ter the Territory in the spirit of the Mandate, It also undertook to
subrnit reports on the Territory for the information of the United
'Nations." (rbid p. 295.) ARGUMEXT OF'IIIR. DE VILLIERS 485
Now this address, as the Court will recall, was delivered in 1948. It
referred back to statements made the previous year (1947 by) the Union
Government, makingit perfectly clear that there was nomisunderstanding
whatsoever on the part of the delegation of China as to the basis upon
the information of the United Nations". And it was in thiscontext, then,r
that the speaker proceeded to deal with the question whether there was
any obligation under the provisions of the .Charter to enter into a tms-
teeship agreement. He arrived at an affirmative conclusion, and in the
course of his reasoning said (at p. 2961,asfollows:
"It was true that asno trusteeship agreement had been concluded
for South West Africa, the United Nations could not intervene or
exercise its power of ,super,visio,nin regard to that Territory. But
paragraph 2 of Article 80 imposed an obligation to conclude such
an agreement without delay." (II, p. 282,.)
Mr. President, it seems, therefore,. summarizing the attitude of the
delegation of China, that it amounted to this: in general, that delegation
was in agreement with the proposition that outside trusteeship; there
was no power of supervision on the part of the United Nations. The
delegation contended, however, that there was an obligation-a legal
obligation-to enter into a trusteeship agreement. And, arguing appar-
ently from that premise, its attitude in the previous year (when a report
before the Trusteeship Council submitting information from the Union
Government), was apparently that, as this opportunity had been afforded
by the Union Government for exercising a function similar to that which
had been exercised by the Permanent Mandates Commission, that op-
portunity was therefore to be used by the Trusteeship Council; and that
for that purpore the Security Council could be viewed as exercising a
similar function to that which had:previously been assigned to the
Permanent Mandates Commission. But, Mr. President, there was full re-
cognition of the fact that there had been no agreement-nothing in the
nature of consent or acquiescence on the part of the South African Govern-
ment-to a substitution.ofsupervisory organs for purposes of.account-
ability under the Mandate. That appears very clearly from al1these pas-
sages 1 have read.
That seems to have been the Chinese attitude at the tirne, and the
attitude of the other State which identified itself with them-the Philip-
pines-with whose attitude 1dealt yesterday.
Therefore, Mr. President, wg may sumrnarize the attitudes taken by
the r2 States represented on the Security Council at the tirne as follows:
first of all, there were at least five of these States which took up the
attitude that the Mandate had lapsed on dissolution of the League. They
were: Costa Rica, France,,Iraq, Mexico and the Soviet Union. A sixth
State-the United States of Ameri~a~stated through one of its repre-
sentatives a view that the Mandate had lapsed; through another that it
had not lapsed-that it was in existence, but without accountability.
Then, on the question whether there was any supervisory authority
States held a very clear and unqualified view on that point, to the effect
that outside a trusteeship agreement there waç no such su ervisory power
on the part of the United Nations. These States were: Rrtraua. Costa
Rica, France, Iraq, Mexico, New Zealand, the Soviet Union, the United486 SOUTH WEST AFRICA
Kingdom and the United States of Arnerica. 1 have, of course, included
in this list the States which took the view without more, that the hlan-
date had lapsed, because from that it would follow that there could not
have been accountability under a mandate to the United Nations.
Two further States with which1have just dealt-China and the Philip-
pines-took a view which in general appeared to àgree with theattitude
of these nine States, except that they took a different ljnas to what
the functions of the Trusteeship Councilcould be in respect of the partic-
ular report which it had before it i1947 .he attitude appeared to be
that, although, in general, there was no supervisory power on the part of
the Trusteeship Council to perform functions similar to those which for
had been performed by the Permanent Mandates Commission.
The twelfth State was Belgium, whose attitude was, on the one hand,
that by virtue of Article 8(1)of the Charter the people of the Territory
were entitled to have the Territory supervised. That was in principle
their general attitude; but on the other hand, Belgium recognized that
there had been no agreement by South Africa to have United Nations
supervisoryorgans substituted for those of the League. That point we
emphasized yesterday when dealing with the statements made on behalf
of Belgium.
Not in one single case, therefore, Mr, President, of these members of
the Trusteeship Council, do we find an attitude supporting, or corres-
ponding with, that taken up by the Applicants in thiscase. Not one of
them took up the attitude that there was agreement, consent, acquies-
cence, on the part of the South African Government to a substitution
of siipervjsory organs, andthat on that basis the United Nations had
supervisory functions or powers, outside trusteeship.
It is true that the Council did consider the Respondent's report for
the year 1946, which had been submitted voluntarily for the limited
purpose of furnishing information, but iisclear-that the Applicantç afe
completely wrong when they Say, with reference to the Trusteeship
Council, firstIy, that it was agreed that the Mandate continued in full
forceand effect, and, secondly, that it was agreed that the United Nations
was the proper supervisory authority.
Mr. President, 1 have dealt specialiy with the views expressed by the
12 members of the Trusteeship Council, in order to refute the explicit
statement advanced by my learned friend, Mr. Moore; but the same
resuIt as I have just stated to the Court, follows from an analysis of
the attitudes adopted over the years 1947-194 by9 al1the Members of
the United Nations.
We have included in our Counter-Mernorial, firstly, references to
debates conccrning the question of South West Africa, in which member
States participated over theyears 1947-194 a9d, gave, as fullyas we
could find from our investigations, al1references to debates in wh~h this
question was raised, in which any attitude whatçoever wasexpressed by a
Mernber of the United Nations over those years. The reference is Annex
A to Book II of the Counter-Memorial (II), pages258-274.
Secondly, we gave extracts from statements made in such debates.
have just given the Court. They are contained in pages 275-286of the1
Counter-Mernorial (II).
I shall not now take up the time of the Court by reading more exten- ARCUMEXT OF MR. DE VILLIERS
487
sively from al1these statements. It mil1suffice, Mr. President, to repeat
very briefly the conclusions which we draw in our Counter-Memorial
from these statements, and to indicate to what extent, if any, those con-
clusions have been affected by anything contended for by the Applicants
in these Oral Proceedings. The conclusions to which 1shall refer are set
out in Book II of the Counter-Mernorial (II), aépages 65-71,
The first one of importance is that throughout the period 1947-1949,
the Respondent repeatedly stated itsattitude, namely firstly, that it was
not obliged, and was not prepared, to enter into a trusteeship agreement;
and, secondly, that in the absence of such.an agreement, the United
Nations would have no supervisory junsdiction in regard to South West
Africa. The Members of the United Nations could not have been unaware
stated clearly,explicitly and repeatedly. In the yearI947, Mr. President ,
when the statement to this effectwas madeearly in the debate, in Septem-
ber, by Rlr. Lawrence, not a single State either alleged or suggested that
there was at any time an agreement, express or.implied, or any under-
standing, ~vherebythe League's supervisory powers over the Mandate
became vested in the United Nations, or whereby Respondent became
obliged to report and account to the United Nations regarding compliance
with its substantive mandate obligations. Not a single State stated that
attitude during the whole of 1947.In spite of the fact, as we point out,
thirdly, that in addition to Respondent, 40 other States participated in
the debates on South West Africa in that year, and that at least 14 of
these States, either expressly, or by clear implication, acknowledged that,
in the absence of a tmsteeship agreement, the United Nations would
have no supervisory jurisdiction in respect of South West Africa.
These 14States were Australia, China, Colombia, Cuba, France, India,
Iraq, the Netherlands, New Zealand, Pakistan, the Philippine Republic,
the Soviet Union, the United States of America and Uruguay.
Fourthly, we point out that similar views were expressed a1ço on
behalf of at least four other States during 1948 and 1949. These States
were Canada, Costa Rica, Greece andthe United Kingdom.
Fifthly, Mr. President, we point out that it was only from the end of
1948 that certain States began to contradict in any way Respondent's
contention regarding supervisory powers, or the absence thereof, on the
part of the United Nations. These States were Belgium, Brazil, Cuba,
India and Uruguay.
Now, Belgium's attitude, as 1 have already indicated, Mr. President ,
rested on Article 80 (1)of the Charter: it was simply a broad attitude to
the effect that the people of the Territory were entitled to have inter-
national supervision. On the other hand, Belgium's representatives
acknowledged in their statements that there had been no agreement on
the part of South Africa to a substitution of supervisory organs.
Brazil, Mr. President, stated an attitude (we record in the Counter-
Memorial, II, at p. 285).by way of an argument very much on the lines
of the "organized international community" theory, which the Applicants
advanced at previous stages in these proceedings, but which they no
longer appear to advance as a theory which by itself leads them to their
conclusion.
The view adopted by Brazil was that, inasmuch as South West Africa
had.been placed under the mandate system of the Leape of Nations, it
was 'lunder the supervision of the Community of Nations, namely the488 SOUTH WEST AFRICA
on the basisoflthis theory, there was nonecessity whatsoever foralleging,
or establishing, a new consent on Respondent's part, at the tirne of
transition. In fact, thewas, on the part of Brazil, no allegation whatso-
ever that there was in the transition stage such a fresh consent or agree-
menton Respondent's part regardingasubstitution ofsupervisory organs.
Cuba's attitude was not a consistent one. At first it was to the effect
that Respondent's report could not be examined by the United Nations
because "South West Africa was neither a Trust Territory, nor a Non-
Self-Governing Territory". (Ibid., p. 276.) The argument was, Mr.
President, that the Charter recopized only three categories of States or
territones; firstly, trust temtories, secondly, Non-Self-Goveming
Territories, and thirdly, independent States. There was, therefore, no
scope, on the basis of that attitude, for carrying on with a mandate as a
mandate,let alone any scopeforcarryingon withan obligation ofaccount-
ability under a mandate. That was the attitude stated for the first time
on 26 September 1947,and again in a similar statement on 8 October
1947.
Later, Mr. President, Cuba argued differently-
"... the rights and duties of the United Nations were the sarne as
those of-the League of Nations for both organizations represented
the international community". (LI p, 285.)
In other words, here we have a similar argument to tliat which 1 have
just refeyed to in the case of Brazii-an argument based on the idea of
an organized international comrnunity, so that the original obligation
to submit to the supervision of the League organs was now to be seen as
an obligation to submit to organs of the United Nations.
The same implications arise as in the case of Brazil: in other words,
Respondent's npartsin the transition stage;, and, in fact, there was no
allegation whatever, ontlie.part of Cuba, that there was such agreement
or consent by the Respondent in the transition stage.
Next we corne to Ingia. India's attitude alsoundenvent a change. As
we indicated in the Counter-Memorial (ibidp ..i77) ,n 1947, India
submitted a draft resolution containing the followingstatement:
"Wkeas the territory of South West Africa, though not self-
goveming, is at present outside the control and supervision of the
United Nations."
In rg48, however, India argued, in a passage which we quote in the
Counter-Memorial {iliidp.2831,that Article 80of the Charter safeguarded
the rights of the people of South West Africa. It was a similar attitude to
that taken by Belgium, and again the attitude was a vague and broad
one, namely that the people of the Territory were entitled to have
international supervision, but there was no allegation of consent on the
part of the Respondent to a substitution of supervisoryorgans. Thatwas
achange fromthe attitude indicated in the draft resolution ofthe previous
year; but in 1950, in presenting argument to this Court in a written
statement in relationto the Advisory Opinion which wasbeing sought by
the United Nations, India again reverted very explicitly to its first
attitude. It stated:
"... Article6 of the Mandate andthe iirst portion of Article 7of the
Mandate have become incapable of being complied with ... The ARGUMENT OF MR. DE VILLIERS
489
result is that the mandatory is not obliged to submit to an annual
report under Article 6 ..." (Ibid., p71.)
In the case of Uruguay, the view it expressed in 1947 is given in II,
p. 281, and reads:
"... impossible to concéiveof a mandate Continuing, even only in.
spirit, now that the body which granted it, the League of Nations,
has ceased to exist".
In In 1948,however, Mr. President, we find a change of attitude when theed.
representative of Uruguay reiied on Article 80 of the Charter and argued
that the United Nations had taken the place of the League as the
"CO-ordinating centre" of the "civilized and organized international
collectivity", with the result that iwas-
"... through the organization [the United Nations] that the Union
of South Africashould fulfl jtsobligations towards the international
cornmunity and give an account of its administration". '(lbid.,
P. 285.)
Again, Mr. President, here is an. attitude corresponding with 'that of
Brazil and to the later attitude of Cuba, with the sarne implication that
it was not necessary to establiçh fresh consent, at the transition stage,
on the part of the mandatory, and no.attempt, in fact, to establish or
allege that there was any such consent.
As we analysed the position' in the pleadings, pdicularly in the
Counter-Mernorial, Mr. President, only these fiveStates at any time in
the relevant penod, 1947-194 exp,ressed views in conflict with Respon-
dent's contention about supervision, but in three of the cases they were
inconsistent in their statementsand inal1the casesthere was no allegation
of consent to a substitution on the Respondent's part, in or after the
transition stage. That is very important, because even those States which
arrived at the result which accords with that which the Applicants are
acknowledge to be a necessary one, namely to establish suchanta new con-
sent or agreement in or after the transition stage. This is very significant.
Mr. President, because it means that, while the Applicants contend for a
general consensus or agreement or 'understanding on that point-Le.,
that the United Nations would have supervisory jurisdiction; the actual
position is that of al1these States which it is suggested were participants
in that general agreement or understanding, not a single one of those
which expressed its views on the situation, lentany colour of support to
that contention-not a single one of them appears to have been aware
of this suggested general understanding.
In the lightof the oral review which 1 have given, the cases of China
and the Philippines may perhaps be said to be more borderline than we
indicated before. Perhaps one may have to add these two to those five
States and Saythat the total list, therefore, is seven States, of which five
made inconsistent statements. But as 1 contended, in truth, our classifi-
cation of those twoStates, China and the Philippines, hlr. President,
still stands, because thcir general attitude was as we contend for-and
it was only in the manner of dealing with the specificreport of1947 that
they took a diffcrent line from that of the otherStates.
In the result, as 1 say, not a single State supported the Applicants'4g0 SOUTH WEST AFRICA
present contention that there was such a consent on the Respondent's
part during or after the transition stage, and the importance of tliis
'onclusion is self-evident.
Now, Mr. President, rnay I refer to the reaction which OUT summaryin
the pleadings, to which 1have just referred, elicited from the Applicants.
The first aspect thereof we find in the argument of my learned friend,
Mr. Gross. He quoted from the statement made bythe United States of
America to the Court in 1950, and he then said: "there was conIusion
.among the Mernber States of the United Nations over the years 1947 to
1949 as to Respondent's position in connection with the Mandate." He
quoted from the 1950 statement by the United States of America, to the
effect that "a minority of the Assembly took the position that the Man-
date had already expired". (P. 209, supra.)
He quotedfurther (ibzd.):"South Africa at the sessions of the General
Assembly in 1946-1947by no means embraced the minonty view but ..
firmly supported the view of the majority."
From this, then, my learned friend, Mr. Gross, argued that there was
confusion and he said the following:
"... as the actuaI history of the period makes clear, the issue as to
which Members of tlie United Nations were confused and at odds
was not as between international supervision over the'mandated
territory and no supervision. The issue drawn, rather, was that
between supervision under the Mandate or supervision under the
trusteeship system. It was hesitancy and confusion, reflected in
nurnerous statements made and often shifting within the same
delegation-it was hesitancy and confusion as between these two
alternatives (supervision under the mandates system or supervision
under the trusteeship system)." (P. 210,supra.)
Mr. President, the review which I have just given, inmy submission;
very clearly shows that this analysis is not true. Firstly, it is a complete
no% sequiturto Say that because certain States differed on the question
whether the Mandate was in force, there was therefore confusion in
regard to supervision. 1 have indicated, Mr. President, how those t~o
things were not related, in fact, in the minds of the States which spoke
on the subject, namefy how they themselves differentiated between those
two questions. Secondiy, hlr. President, to Say that there was confusion
between the two alternatives of supervision under the mandates system,
and supervision under the trusteeship system is to advance a proposition
which is, in my submisçion, entireIy inconsistent with the record and in
conflict with the record. It istrue that States weredivided on the question
whether the Mandate was in force. Some of the States held that it was in
force; others held the contrary view. But, as 1 have already indicated,
an analysis of the statements made by the members of the Tnisteeship
Council, shows that at teast five members of the Council were of the
opinion that the Mandate had lapsed. 1 may also refer the Court to our
Rejoinder, V, pages 63-66, where we deal in more detail with the
attitudetaken up by certain States on the question whether the Mandate
had lapsed or not.
It is conceded from our side, Mr. President, thatthe majority held the
view that the Mandate was in force, and it may also be conceded, as 1
indicated before, that the Respondent, until 1948, acting through its
government of the time, shared the views of the rnajority. But that does ARGUMENT OF MR. DE VILLIERS
49I
not mean that there was any confusion at ail as to whether the United
Nations had supervisory powers regarding the Mandate.
of course, not have been of the opinion that there was any supervisory
authority-any obligationof accountability under the hlandate.
On the other hand, those Members who thought that the Mandate was
in force, need not have been of opinion that the powers of supervision
under the Mandate had passed to the United Nations; and 1 have
demonstrated, Mr. President, that, in fact,with very fewexceptions, they
did notthink so.
A very striking example to prove this point is the self-same one the
Applicants seek to use to the opposite end, and that is the case of the
representatives of the United States. 1dealt this morning with what they
actually said in that regard. The Applicants Say, with apparent concern:
"The Respondent, indeed, goes so far as to cd into question the
views of the United States itself on this matter, notwithstanding
clear expression of viewson thepart of the United States representa-
tives to the United Nations, induding Mr. Benjamin Ge@, the
1947,and hirnself ahrecognized authority on mandate and trusteeship
affairs."(P. 210, supra.)
The Applicants then quote Mr.Gerigas having stated at the 15th Meeting
of the Trusteeship Council in 1947asfollows: "1 am among those who
always have believed that the Mandate does continue in force, but there
are others who do not take that view." (Ibid.)
But, Mr. President we find that this very same "recognized authority
on mandate and trusteeship affairs", Mr.Gerig,stated at the same rneet-
ing of the Council what 1read to the Court earlier this morning, narnely:
"It was said here earlier this afternoon, and. 1 did not hear any
member object, that while we al1hope-my delegation as much as
any delegation feels that way-that there will be a trusteeship
agreement for this territory, we do not, in the absence of a trustee-
ship agreement, have supervisory functions over this territory.
Therefore, 1do not think we ought to imply that we do have super-
visory functions ..." (II,p. 281.)
The attitude expressed by him is so explicitly clear that one can hardly
understand how Applicants can still argue, that hlr. Gerig's attitude
that the Mandate was stili in existence, implied a conception that there
was also supervisory power on the part of the United Nations. In fact,
Mr. President, Mr. Gerig hirnseIf shows that that suggestion is entirely
unfounded.
Accordingly, Mr. President, there is nothing strange in the position
which the Applicants state in the verbatim record:
". ..of the list of States cited in the United States statement as
holding the view that the Mandate responsibilities continued in
existence, six of the me States are listed by Respondent as holding
the view that the Respondent had not remained under a duty to
submit to international supervision". (Pp. zog-z~o, supra.)
There is nothing strange in that position, Rlr.Preçident. \Ve list those
sis States as holding the view that Respondent did not remain under4gZ . .SOUTH {EST AFRICA .
a duty to submit to international supervision, not .becauseof any fantasy
on Ourpart, but simply because those six States had, in fact, expressed
their opinions very clearly on that point. And it is hardly necessary to
sây that this fact in itself disproves the Applicants' staternent to the
effect that in the years 1947 to 1949there was confusion as between
what they cal1the two alternatives of supervision under the mandates
systern and supervision under the trusteeship system.
What are the implications of this statement-this argument advanced
by the Applicants-this analysis which they give to.the events of the
years 1947to 1g4g? The implication is, Mr. President, that all, or at least
the preponderant number of the States, Members of the United Nations,
were agreed on the .fact that. there was intemational accountability-
that there was a power of.supervision on the part of the United Nations-
but that the issue lay .between the question whether that power existed
under the mandates system or under th: trusteeship system. That is the
implication of this argument, but the analysis which 1gave to the .ourt
this morning, proves how entirely incorrect this statement is.
Take the position in the',Trusteeship Council alone, ,where we find
that nine out of the 12 members were definitely of the opinion that
Outside trusteeship the' United Nations would have no super,visory
power, and that two others appeared to agree wit* that opinion, s'ubject
to the qualification which 1 have mentioned.
Further, Mr. President, the analysis in the Counter-Mernorial of the
attitudes of al1mernberi who took part in the debates, also shows how
completely wrong this statement of the Applicants is. It shows that
out of a total membership of more than 50-it was in fact 57 in 1447-
only five indicated the view that the United Nations had supervisory
powers in respect of South West Africa outside of trusteeship, and that
of those, three were not even consistent.
Mr. President, my leamed friend, Mr. Gross, did not attempt to
disprove this analysis fo which 1 have just referred. Instead, as 1 have
indicated, he advanced an argument on alleged confusion between these
concepts but, from what 1 have just said to the Court, 1 submit that it
will be perfectly clear that there is no substance in that argument at all.
My Ieamed friend, Mr. Moore, also dealt with this subject-matter, but
he reacted in a'different way. He did not rely on confusion, but attempted
to prove that it was agreed in the Tnisteeship Council that "the United
Nations was the proper supervisory body", and with that object in view
he cited extracts from three speeches in the Council,which we find in the
verbatim record at page 160, sllpra.
1 have already demonstrated, Mr, ~resident, that this staternent is
wholly unsupported and, indeed, in direct conflict with the record of
mernbers, isolated from their context, with no reference to the attitude
of the other members of the Council, and, therefore, gives a completely
wrong picture of what the general attitude in that Council was.
My leamed friend, hlr. Moore, also made an attempt in another way
to controvert our argument regarding the practice of States in the years
1947to 1949. It will be recaiied, Mr. President, that in our Counter-
Mernoria1we also dealt on this point with views expressed by Mernbers
of the United Nations over that period regarding mandates other than
the Mandate of South West Africa. 1 refer to pages 67 to 70 of the
Counter-Memorial (II), in which we cited passages from statements and ARGUMENT OF MR. DE VILLIERS
493
reports concerning Western Samoa, the former Japanese Mandated
Islands, and the Mandate for Palestine.
In regard to Western Samoa there is a very pertinent statement .by
New Zealand, the former mandatory power. Although 1 do not intend
to read al1these passages to whic1have referred, I should like to read
this one by New Zealand because it is a very pertinent one, and because
of the important role whicki New Zealand played in this regard. New
Zealand apparently had difficulty in discussionsin the Fourth Committee
on the question of the terms of its proposed trusteeship agreement for
draft in some respects. Its repreçentative then stated 22mNovember
1946: . .
"New Zealand, although itwould be most CO-operative,could not
be forced to arnend its draft agreement. The result of -disapproval
of the draft agreement by the General Assernbly would be that
New Zealand would carry on, as in the past, its sacred trust to lead
the.people of Samoa in their orderly progress towards self-govern-
ment. In thiseventualitNew Zeuiand would havetocaw on withut
theplivilepoftheSUPEN~ bS~tOWUnite dationswhiclil desired."
(Italics added.).
1 need hardly stress the signiticance of this staternekt, Mr. President,
coming as earjy as 22 November 1946 from New Zealand, one of the
mandatory powers which had made statements at the final session of
the League Assembly-coming, as 1.say, a bare seven months after
those statements were made, and making it perfectly clear that the
interpretation which1, in any event, submitted was to be given to this
statement made by New Zealand on that occasion, was, in fact, the
interpretation intended by the New ZeaIand representative-namely
that there was no question of submitting to supervisory authoritythe
part of the United Nations, outside tmsteeship, after the dissolution of
the League.
.At page 68 (II)we deal with statements made by the representative
to the Japanese Mandated Islands, and particularly the question whether
the Security Council was competent to decide whether Japan had
violated its obligations under the mandate or not. His firm attitude was
that there wasno such power on the parof the Security Council, because
there was no continuity,either legal or othenvise, between the mandatory
system of the League of Nations and the trusteeship systern laid down
in the United Nations Charter.
And then there is the case of the Mandate for Palestine. We give, firit,
at pages 68 to 70 the extracts from the unanirnous report of the eleven-
nation Committee, and then at page 70 a statement of a United States
representative in March 1948 , hen he said:
"The United Nations does not autorn&ically fa11heir to the
responsibilities either of the League of Nations or of the Mandatory
Power in respect of the Palestine Mandate. The record seems tUS
entirely clear that thUniled Nationsdid nottake overtheLeague of
ATationsMandate system." (Italics added.)
Reverting to the report of the ~~ecial:Cornmittee on Palestine, we
find the relevant extracts set out at pages 68-69 of 1Iam not going
to read them extensively now. 1 have referred to relevant portions 494 SOUTH WEST AFRlCA
before and L shall only emphasize certain ofthe very pertinent parts of
these extracts.
First,1 read the extract at page 68 where it is said that after the
- dissolution of the League-
"The mandatory Power, in the absence of the League and its
Permanent Mandates Commission, had no internatioml authority lo
which it might submit veportand generally accoud for the exercise of
its responsibilities in accordance with the terms of theMandate."
(1talics added.)
1 read a further extract at page 69 of the Counter-Mernorial, II:
"But the League of Nations and the Mandates Commission have
been dissolved, and thre is îzow no means of dischrging fully the
international obligation with regard aomanduted territory othertharl
by$laci*g the tewifory under the International Tr%steeshi$System O/
the Unite dations."
Here is the most clear contemplation, Mr. President, of no supervisory
power outside the international trusteeship system, that is, as from after
dissolution of the League.
1 read again, a further extract a few lines further:
"The most the mandatory could now do, there/ore, in the evenittj
thecontin~alionof theMandate, wotsld6eto carryout its administration,
in the spiritf the Mandate, wilhout being able todischurgeits inler-
nalional obligations in accordance with the intent of themandates
system. At the time of the termination of the Permanent Riandates
Commission in April, 1946, the mandatory Power did, in fact,
declare its intention to carry on the administration of Palestine,
pending a new arrangement, in accordance with the general princi-
ples of the Mandate."(II, p. 69.)
Mr. President, 1 submit that on the basis of those citations there can
be no question whatsoever as to what the general contemplation was
in regard to Palestine, but my learned friend, Mr. Moore, in referring
to this very same report of the United Nations SpecialCornmittee,argued
as follows:
". . the general understanding in 1947 was that not only was the
Mandate for Palestine still in effect, but that the United Nations
had the authority to supervise the administration and termination
of that Mandate". (P. 161, supra.)
hlr.President. on analysing this contention, with reference to the
record in regard to Palestine, one finds again the old, old story. One
hds that the passages cited by the Appf cants do support the conclusion
that the Mandate was considered to be in force, despite the dissolution
of the League, but one fin& also that the second proposition is entirely
without foundation, namely that the general understanding in 1947 was
that the United Nations had authority to supervise the administration
and termination of that Mandate. Again there is the old confusion of the
two things-references are quoted supporting the first statement but in
no way supporting the second and, indeed, very often completely in
conflict with that second contention.
Mr. President, as regards the supervisory powers in respect of Pales-
tine, which the United Nations eventually obtained, it is true that
shortly before Palestine was, in fact, divided and became independent ARGUMENT OF MR. DE VILLIERS 495
on that basis, there was a brief petiod of United Nations supervision,
but the very point which is ernphasized by the record is this, that that
supervision came about as aresult of a specific arrangement, agreed to
by the United Kingdom-and it was quite clearly the contemplation
of al1 concerned that thatspecific arrangement was necessary in 'order
to bring about that supervision. There was no contemplation whatcoever
of a previously existing supervisory power on the part of the United
Nations.
We can statethe history of the events, briefiy, as follows. 2nApril
1947the United Kingdom addressed a letter to the Acting Secretary-
General of the United Nations requesting that the question of Palestine
be placed on the agenda of the next regular session of the General
Assembly, and stating that the United Kingdom Government would
submit an account of its administration of the Palestine Mandate to the-
General Assembly and would ask the Assembly to make recommenda-
tions, under ArticleIO of the Charter, concerning the future government
of Palestine. That was the gjst of the request, namely that there was to
be a recoinmendation by the General Assembly under Article IO of the
Charter concerning the future government of Palestine. We hd the
reference twhat 1have said inthe United Nations Special Committee on
Palestine's Report to the General Assembly, Volume 1, page I, and
Volume II, pageI.
At the outset, Mr. President, the United Kingdom made it clear that
it would not necessarily accept any United Nations' recommendation.
That we find in the sarne report, Volume 1, at pages1-2.
The reason for approaching the United Nations and the attitude of
the United Kingdom towards any solution that might be proposed by
the United Nations were explained as follows, by a British spokesman,
in a passage cited in the report, Volume 1, pagez:
"We [the United Kingdom] have tried for years to solve the problem
of Palestine. Having failed so far, we now bring it to the United
Nations, in the hope that it can succeed where we have not. If the
United Nations can find a just solution which willbe accepted by
both parties, it could hardly beexpected thwe should not lvelcome
such a solution. Alwe Say ,.. is that we should not have the sole
responsibility for enforcing a solution whiisnot accepted by both
arties and which we cannot reconcile with our conscience."
PG.A.,O.R., Second Session, Suppl. rr, Vol. 1,p.2.)
It is apparent, therefore, Mr. President, that the United Kingdom
did not place the matter before the United Nations in any spirit of
recognition ofa legal duty towards that organization, particularly a duty
of accountability to the United Nations as a supervisory power. This
was realized very wellby the Special Committce on Palestine, as appears
clearly from the passages which we quote in the Counter-Mernorial and
to which I have already referred this morning.
Nevertheless, Mr. President, the Applicants allege as follows:
".. . it seerns obvious that the vi& of the ~nited Nations Special
Committee on Palestine was:
(1)that the Mandate for Palestine was in effect notwithstanding
the dissolution ofthe League of Nations;
(2)thaf the United Nations had the authority to terminate the
Mandate; and4g6 SOUTH WEST AFRICA
(3) that the United Nations had the authority to supervise the
administration of Palestine prior to the granting of independence
to that territory." (P. 162, supra.)
Mr. President, in Our submission, the second of these pro ositions
"that the United Nations had the authority to terminate the hPandate"
is shown by the record to be without foundation.
We çubmit,in regard to thethird one, namely that the United Nations
had the authority to çupervise the administration ofPalestine, prior to
the granting of independence, that that proposition isvery ingeniously
worded, but thatit doeç not in the least support the Applicants' conten-
tion regarding the issue now before the Court.
Let me deal first with the second proposition that the United Nations
had authority to terminate the Mandate.
by my learned friend, Mr. Moore, that it seerns obvious that the view
of the United Nations Special Comrnittee on Palestine was, in one
respect, that the United Nations had the authority to terminate the
Mandate. 1 submit in that regard, blr.President, that, as we have
shown'in what 1 have just submitted to the Court-the extracts from
the whole submission of the problerntothe United Nations, and the way
in which it was handled-that the function of the Special Committee
was to propose asolution forthe Palestine problem, and thatthat solution
as proposed rnight or might not be accepted by the United Kingdom
Government. The,Committee'ç recommendationç regarding .the termina-
tion of the Mandate could not have been brought into effect without the
consent of the United Kingdom-everybody seemed clear on that point,
and, in fact, the eventual tesolution ofthe GeneralsSembly,to which I
willrefer later, took the form of recommendations to the United Kingdom
and then to other Members of the United Nations,
The tme position, therefore, seems to be that everybody accepted the
fact that the future of Palestine fell to be resobyeagreement between
the United Kingdom and the United Nations, an attitude which is, of
course, entirely consistent with the terms of the resoliition of the League
Assembly on 18 ApriI 1946 which contcmplated further arrangements
that might Ije agreed üpon between the respective mandatory powers
and the Unite dations.
The Applicants also contend that it seems obvious that the view of
this Committee was that the United Nations had the authority to
supervise the administration of Palestine prior to the granting of in-
quite clear, in our subrnission, that neither the Special Committeeeon
Palestine nor the United Kingdom Government considered that any
powers in this regard had passed to the United Nations at any stage prior
to the Cornmittee'sdeliberations. The recommendations of the Committee
which involved United Nations supervision prior to the independence
of Palestine, constituted part of their total suggested solution of the
Palestine question and, as1 have pointed out,that would have required
the consent of the United Kingdom. Indeed, it is clear from the very
tenor of the recommendations and from the terrninology employed in
them that the Comrnittee contemplated the establishment of a new
situation, and not the continuation of a pre-existing one. This can best
be illustratedby refen-ing to the scheme which was set out in the firçt
four of the unariimous recommendations of the Committee. ARGUMENT OF MR. DE VILLIERS 497
The firstof these unanimous recommendations was that "The hlandate
for Palestine shall be terminated at the earliest practicable date"-that
we find in the Committee's Report, Volume 1,page 42 (C.A.,O.R., Second
Session, Suppl. II).1may Say,in passing, that this was the recommenda-
tion in respect of which the Committee expressed its doubts about the
question whether the Mandate was in any event still possible of exe-
cution-the remarks which we quote at page 69 of the Counter-Me-
morial (II).
The second recommendation was: "Independence shail be granted in
Palestine at the earliest practicable date."
The third one read:
"There shall be a transitional period preceding the gant of
independence in Palestine which shall be as short as possible,
consistent with the achievement of the preparations and conditions
essential to independence."
Fourthly, there was the recommendation that-
"During the transitional period the authority entrusteci with the
task of administering Palestine and preparing it for independence
shall be responsible to the United Nations."(Ibid., Suppl. I, Vol.1,
P- 43.)
These second, third and fourth recommendations we find at page 41 of
Volume 1 of the Report.
clearly did.not,ascontemplate that the interim administration as a would
necessarily vest in the Mandatory Power; 1 Say the Committee as a
whole becausé their recommendations diverged in that respect. The
interim arrangements invoIved the creation of bdministrative machinery
which was to be, or which might be, somethmg different from that
pertaining under the Mandate. Indeed, Mr.President, the Mandate would,
in terms of the Cornmittee's recommendations, have been terminated
prior to the inception of the transitional period, and the United Nations
supervision in that transitional period could, therefore, not derive from
the Mandate-not .in the contemplation of the Committee. Supervision
by the United Nations hvould,as part of the interim arrangements, also
require to be specially created, and that the Committee recognized this
seems fairly clear from its comment to the following effect-1 quote
from the Report; Volume 1, at page 44:
."Certain obstacles which rnay well confront the authority en-
trusted with the administration during the transitional period make
itdesirable that a closelinkbeestablished with the United Nations."
(G.A .O.R., Second Sess., Suppl. XI, Vol. 1,p. 44.)
\jre submit that the word "established" is clearly inconsistent with a
view that Linkswere already in existence. In this regard, hlr. President,
a misieading impression may possibly be created by a passage in the
Applicants' oral statement in the verbatim record at page 162, supra,
which reads as follows:
"It was further recommended by the SpecialCommittee that dur-
ing the transitional period prior to the granting of full independence
to the territory of Palestine, 'the present Mandatory Power' shall
'carry on.the administration of the territory of Palestine under the
auspices of the United Nations . ..'." 498 SOUTH WEST AFRICA
Mr.President, the recornmendation in question was supported, not by al1
members of the Cornmittee, but by seven members, and one has to read
the whole of the recommendation in order to see it in perspective. We
et the reference inhe Report at page 47of Volume1-1 read an extract
b page 4s :
"During the transitional period, the present mandatory Power
shall:
(a) Carry on the administration of the territory of Palestine
under the auspices of the United Nations and on çuch conditions
and under such supervision as may be agreed upon between the
United Kingdom and the United Nations, and if so desired, with the
assistance of one or more Members of the United Nations." (Ibid.,
P. 48.)
Mr. President, the suggestion of a continuation of the Mandate with a
substitution of the United Nations for the League is, therefore, com-
pletely negatived by the requirement of agreement, as set out in thiç
, recommendation. Although this recornmendation of these particular
mernbers envisaged thatthe United Kingdom would remain in control of
the administration during the transition period, the supervision which
it recommended was to be such as might be agreed upon between the
United Kingdom and the United Nations. Three members of the Cornmit-
tee recommended differently: that we find in the Report, Volume 1,
page 59-the fact that they were three in the minority-and their actual
recommendation, reading as follows, is at page 60:
"With regard to the transitional period, responsibiliti for ad-
rninistering Palestine and preparing it for independence under the
conditions herein prescribed shall beentrusted to such authority as
,may be decided u on by the General Assembly." (G.A.,O.R.,Second
5ess.,Suppl. 11.Al. 1. p. 60.)
In the ultimate result, Mr. President, as the Court would know, the
majority recommendation on this point was not accepted by the United
Nations. There was what was called a Plan of Partition with Economic
Union, which was annexed to the United Nations resolution 181 (11)of
29November 1947,and which was recommended for adoption by rnember
States. In this Plan it was proposed that interim administration should
be placed in the hands of a United Nations Commission. LVefind that in
Part I B of the Plan, on page 133of the resolutions of the second session
of the United Nationsb .Vefind, further, in the same source (Part r B)
that this Commission would progressively take over the administration
ofthe Territory as the armed forces of the formerMandatory were with-
drawn.
Now, Mr. President, the Commission was, in turn, required to hand
over its powers progressively to the Provisional Councils of Goveriiment
to be established by it in each of the two new States. That is also men-
tioned inPart r B of the Plan, at pages 133-134 of the work to which I
have referred.
The Applicantsrefer to the following provision in this Plan (verbatim
record at p. 163, swpra): "The mandatory power shall not take any
action to prevent, obstruct or delay the implementatian bythe Commis-
sion ofthe measures recommended by the General Assembly." The Appli-
cants proceed to say, on the same page of that record, that thiç "makes
clear the understanding of the General Assembly that the United Nations ARGUMENT OF MR. DE VILLIERS 499
had extensive powers of supervision over the administration of the
Nandated Territory of Palestine".
Mr. President, in rny submission one could hardly imagine a more
flagrant7wn sequitw? .he powers of the United Nations.Commission, and
its relationship with the Mandatory, were matters which were to be
brought about in pursuance of the Plan, and that Plan could be adopted
and given legal effect to onlywith the consent of the hlandatory. How it
can. therelore, be said to involve acknowledgment of prior supervisory
power by the United Nations, 1 do not understand. It is the Plan that
provideç that the mandatory power shall not prevent or obstruct the
implementation of the measures by the Commission,and it is only upon
acceptance of that Plan-by the agreement on the part of the Manda-
tory-that that provision is to corne into effect.
The whole of resolution 181 (II) of 29 Novernber 1947,to which the
Plan is attached, makes abundantlp clear the need for consent thereto
by the former mandatory power. The resolution commences with the
followingparagraph:
"Th General Assembly,
Having met in special session at the request of the rnandatory
I'ower to constitute and instruct a special cornmittee to prepare for
the consideration of the question of the future government of
Palestine at the second regular sessio;"
That is the first paragaph ofthe prearnble.Its first operative paragraph,
read as follows, hlr. President-
"Reco~rnmmds to the ~nited Kingdom, as the mandatory Power
for Palestine, and to al1other Members of the United Nations the
adoption and implementation,with regard tothe future govemment
of Palestine, of the Plan of Partition with Economic Union set out
below." (C.A.,O.R. ,econd Sess., Resolutions, res. 181 (II), p. 131.)
"Kecommends to the United Kingdom" is the first operative part of
tlie first operative paragraph.
Bir. President, there is no substance, in our submission, in this sugges-
tion that the history of this Plan in regard to Palestine shows any
contemplation, on the part of the Cornmittee or on the part of the United
Kingdom, of any supervisory power of the United Nations prior to the
coming into effect of these special provisions which were to be arrived at
by special agreement.
1 have referred to the statement made by the representative of the
United States in the Security Council in 1948, to the effect that the
United Nations did not take over the League of Nations mandates
system, and, therefore, the responsibilities either of the Leagueof Nations
or of the mandatory power in respect of the Palestine Mandate. 1 have
also mentioned, Mr. President, the fact that no reports were, in fact,
submitted by the United Kingdom to the United Nations in respect of
its administration of that territory, although the authority of the United
Kingdom over Palestine continued until May 1948-in other words,
for more than two years after the dissolutiof the Leagiie.
lt is accordingly dear, Mr. President, that although the United
Nations, in Applicants' wordç,'"felt itself competent to supervise the
administration of Palestine prior to the granting of independence to that
territory", the authority in fact exercised by it was by special arrange-
ment, and not by virtue of any general power of supervision which had500 SOUTH WEST AFRICA
passed from the League to the United Nations, or which had come about
by substitution of the United Nations for the League assupervisory
organ in respect of mandates.
I can now, Mr. President, proceed to consider Mr. ~oore's atternpt to
meet Ourargument advanced in the Counter-Memorial, II, at page 141,
that between the years 1947-194 259Members of the United Nations, in
participating in United Nations debates, maintained quite clearly that,
outside trusteeship, mandatory powers had no obligation to account for
their administration of the said territories to the United Nations.
Mr.Mooreattempted to meet this argument by dealing with the'actual
attitudes taken by certain of the States concerned. He did not content
himself with a general submission of confusion. He said that the names of
six nations included in .Respondent's list should be deleted from it,
namely Czechoslovakia, Guatemala, Iran, Pem, Sweden and Yugoslavia.
The reason why he said that they should be deleted is that they were
added to Respondent's list merely as signatories to the report of the
in the verbatim report at paget165o,upra,lestine. He said in this regard,
"... the Palestine report shows that the United Nations not only
considered the Mandate for Palestine to be in full force and effect
at that time, but alçorecommended that the United Nations exercise
comprehensive supervisory authority over the administration of
, that mandate priar to its termination'.':
The fallacy in this contention, Mr. President, is, of course, patent.
The fact that the Special Committee on Palestine recommended that
supervisory powers be exercised by virtue of special arrangements to be
concluded with the United Kingdom, does not do away with the fact
that.the States in question were.cIearly of opinionas they expressed in
the report of the Committee, that the supervisory powers of the League
over mandates did not pass to the United Nations, and that the United
Nations would have no supervisory powers except by special agreement.
such as, for instance,a trusteeship agreement, or.an agreement of the
nature that was being recommended in that report regarding Palestine.
Mr. President, the argument adduced why these signatories to the
report of the Special Committee on Palestine should be deleted from the
list of Our25 States, which clearly intimated a concept of that kind, is,
therefore, unjustified. The passagesin thereport withwhich they identified
themselves are clear and cornpletely unambiguous on this question, and
the mere fact that they then went ahead and joined in recommendationç
for a special provision, providing for supervision, does not support my
learned friend's argument, it militates against it.
My learned friend, Mr. Moore, argues further that three other States
-Cuba, .India and Uruguay-should bedeleted from the Respondent's
list. That contention we find in the verbatim record at page 16supra.
We have already expjained, Mr. President, fhat the atfitudes adopted
by Cuba, by India and by Uruguay were not consistent, that at one stage
they did adopt the attitudes which wodd include them on our list of
25 States which expressed that opinion; then again on another occasion
they expressed other views. Thatthey did, on the occasions to which 1ve
refer, express the views which we attribute to thern, is not contested in
any way by the Applicants and this stands very clearly on record.
Mylearned friend, Mr, Moore, says further that the United States, in ARGUMENT OF MR. DE VILLIERS 5or
its written statement before this Court in 1950,made clear its viewpoint
that international accountability had survived: that we find in the verba-
tim record at page 165,supra. For that reason it is contended that the
United States, too, is to be taken out of the list of 25 States.
Mr.President, 1need hardlyrepeat what 1 stated before, viz., that the
United States, over-the relevant period 1947to 1949, before this Court
was cailed upon to give its opinion, clearly expressed the opposite view
to that contended for by my learned friend, namely that the United
Nations had no supervisory ponters in respect of the Mandate outside
trusteeship. 1 referred more than once this morning to Mr. Gerig's
statement in 1947: 1 need not do so again.
IVhy the United States contended otherwise before this Court in 1950
1suppose the United States alone would know. Its argument then, 1may
point out, with respect, was not founded on, as the Applicants called it,
a viewpoint that international accountability' had survived. It was
rather, hlr. President, with the greatest respect, pure, specialpleading, of
the very same kind that we find in the arguments of the Applicants now
being addressed to the Court. It was an ex post factoeffort to achieve a
desired result by taking together various bits and pieces-some out of
context, some of itwiongly interpreted-and then building on that the
conclusion which it was desired to achieve. This is the interpretation
which one must put on the argument presented by the United States in
1950i.f one reads it fairly, with reference to the full analysiç of the record
and of the facts which are now before the Court.
The conclusion stated by the United States in 1950 in its written
pleading before the Court rnakes this perfectly clear.
"It is concluded, on the basis of Article80 of the Charter, on the
basis of General Assembly resolution XIV-1 (1) of 12 February 1946,
on the basis of the Union's conduct in pledging itself to submit
reports and in reporting, and an the basis of the Assembly's subse-
quent action, that the United Nations has assumed the exercise of
. the League of Nations function in regard to reporting on the man:
dated Territory of South West Africa." (I.C.J. Pleadings 1950,
p. III.)
We see, Mr. President, al1these things added together on the basis of
Article 80. In that regard the attitude expressed on behalf of the United
States ofAmerica in thjs argument \vasas follows:
"Thus it would seern, in view of the importance of reporting under
the mandates system, that this function is preserved by Article 80
of the Charter-'the conservatorp clause'. " [I.CJ. Pleadings1950,
pp. 107-108.)
This was one factor relied on: another factor relied on was the General
Assembly resolution XlV of 12 Febmary 1946. That resolution, the
Court will recall, 1 dealt with. It provided for the assumption of various
containing differingprovisions for different types offunctions. Apparently
this was merely a general reference to show a contemplation that there
might be an assurnption of functions, but on the basis, of course, that
the necessary arrangements were to be made as there contemplated.
And then we find that the United States submitted that there were
apparently such special arrangements, because the next factor it relied 502 SOUTH WEST AFRICA
upon, was the Union's conduct in pledging itself to submit reports and in
reporting.
Jfr. President, I have addressed a full argument to the Court on the
facts relating to the Union's conduct. 1 need not repeat that argument.
I submit that if one readç what the United States submitted in 1950, in
regard to that sphere of the case, one has to conclude that the presenta-
tion was incornplete-that it wrongly asçesed various elements in the
picture, and that it came to a wrong conclusion. It was, therefore, not a
matter of a ready-made view of the kind which we had earlier, of the kind
which we had from Mr. Gerig in the debates, where a clear, factual con-
templation was expressed to the effect that there had been no agreement
-no consent to a substitution of supervisory organs-and that there was
no supervisory power on the part of the United Nations outside of the
trusteeship system.
The last part of the United States conclusion refers to the basis of the
Assernbly'ssubsequent action. Wehave aIready referred to some of those
resolutions: 1 shall deal with certain of the others in the rest of my
argument and point out that they do not in any way support the conten-
tiThen, Mr. President, my learned friend, Mr. Moore, contended that
China and the Philippine Republic should also corne off the list, becauçe,
it was submitted, they had made statements reflecting their view that
the United Nations had supervisory authority over the Mandate : that
we find in the argument in the verbatim record at page 165 ,upra,
1 have already shown this morning that it isat least questionabIe
whether they ever intimated that they considered that the United
Nations had such supervisory authority in general, outsi* of trusteeship.
1 submitted that their general view was to the contrary but that they
made a special exception as regards the particular report of 1947 . ut
even if some of their staternents can be construed otherwise than as 1
have now submitted, they also on other occasions expressed themselves
decidedly in favour of the contention we are advancing, and in favour of
the proposition under which we grouped them with the others in the
total of 25.
So, Mr. President, in none of the casesreferred to by my learned friend,
Mr. Moore, was any sound reason adduced by him why any of those
States should be taken off the list.
. But let us assume that we take away what might be called the border-
line cases,those about which there rnay be some argument-those which
contradicted themselves in the debates prior to the 1950Opinion. LVe
find that only five are affected-luba, India, Uruguay, China and the
Philippines. That, hlr. President, still leaves 20-andperhaps one should
also include Mexico, on the basis of the analysis 1gave the Court yester-
day, &Iexiconot having been included in Our 25 before. It would still
leave uswith, Say,20 or 21 States, including a11the ex-mandatory powers,
except Belgium, as well as the United States and the Soviet Union-two
of the leading founder Members of the United Nations. It would include
also nine of th12 members of the Trusteeship Councilspecially concerned
with this problem.
Even if, Mr. President, Iwere to give to the Applicants-as 1 do not
have to do, as there is no reason why 1 should-the United States, and
the six States of which they said that they merely signed the Palestine
report and for that reason should not be included in my list of 25, that ARGUMENT OF MU. DE VILLIERS 503
would still leave 13-r 14 if we count iifexico-13 States which are
completely untouched by any argument which the Applicants have
attempted to adduce on this point. And those 13 would still include al1
the ex-mandatories, except Belgium.
Mr. President, even to this extent to which the Applicants want to
take their process of deIeting States from my list of25 on that optimum
basis towhich they can take their argument-how can they contend that
there was ageneral understanding, including the mandatories in general
and the Respondent in particular,to the effectthat the United Nations
tvould have supervisory powers-a general understanding which they
would have to establish as a matter of law in order to lay a basis for their
general submission on this point.
The attempt which was made to detract from this analysis which we
have put before the Court, haç, therefore, really served to emphasize the
unassailability of the argument. We can argue about a few borderline
cases-argue whether the number should be 25 or 26 or 21-but there
cannot be an argument to reduce it substantially below that. Even on
the suggestions made-unfounded suggestions-of reducing the nurnber
still further, we still find included in the list this hard core of the very
States whose obligations were, in essence, those of accountabiIity-the
States which would have ta show their agreement, by conduct, to a
substitution of supervisory organs and to supervision by a new super-
visory organ. Not a single one of the views expressed by those States
during those years could in any way be assailed by the argument which
has been adduced.
The Applicants conclude their argument, Mr. President, on tliis aspect,
by saying :
"The most decisive fact remains, Mr. President, that while there
was disagreement among several filembers of the United Nations
with regard to the existence of the Mandate and the obligations of
international accountability, the view of the United Nations as a
whole, expressed through its resolutionson the subject, demonstrated
its understanding that theMandate remained in full force and effect,
and that the United Nations had supervisory authority over the
Territory. This is reinforced bythe United Nations treatrnent of the
Palestine Mandate." (Pp. 165-16 6,pra.)
So here there is reliance placedMr. President, on the view of the United
Nations, as a whole, expressed through itsresolutions on the subject.
The contention, of course, carries an assumption of a factualnature asto
what that viep was. 1 shall deal with that assumption in a mom. . and
show that it is an entirely fallacioand unsound one.
Before doing that 1 should first like to examine this proposition as a
matter of law. Let us assume for the moment that the factual assumption
were true and that we were dealing with a concept of a view of the
United Nations, as a whole, expressed through its resolutions-in other
words, a view expressed by a majority-ordinary or two-thirds, or
whatever the required rnajority might be-that is being relied upon.
How, 1 ask, Eilr. President, could the approach to the matter on that
basis açsistthe Applicants when it is necessary for them to address their
argument to a question of international obligation on the part of the
Mandatory Power-to address themselves to the question whether there
was an agreement, orconsent, on the part ofthe Mandatory Power to the SOUTH WEST AFRICII
504
obligation which it isçought to be irnposed uponit? How could, as a
matter of law, the majority decisions of anybody, or any organ, have any
relevance on a subject of that kind?
But, Mr.President, the matter does not rest there. ~he factual premise
as to the view the United Nations took as a wholeand which it expressed
through its resolutions,is a totally wrong one. That will be seen ifwe
particular resolutions relied upon by the AppIicants in support of thishe
contention.
The resolutions were the following:General.Assembly resolution .65(1)
of 14December 1946;General Assembly resolution 141 (II) ofINovem-
ber I 47; General Assembly resolution 227 (III) of 26 November 1948;
and C?eneral Assembiy resolution 337 (IV) of 6 December 1949 .he fact
that these resolutions are the ones relied upon appears. Mr. President.
from the verbatim record at page 165, &pra,*&here. the ~~plicants
refer to these resolutions and then Say:
"The last resoiution confirmed the first three; the 1946 resolution
'affirmed' the competence of the Assernbly, and the 1947 and 1948
resolutions 'exercised' this competence." .
So the first resolution of 1946,number 65 (1),is said to have "affirmed"
the competence, and the others to have "exercised" this cornpetence.
It was the one adopted by the Assembly in response to the proposal (1).
regarding incorporation submitted by South Africa in 1946. We have
already indicated, Mr. President, that this resolution was concerned
purely with the question of modification of the statu of South West
Africa. It had nothing whatever to do with the question of supervision
of administration in that Territory. We have also shown, Mr. President,
how the Applicants seek to mis-apply, in this regard, expressions which
were used by the Court in 1950 with regard to modification of status of
the Territory and apply them to the question of exercise of supervisor
jurisdiction, so 1 need Say no more about that resolution. 1 have dea t
with it fully. There is nothing whatsoever in the resolution itself which
indicates any view in regard to the concept of supervisory power.
It becomes necessary to deal next with the second resolution relied
upon by the Applicants, namely Iqr (II) of I Novernber 1947. It will
be recalled,Mr. President, that the General Assembly in this resolution
urged the Government of the Union of South Afnca to propose a trustee-
ship agreement for South West Africa and, at the same tirne, conferred
authonty on the Trusteeship Council, in the foilowing terms:
". .. the Trusteeship Council in the meantime to examine the
report on South West Africa recently submitted by the Government
of the Union of South Africa and to submit its observationsthereon
to the General Assembly". (G.A., O.R., Second Sess., Resoiutions,
resolution 141(II),I November 1947, p. 48.)
If one looks at its wording, and its context, this reference, Mr. President,
is, in our submission, a perfectly neutral one as far as present contentions
are concerned. It does not by its wording signify that the Trusteeship
Council was to exercise a function of supervision. It merely says that
the Council was to examine the report and submit its observations
thereon to the General Assembly. There is certainly no express-no
explicit contemplation, of a supervisory power in that regard. The ques- ARGUMENT OF MR. DE VILLIERS $O5
tion arises whether one could say that any contemplation of a super-
visory power arises by inference, from tkis wording used and from the
circwnstances in which it was used. If we therefore, have to decide the
question, whether such an inference is justified, we must obviously look
at al1 the relevant circumstances. We must look at the events which
preceded the subrnission of the report by the Respondent; at the nature
of the report itself, and at the views of the United Nationsas expressed
through its Members regarding the purpose and the effect of the report.
These are matters which 1 have dealt with in my argument for other
purposes and 1 need not go into any detail in regard tothem. I merely
point out the bare threads as far as they are relevant to the present point
under discussion.
It will be recalled, Mr. President, thatby I November 1947, which
was the date of this resolution, we had already these facts: firstly,
General Smuts had in 1946 indicated the limited nature and purpose of
the information which would be submitted, as being in accordance
with Article 73 (elof the Charter; secondly, Mr. Lawrence had in Sep-
tember 1947 given his further explanation emphasizing the voluntary
nature of the transmission of information and Respondent's view that
the United Nations had no supervisory powers in regard to South West
Africa; thirdly there was also the fact of the limited nature of the
information which was, in fact, supplied in the report, which 1 have
dealt with befare; fourthiy, there was the fact that on the very day on
which the resolution in question was adopted, namely on I Novernber
1947. and before the adoption of the resolution, Mr. Lawrence made his
further statement in which he again emphasized that the reports were
rendered on the basis .that the United Nations had no supervisory
jurisdiction; and fifthly, there was the other fact, Mr. President, that
not one ofthe Members of the United Nations then voiced any objection or
view to the contrary, then or at any time during the debateç in 1947.
We find further that the resolution itself, in its preamble, recognized
the very nature and purpose of the report.
1 have read the preamble to
the Court before. 1do not need to do so again. The concluding words,
if the Court will recall, were:
r... and that the Union ~overnment has undertaken to çubmit
reports on its administration for the information of the United
Nations". (G.A.,O.R., Second Sess.,Resolutions, resolution I41 (II),
I ~ovember 1947, p.48.)
The review which we have given, Mr. President, of the attitudes
of al1States during the period 1947-1949, shows that the Members of the
United Nations perfectly understood Respondent's attitude regarding
lack of supervisory powers and functions on the part of the United
Nations. We pointed out that even when, as from the end of 1948 until
r949, there were sorne States which began to question the statement
that outside trusteeship there could be no supervisory power on the part
of the United Nations, there were very few of them and they then found
a basis which did not relate toany consent on the part of the Respondent
in the transitional stage.
Especially pertinent, Mr. President, in this review which we gave,
were the views expressed in the Trusteeship Council itself,. that very
body to which the report was submitted for examination.
The Court willalso recall that Respondent declined an invitation of50~ SOUTH WEST AFRICA
theCounci1tohaveitsrepresentativepresent at the discussionofthe report.
So, hIr. Yresident, taking aii those factors together, surely there can
be only one conclusion as to the view taken by United Nations Members
in general, in so far as it is relevant to the issue now before the Court,
and that view was that the resolution did not envisage the exercise of
United Xations supervision of administration of South West Africa, in
the sense contemplated in Article 6 of the Mandate.
That is, indeed, the only inference one can draw-and there is no
sernblance of justification for suggesting that a contrary inference is to be
drawn-that in adopting this resolution the intention of the majority-
power of supervision,in the sense contemplated in the Mandate, was to bea
exercised by the United Nations.
The Applicants, of course, referred tothe fact that the Court in 1950,
in its majority opinion, expressed a contrary view on this particular
point-contrary to the snbmisçion I am now making to the Court.
That is, of course, so-the Court did express that contrary view. We
shall deal at a later stage with the subject of the Court's Opinion, as a
whole, and 1 do not intend to deal with any detailed aspect of it now.
I merely wish to Say that. in this respect also, we respectfully contend
that that was one of the aspects of the Opinion of the Court which was
affected by the unfortunate circumstance that it did not have al1 the
relevant facts before it, and that that is a circumstance which also
requires reconsideration in the light of the full facts which are now
before the Court. Those facts, in rny submission, can only lead to the
conclusion in this regard which 1have just stated to the Court.
The later resolutions, referred to by the Applicants and also in the
Court's Opinion, take the matter no further. They both refer back to
resolution 141 (II), which isthe one we have just discussed. The third
resolution on the Iist, No.227 (III)of 26 November 1948r, nerely recom-
mended that Respondent "continue to suppIy annually information on
its administration of the territory", and "request[ed] the .Trusteeship
Council to continue to examine such information and to submit its
observation thereon to the General Assembly". (P. 164, supra.)
So, Mr. President, these resolutions take the matter no further. They
stiII deal with the same concept of annual information on the administra-
tion of the territory andcontain a request to the trusteeship Council to
continue to examine such information and subrnit its observations
thereon.
The fourth resolution an the Iist relied upon-No. 337 ,(IV) of 6 De-
cernber 194g-contained certain passages which Ishould Iiketo read to
the Court, in so faras they are reIevant-1 am not going to read al1of it.
The first preamble:
"Whereas the General Assembly noted, in resolution 141(II) of
I November 1947, that the Government of the Union of South
Africa had undertaken to submit reports on its administration of
the Territory of South West Africa for the information of the
United Nations9'-
still retaining the concept of an undertaking to submit reports for the
information of the United Nations.
The third preamble noted the fact that "no further reports would be
forwarded". ARGUMENT OF YR. DE VILLIERS 5O7
Then 1 skip the last paragraph of tlie preamble and we corne to the
operative portion of the resolution, which reads-
"The Assembly,
I. Expresses regretthat the Government of the Union of South
Africa has withdrawn its previous undertaking, referred to in
resolution 141(II) of I November 1947, to subrnit reports on jts
administration of the Territory of South West Africa for the in-
formation of the United Nations; [Again, a retention of that con-
cept-the correct appreciation of what purpose the reports were to
serve, what thenature of the reports were-referred to in the previous
undertaking of the Union of South Africa.]
2. Reiteratesin their entirety [the earlier resolutions on the subject
to which 1have referred].
3. Invite tse Government of the Union of South Africa to resume
the submission of such reports to the General Assembly and to
comply with the decisions of the General Assernbly contained in the
resolutions enumerated in the preceding paragraph." (G.A., O.R.,
Fourth Session, 6 December 1949, p. 44.)
So, Mr. President, the very wording of this resolution itself refutes
the Applicants' contention. 1 have stressed the aspects before the United
Nations in the preamble and in the first operative portion. In this last
operative paragraph the invitation to the Government of the Union is
"to resurne the subrnission of such reportsH-"such reports" again being
reports on the administration of the Territory for the information of<>the
United Nations.
Nothing is said anywhere, Mr. President, regarding an obligation to
submit reports and to account to the United Nations.
This tone of the resolution stands in contrast to the last part of it-
the very last part-in which Respondent was invited "to comply with
the decisions of the General Assembly contained in the resolutions
enumerated in the previous paragraph". Those decisions, as the Court
knows, referred to the General Assembly's recommendations regarding
the submission of a trusteeship agreement. So, there, the Respondent is
invited to comply with those decisions. The request is for something
specifically to be done-the submission of atrusteeship agreement which
would involve supervision, of course. There is no invitation to the
Government of the Union of South Africa to submit to any supervision
outside trusteeship, or to acknowledge an obligation to submit to any
such obligation.
It is also çignificant, hlr. President, that the original draft resolution,
in its first operative paragraphread as follows: "Express regret that the
Governrnent of the Union of South Africa has repudiated its previous
assurance ... to submit reports." (G.A., O.R., Fourth Session, 269th
Plenary Meeting, 6 December 1949, p. 535.)
This wording was objected to by the Respondent, and it was in that
connection that the United Kingdom representative had earlier stated
in the Fourth Cornmittee, with reference to the original wording of this
draft resolution:
"It could not be said that the Government of the Union of South
Africa had repudiated itç previous assurance since it had complete
liberty to decide whether or not to transmit information." (II,
. p. 286.)508 SOUTH M'EST AFRICA ..
In the end, Mr. President, the wording of the paragaph was altered
to read as in the resolution, namely "withdrawn its. previous under-
taking", and that itself is a significant indication of the understanding
and the contemplation of the States in the United Nations which voted
'for this resolution-haw they saw the situation. They saw it correctly,
in our submission, as a situation in wkich something had been done
voluntarily-limited information had been given for the information of
the United Nations. There had been no undertaking or acknowledgment,
explicitly or impf citly, of any duty of accountabilityor any supervisory
power on the part of the United Nations Organization, and there was no
such contemplation in the resolution as a whole.
Therefore, Mr. President, 1 need not elucidate further. It suffices to
Say that the tenor and purport of these resolutions in no way support
the Applicants' contention of an understanding on the part of the United
Nations that obligations of international accountability under the Man-
date were owed to the United Nations. Therefore, the factual basis for
the Applicants' contention in regard to these resolutions-abo falls away,
Indeed, we subrnit that the'resolutions, read in their proper context,
and in the light of the views of the organs of the United Nations, as
expressed by their Mernbers, prove the very opposite ofthe Applicants'
contention. It proves the understanding which, we submit, was a com-
pletely general one.
Therefore, Mr. President, in conclusion of this part of the argument,
.it is hardly necessary Say that there is in fact nothing in the Applicants'
argument to substantiate the conclusions stated by Mr, Moore at theend
of his address, when he said as follows:
"Hence, the actions of the League Assembly, of the United
Nations, and relevant statements and actions of the Respondent,
combine to support the conclusion that thé Mandate and al1of the
League, and that the United Nations replaced the League as the
supe~visory,organ over the Mandate." (P. 166,supra.)
We submit there is nothing to substantiate that conclusion. On the
contrary, it has been shown that the statements and actions of the
Respondent were understood by al1the hlembers of the United Nations
who expressed themselves on the.subject, as being exactly what we Say
those statements and actions amounted to. There was no misunder-
standing. There was, in fact, no submission on thepart of the Respondent
to United Nations supervisory power. There was a clear understanding
on the part of the United Nations Members concerned that there was no
such subrnission.
Mr. President, this brings me to the end of this part of the argument
deaIing with the United Nations history after the termination of the
Mandate. I know it ispossibly early for an adjournment but 1 had to
adapt myself rather suddenly to the new situation resulting from Mr.
Muller's illness.1 wonder whether it might be convenient for the Court
to consider adjourning now, as 1 am passing to an entirely different
subject.
Mr.. President,it remains for me to deal with certain arguments of
the Applicants regarding Article 6 of the Mandate-arguments which ARGUMENT OF MR. DE VILLIERS
,509
were not covered in the review which 1 completed yesterday morning.
The first ofthese isthe contention that so long as Respondent continues
to administer the Territory on the basis of rights conferred by the
Mandate, Respondent by that very fact is manifesting a continuing
consent to international supervision. Thoçe words, from "so long as"to
"supervision", 1 have quoted from the very contention advanced by the
Applicants. Mr. President, this contention also had an earlier version
as advanced in the pleadings, particularly in the Keply of the Applicants,
and we dealt with this earlier version of it in the Rejoinder, V, at pages
71and following. It is not my intention to repeat what is stated there,
or to deal again with the earlier version; 1shaH deal with the argument
as it now appearsto be advanced in the oral argument.
For the reasons which we have given, Mr. President, the Respondent
regarding transfer of supervisory functions to the United Nations or,
substitution of supervisoryorgans, whichever way one wishes to put that
proposition. But the AppIicants attempt to find, through the medium of
this argument now under consideration, a further basis for arriving at
the conclusion that such consent was in fact given. The argument in the
form in which it is now advanced is set out in the verbatim record at
page 205, sqbra, and its elements, Mr. President, can be surnmarized as
follows.
Firstly, on the authority of the rggo Opinion, the Applicants ;tate
that the Mandate did not involve a cession of territory or a transfer of
sovereignty to Respondent ;Respondent was to exercise an international
function of administration on behalf of the League. The next step in the
argument is that this is equivalent to saying that-
"... so long as Réspondent continues to administer the Territory
that very fact, is manifestingea continuing consent to international
supervision".
The next step, in the Applicants' words, is-
"... inasmuch as there is in existence an international organ, to
wit, the United Nations, which is qualified to.exercise supervision
;over the Mandate. it must be ~resurned that Res~ondent's retention
of rightç over thé Territory & consistent with ;O conclusion other
than that it is rnanifestine a continuine consent to submit to the
supenisory authority of tYheUnited ~Gions" (p. 205, supra).
The fourth step in the reasoning, and 1 quote again from the address
by rny leamed friend, is: "Respondent's disclaimer of any such intention
imports into the proceedings a legally irrelevant consideration ..."
(Ibid.)
' So,'hlr. President, these are the propositions, and they require to be
analysed and dealt with on their merits. 1 wish to point out firçt of ail
in regard to the second of the propositions that it is so warded that the
fact which is said to manifest consent to international supervision is
adrninistration of the Territory "on the basis of rights conferred by the
Mandate". That is important. That is said to be this fact which manifests
consent to international supervision ;it is administration ofthe Territory
"on the basis of rights conferred by the Mandate". That makes it cIear
immediately that the argument içbaçed on the premise thatthe Mandate
exists. In other words, Mr, President, there is first to be a finding that510 SOUTH WEST -4FRICA
the Mandate exists before this argument begins to operate at all. This
wasindeed made clear by the Applicants, Mr. President, when replying
to a criticism which we offered in Our Rejoinder (V,at p. 731,of a similar
staternent in what 1 have calied the earlier version of this same argument
as advanced in the Reply. In their answer now, in the oral address, to
our criticism as offered there, they Say, and I quote from the verbatim
record at page zoo, supra :
"With respect to the first asserted fatal defect, that an additional
premise is necessary that the Mandate is still in existence, the
Applicants accept, as the law of the case, that the Mandate is still
in existence.''
And 1quote a further statement appearing at page 202, SU~ICZofthe same
record: "The Applicants, of course, presuppose that the Mandate afiplies
totheTerritory; that is their major prernise," So that part of it is clear-
is common cause. But, in truth, Mr. President, that premise ison analysis
not enough forthis argument. There is irnplicit in it a further prernise,
and, that is, that the Mandate which survived contained, as a part
thereof, an obligation of "international accountability". That premise is
to be read into it also, othenviçe the argument does not begin to operate.
That is indeed what the Applicants contend. They Say that Respondent's
obligation undcr the Mandate, as initially conceived, was one of "inter-
national accountabi1ity"-it was not an obligation to report and account
to a specific body only, it was a more general one of "international
accountabi1ity"-and that it was therefore capable of existence in-
dependently of a specific supervisory organ. Their further argument on
that aspect of the case is this: that on dissolution of the League the
existence of that obligation was not affected, and that, consequently,
although the League fell away-although the supervisory organs fell
away-the Mandate could remain in existence with, as part of itself, an
obligation of international accountability. The only problem with the
Applicants' approach was to make this existing but dormant obligation
operative again as opposed to mere existence in a dormant state: to
achieve that end, a substitution of supervisory organ was necessary, and
for that purpose the consent of the Mandatory waç required.
That is the basis upon which the Applicants advance this further
contention, and.the argument seems, on analysis, to amount to this:
that, ife accept, firstly, the existencof the Mandate, secondly, as part
thereof an obligation of international accountability, and, thirdly, the
existence of a new international organ capable of performing supervisory
functions,if asked to do so, then, under those circumstances, the Appli-
cants contend that continued administration of the Territory amounts to
proof-and, what is more, conclusive and irrebuttable proof-of consent
to a substitution ofa supervisory organ. That appears to be the effect of
this argument.
Before dealing with the merits ofApplicants' argument, Mr. President,
1 wish to say something else about this premise with which T have just
dealt-about the fact that it rests indispensabïy on the basis of the
Applicants' "international accountabiIity" contention-the contention
that the Mandate itself, in its original form, is to be construed by a
process either of interpretation or of implication as containing such an
obligation of international accountability. On that basic question, of
course, the Parties' contentions are in direct conflict with one another. ARGUMENT OF MR. DE VILI-IERS 511
Let us analyse the question whether the obligation waç one relating
to the specific body, or of the more general nature contended for by the
Applicants.
If the obligation related to a specific body only, it would follow that,
on the dissolution of the League, the obligation of accountability would
lapse in the absence ofother agreements. Consequently the further result
~vould be either.that the Mandate itself would lapse, or that it would
exist without an obligation of international accountability.
On either of these premjses, namely either that the Mandate has
lapsed, or that the Mandate exists without an obligation of international
accountability, there would be no reason whatsoever, Mr. President, to
presume that continued administration of the Temtory would involve a
consent to submit to supervision by a new supervisory organ, because
the circurnstances in which this continued administration wodd take
place, would arnount either to a position where the Mandate itself would
no longer exist, or to one where, ifit existed, it would not require the
Mandatory to report and account to a supervisory organ. Therefore,
there could be no implication whatsoever, and no argument, tending to
establishsuch an implication from the mere fact of administration of the
Territory under such circurnstances.
J stress this, Mr. President, because it becomes clear that, if the
Respondent's contention as to the interpretation to be given to and the
effect of Articl6 of the Mandate as it was originally prescribed, is to be
accepted, this argument of the Applicants falls away for that reason
alone and need not be further considered.
However, that is not the only basis upon which 1 shall meet this
argument. For present purposes, let us assume the correctness of the
premise upon which the Applicants advance this argument and then test
its merits on that basis. '
Mr. President, 1 have to point out, first, that our answer and the
conténtion of the Applicants confiict in a fundamental respect. It is this,
that the question of whether Respondent consented to such substitution
or replacement of asupervisory organ is a question of factand not of law.
It is a questionsuch as any question of consent would be, viz.,a question
of fact, and inorder to establish whether, in fact, such a consent was given,
or \vas not given, it is necessary to have regard to al1the relevant evidence
on that question and not merely to some facts isolated from their context
and mith disregard for other relevant facts. It is at this very point, in Our
submission, that the Applicants' argument breaks down.
The Applicants attempt to establish the existence of the alleged con-
sent on Respondent's part by isolating one fact, namely the administra-
tion of the Territory, from al1other circumstances. They do so, of course
against the background of the existence of this new organ which they
Say was capable of exercising the function and on the premise, which 1
mentioned before, that there was an obligation of accountability still
existing in the Mandate itself, but the only fact which they now isolate,
in order to see whether there was consent to a substitution of this new
organ, is that of the administration of the Territory. Mr. President, the
Applicants Say, firstly, in purported justificationof this process of
reasoning on their part, that what Respondent said at various stages as
to its intention, in regard to the basis upon which it continued to ad-
minister the Territory, that-and 1 use their words-is a "legaiiy irre-
levant consideration". The Respondent's disclaimer of an intention to5I2 SOUTH WST AFRICA
consent to a substitution of supervisory organs, the Applicants say, is
legally irrelevant. They Saythat the subjective attitudes of persons who,
from time to time, constitute Respondent's Government is, in anyevent,
incapable of factual demonstration, one way or the other. Those aspects
in the reasoning, we get in the verbatim record at page 205, supra.
Air.President, let us analyse that. The question isone of consent, i.e.,
sought tothbee inferred from conduct, the conduct being, in this case,
administration of the Territory. The person concerned makes it perfectly
clear, by what he says,in what sense he views the continued admiiiistra-
tion of the Territory. He makes it perfectly clear that he does not consent
toany substitution of supervisory organs or acknowIedge any supervisory
power on the part of any organization. However. rny leamed friend says
these are "legally irrelevant considerations", i.e., for some reason of law
they are not to be taken into account, in this particular case. He gives as
a further reason that, from a factual point of view, it is impossible to
establish the subjective attitudes of persons who rnay from time to time
constitute Respondent's Government .
Mr. President, in our submission, that is totally unfounded. A state of
mind of a person, or of a corporation, or of a group of persons, or of a
body, is a question of fact. It can be established by the same processes as
any other question of fact. It can be established by al1relevant evidence
and such evidence rnay be of two kinds. Tt rnay be evidence which
emanates from the person, or corporation, or body, or representative
thereof-çtatements made at relevant timeswhich throw a light on the
question of probable intent. Such statements rnay be explicitly directed
to intent and rnay be made by somebody representing the corporation, or
by an individual, when his intent is relevant, by giving evidence in a
court of law and saying that "my intent at the tirne was so and so and
so ...". Those are al1possible ways, Of course, the court would have to
weigh the credibility of such evidence. Very often there is such evidence
and the court has to consider, in the light of ail the circumstances,
whether it willaccept that evidence or reject it,as a rnatter of credibility
or acceptability. That does not, however, make the evidence, if accepted,
a "legally irrelevant consideration".
In order to test whether statements of intent, or statements relating
to intent c,n indeed be accepted at their face value,the court also tests
them in the Iight of surrounding circurnstances and makes inferences or
deductions frorn the surrounding circumstances as to what the intent
reaily was. Very often that is the only type of evidence available to the
court. The court rnay have no expressions of the person concerned, ejther
in evidence or at a prior stage-no expressions of mind-which indicate
what his intentions were but the court has to infer from the totality of
evidence, and from surrounding circumstances, whether certain conduct
on his part was, in fact, intended to convey a certain intent, or a certain
consent or not.
Again the proposition applies-the ordinary proposition of logic-that
if a partywere to make a positive averment that conduct amounted to a
manifestation of a certain intent, or consent, that would have to be
established by a process of necessary inference from al1 the facts. The
inference would have to be consistent with all the proved facts, and it
wouldhave to exclude al1other reasonable inferences.
Mr. President, the important fact is that there can riever be any ARGUMENT OF MR. DE VILLIERS 513
asappearsto bear out a particular conclusioii-andant then discarding andrt
disregarding all the facts which point to the contrary conclusion. That
could never be justified in any process of law, or logic, of which I am
aware.
Moreover, Mr. President, we are dealing here with a concept of a
consent to an obligation, or a consent to a modification ofan obLigatian
which, in principle, amounts to the same thing-the basic principIe being
that that obligation, whether it be a new one or a modified one, cannot
be regarded as being vested in, or being imposed upon, the party con-
cerned, exceptwith that party's consent.
Now, how is that kind of obligation, çuch a consensual obligation,
created? It isnot created merely by a process of a person having in his
mind a certain intent. It can only be created by that intent-that state
of mind-being conveyed to the other person, or persons, who have a
legal interest, or a potential legal interest, in the situation-the other
contracting party, the other legaliy interested party, as the case might be.
If anestate agent offersme a certain property for E~o,oooand 1Jikethe
property, and 1decide.1 should like to buy it for £~o,ooo,and that is my
intent, that still does not createa contract, or an obligatio on,nzy part
to buy, to pay the pnce and take delivery of the property. It is only
when 1 convey that intent in writing, or in speech, or in conduct, to the
party who made the offerto me, that there.can be created a viacutuna
juris of the necessary kind.
Therefore, Mr. President, it becomes the more surprising to find a
submission to the effect that actual statements by the party upon whom
it is sought to visit this obligation, are to be regarded as irrelevant
considerations-legally irrelevant. Al1one looks at is a particular element
of conduct on the part of the party but whatever he says about it; is
regarded as irrelevant.
On analysis, Mr. President, this contention appears to be unsound
because, if the Respondent Government had said expressly "1 regard the
United Nations assubstituted for the League of Nations as a supervisory
body" and proceeded to administer the Territory on that basis, 1 take
it, my learned friend would not contend that that is a legally irrelevant
consideration. It would be perfectly relevant. It would indicate expficitly
and expressly that what he is now contending for was indicated by con-
duct.
However, Mr. President, his contention amounts to this, that if the
South Afrjcan Government had said explicitly: "We consider that the
national organ or body and we therefore proceed to administer theny inter-
Territory on that basis"-that, my learned friend then says, is .an
irrelevant consideration.
Equally irrelevant, on the basis ofhis contention, would be astatement
to the effect that the Union Govemment considers that the Mandate has
lapsed; that it considers that it has a title- to adrninister the former
mandated territory on someground faIlingoutside the Mandate itself-for
instance, a prior occupation or conquest, and thatthe Union Government
then says that it will, therefore, continue to administer the Territory on
that basis-on the basis of the Mandate having lapsed-on the basis
of anothertitle which it claims to the Territory, but subject to the general
policy-âsarnoral~bli~ationandnot alegalone-of actinginthespirit ofthe SOUTH WEST AFRICA
514
Mandate, but without accounting to any international body inthat regard,
Suppose the Union Government had made an explicit statement of
that kind, it would, on my learned friend's submission, appear that
thWhat it amounts to then, Mr. President, seems to be this, narnely that
my Iearned friend contends that the Union Government. the Respondent
Govemment, is to be treated as if it had agreed or consented to something
to which it might expresly have said that it did not agree or consent.
This would,therefore,be something in the nature of a preclusion; so that
what is taken into account here is not the actualintent, or the evidence
bearing on the question of actual intent, but a proposition to which the
Union Government must be deerned to have consented for some legal
reason, although it did not, in fact, consent thereto. That seems to be the
nature of this proposition.
The only principles 1 know of, Mr. President, which could justify a
proposition of that kind, would be a proposition ofestoppel, or preclusion,
the principles applying to a case of estoppel or preclusion. 1 shaH deal
with those in a moment in order to see to what extent they apply here.
But outside of those principles 1 know of none whatsoever justifying a
proposition that a party must be taken, or must be deemed, or must be
presurned conclusively, to have consented to any proposition to which it
has, in fact, not consented.
My learned friend's contention amounts to this: suppose somebody,
without my consent and without any right or title to do so takes occupa-
tion ofmy house while it is standingempty. 1 go to that person and Say
to him: "You have no right to be here but I am willing to sel1the house
to you for £~o,ooo, or to rent jt to grouat £80 a month", and the man
turns round to me aiidsays: "I am not wibg to buy this property. 1am
not going to buy it.1am not willing to hire it from you1am not willing
to pay any rent, but 1 am going to stay in occupation because 1claim a
right to be here." Surely, Mr. President, on ordinary principles of law,
I can then go to court, if the man has no title, and ask for his ejection,
but IIcan never ask for the purchasesum of £xo,ooo as if he had consented
to purchase the property. 1can never claim £80 a month rent from him.
I may claim sornething equivalent by way of damages for illegal occupa-
tion of my property, but 1 can never claim the amounts which 1 offered
to him as contract vums if he were to agree to thern. 1have rny remedy.
1 have to take action, not for enforcement of a suggested consensual
arrangement of contract, but to have the particular person treated as a
trespasser and to have him ejected from my property: that is the nature
of my remedy.
But this is not the nature of the remedy which is being sought here by
the Applicants. The Applicants' case is not that the Mandate no longer
could have that the only basis of title which the Respondent Government
involves accountability to the United Nations, and that, in view of the
fact that the South African Government isnot willing to acknowledge
accountability to the United Nations, the Mandate must be regarded as
repudiated-as teiminated-and that the Union Government must
therefore, be regarded as having no title to the Territory, and that the
Court must declare accordingly, That is not the case, not the type of
case brought by the AppLicants.
The Applicants' case is that the Mandate is in existence; that the ARGUMENT OF MR. DE VILLIERS
5I.5
Mandate contains as part thereof an obligation of accountability; that,
in order to make that obligation of accountability one to the United
Nations, consent wasrequired on thepart of the Union Government, and
that the Union Government, irrespective of many relevant facts on
record, must be taken to have given such consent. That is the type of
case brought. And that makes it soimportant to consider al1the relevant
facts: frrstly, ta see whether, in fact, such consent was given, and,
secondly, if, in fact, no such consent was given, whether any principle
oaboutoapresult on the basis that there had been consent although, in fact,
there was none.
Mr. President, the inquhy, therefore, falls into the two parts: an
inquiry into actual consent and an inquiry into the possible application
of a principle of estoppel or preclusion.
As to the first part-the question of actual consent-the whole of the
review which 1gave yesterday and on the preceding days is our answer
thereto. The examination of the relevant factsmade it perfectly cIear that
there was never, on the part of the Respondent, any attitude which could
reasonably be construed as involving a submission to a substitution of
supervisory organs, as involving any consent to such a substitution, or
a subrnission to supervisory powers or functions on the part of the United
Nations. It becornes perfectly clear that, if al1the factors are taken into
account-al1 the legally relevant factors-that was the attitude of the
Respondent throughout, and that that was also the attitude as it was
understood by the other States concerned-by the other parties with
legalinterests.
Therefore, hlr. President, the facts do not in any way support a con-
clusion that such consent was, in fact, given. The Respondent did
continue to adrninister the Territory, but it continued to administer it
on a basis, made clear from the start, which did not involve any obligation
of international accountability-Le., of course, from the dissoiution of
the League. In particular, it involved no obligation of accountability to
the United Nations.
Mr. President, on the question of the principles of preclusion or
estoppel, they are, as 1 have said, the only basis in law which 1know of,
on which a subjective attitude rnayindeed, in my learned friend's tvords,
be said to be "a legally irrelevant considerationu-the only basis on
which it might be possible to Saythat, whatever the subjective attitudes
of a person rnight have been, his conduct was such as to preclude him
from denying consent to a contract or obligation. In such cases the law
has regard particularly to the conduct of a person, that is, not only to
what he does but, of course, also to what he says; it has regard to the
impression which his actions and his statements create in the minds of
other perçons, and, in particular circumstances, it gives effect to the
impression which has been created, rather than to what might have
operated subjectively in the person's mind without it becorning manifest
through his actions or words. That is the basis upon which there may
sometimes be a preclusion or an estoppel, but not on the basis, suggested
the impression made by a person, bearing on the question of whattion ofhe
rnanifests to the outside world in regard to his intent. or in regard to the
proposition of consent in a particular case, is to be disregarded, and that
only one element in this picture is to be looked at. SOUTH WEST AFRtCA
516
That method of reasonirig, >Ir. President, is the very antithesis of the
underlying principles of estoppel-the doctrine of estoppel or preclusion.
We deal in the Rejoinder, V, pages 76 to 78, with the principles of
estoppel or preclusion, andwe refer there to authority both in municipal
systems and in international law. 1 need not deal fulIy, Mr. President,
with the review which is set out there. It has not been chaUenged in any
way and 1 need merely summarize; on the basis of the authority there
discussed we submitted that the following are the essential elements for
the invocation of the doctrine of estoppel or preclusion. And I emphasize
that ail of these elements must apply: if any one of them is absent then
theThe hstne crequirement is an attitude clearly ,and unambiguo~sly
expressed, or manifested by conduct, by the party whom it is sought to
preclude. The attitude must have been conveyed in a cleai and an un-.
ambiguous manner, either by words, or by action, or by a combination of
the two, but the important point is that it rnmt have been a clear and
unambiguous manifestation. It must have been capable of interpretation
in only one way, because that supplies the basis upon which it may be
sàidthat a party isgoing to be misled, or has been misled.
The second requirement isthe creation, asthe result ofsuch anattitude,
of "a change in the relative positionsof the parties, worsening that of the
one, or improving.that ofthe other, or both", These wordsare taken from
the opinion of Sir Gerald Fitzmaurice in the Templecase, which we cite
at'page 76 of the Kejoinder (V), In other words, this clearIy and un-
ambiguouçly expressed or rnanifested attitude mut have resdted in a
change in the position of others. Acting upon the faith of that manifesta-
tion the others must have changed their position relative to the party
rnaking this staternent, or rnanifesting this intent, and it must have
involved a worsening of the position of the one or an improvernent of
that of the other, or the like.
Thirdly. Mr. Prcsident, the party whom it is sought'to preclude. must,
make a claim in the relevant proceedings, which is manifestly contrary
to the attitude which he had previously adopted or conveyed.
Those are the three elements, and, as 1have said, al1threemust apply
in order to render the doctrine applicable. But, as we shall show, Mr.
President, not one of these requirernents is satisfied in the present case.
It isnot only a mattei of only one or the other not being applicable; none
of them applies,because the facts are so fundamenta!ly opposed.to any
suggestion of a possibility of appljring a doctrine of this kind.
The fist inquiry iswhether there was such a clearly and unambiguously
dispIayed attitucie to the effectthat the Respondent wouldrender account
to the United Nations. That içthe relevant consideration in the present
case.
Mr. President; as in the enquiry regarding actual consent, regard
mukt naturally'also be had'to aU the relevant facts. It would, again, not
be'permissible to divorce one isolated fact-in this case, administration
of the Territory-from al1the other relevant' facts-relevant in the sense
that they throw light on the manner in which a manifestation of attitude
issto be interpreted. A consideration of al1the relevant facts, as we set
them.out in the Rejoinder, V, pages 79-81, shows that Respondent, in
fact, did not make çuch a representation, and that it was never under-
stood to have made such a representation. The review which we give in
the Rejoinder, on the pages mentioned, covers very mucli the sarne field ARGUMENT OF MR. DE VILLIERS 517
as was covered by .the review, which 1 completed yesterday. The oral
review has been a huer one than the one we give in the Rejoinder (V).
1 ask the Court, with respect and with submission, to have regard to
the oral review as we have given it here-that, 1 submit, .makes it-
perfectly clear, whether one looks at it from the point of actual intent-
actual consent-r from the point of view of a representation of actual
intent or consent, the review of the .fa& makes it clear that such a
representation was never made and that such a representation was never2
understood to have been made.
This last factor, Mr. President, Le.,ho4 ~es~ondent's condict w;s;in
fact, interpreted by the other interested parties, by itself also negatives
any suggestion that the relative positions of the Respondent and the
other States were changed as a result of Respondent's conduct. There
was no situation whereby the other States said: "Now, inasmuch aswe
understand that the South African Government is going.to administer
this Territory with accountability to the United Nations, we, therefore,
now take up an attitude which we would not otherwise have adopted."
The whole proposition simply does not ap lybecause, in fact, the States
concerned never understood that ~espongent took up such~anattitude.
Finally, hlr. President, since the Respondent did not, in fact, make
the representation alleged by the Applicants, there can be no question
now of present conduct being inconsistent withrsuch a representation.
We contend now, as the South African Government said all along, that
thcre was no obligation of accountability to the. United Nations; and
that there .was no submission to the United Nations as a supervisory
organization. . .
In the result,+Mr.President, none of the requi;ements of an estoppel
or a precluçion ha been established, and, 1 submit that this argument,
adduced on behalf of the Applicants, is entirely without substance.
1 proceed with another of the argunients which 1have not ,fullSidealt
with yet, and that is an argument resting on a suggested relationship
between Article 6'of the1Mandate and Article 7,.paiagraph I, of the
Mandate.
1have dealt, in genera1,'hlr:.President,with the distinction in:concept
between the two subjects dealt with in Articles 6 and 7 (1)-th&concept;
on the one hand, of supervision, of submitting to regular supervision by
an international organization;. and the concept, on:the other hand, of.
approaching an international organization %witha view to agreement
upon a change in the status ofa particular territoryc.And 1dealt with the
importance of that estinction in so far as'the interpretation of the rrele-
vant acts and statements of the!Respondent and other States in the
United Nations is concernedi .+J . ., .a .
But, Mr. President, there are certain other aspects of the argument
regarding this suggested'relationshiP between' Article 6 and Article.7,
as raised'by the Applicants, which I have not met yd and 1pkoposéto
do so now. ..
Theyuse the argument of this suggested relationship as a contention
against our submission that Article 6 hasIapsed-that the obligation
of accountability has lapsed. The ai.gurnent firstiraised in the verbatim
record, at pages 127 to 128, sup~a,is to the effect thaf if Article 6 has
lapsed, Article.7, ~aragraph I,hust also have lapsed. The Appiicants
then contend that the consequenceswould be, firstly, that the Mandate
rvould be frozen in perpetuity, or, alternatiGely, that the Respondent518 SOUTH WEST AFRICA
would be entitled unilateraiiy to modify the Mandate. Those arethe only
consequences, the Applicants Say. which wodd fiow from a lapse of
Article 7, paragraph 1, of the Mandate, and they contend that those
consequences are so intolerable as to "confirm the essential nature of the
retention of international supervision as a legal conclusion". (P. 128,
su$ra.)
The question was developed at somewhat greater length, Mr. Presi-
record at pageseq2x5, supra, and following. The relevant conclusion for
present purposes is stated in much the same way at page 219 of that
record as 1 have just put to the Court. I need not read it: the ef-ct is
as 1 have put it, namely that the consequences of a lapse of Article 7,
paragraph 1, are so startling that, as a result, one must conclude that
it could not have happened. Consequently, one must conclude that
Article 6 could not have lapsed. Those startling consequences are that
the only two alternatives would be a perpetual freezing of the Mandate,
or that the Respondent would be entitled to modify the Mandate
unilaterally.
hfr. President, our attitude can be stated quite sirnply. ie agree
entirely that the sarne type of reasoning which leads to the conclusion
that Article 6 has lapsed could also lead to the conclusionthat Article 7,
paragraph I, has Japsed. In Article 6 there is a reference to the specific
supervisory organ which is, in our contention, a necessary element in
that definition of the whole obligation. In Article 7, paragraph I, pro-
vision is made for amendment or modification of the terms of the Man-
date, with the consent of the Council of the League. As soon as the
Council of the League falls away, that particdar provision becomes
inoperative, unless an agreement is made to substitute some other organ,
or some other agency, in the place of the Council, and Oursubmission is
that there was no agreement which substituted any other person or body
in the place of the Council.
But, Mr. President, before becoming alamed about the consequences
ofsucha situation, as the Applicants do in their argument, it is necessary
to consider first what function was fulfilledby Article 7, paragraph I,in
the Mandate. Let us get that in proper perspective first, and then see
whether these consequences are indeed so alanning, or are indeed of the
nature depicted by the Applicants' argument. -
The function of Article 7, paragraph! r, was simply to provide ma-
chinery ofa usefuland practical nature whereby the tems ofthe Mandate
could be modified with binding Iegal consequences. It was a useful
procedure involving the consent, on the one hand, of the mandatory
and, on the other hand, of a body of iimited composition, the Councilof
the League.
It does not follow, Mr. President, that, without such provision,
modification would have been impossible in law. It certainly does not
followif one tests the position in the time of the League. Many treaties
or international agreements, like contracts in municipal law, contain no
specific provision for amendment, but there are, nevertheless, proceses
of law whereby amendment or modification is possible-agreement of
ali the interested parties-al1 the parties to a contract-al1 the parties
to a treaty or convention. That is one ofthe ordinary and basic manners
in which, aç ageneral legalproposition, it ispossibleto alter relationships
created by agreement or by treaty, or by convention. And the same ARGUMENT OF MR. DE VILLIERS 5I9
would have applied in the mandate system. Modification would certainly
have been possible, just as in the case of any other treaty or convention *
or status, or any other international relationship, although the procedure
might have been a more curnbersomeone. It would have been necessary
to obtain the consent, or the recognition, of al1 the interested parties,
and in this instance that would probably have included al1the Members
of the League. Thus, if it had not been for this machinery, the consent
of aiithe Members of the League (asthe other interested partiesor bodies
having legal interests) would have had to be obtained for a modification
of the tems, and that, of course, as 1 have said, would have been more
curnbersome-more difficult-than obtaining the consent of the Council,
as such. May 1 refer the Court, in this regard, to the dissenting opinion
of Judge McNair in the 1950 Opinion at page 162. On this very point,
where the learned judge put it as follows, after referring to the contents
of Article 7, paragraph I-
"The effect of this paragraph is that thereby the Members of the
League, as the States interested in the Mandate, empowered the
Council of the League on their behalf to consent to any modification
of the Mandate whichthe Councilmight considerto beappmpriate."
Whether, with respect, it is correct to put it exactly in that form,
that is, that there was a power given by the Members ofthe League to
the Council, to act on their behalf, or whether one should construe the
initial processes in a different way, does not rnatter for the moment for
my purpases. The approach of Sir Arnold McNair is, in essence, the one
which I submit to be correct-that is, asI have submitted to the Court,
what we have here is merely a facilitated procedure for doing something
which could have been achieved by a more curnbersome process in
accordance with ordinary principles of law.
So, Mr, President, it follows, in my submission, that the Applicants
are wrong about the consequences whch they assign to the lapse of
Article 7, paragraph I, through the lapse of the authorized machinery.
The more cumbersome machinery inherent in ordinary principles wouId
stili apply: in other words, the consent or the recognition of al1who have
legal interests in the matter, would have to be obtained.
If one were to regard the relationship as being a treaty relationship,
it would mean getting the consent of al1 the parties to the treaty. In
this case, the lapse of the organ which could give consent in terrns of
Article 7 (I),occurred as part of the disappearance of the League itself.
It may be, Mr. President (we know that there were differences of opinion
in relation tothe matter in the proceedings on the preliminary objections)
that after the disappearance of the League, the Mandate was still to be
seen as a treaty relationship, or that it was no longer to be seen as a
treaty relationship. In the first event, as 1 have said-that is, if it was
still tobe seen as a treaty relationship-al1 the interested parties, who
would probably be al1the Members of the League, would have had to
give their consent. In the latter event, i.e., that it was no longer to be
seen as a treaty relationship, but as a continuing institution involving
special status for the Territory the same position would, in substance,
have applied.
There are recognized international processes whereby a change of
status of a territory can occur in such a way asto be legally recognized.
The basic principles involved are those of agreement or recognition, as 52O SOUTH WEST AFRICA
between the parties concerned. And, therefore, Mr. President, there is no
reason whatsoevcr to suggest, asthe Applicants do, that tlie Mandate
could exist only in a frozen, or imrnutable state, or, alternatively, that
it would have been subject to unihteral moacation. Ordinary legal
principles would still apply, whether it was to be regarded as being a
treaty or assurviving as an institution only, involving a special status
for the Territory-r whether it was to be seen asa combination of the
two, involving elernents of a treaty and, also, elements of a continuing
institution involving a special status for the Territory.
Under al1 those circumstances it is possible, in principle, to get an
alteration of the existing legal situation through the ordinary processes
of obtaining the consent or recognition of the parties that have interests
in the situation. That being the legal situation, it is not true to say
either that the Mandate wouldremain in a frozen or immutable state,
or, alternatively, that it would have been subject to unilateral modi-
ficThe processes by which such international agreement or recognition
could be obtained, as'I pointed out'before, could take one of two forrns,
or a combinatioii of the two: it could take the form of obtaining the
individual consent or recognition of the various interested States;
alternatively, the practical procedure could be to lay the matter before
an international organization, such as the United Nations, which rep-
reients most of the civilized States of the world. The effect of obtaining
the agreement of an organization like the United Nations would, for al1
practical purposes, be the same as obtaining the consent of al1the Mem-
bers individuaiiy, and that would probably be of decisive, practical
value. That is why the various instances occurred; which 1 mentioned
to the Court earlier, when propositions involving a proposed .alteration
in the status of particular territories, quite independently of any concept
of international supervision, were submitted to the United Nations, and
when agreements were arrived.at which had the desired practical effect.
, That proceçç of submitting. a matter to the United Nations for a
purpose of this kind does not, therefore, necessarily carry with itthe
implication, of th.e technical constmction, that the United Nations is
to be regarded ashaving been substituted for the Council of the League
for the purposes of, and in tems of, Article 7 (1)'of the Mandate.
In this regard, the Applicants still rely on statements and actions by
representatives of the Respondent as constituting acknowledgment,
firstly, that Reçpondent was not .entitled to modify the status of the
Territory ünilaterally, and, secondly, that the United Nations General
Assernbly had replaced the Council of the League as the body entitled,
in terms of Article.7 (1),,to consent to the modiEication of the terms of
the Mandate. Those are their contentions, and, Mr. President, I submit
that they are, at any rate as far as the second proposition is concemed,
entirely without substance. As regards the first proposition, namely that
Respondent is not entitled to modify the status of the Territory uni-
laterally, we have already dealt with the question whether the relevant
statements and conduct, relied upon by the Applicants, indicated any
contemplation that the Mandate remained in existence. To the extent
to which they did show such a contemplation-and we admit that some
of them did-they would, of course, aiso imply an ackno\vledgment that
Respondent waç,indeed;not entitled to modify the status of the Territory
unilaterally. ARCUMEXT OF MR. DE VILLIERS .VI
As soon as there is an implication that the Mandate isin existence,
involving a certain status for the Territory, 1 accept entirely that it
implies recognition and acknowledgment that Respondent isnot entitled,
as a rnatter of law, to modify the status of the Territory unilateraiiy.
But, aiso, on the basis of the view, put fonvard by the South African
Government from 1948onwardç, that the Mandate has lapsed, the
Governrnent has always indicated.its policy to be that the Territory is
being adrninistered in the spirit of the Mandate and that, in accordance
with that general approach or policy, itaç expressed its intention notto
modify the status.of the Territory unilaterally-in other words, \vithout
general approval by the worId community. That is, in fact, the declared
policy of the South African Government, even on the basis that the
Mandate in law no longer exists. So, on that part of the Applicants'
argument, we have no material quarrel with them.
Our quarrel is with the second proposition, narnely that in the state-
ments and actions on which they rely, there was an acknowledgment
that the United Nations General Assembly replaced the Council,of the
League as the body entitled in ternis of Article. (1)to consent to the
modification of the terrns of the Mandate.
Aü.the statementsand the conduct in question on which the Appiicants
rely for that proposition, Mr. President,relate to the proposa1concerning
incorporation in 1946.For the reasons 1 have given, Mr. President, they
in no way imply the technical conçtmction of a substitution of the
General Assernbly for the League Council for purposes of continued
application of Article 7 (1).The procedure \vas adopted as a practical
one to bring about a certain result. It wak one which was employed by
other Statés'quite independently ofa question of mandate, and, therefore,
one which carried no further significance than just that. There was no
implication, either expressed or implicit, to the effect that there would
be a substitution of the General Assembly, technically, in the provisions
of Article7 (1) of the Mandate.
On this point, Mr. President;it is significant to see 'how the Court
treated this subject in1950. In the rnajority opinion the Court based its
finding on the conclusion that there was a substitution for purposes of
Article 7 (1).It based that finding mainly on the conclusions which it
had already reached. regarding the 'substitution of United Nations
supervisory orgnns for those of the League, for purposes of Article 6.
That was the basic finding, that there had been a substitution for
purposes of Article 6.Arguing from that .basis, it was quite easy to find
also that there was an intent to have a substitution for purposes of
Article 7 (1).After a conclusion had been reached on the strength of
these considerations, the Court said that the conclusiowas strengthened
by the action taken by the General Assembly and the attitude adopted
by the Union of South Africa.
In contrast, we find Sir Arnold blc~air's treatment of the subject in
his separate opinion. The Court will recall that he found that Artic6eof
the Mandate had lapsed and that there was no substitution of a super-
visory organ. On a similar reasoning he found that Article 7,paragraphI,
had also lapsed, and that there had been no substitution of a supervisory
organ; and it was on that basis that Sir Arnold McPITaihrad to deal with
the question: where does the competence now Lieto modify the status of
South !WestAfrica? He deals with that question at pages 162-163,and
the answer which he gives accords inal1 materia1 réspects with what 1522 SOUTH WEST AFRICA
have been subrnitting to the Court now. At page 162 of the opinion the
learned judge stated:
"What then is the effect of the disappearance of the League and
the ensuing impossibility of obtaining the consent of its Council?
In my opinion, the effect is that the first paragraph of Article 7
of the Mandate has now lapsed. But this event in no way alters the
quality or amount of the Mandatory's title or enlarges its power to
modify the terms of the Mandate, because the international obliga-
have already lapsed) and the international status of the Territoryd,
continue to exist. Moreover, the Charter provides one rnethod by
whicli the international status of the Territory can lawfully be
modifiedby the Mandatory, namely, by negotiating with the United
Nations and lacing it under a trusteeship agreement, as described
inChapters z11 and XII1 of the Charter."
Significantly, Mr. President, he says: "the Charter provides one
method by which the international status of the territory can lawfully
be modified." That is the method of agreement between the Mandatory
and the United Nations. The particular example given there was by
"... placing it under a trusteeship agreement", but of course, the last
Assembly resolution of the League contemplated more generally ali
arrangements that might be agreed upon between the mandatory powers
and the United Nations, involving ail kinds of alternatives-an alter-
native, for instance, as was asked for-as was contended for-by the
South African delegation in 1946, namely one of incorporation of the
temtory; and, also, an alternativesuch as was, in fact, achieved in the
caseofPalestine.
So,Mr.President, it follo~vthatthe lapse of Article7 (1)certainly does
not have the disastrous consequences contended for by the Applicants.
Itjs signjficantinthis regard to note the light in ~vhichthe General
Assembly itself viewed the submission to it ofthe matter in 1946. In
resolution 65 (1)of 14 December 1946 (64th Plenary Meeting) one of the
paragraphs of the preamble reads as follows:
"TheGeneralAssembly,
................................
Noting with satisfaclion that the Union of South Africa, by
presenting thisrnatter to the United Nations, recognizesthe interest
and concern of the United Nations in the matter of the future status
of territories now held under mandate;
.................................
1s unable to accede to the incorporation of the territory of South
West Africa in the Union of SouthAfrica; ..."
The Court willnote, Mr.President, thatthe highest at which the matter
was put bp the General Assembly, was that Respondent's conduct
constituted a recognition of the "interest and concem" of the United
Nations. It did not rnanifeçt a contemplation that there was an acknow-
ledgment that the United Nations had succeeded to the functions or the
powersof the League Councilin terms of Article 7 (1)of the Mandate.
Mr. President, in regard to the Court's finding i1950 that the United
Nations had succeeded to the powers previously exercisedby the League
in terms of Article 7(r),Respondent contended that-
". .. an essential link in the Court's reasoning was its previous ARGUMENT OF MR. DE VILLIERS 523
finding that 'powers of supervision in respect of the administration
of the Mandates' were vested in the General Assembly of the United
Nations. Respondent has subrnitted that this frnding was incorrect.
If Respondent's submission in this regard is sound, it would follow
that the said Advisory Opinion would no longer be acceptable
authority for the proposition-'that it is the United Nations whose
consent is now required for any modification of the tems of the
Mandate'." (IV,p. 135.)
The conclusion, Mr. President, we subniit is incontestable. Agreement
with the United Nations would be one of the ways in which there could
be a modification of the tems of the Mandate, that is, if one concedes
that the Mandate exists. But it would be only one of the ways, as was
said by Sir Arnold McNair; there are alternative methods by which a
same result can be achieved, i.e., without there being unilateral rnodifica-
tion on the part of the Respondent.
Mr. President, 1 have just read a passage from the Counter-MemoriaI
in which the Respondent stated explicitly that on its contention the
particular finding in the Advisory .Opinionalso codd not stand, nameiy
that it is the United Nations whose consent is now required for any
modification in terms of the Mandate, and 1explained the sense in which
the Respondent makes its submission in that regard-the United Nations
could provide a method for modification, but that would not be the only
method. This conclusion, 1 submit, Mr.President, is an incontestable one,
but my learned friends do not attempt to answer it on its merits-they
rnerely try to discredit it by referring to what theyterm the consequences
of it. They Say in the verbatirn record at page 222,supra, that Respon-
dent's subrnission-
"... leads toa reduclload absurdum,that is to Say, a conclusion that
if the alleged 'new facts' had been known to the Court in 1950, the
Court would have held that Respondent does, after all, have
competence to modify, and thereby destroy, the international
status of the Territory".
hlr. President, the Court )visee that the only consequence here assigned
to Our submission is that the Respondent would have, after all, "corn-
petence to modify, and thereby destroy, the international status". The
earlier alternative to which the Applicants' learned Agent himself had
referred, namely that the Mandate could remain in a frozen condition
-thai is not even mentioned here any more, and of course, Mr.President,
na mention whatsoever is made of the possibility of an alteration of
status by the ordinary processes of international agreement and recog-
paint in regard to the consequences of the subrnission that Article 7,to
paragraph r, of the Mandate is now inoperative-this part of their
contention is entirely without any substance.
For the reasons with which we have dealt we submit that the inter-
relationship between Articles 6 and 7(1) ofthe Mandate was a functional
one during the existence of the League, but it was not of such an inher-
ently essential nature that the falling away of Article 6 would have
the results contended for by the Applicants. The inoperability and the
consequent lapse of provisions of the Mandate such as Article -6 and
Article 7, paragraph 1, which were dependent for their operat~on on
organs of the League-that was a consequence of the disappearance of SOUTH WEST AFRICA
524
the League ~vhichwas deliberately foreseen and intended by the inter-
ested parties. They deliberately preferred to make no further provision
about rnatters of that kind in the circumstances as they obtained, and
one, therefore, has to accept the legal consequences of that deliberate
decision. The consequences in the case of Article 7 (1) are by no means as
alarrning as suggested by the Applicants; the position is stiIl that modifi-
cation can be obtained by the ordinary processes of international consent
and recognition, including the possible procedures through obtaining the
conMr. President, 1 come to deal with another argument very briefly-a
suggestion b y the.Applicants' Agent that there is an analogy between the
cy-prèsdoctrine and the contention which he is advancing to this Court
in regard to the interpretation of Article 6 of the Mandate. The relevant
passage is in the verbatim record at page.189, supra. It reaàs asfollows:
"Notwithstanding Respondent's formal objection to the doctrine
of cy+rès, and recognizing that the beneficiaries have remained the
sarne, nonetheles the beneficiaries thernselves have no right under
the Mandate to seek judicial or administrative recourse. The concept
underlying the cy-prèsdoctrine, accordingly, rnay be thought to be
- analogous to the situation here, that is; a new surrogate, or represen-
tative of the beneficiary, is essential, inasmuch as without such
representative the,beneficiary, which has no 'existence'in larv, has
no right to seek protection, as inhabitants."
Mr.President, it willbe.seen that this suggestion that the cy-$risdoctrine
can have sorne application in this case is a very tentative one, and it is,
therefore, not necessary for me to deal at any length or exhaustively
with the topic. Members of the Court may recall that during the Oral
Proceedmgs on the Preliminary Objections we had occasion to conçider
the Authorities in regard to the cy-Prèsdoctrine, and for the reasons
there set out we submitted that the circumstances of the present case
are not analogous at aLlto those justifying invocation of this doctrine.
The Court will find the references in the Oral Proceedings of 1962 at
pages 118-120 (VII).
Basically, Mr. President, in our submission the anslogy itself is afalse
one. Under the cy-prèsdoctrine a court may under certain circu~nstances
direct that where a beneficiary under a tmst cannot be ascertained or
has ceased to exist. the trust assets may be empioyed for the benefit
of another beneficiary of the same kind as the original one. One finds this
especially in charitable bequests, where there is an intent to benefit
charity, and for that purpose a specific institution is mentioned. The
particular institution falls away and the court applies the bequest for
the benefit ofanother similar institution, The point 1make at the moment
is that the doctrine is applied, where there has been a lapse of the benefi-
ciaq mentioned, to prevent a complete lapse of that kind. In the present
case there is no question of the lapse of a beneficiary under a trustas the
Applicants indeed recognize in the passage which they have quoted.
The analogy which they suggest is that the doctrine should be applied,
not to the case of a lapse or disappearance of the beneficiary, but to the
lapse or disappearance ofthe supervisory organ. But, Mr. President, on
analysis they do not contend that the court can substitute a new super-
visory organ in the same way as the court would be able to substitute a
new beneficiary under the application of the cy-$ris doctrine-they do ARGUMEST OF MR. DE VILLIERS 525
not go so far. Such a contention wodd indeed, >Ir. Presideat, raise
insuperable difficulties-difficultieof .principle which are not involved
in the application of the cy-@èsdoctrine by municipal courts; the
principle, for instance, that an obligation cannot be imposed upon a
party who ha not consented to that obligation. There cannot be a
modihation of an obligation not consented to by the party itself. That
type of problern does not arise in the application of thecy-près doctrine
atall; it does arise herThe Applicants, therefore, do not go so far as to
Say that the court itself could effect such a substitution on-the analogy
contended for. Thejr argument rather seems to be this, hIr. President:
that the same type of interpretation which gives rise to the application
of the cy-pvès doctrine is to be applie-d here in the interpretation of
Article 6 of the Mandate. .
As we pointed out in the review to which 1referred before, Mr. ,Presi-
dent, before the cy-près doctrine can be applied in municipal institutions
where it does apply, there is to be a findingby the court that the donor
in the particular case was motivated by an O-ver-ridingcharitable intent
transcending the mode of its operation. We give the authorities on that
point in the Oral Proceedings at pages 118-119 (VII). Inother ~vordç,the
court, in such cases hvhereit is said that thecy-$résis to be applied, has
to satisfy. itself first of al1on this question of the intent of the donor. .It
has to decide on ordinary piinciples of interpretation:didthe donor have
a general over-riding charitable intent, and was this particular institution
mentioned by the donor, therefore, just a means of giving effect to that
intent, or was the intent of the donor indeed inçeverably connected with
a particular institution, sas to apply tothat institution and to no other?
In the former event there is scope for the application of the doctrine;
in the latter there isno scope for its application and the courts do not
then apply it. That appears very cleariy from the authorities which we
cite in the part of the Oral Proceedings of1962 fo which 1have referred.
So by analogy with the facts of the present caseMr. President, it urould
be necessary to find, first, on ordinary principles of interpretationthat
there was an over-riding intent on the part of the founders of the man-
dates system to create international supervision, as distinct from super-
vision by specific organs. It brings us back to that same basic conflict
between the Applicants and ourselves as to the manner in which Article 6
is to be interpreted and what effect is to be given to it in Iaw.
So the doctrine cannot assist the Applicants. The doctrine would have
been applicabIe only if that issue, which is a straightfonvard issueof
interpretation and application, were first resolved in the Applicants'
favour; then there would, in the analogous circumstances in municipal
systems, have been a basis for the application of a cy-prks doctrine.
However, Mr. President, the doctrine itself cannot assist the Applicants
in the interpretation for which they contend. The reverse really applies.
Such an interpretation must be justified on ordinary principles before
there can be any application of such a doctrine. Therefore, the reference
to the cy-prèsdoctrine does not, in any way, assist the Applicants.
Now, Mr. President, I proceed to consider the 1950 Opinion and the
1962 Judgment of the Court in their effect on the issues regarding Article
6 of the hlandate.
The Applicants in their Memorials, Nr. President, sought to give çome
effect, similar to that of res judicafa, to th1950 Opinion. In the Oral
Proceedings on the Preliminary Objections (VII), at pages 21-24, the5z6 SOUTH WEST AFRICA
Respondent dealt with this submission very fully in an exposition which
was, for convenience, repeated in the Counter-Mernorial. We find it in
the Counter-Mernorial (II), pages 98-102 I. the Counter-Memorial we
gave consideration also to the effect of an earlier judgment on prelimi-
nary objections-what effect that has on the same issues as they arise
later inthe same case. That is dealt with in the same volume at pages
102-103. Our contention was as follows:
"Findings made in a judgment on preliminary objections would
naturally carry great weight where the subject-matter of the findings
are in issue on the merits. Nevertheless the Court would always
entertain arguments directed towardç persuading it to depart from
its previous judgment, and would corne to a different conclusion
where sound reasons exist therefore."
Mr. President, although this contention was stated more particularly
with respect to a previous judgment on preliminary objections, the wordç
in issue also reflect Ourcontention in regard to the weight which should
be given to an earlier advisory opinion. We stress that in the ordinary
course great weight as a precedent and an authority would be given to
such hdings, in preliminary objections, opinions or judgments, and in an
advisory opinion, but there may be certain circumstances in which the
Court rnay finditself compelled to departfrom the conclusions arrived at.
Faced, Mr. President, with these fdly motivated statements of
Respondent's submission, the Applicants did not, whether in the Oral
Proceedings on the Preliminary Objections, or in the Reply, or in the
Oral Proceedings on the Merjts here, seek to support the attitude adopted
by them in the Memorials-the attitude, that is, of giving to the pro-
nouncements in an advisory opinion a similar effect to that ofres jetdicata.
In the Reply, the Appiicants adopted a new attitude, but it was a
completely inconsistent one. They conceded, on the one hand, and 1refer
to the Reply (IV) at page 522, Respondent's pnvilege to reassert in a
contentious proceeding submissions contrary to the findings in the
previous Advisory Opinion and Judgrnent on the Preliminary Objections.
There they made the concession that Respondent has the privilege to
reassert its previous submission, even though its terms were contrary to
the Opinion and the judgment.
On the other hand, they contended in the Reply (IV), at page 552,
that the matters decided in these proceedings are to be regarded as res
judicata.
In our Rejoinder, V, pages 15-16,we pointed out this inconsistency,
but the Applicants have still not clarified their attitude in the present
oral proceedings. They have not indicated which of those two attitudes
they actually adopt. We assume, Mr. President, that they do not adopt a
definite attitude on 7es judicata, in view of the concession which they
made in the Reply, and the fact that they have presented no argument
either in the Reply or in these proceedings to support the contention of
res jztdicataWe shail, therefore, assume that they do not advance such a
contention and 1 shall not address myself to any such proposition. We
shalI Iimit ourselves to submitting that that contention would be unten-
able for the reasons and on the strength of the authority set out and
discussed in the relevant part of the Counter-Mernorial.
matter in order to see whether there is sound reason for departing from ARGUMEST OF hlR.DE VILLIERS
97
conclusions previously arrived at in either of these instances, on that
basis 1 proceed to discuss the previous Advisory Opinion and the Judg-
ment on the Prelirninary Objections in regard to their content.
Before 1 make any submissions at al1on the question whether any of
these conclusions are to be followed or not to be followed by the Court
the findings andthe implications relevant to the issues nt present before
theIn regard to the 1950Opinion this presents no difficulty. The Court
held, in express terms: .
". ..that the Union of South Africa continues to have the inter-
national obligations stated in Article 22 of the Covenant of the
League ofNations and in the Mandate for South-West Africa as weU
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 .. ."(I.C.J. Reports1950 ,. 143.)
It is quite clear, Afr.President, that the submission which we advanced
to the Court on the question of ArticIe &the question of supervisory
jurisdiction-furnishing of reports and petitions-is directly contrary
to the findmg of the Court in the rg50 Opinion. For the reasons, which 1
shall advance presently, the Respondent will, with the greatest respect,
ask this Court not to followthe 1950 Opinion in that particular respect.
The 1962 Judgment and opinions, Mr. President, are in an entirely
different position. In the Preliminary Objections proceedings the con-
tinued existence of Article 6 was not a matter which necessarily required
a decision fier se. It was raised by the Parties as beinga relevant con-
sideration upon which the Court could corne to conclusions on the issues
regarding jurisdiction, depending on particular views which the Court
might take on certain aspects of the matter.
For that reason there was full argument on the question whether there
was succession of the UnitedNations to the League's functjons in respect
of Article6.It wascertainly fully argued from Ourside and the Applicants
alsostated their contentions in the Observations andin the oralargument
to the extent of relying on the reasoning of the Court in 1950 in that
arguments. But the relevance, asy1bhave said, of that issue, would depend
on the views which the Court, or Members of the Court, might take on
other issues and other questions in those Preliminary Objections pro-
ceedings.
In the result, al1 the Nembers of the Court did not make express
findings in regard to the issuesof the existence of Article 6. Some did,
some did not. On the basis of an analysis of the Judgrnent and the
separate opinions, we submitted in our Counter-Mernorial, II,page 153,
as follows:
". . four Afembers of the Court (Judges Bustamante, Spender,.
Fitzrnaurice and van Wyk) expressed a clear view that Article 6
hadlapsed on dissolution of the League. Theother eleven Judges did
seveneofthem are towiahgreater or lesser extent inconsistent with any
survival of the Mandatory's procedural obligations. They are Judges
AIfaro, Badawi, Moreno Quintana, Wellington Koo, Koretsky,528 SOUTH N'EST AFRlCA
Jessup and Aibanefo. In respect of the remaining four Judges (i.e.,
President Winiarski and Judges Basdevant, Spiropoulos and
Morelli)no indications are in this regard afforded by their Opinions."
That was the analysis we gave, Mr. President, and the conclusion we
arrived at after analysis, in our pleadings.
Mr. President, the Applicants, without joining issue with us on this
analysis of the Judgment and ofthe opinions, nevertheless statein their
Reply that the Judgment provides support for their contentions. 1%
find that stated in the Reply (IV) at pages 522-524, 539 and 552.We
passed comment in the Rejoinder on this attitude on the part of the
Applicants of ignoring Our expositions-our analyses-but simply
Applicants' reaction, \ve have n6w heardrtinothese Oral Proceedings, and
here theystated as foilowsin the verbatim record at page 172,supra:
". ..the C'ourt'sreasons and conclusions in both the 1950 Opinion
and the 1962 Judgment speak for themselves, and do not require
analysis or exposition by the Applicants in this respect".
They proceeded to state this, however :
"It is subrnitted that the Respondent's analyses of both the 1950
Opinion and the 1962Judgment are irreconcilable with their clear
intendment andactual purport."
Neverthelcss, Mr. President, the Applicants noiv, for the first time,
devote some attention to attempts to showthat the reasoning of the 1962
Judgment supportstheir contention. We findthose atternpts made in the
argument orally presented to the Court. But it will be noted that they
limit their contentions to the Judgment, and also those which 1have just
read to the Court. They do not deal with Respondent's contentions
regarding the effect of the various separate opinions andit ~vouldappear
on the urhole, tlierefore, Mr. President, that they do not contest.our
interpretation and analysis of those opinions. They have not stated their
attitude clearly in that regard. If this does not accord with their attitude
then 1 should like to hear what their attitude really is, but for the time
being it would appear that they do not contest our analyses of the
opIn this oral ,address1shall, therefore, also limit myself to an examina-
tion ofthe Jud ment, with a fewexceptions. There are one or two matters
to which 1 sha 71draw attention in regard to the separate opinions. But
before doing that, hlr. President, 1 want to ernphasize that the four
judges who in their separate opinions expressed any definite view
regarding the continued existence, or othenvise, of Article 6, al1 four
stated that, in their opinion, Article had lapsed. There was no explicit
statement or finding by any of the other judges to the contrary.
The same view as was expressly stated by the four judges in question,
hfr. President, canbe derived, though not expressly, but nevertheless, in
Our submission, implicitly, from the opinions of Judges Jessup and Sir
Louis Albanefo.We deal with an analysis of their opinions inthe Counter-
Memorial, II, atpages 161to 163. Those submissions, as I have said, have
not been contested thus far by the Applicants and 1 should lige to hear
what their attitude is.
It is in this respect that 1 want todepart slightly and refer to one or
two salient features in those opinions which are not fully set out in the
Counter-Memorial. and which 1should like to stress as they appear to be ARGUMENT OF MR. DE VILLIERS 529
relevant iii the light of the oral argument urhich has now been presented
to tlie Court from both sides.
1 should like to refer first to the opinion of Judge Jessup, at page413
to414 of the record of theI 62 Judwent and opinions. In the particular
passage the honourable Ju&e ciraws a distinction between the type of
problem which ai-osein regard to Article 7and that which arose in regard
to Article 6 on dissolution of the League. We contended, as the Court
\vil1recall, in regard to Article 7, that there were similar probkms to those
which arose in regard to Article 6-problems which arose from the fact
that the cornpetence to invoke the jurisdiction of a court was expressly
conferred on another Member of the League of Nations, and membership
of the League of Nations cea'sedon dissolution of the League. We referred
fils0 to the problems that arose in regard to thc fact that the court
rnentioned was the Permanent Court and not the preseat Court.
In the passages to which 1wish to refer the honourable Judge Jessup
draws a distinction between thetype of difficultywhich arose in regard to
ilrticle 7 and that which arose in regard ta Article 6:
"Did Article 7 become inoperable? In contrast ta Article 6,where
thè organ-namely the Council of the League-disappeared, in
Article 7a nelv organ had been substituted for the old by the opera-
tion of Article 37 of the Statute of the Court to which of course the
Mandatory was a party.That transformation took place on the birth
of the United Nations, and there can be no doubt that Article 7
provided for reference to this Court during that period from the
birth of the United Nations to the death of the League.
On the dissolution of the Le,ague.it is true there were no longer
States wiiich were 'Afembers of the League', but did this fact
frustrate performance? It has been shown that the disappearance
of.the quality of Member did not make Article 5 inoperable and the
'case iseven stronger here.since under Article 7 the Mandatory is not
the actor, is not the operator,so to speak. In so far as concerns the
administration or operation of the Mandate, the disappearan'ceof the
Councilof the League might besaid to create a measure offrustration
in regard to the required acts of the Mandatory in filing reports. .In
regard to Article 7,however, the new Court was available. In contrast
to the United Nations system it wiil be rccalIed that the Permanent
Court was not a part or organ of the League and the winding up of
the Court was separate from the dissolution of the League..For the
successful operation ofthe Mandate during the lifeofthe Leagie, the
quality of being a Member of the League was not necessary to the
operation of Article 7;as already shown there were quite other rea-
sonsforreferring to the Mernbers." (I.C.]. RePorts1962,pp. 4~3-414.)
The line of reasoning appears to be this, that there were difficulties of
frustration arising frorn the disappearance of the organ referred to in
Article 6, namely the CounciIofthe League, that forthe reasons advanced
in the opinion, with which 1need not deal at the moment, the same type
of mechanical difficuIty did not arise in regard to membership of the
League and in regard to the question of a substitution of court. Those
were provided for in a manner not applicable to the case of the difficulty
which arose under Article 6.
In the case of the opinion of Sir Louis Mbanefo I wish to refer the
Court to a passage cited in the Counter-3Iemorja1, II,at page 162, This530 SOUTH WEST AFRLCA
was a hding in regard to the question of the compromissory clause of
Article 7:
"Although the League was diçsolved, the Mandate still continues
and the rights and obligations embodied in it became, as it were,
maintained at the level at which they were on the dissolution of the
League. It is on this ground that the Respondent can justify its
right to continue to administer the territory and those States who
were Members of the League at the tirne of its dissolution the right
to continue to invoke the cornpromissory clause of Article 7. The
right to invoke Article7 remained vested in those States who were
Members of the League at the time of its dissolution, and continues
notwithstanding the termination of the League's functions."
Mr. President, we point out that that reasoning that the rights and
obligations embodied in the Mandate becarne, as it were, maintained at
the level atwhich they were on the dissolution of the League could, by
way of contrat, never be applicable to the case of the problem which
arose under Article 6.That problem could not be overcome by the process
of maintaining rights and obligations at a certain leveI. The problem
could only be overcome by newarrangements involving, as the Applicants
themselves admit, new consent on the part of the mandatory to a sub-
stitution of supervisory organs-a substitution which would involve a
cornpletely different composition of organs and completely different
processes of supervisory machinery from those which had becn ap-
plicable during the time of the League. Therefore, this approach \vould
not be applicable to the problems raised by Article 6.
1 proceed now, Mr. President, to deal with our coiitentioils regarding
the Judgment. They were set out in the Counter-Memorial, II, pages
156-161.
The first contention we advance is that the Court's findingregarding
the formin which Article 7, paragraph z,of the Mandate (the compromis-
sory clause) was said to have survived the dissoIution of the League, waç
inconsistent with any finding of a substitution of supervisory organs. It
will be recalled, Mr. President, that the Applicants' main contention,
with a view to overcoming the difficulty of a reference in the compro-
missory clause to another Member of the League of Nations, was a
contention of succession-they advanced two contentions in the alter-
native. The main argument was one of succession-that a succession
occurred whereby the United Nations and its Members had succeeded
to the rights previously exercised in respect of mandates by the League
and its Members. The two went together-rights and powers of the
Organization, competence of the Members.
In the alternative, the Applicants advanced a contention of a carry-
over, in terms of which the rights of States which were Members of the
League at its dissolution remained, under Article 7 (z),evcn after such
dissolution.
It was apparent, air. President, that if this succession argument were
accepted it would have been of equal application to both Article 6 and
Article 7, for the reasons I have mentioned. They, indeed, were advanced
in that form-that itwas because of a succession inregard to the powers
of the Organization that the succession also occurred in regard to the
competence of the Members of the Organization.
On the other hand, in regard to this alternative argument-the carry- ARGUMENT OF MR. DE VILLIERS
531
over argument-not only would that be inapplicable to any concept of a
transfer of supervisory powers to the United Nations, it would in fact be
inconsistenttherewith.
The Court will recall thatthe Court in 1962did not foiiowor adopt the
Applicants' succession contention-not a single Member of the Court
adopted that contention for the purpose of overcoming the difficulties
pertaining in Article 7, paragraph z. Instead the Court, in its Judgment,
Court was stated astfollows,in the I.C.J. Reports 1962,at pageg338:the
"Those States who were Members of the League at the the of its
dissolution continue to have the right to invoke the compulsory
jurisdiction of the Court, as they had the right to do before the
dissolution of the League."
1 shall deal later with the reaçoning by which the Court arrived at this
result. At present I am only concerned with the effect of this hding.
As we have stated, Mr. President, the finding by its very nature
cannot support the Applicants' contention. It is,indeed, as a matter of
logic, diametricaily opposed to the Applicants' present contention of a
succession regarding supervisory powers, or a substitution of supervisory
organs, in whichever way they prefer toput it. The finding of the main-
tenance by States. in their private capacities, of rights which they prev-
iouçly held in their capacities as Members ofthe League, provides at the
lowest, no support for a contention that the rights of the League organs
passed over to the organs of the United Nations. The two things are
unrelated, putting them at the lowest. The mere fact that the Court hds
here that the States whick were previously Members of the League could
continue, because they had been Members of the League, to exercise
certain rights, and not because of present membership of the United
Nations, makes it clear that the Court's finding was not based on any
concept of a succession nature and it, therefore, provides, at the lowest,
no support for the contention of a succession nature, or substitution of
supervisory organs, as advanced by the Applicants. But when we go
further, Mr. President, and when we have regard to the basis of the
Court's finding, on the one hand, and, on the other hand, the basisof the
Applicants' argument, it becomes clear that these two propositions-the
finding of the Court and the Applicants' present contention-are really
irreconcilable.
The Court held, firstly, on the basis of an interpretation the Mandate
documents and in conjunction therewith on the basis of an agreement
said to have been agreed in the years 1945-194 that the cornpetence to
instjtüte proceedings remained vested in States which were Members of
the League, as at the time of its disçolution.
The Applicants contend, on the basis of an interpretation of the same
mandate documents, and on the basis of an agreement said to have been
reached in the same years (1945-1946) among the same parties, and
evidenced by the same material as that relied upon by the Court, that the
League's supervisoryfunctions are now, pursuant to asubstitution, tobe
exercised by the United Nations.
If one tries to reconcile these two propositions, Mr. President, one
parties in 1945aor 1946 intended to split up two methods which are said
to constitute forms of protection of the sacred trust. After dissolution ofthe League (if wefollowthis attempted reconciliation) judicial protection
would remain in the hands of a static number of States-a number of
States which were Rlembers of the League as at a particdar date. That
number of States rnight not, and, as we know, they, in fact, do iiot,
coincide at al1 with the States that are Rlembers of the Organization
wliich is now said to exercise the administrative supervision. ln other
words, the group of States that can invoke jurisdiction of the Court-that
one form of protection-that is a group which is distinct from the group
trative supervision.rise the Organization that is to exercise the admiiiis-
'.I'his, Rlr.President, on the basis of the reasoning of the Court in 1962,
would conçtitute a material modification of the whole purpose of the
Mandate, because the Court held in 1962 that the compromissory clause
was intended, in the ultimate analysis, to impose on the mandatory the
will of the authonty exercising administrative supervision. That was o~ie
of the basic findings of the Court, namely that the purpose of the com-
promjssory clause was to make it possible thatthewillof the Organization
exercising the administrative function could be imposed upon the manda-
tory. Judicial supervision and administrative supervision, therefare, had
to go hand-in-hand, for that purpose. And now we find, if we try to
reconcile the two-attjtudeç-the finding of the Court in 1962 about
competence to invoke the jurisdiction of the Court, and the present
contention of the Applicants about the administrative supervision-that
those two things areseparated.
A splitting up of the functions in the way which would fillow the
Applicants' argument, would consequently run directly counter to the
Court's Judgment in 1962, for it would mean that the interconnection
found by the Court between Articles 6 and 7 did not exist, or \vould be
immaterial. It would also impute, Mr. President, absolute irrationality
to the parties to the alleged agreement in rg45 and 1946-an irrational
agreement which would have to be inferred by necessary implication
from the facts. We discussed this topic fully in the Counter-hlernorial,
II, pages 156-15 8,d 1have not heard any reply from the Applicants in
this regard.
We çubmit, therefore, Mr. President, that, for these reasons, the kere
anomaly which would result, as a rnatter of effect, from trying to reconcile
the Applicants' contention with the Court's finding, indicaies the estent
to ~vhichthis contention is now in confiict with the finding of the Coiirt-
that is as regards its effect. Nevertheless, without dealing with this
question at all, the Applicants still assert that the Judgment supports
them. But before dealing with that, 1 should like to pass on to the
reasoning whereby the Court reached its conclusion, and 1 submit that
that is as equally inconsistent with the Applicants' contention as is the
effect ofthe conclusion at which the Court arrived. It will be recalted,
Mr. President, that three factors were relied upon specificaI1y by the
Court for its finding that competence to invoke the compromissory
clause remained vested in States which were Members of the League at
the time of its dissolution. The thrce factors EVere:
r. The essentiality of the judicial protection of the çacred trust.
(I.C.J. Reports 1962, pp. 336-337.)
2. The reliability of judicial protection. (Ibid., pp. 337-338.)
3. The conclusion of an agreement in rg46 to maintain the rights of ARGUMENT OF MR. DE VILLIERS
533
the Membersof the League notwithstanding the dissolution of the League
itself:(ibid., pp. 338-342.)
Mr. Preçident, I should like to rifer to the implications of each of
circumstances that under.the League of Nations unanimity was requiredthe
for Councilresolutions. The Court held that right of recourse to the Court
waç granted in order to cnforce the willofthe Councilagainst arecalcitrant
Mandatory. The Mandatory, so it was argued, could block the effective
taking of Council resolutions and the effectiveexecution thereof, because
of the principle of unanirnity, and it was therefore neceçsary, in order to
makethis whole process of control over the Mandatory an effective one,
that there had to be recourse to judicial proceSswhereby the wiii of the
Councilcould then be enforced upon the Mandatory. This line of reason-
ing, as1ve .have shown, entirely negatives any prospect that the parties
in 1945or in 1946 would have intended to split up the two types of
supervision held to have had an inter-connected purpose.
The reasoning regarding reliability we find in the 1.C.J. Reports1962,
at pages 337-338. It reads, interalza, as follows:
".. . besides the eçsentiality of judicial protection for the sacred
trust ... the right to implead the' Mandatory Power before the
Permanent Court was çpecially .and expressly conferred on the
Members of the League, evidently also because it was the ~nost
reliable procedure of ensuring, protection by the Court, whatever
might happen to or arise from the machinery of administrative
supervision." .
That is the concept of reliabili'tyas çtated by the Court. Now 1 shquld
Iike to refer to the.first few words, "besides the essentiality of judicial
protection for the sacred trust": Those words indicate, Mr. President,
that thiç concept of reliability was a factor which the Court invoked in
addition to the argument of essentiality. It was an argument which stood
independently of the argument of essentiality; it was not a mere re-
statement or an exarnple of application ofthe principle of essentiality.
I mention that particularly because of a form one of the arguments took
which lias been advanced by my learned friends, and 1shall revert to its
significance later. Secondly,1 wish to stress the last wordsin this passage,
"whatever mighthappen to or arise fram the machinery of administrative
supervision". The passage thcreforc shows that the reliability of judicial
protection was important inasmuch as circurnstances might arise in
which sornething "might happen to or arise from the machinery of
administrative supervision". The Court considered, therefore, that
whatever might happen to that machinery, the judicial protection would
still stand.
Mr. President, the significance of this idea in the Court's reasoning
becomes apparent if regard is had to the factor that reliability, as stated
tiality.ItfolIo\vsthat judicial protectionwasdinot conceived to be reliabie
becarise it could cbpe only with the situation of frustration where the
Mandatory could not agree to unanimous resolutions of the Council.That
was a factor relied upon by the Court for saying that itsrrasessential in
the mandates system to have judicial protection in addition to the
administrative supervision. But when it cornes to reliability, the view of
the Court was that judicial protection could operate in circumstances534 SOUTH WEST AFKlCA
where, for reasons other than lack of CO-operationon the part of the
Mandatory, the "machinery of administrative supervision" could not
function properly, or could not function at all. Ttfoilows, therefoifwe
look at this concept ofoperating where that machinery could not function,
that it was not in the circumstances of a frustration in the procedure
itself. It pre-supposes, Mr. President, that something else must have
happened, that for some reason the whole machiner of administrative
supervision could fail, and the judicial protection cdustili stand.
In its context the import of the Court's reasoning in the passage is,
consequently, unmistakeable. It isthat judicial protection was designed
to be effectiveeven in circurnstances where the machinery of administra-
tive supervision lapsed, or became inoperative. And the reference to, and
the emphasis upon, the applicability of the feature of reliability, demon-
strates that the Court considered that this quality of reliability was
relevant to the present circurnstances. that is, that the machinery of
administrative supervision hadindeed, in the Court's view, broken down.
The Court gave this weight to the factor of reliability of the judicial
protection as a reason for coming to the conclusion that the judicial
protection was intended to survive. It gave that weight to the consider-
ation with reference to the facts ofthisparticularcase; it gavethat weight,
therefore, in our submission, with reference to an actual contemplation
that something had happened to the machinery for administrative
supervision-that that might indeed, in the Court's view, have broken
down.
The Apylicants apparently did not reaiize that the Court's reliance
on reliability of judicial protection constitutedseparate line of reason-
ing. They apparently interpreted that as being merely part of the state-
ment of the Court's concept of the essentiality of judicial protection, and
178, s@raeq:ently contended as follows, in the verbatim record at page
"The history ofthe dispute now before the Court, Mr. President,
in which the normal secwity for the protection of the rightsof the
inhabitants haç been frustrated by virtue ofRespondent's failure and
refusal to discharge its obligation to submit to international super-
vision, even while retaining rights under the Mandate, underscores
the significance of the Court's description of the right to implead the
mandatory before the Court as (what the Court described as) 'the
most reliable procedure of ensuring protection by the Court what-
trative supervision." or arise £rom the machinery of adminis-
The Court will see that in this passage the Applicants attempt to
equate the first ground upon xvhich the Court relied, the essentiality,
with the second ground, the reliability. In our submission this equation
is quite unjustified, because the Court itself distinguished between the
t\vo.
At this point it may be convenient, hfr. President, to refer to another
argument advanced by the Applicants, which is rendered as foliows at
It reads at page 124:e verbatim record, but whichalso appears eIsewhere.
"It iç submitted that, in view of the relationçhip between Articles
6 and 7, it is thus implicit in this honourable Court's holding and in
views expressed by the learned judges that if, and since, Article 7 ARGUMEKT OF 31R.DE VILLIERS
has beenheld by the Court to bein effectit wouldseem that Article 6,
by reason, logic and practical necessity, shouid also be concluded to
have remained in effect."
We find references to the same linc of argument also in the verbatirn
record at page 178, supra, and at pages 187-188 s,pra. From what 1
have just said, Mr.President, it willbe evident that this argument ignores
the Court's reasoning regarding the reliability of judicial protection,
The reasoning of the Court on this question of reliability of judicial
protection poçtulates and stresses as one of the features of the so-cailed
judicial protection, that it could continue to operate even where the
machinery of administrative supervision was for one reason or another
out of action, a consideration which runs directly counter to the Appii-
cants' suggestion that,ifthe judicial protection survived, theadministra-
tive protection must therefore, also have survived. On that point there
is a very clear conflict of reasoning between the Applicants and the
c06?;hee0kd's reasoning, there would not appear to be any reason or
logic for supposing that a finding that Article 7 has survived necessarily
involves a finding that Article 6 has survived, particularly not in view of
the basic difierence in the formin which Article 6is said to have survived
by the Applicants, as compared with the forrn in which the Court held
that Article 7 has survived.
The third ground, Mr. President, relied upon by the Court for coming
to jts conclusion regaràing the compromissory clause, was an agreement
arnong al1 Members of the League of Nations in 1946, and in regard to
this agreement 1havealready pointed out that its content isirreconcilable
with the Applicants' present contentions. When 1 Saycontent, I mean its
effect in keeping the competence to invoke the Court's jurisdiction
vested in a static group of States which were Members of the League at
the time of its dissolution, and in not finding that that competence \vas
vested in Members of the United Nations.
But, Mr. President, when we pass over to the reasoning of the Courtin
support of this finding of an agreement, and explanatory of the finding,
then we frnd that that even more clearly negatives any result such as is
contended for by the Applicants. The object of the agreement, as found
by the Court, was asstated in the Judgment at page 338:
"... to continue the different Mandates as far as it was practically
feasible or o~erable with reference to the obliaations of the Manda-
tory ~owers'and therefore to maintain the Gghts of the filembers
of the League, notwithstanding dissolution of the League itself".
The ~ud~rnent then proceeds to çtate at page 339 th& discusçions
were held "to find ways and means of meeting the difficulties and making
up for the imperfections asfar as was practicabIeW.Later, at page 342,
the agreement is said "to maintain the statzcsquo as far as possible in
regard to the Mandates". A very significant passage appears at page 341 :
dIt isclear from the foregoingaccount that there was a unanimous
agreement among al1 the Member States present at the Assemb!y
meeting that the hlandates should be continued to be exercised in
accordance with the obligations therein defmed although the
dissolution of the League, in the words of the representative of
South Africa at the meeting, 'will necessarily preclude complete
cornpliance with the Ietter of the Mandate', i.e. notwithstanding the SOUTH WEST AFRICA
fact that some organs of the League like the Counciland the Perma-
nent Mandates Commission would be missing. In other words the
common understanding of the Member States in the Assembly
-including the Mandatory Powers-in passing the said reçolution,
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 Alandates."
1emphasize these words, Mr. President : "however imperfect the whole
systern would be after the League's dissolution, andas much as it would
be operable." Clearly, they impute a contemplation that, despite this
agreement, despite what it provided for, there would stili Besome aspects
in which the whole system would be imperfect after the League's dissolu-
tion. There would still be parts of it which would not be operable because
the agreement applied only to "as much as it would be operable".
and we concluded,eshIr.President, that the-reasoning was entirely incon-
sistent with any contention that the same agreement could have effected
a transfer of supervisory functions to the United Nations. We stressed
these very two elements which 1 have mentioned, narnely the irnperfec-
tion, andthe "as much as it would be operable". In this last passage
which 1 quoted, the imperfection and the incompleteness, if 1 may cal1
it that , are related directly to the disappearance of the organs exercising
administrative supervision. If there had been an agreement,and-if the
Court contemplated that there had been an agreement whereby super-
vision had been transferred to the United Nations, or whereby th6 United
Nations had been substituted as a supervisory organ, then, surely, ,the
imperfection would have been cured-it would no longer have been
necessary to speak of a systern which wouId operate imperfectly, or of as
much of it as would be operable. It seemsclear, therefore, Mr. President,
that the Court did not regard that such a transfer or a substitution of
organs was effected by the agreement which it found to have been
concluded.
The Applicants in their oral statement to this Court skate very lightly
over this argument. They Say: :
"The Court's references to feasibility or operability corresponded
to the objective realitiof the situation caused by the demise of the
League, to wit, the iiecessity to substitute the existing supervisory
organs with others, and specifically, the substitution of the United
Nations for the League. That such substitution was both practically
feasible and operable is beyond dispute, inasmuch as the United
Nations, then in existence, had:
'another international organ performing similar, though not
identical,supervisoryfunctions ... [and was] legally qualified to
League of Nations with regard to the administration of the the
Territory .. .(I.C.J.Reports1950, pp. 136, 137.)'
Accordingly, the United Nations was in a condition and in a
position to replace the League of Nations both from a feasible and
operable standpoint." (P. 215, su$ra.) ARGUMENT OF YR. DE VILLIERS
And on the same page the Applicants' Agent continued :
"The Court's qualifications, such as the phrase 'howeverimperfect
the whole system would bel, or 'as much as it would be operable',
referred, in the Applicants' respectful submission, to the obvious
fact-which the Court noted in the sentence preceding the quoted
language-that '.. .sorne organs of the League like the Council and
the Permanent Mandates Commission would be missing'. As the
Court also noted, this fact necessarily precluded 'complete com-
pliance with the letter of the Mandate'."
Mr. President. 1 submit that these two quotations from my learned
friend's argument exactly establish Ourcontention. If it isaccepted that
the United Nations could provide a complete and adequate substitute
forthe League regarding supervision in respect of mandates, then these
qualifications employed by the Court can be explained only on the basis
that it didnot consider that supervision wouldpass to the UnitedNations ;
othenvise the qualifications contemplated by the Court would not have
applied at all-they would not make sense in the Court's reasoning. This
is the point which is not met by the Applicants. The very fact that there
was this other organ that would be competent to undertake supervision,
if asked to do so, if satisfactory arrangements could be made in that
regard, makes it clear that the Court could not have conternplated that
that organ had been substituted, by agreement or otherwise. Otherwise
the Court could not possibly have spoken of the incompleteness of the
system to operate under this agreement.
The furthest the Applicants go in attempting to meet this difficulty
and in atternpting to reconcile the Court's reasoning with their argument,
is to açsert, without argument:
". .. that the same considerations, and full parity of reasoning [as
that employed by the Court regarding Article 7 (2)).applies to
interpretation of Article 6 and Article 7, paragraph r, in respect of
the matter under discussion". (P. 215, supra.)
Ashas been shown, Mr.President, this is a bold statement, but completeIy
unsubstantiated, andit is quite untenable.
In considering the reasoning of the Court, we have dealt tvith the
element of incornpleteness, or imperfection which, as the Court stressed,
1vouIdinhere in the Mandate after dissolution of the League, despite this
agreement, which the Court found. But a further aspect of the reasoning
ofthe Court, which is,in Oursubmission,inconsistent with the Applicants'
argument, and closely related, is its statement that the purpose of the
agreement in April1946 was, in the Court's view, not to create new rights,
but merely to "maintain the statrrsquo" or "maintain the rights of
Membersof the League"-mailatain the rights ofMembersofthe League-
maintain the sfalusquo.
Now, Mr. President, an agreement of this content could conceivably be
said to apply so as to serve to perpetuate in favour of States, in-their
individual capacities, the competence to invoke the compromrssory
clause-a competence which had been previousIy vested in them intheir
capacities as Members of the League. But, Mr. President, it could
obviously nofhave the effect ofproviding a newbody to exercise adminis-
trative supervision. Particularly, Alr. President. that codd not apply
where the purpose of this agreement, asthe Court saw it, was to cater
only for the interim period until other arrangements were agreed upon~3~ SOUTH WEST AFRICA
with the United Nations. The Court knew of resolution XIV of the
United Nations Genetal Assembly, in regard to a transfer or an assump-
tion of political powers by the United Nations. The Court knew that the
United Nations had reçerved to its own organs the right to decide in
eachparticular case whether it wanted to assume such political functions,
on due application being made by a party, and on a decision then being
given by the United Nations. Therefore, the Court knew that special
arrangements of that kind, involving a decision of the United Nations
itself, would be required in order to effect a substitution of supervisory
organs, or a transfer of powers in that regard. Therefore, Mr. President,
the Court, seeing this agreement as an arrangement involving only the
Members of the League at its final session,and involving a mere mainte-
nance of a status quo, could never have conceived that that agreement
would have included this positive new arrangement, which would have
been necessary in order to effect a substitution of supervisory organs.
[Public hearing of12 Afirilr9651j
Mr. President and honourable hlembers, in order to resume from where
we left off on Friday afternoon 1 have to recapitdate very briefly the
gist of what was contained in the last few minutes' argument that
afternoon.
PreIiminary Objections which had been filedby the Respondent in thesee
proceedings-preliminary objections on the question of the jurisdiction
of this Court.1deaIt with that Judgment in so far as it is relevant tothe
issue now under consideration,namely the lapse, or othenvise, of Respon-
dent's obligation of accountabiiity under Article 6of the Mandate. 1dealt,
Rlr. President, with the part of the Judgment wliich sets out a finding of
an agreement in April 1946between ali Members of the League in terms
of which the compromissory clause in Article 7, paragraph 2, of the
Mandate was kept alive, notwithçtanding the dissolution of the League.
1deaIt with certainaspects of the reasoning of the Court in regard to that
agreement. 1 pointed out that that reasoning \vas, in major respects, in
conflict with any contemplation on the part of the Court, or of the parties
to that agreement, that there had been, or would be, a substitution of
supervisory organs in respect of administrative supervision over the
Mandate. 1 consequently pointed out that the reasoning of the Court in
that respect was also directly in conflict with the contentions of the
Applicants now addressed to the Court in regard to such a suggested
substitution of supervisory organs.
I demonstrated this point of conflict, RTr.President, with particular
reference to two elements in the reasoning. The first element was that
mhich attributed an incompleteness and an imperfection to the system
which was to operate in pursuance of this agreement. 1 painted out that
the Court contemplated, and apparently considered, that the parties to
this agreement inApril 1946contemplated that, after the dissolution of
the League, the whole system would work and operate incompletelyand
with imperfections, that isas much ofit açmight be operable. 1submitted
that the only factor to which this incomplete operation could refer, on
analysis, would be that of supervision and accountability. If one pre-
supposes that there was a substitution of supervisory organs, or if the
agreement had provided for a substitution of supervisory organs, there ARGUMENT OF MR. DE VILLIERS 539
would have been no imperfection-no incompleteness lvhatsoever-in
the operation of that agreement and of the whole system, as visualized
by the Court.
The second element of importance in that regard was the fact thatthe
effect and the purpose of the agreement, as described by the Court, was
not to create new rights, or new obligations, or new arrangements, and,
inparticular, arrangements between the United Nations and the respec-
tive mandatory powers. As the Court itself said, at page 342 of the Judg-
ment, the contemplation was that such arrangements would be "agreed
between the United Nations and the respective mandatory powers". The
purpose of the agreement which the Court found to have been entered
intowas, on the contrary, rnerely-
"... to maintain the status quo as far as possible in regard to the
Mandates pending other arrangements agreed between the United
Nations and the respective Mandatory Powers ...". (I.C.J. RePorts
1962,P. 342.)
Consequently, Mr. President, a substitution of the General Assembly
of the United Nations for the Council of the League as the supervisory
authority in respect of mandates, would have been par excellencean
arrangement that would have had to be agreed between the United
Nations and the respective mandatories. It was not sometking which was
contemplated by the Court ashaving been provided forin this agreement,
which was merely intended to maintain the statusqao.It follom, amongst
otherthings, Mr. President, fromresolution XIV of the GeneralAssembly
of the United Nations, of February 1946-from the part dealing with
political powers and functions, namely part III, I (c)-that the United
Nations had reserved to itself, andtoitsownorgans, the right of deciding
in each particular instance whether it would, or would not, agree to a
new arrangement about functions of a political nature, which would
include the case of Mandates.
The Court was aware of that in 1962, and the League Assembly was
aware of it in 1946.Conçequently, Mr. President, the description of the
purpose of the agreement as being limited to maintenance of the status
quo for the interim period and also, in the words of the Court, to "rnain-
tain the rights of Mernbersof the League" for that period, shows thatthe
agreement, in the Court's contemplation, did not provide for a substi-
tution ofsupervisory organs. That was the stage to which we came at the
adjournment on Friday.
Now wefind that, despite these very clear indications afforded by the
Court's own reasoning, the Applicants contend to the contrary. A+ro+os
of this very finding in the Judgrnent, namely that the agreement was
to maintain the "statusquo as far as possible", they state in the verbatim
record at page 216, safiriz:
"The maintenance of the sjafzrs qzioas far as possible must have
included the substitution of the United Nations for the League..."
Mr. President, in this submission the Applicants, consequently, not
only ignore the words "as far as possible", which relate to the imperfec-
tion with whichI dealt earlier, but alsosuggest thatthe rnaintenanceof the
status quo could be equated with the creation of entireiy new arrange-
ments, involving the need of CO-operationof another party in order to
bring it about, the other party being the United Nations itself, as 1have 540 SOUTHWEST AFRICA
pointed out. &Ir.President, this, in my submission, is an entirely unten-
able construction of the 1962 Judgment.
Itis further to be noted that the Applicants, in regard to this subrnis-
sion of theirs, refer only to the status quo formulation by the Court. The
Applicants ignore other formulations which the Court used as being
synonomous with that formulation, such as, for instance, "maintain the
rights of Members of the League". A phrase like that would, in our sub-
whichiois placed upon the Judgment by the Applicants. The concept ofn
maintaining the rights of the Members of the League could sure1ynot be
equated with the creation of a new relationship pertaining to supervision
of the mandatory administration by the United Nations Organization. 1
was notaware of the fact thatthe rights of Membersof the League, whch
were being maintained, could in any way include anything pertaining to
supervision by the United Nations. Surely, if their rights were to be seen
as relating to anything in that direction, there would have had to be a
new arrangement and not merely a maintenance of the status quo or a
maintenance of existing rights of Members of the League.
Those then, Mr. President, arethe reasons why, in Oursubmission, the
1962Judgrncnt is inconsistent with the Applicants' contentions. The
Applicants' answers thereto are, for the reasons wehave given, untenable,
in our submission, and 1 should like to refer, further, to one or two other
arguments raised by the Applicants in this regard.
On thefirst day ofhis argument (18blarch 1965) M r.Gross, my learned
friend, for the Applicants. stated according to the verbatim record, at
page 131, supra,that:
"The Court in 1962 did not expressly hold that the United
Nations General Assembly has replaced the League Council as the
supervisory organ, inasmuch as that issue did not arise directly
and pertinently for explicit decision in that forrn. However, the
..Court's holding,... 'that the Mandate as a whole is stil in force',
coupled with its finding that 'al1important facts were stated or
referred toin the proceedings before the Court in 1950' rcnders it
cIear beyond doubt, in the Applicants' respectful subrnission, that
the Court in 1962, at the minimum, reaffirmed the rationaleof the
1950 Advisory Opinion in respect of the survival of Article..."
The Court will have observed that this submission relies on two
elements, namely firstly, the Court's statement, that the Mandate, as a
whole, waç still in force, and, secondly, the Coufi's statement that ail
important facts were stated, or referred to, in the proceedingsbefore the
Court in 1950 .want to deal with these two elements in inverse order.,
It will be noted, hir. President, that the passage concerning "al1 im-
portant facts",was not in its contexta reference to the question whether
administrative supervision under the Mandate did or did not survive the
League. It was in the contest purely a reference to the question whether
judicial protection,as it wa'scalled by the Court, survived the League.
That we find very clearly expressed at page 334 of the 1962Judgrnent,
where it is put as faliows: .. -
'"The unanirnous holding of the Court in 1950 on the survival and
continuing effect of Article 7 of the Mandate, continues to reflect the
Court's opinion today. Nothing has since occurred which would
warrant the Court reconsidering it.AU important facts were stated ARGUMENT OF MK. DE VILLIERS
54I
or referred to in the proceedings before the Court in 1gj0." (i.C.J.
Reports1962, p. 334.)
It will consequently be clear, Mr. President, that this sentence relied
upon by the Applicants in terms referred only to Article 7, and not to
ArticIe 6. It may, of course, be possible that the Court, in making this
statement, alço had in mind the Respondent's contention regarding new
facts in relation to Article 6. But even if it did, hfr. President, it could
hardly have failed to distinguish between the two situations in that
regard-on the one hand, the situation in regard to ArticIe 6, in respect
of which certain facts were indeed not stated or referred to in the 1950
proceedings, and, on the other, the situation in regard to, +ticle 7, in
respect of which the position was different.
Reverting, however, Mr. President, to the first'point in this argument
of the Applicants, namely the statement that the Mandate as awhole is
context in which this expression was used. One finds the statement itself
at page 335 of the ,Jndgrnent, and it is very significant to note where it
occurs. It occurs at the end of a portion of the Judgrnent running over
three pages, that is, from page 332 and to page 335, and concluding with
this very sentence : -.
"The validity of Article 7, in the Court's view, Wasnot affected by
the dissolution of the,League, just as the Mandate as a wholeis still
in force for the reasons stated above." (I.C.J. Refiorts1962, p. 335.)
That ,concluded the consideration the Court gave to the ~es~ondent's
first objection to jurisdiction as it was then advanced to the Court.
The Court had, for the purpose of considering the first and the second
objections, to draw a distinction between two propositions which we
advanced at the time. The first proposition was that the Mandate.as a
whole,including Article 7thereof, had ceased to be a treaty or convention
in force; and the second was that Article 7 itself had ceased to be a
treaty or convention, or was, at any rate, not applicable to the circum-
stances of this case. 1 refer the Court to the Oral Proceedings in 1962to
indicate exactly what te'iminology was uçed in that regard in the argu-
ment, and I submit that the simple explanation of this passage in the
CoAt pagesaso29nto30 tof the Oral Proceedings (VII) of 1962 I referred to
the first two objections to jurisdiction raised at the tirne, and 1 stated
their broad effect as follows:
"The first concerns thèproiosition that as a result of the dissolution
of the Eeague the Mandate Agreement, asa whole, including Article
7,has ceased to be a treaty orconvention inforce within the meanigg
ofArticIe 37 of the Statute of the Court. The second one concerns the
,proposition that the Applicants are unable to bring themselves
forpurposes eofrArticle 7 of the.Mandate Agreement. I wish to point
out at this stage that thereare, in.effect,threealternative contentions
wrapped up in these First and Second Objections."
And after dealing with other aspects of the matter 1 reverted to these
threel propositions and stated them as follows:
I. ".. . consequently, our first contention is .. .that on di~olu-
tion of the League the whole Mandate Agreement-and 'thus SOUTH WEST AFRlCA
including Article 7 thereof-eases to be a treaty or convention in
force within the meaning of Article 37 of the Statute of the Court".
(VII,p. 31.)
2, ". ..even if the Mandate could, in other respects, be said to be
stili in force as a treaty or convention within the meaning of Article
37 of the Statute, Article 7 of the Mandate itself ceased to be so in
force". (Ibzd.,p.32.)
The third contention was as then stated merely an alternative way of
putting the same argument and read-
3. "... that even if the Mandate, including Article 7 thereof,
could be said to be 'atreaty or convention in force', neither of the
Applicants isqualified to invoke it as 'another Memberof the League
of Nations' within the meaning thereof". (Ibid.)
Mr. President,in that context it becomes perfectly clear that what the
Court dealt with in this portion of its Judgment, running from page 332
to page 335, wa5 the first two of those contentions, advanced on behalf of
the Respondent at the the. And in the very next portion of the Judg-
ment, at page 335, the Court went on to the third of the propositions,
stated by it as follows :
argument which has been advancedespondintsupport of the First Objec-
tion. It centres on the term 'another Member of the League of
Nations' in Article 7 .. ."
Cornmencing this portion of the Judgment, at page 332, the Court
stated as follows:
"Since tlie Mandate in question had the character of a treaty or
convention at its start, the next relevant question to consider is
whether this treaty or convention, with respect to the Mandate asa
whole including Article 7 thereof, or with respect to Article 7 itself,
is stiii in force."
These, then, arethe questions to which the Court addressed itself in this
portion of its Judgment, and itstated its conclusion, as follows:
"The validity of Article 7,in the Court's view,was not affected by
the dissolution of the League, just as the Mandate as a whole is still
in force for the reasons stated above." (I.C.J. Refiorts1962, p. 335.)
In that context, Mr. President, it becomes perfectly clear that the
sentence in the Court's conclusionrelied upon by the Applicants, signified
no more than that the Court rejected both the second andthe first of the
contentions which we advanced at the tirne in respect of the junsdiction
issue.
This is the obvious reading of the Court's words, and it is fortified
further,Mr. President, by the fact that the Iast sentence ends with the
words "for the reasons stated above". If we analyse what went
before-the prior reasoning-~ve find no attention whatsoever to the
question whether Article 6 \vas still in force, or problems which arose in
regard to Article 6 as a result of the disappearance of the supeMsory
organs of the League, No attention whatsoever was given to these
questions. On the contrary, the reasoning and the wording of the Judg-
ment would appear to make it perfectly clear thatthe Court intentionally
avoided dealing with those questions, because it found it unnecessary to ARGUhlENT OF MR. DE VILLIERS
543
coThis is oparticularly evident, Mr. President, frorn a passage of the stage.
Judgment to which werefer ât pages 159 to 160of our Counter-Mernorial
(II). We refer there to a passage at page333 and 334 in the Judgrnent of
1962,containing a quotation from the 1950 Advisory Opinion, and we
draw attention to the fact that in this quotation from the 1950Advisory
Opinion, certain passages in that Opinion were omitted, and that those
omitted passages in every case referred to the United Nations andthe
possibility of transfer of functions to thetedNations, or a substitution
of the United Nations as supervisory organ. The passage, as quoted by
the Court in 1962,reads as follows:
international supervision andto submitreportsis an important part
of the Mandates System. When the authors of the Covenant created
this system, they considered that the effective performance of the
sacred trust of civilization by the mandatory Powers required that
the administration of mandated territories should be subject to
international supervision. .." (I.C.J.Reports 1962, p. 333.)
the place where the Court omitted certain words. If we refer to the was
1950 Opinion, at page 136,we find that those words were the following :
"The authors of the Charter had in mind the sarne necessity when
they organized an International Trusteeship System. The necessity
for supervision continues to exist despite the disappearance of the
supervisory organ under the Mandates System." (I.C. J. Refiorts
19.50,p. 136.)
That portion, Mr. President, we find was omitted in 1962.1 proceed with
the1962 quotation :
"It cannot be admitted that the obligation to submit to super-
vision has disappeared merely because the supervisory organ has
ceased to exist." (I.C.J. Reports 1962,pp. 333-334.)
That is the end of the quotation and it indicates that words were again
omitted, and the omitted words, which we find at page 136 of the 1950
Opinion,were these: "when the United Nations has anotherinternational
organ performing similar, though not identical, supervisory functions."
It becomes perfectly clear. Mr. President, that in this portionof the
Judgment, running from page 332 to page 335, the Court deliberately
omitted reference to the question whether there was a substitution of
supervisoryorgans. What the Court did dealwith in its reasons, was the
question whether the Mandate as a whole, that is, the concept of the
whoIe institution, asopposed to only Article 7 thereof, could any longer
be said to be a treaty or convention in force,~ve contended, or whether
the opposite was true. That was the question to which the Court gave
consideration, and it came to a conclusion that our contention in that
regard was to be rejected.
Of course, the phrase "the hfandate asa whole" fitted perfectly into
our statement of what 1 might cal1 a negative, or a negative result-our
statement that the Mandate as a whole had ceased to be a treaty or
convention in force. As soon as one converts that into a ositive, then
the use of the phrase "the Mandate as a whole" creates di culty, but in
the context it appears quite clearly that the Court had in rnind no more544 SOUTH WEST AFRICA
than the phrase which we used in that regard, namely "the Mandate in
other respects than Article 7".
So, filr. President, in Oursubmission, the sentence did not,and was not
specific provisions of thendMandate, and particularly not in regardther to
Article 6, and the Applicants' repeated reliance on this phrase, isolated
frorn its contest is, therefore, in our submission, clearly not justified.
NOW,hlr. President, before leaving the 1gG2Judgment, tliere is one
factor in it to whichIshould like to revert, and which, on analysis, shows,
quite independently from the arguments 1 have adduced so far, that a
contemplation of a subçtitution of United Nations supervisory organs for
those of the League would be entirely in confiict with the Court's reason-
ing in that Judgment. The analysis in this regard, Mr. President, turns
on the factor of essentiality in regard towhch the Court indicated that,
in its view, it played a very important part in retaining the eIement of
judicial protection after dissolution of the League. The factor was
apparently seen by the Court as one bvhichoperated in the minds of the
authors of the mandates system and in those of the parties to the agree-
ment of April 1946, That the Court saw the matter in that Iight appears
to be evident from an expression it used at page 342of the Judgrnent.
It said there "To deny the existence of the agreement it has been said
that Article 7 was not an essential provision of the Mandate instrument
for the protection of the sacred trust of civilization". 1 repeat, Mr.
President, "To deny the existence of the agreementw-that is, the
agreement of April 1946-"it has been said that Article 7 was not an
essential provision of the Mandate instrument". The Court, therefore,
considered this factor of essentiality to be something which operated in
both the ways 1 have indicated-both in 1920 and in 1946. And the
concept, as stated by the Court, wasapparently that in case of failure of
administrative supervision, for any reason, judicial protection of the
sacred trust would be esçential. Thal is the sense in which the Court spoke
of essentiality of judicial protection in circumstances in which there
might be a failure of administrative supervision. And the Court stated
that the authors of the mandates system would have conternplated that
such a failure could corne about because of the unanimity rule in the
administrative procedures of the League system-because the mandatory,
on their view of that unanirnity rule could make use of it, so as to create
a position of deadlock, thus making it impossiblefor the Councilto impose
its will as supervisory authority on the rnandatory.
But, Mr. President, it seems evident, when we consider the aforesaid
contemplation as of the year 1946 (April 1946, immediately before the
dissolution ofthe League),that that particular form of failure of adminis-
trative machinery could no longer have played any part in the contem-
plation of those who were dealing with the situation. It could no longer
have played a part, either as a factor emanating from the original
contemplation of the founders of the Leape systern. or as one inducing
the agreement in April 1946.This factor is evident, Mr. President, from
the Court's own reasoning at page 342. The Court there, after referring to
oür argument that Article 7 was not considered essential for protection
of the sacred tnist, proceeded to state the following:
"If therefore Article 7 were not ,an essentiai tool in the sense
indicated, the claim of jurisdiction would fa11to the ground. In
support of this argument attention has been called to the fact that ARGUMENT OF MR. DE VILLIERS 545
three of the four 'C'Mandates, when brought under the tnisteeship
provisions of the Charter of the United Nations, didnot contain in
the respective Trusteeship Agreements any comparable clause and
that these three were the Trusteeship Agreements for the territories
previously held under hlandate by Japan, Australia and New Zea-
land. Thepoint is drawn that what was essential the moment before
was no longer essential the moment.after, and yet the principles
Trusteeship system. [So far, if 1 may break the quotation for a
moment, the Court was stating the effect and the implications of
our argument. The Court proceeds then to answer that argument as
follows:] 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 18of the Charter
of the United Nations, 'Decisions of the General Assernbly on
important questions shall be made by atwo-thirds majority of the
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 XII1 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." (I.C.J. Reports 1962, p. 342,)
We find, then, Mr. President, that the necessity for the particular form
of judicial protection which existed under the mandates system, was, in
the Court's contemplation, dispensed with under the Charter.
The implications of this reasoning on the part of the Court are twofold.
Firstly, Mr. President, the implication is that, given administrative
deadock, which could stultify itself, there is no necessity for judicial
protection. That isobviously the first element in this contemplation.
The second element in it is, obviously, that the supervision by the
United Nations General Assembly, as provided for in the Charter, was,
in fact, a system of supervision carrying within itself no possibility of
such deadlock or breakdown.
These two elements are, therefore, inherent in the Court's reasoning,
and it follows,Mr. President, as a further factor which is inherent in that
reasoning, that if there was a contemplation in April1946 that mandates
not converted into trusteeship would corne under the system of adminis-
trative supervision provided for in the Charter of the United Nations,
the particular need which existed in the mandates system for judicial
protection would fa11away. There would therefore, in the Court's own
contemplation, no longer be any need for such a system-the necessity,
as it appeared in the time of the League, would in the Court's own
contemplation, be dispensed with under those circumstances.
But, Mr. President, one finds on reading the Judgrnent of the Court as
a whole, that this concept of the necessity for-of essentiality of-
judicial protection did, in the Court's view, play a part in maintainjng
judicial protection after the dissolution of the League. And the question
then arises, how can that be fitted into the reasoning of the Court to
which 1have just referred? 1 submit that the answer is a perfectly plain
one. The answer is that the Court did contemplate that there would be no546 SOUTH WEST AFRICA
tcansfer of supervisory powers to the United Nations-that there would
be no substitution of supervisory institutions-and that, for that very
reason, there would be no administrative supervision in respect of
mandates. And it was in that circumstance, then, that the Court saw a
continuing necessity for essentiality of-judicial protection. That was the
onIy form of protection that couId rernain, because the other form, which
had obtained in the time of the League, was, as was indicated in the
Court's own contemplation, one which would not obtain if there were
administrative supervision under the Charter. The necessity would, then,
stili arise frorn the fact of failure of administrative supervision, but the
failure would not consist in a prospective deadlock in administrative
machinery. It would consist in the fact that the only administrative
supervision provided for had lapsed completely because of the lape of
the supervisory organs.
This, Mr. President, in our subrnission, confirms unmistakably that
the contemplation of substitution of the United Nations General Assem-
bly, as administrative superviçory organ, would not be consonant lvivith
the Court's reasoning in 1962b ,ut directlyin conflict with it. LYesubmit
that the conclusion is an inescapable one-the necessity for, or the essen-
tiality of, judicial protection, as seen by the Court, could exist only to
cope with failure of administrative supervisory machinery. That failure
could, in the Court's contemplation, occur only in one of two circurn-
stances-i.e., either because of a prospective deadlock in the machinery,
or because of a total failure-a non-existence-of superviçory rnachinery.
There is noalternative-no further alternative-because the Court's own
view was that if there is machinery in which there is no prospect of a
deadlock, there is no necessity for judicial protection. Therefore, Mr.
President, if there had been a contemplation of substitution of the
United Nations assupervisoryorgan, there could have been no prospect
of a deadlock, and the only sense in which the Court could, therefore,
have contemplated any continued necessity for judicial protection would
have been on the basis of complete failure of administrative supervision;
in other words, a contemplation that there would be no substitution of
supervisory organs.
In sum, Mr. President, Imay, therefore, statethe effect of our review
of the 1962Judgment and opinions as foiiows:
The Court, andthe Members of the Court, were faced with various
difficulties raised in argument-difficulties militating against a fmding
that judicial protection had survived the dissolution of the League. In
@cialrinprotection did survive, the Court employed reasoning which was,
in its effect, dead against any contemplation that administrative super-
vision survived, or that provision had been made for a substitution of
supervisory organs in that regard.
We noted on Friday, Mr. President, that there were similar features
also in the separate opinions of Judges Jessup and Sir Louis Mbanefo.
Ive, also, noted, Rlr. President, the incongruity which would arise from
the conclusion of the Court,as distinct fromreasoning, if, on theone hand,
it were to be found as the Court found at the tirne, that there was to be
continued judicial protection exercised by a static gcoup of States,
namely those which had been Members of the League at the time of its
dissolution, and if,on the other hand,the Court were now to find,as the
Applicants contend, that the other form of supervision, namely adrnin- ARGUMENT OF MR. DE VILLIERS
547
istrative supervision, was to be exercised by the United Nations as an
organization, despite the fact that the Court indicated that the two
concepts-administrative supervision and judicial protection-were
intended to reinforce each other.
Apart from the five judges who participated in the judgment of the
Court and the separatc opinionsof Judges Jessup andSir LouisMbanefo,
making a total of seven out of the eight judges who constituted the
majority on the lindings on the preliminary obj ections-there was the
opinion of Judge Bustamante, the eighth member of the majority on that
occasion, and, as 1 pointed out before, he specifically found that there
was no succession of supervisory powers from the League to the United
Nations Organization. 1pointed out that three of the seven judges who
gave rninority opinions, came to the specific conclusion that there was
no such succession in regard to administrative supervision-no substitu-
tion ofa supervisory organ-and those three judges were the honourable
President, Sir Gerald Fitzmaurice, and the honourable Judge van Wyk.
The other four members of the Court who gave opinions in the minority
did not find it necessary to express any viewson this aspect of the matter.
That was the analysis which we gave of the situation as it appears
from the 1962Judgment and opinions-the analysis which we gave on
the pleadings, and we submit that, after this oral argument, the analysis
stands in every respect.
1 now proceed, Mr.President, to deal with the 1950 Opinion in so far
as itis relevant to the question now under consideration. That Opinion,
as we noted before, is direct authority for the contentionnow advanced
by the Applicants, and it, therefore, stands directly in the way of accep-
tance of our contentions. That is a situation we must face squarely, and
we do so, Mr. President, with respect and with submission. The question
is, what weight should the Court attach in these present proceedings to
the previous Advisory Opinion? We have made reference to the principles
applicable in cases where a matter, pronounced upon in an advisory
opinion, arises for subsequent adjudication in contentious proceedings,
and, as we noted there, although an advisory opinion is to be accorded
great weight in such cases, as an expression of the view of an eminent
tribunal, its existencedoes not, as a matter of principle, prevent this
Court from coming to a different conclusion,should justice demand it.
Our subrnission in this particular case, advanced with the greatest
respect for the Court and, particularly, for the remaining members ofthe
Court who participated in the 1950 proceedings, is that theredo exist
reasons-specid reasons-why this Court should depart from the con-
sorne of these reasons eariier in our argument when ofwe indicated,LVMr.ve
President, the various attitudes which had been taken up by the Appli-
cants in earlier stages of these proceedings, and when we pointed out
thatthe Applicants are, in fact, no longer prepared to defend the reason-
ing of the Court, as originally interpreted by them. Conçequently, we now
have this strange position that the Applicants which, firstly, contended
in their Mernorials that the 1950 Opinion should be automatically
followed by the Court in these proceedings, secondly, stated in the Oral
Proceedings in 1962,that the Opinion was clear, sound, and meant what
it said, and, thirdly, still contend in their Reply, although in con0ict with
another passage also inthe Reply, that the 1950 Opinion isto be regarded
as resjudicata,have now changed their interpretation of the Opinion and,548 SOUTH WEST AFRICA
in addition, now suggest, as if by way of a concession, that the reasoning
of the Court, as interpreted by them, was fallacious. Indeed, Mr.Preside,t
from the O1950YOpinion, and request reaffirmation thereof.quite lavishfy
This attitude which the Applicants now take up, in asking, in effect,
for reaffirmation of the Opinion as regards its conclusion, but in differing
from what they themselves descnbeasimportant aspects of its reasoning,
would, by itself, in our submission, justify a complete re-opening and
re-appraisal of the'whole matter. But, &Ir.President, it does not end
there; it goes much further, as can be seen irnmediately when it is
appreciated why the Applicants are now forced to depart from the 1950
Opinion in certain respects, and from their earlier interpretations of that
Opinion. The reason is not, as we shall show, that the reasoning of the
Court, if properly interpreted,was wrong in the respects now suggested
by the Applicants. On the contrary, we Say that if the reasons of the
Court givenin 1950 aregiventheirintendedweight andeffect, they arequite
comprehensible and are quite IogicaIas far as they go-and as far as the
material on which they rested, enabled them to go at the tirne. In truth,
the Applicants' dilemma on this issue arises, Mr. President, because
initiaily they interpreted the Opinion wrongly. They interpreted the
Opinion in a manner which attributed to the judges a line of reasoning
whch was clearly illogical and untenable, and which could not have been
intended by the judges in the sense contended for bp them. And the
reason why the Applicants were compeiied to attribute an illogical and
untenable line 01reasoning to the Court, was because they wouldnot, and
codd not concede that the Court came to its conclusion on the basis of a
finding of fact, the finding of fact being that of a general implied agree-
ment in 1945-194 t6 transfer the League's supervisory functions, in
respect of mandates, to the United Nations. The reason why the Appli-
cants could not concede that this was indeed the basis upon which the
Court's Opinion rested is evident and very significant, because afinding
of fact by a court must neceççarily be based on the evidence which is
before that court. A court is not presumed to know al1the facts as it is
presumed to knowthe law, and, thereiore, ifthere is not presented to a
court dl the facts which may have a bearing on a particular question,
the court decides or makes a factual finding, on limited facts. If the same
matter subsequently cornesbefore the court in circumstances where there
is nores jctdicata,and the court is presented with more extensive evidence
which illustrates other aspects of the facts, and demonstrates that the
conclusion which the court had come to on the previous occasion cannot
stand, the court, in effect, makes a new determination on a new problem.
It cornesto a conclusion on the facts which are now presented to it, such
conclusion is different from that to which it came on the more limi!ed
facts preçented to iton the previous occasion. This is a situation whch
very frequently arisesin the practice of courts when the s+e issue of
fact may arise between different parties in subsequent proceedings where
there is no question of res judicata.Zn such cases the court may, on a
proper review of the fui1facts, come to the conclusion that the previouç
fuiding cannot stand-not because the court erred on the facts as
previously presented toit, but because new facts show up the situationin
an entirely different light, which the court takes into account in its
findingof fact. The recognition ofthat principle, Rlr.President, isinherent ARGUMENT OF &IR.DE VILLIERS 549
in aliprovisions which exist in municipal legd systems for a re-opening
of proceedings, e.g.where a court, either in a criminal or a civilcase, may
already have made a determination of fact, or convicted a person of
having cornmitted a certain crime, or, found that A is liable to 3 in the
sum of E10,ooo damages, or whatever the case rnight be. There are,
of course, rules which circumscribe and restrict the opportunities of
litigants to continue endlessly to re-open proceedings before the same
court, but, in a fit case, where the rules and circumstances permit, the
very same court is very often caüed upon to deal with the question
whether new evidence could place a new perspective on a matter on
which the court has already pronounced judgment and whether the
matter ought , therefore, to be re-opened for that purpose.
The technical mles which apply in municipal systems, do not apply in
this particular instance, where the Court has given an Advisory Opinion
and where, subsequently, the matter arises again in the course of con-
tentious proceedings. The true analogy with municipal systems would
rather be the casewhere the same question offact has arisen in subsequent
proceedings between different parties, so that there is no operation of
any consideration of 7es judicuta.That would be the proper analogy, but
1 refer to those examples which can occur in municipal systems, and
which dovery regularly occur, which recognize the fact that when a court
has made a finding of fact on evidence presented to it in a particular
case, then such finding is one which could, quite competently and pro-
perly, be disturbed or over-ruled by the sarne court in later proceedings
when the fuil facts are presented to it.
This situation, Mr. President, the Applicants codd not admit. They
could not admit that the Opinion of the Court in 1950 really rested on a
finding of fact, and, therefore, in order to minimize the significance of the
new facts, as the Applicants cal1them, they were constrained to interpret
the 1950 Opinion as ifit were based on considerations purely of law. In
order to dothisthey were cornpelled to attribute to the Court, reasoning
which was so patently untenable that they were themselves eventually
forced in these proceedings to dissociate themselves from it. They were
forced, Mr. President, to dissociate thernselves from those earlier inter-
pretations which they gave to the Opinion, hstly, by judgments and
opinions which have been given by this Court and its members since the
commencement of these proceedings; andthey were also forced to do it,
stration in Ourpleadings of the untknability of certain views which they
had taken and which they ascribed to the Court, or which they described
as being the basis underlying the reasoning ofthe Court.
Mr. President, 1 shall later refer in more detail to sorneof these aspects,
but at this stage 1am concerned only to emphasize that it appears to be
common cause between the Parties that the 1950 Opinion is not correct
as it stands. That seems to be comrnon cause, The Applicants contend
that the reasoning ofthe Court waç faulty in material respects, but that
the conclusion was nevertheless correct. The Respondent, on the other
hand, does not attributeto the Court any Iack of logic,but it merely says
that there was a Iack of correct information, for whichlack the Court WZ,
of course, not responsible-and that, for that reason, the Court came t? a
conclusion on the facts which, on fuiier consideration of the facts bear~ng
on the issue, can no longer stand.
It will be apparent, therefore, Mr. President, that the dispute between550 SOUTH WEST AFRICA
the Parties regarding the1950 Opinion fallsbasically under two headings.
The first one is, what is the correct interpretation of the reasoning of the
Court? And the second is, to what extent is such reasoning vitiated
either by the defects in logic attributed to the Court by the Applicants,
or by the lack of presentation of relevant facts which is reverted to by
the Reçpondent ?We willconsider these questions in turn.
1 deal, first, with the question of the correct interpretation of the
reasoning of the Court. Mr. President,we have been through this before,
and 1do not, therefore, intend to deal with every inch of the way again.
1 would like to concentrate on some of the sahent features. \Ve give a
reviewin the Counter-Mernorial, Il ,t pages 141-146,of what we conceive
to be the correct interpretation of the 1950 Opinion, and we can very
briefly summarize it. Firstly, the Court's reasoning commences at page
136 by recognizing "... the fact that the supervisory functionç of the
League with regard to mandated territories not placed under the new
Trusteeship System were neither expressly transferred to the United
Nations nor expressly açsumed by that Organization". In other words,
the Court givesrecognition to the fact that therwas no expressarrange-
ment bringing about such a transfer or such a substitution of supervisory
organs. But then follow, in the Court's words, and 1 quote, "[nlever-
theless,... seem to be decisive reasons" for coming to the conclusion
that there was such an arrangement.
subject-thePrcrnphasison the lack of an express transfer-andssan express
assumption of supervisory functions-together with the indication that
that lack was not decisive in itself-immediately suggest that the
subsequent reasoning would rest on tacit intent, on the tacit transfer, or
tacit assumption of supervisoryfunctions. That is the natural and prima
facieindication given by this introductory portion of the reasonjng itself.
And indeed, Mr. President, when one proceeds to analyse the reasoning
itself,one finds that that is exactly what that reasoning does indicate,
that is, that it does rest on concepts of tacit intent-atacit transfer of
functions, or a tacit assumption thereofbyasubstitutedsupervisoryorgan.
The four "decisive reasons", asthe Court cailed them, then follow.
We group ihem for convenience under four headings; they could be
caiied either "four reasons" or, perhaps more fittingly, "four groups of
reasons". The first one cornes under what the Court later refers to as
"general considerations". They read as follows,Afr.President:
"The obligation incumbent upon a Mandatory State to accept
international supervision and to submitreports is an important part
of the Mandates System. When the authors of the Covenant created
this Systern they considered that the effective performance of the
sacred trut of civilizationb the mandatory Powers required that
the administration of rnanLted territories should be subject to
international supervision."(I.C.J. Reports1950. p. 136.)
MayI intempt here for a moment. 1 emphasize that this supervision
-this obligation to submit reports-was regarded as important in the
sense that itassisted in the "effective performance of the sacretrust of
civilization": that iwaç considered by the authors of the Covenant that
effectiveperformance required thatthe administration should be subject
to international supervision. It was, therefore, required for a particular
purpose, viz., for effectiveperformance. Then the passage proceeds: ARGUMENT OF MR. DE VILLIERS 5s
"The authors of the Charter had in mind the same necessity when
for supervision continues to exist despite the diçappearance of the
supervisory organ under the Mandates Systern." (Ibzd.)
There was "necessity", if 1 may break again, Mr. President, to brhg
about effectiveperformance of the sacred trust.
Thepassage continues-
"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 had another international organ
performing similar, though not identical, supervisory functions."
Mr. President, immediately after stating these generai considerations,
the Court proceeded to say that they were "confirmed" by certain other
factors-"confirrned" was the Court's own word. 1 shall deal later with
those other factors. For the moment 1 merely want to point out that the
word "confirmed" clearly cannot be read as signifying that the general
considerations were considered to be conclusive by themselves, because,
Mr. President, if those general considerations were by themselves
considered to be conclusiveby the Court asto why there was to be super-
vision over mandates by the United Nations Organization, then, indeed,
Mr. President, the only description of such reasoning of the Court, one
codd give,wouldbe that of judicial legislation. But, in fact, it would be
quite unfair to attribute any intent of that kind to the Court, or any
description of that kind to its reasoning. It is perfectly clear that the
Court intended nothing of that kind. 1 am merely pointing out, for the
moment, that the Court could never have intended to convey that it was
brought to its conclusion by these considerations. If that had been the
intention, Mr. President, then these considerations would have had to be
interpreted as meaning, in effect, that because international supervision
is desirable, the Court holds, therefore, that it must exist; and that
because the United Nations has an organ performing supervisory
functions under a trusteeship system which are similar to, though not
identical with, the supervision previously exercisedby the League organs
in respect of mandates, the Court, therefore, now holds that the rnanda-
tory, which was previously obliged to submit to League supervision,
must now beobligedtosubmit in respect ofits mandate to the supe~sion
of the United Nations organ. One cannot, in my submission, Rlr. Presi-
dent, attribute such viewsto the Court.
To put it in another way: if this were the correct construction of the
1950 Opinion, the Court would have held that, after the dissolution of
the League, supervisory functions passed to the United Nations without
any fresh consent on the Respondent's part, because those generaI
any concept of fresh consent on the Respondent's part. And it seemsefer to
evident, Mr. President-the Applicants thernselves admit itnow, at the
stage to which we have now corne in these proceedings-that it would
clearly be untenable to suggest that that conclusion codd be reached
independently of fresh consent on the Respondent's part. The Applicants
themselves admit that, even though it is only for the lirnited purpose of
saying that a substitution of supervisory organ, and an obligation of
international accountability with the United Nations as supervisory
authority, couIdonly have been brought about on the basis of fresh con-552 SOUTH WEST AFRICA
sent on the Respondent's part. And we cannot, with respect, attribute
to the Court any contemplation to the contrary in 1950. The more
reasonable construction of the Opinion, in Oursubmission, is,therefore,
that which we have always given to it. It is a constmction that the
various rcasons given by the Court, or the various groups of reasons given
byit, are interrelated; that these generaI considerations were merely the
introductory portion of the Court's reasoning which constituted back-
ground circumstances against which certain acts were, in the Court's
view, to be appraised; and that the Court then proceeded from the
general considerations to appraise those particular acts. Read in this
light the general considerations were, in our subrnission, not intended to
some international organization, particularly as regards effective opera-
tion of the system, was a factor which might have been expected to
exert an influence on the minds oftheStates concerned with the founda-
tion of the United Nations and with the liquidation of the League,
particularly since there was a new organization in existence which
performed supervisory functions, In other words, Mr. President, these
factors were relied upon as indicating a general likelihood or a general
probability, thatthe States concerned would have been inclined to agree
to a substitution of the United Nations for the League as the supervisory
organ. But the general considerations, in our submission, did no more.
That is, in the context-in the circumstances-the onIy reasonable
construction, in our submission, that can be given to those general
considerations.
They were, therefore, features tending to support an inference of tacit
agreement relating to the transfer of supervisoryfunctions to the United
Nations, or the substitution of supe~isory argans, whichever way one
prefers to put it.
That, then, brings one to the second stage in the Court's reasoning
which, the Court said, "confirmed" the general considerations. That
stage in the reasoning referred to Article80, paragraph I,of the Charter.
and it said that the generat considerations were confirmed by the clause
"as inter reted above"-I wish to ernphasize the words "as interpreted
above". Phose words relate back to an earlier passage in the Opinion,
Mr.npresident, at pages 133-13o4 f the I.C.J. Reports,and that passage
reads as follows:
"It istrue that this provision [inother words,Article80, paragraph
11 only says that nothing in Chapter XII shall be construed to alter
the rights of States or eoples or the terms of existing international
instruments. But-as ar as mandated territories are concerned, to
which paragraph 2 of this article refers-thisprovision presupposes
that the rights of States andpeoples shall not lapse automaticaüy
on the dissolution of the League of Nations."
'1-heimportant word here, Mr. President, is "presupposes". The Court in
thiseariier passage at pages 133-r34, therefore, drew a distinction between
what the article says-the article only says that nothing in the chapter
"presupposed". And the term presupposition and the whole conceptwhat was
which it denotes therefore relates, in our submisçion, to the underlying
contemplation or a tacit intent on thepart of the parties who agreed to
Article 80, paragraph I,of the Charter. ARGUMENT OF MR. DE VILLIERS
553
That is further confirmed by the next sentence in this earlier passage
(p. 134) w.hich reads as follows:
"It obviously was the intention to safeguard the rights of States
and peoples under al1circumstances and in alirespects, until each
territory should be placed under the Tmsteeship System."
Here the important word is the "intentionH-again an intention not
related to what the article says, but to what wasuite obviouslyregarded
bythe Court as being a tacit, underlying intent.
And, Mr. President, if we then proceed to the later passage, which
refers back to this earlier one-that is at pages 136-137-ive find that
the Court continues aIong the same line of reasoning that-
"The purpose must have been to provide a real protection for
those rights; but no such rights of the peoples could be effectively
safeguarded without international supervision and a duty to render
reports toa supervisory organ."
Here the important word which 1want to stress is the 'purpose".
We, therefore, have, when we take these passages together-a pre-
supposition, an obviouç intent and a purpose-none of which relates to
what the article says, but al1of which relate to what, in the opinion of the
Court, must have been in the minds of the persons who agreed to that
article. In other words, Mr. President, the Court, by the use of these
expressions, clearly indicated that it was reasoning towards the finding
ofa tacit intent on the part of the interested parties, the interested parties
in that instance being the authors of the Charter.
This analysis is further confirmed by the element of effective safe-
guarding to ~vkichthe Court referred, because the element of effective
soning-adifactor which would strengthen the probability that the parties
concerned would have had this intention-this tacit- intent-which is
ascribed to them by a process of implication by the Court.
It is submitted, Mr. President, that this construction of the Court's
reference to Article0,paragraph I,is the only reasonable one. Even then
one rnay, with respect, raise questions as to the factual weight which the
Court assigned to what it regasded as a presupposition underlying the
Article-that isanother matter, and that is a matter of factto be weighed
in the light of al1 relevant facts which may have a bearing upon the
question. But, Mr. President, one would certainly not ascribe to the
Court, as a matter of law, the illogical construction of the Article itself
which the Applicants in the earlier stages of this case attributed to the
Court, and of which the following is a typical exarnple-we get it from
the Preliminary Objections proceedings, where the Applicants stated as
folloIvs:
"As 1 have pointed out, the Court,in its Opinion, has three times
prior to this point cited Article 80, paragraph I, as having been
designed to conserve al1rights of peoples of hlandated territorito
international supervision and judicial protection." (VII,321.)
Mr. President, 1 read, just before the adjournment, a contention
advanced by the Applicants in the 1962Oral Proceedings, at page 321
(VJI), in which they assigncd to the Court the view that Articl80,
graph I, had been designed "to conserve al1rightsof peoples ofman Yated
territories to international supervision and judicial protection". Our554 SOUTH WEST AFRICA
submissionisthat, ifthe Court heldthis, the Court must clearly have been
wrong, as the Applicants themselves now concede, amongst others in a
passage of the verbatim record at pages 225-226. supra.
Wequoted that passage,Mr.President, frornthe Applicants' argument,
on 31 March 1965(p. 302, supra) but, unfortunately, in that verbatim
record the quotation was aot put in quotation marks andto clear up any
misunderstanding, it might be aswell to repeat that that passage was
something said by the Applicants' Agent and not by us. And it read as
follows:
"It maybe repeated, Mr.President, with respect, that the Appli-
cants do not contend that any positive legal consequences waç
brought about by Article 80, paragraph I. The language of the
Court just quoted from the 1950Opinion might, with respect, imply
a different view." (P.226supra.)
In ow submission,forthe reasons wehave already given, no interpreta-
tion ascontended for by the Applicants was, in fact, gven by the Court
to Article 80. The Court relied only on what it considered to be tacit.
underlying presuppositions, or intentions, on the part of the parties who
agreed to that article.
Then we corne,Mr. President, to the third stage in the Court's rea-
soning in 1g5o-the third of the decisivereasons, or groups of reasons, on
which the Court relied. That we find at page 137and it concerned the
last League Assembly resolution regarding mandates. The Court found
that in this resolution the Assembly "gave expression to a corresponding
view", that is, a view corresponding with that held by the authors of the
Charter in agreeing on Article80, paragraph I.So where the Court was,
in the discussion of Article 80, paragraph I,dealing with a question of
a tacit, underlying intent on the part of the authorsof the Charter, the
Court is here speaking of a "corresponding view" on the part of the
Membersof the League at its last assembly.
The Court then set out the contents of the third and the fourth para-
graphs of the League resolution and it concluded, at page137 hat :
"This resolution presupposes that the supervisory functions exer-
cised by the League would be taken over by the United Nations."
(1.CJ. Reports 1950 ,.137,)
Mr.President, again the word"presupposes" appears. Thisis,therefore,
very clearly a reference not to what was said in the resolution-not an
interpretation of the resolution itself-but to a tacit intent which the
Court found to be underlying that resolution. That is made clear not only
by the use of the word "presupposes" but also by the fact that the resolu-
tion itself,in the very clear wording which it uses, nowhere makes any
mention at ail of any transfer, or taking over, of supervisory functions,
as the Court was fully aware in 1950.
This then, Mr.President-this third stagein the reasoning-concluded
the Court's reasoning in so far asit sought to build a bridge, a1 might
cal1itb,etween the League of Nations as an organization and the United
Nations as an organization.
The fourth and finalstage in the reasoning wasconcerned only with the
matter of interna1 arrangement within the United Nations itself. That
stage of the reasoningwas to the effect that the GeneralAssembly of the
United Nations was rendered competent by Article IO of the Charter to
exercise such supervision and to receive and examine reports for that ARGUMENT OF MR. DE VILLIERS
555
purpose. It seems evident, Mr. President, that that was concerned
merely with the determination within the United Nations of an organ
which would be competent to undertake this supervision, Of course, this
would have no relevance to the enquiry unless there was an obligation to
submit to United Nations' supervision. That is indeed made clear, Mr.
President, by the very function of ArticleIO itself in the whole structure
of the Charter, and by the wording of Article IO. The function of Article
Assembly asdistinct from other organs of the United Nations. Thef the
wording of the Article is to tkis effect:
"The General Assembly may discuss any questions or any matters
within the scope of the present Charter or relating to the powers and
functions ofany organs provided for in the present Charter,. .."
I end the quote there-that is as far as it is relevant.
In other wordç, a matter must first be within the scope of the Charter.
or it must relate to the powers and functions of an organ provided for in
the Charter, before it becames a function of the General Assembly to
discuss it and to make recommendations in regard thereto under Article
IO.
That prior question-whether it was a matter brought within the
functions or the powers of the United Nations the Court evidently sought
to answer with its reasoning over the first three stages, which I have
dealt with.
The Court also, in the discussion of this aspect of its reasoning, made
a staternent to which 1 referred at an earlier stage of my argument, and
that is the statement that:
"This competence was in fact exercised by the General Assembly in
resolution141 (II) of r November 1947 and in resolution 227(111)of
26 November 1948,confirmed by resolution 337 (IV) of 6 December
1949.''
1 pointed out, Mr. Preçident, that the Court at the beginning of its
reasoning on this part of the case, at page 136,indicated that the func-
tionç of the League, with regard to mandated territories, were not
"expressly assumed" by the United Nations Organization.
In other words, this finding here, at page 137,could not have involved
a contemplation that there was an express assurnption of functions of
supervision by the United Nations by means of these resolutions. Quite
clearly, regard being had to their content, with which I dealt before,
thThe Court's only contemplation could have been that, having regard
to the circumstances, the resolutions, in their context, were to be inter-
preted as tacitly manifesting an intent to have and to exercise United
Nations supervision in respect of mandates.
1 have indicated before, Mr. President, that on a full review, as 1 have
now given, of the relevant circumstances surrounding these resolutions
-the attitudes of theStates asmanifested at the time of these resolutions
in the Trusteeship Councilitself,andso forth-all the factors withwhich I
dealt in this fullreview indicate very clearly, in our submission, that that
inference cannot stand. As 1also indicated, respectfully, thiisone of the
instances in which the further facts now pIaced before the Court, and
which were not before the Court in 1950, are of major assistance and
bring about a change in the concIusion to be arrived at.556 SOUTH WEST AFRtCA '
So, Mr. President, to surnrnarize: On the question of the proper inter-
pretation of the Court's reaçoning i1950,we subrnit that the Court was
arguing fromwhat it considered to be probabilities inherent in objective
features referred to by it in the stage of its reasoning, i.e., the general
considerations relating to the probable intent on the part of the authors
of the Charter and the Mernbers of the League at the time of its dissolu-
tion.
The Court proceeded, Mr. President, from these general considerations
-these general indications of probability-to Article 80, paragraph r,
which it regarded as beanng upon a probable, underlying intent on the
part of the Members of the United Nations.
It argued further,in the third stage of its reasoning, that there existed
a corrésponding, underlying intent on the part of the Members of the
League of Nations, at the time of its dissolution.
From aii these factorstogether, the Court drew an inference of a gerieral
tacit agreement on the partof the authors of the Charter, and on the part
of the remaining Members of the League, to the effect that rnandatories
would be obliged, pending tmsteeship or other agreements, to submit to
United hTationssupervision under the mandates. That we submit to be
the only reasoriable and proper construction which can be placed on this
reasoning of the Court.
What other possibilities are there, Mr. President? The Applicants have
suggested some and we submit that none of them can stand. We have
really dealt with them al1but I can just, by summarizing and putting
them in their proper perspective, brieflyaywhat they were.
Objections the Applicants contended that the 1950 Opinion thwasrebaçedary
on the application of some principle of succession whereby thefunctions
of the League and the rights of its Members passed to the United Nations
and its Members, without any freshconsent on thepart ofthe Respondent
in the period of transition,45-194 M67edealt with this in our argument
contained in the verbatirn record at page290-295,supra. TheApplicants,
Mr. President, at that stage, thât is in the Observations and the Oral
Proceedings on the Preliminary Objections, particularly the Oral
Proceedings, denied that the Court's reasoning was based on any agree-
ment. They, in fact, said thi:
"... none of the decisive reasons underlying the Opinion of 1950
rests on a premise of 'tacit consent', whether on the part of the
Respondent, the League of Nations, or the United Nations". (VII,
P. 299.)
The Applicants now contend that consent on Respondent's part,
although only to a substitution of supervisory organs, is an essential
element in their case, and thus they suggest that the Court, on their
former interpretation of the Court's Opinion, must have been wrong in
this respect. But, in truth, Mr, President, it is so clear that Respondent's
consent to any substitution of supervisory organs would have been
required, that it is quite unreasonable to suppose that the Court would
have adopted a line of reaçoning not based on such consent, and we,
therefore, find that the Applicants themselves have also now adapted
their argument in regard to interpretation of the Court's Opinion of rg50
so as to bring that interpretation into closer correspondence with their
own submission. They now attribute to the Court aIso a contemplation ARGUMENT OF MR. DE VILLIERS 557
in igjû that the element of consent, on Respondent's part, which the
Applicants now find necessary, was indeed a necessary element. That we
find in the verbatirn record at pages 314to 318,supla.
Secondly, Mr. President, the Applicants, as 1 pointed out in the Oral
Proceedings on the Preliminary Objections, contended that substantial
weight was given by the Court to Article 80, paragraph I, of the Charter,
aspreserving rights underthe Alandate. And aswehavenoted,Applicants
still impute this line of reasoning to the Court although they are now
more tentative about it, but the Applicants thernselves suggest that it is
not correct and they dissociate themselves from it.
The net result, Mr. President, of aii this, is that it now appears to be
common cause that the Court based its finding, at least in an essential
part of its reasoning, on consent on Respondent's part in the years 1945
and 1946-consent, that is, to a transfer of supervisory powers or a
and 1again emphaçize, that that finding is a finding of fact on which this
Courtmight well now, on the strength of a fuller presentation of evidence,
corneto adifferent conclusion.
That brings us, Mr. President, to the so-caiIed new facts. 1do not want
to deal with them at any length, I only wish to emphasize their signifi-
cance.
We referred in Our pIeadings, cornmencing with the Preliminary
Objections, to three sets of facts, which were not before the Court in1950
and which bear materially on this question of consent in the ycars 1945 to
1946. In their chronological sequence the three were the following: The
first one concerned the proposals regarding a temporary Trusteeship
Cornmittee in the deliberations of the Preparatory Commission and its
Sub-Cornmittees, which temporary Trusteeship Cornmittee was-
"... 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".
(11,P. 40.)
It will be recalled, Mr. President, that these proposals lapsed upon tlie
rejection of the suggestion ofatemporary tmsteeship cornmittee, without
any other provision having been made regarding a possible transfer to,
or assurnption by, the United Nations of any functions under the man-
datessystem. This, Mr.President, rnakes it quite clear, in our submission,
that there was, on the part of the United Nations, a deliberate refrain-
ment from dealing with the question of mandates, and from providing for
any machinery for, or, anything bearing upon, a transfer of functions
outside of trusteeship.
In combination with the other relevant factors in the situation,
Mr. President, this brings an element of certainty which was not there
before-an element of certainty ~vhich jsdeadagainst the presupposition
of tacit intent ascribed by thecourt in rgjo tothe authors of the Charter.
With knowledge of the fact that there was this proposa1 for an express
provision, which proposa1 \vas then not accepted, and deliberately not
accepted, Ab.President, it then becomes clear that there was no longer
any scope for a finding of the tacit intent to the same effect asthat found
by the Court in 1950.
The next fact, Mr. President, concerns the original Chinese proposa1
at the last session of the League Assembly. This again refutes, in Our59 SOUTH WEST AFRICA
submission, any suggestion ofimplied consent on the part of the Members
of the League present at that final session. In our Counter-Mernorial, II,
at page 146, in a footnote, we set out for purposes of cornparison the
wording of the Court's finding in regard to the presupposition which the
Court said underlay the 1946resolution of the League AssembIy, and the
wording of the relevant portion of the Chinese draft proposal. The first
the final AssembIy of the League,read as foiiows-".ribed..ythe supervisory
functions exercised by the League wodd be taken over by the United
Nations". The wording of the Chinese draft proposa1 in this respect
considered that "the League's functions of supervising mandated terri-
tories should be transferred to the United Nations". (Counter-Mernorial,
II,p. 146,footnote 6.)
In other words, Mr. President, the kst Chinese proposa1was designed
to effect by express resolution what the Court found was, as a rnatter of
tacit intent, underlying the actual resolution eventually passed. But as
soon as one knows the facts, namely that that Chinese original proposa1
could not be accepted, that it had to be dropped and that it had to be
superseded by a new proposa1because of opposition to this very element
in it, as soon as that fact is known then surely there is no longer any
scope for the Court's finding of a tacit intent, or an irnplied consent, on
that very point, on the part of the Members of the League.
Finally, Mr. President. the third element on which we rely is the
attitude adoptedby States, blembers of the United Nations, in the crucial
years 1946to 1949,on the question whether there was any duty outside
of trusteeship to subrnit to United Nations supervision. Mr. President,
those years foilowed immediately upon the years of transition, 1945 to
1946,in which it is said that this tacit agreement was entered into. If it
was, in'fact, a tacit agreement which was so clear-that it did not have
to be reduced to writing, that everybody was perfectly agreed upon it
and that they knew that to be so-one would have expected that in the
debates and the issues which arose in the next few years in the United
general understanding at the tirne of the formation of the United Nations
and at the tirne of the dissolution of the League." Not a single State oall
those which took part in the debates, however, ever alleged anything to
that effect. On the contrary, there was a substantial nurnber which
identified thernselves precisely with the Respondent's contention in
that regard.
That again isa factor which was not before the Court in 1950 and which,
in our submission, affords very cogent and conclusive proof, in conjunc-
tion with the other two factors, on this issue of tacit agreement in 1945
and 1946.
The questions which fa11to be considered in regard to these new facts,
Mr. President-questions which 1have dealt £romour side, are, firstly, to
what extent and inwhat sense theyare new, and secondly, to what extent
they are material. le have, from our side, consistently and repeatedly
stated Ourattitude, and I need not repeat it.1 have just stated it again
as far as the materiality-the important significance-of these facts is
concerned. But it remains, Mr. President, to consider what the present
attitude of the Applicants is in this regard.
Our contentions in regard to both these aspects-both in regard to the
newness and in regard to the materiality of the facts-were disputed by ARGUMENT OF MR. DE VILLIERS 559
the Applicants in the previous stages of these proceedings, particu-
larly in the Preliminary Objections proceedings. In their Observations
the Applicants stated the following :
"Respondent's contention [that is, the new facts contention] is
advanced with little grace or rnerit.
First, not one of the so-called 'new facts' has corne into existence
since 1950. Respondent had full opportunity to develop at Iength
each and every one of them during the Advisory proceedings."
(1,P. 430.)
MT. President, we have, of course, never contended to the contrary.
That was not the sense jn which we ever said that the facts were new.
We merely said they were new in the sense that they were, in fact, not
presented to the Court in 1950. The quotation from the Applicants'
statement in the Observations continues as foLlows:
"Second, not one of the so-called 'crucial new facts' is in reality
eithernew or crucial. Each one of them was before the Court in 1950,
and, obviously, was not deemed cnicial." j1bid.J
That was their contention, Mr. President, in 1962.
Also, in the Oral Proceedings, on these Preliminary Objections, the
materiality of the new facts was disputed by the Applicants, but their
contention in that regard was based on the construction of the reasoning
of the Court in 1950 he implications of which 1have pointed out to the
Court before. Their argument at page zgg of the 1962Oral Proceedings
read as follows:
"In the case of each 'new fact', the alleged eIement of 'crucial
importance' assigned isthat ofso-called 'tacit agreement' or'consent'
asit isalternativelycalled."(VII, p. 299.)
Inasmuch as the Applicants' attitude then was, as 1have pointed out,
that none of the decisivereasons underlying the 1950 Opinion rested on a
prernise of tacit consent, the Applicants, therefore, contended as follows:
"Respondent does not interpret the 'new facts' in a rnanner
consistent with the true significance of the Court's reasoning, or
'general considerations'. The IZespondent, on the contrary, inter-
prets, or rather misinterprets, the Court's reasoning so as to givea
false significance to the 'new facts'.(Vn, p. 300.)
That was the attitude adopted in 1962, Mr. President.
In the Reply, the Applicants stid Uid not concede either the essentiality
ofthe agreement in 1945 to 1946as an elernent in their case, or the correct-
ness of Respondent's interpretation of the 1950Opinion as being in an
essential respect based on consent. Thus they still said at page 552of the
Reply (1V):
"Al1 such assertedly 'new facts' were placed before the Court in
the Preliminary Objections and in Respondent's Oral Arguments
thereon. The Coiirt nonetheless reaffirmed its AdvisoryOpZ~ion and,
inthe words ofthe Court :
'Al1important facts were stated or referred to in the proceedings
before the Court in rg5a'
Accordingly, no purpose would be served by showing, as Appli-
cants submit, that Respondent's reiteration of the alleged 'new
facts' add nothing 'new'." (IV, p. 552.)560 SOUTH WEST AFRlCA
hlr. President, in regard to this passage, we might pass the following
comment: Firstly, the remark of the Court in 1962, that al1 important
facts were stated or referred to in the proceedings before the Court in
1950, as I have indicated, related to the compromissory clause issue and
not to the issue regarding Article 6. It is not necessary to refer to that
any further. Secondly, the judgrnent , therefore, does not assist the
Applicants in showingthat the new facts regarding transfer of functions
under Article 6 were, indeed, known to the Court in 1950 .hirdly, Rlr.
President, no argument has been presented to the Court, by rny learned
friends, in these present Oral Proceedings, towards sholving that the
in 1950.rWCnohave heard no argument to that effect. fact, before the Court
From our point of view, it would be time-consüming to run through al1
the records so as to establish the negative averment that the facts were
not before the Court. We Say, of course, they were not. LVehave been
throngh the records and we are satisfied that they were not before the
Court, but we invite the Applicants, Mr. President, in the circumstances,
to demonstrate (if they abide by their assertions in the Reply) which
passages in the documentation of the 1950 proceedings indicate that
there was any discussionof, or a reference to,any of these new facts. LVe
know that they tried to do that in the Oral Proceedings of 1962, but we
aIso know that the effort failed entirely.
In the absence of such a demonstration by the Applicants, Mr. Presi-
dent, weshall assume that the Applicants have now abandoned also this
part of their argument, as would, indeed, seem to appear from the lack
of reference thercto in their oral statemen,and we shall assume that the
Applicants now accept that the new facts are, in fact, new, in the çense
in which we submit that they are new.
That brings us, Mr. President, to the argument now advanced by the
Applicants in the Oral Proceedings regarding the significance of the new
facts. They are in a difficult position since they now concede that some
form of consent in 1945to 1946is necessary to their case, and they now
interpret the 1950 Opinion accordingly, namely that that element of
new consent in 1945to 1946is necessary. Consequently, they cannot now
deny the relevance of the new factç, on the basis that the facts relate only
to tacit consent, as they did before. They said earlier that these facts
relate only to a question of tacit consent, and tacit consent pIayed no
part in the Court's reasoning in1950.They can no longer Saythat.
Indeed, hlr. President, they thernselves now rdy on facts derived frorn
the record frorn this period in an attempt to establish that consent, and,
therefore, 1 cannot see how they can possibly any longer deny the rele-
vance and indeed the significance of these new facts, derived from the
very same record-from the very same period-aç bearing on thequestion
of such tacit consent, ortacitintent.
In their attemptç in the Prelirninary Objections proceedings to show
that the Court in 1950 was, infact. aware of these facts, the Applicants
came off second best.
Applicants are alsofaced with this position that someof the honourable
Members of thisCourt, in their opinions on the Preliminary Objections,
indeed placed very heavy reliance on some of these new facts. Le
referred to that in the Counter-Mernorial,II,at page 155,and 1 need not
elaborate on that at this stage.
Consequently, Mr. President, the Applicants were now forced, for the ARGUMENT OF MR. DE-VILLIERS 56x
first time, to consider these new facts on their merits-for the fùst time
in these Oral Proceedings, they were forced to consider them asfactors
bearing on the intent of the Parties. How did they set about it?
To summarize, Mr. President: Firstly, asregards the facts showing
deliberate abstention from express provision regarding a transfer of
supervisory functions to the United Nations, the Applicants' attitude is
a completelyillogical and an untenable one. We pointed out before that
they admit that there was a deiiberate abstention, both on the part of the
final session, to make a specific provision in that regard. But, Rlr. Presi-
dent, they take up the attitude thatthisdeliberate abstentionrelatedonly
to an express agreement and not .to a tacit or irnplied agreement-that
the deliberate abstention related only to the form of the agreement,and
not to the existence or the content of the agreement. 1 have dealt with
the illogicalitof that attitude before and 1 need not repeat my subrnis-
sions.
Secondly, hfr, President, as regards the attitudes of States, they
attempt to refute our demonstration that there was a general acceptance
that supervision had not passed to the United Nations. They attempt to
demonstrate that by showing a contemplation on the part of certain
States that the Mandate was in existence. That is the way in which they
try to meet our case in that regard-by arguing an entirely different
question, aswe have shown.
My learned friend, hlr. Moore, attempted positiveIy to demonstrate
the contrary to what we are contending for. Heattempted to demonstrate
a geiieral contemplation that supervisory power was vested in the
United Nations-a general contemplation on the part of the States
concerned-and that attempt, Mr. President, as the Court would know,
has metwith singular lack of success. 1 need not repeat Oursubmissions
and the conclusions at which we arrived after a full review of al1 the
relevant facts in that regard.
In tlie result, Mr. President, the significance of these new facts not
been affected by any of these various attempts made by the Applicants
to minirnize their significance.
In conclusion, lfr. President, 1may submit, just by way of surnmary,
the followingfactors as to our contention in regard to the approach to the
1950 Opinion.
In Oursubmission, itbecomes perfectly clear, ivithrespect, that this is
indeed a case where the Court will feel itself constrained to re-open the
consideration of the whole matter, and to consider it afresh on jts merits.
The reasons for our submission are briefly the following: Firstly, on the
interpretation given to the 1950 Opinion by both Parties, as at the
present stage,the reasoning of the Court rested on some basis of consent
ln 1945 to 1946. Secondly, al1 facts relating,to consent are, therefore,
relevant, and some crucial facts were not before the Court in 1950. That
also now appears to be common cause. Thirdly, on the Applicants'
Articlec80,nparagraph I,5was at fault. On their construction, the Court's
reliance on this Article was one of the main bases of the Court's reasoning
-at least this was the construction the Applicants gave in x962.They
did not advert to this point in the present Oral Proceedings. namely as to
the importance of the reliance placed by the Court on Article 80, para-
graph I, in 1950. The fourth point, Mr. President, is that the Court's562 SOUTH WEST AFRICA
Opinionin 1950,on this point, was a majority one, and that the rninority
view was more favourably received by authors and publicists on inter-
national law in their subsequent comment on the judgment and opinions.
We deal with the review of the relevant publications in the Counter-
these authors appear to have had access to the additional material, or
some of the additionalmaterial, which was not before the Court in1950,
and which we have now laid before the Court.
The fifth point is that the wholematter was thrashed out in 1962,nd,
as we have shown, such indications of opinion as are afforded by the
judgment and the opinions, given in 1962 ,niformly support the view
that the 1950 Opinion was not correct in the respect under consideration.
Sixthly, hlr. President, we Say that the very fact that Applicants,
which cornmencedby saying that the 1950 Opinionwas "clear, sound and
that it means what it says" (VII,p. 302))have now changed their inter-
pretation thereof, and in a material respect they suggest that it was
incorrect. That fact in itself, Mr. President, indicates, in our submission,
the need for a complete reappraisal.
In al1these circumstances, we respectfully submit that this Court will
not hesitate to re-open fully the question of a transfer of supervisory
powers, or a substitution of supervisoryorgans, and that the Court will,
for the reasons which we have given, corne to a contrary conclusion to
that arrived at in 1950.
Mr. President, in regard to the 1955and 1956 Opinions, we find that
the Applicants, in the verbatim record at page rog, supra,refer to these
opinions as"confirmatory and interpretive of the 1950 Opinion". 1need
hardly point out that the word "confirmatory" is wong. One can see
from the requests for the opinions, as they are recorded in the opinions
themselves, that the Court was, in both instances, asked for an inter-
pretation only of the rg5o Opinion. The passages in that regard are so
clear that they hardIy need demonstration. The first one is in the 1.C.J.
for an advisory opinion read as follows: the first paragraph of the request
"1s the followingrule on the voting procedure to be followedby
the General Assembly a correct interpretation of the advisory
opinion of the International Court of Justice IIJuly 1950.''
The second paragraph proceeded to ask a further question "If this
interpretation ...is not correct".
Inthe 1956 Advisory Opinion, the record, at page 24,shows that the
request read as follo~vs:
"1s it consistent with the Advisory Opinion of the International
Court of Justice of rI July 1950for [certain things to take place]."
It is alsosignificanblr.President. that Judge Read, one of the judges
who gave a minority opinion in rgy on this question, had no dificulty
in both these instances in 1955 and in 1956 about voting with the
majority. Sir Arnold McNair was, by then, no longer on the Court. I am
quite certain that Judge Read would have been rather surprised to hear
a suggestion that he thereby confirmed an opinion which he had, in the
respect in question, considered to be wrong at ththe itwas gjven, and
it would have been more surprising if he had done so, Mr. President.
without giving any reasons why he decided to give such confirmation,
and no reasons at al1for his change of attitude in that regard. ARGUMENT OF MR. DE VILLIERS 563
It is perfectly clear, therefore, that these opinions take the matter
no further asfar as the merits of the conclusion arrived at in1950 are
concerned.
Mr. President, that brings me to the concluçion-af the oral presenta-
tion on the question of Article bf the continued existence, or the
lapse, of supervisory functions, or of an obiigation of accountability, as
provided for initially in Articl6 of the Mandate.
1need not summarize the respective attitudes of the Parties again-1
shall give a summary of al1the various alternative contentions at the end
of this consideration, after 1have dealt aIsowith the next question which
concerns the lapse, or othenvise, of the Mandate itself.
Now, Rfr. President, before dealing with the merits of that question,
which has been given to the Courtebyamy learned friends on behalf of the,
Applicants. My learned friend, Mr. Gross, persisted in indicating to the
Court in his oral presentation that the Respondent has now reversed or
abandoned arguments advanced in the 1962proceedings on the Prelimi-
nary Objections in this regard.
This, of course, is entirely unsound, Mr. President. It is incorreTt.
will be very clear from the written pleadings to date, and from the argu-
ment which we advanced in the Oral Proceedings in 1962,wvhichis fully
on record, that there has been no change of attitude whatsoever in this
regard. The position is sirnply this, that forurposes of the argument
which wepresented to the Court at the time on the question of the Preli-
minary Objections regarding jurisdiction, we made certain assumptions
for purposes of that argument, and we have nowhere, Mr. President,
altered our attitude asto what was contended for to the Court in that
regard.
One of our Preliminary Objections taken in 1962 to the jurisdiction of
the Court, the Court will recall, was based on an argument that the
Mandate had lapsed "in the sense and to the extent that it is no longer
'a treaty or convention in force' within the meaning of Article 37 of the
Statute of the Court". That we find in the Preliminary Objections, page
29s (1).
We ~ndicated, Mr. President, in those Preliminary Objections, that
the Court in its 1950Opinion,in effect,held that "in addition toits opera-
tion as a treaty or convention, the institution known as the Mandate for
South West Africa acquired an objective or a 'real' existence,as consti-
tuting a special status for the Territory, and that in this objective or
'real' aspect the Mandate survived the dissolution of the League". That
we find in the Preliminary Objections, at pagezgg (1). ItuPas purely a
matter of an interpretation which we put on the 1950 Opinion in that
regard, and we said that thatwas what we understood the 1950 Opinion
to have held, namely a continuation of the Mandate in the sense of being
an institution in that objective or real sense.We proceeded to state, and
1 quote frorn the Preliminary Objections at page zgg (1):
"The correctness or otherwise of this proposition does not
require to be revie~vedfor the purpose of Respondent's Objection
to junsdiction-as will appear from reasons dealt with hereinafter.
Irrespective of the question whether the Mandate asan institution
survived the League in an objective or 'red' sense and, if so, with
what exact content and to what exact extent, Respondent contends
thatin its aspect of operatinasa treaty or convention the Mandate564 SOUTH WEST AFRICA
for South West Africa lapsed upon dissolution of the League, and
that for this reason Applicants' claim to jurisdiction must fail."
Our attitude could hardly have been expressed more exphcitly. We
were not addressing argument to the Court on the question whether that
finding of an objective or real existence of the mandate institution was
a correct one or not. le were prepared to make assurnptions both ways
in that regard. Our contention was that in the aspect of being a treaty
or convention, the Mandate had lapsed.
We dealt againwith this aspect in the Preliminary Objections at page
359 (1), and, further, Mr. President,in the oral argument in the Prelimi-
nary Objections proceedings, theattitude we took up in that regard \vas
very clearIy stated in several instances. Right at the outset of the
argument, my learned friend and Agent, Dr. verLoren van Themaat, in
the course of his opening statement, saidthe following: . .
"We state there that our submission under the firit Objection
concerns only the Mandate as an agreemenl; our contention being
that as a treatyorconventiolathe Mandate is no longer in force. We
state further that no submissions are advanced about the question
whether the &fandate in the wider sense of being an institution
survived the League or not. The logical effect of this attitude is that,
although we makeno admissions in that regard, we are prepared for
the purposes of our argument in these Objections to assume that
the Mandate as an institution survived the League." (VII, p.21.)
Later, Mr, President, 1 had occasion to Say the foUowing, which is
recorded at pages 33-34 (VII) of the Oral Proceedings:
"1 am merely indicating for the moment that we are,*without
making admissions, assuming for purposes of our argument that the
Mandate is still in force asan objective institution; meaning,on the
one hand, the title, the rights, the powers of the Mandatory under
the Rlandate, and on the other hand, the substantive Trust obliga-
tions undertaken by the Mandatory which obliged it to use those
powers and rights for the advancement of, and the welI-being of the
inhabitants of the Territory. We are assuming, for purposes of
argument, that to that extent the Mandate remains in force, but
we are contending that it ceased tobe in force asatreaty or conven-
tion,as an international agreement."
That attitude was again repeated on several occasions during the
argument of Counsel in 1962.1can refer to the Oral Proceedings, at page
66, at pages 69-71,and at pages 353-354(VII). This last passage occurred
in my reply, and there 1indicated specifically, Mr. President, that iwas
not necessary for our purposes, as far as the Preliminary Objections were
concemed, to go into the question of severability or inseverability of
Article 6 from the rest of the Mandate. 1 indicated the severability of
Articles 6 and 7 which were then under consideration, on the one hand,
from the rest of the mandate institution, on the other. 1 indicated that
we were for the purposes of argument on the Preliminary Qbjections
prepared to make assumptions either way in that regard. If one assumed
inseverability, then Ourcontentions about Articles 6 and 7 having lapsed
would mean that the whole mandate institution had lapsed, and that
would, for purposes of jurisdiction, have led us to the conclusion that the
Applicants had no jurisdiction in these proceedings. On the other hand. ARGUMENT OF MR. DE VILLIERS 5%
if the conclusion was that there was severabilityof Articles 6 and 7 on
the one hand, frorn the rest of the institution, on the other; then the
Mandate could survive, but without any international accountability or
administrative supervision, and without any jurisdiction on the part of
this Court as initially provided for in the compromissory clause. That
again led usto the same conclusion in so far asthe jurisdiction of the
Court was concerned-an attitude, therefore, Mr. President, which made
it perfectly clear that that was a matter whicii we were leaving open ;
we were not then advancing contentions or argument to the Court on the
question whether the Mandate did or did not survive in its form of an
institution withan objective existence.
But now we find, Mr. President, that in the Judgrnent on .thePrelimi-
nary Objections, the Court in 1962stated the following:
"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 cxis..." (I.C.J. Reports1962,
PP, 332-3334
1 draw attention, Mr. President, to the word "argued". That word, of
course, in the light of the explanation which 1have just given,was not a
correct indication ofwhat Ourattitude was, in fact, i1962. Mr.President,
in OurCounter-Mernorial, we referred to this matter-to this passage in
the Judgrnent-and we stated in Book II, at page 166(il) i, footnote 3:
"If the Judgment on the Preliminary Objections is to be understood as
suggesting ...that Respondent contended positively that some aspects
of the Mandate still exist, such suggestion would be erroneous."
But, Mr. President, when we look at the manner inwhich the Appli-
cants deal with the subject, weget a different impression. The Applicants,
in their presentation, rely on this passage in the 1962 Judgment which
1 have just quoted, in order to contend that we have now abandoiied a
prior argument which we advanced in 1962. 1 quote from the verbatirn
record at page 112, s2lfira, where the AppLicants. after quoting this
passage from the 1962 Judgment, said the following:
"This was, as the Applicants understand it, an alternative argu-
ment-1 have just quoted from the Court's characterization of the
argument.
In the present phase of the proceedings, however, Respondent has
reversed or abandoned this argument, alternativeor othenvise."
Mr. President, surely there is no justification whatsoever for speaking
of reversing or abandoning any argument, alternative or otherwise. On
the sarne day my leamed friend, Mr. Gross, said the following, according
to the verbatim record at page 129,supua:
"Respondent, accordingly, repeats its rejected contention as to the
survival of the Mandate as a treaty, and reverses, or repeals, its
contention as to the survival of the Mandate in a 'real'or 'objective'
sense.Aç 1 have saidbefore, it matters little for the purpose in this
alternative argument or not." was made by Respondent as an
And we find a repetition of the same argument by my learned friend
in the verbatim record at page 176 ,tbpa, which 1need not quote.
Mr. President, it is quite clear from the record in 1962to which 1have
referred again, that we did not in 1962 argue that the Mandate was in566 SOUTH WEST AFRICA
force in any sense whatever. We merely assumed that for purposes of
argument. Weassumed that the Mandate continued in force as an institu-
tion, or ina "real" or "objective" sense, and we made it perfectiy clear
that we resewed our position as far as that question was concerned. We
did not address any argument to the Court in 1962on the question of the
lapse or survival of the Mandate.
It was for this very reason, Mr. President, that in the joint dissenting
opinion of the honourable President and Sir Gerald Fitzmaurice, we find
the following at page 495 :
"The fact that the issue raised by the First Prelirninary Objection is
not whether the Mandate is simply 'in force',appears to have been
completely lost sight of. The issuearising on Article37 of the Statute
is whether the Mandate is in force asa Ireaiym coavendzonF .or this
purpose it is not sufficient to rely on the Court's1950 Opinion as
establishing that the Mandate is, in any case, in force on an institu-
téonalbasis,"
This passage, Mr. President, very clearly drew the distinction between
the two aspects of the matter, and referred to the attitude which we took
in that regard.
The Applicants now Say in the verbatim record at page 176, supra:
"It was, of course, clear on the face of Respondent's statement
before this honourable Court in 1962,and in its written pleadings on
ihe Preliminary Objections, that Respondent's argument in this
respect was an alternative argument."
Mr.President, even this statement is wrong.There was no "alternative
argument". There %vasone argument on our part. That was an argument
which related to the question of survival, or othenvise, af the Mandate as
a treaty or convention. On the question of survival or othenvise ofthe
Mandate as an institution there was no argurnent. There was shply a
willingness on Our part to make assumptions both ways as far as that
question was concerned, for the purposes of the only argument which we
did put before the Court. That I thought I ought to make clear to the
Court before comrnencing this argument on the question of the lapse of
the Mandate as a whole.
It now becomes necessary to consider, for the purposes of these
proceedings, whether the Mandate survived in any sense whatsoever, in
an institutional sense or in the sense of a treaty or convention.
The Court will see from the pleadings and from the manner in which 1
have advanced this argument that we approach this question in this
particular way. We do not Say that the Mandate lapsed for some reason
or other, and that consequently there is no longer any accountability
under Article 6.We argue these propositions in the inverse order. Wesay,
Mr. President, that the accountability provided for in Article 6 has
lapsed. We advance that argument firstand foremost. It is not based on
any assumption which we make as to severability or inseverability of the
obligation of accountability from the rest of the mandate institution.
For purposes of the argument that Article 6 has lapsed we are again
prepared to make assumptionç in either direction, and we made those
assumptions in both directions, as I dealt with the argument regarding
Article 6. It does not matter whether we start off with an assumption
that Article6 was an essential part of the mandate institution, or that it
was not an essential part of the mandate institution, or whether we start ARGUMENT OF MR. DE VILLIERS s67
off with an attitude of neutrality in that regard-ofnot paying attention
for the moment-of not giving anysignificance-to the question whether
itwas or was not essential; we can make alithose assumptions, each and
every one of them, but still ona consideration of the field which 1 have
covered in rny argument so far, we can corne to only one conclusion, and,
that is, that Article of the Mandate lapsed on dissolutionof the League,
And it is as a consequence, Mr. President, of that conclusion that the
further question then arises: must one look upon Article 6 as having been
an indispensable, inseverable part-an essential part--of the mandate
institution, so that upon its lapsethe whole of the mandate institution
ako lapsed, or was it severable, so that the rest of the institution could
survive without an obligation of accountability?
[Public heuringO/ 13 A#ril1965]
1 am dealing with the contention of Respondent that the Mandate as
a whole has lapsed, and I have pointed out that this iç a contention
which follows on the contention that the obligation of accountability as
provided for in Article 6 of the Mandate has lapsed. Indeed, much of the
argument which I have already addressed to the Court in regard to the
lapse of Article 6 of the Mandate is reIevant also to the argument to
whch 1 am addressing myself now.
The basis upon which 1 contend for lapse of the Mandate as a whole is
purely and simply one of severability or inseverability, divisibility or
indivisibility. The question is, in other words, whether, if one accepts
that Article 6 has lapsed, the rest of the mandate institution was, in
accordance with the intentions of its founders, capable of further exis-
tence.
Mr. President, we point out in the Counter-Mernorial, II, pages 165 to
166, and in the Rejoinder, V, pages 58 to 59,that, as a matter of legal
principle in international law, the possibility of severability or separa-
bility of treaties or institutions is well recognized. There is consequently
no reason inprinciple why the Mandate should not continue in existence.
even in the absence ofany duty of accountability. There is no general
legal principle in international law which makes that impossible.
Further, Mr. President, as a question of notion and a question of fact,
it would not be impossible at al1to have a mandateinstitution without an
obligation of accountability. It would surely be possible to have the
notion, as described in the1950 Opinion, of a titb which is Iimited bythe
concept of a trust, the title being held by the titleholder for the purpose
of complying with a trust. which operates jn favour of the inhabitants of
the territory. Whether or not there would be accountability to an inter-
national institution, in the case of a trust of that kind, could not affect
the Iegal nature of the obligation resting upon the titleholder-the
and to utilize his powers for the purpose for which they were conferred
upon him, namely the advancement, the promotion to the utmost, of the
well-being and progress of the inhabitants of the territory.
There are many rnstitutions in international law which do not contain
any provision for reference of disputes to adjudication and where there
is no question of enforceability of obligations through ordinary legal
processes-through ordinary processes of adjudication-and yet the
existence of legal obligationsis fuily recognized; and there are various568 SOUTH WEST AFRICA
ways, with which 1 need not deal-the Court is fully acquainted with
them-in which obligations of a legal nature in international law can, in
processes of adjudication.rced, even if not through the ordinary lepl
In this case the Court found in 1962 that the Mandate was still in
existence, together with an obligation to submit to the adjudication of
this Court on questions arising from it. If one has as a premise a mandate
with an obligation to submit to adjudication, it becornes perfectly clear
that there could be no notional reason why there must necessarily also
be submission to international accountability, or international adminis-
trative supervision. But even if there should be no provision for adjudica-
tion at all, even if Article 7 should no longer exist,iststiU notionall
possible to have a mandate in the form of a trust institution, whic K
~vouidbe an institution with legai rights and with legal obligations.
The only question, Mr. President, with which we are concerned here, is
the question of the presumed intent of the authors of the system, i.e.,
whether they would have intended that a mandate should exist without
international accountability-without submission to supervision on the
part of an international organization. And that is the only legal basis
upon which this question of severability or inseverability can be decided.
One is faced immediately with the difficulty that it seems fairly obvious
that the authors of the mandates systern never, in fact, applied their
rninds to this question; they never in fact anticipated that the League
would be dissolved, and consequently, they could never have had any
factual intent on this question whether, if the League was dissolved and
the supervisory organs in respect of accountability fell away, without
any replacement in that regard, the rest of the mandate institution
shoThe present inquiry, Mr. President, is consequently, not an inquiry
into actual intentions-that seems fairly obvious; it is an inquiry into
presumed intentions. Such an inquiry often arises in matterç of thiç kind,
because the factor which raises the question of severability or inseverabil-
ity is very often one which arises for the first tirne a long time after the
original institution was agreed upon, or enacted by legislature, or what-
ever the position might be. One has, therefore, to argue back, from a
situation which has arisen in practice, to see what would have been the
intentions of the particular legislature, or the particular contracting
parties, would have been on this question, if it had been raised for their
consideration.
The main guide, in the present case, to the presumed intentions of the
authors of the Mandate, on the point under consideration, is afforded by
an appraisal of the role lvhich itwas intended that League supervision
should play in the mandates system, and by an appraisal ofthe degree
of importance attached to it by the authors of the mandates system.
We have to look at al1 the relevant evidence inorder to see to what
extent they regarded this part of the institution as important-to what
degree they regarded it as essential. For that purpose one has to weigh aii
the evidence and have regard toall theindications-one wayand the other.
It, therefore, folIows, Hr. President, as we alm. point out in our
pleadings, that the nature of the question to be determined of necessity
imports some element of speculation into the inquiry, and for tha.
reason it isnot surprising that opinions which have been expressed on ths
question have, in fact, differed. As we have pointed out in our pleadings, ARGUMENT OF MR. DE VILLIERS 569
the 1950 Advisory Opinion appeared to be based on the premise that
Article 6waç, indeed, severable from the rest of the Mandate. \Ve referred
to that earlier in these oral proceedings, and also in the Oral Proceedings
on the Preliminary Objections, VII, at pages 69 to 71,in 1962.
. This contemplation of severability appeared very clearly from the
minority opinions of Judges McNair and Read. As 1pointed out before,
they both came to the conclusion that the Mandate continued in existence
although Article 6 had lapsed. But the view of severability was also
implicit in the majority opinion. It is particularlyimportant to note that
the Court frrst came to a conclusion that the Mandate suwived the
League as a trust, in regard to both the powerç of the mandatory and the
obligations imposed by Articles 2-5of the Mandate. The Court first came
to that conclusion before considering the effect of the dissolution of the
League on Article 6 of the Mandate.
If 1may refer the Court to the Opinion at page 133,it is very significant
to see how the Court put the matter there, and what its approach to the
enquiry was. The Court referred, at page 133, to the two kinds of inter-
national obligations embodied in the Mandate, and it defined the first-
mentioned group of obligations as those described in Article 22 of the
Covenant and in Articles 2-5 of the Mandate. In regard to these obliga-
tions the Court said:
"These obligations represent the very essence of the sacred trust
of civilization. Theiraison d'êtreand original object rernain. Since
their fullilment did not depend on the existence of the League of
Nations, they couid not be brought to an end merely because this
supervisory organ ceased to exist. Nor could the right of the popuia-
tion to have the Territory administered in accordance with these
rules depend thereon." (I.C.J. RePorts1950, p. 133.)
Mr. President, the emphasis here falls on the fact that these trust
obligations were not dependent for their existence on the existence of a
supervisory organ, or, by implication, on the existence of a system or an
obligation of accountability. That was the basis of the Court's reasoning
on this whole problem, and, as 1have said, the Court completed, at pages
133-136 of the Opinion, its consideration of the question whether the
Mandate, in relation to the rights and powers of the mandatory and the
trust obligations in Articles5,had survived before it gave consideration
at di to what it called the obligations of the second group relating to
measares of implementation, under which the Court then dealt with
Article 6ofthe Mandate.
Those, then, were the opinions on this point in the 1950 Advisory
Opinion of the Court.
In 1962 we find that Judge Bustamante expressed a view to the con-
trary. Wequote that vie~ at pages 168-16 of9the Counter-Memorial (II).
1 do not propose to read it to the Court. It is to the effect that the obliga-
tion of accountability, as provided for, was to be regarded as an essential
part of the mandate institution.
There is also a passage in the Judgrnent of the Court itself in 1962
which we quote at page 168 of the Counter-Memorial, which, although
not very clear, may or may not have been intended to apply to this
particdar question relafing to Article 6. The passage reads as follows:
"The findings of the Court [i.e., in the 1950Advisory Opinion] on
the obligation of the Union Governrnent to submit to international570 SOUTH WEST AFRICA
supervision are thus crystal clear. Indeed, to exclude the obligations
connected with the Mandate would be to exclude the very essence
of the Mandate."
\%y 1Say this is not perfectly clear. Mr. President, is because there is a
general reference to the obligation to submit to international supervision,
In the context in which this expression occurred 1 dealt with if yester-
day), the Court, asfarasone can see, expressly ad deliberately refrained
from dealing with the problems which arose in regard to Article 6of the
Mandate. 1 gave the reasons yesterday why we Say that that is so. The
Court did deal with the other aspect of what it regarded as essential,
namely judicial protection, and it may be that in referring here to the
obligation to submit to international supervision the Court hadin mind
the dual aspect which apparently underlay its reasoning, Le., the concept
that there had to be some supervision, either administrativeor judicial,
or both, in the manner in ivhich I explained it to the Court yesterday.
Therefore, when the Court spoke of "to exclude the obligations connected
with the Mandate would be to exclude the very essence of the Mandate",
it had in mind,not necessarily that there had to be administrative super-
vision of a mandate, but that there had to be supervision of one kind or
the other-that appears to have been the basis of the Court's reasoning
in this particular part of its Opinion. As 1 have said, that is a passage
which may ormay not have a bearing on the subject.The point 1wish to
make is that the opinions which have been expressed thus far, are not
harmonious-and, indeed, Mr. President, one does not find anywhere
tion to the question of severability or inseverability, in answer to con-
flicting contentions addressed to it by parties appearing before it.
Opinions have been expreççed inisolated respects, as1 have indicated,
but there has been nocomprehensiveconsideration of this whole question
anyvhere, as far as 1 have been able to discover.
In the Counter-hfemorial, II, at pages165-16 6,e also refer to (and
quote) a passage from the minority opinion of Judges Spender and Fitz-
rnaurice in 1962d,ealing with the principles ofseverability and indicating,
aIthough not quite explicitly, a view tending towards the conclusion of
severability in the particular case of Article 6 of the Mandate-bthere,
too, the matter was not dealt with fully or comprehensively, as far as
this particular aspect of application of the principle was concerned.
Mr. President, to the authorities which we already quote in the
pleadings and to which 1 have now made further reference, 1 might also
add a reference to an articby Professor James F. Hogg in the Minnesota
Law Review, Volume 43, January 1959 , o. 3, at pages 435-436-the
titleof the article is "The International Court: Rules of Treaty Inter-
pretation". In the course of this article Professor Hogg expressed the
view that it was quite obviouç that the mandate institution could exist
without accountability, even if it waalso quite obviouç thatit would be
better to have accountabiiity,ifpossible, and he then expressed certain
the survival of accountabiiity. The point 1make for the moment ismerely
that his view was based on a conclusion that there was severability, as
far as the mandateinstitution was concerned, in regard to Article 6.
A view to the other effect, one hds in Kelsen-Princifdes ofInter-
nationa law 1952, page 164, in footnote48. Again, the question is not
fully discussed. It is merely a statement of a view bythe leamed author. ARGUMENT OF MR. DE VILLIERS 57I
We pointed out, Mr. President, in the pleadings and in this oral
States at and shortly after the dissolution of the League, showed arnbi-
guity and difference of opinion on this very question.
In dealing first with the States present at the last Assembly of the
League of Nations, we pointed out in the Rejoinder, V, at pages 59-63,
that their attitudes appeared to be ambiguous. The ambiguity, as we see
it and as we analyse it on thoso pages of the Rejoinder, Mr. President,
appears to amount to this, that if one considers the actual statements
made on behalf of mandatory powers at the time, and aithe reference
in the League's resolution to those statements, Le., to the manner in
which those statements were made and the effect thereof as described in
the resolution of the League, one can put one of two possible interpreta-
tions on them. The one interpretation would be that the States concerned
were of the opinion thatthe mandates would remain in existence as legal
institutions, with legal obligations involved in them, but without an
obligation of accountability. Such an interpretation would, of course,
premise a view of severability of the obligation of accountability from
the rest of the mandate institution. The other possible msnner of looking
at those statements, and at the League resolution, is that indicated in the
oint dissenting opinion of the honourable President and Sir Gerald
E itzmaurice, which involves an indication that, in the normal course of
events, the mandates, as institutions, would have lapsed completely
-i.e., that in law nothing would have remained of them after the disso-
lution of the League-but thatthe mandatories undertook that, as far as
the substantive obligations, as distinct from an obligation of accountabi-
lity,were concerned they would act, until further arrangements were
made, as if those obligations of the mandates were still in force. That isa
possiblealternativeconstructionwhichcould be placed upon the situation.
What 1 want to emphasize at the moment is that this ambiguity
related to a choice between the two alternatives contencled for by the
alternatively, the survivaI of the Mandate without accountabilityte,to a
supervisory authority. There was no contemplation at all, as far as one
can see, of the alternative contended for by the Applicants, namely the
survival of the Mandate with a substitution of the United Nations for
the League asan administrative supervisory authority.
1have given this view of the various attitudes of States and authorities
in order to indicate what possible range of views there could be on this
subject, and to what extent there have, in fact,ithe paçt,been differen-
ces of opinion, and even uncertainty, upon the subject.
It may be convenient at this stage, Mr. President, to refer to an argu-
ment raised by the AppLicants according to the verbatim record, page
212. srtpra,which reads asfoilows:
"Acceptance by Respondent of this resolution [the finalresolution
of the League] dearly involved an explicit undertaking of some sort,
intentionbasdof that moment. In that case, however, the phrase
'until other arrangements have been agreed between the United
Nations and the respective Mandatory Powers' would have been
meaningless, if not, indeed, misleading."
Now, Mr. President, we have given our reasons for submitting that the57s SOUTH WEST AFRICA
resolution did no more than take note of expressed intentions and that,
consequently, agreement to the resolution did not involve any under-
taking in law at ail. In other words, hlr.President, we submit that if the
true view shodd be that the whole mandate institution lapsed on the
dissoluti oothe Leaguet, hoçe statements made-by mandatories did not
have the effect of causing the mandates to survive in law, not even to the
extent of the substantive rights and obligations, to the exclusion of
accountability. The situation, inour submission, was merely one where,
if it is correct to Say that the mandates did lapse upon the dissolution of
the League, those mandatories acted on the same basis as if the mandates
were still in force, and not on a legai basis which involved that the man-
dates were in force.
Mr. President, the point which 1 wish to make at this stage is that,
even if we were to be wrong in this respect, even if those staternents of
intent were to be regarded as undertakings in law, it would still mean that
the undertakings reiated only to the substantive powers and obligations
under the Mandate, and nol toan obligation of accountability, as orginally
provided for in Article 6 of the Mandate. If one puts that construction
on what happened at the final aççembly of the League, the result would be
exactly the same asif one said that Articl6 was severable from the rest
of the institution, that accountability therefore lapsed, but that the reçt
of the institution su~ved. That very sarne result would foilow from
putting upon the situation the construction 1have just dealt with-the
League, or that it would have lapsed but foredalegal undertaking on thee
part of the mandatories to carry on with the substantive obligations
and powers under the Mandate.
So, blr.President, if an undertaking, as suggested, were, in fact, given,
it would seern to suggest that in the minds of the States there assembled,
it was possible to continue the substantive obligations of the Mandate
without making provision for any supervision, and that the undertakings
could not have had any greater effect than to provide for such continua-
tion, that is, without any supervision.
Now, Mr. President, it appears from the review which we have given,
that there wereextensive differencesofopinion also in the views expressed
in the United Nations in the years 1946-1949,on the question whether
the Mandate was stii ii existence.As we have shown in the Oral Pro-
ceedings, açwellas in the Rejoinder, V,pages 63-67,there was a consider-
able difference of opinion regarding the question whether the Mandate
existed at ail. However, as we have also shown, the differenceof opinion
again related substantialiy to the two alternatives for which we contend,
namely, either the lapçe of the Mandate asa whole, or alternatively, the
survival of the Mandate without any accountability to a supervisory
authority-again to the exclusion of the position, contended for by the
Applicants, narnely of a survival ofthe Mandate with accountability to
the United Nations. It was only from the end of 1948that a few States
adopted the attitude now urged upon the Court by the Applicants-and
then, as wehave shown, for different reaçons, And wehave also indicated
that those States were,in somecases, not consistent with themselves, and
they in no case advanced a contention in the form in which it is now
advanced to the Court by the Applicants, or on the same grounds.
1 have dealt with the various possible ways of viewing the matter,
Mr. President, for the purpose of showing that the Court is not being ARGUMEBT OF MR. DE VILLIERS 573
forcedinto a straight-jacket,as it were,inthe manner whichwas suggested
Reply, as we read it, was that the Court is now,by virtue of the attitudes
adopted by the Parties, really forced to decide only on the basis of one
of two extremcs, the two extremes being either that the Mandate must
have lapsed altogether, or that the Mandate must exist with accountabili-
ty to the United Nations. The review 1have given of the various possible
views one codd take of the situation, andof the various possible views
that havebeen taken in the past, indicates very clearly that there are
several other possibilities to be considered in this regard-alternatives
on the basis ofwhich the Court could corne to a conclusion.
Mr. President, in regard to the attitudes of States, some reference
should be made also tocertain statements made on behalf of Respondent
which, in the earlier years up to 1948,would seem to show a contempla-
tion of a continuation of the mandate obligation. Again we must ernpha-
size, as we did before in deding with those staternents, that they clearly
showed thnt any continuation of the Mandate would not, in Respondent's
view, involve any accountability to the United Nations. The question
whether in those circurnstances the Mandate could stili continue as an
institution, is a pure questionof law, involving, as has been noted, an
ascertainment of the presumed intentions of the authars of the mandates
system regarding a matter to which they had not, in fact, directed their
minds. We submit, therefore, hfr. President, that statements by the
South African Government of the time on a pure question of law of that
kind'can, by themselves, have only very limited probative value, either
as an admission, or othenvise. It is a point with which 1shali deal further
at a later stage in order to assess the legal value to be given to statements
actually made at the time, LVerefer in this regard to the 1950 Opinion
of the Court when the Court said, referring to certain statements made
by Respondent :
"These declarations constitute recognition by the Union Govern-
ment of the continuance of its obligation under the Mandate and not
a mere indication of the future conduct of that Government. Inter-
pretations 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. In this case the declarations of
the Union of South Africa support the conclusions already reached
by the Court." (I.CJ. Reports1950p ,p. 135-136.)
Now, hlr. President, there are certain points to be noted from this
staternent by the Court. The first is that the declarations were relied
upon by the Court solely as supporting a conclusion already reached, and
the Court, therefore, did not have to consider what value the declarations
wouid have had if the Court had been uncertain asto the correct inter-
pretation of the Mandate. Secondly, Mr. Yresident, it must be quite clear
that in this regard one should draw a distinction between statements
relating purely to a question of law, on which opinions could differ, and
statements relating to a question of fact, or ofixed fact and law,such a~,
for instance, the question whether there was, in fact, a certain under-
standing or a tacit agreement on a particular question. In our submission,
that is a self-evident distinction which would have to be drawn when
applying any principles of the kindwhich the Court had in rnind in the
passage under consideration.574 SOUTH WEST AFRICA
Further, Mr. President, it is also significant that the Court relied on
these statements by the Respondent only to show a recognition on
reliance on them in considering the second question, narnely whethere any
supervisory powers had passed to the United Nations. The Court did not
even refer in that part of its Opinion to any of the staternentsmade by
the Respondent. In our submission, Mr. President, this shows that the
Court did not interpret Respondent's statements as involving any
consent to a substitution or replacement of supervisory organs, although
it interpreted them as acknowledging continuation of the Mandate. This
was again, Mr. President, in keeping with the Court's treatment of the
two questions as being severable-the question of the continuedexistence
of the Mandate, and the continued existence, or otherwise, of Article 6
of the Mandate and the obligation provided for therein.
A further question which could arise in connection with these state-
ments is whether Respondent's conduct could have given rise to an
estoppel. FVedealt last week with the principles of estoppel and set out
on Friday what they involved, In Oursubmission, they codd clearly not
be applicable in a situation of thisind, for the simple reason that there
is no indication whatsoever that any State changed its attitude in
relation to the Respondent, or in relation to this whole subject-matter,
on the basis of any of thestatements made by the Respondent. There is
no evidence, and nosuggestion whatsoever, of any such change of position
and, indeed, there could not be any such evidence because Respondent's
statements related to a continuation of the Mandate without supervision,
that is, a continuation of the sacred trust obligations. As a matter of
practice, whether the Nandate is to be regarded as being in force or not,
Respondent has continued to honour its sacred trust obligations under
the Mandate. And it has expressed its intention of maintaining this
attitude, whether it did so as a matter of legal obligation, or as one of
of the Mandate, does not matter for the moment: that has been Respon-pirit
dent's factual approach to this whole situation.
Mr. President, it, therefore, seems unlikely in the circumstances that
any States would indeed have altered their attitude or their position to
their own prejudice, and there is, indeed, no suggestion, no allegation,
that any such alteration of position has occurred on the part of any
State-certainly not on thepart of the Applicants.
It therefore seems, Mr. President, that that one essential eIement of
estoppel, the alteration oa party's position to his prejudice is completely
lacking in this instance, and that for that reason alone there could be no
suggestion of applying the principles of estoppelin this case.
Consequently, Mr. President, it is submitted that Respondent is fully
entitled to advance the contention that the Mandate as a whole has
lapsed. Ourcontentions in this regard areset out in the Counter-Memorial,
II, pages167-16 on the question of severability, or inseverability, which
arises here. For the reasons set out there we contend that the Mandatory's
obligations to report and account to, and to be supervised by organs of
the League, must be taken to have been intended by the authors of the
Covenant to form an essential and unseverable part of the Mandate, and
for that reason we submit that upon lapse of those obligations the whole
mandate institution must be taken to have lapsed in law.
We emphasized in the pleadings, Mr. President, and we do so again. ARGUMEST OF MR. DE VILLIERS 575
that this conclusion is owhich is arrived at on balance. It is arrived ai
on an exfast factbasis which, as1 have said before, necessarily involves
a measure of speculation as to the presumed intention of the authors of
the mandates system on a matter to which they admittedly did not give
positive and active consideration. It does not mean, in particular, that
al1States mut at al1timeshave regarded accountability as aninseverable
part of the mandate institution, and the evidence on record with which
we have deait is absolutely clear that they in fact did not.
It is alço clear, Mr. President, thatthe Respondent's own Government
in the years1946-19 c48arly did not regard the matter in this li,The
contention which we now advance is, therefore, one which we ask this
Court to accept on a consideration of the Iegal positexnpostfacto,and
onewhich doesnot accordwith the expressed intention ofthe Respondent
Government at that particular time, nor with the views expressed by a
nurnber of other governments atthe the. 1stress this because there was
a tendency, as 1 saw it, in my Iearned friend's argument, and in the
argument advanced on behalf of the Applicants, to argue that if this
Court should come to a conclusion of inseverability, of essentiality, of
accountability in the mandate institution-particularly if the Court
should come to that conclusion on the basis of a contention which we
ourçelves, on behalf of the Respondent, advance to the Court-it must
follow that al1 States at all times, including the Respondent, must
necessarily have had that view of inseverability. 1 am rnerely stressing
that that representation of the situation is an erroneous one, andthait
could lead to cornpletely erroneous conclusions.
Consequently, Mr. President, the way in which we advance Our con-
tentions to the Court, it stillves these two possibilities. If our conten-
tion in regard to inseverability is correct, it rneans that the whole
ifwe are wrong in that contention, i,e.ifthe Court should find that the
accountability could indeed, according to the presurned intentions of the
founders of the institution, be severed from the rest of the institution,
the Mandate would still exist, but without accountability. And there is
the third way in which that same conclusion could be arrived at: it
concerns the view which could be taken of events at the 1st session of
the Lea e, Le., that the institution lapsed, but that therearenewed
underta B'Ugon the part of Mandatories to rnaintain the institutions in so
far as obligations other than accountability were concerned. Our main
contention is, as1 have said, that the Mandate has lapsed; the others
followas alternatives-possible alternative viewswhich could betaken of
the situation.
1 would also point out, Mr. President, in this regard, although only
by way of comment asCounsel-1 amnot speakinginterms of any partic-
ular instructions 1 may have on this point-that there could not, from
Respondent's point of view, be very much difference between, on the one
hand, a situation where the Mandate itself has lapsedin totobut where
Respondent carries on in the spirit of the Mandate, administerç the
territory in the spirit of the Mandate-and, on the other, a situation !n
which the Mandate exists in law but without an obligation of accountabil-
ity to the United Nations. From a practical point of view, and in view of
Respondent's expressed future policy of leading al1the peoples of the
mandated terntory, or the pnor rnandated territory, of South West
Africa, to self-determination, it rnakeç very IittIe difference whether one576 SOUTH WEST AFRICA
views the situation at the moment on the basis of a mandate which is
legally in existence, togetherwith a legal obligation to lead the peoples to
self-determination, or whether one views it on the basis thatthe Mandate
has lapsed but that .Respondent acts on the baçis of a fitm policy to do
exactly that which the Mandate would have required of Respondent if
it had been in force. The important distinction between the attitudes
taken by the Applicants and Reçpondent iç,aç a matter of fact-as a
United Nations supervision.nce-the question whether therc isor is not
do not want to deal fuüy at this moment-1 rnay merely rnake a reference1
to it in passing-this is considered to be of the utrnost importance. This is
so, Mr. President, because Respondent considers that there are a number
of States at the United Nations which,for political reasons, and for the
purpose of achieving political objectives which, as Respondent sees it, are
in no way concerned with the merits of administration of South West
Africa. wish to forceRespondent to apply policies in South West Africa
which it conceives to be of a disastrous nature-policies which, in
Respondent's view, can never lead to fulfilment of the objectives of the
Mandate, but only to the opposite end. It is from this point ofview, in
this practical sense, that Respondent regards this issue of the lapse or
othenvise of accountability, and of supervision, as one of the utmost
practical importance.
Mr. President, as a matter of law our contentions are, as1have said,
that the Mandate as a whole has lapsed. Alternatively, if the Court does
not agree with our contentions as to severability or othenvise, the position
remains thatthe Mandate isin existence, but without accountability.
Now, Mr. President, let us consider the Applicants' reaction to this
contention on the part of the Respondent. The reaction is stated as
follows in the verbatim record at pages 129-130 s,pra:
' "Although Respondent's argument in support of its second
alternative contention that the Mandate as a whole has lapsed
proceeds from a sound point of departure, that is, the Rature, origin,
and purposes of the mandates system, and draws the sound inference
therefrom that international supervision waç conceived as a basic
obligation, as an essential and integral element of the system, the
more logical conclusion following Respondent's correct premises
in this context would no doubt have been Respondent's abandon-
ment of its first alternative contention."
Now, Mr. President, there are variouç elernents in this argument to
which 1 must draw attention. 1 begin with the Applicants' phrase that
"international supervision was conceived as a basic obligation". That
phrase is used as if it were part and parce1 of Respondent's argument
abo, as ifthat wasa rnatter of common cause between the Parties. I must
in this regard draw a distinction, as 1have done so often in the course of
this argument, and state that it is misIeading to speak of "international
supervision" in this particular context. We pointed that out in the Re-
joinder, V,at pages 67-68.It is particularly rnisleading, Mr. President, at
this stage of the proceedings, inasmuch as the Applicants assign a
specificmeaning, and specificlegalconsequences, to thisabstract concept
ofinternational accountability or submission fOinternational supervision.
One has to distinguish between the Applicants' contentions in that ARGUMENT OF MR. DE VILLIERS 577
regard, and our basic contention in that regard. We have always disputed
the existence of any obligation of international accountabiiity in the
wide sense contended for by the Applicants, and a fordzoriwe have, of
course, never contended that such an obligation was an essential feature
of the Mandate. Our contention was, and still is, that our obligation of
accountabiiity related to thespecihc League organs, and that it was that
obligation which was essential inthe mandates system. That distinction
is a very important one, and must always be borne in mind when con-
sidering the attitudes of the Parties on this question of essentiality.
That appears quite clearly, hlr. President, if we analyse what are the
consequences of the Parties' attitudes on this question of eçsentiality-
eççentiality of the obligation of accountability as seen bythe two Parties.
First, on the basis of the Applicants' contention in regard to inter-
national accountability, what would be the consequences of considering
such a wide and vague obligation to be an essential part of the Mandate?
Secondly, what would be the consequences of considering the narrower
concept of accountability to speciiic League organs, as contended for by
the Respondent, to be as an essential part of the mandate institution?
1 deal first with the matter on the basis of the Applicants' contention
of a wide, vague obligation of international accountability. On the
assumption that was the intention of the founders of the mandates
systern that such an obligation was to be seen as being part and parce1
of the Mandate, it would seem, Mr. President, that the question whether
that obligation was essential, or was to be seen as essential, or not, would
realIy rnake no difierence for present purposes, because the position wouid
be this: the effect of the Applicants' contention is that, inasmuch asthere
is this generai obligation to account or to be subject to international
supervision, the disappearance of a particular supervisory organ does
not affect the existence of the obligation. It could affect the practical
application of the obligation, it could affect the question whether the
obligation is, ata particular tirne, in operation or whether it is dormant,
but it could not affect the existence of the obligatioat alI. Consequently,
Mr. President, on dissolution of the League, according to the Applicants'
contention as to international accountability, that obligation was not
affected, but remained in existence on the analogy of what the Court
found in the Barcelona Traction case in regard to an obligation to submit
to adjudication. Therefore, Mr. President, in view of the fact that that
obligation would, on the Applicants' premise, have survived the dissolu-
tion of the League, no question could arise asto the lapse of themandate
institution as a result of lapse of the obligation because, on this hypothe-
sis, the obligation remains in existence, as part and parcel of themandate
institution, and whether it is regarded as severable oras inseverable from
the rest of the institution does not matter. The institution, on that
premise, survives, and it survives 5th an obligation of international
accountability as part and parce1 of it. What is, then, still required in
order to bring the Applicants home on their contention, is consent on the
part of the Respondent to a substitution of supervisory organs, so as to
make the obligation operative andnot to leave it in a dormant state. But
that is an entirely different question. The question whether the obligation
is to be seen as an essential parof the mandate institution or not,cannot
help the Court at all in coming to a conclusion on the question whether
the Respondent did or did not give the necessary consent to asubstitution
of supervisory organs: that is,and remains, a question of fact, which57$ SOUTH WEST AFRICA
must be answered with reference to ali the relevant facts, as we have
the Applicants' contention thasrto the meaning to be attributed to the of
obligation of international accountabiiity.
On the bais of Respondent's approach, hfr. President, the question is:
if our contention is correct, namely that the obligation was essentially
related to particdar superviçoryorgans and that it would ,therefore,
have lapsed on dissoIution of the League, what would be the effect of
essentiality on such an obligation? We must note in the first place that
essentiality in tkis sense must mean that the accountability in question
was intended by the authors of the mandates system to be an essential
element of the Mandate, in the sense that the Mandate was not to exist
without it. The view, or the contemplation, of anybody else could h~dly
have been of significance: for instance, the views of interested parties at
later stages of the process, say,1945-194 C O,UI~ot be ofany relevance
except in sofar as they may have induced those parties to enter into new
agreements, but that is a different question. Basically we are concerned
only with essentiality in the sense that the authors of the mandates
system considered the obligation as prescribed by them-the obligation
to account to the Council of the League-as an essential element of the
system in the sense that the Mandate could not,in their opinion, exist
without it.
NOW,hlr. President, on that view of the matter, it necesçarily follows,
that if that obligation fell away the rest of the institution could not
survive, and the whole of the Nandate would have to be regarded as
lapsed. The logic of that proposition, &Ir.President, is probably indispu-
table. We find that the same question of logic arose in the Barcelowa
Traclioncase, andit was a question which feIIto be considered particuIar-
took in regard to the survival or othenvise of the clausewhichw provided
for adjudication in that case. Judge Morelli,differingfrom the rest of the
Court in that regard, came tothe conclusion that the provisions providing
for adjudication had to be regarded ashaving lapsed on the disappearance
of the Permanent Court. The question then arose, what effect codd that
have on the rest of the institution? Judge MoreIli had to deal with an
argument which was advanced to the effect thatthe adjudication clauses
were to be seen as essential parts of the treaties in question, and they
were, consequently, to be seen as having survived with the rest of the
treaty. He dealt with the matter in his dissenting opinion, and pointed
out that in logicthe conclusionwas the very opposite. We cite the relevant
portion in the Rejoinder, V, at page 71 :
"This result [the learned judge stated-the result that the com-
promiçsory clause had lapsed] cannot in my view be set aside by
arguing, as does the Belgian Government, the inseparability of the
provisions of the 1927Treaty. It is dificul$ tofi& any reasorrwhy
this alleged inseparabilityshorcM have the etfect oJ kee$ing Article
17 (4) .. . iiforce,rather than the contrary effect of entailing the
lapçe of the entire treaty.
In my opinion there can be no doubt that Article 17(4)lapsed, for
lack of object, as a result of the dissoIution of the Permanent
Court .. .The fate of the other provisions of the 192Treaty is of no
interest. But if itis desired also to consider the question of the
preservation in force of the other provisions of that Treaty, what ARGUYEXT OF MR, DE VILLIERS
579
consequence must be drawn, forthe solution ofthat problem, fromthe
considered,astdoes the Belgian Government, that 'resort to adjudica-
tion is an essential part of the economy of the treaty', that 'the
various methods of settlement were carefully combined, so that to
remove those which concern the Court arnounts to dismantling the
whole system' and that Article 17 (4) 'was an essentialcoladitionfor
the consent of the parties to the treaty as a whole' the inevitable
result,assumingthe impossibility, ihus agirmed,of sefiarabilitofthe
provisions ofthe Hispano-Belgian Tveaty, would simply be that the
entire2reatyhaslapsed." (Italics added.)
The majority of th; Court, in the view which it took of the meaning
and effect of the adjudication provisions, did not have to consider this
question, and found it unnecesçary to express an opinion in regard
thereto. But, Mr. President, on the basis of the view taken by Judge
Morelli, it was necessary to deal with the question, and ,these are his
views as I have read them to the Court. They confirrn entirely our sub-
mission in this regard, and involvea rejection of the contrary submission
of the Applicants, as set out in the passage which I read to the Court
from their argument, in which they said that the more logical conclusion
which flowed frorn the Respondent's correct premises in thjs context
would no doubt have been abandonment ofits first alternative contention,
meaning thereby that the Mandate as a whole had lapsed.
Mr.President, the effect of this contention, in contrast with that of the
Applicants, may also be stated as follows. The authorç of the mandates
system knew, and contemplated, that without accountability as pre-
scribed by them, Le., accountability to the s ecific League organs,the
Mandate as awhoIewouldfa1 to the ground. \9etake that as ourpremise :
that is what the premiçe of essentiality here rneans. This, however,
Mr. Prcsident, on the basis of our contention, did noinduce the authors
of the mandates system to do anything about it-to do anything in the
way of preventing that resuIt if and when it should come about. The
simple, logical explanation why that is so is that the authors of the
mandates system contemplated that the League would endure indefin-
contemplate the dissolution of the League, they could not contemplateot
the exact circumstances under which such a dissolution might take place.
Thereforc, they simply left the matter on that basis, Le., that if the
League should one day, under unknown circumstances, come to an end,
then the consequence would be-on the assurnption, of course, of essen-
tiahty-that the Mandate asa whole would lapse as a result of the
diçappearance of the supervisory organs.
But the authors of the system also knew that later generations would,
in circumstances where the League might come to an end, rnake appro-
priate arrangements. They could make arrangements very much better
than the authors of the mandates system could do so at the tirne when
they were having their deliberations and weremaking their arrangements,
when it was exhypoihesiquite impossible to foresee the circumstances in
which such further developments might take place, and for which new
arrangements would have to be made.
That is our expIanation, and1 submit that it is a perfectly logical one.
for the attitude adopted by the authors of the mandates system-l.e.,
assuming, of course, a contemplation of inseverability on their part.580 SOUTH \$'ESTAFRICA
On this basis too, Rlr. President, there codd be no suggestion-as was
suggested by the Applicants-that there must be accountability aslong
as rights or powers over the territory are asserted, because, Mr. President,
on this premise there would be no mandate. As from the dissolution of the
League the slate would be clean: there would be no assumption that if
anybody exercised powers over the territory, those powers must be
exercised subject to an obligation of accountability, because one would
have to consider de laovothe question of any title, or right, or powers of
administration in respect of such territory; there would be no mandate,
It is common cause bettveen the Parties that there would be no legal
indefinite situation, in which it is not possible for anybody to Say that a
legal obligation to subrnit to international supervision exists.
The ~vholernatter would have to be considered denovoto see who had
anyrights, or powers, or title, in respect of the territory under these
circumstances. The anslver wodd have to be found outside the mandates
system andalso outside of the trusteeship system; and, therefore,there
could be no inference of international accountability frorn the mere fact
that any State continued to administer the territory.
That consequence would also follow, Mr. President, from the Appli-
cants' premise, if 1may refer back to thatfor amoment, as to the mean-
ing to be assigned to theconcept of international accountability, namely
that the obligation of accountability would survive aspart ofthe mandate
institution on dissolution of the League, but thatitwould, as 1have said,
become a dormant one. The only question that would, then, arise, would
bewhether, onthe basis of that dormant obligation, the Respondent has
taken a further step and has agreed to a substitution of supervisory
organs.
1dealt before with the question whether, on that premise, the mere
fact of the continued administration of the territory can be said to be
proof of such a consent on the Respondent's part, and 1pointed out why,
in legal principle, the answer could never be in the affirmative, if one had
regard to al1 the relevant facts bearing on the question of consent or
lack of consent.
Mr.President , 1map conclude the portion of the argument with which
1was dealing by stating the effect of it, briefly, as follows.
The Applicants have repeatedly attempted in their Reply, and now
also in their oral presentation to the Court, to avail themselves of the
fact that the Respondent itself contends that the obligation of inter-
national accountability, as provided for in Article 6 of the Mandate, was
to be seen as an essential part of the mandate institution.The Applicants'
contention, in effect,amounts to this, that given that premise then the
ultimate conclusion must not be that the Mandate has lapsed butthatthe
Mandate exists with international accountability to the United Nations.
1 have demonstrated, Mr. President, with submission, that that
conclusion can in no way follow. It cannot follo\veither from the Appli-
cants' way of interpreting this obligation of international accountability,
or from the Respondent's way of interpreting that obligation.
On the Applicants' baçis of interpreting the obligation, the result is
that the Mandate remained in existence at the dissolution of the League,
with an obIigation of international accountability but one that had
become dormant and wouid remain dormant in the absence of a sub-
stitution of supervisoryorgans. That substitution of supervisory organs, ARGUMENT OF MR. DE VILLIERS 581
the Applicants themselves admit, could only have taken place on the
basis of a process which included the Respondent's consent. Consent is a
question of fact; it can only be established by the ordinary processes of
establishing any factual proposition. If we take al1 relevant evidence
into consideration, therefore, it is quite evident that consent was never,
in fact, given. What is common cause here, and what is clear, is that there
isno legal principle whereby the United Nations could, on the basis of
the Appiicants' premisehave been substituted for the Leagueof Nations
as organ by anyprinciple other than consent. Consent is the essentid
proposition to be established in this regard and it has not been established.
looking at this obligation of international accountability.way of
If we look at it on the basis of Respondent's contention thatwas an
obligation referring to specific supervisory organs. only, the only con-
clusion that would follow from a premise of essentiality would be that
upon lapse of the supervisory organs, the whole obligation lapsed and
that consequently, premising essentiality, the whole mandate institution
lapsed.
In neitherofthese events, i.e., as postulated either by the Appiicants'
argument, or in our argument, could the mere fact of administration of
the Territory by the Respondent after those events, therefore, lead to a
conclusion that there has been a substitution of the United Nations for
the Lea e of Nationsasa supervisory organ. The fact of administration,
by itse7,s neutral in both those events. It impiies no question of-it
impiies no consent to-a substitution of supervisory organs.
approach to the matter, Le., that the obligation of accountability itself
lapsed and that, therefore, the whole mandate institution lapsed, is the
extent to which the compromissory clause could affect this iine of argu-
ment .
The question arises for thisreason. The Court will recali that in the
minority opinions ofJudges Read and McNair in 1950 there was a sugges-
tion that judicial supervision under Article 7, paragrapz, of the Man-
date could be regarded as fUng the same function in the contem lation
of the authors of the mandates system as would be fulfilled by a minis-
trative supervision.
The Mandate would, therefore, not lose its contemplated effectiveness
if this obligation of submitting to judicial supervision were to rernain,
even in the absence of administrative supervision. The question, Mr.
for which we contend that. namely on the lapse of Article 6, the wholen
mandate institution lapsed.
Our submissions in that regard, Mr, President, are dealt with in the
Counter-Mernorial, II-firstat page 172 and then at pages 175-256.
Firstly, in the first passage to which 1refer, we pointed out,Mr. Presi:
dent, that the majority judgment and opinionsin 1962assignedto the Court
a very limited role in the exercise of its function of judicial protection
under Article 7, paragraph 2, of the Mandate. Having regard to that
limited role, the Courtcouid never, in the contemplation of the authors
of the mandates system,have been regarded as a çatisfacto substitute
for.the CounciIof the League and the Permanent Mandates 7ommjssion.
That line of reamnjng we set out in the Counter-Memonal and the
Applicants have in no way attempted to meet it. 1 merely refer the582 3SOUTH WEST AFRICA
Court tothat for the moment-1 do not want to expand upon it at this
stage.
In the alternative we submitted that Article 7, paragraph 2,possessed
a more limited scopethan that held by the Court, that it did not involve
a concept of judicial supervision at aU. FVefurther contended in any
event, that Article 7, paragraph 2,lapsed on dissofution of the League.
These subrnissionswere fully set out in the Counter-Mernorial,XI,at the
pages 1 have given-175-256.
The sub~nissions,of course, Mr. President, related to questions which
were fully debated before the Court in 1962, which were considered by
the Court in 1962 for the purposes of the Preliminary Objections, and
which were pronounced upon in the Judgrnent of the Court and in the
opinions of various judges.
We wiU, therefore, Mr. President, not re-argue these issues now. We
rnerely wish to refer the Court to Ourtreatment of them in the Counter-
Mernorial,and to the answers which we gave in the Rejoinder to points
raised in that regard in the Reply.
The reference to the Rejoinder isY,pages 85-99.For the reasons which
weset out there, Mr. President, wesubrnitted that Article 7,paragraph 2,
was intended only for adjudication of disputes regarding matters in
which League Members possessedlegal rights or interests, and that no
such rights or interests existed in respect of matters affecting only the
inhabitants of the Temtory. We submitted there, further, that the
Article itself lapsed on the dissolution of the League, and that, for these
reasons, Article7, pâragraph z,could play no part in resolving the ques-
tion whether, on the lapçe of Article 6, the whole mandate institution
lapsed. 1 want to emphasize, Mr. President, that it is in that context,
and because of its relevance in that particular sense, that these questions
have been raised and have been discussed at ali.
The scopeofArticle 7, paragraph 2-that is its scopeas opposed to the
question whether it is still in existence-is also relevant to the question
wMandate. Consequently, quite apart from the relevancearagrapwhich othose
questions had to the issue of the Court's jurisdiction, they are also
relevant, 1submit, in relation to the validity of these various contentions
-these various submissions-which are advanced to the Court by the
Applicants. Therefore, although we raise them only within the confines
of the relevance which 1have indicated already, 1submit, Mr. President,
with the greatest respect and on principle, that that cannot bind any
Member of the Court inso far asthe relevance is concerned which that
Member of the Court might wish to assign to these questions, or might
consider these questions to have to the issuesofrnerit before the Court.
This isso,especially,in regard to the question of the scopeof Article 7,
paragraph 2-which covers, in out-submission, only questions of disputes
regarding matters in which League Membershad legal rights or interests
of their own, andnotmatters of the kindwhich have been brought before
the Court in these proceedings.If a Memberof the Court should be of the
opinion that that contention of the Respondent, is a sound one, that
may weli lead that Mernberof the Court to decide that on that basis, I
ought not to give any consideration to any of the other questions raised
in this case, because they must al1be regarded as inadmissible for that
reason, and for that reason alone. The mere fact, 1 submit with respect,
that the Court has, on that question, corneto a decision, for purposes of ARGUMENT OF MR. DE VILLIERS' 583
the Preliminary Objections alone, by a very narrow majority-if 1 may
refer to it, with respect-of eight to seven, surely cannot, in principle,
bind any judge as to the sipificance which he should attach to that
question in regard to the admissibility ofthe claimsnow beforethe Court,
particularly in view of the fact that the Court is now differently consti-
tuted, that it was divided almost on a half-and-half basis on that very
question, and that the question isone that goes to the very root of the
admissibility of al1the claims in the case. 1merely raise that as a matter
which, 1 submit, deserves the very serious consideration of the Court.
1am not nowgoing todeal in any detail with that question. The question
of the scope of Article 7, paragraph 2,will be argued as part of our case
with reference to Article 2,paragraph 2,of the Mandate-the reference
to the question of justiciability of that particular obligation. Apart from
that, 1 shal1give no further attention to the details of those questions,
but shall refer the Court, with respect, to our treatment of thern in the
pleadings.
Mr. President, 1 am now in a position to summarize the various
possible conclusionswhich may be reached by the Court, on the basis of
the conflicting contentions of the Parties in regard to the Applicants'
submissions under consideration-their Submissions I, 2, 7 and 8; in
other words, the questions pertaining to the lapse or existence of the
Mandate, andthe lapse or existence of the obligation of accountability.
The first possibility is that the Court may hd that Respondent was
subject to an abstract obligation of international accountability, as
contended for by the Applicants, and that provision was made in 1945-
1946 fora substitution of supervisory organs. If the Court decides to that
effect,then, ofcourse,that meansaccedingto the Applicants'contentions,
and itwould mean that the Applicants are entitled to a declaration as
asked for by them in al1four of the subrnissians1have mentioned.
to an abstract obligation of international accountability but that noct
provision was made in 1945-1946, or thereafter, for a substitution of
supervisory organs. The result would then be a continuation of' the
Mandate, with an obligation of international accountability in a donnant
or inoperative form. That would then mean Mr.President, in effect, that
the Court would accede to the Applicants' Submission No. r, relating to
continued existence of the Mandate. It would accede, in part, to Submis-
sion No. 2, in so far as that submission relates to the existence of an
obligation of international accountability inthis general form and in this
dormant state. For the rest, it would mean a dismissal of Subrnission
No. 2 and Submissions 7 and 8, in so far as they bear upon a specific
obligation to report and account, and to send petitions, to the United
Nations or its organs.
The third possibility wouldbe that Respondent's obligation of account-
ability was lirnited to specific organs, but that there was severability
between that obligation and the rest of the mandate institution,and that
no provision was made for a substitution of supervisory organs. The
effect of that finding, Mr. President, would be a continuation of the
Mandate without any obligation of accountability. That would mean, in
effect, acceding to the Applicants' Subrnission No. 1, but rejecting
Submissions z, 7 and 8.
A fourth possibility wouId be the same as the third one, in other
words, that Respondent's obligation of accountability was lirnited to 584 SOUTH WEST AFRICA
specificorgans and that no provision was made for substitution, but that
there was no severability between the obligation of accountability and
the rest of the mandate institution. The result would then, be, that the
Mandate would have lapsed. There is, however, further possibility which
1 want toput to the Court as one under this heading (Le.,the fourth one),
which would lead to the same conclusion as the third, and that is, that
although the Mandate would nonnally have lapsed as a result of that
situation, a new arrangement was made at the tjme of the dissolution of
the League whereby the mandatories kept alive certain parts of the
previous mandate institution, in other words, those parts other than
international accountability. That wouid lead, as 1 have said, to the
same conclusion as in the case of the previous one-it would have the
same effect. It would mean acceding to the first of the Applicants' sub-
misThe fifth possibility wouid be the same asthe previous one, Save that
no legally binding engagements were entered into to divide even part
of the mandates as a matter of law, with the result that there would have
been a total lapse of the mandate institution, and that would mean a
dismissal of al1the Applicants' submissions under consideration, I,2, 7
and 8.
The sixth possibility is that, by reason of 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 al1 the claims are inadmissible
and the result would again be rejection of al1 the submissions under
consideration and, indeed, of al1the Applicants' other submissions.
Our contention is, Mr.President, that there has been a total lapse of the
mandate institution, without any revival of any part thereof by way of
biiiding legal engagements and that, consequently, al1these submissions
are to be dismissed, and we contend for that on the basis 1have already
indicated and also on the alternative basis relating to the adrnissibility
of the claims for reasons arising from the scope and possible lapse of
Article 7 (2) of the Mandate. Alternatively, we contend that if the
Mandate exists at all, it exists without any obligation of international
accountability, and we, accordingly, ask on the basis ofthat alternative
submission, that only the Applicants' Subrnission No. I be allowed, and
that the others-Nos. 2,7, and 8-be dismissed. \Ve shaI1later formulate
our submissions formally for the Court, but at this stage I am merely
indicating the alternative effectsof the arguments I have adduced to the
Court.
This brings me to the conclusion of this argument, Mr. President, in
regard to the Applicants' Submissions I.z, 7 and 8, and I proceed to deal
with the next phase of the matter, namely the legal questions pertaining
to the Applicants' case on Articlez (2)of the Mandate-in other words,
Iegal questions pertaining to the Applicants' Submissions 3 and 4. Mr.
President, the major difference underlying the respective attitudes of
the Parties in regard to these legd questions may indeedbe found in very
elementary first principles, whichare so basic that jt jswjth extreme
diffidence that 1 address any argument on this topic ta the Court atau,
but, Mr. President, there is in this regard, in Our very respectful sub-
mission, a completeconfusion ofthought inherent in the manner in which
certain contentions of the Applicants are addressed to the Court. We
drew attention tothis fact inthe pleadings, but we still find arguments
involving that same confusion ofthought being addressed to the Court in ARGUMENT OF MR. DE VILLIERS
585
the course of the Oral Proceedmgs. It is, therefore, necessary for ILSto go
back, very bnefly and with aslittle elaboration aspossible, to fïrst
principles and to indicate where this basic divergence ariseçbetween the
Applicants' approach and ours to these questions pertaining to Article
2 2).
(ihe main difierence seemsto be one both ofconcept and ofterminology,
as regards various processes which are involved in coming to a conclusion
whether a breach of an obligation has been established, or not. Mr.
President, the conclusion on the question of a breach, or othenvise, of an
obligation, would in principle require three elements which would have
to be considered before the conclusion could be arrived at, and 1 state
them in a certain order. Of course, thc order of consideration in each
particular case necd not neceççarily be the same. The first element is a
deterrnination of what the law is; in other words, what is the content of
the obligation? Secondly, a determination is necessary of what the rele-
vant factç are; in other words, a determination of the factsor the trans-
actions to which the law is to be applied. Thirdly, an application of the
law to the facts is required; in other words,a conclusion asto whether the
factç, as determined by the Court, constitute a cornpliance with, or
violation of,the legal obligation. as deterrnined by the Court. Those are
the three steps in the reasoning and it rnay be that in the case of aparticu-
lar problem arising in a particular case, one or more of these steps rnay
be so obvious, or the answer to a particular çtep rnay be such an obvious
one, that it requires very little attention. It rnay be that in some cases
there is no dispute at al1about the facts, or about the significance to be
attached to the facts-the dispute rnay centre entirelyon the question of
the obligation, as to its existence or its meaning, or its content. In other
so plain as virtually to require no interpretation at al1to ascertain its
meaning, so that there can, on the face of it, be no dispute at al1as to
what tlic obligation means and what its content involves. The problems
may, in such cases, arise from the facts, from a roper evaluation of the
factr to which the obligation, as so determinex is to be applied. But,
AIr. President, in pnnciple, no conclusion can be reached without going
through al1three of these processes.
The first step. the determination of what the content of the obligation
is, may jinvolve a number of different techniques, depending upon the
suggested origin or the source of the obligation, or alleged obligation. It
may be, JIr.President, that the suggestion iç that the obligation is to be
found in general principles of law, and in that event, if there is any
dispute about it, it may be necessary to conduct some research into the
sources of the law in order to see what those general principles are. It
may be that the allegation is that the obligation is to be found in an
alleged oral agreement, or an aUegedagreement entered into by conduct,
in which event a factual enquiry rnay be necessary in the case of dispute
-an enquiry whether there was in fact, çuch an oral agreement, or as to
what it involved, or,in the case of an alleged agreement by conduct, an
investigation into al1the relevant aspects of the matter in order to see
whether an implication ofan agreement by conduct, of a tacit agreement
in the circumstances, is justifiecas a necessary inference.
The allegation rnaybe that the obligation is to be found in ndocument,
in which case it is necessary tu go through the ordinary processes of
interpretation of that document, whether it be a will, a contract, a586 SOUTH WEST AFRICA
statute, or a treaty. That is the relevant technique to be applied in that
particular instance.
In the case of the second step, Mr. President, that is, to ascertainthe
relevant facts, different methods, techniques, or approaches may be
applied, in order to =Ive disputes or differences between the parties in
that regard. The facts may be adrnitted, or they may be disputed, but if
they are disputed various systems of law and of practice employ various
methods of dealing with such a situation, and sometimes those methods
involve oral evidence, they sometirnes involve cross-examination and
sometimes do not; they may involve an exchange of affidavits; very often
to a varying extent, they involve the application of judicial knowledge,
inspections in loco,the taking of evidence on commission for the benefifitof
the tribunal which is ultimately to decide the question, inferences from
circumstantial evidence, and so forih. AU those are various techniques
which may have to beemployedin this secondphase ofan enquiry,namely
to ascertain what exactly the factsare and how they are tobe evaluated.
The final step, lfr. President, in açcertaining whether there has been a
breach of the obligation, lies in the determination whether the facts, aç
ascertained by the Court, show cornpliance with the obligation, or a
violation thereof. Normally, of course, this should eventually present no
difficulty; afterthe ascertainment of the law and the relevant facts to
which the law isto be appljed,the problems ought tohave been sorted out,
and it should, therefore, be clear what bearing the law has on the facts.
But, nevertheless, this isa distinct step in logic and a process distinct
from the two former, and it seems, Mr. President, that this is where our
roadç divergedur roads meaning the roads of the Parties to this case.
This is the point at which it seems that the Applicants' contentions
obtain the major confusion of thought, to which 1 have referred and
which 1 shall endeavour to demonstrate to the Court.
nlr. President,ifal1this iç applied to the alleged violation of Article2
(2)of the Mandate, the onlp question that arises at this stage of the
proceedings is a legal one, namely what is the extent of the Respondent's
obligations. It will only be in the next stage of the proceedings that the
Parties will proceed to the second stage, that is,a determination of what
the relevant facts are. The argument at this stage is, specifically and by
design, limited to the first part only; of course one refers to the second
part to be deaIt with later, in order to demonstrate what the important
issues of law are that arise and what the significanceis of what the legal
points we are arguing, because of the bearing they may have on the
factual disputes that are coming before the Court in the next phase. At
this stage, theourtis concerned with a determination ofwhat the laivis,
and we are concerned with contentionsonly in that regard.
And the next stage, Mr.President, namely of açcertaining the relevant
facts, will,as 1 have said, entai1 a much wider inquiry than we indulge
in ai the present stage. It willrequire an evaluation of admissions made
on the pleadings; it will require evaluation of oral evidence, of the facts
disclosed by an inspection,if an inspection should be held; it will involve
the application of judicial knowledge to the extent that may be permis-
sible; it will involve the drawing of inferences of fact from the direct
or the primar sources; and it will only be in the final stage of its reason-
ing that the {OU* will decide whether the faets as deterrnined by it fa11
within or without the ambit of Respondent's obIigations, as also deter-
mined by the Court. ARGUMENT OF MR. DE VILLIERS
587
So, &Sr.President, 1revert to the fact that we are at present concerned
only with the hst step leading to that ultirnate conclusion, namely the
ascertainment of the nature and extent of the obligation; and inas-
much asthat obligation is admittedly embodied in a document or doc-
uments in the mandate instrument read in the light of the Covenant of
the League, its nature and extent fail to be determined by a piocess of
interpretation of those documents. The rules of interpretation in inter-
national law, açthe Court would know, have been evolved with reference
to treaty interpretation, but the same principles, as we have pointed out
before, would apply whether one seesthe mandate instrumentsastreaties,
or asthe result of treaties entered into. On both bases there would be a
principles of interpretation would be the same. We indicated that in our
Counter-Mernorial,II, pages 107-10 8nddealt specificaliywith that parti-
cdar point.
Mr. Preçident, dl this may sound very elementary, but it is necessary
to emphasize it because of the divergence in the arguments. The basic
principles of interpretation which are to be applied, and which appear
to be persistently overlooked or ignored, or misunderstood, orisapplied,
judging by the manner in which the Applicants' contentions are put be-
fore the Court, are: firstly, that a treaty obligation derives its legal force
from the consent of the party bound thereby. The proposition is ele-
mentary. We gave references to some authorities, so far as they may be
necessary, in the Oral Proceedings on the Preliminary Objections, VII,
Pages 37-40.
The second basic principIe is, Mr. President, that interpretation is the
rirocess of determinina what it was that the Parties consented to or. in
Ôther words, the meaiing or the content of their contract. One rnayalso
add the measure or extent of the obligation agreed to, or, if one sees it
from the opposite angle, the limits attached to the obligation. That is
what the process of interpretation is airned at-detemining what it was
in that sense that the Parties consented to.
Now, Nr. President,-and this brings us nearer to our dispute-aneces-
sary corollary of these fundamental concepts is that the treaty mut
always be interpreted to bear the meaning, or to possess the content,
which it had as at the stage of its conclusion. It followsas a coroiiary of
the basic concepts, narnely that it isby the consent ofthe Partieç that the
obIigation is brought into force and that it is by way of interpretation of
that consent that one ascertains what the meaning, the content, and the
scope of the obligation are. Obviously, the consent is determined as at
a particular stage; for the consent was arrived at, at a particular stage-
it is manifested as ata particular stage-and the factual inquiry is con-
cerned with what this state of mind of theparty or parties concernedwas
at that particular time. That isthe only way in which one can ascertain
what the obligation and its scope were. We refer in the Rejoinder, V, at
pages 121-123, to this principle, referred as the principle of contempo-
raneity.The principle has been deiîned by the honourable Member of tKs
Court, Sir Geraid Fitzmaurice, as follows. (We quote a passage which 1s
given in the Rejoinder, V,at p.121.)
"The terms of atreaty mat beinterpreted according to the mean-
ing which they possessed, or which would have been attributed to
them, and in the light of current linguistic usage, at the time when
the treaty waç originally concluded."558 SOUTH WEST AFRICA
1read from a furtherquotation, where the same learned author pointed
out that a failure to apply this principle "would often amount to import-
ing into them [i.e., treaties) provisions they never realiy contained, and
find that quoted at the sarne page of the Rejoinder.ily assumed". We
Mr, f tesident, in addition to the authorities which we have referred to
and which are on record, 1may ah refer to this passage in Schwarzen-
berger, Ider~tiowzl Law, third edition, 1957 ,age 490 (Vol. 1):
".. .the decisive moment, in relation to which the interpretative
function has to be exercised, is the time of the conclusion of the
adopted Fby parties to a treaty are relevant only in so far as they
may throw light on the position at the time the treaty was con-
cIuded."
1 skip and read further:
"...the effect ofjudicial treaty interpretationisretroactive. LVhen
an.international court or tribunal has given its interpretation of a
treaty, 'the terms of the convention must be held to have always
borne the meaning placed upon them by this interpretation'."
These last words, M;. President, were a &otation by the author from
an Opinion of the Permanent Court regarding the Access to theGerma?&
Minority Schoolsin UpperSilesia (xg31S )e,ricsA/B 40, at page 19.
still atpaged490,hto give as a reason for this de,ueamongst others, the
following: "As judicial interpretation relates to the date of the conclusion
of thetreaty, the court or tribunal has merely clarified a situatiwhich,
hypothetically, could have been established at that date." In other words,
hlr. President, the position which arises is this: that the answer to be
given by a court, whenever the question of interpretation anses, however
long that rnay beafter thetreaty hasbeen entered into, must be the same
answer as would have been given if the question had arisen immediately
after the conclusion ofthe treaty. That is essential to this concept of in-
terpretation of a treaty. Different considerations might apply when we
come to later stages of an inquiry, namely questions of application; then
different considerations might arise according to the tirne or times at
which one looks, but when it cornes to the interpretation of assigning a
meaning and a content toan obligation, the only point of time whicli is
relevant, is that at which the treaty was entered into-when the consent
was given. In our Rejoinder we showed that the principle of contem-
poraneity forms part of a \vider doctrine which is called the principle of
inter-temporal law, and that the doctrine isone which isregularly applied
byNow,hlr. President, the Applicants' difficultywith these incontestable
propositions is caused, it seems to us, by the formulation of propositions
which do not accept or do not acknowledgc that the process of interpre-
tation provides only one of the premises-the content of the obligation-
from which the Court draws its conclusion. The second premise is found
in the factsas determined by the Court, and then foLlowsthe conclusion,
bringing into conjunction the two premises-the process, then, of ap-
plying the law to the facts;and this, it appears with respect, is wliat the
Applicants' contentions either overlook, or prefer to ignore. ive find in
the verbatim record at page 260,supra,a statement in which the Appli- ARGUMEXT OF &IR.DE VILLIERS 589
cants refer to a contention by the Respondent. They render their conten-
tion as follows:
". ..that the Mandate must be interpreted in accordance with Re-
spondent's intentions of 1920, and that a contemporary nom is,
what it calls 'subsequent insertion' into the terms of Artic2,para-
graph 2".
The Applicants proceed to say that thiscontention "Kespondent seekç
a somewhat obscure distinction between the interpretation and the ap-
plication of documents".
Mr. President, it does seem to usrather surpriçing that any la~vyer,
and particularly a lawyer appearing before this erninent Court, should
find a distinction between interpretation and application of documents
somewhat obscure. It çeems to us, with respect, Mr. President, that that
distinction liesat the basis of the whole legal process in cases ivhere rights
and obligations are embodied in documents, and if lawyers who appear
before a court to advance contesting propositions regarding the result
ofthe interpretative process andtheapplicationof theprocess tothe facts,
if lawyers who appear in opposing roles in cases of this kind cannot be
agreed about thesefundamentals-as towhat thewholeenquiry isallabout,
then it would seem, with respect, that the do not assist the court-that
their efforts rather tend in the oppositBirection.
The distinction, Mr. President, isone which isreflected in the very
cornpromissory clause in the instrument which is now before the Court,
the compromissory clause which speaks of disputes relating to the inter-
pretation or the application of the provisions of the Mandate. This point
UndertheLeagueofby Nations,rwith reference to thesMavromutisdacase. He
says therc:"...it would appear that a mandatory can be brought before
the Court. ..on questions involving not only the intevpretntionbut the
application of a mandate provision" (italics added). The learned author
has no difficuity in appreciating the signiiîcance of the distincti asn
applied to the Mavromdis case.
Mr. President, in this confusion betwcen the elementary concepts of
interpretation and application of written documents, lies,in Oursubmis-
sion, the key to the confusion apparent in the Applicants' argument re-
garding Article z(2)ofthe Xandate. Wesee it particularly in a contention
advanced in the Reply, IV, at page 515, and which mas repeated in the
present Oral Proceedings on 18 March. The contention was that there
exiçts a-
"judiciallp perceivednecessity to interpret broadly-formulated, con-
stitutional-type obligations, on the baofscurrent standards, rather
than on the basis of the presumed 'intentions of the parties' at the
time the obligations were conferred and accepted". (P. 118, supra.)
1refer, Mr. President, to the concept of a "necessity to interpret broadly-
formulated, constitutional-type obligations, on the basis of current stan-
dards", which is then contrasted with an interpretation "on the basis of
the presurned 'intentionsof the parties' at the time the obligations were
conferred and accepted".
Mr. President, our submission is that the basic principle is clear:
whether a document is of a broadly formulated constitutional type, or5g0 SOUTH WEST APRICA
whether it is of a narrowly fonnuiated, unconstitutional type, its inter-
pretation rnust surely always be based on the intentions of the parties at
the tirne when the obligations were conferred and accepted, intentions
which are to be ascertained by the court in good faith, asbest it can,
by the means at its disposal. Iissignificant, Mr.President, that thisvery
point was stresçed in the Yrivy Councilin 1932 by Lord Hankey, in a case
which arose from problems in the Canadian Constitution-the British-
AeronauticscailCanada, 1932,e AC/54,and 1read from page 70:and Control of
"The process of interpretation as the years go on ought not to be
allowed to dirn or to whittle down the provisions of the original
contract upon which the federation was founded, nor is it legitimate
that any judicial constmction of the provisions, [for instance] of
Sections 91 and 92 should impose a new and different contract upon
the federating bodies."
The statement is very significant, hfr. President, in the first place, be-
cause it applies exactly to a document of the nature described by the
Applicants in their phrase "broadly-formulated, constitutional-type'' of
document. It is significant further because, as Members of the Court
rnight know, Articles 91and 92 of the Canadian Constitution provided
particular problems of interpretation to courts concerned with questions
which arose in regard to them. Those are the two sections of the Con-
stitution setting out the powers of the federal Parliament, on the one
hand, and oftheState or Provincial Parliament ofCanadaon theother; and
instead of adopting the system of assigning to, Say. the federal Parlia-
ment powers (a), (6),(c) and (d) and to the provincial parliaments powers
on al1 matters not assigned to the federal Parliament, or vice versa, the
sections embodied a system whereby the powers to be exercised by the
one and the powers to be exercised by the other were in part described
positively; and the problems which arose, originated from the fact that
there was some overlapping in this description of powers-the descrip-
tion of some powers assigned to the provincial parliaments were,on anal-
ysis, found to overlap on the description of some powers assigned to
courts to solve in particular cases-tos decide whether particular Iegisla-
tion under those circumstances could fairly be said to fa11under the one
or the other, where therewaç in the legislation also an encroachment upon
this overlapping field. The courts, as Members of this Court might know,
evolved in that regard the so-called test of the pith and substance of the
particular legislative measure to decide whether the pith and substance,
as opposed to incidental provisions, fell within the relevant article or
not. It was a difficult test to apply to various cases that arose, the situa-
tions in some cases tending to become even artificial, and it was under
those circumstances that this waming was issued by Lord Wankey,
namely that for al1 the need of having judicial construction of the pro-
visions of sectionsgr and 92 of that Constitution, the fact should not be
lost sight of that the task of the court was to apply the original contract
upon which the Federation was founded, and that it was not legitimate
by any such process of judicial construction to impose a new and a dif-
ferent contract upon the federating bodies.
So, Mr. President, the distinction between documents of the type re- ARGUNENT OF MR. DE VILLIERS
597
ferred to by Applicants and more narrowly formulated documents direc-
ted at more limited purposes doeç not lie in the methods used in inter-
the Applicants in their argument, is found in the results of the inter-
pretation, or in the meaning which the document is found to have and
always to have had inthe contemplation of its authors. It is not a diffe-
rence in type-it is a difierence in the meaning of certain provisions
whch are customarily found in such documents. The difference is this:
that the broadly phrased,constitutional typeof documents,if I mayuse the
Applicants' phrase, arefrequently soworded, and intentiondyso worded,
asto be capable of application toa broad clas of topics, the exact future
manifestation and details of which may have been foreseen,or may have
been unforeseen, or may have been unforeseeable. That is very often the
exact intent and the purpose of the broadly fonnuiated, constitutionai
type of documents-to have a formulation which can apply according to
the intent of its authors to later situatioas they rnay evolve, whether
they are foreseen or not at the time of the execution of the documents.
It was this type of formulation whicli Judge van Wyk had in mind in
the passage to which the Applicants referred in the verbatim record at
page 185, supra, and with which we dealt in the verbatim record at pages
329-331 su,ea. This same approach, with respect, Mr. President, appears
to have been inherent in the statement by the honourable President in
his separate opinion in the case of the Ex+ensesof Ihe United Nations,
which we quote in our Rejoinder, V, at page 134. The quoted passage is
significant, alid 1 wish to read it to the Court. It starts as follows:
"A general de is that words used in a treaty should be read
as having the meaning they bore therein when it came into exis-
tence. But this meaning must be consistent with thepurposes sought
to be achieved. Where, as in the case ofthe Charter, the purposes
are directed to saving succeeding gcnerations in an indefinite future
from the scourge of war, to advancing the welfare and dignity of
man, and establishing and maintaining peace under international
justice for al1time, the generarulenbove stated does not mean that
the words inthe Charter can only comprehend such situations and
contingencies and manifestations of subject-matter as were within
the minds ofthe frarners of the Charter . ..No comparable human
instrument in 1945 or today could provide against all the contin-
gencies that the future shodd hold. A11that the framers of the
Charterreasonably could do was to set forth the purposes the organi-
zation set up should seek to achieve, establish the organs to accom-
plish these purposes and confer upon these organs powersin general
terms. Yet these general terms, unfettered by man's incapacity to
foretcll the future, maybe sufficient to meet the thrusts ofa changiiig
world.
ThenatureoftheazcthorftygranledbytheChartertoeachofits organs
does mot changewith lime, The ambil or scope of theauthorily con-
fmed may nwtetheless corn+rehed evey chsragingcircumstances ad
conditionsand embrace,as history unfolds itself, new firoblemsand
situations whichwere luitand couldnot have beenenvisagedwhenthe
Chartercame into being." (Italics added.)
May 1 break there for a moment, Mr, President? 1 emphasize that the
nature of the authority granted by the Charter does not change with SOUTH WEST AFRICA
592
time, but the arnbit and scope of the authority rnay be such that it may
1 proceed with the quotationch:nging circumstances and conditions.
"The Charter must accordingly be interpreted, whilst in no way
deforming or dislocating its language, so that the authority
conferred upon the Organization andits various organs may attach
itself to new and unanticipated situations and events... Thequestion
whethe~an unforeseen,or extrawdinary, or ab?rormad levelopmentor
situation,or malterrelatingthereto,falls wilhinthe authorityaccorded
toany O/theorgans of theOrganization finds itanmer in discharging
the essentid taskof al1inlerpretation-ascerlaining thenieaningofthe
relevant Charterprovision in its context.The meaning of the text will
be illuminated by the stated purposes to achieve which the terms of
the Charter were drafted." (Italics added.)
Mr. President, ivith the greates respect, this quotation sets forth with
such clarity the principles to be applied and the distinctions to be drawn
in this regard that its hardly necessary to refer to theni any further. The
capacity of the instrument to "comprehend ever changing circumstances
and conditions and embrace, as history unfoids itself, new problems ...
which were not and could not have been envisaged" by its authors-
that, Mr. Preçident, does not arise by reason of changing interpretations
of the instrument-that is made abundantly clear. It anses by fresh
applications of the terms of the instrument to new situations. It arises
frorn the very fact, bZr.President, that the provisions of the instrument
are phrased in an appropriately broad manner, always bearing the same
meaning but capable of applying and intended by its authors to apply
to new situations and problems that rnight arise, whether they were
foreseen or ünforeseeii by the authors at the time of executing the instru-
ment.
Both in the Rejoinder, Jlr. President, and in these Oral Proceedings
me illustrated this point, namely the distinction between interpretation
and application. by postulating a treaty wliich refers to "British pos-
sessions". The meaning and interpretation of the phrase wodd in those
cases not change, whereas its application, in practice, at various points
of time, would produce midely different results.
That brings us, Mr. President, then, to the essence of the Applicants'
argument in this regard: the reliance which they place upon the decision
of the United States Supreme Court in the case of Rrowîzv. TheBoard of
Edztcation. In our submission the fallacy of the Applicants' argument is
perllaps best demonstrated with reference to the very reasoning of the
Court in that case. This was the only authority which the Applicants
quoted for this purpose in the Reply. The Applicants quoted a number of
authorities, but this onewas the only one which seemed to be even super-
ficially relevant to the contention of the Applicants, and it is indeed the
only authority at al1which the Applicants have quoted in these Oral
Proceedings in support of their contention of interpreting documents on
to the very first day of the proceedings, awe tfind in the verbatim record
at page 118, supra.
1 may first just point out that itwas also contended on that day (the
record at p. II~), that Respondent's cornmentary on the Brown case
does not advert to this aspect of its purported application. Mr. President, ARGUMEFT OF MR. DE VILLIERS
593
if the Rejoinder had been carefully read, it would have surely revealed
to the Applicants that we did indeed advert to this aspect and we did
demonstrate in the Rejoinder that this case does not bear out the Appli-
cants' contention. 1refer the Court to the Rejoinder, V, at page 136,and
1 shall restate briefly the basis of the case and its background as we see
it It starts on this basis, Mr. President. The law to be determined in that
particular case and to be applied to the facts, was to be found in the 14th
Amendmerit to the United States Constitution, which was introduced
in 1868,That ameridment, as the Court would know, wasaimed at secur-
ing for al1persons the "equal protection of the 1aws"-that was the domi-
nant phrase. It was aimed at preventing persons being deprived of the
equal protection of the laws.
In 1896the Arnerican Supreme Court held in the case of Plessyv. Fer-
gussonthat it was not in confict with the 14th Amendment for a state
to maintain separate, but equal, educational facilities for different races.
This was a case, therefore, involving application of a particular law to
the facts and of arriving at the conclusion in that regard.
In 1954 in the Browncase the Supreme Court came to a different and
opposite conclusion. Its reasoning in that regard, so far as this present
issue is concerned, appears from certain passages, which are quoted by
the Applicants in the Reply, IV,at pages487 and 514 T.he first one reads
as follows:
"In approaching this problern, we cannot turn the clock back to
1868when the Amendment was adopted,or even to 1896when Plessy
v. Fergussonwas written. We must consider public education in the
Lightof ils fulldeveluPrnent and its present place in Arnerican life
throughout the Nation. Only in this way can it be determined if
segregation in public schools deprives these plaintiffs of the equal
protection of the laivs." (IV, p514.)
The Court further, Mr. President, made a finding of fact that sepa-
ration of negrochildren "generates a feelingof inferiority asto their status
in the community that may affect their hearts and minds in a way un-
likely ever to be undone". (Ibid, p. 487.)
The Court said, in that regard, the following:
"...whatever rnay have been the extent ofpsychological knowledge
at the time of Plessy v. Fergusson,this finding is arnply supported
by modern authority". (Ibid.)
Now, Mr. President, can it, on the basis of this very plain explanation
of the reasoning of the Court, be said that the Court in any way altered
the interpretation of the 14th Amendment of the Constitution-that in
1954 it gave a differcnt interpretation to the amendment-assigned to it
a differcnt meaning and a content from that which had been assigned to
it in r896? Clearly, Mr. President, the answer isin the negaiive. There
is nothing in the passages quoted that even remotely suggests that-
nothing which indicates that the Court's view as to the meaning of the
provision had changed. LVhat is it then that had changed, as appears
ucation and "its.e..place in Arnerican life throughout the nation". What-
had also changed in that regard was the extent of psychological know-
Iedge. These changes related to- SOUTH WEST AFRXCA
594
",.. the subject-matter to which the constitutional provision in
question was to be npplied, and not the content or interpretation
of the constitutional provision itself ...".(V, p. 137.)
Toput the matter concretely, Mr. President, in 1954 the facts concern-
ing public education, as found by the Court in that year, were different
from those in 1896.
As regards the individual; affected, the Court had the bencfit of expert
evidence regarding psychological knowledge, which was not available in
1896.
Consequently, Mr. President, application of the same.principle-the
same constitutional provision being given the same meanmg as before-
to fundarnentally different facts, led to a difierent conclusion from tliat
of 1896.What had changed, therefore, was the facts as appraised by the
Court. The Court appraised the facts as they were found in 1954 to be
different from the facts as they had been appraised and found in 1896
and it was because of that difference in the factual situation that the
ultimate result was a different one from that arrived at before.
We subinit, therefore, Mr. President, that the content of the Respon-
dent's obligation under Article 2, paragraph 2,of the Mandate and the
basis upon which it can be adjudicated falls to be determined by these
sarne ordinary rules of interpretation.
[Public heuringof 14 April1965]
Mr. President, 1 commenced yesterday ~4th Our argument on the
question of the legal issues pertaining to Article 2, paragraph 2, of the
Mandate, and dealt particularly with the Applicants' Submissions num-
bers three and four, based on an alleged violation of that Article. For the
reasons which 1 gave in the introductory survey of fundamental prin-
ciples to be applied inthis regard, wesubmit, Blr.President, that ordinary
principles are to be applied in interpreting that Article. We submit that
the purpose of such interpretation is to açcertain the meaning, the
content and the scope of the obligation, as was intended by its authors
in 1920. We submit that only then can the next stages in the enquiry be
undertaken, namely determination of the relevant facts and the appli-
cation of the obligation, as interpreted in the light of the facts deter-
mined. Mresubmit that it is only in these later stages of the enquiry
that a question may arise asto the application of modern concepts and
standards. It is only then that those concepts rnay become relevant in a
manner which Iveshall indicate later.
As far as this first step of the enquiry is cohcerned, Le., interpretation,
there is, in our submission, clearly no substance at al1in the Applicants'
contention that there is now to be assigned to the obligation a different
meaning, a different scope and a different content from that which was
intended in 1920, or frorn that which wouid have been assigned to it
had this question corne before a court in 1920.
On the basis of true interpretation of the Article, Mr. President, we
contend for a two-fold result, as far as is relevant to present purposes.
We state jtin the alternative, namely that the authors of the Mandate
did not intend the Court to exercisejurisdiction at al1in respect of alleged
breaches of Article 2, paragraph 2, of the Mandate. Alternatively, we
contend that the basis of adjudication was intended to be a limited one
only,limited, that is, to principles analagous to those on which municipal ARGUMENT OF MR. DE VILLIERS 595
courts exercise a powerof review, as distinct from a power of appeal, in
the case of actions of other tribunals, bodies or persons upon whom dis-
cretionary powers have been conferred.
\Ve shalideal with these two contentions in turn and,with your leave
Mr. President, my learned friend, Mr,Grosskopf, \vil1present our argu-
ment of the first of these two contentions. 7. ARGUMENT OF AIR. GROSSKOPF
COUNSEL FOR THE GOVERNME'ITOF SOUTH AFRICA AT THE PUBLIC
HEARING OF 14 APRIL 1965
Alr. President and honourable Members of the Court, as my learned
senior indicated, the matter with which 1 shall deal iç the hst question,
i,e,, whether the Court was intended to have jurisdiction at al1 ta adju-
dicate on alleged violations of Article z of the Mandate. This question
turns on an ascertainment of the intentions of the authors of the Mandate,
read in the light of al1the SUI-roundingcircumstances. For the reasons
set out in theCounter-Mernorial, II, page 384,and passages there quoted,
and the Rejoinder, V, pages 143-157,Respondent submitted that no such
intention existed. These reasons, Mr. President, may be briefly summa-
rized as follou-S.
Firstly, the provisions of Article2 are wide and general, and the de-
termination asto whether they have been complied with would involve
an enquisy into matters of a political and technical nature. Mthough
we concede, Mr. President, that legal questions are often intertwined with
political andtechnical issues, it would be a most unusual function, in
Oursubmission, for the Court to entertain matters of the purely political
nature which would arise from the adjudication of alleged violations of
Article 2-that is. matters concerning the best methods of adrninistering
a territory which, in its nature, is a function afpolitical nature, rather
than a strictly legal one, Consequently, in our submission, Mr.President,
if theauthors of the Mandate intended the Court to perform such a func-
tion, one would have expected them to use explicit language in ordcr to
achieve such a result.
However, not only was there no explicit language, but one finds not a
single reference in the discussions preceding the establishment of the
League and the Mandate-not a single reference at all, Mr. President-
to indicate that such a function was contemplated for the Court.
On the other hand, one does find that express provision was made
for the creation of supervisory organs, to wit,the Permanent Mandates
Commission and the Council of the League, which cornbined both politi-
cal and technical qualifications and were, therefore, in Our submission,
much more appropriate organs for this purpoçe.
We firid, also in our submission, hlr. President, that the nature and
composition of these administrative organs were matters of concern to
the authors of the mandates system, and these questions were settled
only after considerable debate.
Consequently, by reason of the above circumstances, it is, in our sub-
mission, most uniikely that the authors of the mandates system would
have intended the Court also to perform afunction ofensuring cornpliance
by the Mandatory with its obligations under Article 2 of the Mandate.
That, Mr. President, in brief, was the argument we presented in our
pleadings.
Now, in the Rejoinder, V,pages 19-22,and pages 143-146, we pointed
out that Applicants failed, in the Reply, to answer this argument at all.
At no stage in their Reply did they advert to thissimple issue, namely
what did the authors of the Mandate intend in this regard? Indeed, as we
have shown, they went into long discussions to establish propositions
which were not contested by us, siich as that Article z created rights ARGUMENT OF >IR. GROSSKOPF 597
and obligations of a legal nature, and, also, that courts are sometirnes
required to paçs judgment on issues involving technical aspects, and so
forth. Now, we never contested that, Mi- .resident, and the real point
we made was, in our submission, never met.
In these Oral Proceedings the Applicants commenced by denying that
they had in the Reply either misinterpreted or misrepresented Respon-
dent's submission and, after quoting from the Rejoinder and the Counter-
Memorial, they stated, in the verbatim record at page 234, supra, that :
"... careful reappraisal by the Applicants of the foregoing quoted
passages does not, it must be confessed regretfully, yet bring home
to the Appiicants the 'truenature' of Respondent's contention".
However, hIr. President, during the course of the adjournment the
Applicants appear to have been enlightened in this respect because,
able to Say, with conviction and reasonable accuracy-ands' A1equote from
the verbatim record, page 237, supra:
"Respondent's first alternative contention .'.is that, given the
generality of formulation and the 'political or technical nature of
the obligations envisaged', ... it could not have been the intent of
the authors of the Mandate to confer upon the Court the power of
judicial review of disputes invoIving the interpretation or applica-
tion of the article in question."
This is consequently the firsttime that Applicants have, in Oursubmis-
sion, spparently seen fit to reply to the argument actually propounded
by Respondent. In what follows 1 shall attempt to deal with the various
contentions and arguments in turn.
Firstly, Mr. President, the Applicants said that if the Court did not
possess jurisdiction to entertain disputes concerning the application or
interpretation of Article2,paragraph z, it would amount to (and I quote
from the verbatim record, at p. 236, supra) "stripping the obligation of
al1qualities which give it a legal character", and that "disputes concern-
ing asserted breaches ofthat Article., .[would bel 'legalrights',which are
not enforceable, for which there is no rernedy".
The faiiacy in this lineof reasoning, BZr.President, with respect, has
been repeatedly exposed in Our pleadings, and also in these Oral Pro-
ceedings: it lies in equating lack of justiciability with lack of remedy, and
even rvithlack oflegal effects. In international law, in our submission,
Mr. President,there is nothing anomalous in the existence of hgal rights
which cannot be enforced by any court oflaw. Indeed,this position isthe
normal one, provision for compulsory adjudication being the exception.
In cases where no provision is made for compulsory adjudication, it
does not follow that there is no rernedy in international law. The treaty
itself, which creates the obligation, may provide a remedy or a means of
enforcement other than submission to adjudication. In the present case,
it issubmitted that the authors of the Mandate intended the enforcement
of Article 2, paragraph 2, to be in the hands of the Council and the
Permanent Mandates Commission, asan alternative,or rather as a spe-
ciai type of enforcement machinery.
The creation of this form of supervision is, in Oursubmission, a very
strong argument in support of Respondent's contention that the authors
of the Mandate would not have intended the Court also to see to proper598 SOUTH WEST AFRICA
performance of the obligations under the Article, which,in Ourrespect-
fui submission, isa task for which the Court is not really equipped.
Of course, Mr. President, purely as a rnatter of international law, an
obligation would not be divested of its legal effect even if no remedy at
di was specifically provided in the treaty. In such a case, an aggrieved
party would be limited to his ordinary remedies in international law,
but, since that is not the position here, where, in our submission, methods
of enforcements were provided, although not of a judicial nature, that
situation does not caLlfor further consideration.
Now, Mr. President, in the course of our discussion of this topic in the
Rejoinder we had occasion to refer to certain coments by Sir Hersch
Lauterpacht on the possibilities and problem involved in international
protection of certain basic human rights, and, in particular, on the role
which could be played in that regard by an international court. That waç
in the Rejoinder, V, pages 154 to 157.
Applicants attemptto distinguish these commests on the grounds that
they relate to (and11lquote from the verbatim record at p. 237, supra)
than such review of governmental policiescarried out under internationalr
agreements". That isthe distinction which rny learned friends make:
international judicial review of the internal policies ofStates as against,
on the other hand, such review of governmental policiescamed out under
international agreements.
But, Mr. President, in our submission, this is a distinction without
any difference at al]. How can the internai policies of States ever become
the subject of international judiciaI review other than by international
agreement? How is it possible to have international judicial review of
the internal policies of Statesifthere is no convention to that effect?
Whence, for instance, does the European Court of Human Rights derive
its jurisdiction? From a convention,Mr. President.
The situationwith lvhich Sir Hersch Lauterpacht was dehg was, in
Our respectful submission, the very one which Applicants Say applies to
the Mandate, nameIy "difficulties inherent in international judicial re-
view ...carried out under international agreements" (p. 237,su$ra).
And, in the passages quoted, the learned author gave his teasons why
agreements. They may be briefly summarized as followç,Mr. President.ational
Firstly, the point made by the learned author asquoted in the Re-
joinder, V, pages 154 to 155: he notes that criticisms of the rnanner in
which the United States Supreme Court performed its function ofjudicial
review show the extreme delicacy and difficulty of this task of review,
involving as it does the application of law which is "indehiand elastic
in proportion to the generality of its content" (V,p.154) T.he learned
author continues by pointing out that within the national group there
exist restraints upon the unavoidable power of judges which do not exist,
to any comparable extent, in the international sphere. Consequently,
the implications of conferring such powers in relation to governmen!al
policies of sovereign and independent States upon a tribunal of foreign
judges would, inthe learned author's view, be very far-reaching indeed.
The next point made by Sir Hersch Lauterpacht we find in the Rejoin-
der, V, page 155, There he adverts to another aspect of the criticism
which has been voiced concerning the attitude and the functions of the
United States Supreme Court. He notes that the fact of the widespread ARGUMENT OF hIR. GROSSKOPF
599
and emphatic criticism which one finds, even within the United States
of America itself, which is the principal country which has adopted ju-
dicial review, and that the further fact that such a system of review does
not exist at allin manystates, inmanycountries oftheworld,renderitmost
unlikely that any States wouid entrust such pobversto an international
tribunal. In the words of Sir Hersch Lauterpacht himself-"It is aques-
tion of the inherent merits of the system of judicial review both in the
national and in the international sphere" (V,p. 155).
It is instructive, in Oursubmission, Mr. President, to note some of the
examples given by the learned author of States-
"... which have no judicial review within their borders and in which
legal opinion and legal tradition have resisted it vigorously and
succesfully ...".(Ibid.)
The States which have no judicial retiew include a number of States
tem, States such as Belgium, Italy, France and Great Britain. These are
aii examples quoted by Sir Hersch Lauterpacht in his works.
Now, the thirdpoint made by the learned author we find in the Rejoin-
der, V, at page 156.He notes that a judicial organ is not flexibie enough.
inhis view, for exercising powers of supervising obligations of the sort
with which he was dealing, and bvhich are, on Applicants' argument,
analogous to those under the Mandate. The pith of this point is that in
cases of alleged breaches of human rights provisions the learned author
considered that assistance towards conciliation would oiten offer better
prospects of a satisfactory solution than a purely judicial determination
on the legality of the action complained of, which latter function was
the only proper one for a Court.
Consequently, Sir Hersch considered that it would be preferable to
have-
". ..an organ which, although not disregarding the legal aspects of
the cornplaint and although empowered to pronounce on both facts
and law and to rnake a binding recommendation, can avail itself
of the more elastic procedure of conciliation and atternpts at a com-
promise ...".(V,p. 156.)
Fourthly, Mr. President, on the same page we quote the learned author
as saying-
to.enforcement by judicial process....they seem to be the proper sub-
ject matter for ... supervision by a body ...operating through a
procedure more elastic and informa1 than is permissible in the case
of a court".
Lauterpacht, apparentlyt tby a process of completely independent reason-
ing, reached much the same conclusion aswaç reached, in our submission,
by the founders of the League as regards the most appropriate type
of supervisory organ for obligations of this type. Thus, one finds that the
Permanent Mandates Commissionand the Councilwere, in Respondent'~
contention, exactly suited to meet the requirementsset out by the learned
author, being political and technical organs, which directed their atten-
tion more to conciliation and CO-operationthan to purely legal deter-600 SOUTH WEST AFRICA
minations, but which were nevertheles able to express their views as to
legal situations and to act on such views.
It seems clear, in ow submission, Mr. President, that a court of law
would reaiiy be, with respect, an inappropriate organ in such a situation,
even if it existed merely in addition to the ordinary supervisory processes,
since, if the function and the purpose in a particular case were to effect
conciliation, the whole scheme might be upset if a Member of the League
were suddenly to insist upon a strict legal solution of the problem; the
twNow, Mr. President, these various points are not dealt with by Appli-
cants at all; they limit themselves, as we have noted, to a distinction-
which, we submit, is untenable-between the content of Judge Lauter-
pacht's comrnents and the nature of the Mandate. Applicants then pro-
ceed to say in the verbatim record at page 238,supra-
"... scholarly authority haç found little difficulty with the propo-
sition that the authors of the mandates system conternplated that
the Court would exercise powers of judicial enforcement with re-
spect to disputes relating to the interpretation or the application
of any or al1 provisions of the Mandate, including Article 2,para-
graph 2, thereof".
The only scholarly authority quoted by Applicants is Quincy Wright,
and in none of the passages quoted does he, in our subrnission, advert to
the present problem at ail. The closesthe cornesto it isin a statement re-
garding a retated, though not identical, topic, to the effect that:
"League Members have rights in the mandated territories not
only for the protection of their national interests, and theintereçts
of their nationais, but also for the protection of the interests of the
inhabitants of the area." (ProfessorQuincy Wright, Mandates Under
theLeague ofNatiofis(1930p )..475, quoted in the verbatim record
at p.238, su@.)
This staternent deals with the issue as to the scope of the cornpromissory
to jurisdiction. The Court is referred to the Preliminary Objections,n 1,
pages 389 to 394, for a full discussion of Wright's view, and of the views
of other authors on this point, and the Court is aIso referred to the Coun-
ter-hlemorial, II, pages 192to 193,and the r962Oral Proceedings, VII,
pages 223 fi. w,here this rnatter was also dealt with.
From these discussions, it will, in Oursubmission, appear, firstly, that
Wright himself was not very definite on this point, and that he does not
appcar to have given the matter inuch consideration. It most certainly
cannot be said, in our subrnission. that fie found Iittle difficulty about
solving this question in the way Applicants contend.
Secondiy, hlr. President, we submit that the most emphatic and the
best recent analysis on this point by scholarly authorities, is that of
Professor Feinberg, which was quoted by Judge Winiarski in his dissent-
ing opinion on the Preliminary Objections at page 455, and by us in the
Counter-Siemorial, II, page 193. With the Court's permission, 1 should
like to read two short extracts from that statement. Tlie first is:
view on the question,wr1tconsider that the judicial settiement clause
does not confer on Members of the League of Nations the right uni- ARGUMENT OF MR. GROSSKOPF 60 I
laterallyto bring a Mandatory Power before the Court except in
cases where they can allege the violation of some right of their own
or some injury to the interests of their nationals."
It is significant, xvesubrnit, Mr. President, that, later in the course of
his address, the same learned author stated:
"It is indeed difficult to imagine that, by the inclusion of the judicial
settlement clause in the text of the Mandates, it was intended to
give each blember of the League of Nations a power so extensive
that it would enable itto set itself up ascensor of the Mandatory's
administration.'!
However, Mr. President, we do not propose re-arguing, in these Oral
Proceedings, the substance of Our submissions on the former third pre-
liminary objection, although, with respect, we fully abide by them, as
rny learned senior indicated yesterday. This was an issue (i.e., the third
preliminary objection) on which, as we have noted, the Court was very
evenly divided and on which RespondentJs subrnissions are set out fully
in the Counter-Mernorial, II,pages 175-19 to,which the Court is respect-
fully referred. On those pages kvealso discussed brieffy the various opin-
ions and judgments of the Court in this regard.
One important point, however, which we did make in that discussion
and which might bear repetition is that, in Our submission, it could.not
have been the intention of the authors of the mandates system to create
an anomalous situation in which al1 Members of the League would be
entitied to assail measures or policieswhich had been approved by, orhad
even been recommended by, the Permanent Mandates Commission and
the Council of the League. This, in Oursubmission, is a very important
point bearing on probable intention, Mr. President, and it is a point
which the Applicants have never really attempted to answer in these
proceedings.
Now, Mr. President, to deal with a further point raised by Applicants:
they refer again, in the verbatim record at pages 239-240,supra, as in the
Reply, to various cases decided under the provisions of the mandates,
and, inparticular, to three cases-Murra's case,Altshuler'scase and Win-
ter'scase. In the first two cases the provisions for the Mandate for Pales-
tr48. If I may just read them to the Court: out in the Rejoinder, V, page
In Altshrrler'scase, Article15 of the Palestine Mandate was appiied
and this reads as foliows: ", . no discrimination of any kind shall be
made between theinhabitants of Palestine on the g~oundof race, religion
or language." (V, p. 148.)
In Muwa's case, Article 2 of the Palestine Mandate was in issue and
that Article prescribed that"... the Mandatory [shaii bel responsible for
'safeguarding the civil and religious rights of aii the inhabitants of Pales-
tine, irrespective of race and religion'. (Ibid.)
In Our submission, Mr. President, both these articles referred to pro-
hibitions on discrimination on the ground of race, religion or language,
and both constituted specific provisions prohibiting more or less clearly
defined action. Respondent submitted in the Rejoinder that such pro-
hibitions could not be regarded as analogous to the wide provisions of
Article z.,4pplicants, however, dispute thiç contention and, in the ver-
batim record at page 239, supra, they suggest that the correct analogy
between these provisions and the Mandate wvouldbe:602 SOUTH WEST AFRICA
"Like the latter Article [Article2, paragraph 21, the provision of
the Palestine hlandate in question was humanitarian and protective
in purpose, general in formulation, and involved day-to-day adrnin-
istration of the mandated temtory, and accordingly a wide degree of
discretion on the part ofthe mandatory."
Now, hlr. President, as regards this, we Say, firstly, that the words
"humanitarian" and "protective" a ply to al], or nearly ali the pro-
visions of the South West Africa ~landate, and probably to most
of the provisions of the mandates. They also apply to completely specific
provisions, such as those in the South West Africa hlandate regarding
missionaries or fortifications or any of the others-intoxicating liquor,
any of those-so that the mere fact that provisions are humanitarian or
protective in purpose would, indeed, appear to be completely irnmaterial
for present purposes. These qualities do not support, in our submission,
a contention that judicial review was .intended in addition to adminis-
trative supervision, nor, indeed, do they support the contrary conten-
tion that such review was not intended, In our subrnission, they are com-
pletely neutral, they do not bear upon the issue raised by our contention
in this regard at nll.
Now, the second point of anabgy referred to by my learned friends,
is that of generality in formulation. Generality in formulation would, in
our submission, appear to be a matter of degree. However, in this respect
we contend that the difference between the provisions are so substantial
as to amount almost to one kind. 1 shall corne back to that point in a
moment, Mr. President, when 1deal with the last allegedpoint ofanalon.
Now, the fuial suggested analogy is that these provisionsinvolved day-
to-day administration and, consequently, aIso the discretion of the man-
datory. In our subrnission, Mr. President, that does not follow. The fact
that the provisions of the mandates involved day-to-day administra-
tion does not rnean that they involved a wide degree of discretion on the
part of themandatory. The two questions are entireIy distinct. In fact,
the prohibitions set out in the Palestine Mandate constituted specific
limitations on the mandatory's discretion, and were, in that respect,
similar to Articles 3 to 5 of the South West Africa Mandate. They did
not, as was the case with Article 2 of the South West Africa Mandate,
indicate only a goal to be achieved, leaving the method to be employed
to the discretion of the mandatory, and it is the existence and nature of
that discretion which, we submit, wa5 granted by Article 2 (and which,
as 1 understand, my learned friends representing the Applicants do not
dispute, that is, that there was a discretion), which, in our subrnission,
leads to the conclusion either that Article2 was not intended to be justici-
ableat al],or,alternatively, that ifit wereintended to bejusticiable, then it
was to be such onIy on the basis of Respondent's good or bad faith-the
alternative contention with which weshall deal later. Ofcourse, 1am now
dealing only with the firçt contention, namely that, in Oursubmission. it
was not intended to be justiciable ai all.
That, then, is Ourargument concerning the two cases Mr. President.
In addition Applicants relied on a case in the South African Appellate
Division, Winter's case, which referred specifically to Article 2 of the
South West Africa Mandate. In regard to this case Applicants say: "The
Court in that case, therefore, did not refrain from adjudicating the issue
whether legislation was in conflict with the obligations of Article z,para-
graph 2, of the Mandate." (P. 240, st4pra.j ARGUMENT OF MR. GROSSKOPF 603
Now, we dealt with this matter, hlr. President, in the Rejoinder, V,
at pages 149-150. and we pointed out there, firstly. that the Court ex-
presçly gaveno decision on the point whether "... the Courts in S.W.A,
would have jurisdiction to declare rcltra viresany legislation in conflict
with the provisions of the Mandate.. .".So, the Court did not decide the
issue whether it really had any power-any testing power, or power of
review-as far asthe Mandate for South West Africa was concerned.
But, in addition, Mr. Yresident, the Court, in effect, held that Article
2, paragraph 2, imposed no limitation at al1on the full sovereign author-
ity of the mandatory in the respect in question. The Court held that, in
the relevant respects, there was no limitation, that the mandatory had
full sovereign authority to act as it did. Consequently, there could be no
question-and no question could or did arise-whether the legislation
was indeed, to quote Applicants "in conflict with the obligations of Arti-
cle 2, paragraph 2, of the Mandate" (p. 240, supra). If power is full
and sovereign then it can ex hyfiothesinot be exceeded.
Now, consistently with this approach, the court, in Winter's case, did
not conduct an independent enquiry into justiciabiIity of a recital in the
preamble to the proclamation which was in issue and which stated that :
"... the ordinary law of the land [was] inadequate to enable the
government to fdfil its duty in safeguarding the welfare of the
inhabitants ...".
In effect, therefore, the judgrnent taken as a whole, meant no more
and no less than that it was for the legislature, in the exercise of its
sovereign or discretionary powers, to decide on the expediency or neces-
sity of the particular measures, and that it waç no function of the Court
to determine whether those measures were necessary or expedient, or,
for that matter, iawfui.
Now, Mr. President, in dealing with Our contention regarding the in-
tention of the authors of the mandates system on the question of jus-
ticiability by the Court,Applicants alsorefer to the concept of the dcnial
of justice. They did so in the verbatim record ai page 240, s@ra, where
they said:
"The concept of judicial review of international obligations wa~
familiar to the founders of the mandates system. One dlustration
arnong many is to be found in the area of state responsibility for
denial of justice.
This legal doctrine often had been applied to policiesand practices
of executive and legislative authorities, as well as to decisions of
judicial tribunals.
Inasmuch asthe doctrine of denial of justice applies to treatrnent
of aliens, international statal responsibilities often are involved in
the application of the doctrine. International judicial review of
governmental policies and actions with respect to aliens involve
considerations of law and of justiciability analogous in important
respects to governmental policies and practices affecting inhabitants
of mandated territories."
To understand the fdi import of this contention, hIr. President, it
would, in Oursubmission, be necessary to refer also to a further passage,
where the Applicants dealt with this topic. This further passage really
relates to our alternative contention, but, for the sake of cornpleteness
and, also, to get the thread of the argüment, we think we should refer604 SOUTH WEST AFRICA
argument that st"...the concept of discretionary powers iimited by legalhe
norms is weUknown to internat ional judicial tribunals", that such norms
existed as so-calied international norms which govern the treatment by
governments of aliens living within their borders. There are two ways
in which Applicants appear to rely on these rules regarding aliens, and
which may be analysed as foliows: they rely on them, firstly, to show
that the founders of the mandates systein were familiar with the idea
of judiciai review ofinterna1 policiesand practices of States and, secondly,
to demonstrate that international judicial tribunals judge such policies
and practices according to legal norms and not with reference to a test
of good or bad faith. At present we are only concerned with the first
cwtention-the latter wjllbe deali with at a later stage.
Now, this first contention would, upon analysis, Mr. Yresident, appear
to be this, namely that a Statecommits an international delict if ittreats
an alien othenvise than in accordance with certain minimum interna-
tional standards. The argument proceeds that it is no defence for the
State concerned to show that the alien was treated in accordance with
the laws of the State, in exactly the same manner as its own nationals
are treated, if the laws themselves fa11below the minimum standards.
And, the argument goes on, international judicial tribunals must con-
çequently often evaluate the normal internai policies and practices of
a State in order to ascertain whether its system oflaw and administration
complies with such international minimum standards. Al1 this brings
my learned friends ta the conclusion that the authors of the mandates
system were familiar with the conce t of such judicial review, and that
they would consequently have founBit perfectly natural to provide for
judicial review of Respondent 'spolicy and practices in South West Africa.
Now, Mr. President, before proceeding to consider the merits of this
argument, there is one point on which 1 think we may fairly comment,
and that is whether the Mandate made provision for someform of judicial
review. That has been an issue in these proceedings since the Preliminary
question of denial of justice to aliens-and,st tindeed, they elevate it to
their prime example of the type of judicial review which, they say, was
so common that it was adopted in the Mandate \vithout objection or even
discussion. This is thepattern which they suggest the authors of the Man-
date intended to apply to the Mandate. Now, if the rules regarding aliens
were indeed so generally known, and so closely analagous to those of the
Mandate, as is suggested by Applicants, the question arises why it has
taken the Apphcants three-and-a-half years to realise their significance?
Mr. President, we submit that this whole argument is an afterthought,
and that the reason why it was not raised earlierwill become apparent
when its merits are considered.
To substantiate this contention Applicants have, in our submission, to
prove at least two facts-firstly, that the existence and validity of tiie
ço-calied international minimum standards were generally accepted in
1920, and secondly, that judicial review involving the application of
such standards was a common-place and well-known occurrence at that
stage. As to the first question, that is, whether the so-called interna-
tional minimum standards were generally accepted in 1920, we submit
that Applicants have completely failed to establish such a proposition.
In fact,they did no more than quote the views held by Mr. ELihuRoot ARGUMENT OF MR. GROSSKOPF 605
in Igro; that we 6nd in the verbatim at pages 254-255 supra. Now, we
are quite prepared to concede that Mr. Elihu Root, and probably a
number of other scholars, were, at that stage, of the opinion that every
State was obliged, according to international law, to treat aliens in ac-
cordance with a certain minimum standard, but this does not ,of course,
mean that this view was generaily held at that stage, or even that States
generally accepted such a responsibility, or that al1commentators on
international law, or even most of them, accepted that that was the rule
at that stage. In Oursubrnission, thetrue position is that, until relativeljr
recentiy, at least until after1920, the prevalent view was that a State
codd not incur international liabiiity as long as it treated aliens in the
sarne manner in which ittreated its own nationals. This view rnay be,
the Court in that regard to Andreas H. Roth, The MirrimunzStandard refer
of Inte~nationalLaw Applied to Aliens, page 62 and folIowin6. At page
62, the author of this work says the following regarding this theory:
"This theory starts from the major postulate that the alien must
accept the Iegalconditions which hefinds in the country ofresidence,
and that neither he nor his government can justifiably cornplain if
he is accorded, like nationals, the benefit or application of those
conditions."
It suffices, hlr. President, to cite a few instances in \vhich this theory
was propagated, both before and subsequent to 1920. One finds that in
May 1914, four years after the statement by Mr. Roth upon which
Applicants rely, the Arnerican and British Claims Tribunals in the Caden-
headcase spoke of-
". .the generally recognized rule ofinternational law that a foreigner
within the United States is subject to its public law, and has no
greater rights than nationals of that country ". (Anaericanand Bril-
ish Claims Arbitration. Refiorlof Fred K. Nielsen, p. 507.)
In 1926, Mr. President, there was a sub-cornmittee of the Corn-
mittee of Experts for the ProgressiveCodification of International Law,
appointed by the League of Nations, the Rapporteur of which was Mr.
Guerrero, who wrote at the tirne:
"Unless we are ready to overset the one true basis of international
law-the collective will of States-we will not entertain the suppo-
sition that States, when they entered the community, ever contern-
plated an abridgment of the dignity and authority of their o\vn
courts of law. That, however, would be the final result of rehearing
a case where no provision for appeai existed under the legislation of
the State concerned; and yet the advocates of the theory of interna-
tional responsibility, in connection with judicial decision vitiated
by manifest or flagralztinjustice, would inevitably be led to provide
for some such rehearing." (Quoted by Alwyn V. Freeman, The Inter-
natiomalResPonsibilifyofStatesfor Denial ofJustice, p.630.)
On the same occasion Mr. Guerrero also said the following regarding
the treatment of aliens:
"The maximum that may be claimed for a foreigner is civil
equality with nationals. This does not mean that a State is obliged
to accord such treatment to foreigners unless that obligation has
been embodied in a treaty. We thereby infer that a State goes be-606 SOUTH WEST AFRICA
yond the dictates of its duty when if offers foreignersa treatment
similar to that accorded to nationals. In any case,a State owesnoth-
ing more than that to foreigners, and any pretension to the con-
trary would be inadmissible and unjust both moral1 and jurid-
ically." (Andreas H. Roth, The Minimum Standard of fnternational
Law Applied to Ali~ns, pp. 72-73.)
Now that was as late as 1926,Mr.President.
Reference may alsobe made to the viewsexpressed by certain delegates
at the conference for the Codification of International Law, which was
held at The Hague in 1930, regarding the concept of denial of justice.
1 do not wish to read them all, but would refer the Court to one ortwo
of the views. The first is that of the Egyptian delegate,Abd el Hamid
Badaoui Pacha, which one finds in the minutes of the Third Cornmittee,
League of Nations' document C 351(C)&Irqj(C),page 105.Then, I ~ould
alsorefer the Court to a staternent by Mr. Sipsorn,of Roumania (in the
same document at p. II~),and thirdly, the following statement by Mr.
Wu, of China (at p. 187):
"1 have to propose, therefore, a single standard, a definite stan-
dard; that of the treatment accorded to a nation's own nationals.
From the point of view of logic, from the point of view of justic1,
do not see that any nation can cornplain. When a person goes to
another country he goes there with full knowledge of the conditions,
whether they are as good asthose inhisoivncountry or whether they
are worse...
Secondly,hegoesthere uninvited. 1do not think any nation legally
and morally invites foreigners to come to its soil; foreigners go
there of their own accord. Why, therefore, should the Government
of that country be saddled with a heavier responsibility than that
which it has towards itsoivn nationals?"
Now, that, Mr.President, was as late as 1930,that is, ten years, or more,
after the Mandate was founded.
As a ha1 reference to authority on this aspecI quote an extract from
a work, also published in 1930which is cailed ThCanons ofInternationai
Law, by T. Baty. At page 123 the author says:
"It iseaçy to be seenhow this hampers the self-developrnent of a
nation [this being the concept of a denial of justice]. It creates a
privileged class in its midst, whom the laws and the standardsof
the country are not applicable.
...lt is not enough for the modern exploiter that he receives equal
treatment with the native. He demands better treatment, and much
better treatment. He must not only have a due application of the
ders just., but the native law must be such as his Government consi-
So far, the evil has not gained a great hold on the world: .it is
mainly in the area of the Caribbean-in Mexico, San Domingo,
Hayti, Nicaragua, San Salvador-that it has raised its head. But it
is a very menacing phenornenon."
So, in Our submission, Mr. President, it follo\vs that thereisno sub-
stance at al1in any contention that it was generally accepted, round about
1920, that a State's treatment of aliens was governed by so-cdled mini-
mum international standards, hlr.President, the implications are, of ARGUMENT OF MR. GROSSKOPF 607
course, that if the nile required only equality of treatment between aliens
and nationais, then any tribunal determining whether the mie had been
complied with, did not review at al1the rnerits or the efficacy oa State's
machinery-administrative, judicial, or Icgislative: it then had a purely
factual enquiry before it, namely what standard applied and what treat-
ment was available to nationals, and what treatment was given to the
aljen, and, on compariçon, did the alien get similar treatment to, or the
same as, the national-no question as to the merits of the govemrnental
machinery, or policies, of the State would arise at all. So, Mr. President,
once we show that these minimum standards were not generally recog-
nized in 1920 at all, that by itself sufficiently negates any validity the
Applicants' argument might have had. But, Mr.President, we go further
andsaythat, evenif one assumesthat such standards were generally recog-
nized, Applicants would still haveto showthat there was jtbdicialreviewas
regards these standards,and that judicialreviewas regards such standards
was ço common that the authors of the mandates system would, without
discussion and without comment, have applied a similar type of review
to the Mandates. This, in our subrnission, Applicants have also not done.
Judicial review can, in the nature of things, arise only pursuant to ex-
press provision in treaties, and, as far as Respondent is aware, there
certainly were not many treaties providing for adjudication on thetreat-
ment of aliens in 1920-nor, for that matter, are there at the present
stage. And, indeed, Applicants refer to only one case in which suck stan-
dards were applied by a judicial tribunal, and that is the Roberts clairn,
which was considered by the General Claimç Commission in I 26. This,
in our submission, is not surprising, rince the application anldevelop-
ment of the theory of international minimum standards in the judicial
sphere iç generally attributed to this very Commission. Thus, the very
frrst case in which the standards were applied, in a manner to which we
will refer at a later stage of this argument, was decided in 1926-the
case which pioneered this system on which rny learned friends rely was
decided as late as 1926,after the authors of the Mandate had long per-
fomed their functions.
It follows, therefore, in our submiçsion, Mr. President, that, contrary
to what Applicants contend, the concept of judicial review of the interna1
policies and practices of a State in relation to alienç, the concept of ju-
dicial application of so-called minimum standards to a particular State's
treatment of foreigners, was unknown, or at lest virtually unknown,
when the mandates system wasconceived ;and even today, Mr.President ,
as far as we are aware, compulsory jurisdiction regarding allegations of
either.of justice to aliens is not such a very cornmonpIace phenornenon
Now, even the concept on which my learned friends rely, that of
minimum internationai standards, is, in Our subrnission, much more
lirnited than they suggest. Le shall come to that at a later stage when
dealing with the basis upon which Article 2 (2) should be adjudicated,
if at all. At this stage it will sufficeto say that the test to be applied by
a tribunal in determining whether the obligation has been violated is,
for all practical purposes. indentical with the test of good faith which,
as we submit in our alternative contention, is the only test which can be
applied by the Court in deterrnining aileged violations of Article 2 of
the Mandate. However, we shall diçcuss that at a later stage.
In any event, hlr.President, the obligation regarding aliens is on any608 SOUTH WEST AFRICA
basis, by its very nature, a much more lirnited one than the obligation
which my leamed friends suggest applies in the case of mandates. This
is so by virtue of the fact, firstly, that it relates only to aliens, so that if
the government of any country is under an obligation in that regard, the
obligation is limited to a relativeiy small class of perçons. namely aliens;
and furtherrnore, Mr. President, only theStates of which the complainant
alien is anational would have the right to cornplain;there is not at all,
there never was, and there never can be, the very wide type of judicial
review which my learned friends suggest applies in the case of the Man-
date, where every Member of the League could bring the Mandatory
before the Court. One would have, in respect of aliens, the position
matter, either through diplornatic channels or othenvise, or before a
tribunal.
So, for al1these reasons, hlr. President, we submit that this new argu-
ment which Applicant~ have now introduced in the Oral Proceedings in
an attempt to explain the basic improbability inherent in their case, on
this aspect, must fail, as,we submit, must the other arguments in that
regard.
Now, linked up ivith this aspect we have the question of the minori-
ties treaties andthe Constitution and Conventions ofthe International La-
bour Organisation. TheApplicants referred to these instruments at pages
24r-242, supra. These instruments, Mr. President, have been canvassed
very thoroughly inthe pleadings,and itis notnecessary to say a great deal
about them here. As we have shown in the Rejoinder, V,pages 150-151,
and in the Counter-Mernorial, II, pages 137-19 th, content and pur-
poses of these instruments were so vastly different from that of the Man-
date, and the extent of the Court's power so much more limited than is
suggested to be the position in the case of the Mandate, that they tend to
support the Respondent's contention rather than the Applicants. The
features of distinction between these provisions and the Mandate were,
as we summarized them in general, firstly, that clear and express pro-
vision was made in the said instruments for jurisdiction by the Court-
they provided clearly and expressly that the Court was to have juris-
diction-which is not the case here as regards Article 2 (2).The obliga-
tions themselves were, secondly, in Our subrniççion, specific, or much
more narrowly formuIated than in the case of the Mandate. Thirdly, the
obligations applied ina much narrower spkere, thus Lirnitingthe implica-
tions of the Court's powers. And fourthly, a narrower circle of States
possesscd locus standito institute proceedings; in the case of the minori-
ties, locus stand; was confined to the Principal AlIied and Associated
Powers and other members of the Council of the League. As for the con-
ventions under the Internationd Labour Organisation, such as that re-
ferred to by the Applicants in the verbatim record at page 242, sup~a,
only States which had ratified such a convention could invoke the juris-
diction of the Court; so one has the ordinary situation there that only
parties to the particular convention, which provides for jurisdiction, can
invoke the jurisdiction of the Court. But in this regard we refer the Court
respectfully to the more detailed discussion in the Rejoinder and the
Counter-Mernorial, at the pages 1 have quoted. However, in regard ta
the circle of States competent to invoke jurisdiction, there is one point
that 1 do think we shoiild note at this stage, and that is that the only
argument which the Applicantsadvanced to explain the difference in this ARGUMEXT OF MR. GROSSKOPF 609
regard, Le., to explain why there was such a limitation as to States en-
titled to invoke the Court's jurisdiction in regard to minorities, on the
one hand, as against mandates, on the other, was that the intention was
one "of keeping to a minimum the international disputes which might
anse with regard to this question" (p. 241, supm).
Thus, Mr. President, according to their contention, only a limited
number of States were entitled to invoke the Court's jurisdiction in the
case ofminorities because the founders of the minoritiessystem intended
to keep to a minimum the international disputes which might arise with
regard to the question of minorities. The suggestion, if we understand it
correctly, seems to be thata grant of competence to invoke jurisdiction
to more States would have resulted in more international disputes, or,
to put the matter differently, the creation of machinery for adjudication
was regarded as something which wouId tend to give rise to disputes
between the States competent to utilize such machinery.
Now, we have always assurned, Bir. President, that the converse was
the position, narnely that compulsory jurisdiction tended to limit the
number and gravity of disputes, and not extend it. On the Applicants'
contention, carried to itç logical conclusion, the authors of the Mandate
must have been imbued with the intent to increase to a maximum the
international disputes which might arise with regard to this question,
inasmuch as they gave the right to institute proceedings toal1the Mem-
bers of the League: on a parity of reasoning they must have thought that
they wodd thereby provoke a grerit number of disputes, and not lirnit
them. as in the case of the minorities.
Now, Mr. President, Applicants at pages 242-243 supra, of the same
verbatim record, quote further examples of cases of justiciability which
they suggest are analogous to that under the Mandate. These are al1
matters which were dealt with on the pleadings, and it is, therefore,
mission, they are concerned with topics which either are not analogous
to the Mandate-or relate to conventions concluded much later than
the Mandate-in sorne cases, years later, and in some cases more than
a quarter of a century later, such as the European Convention for the
Protection of Hurnan Rights and Fundamental Freedoms. This Conven-
tion is quite an interesting example in itway, Mr.President, because it
shows that even at that stage, even after the Second IVorld War in 1950,
agreement could be reached among the contracting parties only after
much discussion, and only with carefully devised precautions such as
relatively precise definition and the creation of a unique and elaborate
system of enforcement. We note these points on the Rejoinder, V, pages
151-153, and, Mr. President, we also contend there that ifa relatively
cIosely knit number of States required so much discussion and so many
precautions in 1950 t is difficult to imagine how the large number of
States corning from al1 parts of the world which created the Mandate
and the League in xgzo could have introduced a system of judicial re-
view much more far-reaching without any discussion, without any com-
ment, without anydebate. Inoursubmission, Nr.President, the comparison
between the two instruments and the rnanner in which they were drafted
clearly shows up a weakness in Applicants' case, and not in Rcspondent's.
In thelight of what I have said, Mr. President, it is in our submission
remarkable that Applicants can Say,as theydo at the end of the discussion
of this matter-page 243, supra, of the same verbatim record: SOUTH WEST AFRICA
"In the premise then, Mr. President, it is not at al1surprising,
given the numerous examples and wide knowledge and acceptance
of,the principle of international judicial review of govemmental
policies,including those encompassing political, economicand tech-
nicalaspects,that theauthors ofthe mandates system not only should
have bestowed a like power upon the Permanent Court, but that
they did so without objection and even without discüssion."
In fact, we submit that the Applicants have not produced any examples
at al1of "international judicial review of governmental policies" prior
to the establishment of the Mandate. Prior to the Mandate, in our sub-
mission, there \vas nothing of thesort, and Applicants donot, in our sub-
mission,quote any examples of such judicial review existing at any tirne,
prior to or subsequent, which is as far-reaching as that which they
suggest was included in the Mandate "without objection and even with-
out discussion".
Thankyou, Mr. President. 8. ARGUMENT OF NR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC
HEARINGS OF 14-26 APRXL 1965
Mr. President, if it were to be heId that the Court was intended to
possess jurisdiction regarding disputes arising from the interpretation
or application of Articlez of the Mandate, even in cases where no inter-
ests or rights of the Applicant States are directly involved, then the
question arises as to the basis upon which such alleged breaches of the
Article fail to be considered by the Court-the basis upon which the
Court isto determine tvhether or not violations of the Article have been
committed.
Mr. President, the nature of the problem arises immediately from the
very wording of the Article, from that broad, general formulation:
"The Mandatory sliall promote to the utmost the material and moral
well-being and the social progress of the inhabitants.. ,It does not Say,
Mr. President, that the mandatory shall build so many schools every
year. It does not Say that the mandatory shall make roads. It does not
say that the mandatory shall build dams, that it shall provide for eco-
nomic developrnent of particular areas and it does not specify how many
hospitais are to be built, how rnany factorieç, which industries are to be
developed, and so forth. Those are the types of matter which are encom-
passed in the whole objective, as set out in the Articleof promoting to
the utmost material and moral well-being. Now it may happen that the
mandatory in a particular period has built, Say, 15 schools and two
hospitals. 1s the Court to Say to the mandatory, "l'ou ought to have
built more hospitals and less schools", or "You could have done better-
you could have built more schools and more hospitals", or "YOUgave
too much attention to education in this period and too little to economic
development"? I am just mentioning examples, Mr. President. On what
basis does a court determine that it can say things of that kind to a
mandatory, when the function of governing the country has been given
to the mandatory, and the function of promoting well-being and prog-
ress to the utmost has been committed to the mandatory's charge?
That is the type of questionwhich immediately arises here, ina practical
way, and, therefore, the question arises, if the court isto have a function
of adjudication at all on the conduct of the mandatory, what is the legal
basis of that adjudication to bel This, of course, involves a pure question
of interpretation of the obligation in its setting in the mandate-inter-
pretation, that is,on the principles which we have discussed. And we
find, Mr. President, that the confusion which is inherent in the Apph
cants' argument again manifests itself hcre-the confusion between
interpretation and application. It leadç them to attribute an argument
to us which we have never used: we find itin the verbatim record at
page 118, su+va, and it reads-
"... that the scope and content of its obligations [that is, Respon-
dent's obIigations] under Articlz, paragraph 2, should be measured
essentially on the basis of standards prevailing in 1920, when the
Mandate was conferred".
Mr. President, we never contended for anything of the kind. We contend
simply that Article z,paragraph 2, should be interpreted to bear the612 SOUTH WEST AFRICA
meaning it borein 1920,and, therefore, to have the scope andthe content
intended by its authors. Whether Respondent should maintain standards
prevailing in 1920,or standards prevailing in 1965 ,r to what extent
standard ester into the picture atall, depends, Mr. President, on the
question of the meaning, the scope and the content which the Article
had in 1920, which it has in 1965 and which it wdl still have in 1975,
if not modifiedin the meantime.
Mr. President, the question under discussion is then, what is, in the
sense which I have indicated, the correct interpretation of Article z in
regard to the basis upon whch allegedviolation of its provisions is to be
deterrnined.
1 speak purposely in this regard of Article2, the whole of Article2,
because 1subrnit that it isonly on consideringthe Article as a whoand,
of course, also in its context in the mandate instrument as a whole, read
against the background of the Covenant, that one can properly assign
an1 shall ded, Mr. President, with this question of interpretation for
present purposes, in the followingorder. First, with the true interpreta-
tion which, in our contention, is to be put on the Article, regard being
had at the same time to comment and criticisrn of that interpretation
which have been offered by the Applicants' representatives. Se,condly,
1 shall proceed to consider the so-called interpretation offered by the
Applicants themselves.
Now, Mr. President, in regard to Our interpretation, the Court will
recall thatwe sumrnarized our contentions by way of certain proposi-
tions, set out at pages 157-15 of the Rejoinder (V).]Te called them
simple propositions, simple. of course, in the sense being elernentaq-.
We were not thinking of Simple Simon.
It may be useful, in the light of what the Applicants have said in this
regard, to begin the discussion by referring again to the wording of those
propositions as they are summarized.
At page 157,proposition (a) read:
"Respondent was granted 'fuUpower of legislation and adminis-
tration'. Such grant necessarily entailed that Respondent was
required and entitled to use its discretion as to the need for and the
manner of the exercise of its powers."
It was, therefore, necessary to use discretion in that regard-inregard
to both the need for and the manner of the exercise of the powers.
Proposition (6) reads:
"It is of the essence of a discretionary power that an act pur-
ported to be in exercise thereof is not illegal unless itis contrary to
some legal provision regulating such exercise, or exceeds the limits
expressly or by implication placed upon the pobveNo regrclatmypro-
visions were imposed in respect of Respondent's powers under the
Mandate, thus Ieaving only the question as to the nature of the
limitati ionposed by Article 2, ~aragraph 2."
The statement that no regdatory provisions were imposed is qualified
by the footnote, to this effect, that:
"2For present purposes the limitations expressed in Articles 3, 4
and 5 of the Mandate. ..are not relevant and are therefore not
mentioned." ARGUMENT OF MR. DE VILLIERS
613
They are, of course, particular limitations upon the power of the Manda-
tory. They do not, however, affect the issue for the moment, asfar as
Article 2,paragraph 2, is concerned.
kIr. President, in regard to these statements, as contained in our
propositions (a) and (b),the Applicants, according to theverbatim record
at page 243, supra, stated that the propositions "appear unobjectionable,
subject only to certain cautionary comment", which 1 need not refer to
further at this stage.X shalrl efer to it later.
The Applicants' real difficulty with our propositions, concerned pro-
positions (c)and (d), which 1 shall now read:
"(c) The only Iimitation placed b Article 2, paragraph 2, on the
discretionary power vested insespondent was that such power
should be exercised for the purpose of promoting to the utmost
the well-beingand progres of theinhabitants of the Territory."
(V,P. 157.)
And proposition (d) :
"(d) Consequently the Court can determine whether a legislative or
administrative act or policy constitutes an infringement of
Article2, paragraph 2,only by exarnining whether or not the
exercise of discretion involved in such act or policy, was di-
rected at the purpose ofpromoting to the utmost the well-being
and progress of the inhabitanis. Such an examination would,
in the circumstances, involve an enquiry as to the good or bad
faith of the Mandatory." (Ibid., pp.157-158.)
Now, Mr. President, the comment of the Applicants on these pro-
positions (c)and (d) is in the verbatim record at page 243, supra, and it
was, as the Court will recall, a highly excited one.The general comment
was this:
"Propositions (c) and (d), however, are destructive of the sacred
trust and rob the obligation to submit to international supervision
of any meaningfui reality."
Afterquoting proposition (c) ,Mr.President, mylearned friend, Mr.Gross,
proceeded :
"Respondent's insertion in the formulation of the phrase 'for the
purpose of promoting' is, of course, a gratuitous gloss on Article2,
paragraph 2, and vitaliy alters its character. The actual terms of
that Article embody no such express or impIied limitation, contain
no reference to the purpose of promoting, but state a flat and
unqualified obligation that Respondent 'shaii promote to the
utmost', and so forth, in the words of the Article. In view of that
fact it may be fair to comment that Respondent's formulation is
not rnerely a gratuitous gIoss,but implies a unilateral and off-hand
modification of the terms of that provision."
At the next page (p. z44) ,fter proposition (d) had been read, the
further comment was:
"Therefore, the amendment of Article 2,paragraph 2, implicitin
proposition (c) is a vehicle for irnporting into the Article the good
or bad faith test, as is made explicitly clear in proposition (dJwhich
1have just quoted."614 SOUTH WEST AFRICA
The issue then, Mr. President, iç fairly joined on ou. formulation in
obLigationin conjunction with one another, with reference to a concept
of purpose. That is said tobe a "gratuitous gloss" and the unilateral and
off-hand modification of the terms of the provision.
Now, Mr. President, in our çubmission, these comments show a com-
plete lack of understanding, or of acknowledgement, of two matters,
firstly, of the ordinary legal relationship, logical relationship, between
the powers of a tmstee and the obligations of a trustee and, secondly,
Mr. President, of the principles upon which violation of a discretionary
function can be held to have occurred. Those are the two basic concepts
underlying the whole problem, here, the two concepts to be borne in
mind, and the Applicantç' comment, I submit, shows no acknowledge-
ment of those concepts at all,nor of the principlesinvolved in that regard.
Let us take the first one-the relationship between the powers andthe
obligations ofa trustee.We have, in that regard, verypertinent comment
expressed by the former President of this Court, Sir Arnold McNair,
in hs minority opinion in 1950.1 read a quotation from page 149 of that
opinion :
"The Anglo-American Trust serves this purpose, ... [of] the
vesting of property in trustees, and its management by them in
order thatthe public or some class of the public mayderive benefit
or that somepublic purpose may be served." (I.C.J. Reports 1950,
P.'49,)
In other words, the following is the function or purpose which the trust
serves: property is vested in trustees; powers of management are given
to trustees for a purpose, the purpose being public benefit, or the serving
of some public purpose, asexpressed by the learned judge.
1 quote at the same page this further passage:
".. . the tniçtee, tzlteur or curateur is under some kind of legal
obligation, based on confidence and conscience, to carry out the
trust or mission confided to hm for the benefit of some other persan
or for some public purpose;".
functions, and powers which are given and the purpose for which they
are given.
The next quotation 1 wish to read, appears at page 150 ofthe same
opinion :
"... the measure of its powers [now these concepts are appfied to
the Mandatory, and when Sir Arnold McNair says 'its powers' in the
context it means the hlandatory's powers] is what is necessary for
given to him in order to achieve the work assigned toers] are 'tooIs ,
Mr. President, this quotation which ha often been çtressed by my
learned friends in another context, indicates exactly the relationship
which we contend to exist between the powers given to the mandatory
and the mandatory's obligation. a relationship of purpose, of object .
1 am not tied to terminology. \Ve could talk of a purpose; we could talk
of an object; we could çay they are given to him in order to achieve the
woSo, Rfr.cPresident, already there is an indication that if we have put ARGUMENT OF MR. DE VILLIERS 615
any kind of a gloss, gratuitous or otherwise, on this Article, then we
seem to be in very good Company. But the matter does not end there.
1 refer, Mr. President, to another work to which the Applicants have
often referred in these proceedings-the work entitled l'ha Mandates
System: Origin, Principles, A$plicalioîr-a League of Nations publica-
tion. 'lVerefer to in the Rejoindcr, V, at page20,where there is set out
the comment, that the sacred trust principle in the mandates syçtem
relates to ". ..the fundamental objectiveof the mission undertaken by
the hlandatories".
It is quite natural on the part of aii these commentators to speak of
the sacred trust principle, of the obligation to promote well-being and
progress, as being the fundamental objective of the mission or of the
mandate undertaken by the mandatories.
We refer at the very same page to an extract from a well-known
report by Mr. Hyrnans in the League tirne-
"[plaragraphs I and z of Article22 have indicated the spirit which
should inspire thoçe who are entrusted with adrninistering peoples
not yet capable of governing themselves ...".
Again, there is the same concept of an objective, of a spirit.
Now we come to the rnajority opinion in1950 A.t page 132 thereof we
find this formulation:
"The Union Government was to exercise an international function
of administration on behalf of the League, with the object of pro-
moting the well-being and development of the inhabitants."
(I.C.J. Reports1950 ,. 132.)
Again, Mr. President, the relationship is expressed in the phrase: "with
the object of." As 1 have said, 1 am not wedded to terminology. I am
perfectly prepared to substitute "object" for "purpose".
At the same page we find the following said by the Court:
"The Mandate was created, in the interest of the inhabitants of
the territory, and of humanity in general, as an international
institution withan international object-a sacredtrust of civiliza-
tion."
At page 133the Court said,after referring to the obligations contained
in Articles2 to 5 of the Mandate:
"These obligations represent the very essence of the sacred trust
of civilization. Their raison d'êtreand original object remain."
(I.C.J. RefiorlsI950,p. 133.)
So, Mr. President, if my learned friend speaks of a gratuitous gloss he
codd now begin to indicate whose gloss he is talkh of.
We cometo a passagewhich appears at page 152of firArnold McNair's
minority opinion i? 1950 ,n wl-uchhe cited a statement by Chief Justice
Latham of Australla, which read as follows:
"The mandatory, as a kind of international tmstee, receives the
temtory subject to the provisions of the mandate which limit the
exercise of the governmental powers of the mandatory." (I.C.J.
Reportsrg50 ,.152.)
In'other words, Mr. President, there is, again, the concept that the
relationship between the powers, on the one hand, and the provisions,6~6 SOUTH WEST AFRIGA
providing for obligations, on the other-a relationship of obiigations
limiting thepowers.
In the 1962 Judgment, at page 329, we find the Court using this
description "[The mandates system] ... is dedicated to the avowed
object of prornoting the well-being and development of the peoples
concerned: ...".1 quote again at the same page of the 1962 Judgment:
"The rights of the Mandatory ...are, so to speak, rnere tools given to
enable it to fuüii its obligations."
Again,Mr. President, we find the same concept in that phrase "tools
given to enable it". The tools were given for a purpose-with an object
of bringing about fulfilrnent of obIigations.
Still at the sarne page, 1 quote again from the 1962Judgment:
"... each Mandate under the !Mandates System constitutes a new
international institution, the primary, overriding purpose of which
is to promote 'the weU-beingand development' of the people of the
territory under Mandate".
This very explicit statement and formulation, Mr. President, accords
exactly with our contention. The powers were given in the first portion
of Article 2.and were limited with reference to a purpose, the purpose
being the sacred trust. This principle had alreadybeen set out in Article
22 of the Covenant of the League, and was then re-formuIated, in the
second portion of Article 2 of the Mandate, as an obligation imposed
upon the mandatory .
So, Mr. President, nothing of the nature of a gloss is involved in our
contention, which merely contains the ordinary natural description
given by any commentator to the reIationship between the powers of a
trustee and the obligations imposed upon the trustee. Powers are given
for the purpose of complying with the trust-with the object of corn-
obligations.he trust-and complying with thetrust means fulfillingthe
\Ve have, quite naturaliy, a similar formulation by Lord Hadey in
a passage which we cite in the Counter-Memonal, II, at page 388, a
passage which was written in 1946 by Lord HaiIey, specificaiiy ,with
regard to Native Affairs in South West Africa:
"Tt need hardly be recaUed that the Mandate did not itself set
forth the methods to be pursued in the conduct of Native Affairs.
Article22 of the Covenant of the League pIaced on the Mandatory
a general obligation to consider the well being and development of
the population whose tutelage it had undertaken. The Mandate
laid down that whiIe the Mandatory should have full power of
administration and legislation over the territory as an integral
portion of its own territory, it shouId promote to the utmost the
material and moral weil being and the social progress of the inhabi-
tants. The primary object of this provision was clearly to protect
the interests of the Native inhabitants of the temtory ...
In regard, however, to the policy to be observed,in Native Affairs
the prescriptions of the Mandate, where they were in any sense
precise, were of a negative rather than a positive character. Thus
it required the Mandatory Government to prohibit the slave trade
and the supply of intoxicating beverages to Natives, to control the
traffic in arms, and to permit forced labour only for essential works
and services. It prohibited the military training of Natives, Save ARGUMENT OF MR. DE VILLIERS 617
for purposes of interna1 police and local defence, and it guaranteed
the free exercise of al1 forms of worship and the free entry oali
missionaries belonging to any State member of the League of
Nations. Bat in otlrerres ectil le/t the Madatory Govmment lo
interpf thtmethods by w Richitsud prmte Ih.ewelelezngofthe
Natives otheterritory.Thusztrmi~ed for itto fiameits ownfiolicy,
within thisgeneralobjectiivner,spect of rnatters such as the control
over land, the system of justice, the procedure of taxation, the
extent to which regard should be had to native law and custom,
the provision to be made for the social seMces of health and educa-
political institutions of the country."Native population in the
Al1the matters, to which the last portion of the quotation refers, were
left to the discretionf the mandatory. The mandatory was to frame
its o\vn policy with regard to them, but within the general objective, the
general objective being, as stated by the learned author, to promote the
well-being of the Natives of the Territory.
So, Mr. President, any formulation which we choose, in that regard,
i.e., in relating the powers of the mandatory to the obligations of the
mandatory-whichever way we try-we must corne to a concept of a
use to express that concept.elationsofpobject, whatever words wernay
And that brings us to the second part. The second aspect which, 1
submit ,was completely overlooked by the Applicants in forrnulating
their submissions, relates to the principles upon which a discretionary
power-a discretionary function-isexercised, and the principles upon
which itcan or cannot be said that there has been a violation of an
obligation involved in such a discretionary function.
In that regard, Mr. President, 1 should, first of all, like to refer the
Court to the wording of Article2 of the Mandate itself:
"The mandatory shall have full power of administration and
legislation over the territory subject to the present Mandate as
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 modificationsascircurnstances may requirc."
First,.Mr. President, there is this general concept of full power of
administration and legislation vested in the mandatory. Now, surely,
enableoacgovernment properly to exercise its power of administration
and legislation. It is of the essence of al1 our concepts regarding the
nature of governmental powers that a government, upon which powers
of administration and legislation conferred in a broad general formula-
tion of this kind are, is not only entitled,t also obliged, to use its
discretion in deciding what it shouid do by way of exercise of those
powers, what particular acts it should decide upon, which courses it
should pursue, which it should leave, and, particdarly,the manner in
which it wiU pursue any particular action.
That is part and parce1of the general concept of a full power of govem-
ment-a full power of administration and legislation.
Sccondly, we find, itis stated, that the mandatory 'hay apply the
laws of the Union of South Africa to the TemtoryJ'-not "shail" but
"may". Who is to decide whether any particular law of the Union of6x8 SOUTH WEST AFRICA
South Africa is to be applied to the Territory or not? The rnandatory is
to decide. It is required of the mandatory to use its discretion in deciding
whether a particular law isor is not to apply. And this concept issubject
to the limitation expressed in the words "çubject to such local modifica-
tions ascircumstances may require". In regard to this Iimitation the
same principle applies. Who is to decide whether the tax to be levied in
South West Africa is to be the same asthat in any of the provinces of
South Africa. Surely that is, in essence, amatter in the discretion of the
authority to whom full power of administration and legislation has been
given, namely the mandatory.
So,blr. President, the basic concept which we have is that of a discre-
tion inherent in this grant of power. The only further question which
could arise is a matter of interpretation, namely as to what extent that
discretion was limited, by any of the other provisions of the Mandate,
and inparticular, forpresent purposes, bytheprovisionsof the secondpara-
graph of Article 2 of the Mandate. 1 shdl corneback to that in a moment.
First,1 would like to refer the Court to the very explicit recognition
that has been given by various commentatorç to this factor of discretion,
and to its importance. We refer the Court first, to a statement by Chief
Justice Latham of Australia in the same judgment mentioned previously.
Fie quote it in the Counter-Mernorial, II, at pages 387-388,After stating
that "In the case of 'C'Mandates ... the mandatory powers . ..has
to the mandate as an integral portion of its territory", and, after further
discussion, the learned Chief Justice stated, Mr. President, "It is clear
thut itwas intended tht 2.nth case of 'C'Mandates, the fzrllest$owersof
governmentshuld beconferredupm themandatory powe~.".(Itaiics added.)
We proceed to a quotation from a statement by M. Orts, a member
of the Permanent Mandates Commission, contained in the minutes of
the Ninth Session of the Permanent Mandates Commission:
"The development of primitive peoples could be carried on by
different means, and these means would be such as were proper to
the native genius, traditions, and the political and philosophical
conceptions of each mandatory State. The mandatory States would
fail in their task if a system and method foreign to their mentality
were imposed upon them.
The duty of the Commission was confined to discovering whether
the rnandatory powersconformed to the dehite obligations imposed
upon them by the Covenant and by the mandates, and in addition,
whether, within the limits of these acts, they were honestly fier-
fornimg theirtaskin order to justify the confidence reposed in them."
(Italicsadded.) (II,p. 388.)
The statement provides, bir. President, an exact confirmation of our
contention as to the manner in which the mandate instrument is to be
interpreted, namely as containing a full grant of powers of legislation
and administration, carrying with it all the discretion necessary for that
purpose, subject only to such limitations asare indicated later in the
same instrument. These comprise a general limitation in the second
paragraph of Article 2, and specific limitations in Articles 3 to 5. As this
learned member of the Commission said, those specific, definite 'obliga-
tions were to be complied with and, in addition, the mandatories were
charged with the obligation of honestly performing their task, in order ARGUMENT OP MR.DE VILLIERS
619
to justify the confidence reposed in them. The discretion, therefore,
inso far asthere is not a specific provision to the contrary, remains,and
it remains both in regard to the exercise of a power and in regard to the
cornpliance with the obligation-the general trust obligation-imposed
in Article2 of the Mandate. We refer, in that regard, also in the Counter-
Mernorial, at page 388, to a statement from Quincy Wight, reading:
"... the prescriptions of the Covenant and of the mandates Vary
greatly in defmiteness. Some regulations like those on slave, arms
and Liquortraffic, military bases, recruiting, and the open door are
quite definite; but, on the other hand, certain principles like 'the
weii-being and development' of the inhabitants . ..are so vague as
to admit of a broad variety of policies."
Again, Mr. President, there is the same concept. The learned author
brings the broad g-rant of a discretionary power into conjunction with
the broad obligation of promoting to the utmost material and moral
well-being. Accordingly one has a full retention of discretion in the whole
concept, because there is, apart from Articles 3 to 5, nothing which
prescribes exactly what the mandatory is to do, what it is to leave, and
in what manner it is to act in achieving this generai obligation imposed
upon it.
That is the essence also of the statement which 1 have already read
to the Court from Lord HaiIey which is repeated in the Counter-Memo-
rial,II,at page 388. In addition, we quoted in the Rejoinder, V, a com-
mentary from Benttvich on the mandates system; that is at page 158
and reads: "No attempt is made in the Mandate documents or by the
Mandates Commission to lay down any particular system of government
applicable in these territories. The Mandatory in this respect has a free
hand, and may introduce such measures of autonomy as he thinks fit.
The guiding principle is that the Government must have vviewthe
interests of native inhabitants. Great variety in the system of adminis-
tration, infact, exists, even within a single country under mandate, and
srne of the mandated territories have indeed been divided by the
Mandatory for legislative and administrative purposes." (Italics added.)
save and except where there are specific provisions to the contrary.tion,
Now, Mr. President, the essence of a discretionary power in our sub-
mission is that the holder thereof is entitled to exercise a choice on the
question whether particular measures or action are to be taken, or
~vhether they are not to be taken, whether others are to be taken in
prcference to them, and particularly as to the manner of canying those
measures into effect.
The essenceof this matter is that the holder of the discretion is entitled
as of right to make that choice. And it follows,hlr. Yresident, thatifthe
discretion is an absoIute one, in other words, if itis not subject to any
restriction at all, the holder is entitled as of right to exercise his function
in whatever manner he thinks fit as long as it still, asa matter of con-
cept, constitutes the exercise of his function and does not really con-
stitute something clse.
Tt follows, Mr. President, that any action taken in the exercise of the
discretionary function would in those circumstances be legal; or, con-
versely, that no action taken with s vie~ to exercise of the discretionary
function could be regarded as illegal. In principle, the situation in this620 SOUTH WEST AFRICA
regard is the same aiso where one baslimitations on this question,
except that then the field in which the discretion operates is narrowed
down. Where one has specific provisions saying howdiscretion is to be
exercised inparticular instances, thcn, of course, those are to be observed.
Where there are general directions as to the manner in which a discretion
is to be exercised, or as to matters to which regard is to be had in the
exercise of a discretion, al1 those cm constitute fetters or limitations
upon the total area in which a discretion is to be exercised. However,
even after a11the fetters have been taken into account, there remains a
residuum, and within that residuum where no specific provision applies,
the exercise of a discretion is required and authorized.
Mr. President, it does not, therefore, matter as a matter of principIe
whether we are dealing with a situation where there are some limitations
upon discretion, or with one where there is none. As soon as we have
isolated the residuum from the limitations, then we corne into a sphere
where, when the Mandatorp acts honestly with a view to fullilling his
function, he acts legally. There is then no basis upon tvhich it can be
said that he is not acting legaliy, because he is doing not only what he
is entitled to do, but aIso what is expected of him.
Consequently, Mr. President, it should be emphasized at this stage,
gives rise to the basic consequence for which we contend in respect of the
obligation contained in paragraph 2of Article 2,namely the consequence
that the Court is not entitled to express a judgment on what it regards
asthe merits of an exercise of the discretion, but that the only function of
the Court is to detemine whether or not any of the limits imposed
in regard to the discretion were exceeded. Of course, if the Court were to
find that, on a proper construction of the instrument, some limitation
wasimposed either expressly or by necessary implication on the Manda-
tory's discretion, and that that limitation has been exceeded, then of
course there is a basis upon which the Court can Saythat the Mandatory
has acted in violation of its obligations. But if the Court finds that the
Mandatory has remained within the sphere of its discretion, there is no
legal bais upon which the Court can substitute its discretion for that
of the Mandatory. The Court will, therefore, in those circumstanceç
give to the merits of the Mandatory's actions only such consideration
as may be necessary in order to see whether any limit has been trans-
gressed at all. It will not, however, give to the rnerits of a decision the
type of consideration which is gven by an appeal tribunal. It will not
decide whether, if it had to decide that question for itself, it would
decide it in the sarne way as the Mandatory decided it. The Court's
function is not that. The discretion, the function of governing, was
given to the Mandatory and the Mandatory isto exercise it, not the
Court. If the Mandatory exercises its discretion within a sphere in which
it was intended that the Mandatory should exercise it, the Mandatory
acts legaIly, and whether the Court thinks it acts wisely, or whether the
Court likes the policy applied or does not like it is, legally speaking,
irreIevant. It rnay sometimes be necessary to give attention to the merits
of whatthe holder of a discretionary power has done as a factor in the
consideration of the question whether a particdar limit to the discretion
has been exceeded or not; but that is a different question; that is a
different purpose for which consideration is given to the ments of the
action of the particular holder of the discretionary power and duty. ARGUMENT OF MR. DE VILLIERS 621
These consequences Ivhich 1 have just mentioned, >Ir. President, are
logically inherent in all cases ~vherecourtshave to decide onthe legality
or othenvise of the exercise of a discretionary power. Therefore, wvefind
that it is recognized in al1systems oflaw ofwhich we are aware. Wegave
references in the Rejoinder, V, pages 158-15 9o,the lawvsof England,
France, Germany, Italy, Belgium, the Netherlands, and Luxembourg,
in this regard.
Xr, President, it is on the above-mentioned basis that the question of
good or bad faith comes into the picture, narnely on the bais of testing
ivhether what was done in a particular case, was, in fact, done in the
exercise of the power assigned to the holder of the power, with a view
to achieving the objects attached to the power, ïvith a view to com-
plying with the obligations imposed upon the holder of that power, or,
on the other hand, whether it \vas directed at some other objective-
whether it waçmotivated by some other consideration. That, after ail,
isthe fundamental test, namely xvhether an action, in truth (apart from
what might be pretended in that regard), falls within the scope of that
function which wvasintended to be exercised by the holder of thepower.
And that is ïvhy one then comes upon this concept of good or bad faith.
The broader concept ofwhich it forms part is the concept of a proper
use ofpou7ers asopposed to one of an abuse of powers. Tliere are various
ways in whick a discretionary power can be abused: one of them is con-
stituted by an act of bad faith, bad faith in the sense that the powers
are not utilized for the purpose for which they were granted, but for an
unautliorized purpose. There are in fit cases, of course, other bases upon
ïvhich the Court, in the exercise of what might be called a function of
review, as distinct from appeal, codd give consideration toa matter of
this kind. The Court could have regard to an express limitation upon
power, an express limitation upon discretion, an express injunction as to
the manner in which the holder of the power is to act in certain circum-
stances. If anything of that kind has been transgressed, of course, there
is a basis for interference. Limits may be indicated in another manner.
They rnay be indicated simply by the positive description which is given
to the function or the power, e.g., that the holder thereof rnay go so far
and no further. If 1 may use the analogy, one may have in a federal
constitution a setting out of matters A, R, C,D, and E on which a federal
parliament might legislate. The very limits of the powers of that par-
matters A, B, C, D and E. They go so far and they go no further. So ifose
that parliament were to legislate on subject F or G,which is not included
in the enurneration at all, then it does something which it has not been
authorized to do. That in itself wodd constitute something which nins
contrary to the powers and contrary to the obligations or limits upon
powers imposed in the particular case.
But, Mr. President, those are rnerely esamples of the type of situation
which might arise. One rnay also find that, in certain cases where a
discretionary power has been conferred or a discretionary function has
been imposed upon a person or a body, such a person or body rnay for
some bona fide reasonfailto exercise its discretion. The person or body
rnay misinterpret the function assigned to it; it rnaymisinterpret the
terms of reference, if 1 rnay cal1them that-the provisions of law which
describe and circumscribe its functions. And it rnay then consider that
whnt it is supposed to do, relates to subject A, whereas it, in fact, relates622 SOUTH WEST AFRICA
to subject B; or it may wrongly suppose that in fuifdling its function
there is a rule which requires it to act in a particular manner to the
exclusion of other methods, whereas, in fact, it ought to apply its mind
also to the possibility of applying such other methods. In circumstan-
ces of that kind it is, of course possible for a court to say that, de-
spite complete bona fides on the part of the holder of the power, the
holderhas stilI faded to exercise its power or its function and has,
therefore, violated its obligation, because its obligation is to apply its
mind to a.lirelevant questions. Those are bases well known to courts
comeh toae conclusion that there has been an excess of the limits imposed
upon a discretionary power-bases which may, as 1 have said, in fit
cases involve complete acceptance of the bona fides of the holder of the
poBut, Mr. President,aç wc emphasized in the pleadingç, and we empha-
size again, there is no practical possibility of a situation of that kind
arising in regard to the Mandate for South West Africa. The position is
stated so clearly; there is no possible chance of a misunderstanding;
and the Applicants, as we understand them in their pleadings, do not
aliege any bona fide misunderstanding on our part at all. They allege
that a poiicy is being appiied by the Mandatory-the Government of
the Union of South Africa-lvhich is, as fat asa particular part of the
population is concerned, not airned at the objective of promoting to the
utmost, but airned at a different objective. That is in effectweifanalyse
their factual allegations, whatever label or tag they may give to thern,
the effect of the aliegations they make. They do not suggest anywhere
that the Mandatory Governrnent, in fact, misunderstands its function
or that it acts bona fide in a rnanner contrary to what is required of it;
the allegations are that, by a deliberate and systematic process, it pursues
certain objectives which are not authorized objectives. And that is the
whole basis, as we see it, of the dispute between the Parties in regard to
Article 2,paragraph 2, of the Mandate.
It is, therefore, Mr. President, by a process of elimination that we
come to this ultimate conclusion, ~vhichis stated in our propositions
(c) and (d) in the Rejoinder which I read to the Court previously. We
start off with the discretionary power given to the Mandatory. 1% then
consider whatl imitations there are on that power. We Iiave regard in
that context to the provisions of Articles 3 to 5 of the Mandate, pre-
scribing specific things that are to be done and indicating negatively
specific things that are not to be done. We exclude those from considera-
tion since they do not apply for present purposes-allegations of con-
traventions of those particular articles, are dealt with in a different part
of the case.
That leaves only the statement of the obiigation in the second para-
graph of Article 2. That statement is one of a broad obligation. When it
is analysed one finds that it does not Say specificaliy "the Mandatory is
to do this, the Mandatory is not to do that". It states that a certain
objective is to be pursued. When the whole concept of promoting to
the utmost material and moral weli-being of a people, or of peoples, is
analysed, Mr. President, that concept is one of broad objective-it does
not indicate Inanner, it does not indicate particular actions. It indicates
a broad objective which corresponds with the objective stated at the
very head of the whole formulation of the principles of the mandâtes ARGUMENT OF MR. DE VILLIERS
623
system set out in Article 22 of the Covenant itself. And it is for that
reason that one finds, on analysis, that the only limitation relevant for
present purposes is the limitation relating to the objective, or the pur-
If the Court is to exerciseahfunction at al1of adjudicating on questions
falling under Article2, paragraph 2, of the Mandate, this is, in Oursub-
mission, the onlylegalbasis upon which it can doso. It can decide whether
actions taken, whether a policy that has been formulated, whether mea-
sures that have been adopted-whether aU these are directed to the
purpose set out in the mandates system as a whole, i.e., in Article 22,
and reformulated in the second paragraph of Article 2 of the Mandate.
That is the only basis of testing the legality or othenvise of the actions
of the hlandatory which are under consideration at the moment. It is
in that sense that the concept of good or bad faith becomes relevant, Le.,
in the sense of determining whether actions, policies and so forth are in
good faith dirccted at that objective, or whether they arein bad faith di-
rected at some ulterior objective, some ulterior motive, something unau-
thorized, something not comprised in the intentions of the authors of the
mandates system.
It is also in that sense, $Ir. President, that the authorities speak in
this regard of good or bad faith. 1referred the Court before to the formu-
lation of M. Orts which is quoted in the Counter-Mernorial, II, page 388.
He stated that the Permanent Mandates Commission had to consider
"...whether, within the Limitsof these acts, they [the mandatories] werc
hhonestlpyerformilagtheirtask ..."(italics added). Lord Hailey, in the pas-
sage quoted on the same page, said that the general obligation was "to
consider the well being and development of the population"; and Bent-
wich, in the portion whichwecited, spoke of "The guiding principle is ...
that the Governments must have in view the interests of the native
inhabitants".
The other passages 1had in mind, Mr. President, are in the Rejoinder,
V, page 161. 1 cite first from an eminent English judge, who said:
"IVhen, however, jt is said that the court must not interfere
with the exercise of that discretion by the statutorp body which has
the power vested in it unles the statutory body is using the power
vested in it otherwise than in good faith, 1think that means, other-
wise than for the purpose for which those powers are vested in it."
That was Lord Justice Vaughan Williams, in 1907 T.hen, Mr. President,
we have Lord Lindley stating as follows:
"1 take it to be clear that there is a condition implied in this
as well as in other instruments which create powers, namely, that
the powers shail be used bona fide for the purposes for which they
are conferred."
is relevant to this matter, and by a process of elimination we eventualiy
find that that is the only test which is capable of being applied in this
particular case. It is not a matter of importing a gratuitous gloss into
the article; it isnot a matter ofunilaterally modifying it, isnota matter
of building a bridge towards importing ths test of good or bad faith-it
is one which folIowsas a matter of law and of logic from the very nature
of the powers which have been granted, and the manner in which they624 SOUTH WEST AFRICA
are circumscribed by reference to obligations, in the mandate instrument
with which we are dealing. It is the only conclusion at which one can
arrive by a process of interpretation of that instrument.
And, hlr. President, we find then that if we analyse the Applicants'
attitude in this regard, it does not arnount to assigningto these provisions
of the mandate instrument a different rneaning in this respect. The
Applicants do not Saythat the mandate instrument is to be sointerpreted
as to eliminate this element of discretion on the part of the Respondent
qualifications, to which 1said I would refer again-that othe formulation
of our first and second propositions was perfectly in order; that it was
unobjectionable. So they admit that element of discretion. They do not
contend that in some way or other the Court is now to decide whether
the hfandatory, in doing certain things, in achieving a certain measure
ofprogressover a certain period, has, infact,promoted to the utmost. They
do not suggest,Bir. President, that there are factual standards or bases
upon which such a proposition could be tested-standards or bases
whereby the Court could Say to the Mandatory: "You ought already to
have reached this point, but you have only reached a point about half-
way at this particular stage." Indeed, Mr. President, that would be a
very difficult approach for any court to follow. It would really be im-
puting to the authors of the mandates system also an intention which
they could as a matter of probabihty naver have had, because this ap-
proach would involve a determination ex Post facto of the legality, or
otherwise, of a mandatory's conduct: one would have to allow the man-
datory tocontinue fortwo years, or for fiveyears, or for ten yearand then
suddenly clamp down on it and Say: "Now, let us see-how farhave ÿou
got?" In the meantirne one would not be able to interfere, since the
Mandatory exercises afunction in respect of which it has a discretion, as
the Applicants admit. The Mandatory would be carrying on its task
ostensibIy in the exetcise of tliat function, and only after a certain period,
the Court would Say: "Well, ÿou ought to have done more. You know
you have not really promoted well-being and progress to the utmost at
all." SureIy, Mr. President, that could never have been the intention of
the authors of the system. A very pertinent factor in this regard is the
feature to which my leamed friend, Mr. Grosskopf, referred thiç morning.
namely the positive contemplation of the authors of the mandates system
that in the functioning of this systern mandatories would have the assis-
tance and the coiiaboration of the Permanent Mandates Commission
and the Council of the League-in other words, the assistance of those
processes ofadministrative supervision, aswell as the technical assistance
and expert assistance invoIved therein, which would really constitute a
process of continual consultation between the mandatory and those ad-
ministrative supervisory bodies-a process of consultation which would
lead it from step to step in the application of certain policies. 50 how
could there possibly have been a contemplation that after a certain pe-
riod of years a court should suddenly be asked to decide whether the
mquestion might be asked, Mr. President: On what basis, upon what cri- the
terion, does the court decide that? Would the court decide it with refer-
ence to comparative circurnstances as far as possible, Le., by referring
to what has been achieved in other comparable territories, in Alrica or
elsewhere? ARGUMENT OF MR. DE VILLIERS 625
That is not the buis which is being suggested by my learned friends
in this case. They are not suggesting that that ought to be the basis of
approach. In fact, they went to the utmost lengths in the pleadings to
deny the relevance of comparisons of this kind, wkichwe introduced into
the picture in order to restore some balance. They deny the relevance of
comparisons, and have great difficulty with a proposition that there is
to be an inspection to compare comparable standards. The whole basis
of this legal contention. as I understand it, is that one is now to have
regard to modern standards, modern legal norms-contemporary norms
and standards ~vhichare to be read into the Mandate by means of a
process of interpretation. And thesc suggested norms and standards will
be found to relate not to the question, Mr. President, whether there has
factually been progress of a certain kind, or not. On the contrary they
relate only to a particular method of dealing with some of the problems
which arise in a territory like South'IVest Africa, and which could arise
in other territories with a multi-racial composition. Thus they relate to
the question of whethcr members of the various population groups are
to be treated aIike, whether the children, for instance, are to be put into
the sarne schooIs or separate schools, rather than to the question of
whether the number of schools and the number of children of school-
going age actuaily at school,proves in that respect that the mandatory
has fulfilled its task.
The whole contention, Mr. President, centres not on what the Appli-
cants allege to be a flat obligation of actually promoting progress, but
relates purely toa certain technique, a certain method, a certain rnanner
in which, they Say,certain of theproblems inherent in a task of that kind
areto be approached. And that, Mr. President, as we have pointed out,
they seek to achieve notby assigning an alternative naeaning,or an alter-
nativescope to the obligationas onginally agreed upon by the founders of
this system in 1920, but by importing into this instrument certain things
that arenot there, and which they admit were not there in1920. They Say
so themselves. They Say certain current norms and standards are to be
regarded as relevant in this context. They Say they arrive at thatresult
by a process of interpretation, althougk, of course, one finds nothing
stated in the mandate document regarding anystandards of that kind-
no reference whatsoever to any questions of method of that kind-no
norms of the kind referred to by the Applicants-no express reference to
that at all-and yet they Say"by a process of interpretation" we are now
to read the mandate instrument ascontaining those things. We submit,
&Ir. President, that there is quite obviously no legal basis whatsoever
for a contention of that kind.
[Public hearingof 22 A#rilxg65]
AIr. President, my learned friend, Mr. Grosskopf, and 1 dealt last
Wednesday, before the adjournment for Easter, with ourargument on the
correct interpretation of the Mandate on the question of the legal basis,
if any, upon which the Court can adjudicate upon alleged violations of
Article2, paragraph z,of the Mandate. Mylearned friend, nlr. Grosskopf,
dealt with Ourmain contention in that regard, namely that the Court was
not intended by the authors of the Mandate to adjudicate at al1 upon
questions bvhereno direct rights or interests of the Applicant States are
involved. 1 commenced Our argument on the alternative contention,626 SOUTH WEST AFRICA
that upon which municipal coürts exerciseicaaipower of review of decisions
of a tribunal, a person, a body exercising a discretionary function, as
distinct from appeal therefrom. We submitted that, in the ultimate re-
suit, the only possible criterion for adjudication in the present case would
be on the basis whether the actions taken by the Mandatory were per-
formed in pursuance of powers which were euercised with a bona fide
purpose or objective of promoting well-being and progress to the utrnost.
It resolves itself, into other words, in an enquiry asto the purpose or the
objective of the action, the policy, the measures under consideration.
Now, hlr. President, may 1, with respect, before proceeding with the
argument, just by way of surnmary-even although it may involve a
slight meaçure of repetition-indicate the main steps which led to tkis
result that is, to our above-mentioned construction, so as to provide
the basis for considering further the argument presented against Our
construction by the Applicants. 1dealt with the subject in some detail-
1virtually covered the field-1 am now rnerely stating the main stepsby
way of conclusion and summary.
Our contention is that Article2, paragraph I,of the Mandate conferred
fui1 power of administration and legislation. This, in the first place,
covered the whole field of possible governmental action-the whoiecon-
ceivabie areain which a government could act by way of administrative
action or by way of legislation-nothing waswithheld. In other words,
there is no possibility here of a situation arising in which an action can
be said to be dtra viresrnerely because no power was given to take that
kind of action. The only possible basis for holding an act to be outside
of the poivers granted would be of a different kind: such basis would be
the transgression of a limitation upon powers; it cannot be said that
powers to do a particular kind of thing were not conferred.
This grant of full power of government and legislation included the
necessary discretion lvhich is inherent in al1 powers of this nature-a
discretion to decide what action to take, and how, or in what manner,
that action is to be pursued. 1gave the Court references to a number of
authorities, mainly in municipal law, on this particular question. 1 omit-
manent Court, namely theo anLiglzthousescase. We refer to that case in the
Counter-~~emorial, II, at page 387. The Permanent Court there said:
"...any grant of legislative powers generally implies the grant of
a discretionary righto judge how far their exercise may be necessary
or urgent; ...It is a question of appreciating politicai considerations
and conditions of fact, a task which the Government, as the body
possessing the requisite knowledge of the political situation, is
alone qualifiedto undertake." (Italics added.)
As 1Say, 1gave other references to municipal law and also to commenta-
tors on the mandates system itself, who came to this same conclusion.
The only limitations on a Rlandatory's powers, Mr. President, and,
therefore, the only basis on which action by a Mandatory could possibly
be regarded as ultra vireor in contravention of its obligations, would be
those which were expressed in the mandate itself. One finds two classes
of such limitations: the first-not the first mentioned, but the first to
which I refer-comprises those set out in Articles 3 to 5 of the Mandate;
they are "particular obligations", as the Court described them in the ARGUMENT OF MR. DE VILLIERS 627
1950 Opinion, at page 133, and relate to the slave trade, the provision of
liquor and so forth, The other limitation was the generd obligation-to
promote to the utmost-set out in Article 2,paragraph 2.This descrip-
tion js also in accordance with the Court's terminology in 1950 .he
majority opinion distinguished in this regard between the general obli-
gation in Article 2, paragraph z-to promote to the utmost-and the
particular obligations set forth in Articles 3 to5. The particular obliga-
tions are not relevant to the present part of the case. In ço far as the
Applicants base any changes on the particular obligations, itfalls to be
dealt with in a different part ofthese proceedings. \Ve are concerned for
the moment only with the general obligation imposed in paragraph z of
Article 2. The effect of that general obligation is to iirnit, or to qualify,
the Rlandatory's discretionary powers in one way only, and, that is, to
prescribe the object or the purpose for which the Mandatory is obliged
to use its powers. This, Mr. President, we submit, is evident for two
reasons, with which 1 have also dealt fdy: the firstis that promotion of
the leil-being and progress of the peoples concerned is the overriding
trust purpose or object of the whole mandates system, and, indeed, of
every mandate. 1 gave the Court a nurnber of references to authorities
stressing that aspect of the matter. Secondly, hlr,President, the very
generality of the obligation makes it clear that one is concerned here
merely with a matter of objective or purpose, and not with matters of
detail concerning methods of achieving the purpoce: the obligation, asit
is recorded, relates only toa broad airn, or an objective, or purpose.
In the result, Mr. President, except for Articles 3 to5,there is nothing
which impairs the Mandatory's discretion to decide on specific actions,
measures, or policies, oron methods to be applied in pursuance ofmeasures,
actions or policies which are directed at achieving this general, prescribed
objective. In the result we contend further that as long as the Mandatory
honestly attempts to achieve this objective, its conduct cannot be re-
garded as a violation of its obligation.
Whether a court,or anybody else, agrees or disagrees with the methods
and policy employed in the attempt, or whether a court, or anybody else,
likes or dislikes those policies, does not matter, The legalitofthe action
of the Mandatory is not affected as long asit honestly attemptsto achieve
the said objective.
Stated conversely, Mr. President, the proposition amounts to this,
namely that violation of that obligation San occur only, firstly if the
Mandatory makes no genuine attempt at al1 to fulfil its obligation, or,
secondiy, if the Mandatory directs its measures and its policies at some
unauthorized objective or purpose. Those are the only conceivable bases
upon which, in Our subrnission, a Mandatory can be said to violate its
obligation undcr Article 2,paragraph z, of the Mandate.
Both of these bases involve an abuse of power. In the first case, where
the Mandatory does not try at all, it knows that it is obliged to attempt
to achieve that result, to promote to the utmost. Secondly, where the
JIandatory directs its powers of government and IegisIation at an ~b-
jective which is not the authorized or prescribed one, it wouId likewlse
be abusing its power, in view of the fact that there is no possibility of
misunderstanding in this regard.
Mr. President, in the circurnstances of a case where, as 1 have said,
there is no possibility of a misunderstanding-a bona fide misucder-
standing-n the part of the Mandatory a violation of Article2 on either628 SOUTH WEST AFRICA
of the two bases would necessarilp involve an element of intentional, or
mala fide, abuse of power. The Mandatory bvould intentionally and
knowingly be violating its obIigations. That is the only basis upon which
violation can occur, in our subrnission, inthe particular circumstances of
the Mandate.
Now, Mr. President, we have already dealt with certain of the Appli-
cants' arguments against that construction which we submit to be the
assumption that the Courtcanwase mtended to exercise any polver of adjudi-e
cation in this regard at d. \Ve have dealt with their suggestion that the
incorporation of the idea,or concept, of a purpose intothe matter arnoun-
ted to a "gratuitous gloss" or a "unilateral and off-hand modificatioii of
the provisions of the Mandate"-that it amounted to a vehicle for im-
porting into the article the good or bad faith test. 1have dealt with those
arguments and 1 need not refer to them again.
It remains for us to deal with certain other arguments advanced by
the Applicants, and 1 wish to do so now.
The first of those arguments we find in the verbatim record at pages
256-257, supra. There, the Applicants deny that there is any relevant
distinction, for the purposes under consideration, between Article 2,
paragraph 2,on the one hand,and Articles 3to 5 of the Mandate, on the
other hand. They çay in this regard that Article 6 requires reports con-
cerning "...the measures taken to cany out the obligations assumed
under Articles z,3,4 and 5 ..." (P. 256,supra.)Next, Mr. President, they
Saythat this shows, in their subrnission, that:
".,, the authors of the mandates system envisaged no distinction of
a legal character between the obligations under Article 2, as distin-
guished from Articles 3, 4 and 5" (ibid).
They refer to a possible distinction, Mr. President, on the basis of
generality of forrndations, but they say, even in this regard, that:
"...the wording of Article 6 of the Mandate Agreement indicates,
...that no distinction was drawn or perceived by the authors of the
Alandate between, or among, these articles on thebasis of the method
of their formulationJ' (p. 257, supra).
That is on the basis of generality as opposed to tlie specihc formulatioii
of Articles 3 to 5.
Mr. President, in our submission, this argument of the Applicants
hardly warrants a reply. It is so clear that that distinction doeç exist,
and that it forms part of the very nature of the whole frarnework of the
Mandate.
Nevertheless, in so far as the reference to Article 6 of the Mandate is
concerned, we subrnit that the inclusion, in this Article, of reference to
allthe Articlesof the Mandate (that is from Articles Ito 5).indicates that
they were regarded as identical in one respect only, and, that is,that
they a11required accounting. That was the only respect in which they
were identical for purposes of Article 6. No further inference is logical,
or possible, from the mere fact that Article 6 refers to them all.
1 have dealt with the obvious differences that, in fact, exist between
Article z,on the one hand,and Articles 3 to 5, on the other, and a num-
ber of commentators, as 1have pointed out, have reierred to thiç feature
of the matter. ARGUMENT OF MR. DE VILLIERS 629
The most striking feature is the generality of formulation of Article 2
and, as a necessary corollary, as we pointed out, Article 2 provides, or
allows, scope for the exercise of a discretion, whereas most of the other
articlesallowno discretion at all, or hardly any discretion.
We referred, in regard to these differenceç, to the Opinion of the Court
in 1950a ,nd to commentators such as M.Orts, Hailey and Bentwich, all
of whom emphasize this aspect of difference and distinction between
Article z and Articles 3 to 5.
What is strangest of all, Mr. President, is that the Applicants conceded
the existence of a discretion under Article2.Thus they conceded in effect,
the main differencebetween Article 2and the others but, they neverthe-
less say that no significant distinction can be dra~vnbetween Article 2
and Articles 3 to 5 as to the basis of adjudication.
, le submit that there is no substance whatsoever in that argument.
Then, Mr. President, we find thatthe Applicants in the same verbatim
record, and following on the argument with which 1 have just dealt,
rcfer to a welI-known report of Mr. Hymans to the Council of the League
-the portion of the report in which Mr. Hyrnans indicated that it would
be part of the function ofthe Council, as the supervising administrative
authority, to concern itself not only with the question whether the mail-
datory power had remained within the limits of the powers which were
conferred upon it, but also with the question whether the mandatory
power had made good use of those powers and whether its administration
has conformed to the interests of the native population.
In this regard they submitted, Mr. President, that, in the words of
Mr. Hymans, the Council was to consider "whether the administration
has conformed to the interests of the native population", which, they
say-
"...isquite a different standard than to Say or to ask whether the
interests of the 'Native' population have been served according to
the best judgment or good faith of the Mandatory" {p. 257,SU~YU).
And at page 258 they say:
"What was for examination was, in the ~vordsof Mr. Hymans, the
question of the whoIe administration, not the conscience of the ad-
ministrator."
' &Ir. President, we fulIy agree that when it came to the function of
administrative supervision to be exercised by the Council, the Council
had, certainiy, to concern itçelf with the whole administration and, there-
fore, also with the question whether the mandatory power had made ,
good use of its power. The question for examination was, the~i,the whole
administration, but that was examination by the authority exercising
administrative supervision, As we have indicated before, that authority
had the task ofcollaborating with theMandatory insofar as the exercise
ofthe Mandatory's discretion was concerned.
- It is quite a different matter, Bir. President, whenit cornesto deciding
whether a violation has occurred of the hlandatory's obligations by
reason of any particular conduct on the part of the hlandatory. The
Mandatory's discretion is referred to by hlr. Hymans himself In this
report-in the very words to which the Applicants refer-where he
distinguishes between the question "whether the Mandatory Power has
remained within the limits of the powers which were conferred upon it"630 SOUTH WEST AFRICA
(p. 257, sufiraJ:i.e., the question whether the mandatory power has
acted in accor ance with its rights or powers, or whether it has violated
any obligations. That is the question on the one hand. And it isfrom
that proposition that Mr. Hymans distinguishes the other one, namely
whether the mandatory power had made good use of those powers.
Nowhere does Blr. Hymans suggest that there would be any violation
of an obligation, or, indeed, any ground for the Council to interfere with
the Mandatory's conduct upon a mere difference of opinion between the
Council and the Mandatory as to the manner in which the Mandatory's
discretion is to be exercised, or as to whether a particular action is to be
regarded as good use of the powers, or isnot to be regarded as such.
Indeed, Mr. President, in the very next portion of Mr. Hymans' report
he draws that distinction and rnakes it clear that beyond acting in the
case of an abuse. or a violation, of powers the Council would have to
proceed very carefuliy, since it acted as a collaborator, in other words,
not as a judge. We quote the passage in the Counter-Memorial. II,
at page 120.lt read-
"In lhis matter the Council will obvimsly have lo disPEayextreme
firudenceso that the exerciseO/its rightof controlshould not provoke
amy l~slifiablecomfilainlsanù tkus increasethedificulliesO/ th fask
undertakenbythe MaradatovyPower." (Italics added.)
Immediately before that we quote the wvell-knownstaternent by Mr.
Lloyd George, where he said that-
". ..he regarded the system merely as a general trusteeship upon
defined conditions. Only when those conditions were scandalously
abused would the League of Nations have the rjght to interfere and
to cal1on the mandatory for an explanation. For instance, should
a mandatory allow fou1liquor to swamp the territories entrusted to
it, the League of Nations would have the right to insiston a remedy
of the abuse."
Mr. Presidcnt, a clear distinction is made between what an administrative
authority could do by way of collaboration in assisting a Mandatory to
make the best use of its powers, and what a judicial authority could !O
in deciding whether there had been a violation by the Mandatory of its
obligations; or, which is thesame thing, whether there would be a right
on the part of the League to interfere with the Mandatory's conduct.
Then, Mr. President, there is also the Applicants' reply to the fourth
of Ourpropositions as summarized in the Rejoinder. The Court will recall
that after we set out the first three propositions in the Rejoinder-that
is at pages158-15 (9 )-1ve also set out an additional proposition which,
we said, affordedindependent confirmation of the first three. That pro-
position read as follows:
"The conclusion set out in sub-paragraph (d) is strengthened by
the consideration that, whenever there is scope for honest difference
ticular legislative or administrative measure or policy does orardoes
utmost,there are no legal norms-asomotdistinct from politicaorlsocial
views ortheories-which a Court can apply for giving preference to
any of the conflicting opinions to the exclusion of the others.
Consequently, the only legally prescribed basis upon which the ARGUMENT OF hiR. DE VILLIERS 631
Court can determine whether the Article has been violated, is to
enquire whether such measure or policy was inlended to promote
well-being ami progressto theutmost." (V,p.158.)
Mr. President, in this passage weitalicized certain words. We italicized
the words "does or does not, or \vil1or will not, in fact promote well-being
and progress to the utmost", and we italicized at the end the words
"intended to promote weli-being and progress to the utmost". \Ve
thereby indicated and intended to bring out clearly the distinction
between one for which no legal norrns, in Our submission, existed, and
an inquiry for which a legs1norin did exist. There would be no legalnorm,
in Our submission, for inquiring whether a particular policy or measure
does or does not, or will or will not, in fact, prornote well-being and
progress to the utmost. That is, as stated in the proposition, an inquiry
for which no legal norrns would exist.
On the other hand, we submitted that the only legally prescribed
basis upon which the Court cm determine whether the Article has been
violated is to inquire whether such measure or policy was intended to
promote well-being and progress to the utmost. For purposes of this
latter inquiry, therefore, we indicated clearly that there was a legal
basis for adjudication-that is, in terrns of the alternative contention
which I am now presenting to the Court.
ive find, Mr. President, that despite this the Applicants sap,in the
verbatim record at page 244,supra, that "Respondent then concludes. ..
that no legal norrns exist by which a court can judge Respondent's ...
good or bad faith". Mr. President, it is very strangehow a submission
of this kind could be made at all. We made it so clear, it seemeclto US.
We said that for that purpose a legal norm does exist. The legal norm is
the one which we have indicated, the one, namely of an inquiry into the
purposes of the Mandatory, and of the Mandatory's particular action
or poIicy cornplained of. 1s the purpose or objective the authorized one
of promoting to the utmost, or is it an unauthorized ulterior objective
or motive?
That is a legal basis foradjudication, and that is the basis upon which
we .submitted that the Court could adjudicate the question of the
Respondent's good or bad faith-in other words, of the legality of its
action.
The inquiry in this regard, Nr. President, Le., whether a particular
person, body or authority has acted in goodfaith ivitha vjew to achieving
a certain objective, or whether he or it ha acted in bad faith, is always
an inquiry of fact, on the outcome of which certain legal consequences
follow. The consequence in this particular instance involves adistinction
between a violation or abuse of power, and acting within the terms of
the power, or, in other words, acting legally.
Later we shall indicate and deal with the methods which a coyrt of
law employs in practice, and which are regularly employed by municipal
courts, in conducting an inquiry of this kind. It wouid, therefore.
Mr. President, appear that the Applicants' contention that there 1s no
legal norm and no factual basis for adjudication along the lines suggested
by the Respondent's contention, is also without any substance.
It remains for me, Mr. President, to revert to what the Applicants
called their "cautionary comment" on our propositions (1) and (2)as set
out in the Rejoinder. 1indicated to the Court that the Applicants sald
that they found our propositions (rj and (21,reiating to the \videarnblt632 SOUTH WEST AFRICA
and the discretionary nature of the Mandatory's powers under Article 2
of the Mandate, to be unobjectionable, çubject only to certain cautionary
comment. That we fmd at page 243, suprao ,f the verbatim record and
it rel,s as follows:
.. . subject ... to the cautionary comment that Respondent's
reference ... to 'discretion' does not imply that such discretion is
not reviewable on the basis of objective criteria and legal norms, and
subject to the comment that Respondent's reference in proposition
(b) to the absence of 'regdatory provisions' does not exclude the
international replations of the mandates system itself".
Now. Mr. President, that part of the cautionary comment need not
detain us at au. The Applicants proceed (may 1 first complete this) by
stating later in the same record, at page 254. suf-ra, that ". .. the
concept of discretionary powers limited by legal norms is well-known
to international judicial tribunais". It is not of the essence ofa discre-
tionary power that it mut necessarily be unlimited. Therefore the
Applicants are perfectly correct in saying that the concept of a discre-
tionary power limited by legal norms is, indeed, well-known. We entireIy
agree: we do not contend that the discretion conferred upon the Res-
pondent as hlandatory, by Article 2 of the Mandate, was a wholly
unfettered or unlimited discretion. We admit certain limitations andwe
have indicated the scope of those limitations.
So, in that respect, Mr. President, there is cornmon cause between us.
exist which act as a Iimitation upon that discretion? We have made our
subrnissions and argued fully in that regard, and by a process ofelirnina-
tion we arrived at the proposition which 1 have put to the Court before,
namely that the only possible test in the circumstances of this case is
that of good or bad faith in striving after an authorized or an unau-
thorized objective.
But, Mr. President, the AppIicants in effect say-in fact, they Say
expressly-that there are other legal norms which serve to limit this
discretion, and ~hich in some respects-although they do not stress this
aspect-in effect, serve to destroy and nile out the discretion altogether.
They Say that they arrive at those limitations by a process of inter-
pretation. That brings usto a consideration of the Applicants' conten-
tion in that regard in some more detaii, and to weigh itagainst the
Respondent's interpretation.
1 may just Say, before embarking upon that inquiry, Mr. President,
that the rnanner in which we have approached the interpretation of the
Mandatory's powers and obligations iç the standard manner which is
normally followed in the interpretation of al1constitutional instruments.
hlembers of the Court may be aware of the pronouncement of Lord
Selborne in the celebrated Privy Council case of The Queen v. Burah.
Three AppealCases, 1877-187 at,pages 904-905.This was a case which
arose under the then operative Constitution of India, and it concerned
the validity or otherwise of a legislative measure of the Indian legislature.
Lord Selborne said (at p. 904):
"The Indian legislature has powers expressly limited by the Act
of the Imperia1 Parliament which created it, and it can, of course,
do nothing beyond the lirnits ~vhich prescribe these powers ...
The established Courts of Justice, when a question arises whether ARGUMENT OF MR. DE VILLIERS
633
the prescribed limitshave been exceeded, must ofnecessity determine
that question; and the only way in which they can properly do so,
is by looking to the terms of the instrument by which, affirmatively.
the legislative powers were created, and by which, negativeiy, they
are restricted. If what has been done is legislation, within the
general scope of the affirmative words which give the power, and
if it violates no express condition or restriction by which that power
is limited, .. .it is not for any Court of Justice to inquire further,
or to enlarge constructively those conditions and restrictions."
As I have said, Mr. President, this was a very celebrated pronounce-
ment, because there was occasion in later litigation throughout the
British Commonwealth to refer to it again and again-repeatedly-n
questions of the validity or otherwise of statutory measures.
You may recall, Mr. Yresident, the history in Australia in that regard,
ninning through Webb v. 02stra7n,the Engi.rzeers2 Case and so forth
1 had occasion to go into that for other purposes some years ago. What
was stressed, I know, in Australia, by the Courts in SouthAfrica, by the
Canadian Courts, and by the Privy Council sitting in appeal in various
cases was that the approach indicated in that particular passage from
the Quee.lav. Bl~rahmust have been in the minds of the makers of sub-
sequent constitutions; i.e., the rnakers of the Australian Constitution
in 1900; the makers of the South African Constitution in 1909-19x0,
and others.
That casereflects the perfectly logicai approach to finding out what a
constitutional instrument says, namely what powers does it positively
powers. If we look at the mandate instrument,tivelif we look at the manner
in which it was drafted, it seems perfectly obvious, Mr. President, that
that same logical approach was inherent in the whole process of drafting.
It begins with a general provision setting out the powers of the authori-.
ties, in this caséthe Mandatory, and then proceeds to indicate Iirnitations
upon those powers. Thus the sole enquiry is this: does that which is
being irnpeached in this particular case fa11within the generality of the
powers positively conferred? There is no dispute about the fact,
Mr. President, that it does fa11within the generality of the powers con-
ferred. It al1 concerns the question of administrative and legislative
power in respect of South West Africa.
The only further question then is: does it corne into confici with any'
limitation on power, with any prohibition irnposedupon the Mandatory,
does it exceed any limitation, and where does one find those limitations?
One finds thern in this self-same instrument, and in such circurnstances,
particularly when a constitutional instrument of this .kind is dealt with,
it is not for a court of law "to enIarge constructively" those restrictions
or limitations.
The effect of the Applicants' submission, Mr. President, is not only
that they ask the Court "to enlarge constructively" upon limitations
or restrictions, but that they also, in effect, as1 shall demonstrate, ask
this Court to indulge in judicial legislation in that regard. They ask the
Court, in other words, to state or find the existence of restrictions or
limitations by virtue of no known process of interpretation or any other
legal process pertaining to the origin of obligations or limits upon powers.
Mr. President, may I point out, firstly, that the Applicants' argument '
is to the effect, as the Court knows, that Article 2, paragraph 2, of the634 SOUTH WEST AFRICA
Mandate is to be interpreted in the Iight of modern norms and standards.
1 indicated to the Court last Wednesday that, as we analysed the Appli-
cants' case regarding Article 2, paragraph z, it indeed amounted to an
aliegation of bad faith on Respondent's part in the sense under discus-
sion-bad faith in the sense that the powers granted were used for an
unauthorized purpose. i'hen 1said that, Mr. President, 1 was referring
to the case as we understood it to have been originally made by the
Applicants in their Memorials. 1 was not referring to the new introduc-
tion into theicase,in the Reply,of a 50-callednorm ofnon-discrimination
and non-separation-a norm which was first, we Say, introduced in the
somewhatnd modified form. relied upon in the oral argument although in a
1shail deal later with our contention that this is, in effect, a new cause
of action,because that is also contested by my learned friends on behalf
of the Applicants. For the moment 1 merely want to indicate that, when
1 said that the Applicants' case indeed amounted to a charge of mala
fides, 1 referred to their case as set out in the Memorids and whch was
in part, as we understood it, retained in the Reply.
If we have regard to the alieged nom of non-discrimination and
non-separation, as formulated in the Reply, and even as modified now
in the oral argument before the Court, we find thatit involves a sugges-
tion of a different nom upon which the Court can adjudicate. It wouid,
indeed, as formulated in the Reply, constitute an objective norm-a
norm which could be applied objectively and precisely to the circurn-
stances of a particular case in the same way as Articles 3 to $ of the
Mandate could be applied objectively and precisely to a specific case,
It ~vould,then, under those circurnstances, be unnecessary to enquirc
into any question of good or bad faith. One would simply have to see,
objectively, whether the provisions of that particular norm would apply
just as the Court in adjudicating upon an aiiegation that there is in fact
dave trade in a mandated territory, would shply considerthe facts of
the case, and decide whether those facts do or do not constitute slave
trade in contravention of the Article: itwould not consider any question
of good or bad faith on the part of the hlandatory. SimiIarly on the basis
of the norm of non-discrimination and non-separation as formulated in
the Reply, the Court would simply have to decide whether or not there
has been discrimination or separation in conflict with the content
assigned by the Applicants to that particular nom. And therefore it
could, in such an instance, be said to be acase of an objective criterion
or basis, and not a criterion referring to good orbad faith at all. But what
1 want to stress, Mr. President, is that the argument in favour of ths
proposition does not rest on a rival interpretation of the Mandate-an
interpretation which is offered by the Applicants in reply to the inter-
pretation which we put on the terrns of the Mandate. It is not founded,
Mr. President, on anything stated inthe Mandate at all.
In the first place, it does not rest on the alleged rneanin1920 of any
provision of the Mandate-the Applicants have made that clear. Indeed,
it is not founded on anything alleged to have been contained in the
Mandate at al1in 1920, whether expresçly or by implication and it does
not reçt on anything alleged to have been agreed or consented to by the
Mandatory. That is the effect of the Applicants' contention, and yet they
say that their contention in regard to this nom rests on interpretation
of the ilfandate. ARGUMENT OF KIR. DE VILLIERS 635
Now, Mr. President, in saying that the Applicants' contention does
not rest on the aiieged meaning in 1920 of any provision of the Mandate,
there is one aspect with which 1 wish to deal, because it is of importance.
The Court will recall that the Applicants, by way of their "gratuitous
gloçs" argument, attacked ow interpretation that the crucial question
for decision is the question of the purpose or the objective with which
the mandatory acts. They said, in contrast, that one does not deal with
an obiigation setting out any concept of objective or purpose in that
regard, but that there was a flat and straightfonvard obligation, if 1
rernember correctly, to promote to the utmost.
Now, Mr. President, if they wished to follow up that contention and
to Say that that is the correct interpretation of the Mandate, it would
mean that the Court would have to test the legality or otherwise of the
Mandatory's conduct with reference to results achieved and not with
reference to the objective with which the Mandatory embarked upon a
particular policy or a particular course of conduct. The Court would tlien
have to adjudicate, very often ex $est facto,whether certain conduct
or a certain policy of the Mandatory has or has not, in fact, resulted
in promotion to the utrnost.
1 indicated in my argument last Wednesday that it is most unlikely
that that could have represented the intention of the authors of the
mandate system. In the first place, nobody would have known mhether
the Mandatory was complying with the Article until enough tirne had
elapsed for the results of the policy to become apparent. And even then,
Mr. President, itwould seldom be clear in retrospect ~vhether an alter-
native policy would or would not have achieved better results. The Court
would have to adjudicate ex Pest factoon the hypothetical basis of
weighing alternative policies against each other. It would have the
actual results attained under a particular policy; it would then have to
weigh by way of contrast what results could have been achieved if a
different policy had been followed. Our submission is that itseems most
unlikely that the Court could ever have been intended to apply a test of
that kind. It would, of course, destroy the discretionary element in the
Mandatory'sfunctionsand the Court would then, in effect,be substituting
its own discretion for that of the hlandatory.
In addition, Mr. President, this method of constmction would bring
us to the result that the Mandatory could contravene the Article if its
policy did not corne up to expectations, even through no fault on the
Mandatory's part. The Mandatory could, by the best possible applica-
tion of its mind to the problem andby the best possible application of its
resources, ernbark upon a particular policy with a view to promoting
well-being and progress to the utmost. A court could then aftenvards Say
toaMandatoryalthough you did your best and honestly acted to the best
of your ability, you could have done better, or the resuIts could have
been better, although there was no fault on your part, the results COU^^
have been better if you had followed a different policy from the one you
did follow. Again, Bfr. President, it seems most unlikely that anybody
could have intended that tht was to be the basis upon which the hlan-
datory's conduct under Article 2 (2) was to be adjudicated upon.
The point 1tvant to make now and to emphasize, is that the Applicants
themselves do not, so it appears on analysis of their proposition, contend
for an interpretation of that kind. They do not contend that the policy
of the Mandatory is to be adjudged according to its results on merit, i.e.,636 SOUTH WEST AFRICA
according to what it has achieved in contradistinction to what it shouId
have achieved by way of total promotion of well-being and progress.
The norms upon which the Applicants rely are not sought to be justified
on the factual basis that their application would have led to greater
well-being and progress than has actually been the case. The Applicants
have not, as 1 have pointed out, attempted-indeed, they have stead-
fastly resisted-any coinparison of standards attained in South West
Africa with standards attained in other African States. By way of du-
stration of this point, Mr. President, and because it is an important
distinction, 1 should like to refer to the manner in which the Applicants
dealt with certain cornparisons they made in the sphere of education.
We find that they made that comparison not for the purpose of showing
what progress and promotion of weLl-beingthere has been in South
West Africa, or what progress has, in fact, been made in the different
territories, but that they somewhatillogically describe the mere applica-
tion of their norms as progress, and that they make cornparisons for
those purposes. The illustration to which 1shouid like to refer, is their
Africa in the fieldof edumtion, in the Reply,strIV,opages 402-403. We
dealt with it in the Rejoinder, VI, page163-16 5h.e Applicants in the
Reply, IV,page 402. referred to Somaliland as an example of:
"The promotion of the moral well-being and the social progress
of ali the inhabitants ofa territory by implementing non-discrimina-
tion in education..."
The Applicants proceeded to say that during the years that Somaliland
was under tmsteeship, there was an increase in the number of Somali
students in Italian elementary schools. That is the progreçs of which
they were speaking-the increase in the nurnber of Somali students in
Italian elementary schools. By-.957, they concluded,
"...ofa total enrolment of 971 in the 'Italian' elementary schook,
405 were found to be idigenous inhabitants of Somaliland". (IV,
P. 403.)
Now, Mr. President, in the Rejoinder, VI, at page 164, we drew atten-
tion to the fact that the only kind of development mentioned by the
Applicants was the presence of a few hundred Somali children in Italian,
Indian and Pakistani schools, They were al1called Italian by the Appli-
cants. Wealsopointed out that no evidencewas advanced of, for example,
increased educationai facilities, or increasing school-attendance +es.
We pointed out further that, in this territory which the Applicants chose
to quote to the Respondent asan example of progress, the percentage
West Africa,and gave the figures in the Rejoinder, VI, at pages 164-outh
165; to which 1would like to draw the Court's attention :
"In 1950-1951there was a total enrolrnent of 7,479 in a11schools,
i.e., abou1.5percent. of the school-age population. In 1954-1955,
...the total number of school children stood at 11,219 ..."
which wa~ described by a representative ofa country in the Trusteeship
Council a-
''only some4 per cent, ofthe school-agechildren attend[ing] schooi'.
In 1956 it was noted by a member of the Council that 'Even from
thecity population only 17 per cent. of children of schooI age atten- ARGUMEST OF MR. DE VILLIERS
637
ded school'. In1957a United Nations' Visiting Mission noted 'that
the enrolment of children in schools tvas low, being 12,557in 1956-
1957, while the target of the five-year plan had been22,080 'n.
1958-rg5gtotal enrolment in al1 schools in the country increased
to about 18,600." (VI, p. 165.)
Now, Mr. President, if the figure f1954-195 I,,I~, respresented
some 4 per cent. of the sciiool-age children attending school, then the
figureof 18,600 must have represented something in the region of 7 per
cent.By comparison, we indicate what the position was in South West
Africa in the years jnquestion, and give that inthe Counter-MemoIII,,
pages 444-445.In1951 he nurnber of Native children at school in South
West Africa actuallynumbered 24,527 w hich meant that, on the same
basiç of comparison as ued for Somaliland, 30.per cent. of dl Native
children of school-going age were at schoolin that year. In1960 ,he
figure, on thesame calculation, had increased to 39 per cent. of d
Kative children of school-going age in South West Africa.
There is a reference at pa444 to further increaçes aft1960 w,hich
I need not deal with now. We deal with the matter in the Rejoinder
and 1veshall deal in evidencc with the further spectacular increases which
cornparison for the moment.those years. I merely wish to point to the
In Somaliland over the eriod 1951to 1959 the increasewas from 1.5
to 7 per cent.In South d est Africa the range was 30to approximately
40 per cent.
So, Mr.President, it becomes quite clear: the conceofthe Applicant
in the application ofthisnom is not with progress in fact made-and,
mai 1 say,when 1 rnake these compariçons, the intention is not to cast
any reflection at al1upon Authorities in other territones concerned. We
are not analysing the circumstanceç in those territoriesam1not criti-
cizing anybody. 1 am merely making comparisons with a view to in-
dicating what the general standards in South West Africa are by waof
comparison with other comparable territories. For the moment the pur-
pose of my comparison iç purely this: to indicate that the Applicants'
concern is not with the total progress which is in fact being made in the
sphere of promotion to the utmost of materialand moral well-being. It
is concerned only with one kind of progress, and that is progress in the
applicationof the very norm for which the Applicants are contending.
And that makes it perfectly clear, Mr. President, in Our submission,
that the Applicants are not relying on an alternative interpretatiof
what is to be found in Artic2eor, indeed, in any provisioofthe Man-
date. They are relying on a norm not to be found in the Article at all,
which could be incorporated into it, if at ail. only by a process of impli-
cation or by a process of amendment if the Mandatory should subsequent-
ly have agreed to the introduction of such a norm into the Mandate:
Now, Mr. President, if the Applicants tdy relied on interpretatron
understood-ine order to bring them to the result of this norrn for which
they were contending, then, as we pointed outin the Rejoinder, V,at
page 140, they would have to contend that Article 2 must be read as
containing, and as having always contained, aprovisionlike the following:
"The mandatory shall, when exercising its full power of adminis-
stration and legislation, gieffectto such standards or norms as SOUTH WJZSTAFRICA
may at the time of such exercise be generally applied by other
States."
That isthe only basis upon which one can, by a process of interpretation,
or of ascertaining what this provision meant in ~gzo, come to the con-
clusion that there are now current norms and standards which are, asa
matter of law, to be applied to the circumstances of the particular case.
We said further in the Rejoinder, at the same page, the following:
"Inasmuch as no such qualification was included in the express terms
of the hlandate instrument, Applicants would have to contend that
it must be read into the Mandate as a necessary implication. It
is, however, unthinkable that the authors of the Mandate (which
included several Mandatories) would have decided upon, andthat
the Mandatories would have consented to, the imposition of an
obligation of such uncertain content, posing so many difficulties of
application andgiving riçcto the possibility of interminable dispute.
Since Applicants do not rely on such an implication, and no material
has been adduced to suggest the existence thereof, Respondent will
not devote any further consideration thereto."
Now, Mr. Presiderit, xvefind that in the oral presentation my learned
friends declined to state whether or not they contend for such an im-
plication in the mandate instrument. In the verbatim rccord page 261,
su a, my learned friend quoted the statement from the Rejoinder which
I& just read, and he said he found it unnecersary to comment further
on it. He confined himself to this contention, and 1 quote:
"...that the legal dispute now presented to this honourable Court
iç occasioned,interdia,precisely by Respondent's failure to apply
currently accepted norrns andstandards to its administration of the
Territory".
hlr. Prcsident, this contention on thc Applicants' part, even if it were
true, would hardly assistin showing how and why the Respondent has
become obliged in law to apply such norms and standards. The state-
ment is rnerely to the effect that the trouble arises from oui-failure to
apply currently accepted norms and standards, but it does not Say why
to state, Mr. President, how this Court would have any jurisdiction ons
the basis of the provisions which the Applicants invoke in thiç case,
namely Article 7 (2) of the Mandate; it does not state how this Court
could have any jurisdiction whatsoever to adjudicate upon the applica-
tion or non-application, or applicability or non-applicabilitofcurrent
and acceptednorms and standards, other than by way of a process ~vhere-
by those norms and standards can be said to form part and parcel of the
provisions of the Mandate.
So, Mr. President, what do we find on analysis? We find, firstly, that
the Applicants have not atternpted to show that the alleged currently
accepted norms and standards ever fomed part of the Mandate. Thep
do not allege that they were ever in any way agreed or consented to bp
the Respondent: in fact, the Applicants admit that these norms were
not part of the Mandate in 1920 ,nd theydonot allege that the Respon-
dent ever agreed to them subsequently. 1 rnay perhaps just refer the
Court to the passage in the verbatim record where the Applicants make
this perfectly clear. It is at page 261, supra: ARCUhfENT OF MR. DE VILLIERS
639
"Respondent commences its discussion of the meaning of Article
2,paragraph 2,witl-iacomment that the generally accepted standard
of non-discrimination or non-separation was not 'containedin Article
2 of the Mandate as at the date of its execution' ... Applicants, of
course, have never contended otherwise."
So that makes it as clear ascan be. The obligation did not form part of
the Mandate in 1920. Our learned friends do not contend that there was
any proces of amendent of the Mandate; in other words, they do not
allege that Respondent ever agreed or consented to sucli an obligation.
Nevertheless, Mr. President, they seek to foist these currently accepted
norms and standards upon the Respondent as binding obligations, and
they Say that this process-this conclusion-is to be arrived at by
interpreting Respondent's obligations in the light of such currently ac-
cepted norrns and standards. Mr. President, in my submission, the Ap-
plicants could hardly have made it plainer that they are unashamedly
asking this Court to apply a process of judicial legislation.
Mr. President, 1 merely wish to offer a few concluding remarks on the
Mysubrnission is that the very technical process by which the Applicants
say that they arrive at their conclusion of a legal, currently accepted
norm of non-differentiation or non-separafion-that very technical pro-
cess shows that their contention is wholly unsound. It ignores the basic
fabric upon which the whole of international law and international juris-
prudence is founded. Making it clear that they nowhereallege, or attempt
to prove, that Respondent has given its consent to an obligation of the
kind for which they contend, they, nevertheless, ask this Court to find
that that obligation is binding upon the Respondent. They ask the Court
to find, independently of the Respondent's consent and, indeed, in the
face of its protests, that the Respondent is obliged in the administration
of South West Africa to apply this nom of non-discrimination and non-
separation, to do away with any differentiation on the basis of race,
colour, ethnic grouping, tribe, and so forth. Even if the Respondent
shodd be entirely convinced that to do so would lead tomorrow to
chaotic results; that it might lead to the departure, Say, of the whole
of the more developed white community; that it might lcad to a resump-
tion of faction and tribal fighting; that it might lead to a complete
collapse of the whole structure in South West Africa; that eventually it
might lead to chaotic conditions of rnisery for everybody involved: even
ii the Respondent Government were to be convinced of ailthose things,
even then thjs obligation is to be imposed upon it by this Court as some-
thing which it is to be coerced to fulfü. And why do the Applicants say
that? Not because the Respondent ever agreed that such an obligation is
to be binding upon it; not because it was to be found in the mandate
instrument initially; not because the Respondent subsequently agreed
by way of amendment of the mandate instrument that that obligation
is to be binding upon it,The Court is to find that such an obligation
exists merely because it reflects, in the Applicants' contention, currently
accepted norrns and standards, and they Saythat the mandateinstrument
is now to be interpreted in the light of those currently accepted nor-ms
and standards. I repeat, Mr. President, that a clearer instance of asking
this Court to apply judicial legislation can hardly be imagined. The Court
is, in effect, asked to act as a mbber stamp for the views of majonties in
political bodies. That is what it amounts to-to that, and nothg more, SOUTH WEST AFRICA
640
and calling it interpretation in the light of modern standards does not
help; a rose, in our submission, by any name still smells sweet.
I shd demonstrate in other ways also that this contention regarding
currently accepted noms and standards, and particularly this one of
non-discrimination and non-separation, is entirely unfounded; but 1
submit that the arguments 1 have already adduced up to this point are
in themselves sufficient to show that that is so, that the whole contention
of the Applicants in this regard is entirely without any substance in
lawBefore approaching the matter from the other points of view, 1 should
Liketo revert first to an argument which the Applicants adduce asan
objection to the only bais upon which we contend that this adjudication
can be undertaken, namely the basis of determining the Respondent's
good or bad faith in this regard-of determining whether Respondent is
pursuing the authorized objective of promotion to the utrnost or whether
it isin bad faith pursuing some other objective. The Applicants Say, in
effect, in that regard that there is no practical way in which a court can
undertake such an enquiry, and they seek to distinguish between a sub-
jective and an objective intent. It may, therefore be as weli, before we
proceed with the argument, to see whether we can obtain some clarity
asto what it is that the Applicants are driving at, and as to what the
true legal position isin that respect.
In the course of the Oral Proceedings, Mr. President, the Applicants
frequently asserted that Respondent's subjective intent is not relevant
in regard to an evaluation of its policies and practices for the purposes
of Article 2, paragraph 2, of the Mandate, and they said that when it
cornes to the concept of intent the only test to be applied is the one
according to which a man is presumed to intend the reasonably foresee-
able consequences of his acts. We shall give examples later of the manner
in which this submission was expressed in various places by the Appli-
cants, but in order to have a clear understanding of what the Applicants'
contention really is in this regard, its necessary to note what extent the
Applicants have relied on Respondent's intent in the written pleadings.
We pointed out in the Counter-Memorial, II, page 392, that Applicants
in their Mernorials appear to have based their whole case regarding al-
leged violation of Articlez, paragraph z, of the hlandate on a contention
of bad faith on the part of the Respondent. Examples were given in our
Counter-Memorial ofnumerous instances in which the Applicants spoke
of deliberate and systematic conduct on the part of the Respondent. We
also pointed out that in their finalconclusion the Applicants summarized
their allegations by stating the following:
"In its administration of ... South West Africa, the Union, as
Mandatory, has knowingly and deliberafely violatedthe letter and
spirit of the second paragraph of Article z of the Mandate ..." (LI,
P. 393.)
Nowafter wehad pointed thisout in the Counter-Mernorial, Mr. Fresident
-that that seemed to be the sole basis of the Applicants' case regarding
Article z, paragraph 2, of the Mandate-the Applicants reacted in a
different way in the Reply. ive find that they attempted to explain away
their use of these expressions-"deliberate and systematic" conduct,
"knowinganddeliberate violat[ion] ofthe letter andspirit" (II, p.393)and
soforth-and their explanation isthis (we-dit intheReply, IV,at p.257) : ARGUMENT OF MR. DE VILLIERS 641
"Applicants' characterizations of Respondent's policies and ob-
jectives by tems such as 'deliberately', 'knowingly', and the like,
clearly are intended as inferences and conclusionsreasonably fiowing
from Respondent's course of conduct, which is set forth explicitly
and fully in the Memorials. Such characterizations reflect a univer-
sally accepted axiom that, in the absence of evidence to the contrary,
the predictable consequences of conduct are presumed to be in-
tended. "
Mr. President, in so far as the statement indicates that the use of these
terms, such as "deliberately", and so forth, "are intended as inferences
and conclusions reasonably flowing from Respondent's course of con-
duct, which is set forth explicitly and fuIly in the Memorials"-in that
respect the passage gives no difficulty atall. Whenever a person's or a
body's intent is a relative consideration in any enquiry, that is a standard
method of arriving at the factual conclusion as to what that intent or
state of mind was-the process of drawing conclusions and inferences
from a course of conduct. Of course, what we Say in that regard is that
when Applicants set out a course of conduct by their descriptions in the
Memorials, they painted only part of the picture, and that, before one
can draw any inferences in asound andproper way, one has to consider
the whole field-the whole picture; one has to fil1in the gaps; one has
to put the facts presented by the Applicants into their proper perspec-
tive; and only then is it possible to draw the relevant inferences. But,
Mr. President, that is a matter of appl~ing the principle to the facts of
the particular case. The mere proposition that one can arrive at a con-
clusion in regard to intent or state of mind by inference from a course of
conduct-that is an unassailable statement. Mr. President, this state-
ment, however, proceeds to Say "Such characterizations reflecta uni-
versaIly accepted axiom that, in the absence of evidence to the con-
trary, the predictable consequences of conduct are presumed to be in- .
tended". That 50-calied "universally accepted axiorn" is a matter to
which we should like to give further attention in this regard.
Here the "axiom" is çtated by the Applicants with the qualification
"in the absence of evidence to the contrary". As we shall observe, that
qualification in the course of tirnc came to be omitted from the Applicants' .
formulations. One would have expected, in the light of this formulation
which we find in the Reply, that Applicants would. in their Reply, indeed
have given very serious consideration to al1the evidence to the contrary
which 1vehad brought in our Counter-Mernorial. I quote our comment in
the Rejoinder V,in this regard, Mr. President-at page 103.We said there
that we brought "evidence to the contrary" in the Counter-hfemorial-
"... to demonstrate that its intent was not such as \vas sought to
be presumed-partly in that its conduct was different from what
was alleged, and partly in that a different perspective was cast
upon consequences, real and prospective, and their predictability,
by a fuller knowledge of background, setting and circumstances".
It was for that purpose, we said, that we brought al1 the evidence that
was set forth in the Counter-Mernorial.
Now, Mr. President, instead of systematic consideration of this evi-
dence to the contrary by the Applicants in their Reply or, indeed, in
their further presentation in this Court, one finds that in the Reply the
Applicants, almost in the same breath, Say the following: SOUTH WEST AFRICA
"... so much of the evidence as isadduced by Respondent for the
purpose of dernonstrating its 'good faith', or that it is 'actuated
by an intention ...other than one to promote the interests of the
inhabitants', wouldbe immaterialeven if it did-as itdoes not-tend
to show such 'good faith', or the absence of such 'intention'." (IV,
p. 260.)
So what do we find, hIr. President?The Applicants bcgin by telling us,
in the Reply, that they drew acertain inference and a certain conclusion
in regard to Respondent's inteat, from Kespondent's course of conduct,
as set forth in the Mernoriab. We said in the Counter-Memorial that
that inference was not a sound one. Ive brought more evidence; we
brought evidence to the contrary, we expanded the whole picture and we
said that for that reason the inference \vasnot a sound one. ilTewere not
indeed actuated by such an intent as was ascribed to us in the hfemorials,
We were not actuated by bad faith in that sense.
NOWthe Appiicants corne and tell us that so much of the evidence as
ive brought for the purpose of denionstrating Our good faith, or that we
areactuated by ail intention to promote the interests ofthe inhabitants,
would be immatcrial,
So how is one to understand that. That can be understood, Rlr. Presi-
dent, only on the basis that the Applicants now no longer-1 Say "now",
that meanç as from the Reply stage-rely on this allegation, or that they
no Ionger reIy sotely on the allegation of such an intent or bad faith on
the part of the Respondent. They rely on what they cal1 an "objective
criterion" for determination of a violation of Article2, paragraph z, of
the Mandate. The only objective criterion which they suggeçt is this
newly formuIated lcgal norm of non-separation.
As I pointed out before, Mr. President, if such a norm indeed existed
and governed the Respondent's obligations the Respondent's intent
or good faith would be immaterial. That is so. Then it would be merely
a matter of determining whether Respondent's conduct and policieç, in
fact,involve differentiation or not. Indeed, as the norm was formulated in
the Reply, the mere fact of the existence of any differentiation of that
kind would have meant a vioIation of the Mandate, quite independently
of good or bad faith, of whether there is an objective to promote rnaterial
and moral well-being, or of whether the objective issomething elçe.
However, Mr. President, the question anses: if the Applicants really
intend to found their case on the existence of suchanorm, and such alone.
why does the question of intent enter into the AppLicants' formulation
at all? Why do they persist in rnaking allegations in regard to intent?
Where does it fit into the legal picture? If the norm applies, then the
intent becomes irrelevant. When it is said to me, that in applying your
policies in respect of development and promotion of rnaterial and moral
well-being, you are not to diçcriminate on a racial, or a colour, or a tribal,
or an ethnic group basis and 1 do discriminate, then that is sufficient.
Thefact that 1 Iiave discriminated in contravention of the nom applying
to my conduct in itself establishes a violation. FVhythen further allega-
tions pertaining to intent or design?
te analysed thisconundnun, Mr. President, tothe best of our abiIity
in Our Rejoinder, V, at pages r06-107. We came to the conclusion that,
although the Applicants did not expressly Say so, they apparently still
relied,in the alternative, upon an allegation of intent or bad faith as
being a course of action in itself-as being in itself a basis upon which ARGUMENT OF MR. DE VILLIERS 643
they could establish a violation of Respondent's obligation under Article
2, paragrapli 2, of the Mandate. That was to be seen, although they did
not Say so, as an alternative to their reliance upon their legal norm. be-
cause we could not understand their reference to intent upon any other
basis.
We dealt in our Reply with the Applicants' case on the understanding
that it rested upon these two bases-firstly, on the norm and then,
secondly, in the alternative on-
". ..some basis ... lvhich requires proof of the factual allegation
that Respondent's policies are actuated by a motive other than one
to promote the interests of the inhabitantç of the Territory".
(V, p. 108.)
Now we corne to the next stage, i.e., these OralProceedings, and here
the Applicants emphatically tell us their case does not rest at all, or in
any respect, on the Respondent's bad faith or intent. Iread from what
they said according to the verbatim record at page 116, supra:
". .. the fact undisputedly is that the Applicants do not make
an issue, have not sought to make an issue, and do not intend to
make an issue of gaod or bad' faith in the premises".
Mr, President,strange as that may seem, if the Applicants had left the
rnatter there, we would have known with reasonable certainty what the +
case is that we now have to meet. Wre would have known, notwithstand-
ing ail the arnbiguity that we lound in the pleadings and the apparent
shifting of ground involved, that the Applicants now rely solely on the
so-called norm of non-differentiation, if we may cal1 it that for short,
against which Respondent's conduct çhould be measured.
But we find, ilIr. President, that again in Applicants' formulation of
their case during these Oral Proceedings they revert to this question
of Respondent's intent which, they say, is to be dctermined by applica-
tion of a so-called universally accepted principle that an individual or
entity is legally presumed to intend the reasonably foreseeable con-
sequences of his actions.
How, and on what basis of legal relevance this is propounded for the
Court's consideration rernains, to a large extent, a mystery.
We find in the verbatim record at page 121, sufiva. the following
statement :
"The only sense in which a subjective test of good faith could be
relevant tothe motives of individuals who, severally and collectively,
and from time to tirne, form the executive, legislative and judicial
branches of any government, would be by application of the univer-
sally accepted principle that an individual or an entity is legally
presurned to intend the reasonably foreseeable consequences of his,
or ils, actions."
LVe have the two concepts there: the sense in wkich a subjective
test of good faith could be relevant, and the determination thereof by
the application of the universally acceptecl principle, which 1 have read.
Mr. President, as 1 have always understood this so-called universally
accepted principle, it is an aid in the determination, the factual deter-
mination, of a person's, or a body's, intent, or state of mind, or good or
bad faith, where that intent, or state of mind, or good or bad faith, iç
a legally relevant consideration. But the fact that one applies a method644 SOUTH WEST AFRlCA
of that kind asan aid in factual enquiry, that can never answer a question
as to the legal relevance of that particular concept in a particular case.
To illustrate: where a person is charged with murder intent to kill is
a necessary element in the crime which is to be established on the part
of the prosecution. The prosecution, for the purposes of establishing
intent, avads itself of a process of inference from circumstantial and
surrounding evidence. That is a method by which it arrives at proof of
intent and it avails itself, fa1 as may be relevant, of the application of
this principle to which my learned friends refer. 1 shall deal Iater with
the exact method in which the principle is to be applied.
But, hlr. President, the point 1 am making for the moment is this,
that the reaçon why that process is adopted is thatthe law, in its forrnu-
lation of the concept of the crime of murder, makes intent a relevant
consideration. That is an aspect which is not touched on in any way by
the Applicants when they tell us that they now rely on this objectively
applicable nom of non-differentiation and yet they Say that, in some
way or another. intent, in the sense of the application of this universally
legally, why.ciple, is still a relevant consideration. We do not know,
1 read from a formulation in the verbatim record at page 203, supra.
"The AppIicants use, and \ve submit, appropriately use, the concept
of 'intent' in a legal sense but not asa subjective motivation, not
as mensrea, not to determine whether Respondent has a proper or
lofty or illicit purpose in its actions, but in the lawyer's sense of
the use of the word which applies the test of an objective deter-
mination, judicial or administrative, in respect of the conduct of
groups, individuals, or governments, and whichrests upon the univer-
sally accepted principle that an individual, or an entity, is presumed
to intend the foreseeable and necessary consequences of his, or its,
actions."
Again, hIr. President, no ansver is given to the question 1 have men-
tioned. We simply hear of a "lawyer's sense of the use of the word"
intent "which applies the test of an objective determination".
In the verbatim record at page 204, supra, we findthis statement in
the argument ofmy learned friend:
"... references by the Applicants to Respondent's 'intent' or
purpose do not refer to a subjective motivation of good or bad faith,
but to an objectively determinable inference, which rnay be drawn
from conduct, on the basis of the universally applicable principle
that a person or an entity is presumed to intend the foreseeable
and necessary consequences of his or its actions."
Now, Mr. President, apart from the fact that we are still completely
in the dark as to why it is said that intent, even in this particular sense
ascribed to the term, is a relevant consideration, a feature ofthese formu-
lationsisthat theydrop the qualification which we initially found in the
Reply-the qualification of "in the absence of evidence to the contrary".
We find further that the Applicants in this regard speak of a legal
presumption; an individual or an entity is legallypresumed to intend the
consequences of his actions.
Why do we now find, Mr. President, this reliance upon the SO-called
presumption as being apparently something absolute, something irre- ARGUMENT OF MR. DE VILLIERS 645
buttable? One can only surrnise that the Applicants have realized the
inconsistency of the attitude which they took up in the Reply where they,
on the one hand, as I have pointed out, admitted that evidence to the
contrary could destroy any inference raised by the application of the
foreseeable consequences rule; and, on the other hand, they categori-
cally stated that al1 evidence brought by Respondent to prove the
contrary, narnely good faith on itspart, has to be regarded as being
entirely irrelevant.
That inconsistent attitude they adopted in the Reply. It seems that
they are trying to get away from it now, and they attempt to do so
in a rnanner which still cannot admit the relevancy of the evidence which
we tendered in our Counter-Memorial and again in our Rejoinder. They
do so on a basis which would maintain their submission of irrelevancy
of that evidence, and tliey now seem to tend in the direction of saying
that this presurnption is not only a legal presumption but also a con-
clusive or irrebuttable presurnption.
It would seem, therefore. Mr. President, that the basic difference
between the Parties in this regard, i.e., in regard to this question of
intent, is the following. According to the Applicants the Respondent
must be legaiiy, and apparently conclusively, deemed to have intended
the consequences of its acts if such acts were reasonably foreseeable,
no matter what Respondent's actual intent might have been. That
seems to be the distinction which they are trying to draw between
a so-called subjective intent and an objective intent in the lawyer's
sense of the term.
We, on the other hand, Mr. President, while we do not dispute that
so-called objective criteria may be applied in order to assist in ascer-
taining intent, contend that in the final analysis regard should be had
to al1 relevant evidence, in order to determine Respondent's actual
intent, inso far asthat intent isa relevant consideration.And we submit
that the only basis for adjudication is indeed to determine that intent
relative to the question of the objective, orthe purpose, of Respondent's
policies and legislative and administrative actions.
LVe submit, Mr. President, that this suggested distinction between
a subjective intent and an objective intent is a complete fallacy. There
is only one concept known as intent, or state of mind, or good or bad
faith, al1being various facets of the same concept ofintent, and Ishall,
therefore, use the word "intent" as signifyingal1those. Intent is a state
of mind; it is a judicialIy deteminable fact; it is a fact which can be
determined by a factual inquiry such as is indulged in for thepurposesof
deterrnining any fact so far as it may be relevant in legal proceedings.
But there are various ways and means, various techniques, whereby one
can arrive at a conclusion as to intent.
1suppose it is correct to say that seen from the point of view of the
person whose state of mind is in issue, his intent can be said to be a
subjective concept. When we Say that, we have in mind this type of
distinction. A person's conduct in ordinary law can be tested against
objective criteria, such as, what a reasonable man would have dune in
certain circumstances. When his conduct falls short of the objectively
prescribed criteria, prescnbed by law, then he can be said to be gulty
of negligence. Therefore, in that sense one speaks of culpa-of a state
of mind on the part of a person which fails short of an objective standard.
Rut when for certain purposes itis not sufficient to establish negligence SOUTH WEST AFRICA
on the part of a perçon, when it is necessary to establish an intent, then
it is not sufficient to enquire, what would a reasonable person have done
in the circumstances? It is not sufficient to apply an objective teçt. The
ultimate fact to be determined is the subjective one-what was sub-
jectively the state of mind of that person? Did he or did he not have the
particular required intent? And that is a distinction which is very often
dratvn in legal teminology in thisregard between something subjective
and sornething objective. One can draw it in a different way also. One
can Say that there are various ways of proving a person's intent. One way
is that to which 1 have referred, narnely by drawing inferences from a
course of conduct seen in the light of all surrounding circurnstances.
That iç by a process of evaluating what basically amounts to circum-
stantial evidence. One can also determine a person's intent from what
he has said, from what he may have said contemporaneously with his
actions, before his actions, subsequent to his actions.
It is another matter, of course, as to what weight should be assigned
to the probative value of the particular çtatements made in particular
circumstances. A person can go into a witness box and Say that when he
did a certain thing or when lie said a certain thing his intent was such
and such and not so and so. Again, one can possibly use the distinction
there between an objective method of arriving at a conclusion and the
subjective nature of the evidence given by a person to the effect that
such and such waç his intent, or is now his intent, or will be his intent,
as the case may be.
But, Rlr. President, that distinction between subjective and objective
relates not to the concept itself. The concept of intent is one and indi-
visible: it is astate of rnind. And there is in no distinctionwhatsoever
between a so-called subjective intent and an objective intent.
In so far, Mr. President, as the Applicants now wish to assign con-
clusive effect to this so-called universally accepted principle, that a
person iç presurned to intend the foreseeable and necessary consequences
of liis actions, wesay that that contention restç on a complete fallacy.
The maxim, in so far as itis referred to in legal systems at all, is merely
an aid in a factual inquiry. It is nothing more: it has no more value or
weight than that of a factual presumption. Very often cornmentators
have even said that presumption is not the right word to use because one
should rather speak in terms of a generality, or a general probability,
a factor which operates aç one of those in a factual inquiry, but as being
by no means the onIy factor to the exclusion of others.
We find, firstly, hfr. President, that in most legal systems-those on
the Continent of Europe, for instance-there is no reference, asfar as we
can find, to the application of a principle of this nature. They do not
work with this concept; they do not find it necessary. They do not work
with the concept that a man may be presumed to have intended the
foreseeable and reasonable consequences of his act.
As far as we know, that iç aformulation as an aid in a factual inquiry
which içapplied only in the English la%?-the English practice-and in
related systems which apply English law and practice in that regard.
Secondly, hlr. President, we find that even in those systems of the
latter kind, in which the lawyers expressly employ or apply this concept,
there is no question whatsoever of the presumption being either a legal
one or an irrebuttable one. As 1 have said, the maxim imports nothing
higher than a rebuttable, factual presurnption, or generalization, or ARGUMENT OF MR. DE VILLIERS 647
likelihood. That generalization is to the effect that a man may usually
be regarded to have intended the natural and probable consequences of
his act,but that there may be evidence or other indications leading to a
contrary concluçion.
lf7e may imagine a person standing in a building on the side of the
street; he looks into a window on the opposite side of the street on the
tenth storey of that particular building; he sees somebody standing in
the window; he seeç somebody else pushing against that persan, and he
sees that person falling through the window to his death on the street
below. Now surely, Alr. President, on application of this maxim as
something irrebuttable one would have to Say that the person who did
the pushing must be presumed to have intended the natural and the
legal consequences of his action, and therefore he must be guilty of
murder. Such an application of the maxim would mean that it is not
open to that pcrson to come into court and to say: "what was seen by
this particular witness was only hall of the truth; it was only half of the
çtory. What really happened was that we were playing in the room and
it was just by accident that 1 pushed against the 0th man and that he
fell through the window. There was no intent whatsoever on my part
either to push him through the window or to send him to his death."
Ifthis maxim were to be applied as an absolute legal, irrebuttable
presumption, then itwould be impossible for a man to conie into court
and to give evidcnce to that effect, or even for some other person to be
called out of that room to say "1 was there,I was a witness, 1saw ital1
and that is how it happened". That is why Mr. President, that in
regard to the English law we find comment. 1 will give the Court some
references to authorities. Glanville Williams, Criminal Law, 1957,
wrote as foIlows at page 77:
"It is often said that a man is presumed to intend the natural
consequences of his acts. This maxim, though many judges have
been fond of it, contains a serious threat to any rational theory of
intention. It is not truein fact,that a man necessariiy intends the
natural consequences of his acts: and it is not true in law that he
is compellingly presumed to do so."
The next quotation is from page 78:
"When a defendant isheld guilty of causing damage by negli-
gence, this is because a reasonable man would have foreseen the
damage. Now if a reasonable man would have foreseen it, it must
be the probable consequence of the defendant's conduct. If itis the
probable consequence of his conduct, the defendant, according to
the maxim is presumed to have intended it. Thus, al1these cases of
negligent conduct are turned into cases of intentional conduct.
Such a mangling of the concept of intention cannot be admitted."
The next passage comes at page 81:
"It is now generally agreed, in conformity with this opinion, that
the maxim does not represent a hed principle of law, and that
there isno equiparation between probability and intent. This was
pointed out by Stephen, although hiç words for some time had
little effect upon the language used by judges. Recently Denning,
L.J.,said: 'There isno "must" about jt; it is only may. Presump-
tion of intention is not a proposition of law but a proposition of
ordinary good sense.' "648 SOUTH WEST AFRICA
A further quotation, Mr. President, at page 705, from the same author:
"We may now revert to the supposed rule that a man is taken to
intend the probable conçequences of his acts. It has been shown
that this maxim has been reduced from the status of a 'rnust' to
that ofa 'rnay' ... Formerly juries were instnicted in terms of the
maxirn as though it created a presumption of law, rebuttable or
even irrebuttable; but it is now clear since cases liMeade ... and
Woolmingttm . ..that the maxirn does not transfer the perçuasive
burden in respect of mens Yeu to the accused. Although both those
cases turned on homicide, the proposition is a general one. For
instance, on a charge of shooting with intent to prevent arrest,
where the accused raises the defence of accident, it is lor the Crown
to prove the intent. As Lord Goddard, C.J., said in Steane:
'No doubt, if the prosecution prove an act the natural con-
sequence of ivhich wodd be a certain result and no evidence or
explanation is given, then a jury may, on a proper direction, find
that the prisoner is guilty of doing the act with the intent aileged,
but if on the totality of the evidence there is room for more than
one view as to the intent of the prisoner, the jury should be
directed that it is for the prosecution to prove the intent to the
jury's satisfaction.' Thus the rule turns out to be merely an
evidential presumption, a cornmon-sense inference that may be
drawn from circumstances. In fact the field of inference is wider
than the maxirn wodd indicate."
On the Arnerican law we find this comment by Professor Richard
hl. Wooner. It is a translation from the German (our own translation),
from page ~ogof Rfezger-Schonke Dus auslindiscbe Strafrechtder Gegen-
wad, Volume IV.
"In the case of Erfolgsdeliktes[that is, Mr. President, in the case
of crimes constituted only when an act has had certain consequences
and not by the act itself.For instance, a murder in contrast to the
pointing of a fire-am.] it is inferred, until the contrary is shown,
that criminal intent includes the foreseeing of consequences of con-
duct which experience shows are apt to occur."
The author then proceeds to quote (at p. 109) the following passage in
the decision in the Slatev.Phifer, 1884, 90 N.C. 721:
"The legal rules are based upon the presumption that everbody
intends the natural, that is regularly occurring or probable conse-
quences of his conduct ; the operation of this presumption, however.
does not, in fact, involve more than prima facie proof."
The author ptoceeds to point out that this presumption is one of fact
and not of law.
NOW,I pointed out, Mr. President, that in continental law no use is
made of this formulation at all. In order to illustrate the more straight-
forward approach to the problem of intent on the continent, it rnay be
sufficient to refer to Van Bemmelen and Van Haltum, Ha~zd en Leerboek
van ht Nederlandse Strafrecht (1953) p.age 264.The authors there
distinguish between two cases, one in which the "doer" or "actor" in
fact realized the possibility that his act would result in certain conse-
quences; and the second, in which this possibility was not so realized.
In other words, the differencebetween the intent which the manactually ARGUMENT OF MR. DE VILLIERS 649
subjectively had-the contemplation which was in his mind in fact-
and the contemplation which a reasonable person may or may not have
had in the circumstances. Distinguishing between the case where the
actor in fact realized the possibility that his act would result in certain
consequences and that where Iie did not realize that, the authors say-
"In the last case one can never speak of intent. If the circurnstan-
ces are such that the non-realization of the possibility is tantamount
to gross remissness, then it is a case of negligence."(P. 264.)
Again it is our own translation.
The distinction drawn is this-if it is merely a question that the man
ought to have realized that his acts would have certain consequences
but did not, in fact, realize it, then he could be guilty of negligence but
he could not be said to have had the intent to bring about the consequen-
ces of his act. That intent he can only be said to have had if he, in fact,
had such a contemplation.
So, Alr. President, at the very most the rule that a man is presumed
to intend the reasonable consequences of his act, is a rule of evidence,
not arule of substance of law. The rule is applied merely to raise a prima
facie presumption of intcnt-intent seen as a single and indivisible con-
cept.
But while the Applicants avail themselves of this rule in their effort
to show that Respondent acted intentionally or deliberately, they deny
that the Respondent is entitled, to adduce evidence-if such evidence
should be necessary-to rebut any inference raised by the application of
the rule. In other words, they elevate a rebuttable, factual presumption
to an irrebuttabIe legal presumption and they do so also to create a pe-
cuiiar brand of intent, which they say is "the lawyer's sense of the use of
the word" as distinct from "intent" apparently in the ordinary sense of
the word. We submit Mr. President, that there is no justification for this
distinction between two so-called concepts of "intent" orfor the process
of elevating this rebuttable, factual presumption to anirrebuttable, legal
presumption.
Now, we find, Mr. President, that the Applicants protest against this
approach on our part by saying that if Respondent's intent were to be
determined othenvise than by applying the legal presumption advocated
by them, they would be at a loss to determine what evidence to adduce.
Wefmd thatstated in the verbatirn record at page 121,supra, where they
say-
"The Applicants submit that the question at issue is not the
subjective motivation of a particular government, or of a group
within a govemment,or of a single official, or ofa single department
of a govemment. The only sense in which a subjective test of good
'faih could be relevant to the motives of individuals who, severally
and collectively, and from time to time, from the executive, legisla-
tive and judicial branches of any government, would be by applica-
tion of the universally accepted principle that an individ.1 or an
entity is legally presurned to intendthe reasonably foreseeabIe con-
sequences of his, or its, actions."
They go on to say-
"Any other rneasure of Respondent's obligations under Article 2
of the Mandate, in terms of good or bad faith, would necessarily650 SOUTH WEST AFRICA
confront this honourable Court, or an administrative supenrisory
authority, with the task of judging the Mandatory's conscience,
rather than its conduct. If such a legal yardstick were to be the
measure of Respondent's obligations under Article 2,paragraph 2,
of the Mandate, the Applicants themselves would be at a loss to de-
termine what manner of evidence of breach would be relevant, save
perhaps explicit and unrepudiated admissions by Respondent's
highest officiais, that their policies were, indeed, directed toward an
illici- purpose."
&Ir.Presidcnt, we submit, with the greatest respect, that this cornes
strangely froni an experienced la~vyer.Surely all lawvyersknow that there
are various techniques applicable in such an enquiry. It is essentially
an enquiry of fact, and wherever the question of intent on the part of a
person or a body or a coIIection of perçons jointly or collectivelp forming
a body, is in issue and is legally relevant, then the Court must embark
upon that enquiry as best it can, and both Parties know what types of
evidence would be relevant in order to establish that intent.
It is always permissible, and indeed desirable, to revert to proof by
circumstantial evidence, that is,by showing al1 the circumstances of
the case, because statements may be made by a particular person or by
a particular body, and a question can arise: is that man speaking the
tnith? 1s that body speaking the tnith? 1sthe intent which they had in
this particular case actually that which they profess to have had or are
they pretending something different from what they really intended?
In order to test a proposition of that kind it is always necessary,
of course, to have regard to al1 surrounding circumstances and to draw
inferences from the surrounding circumstances on the question of what
the relevant intent must be taken to have been. Rut that is a far cry
from indulging in an artificial enquiry ; from saying that we look only at
part of thepicture ;that weapply only the maxim that a man ispresurned
to have intended the natural and probable consequences of his actions and
thereby we arrive at an irrebuttable result. We look at al1the surrounding
circumstances. If it iproved in a particular case hlr. President, that the
accused person stood before the deceased-let us Say ina murder case:
with a huge stone in his hands, that he lifted the stone and he threw it
onto the head of the deceas.cn. If it is proved that he was in his sound
andsober senses, that there was nothing wrong with him, that tliere was
no reason rvhy he could not foresee the naturai and probable consequences
of his action-if he should then come and tell the court that he, in fact,
did not foresee that that stone was going to kill the deceased he will
probably be disbelieved by the court, or by the jury whichever it might
be. In ordinary common sense, the court wauld come to the conclusion
that such evidence could not be believed. Therefore, it is always necessary
to test whatever a person might say as to his intent, also in the light of
surrounding circumstances and the inferences which might flow from
those surrounding circumstances. If it could be proved by evidence that
this person, to whom 1referred inmy example, was walking in his sleep,
then, of course,a different result would follow. But that would then be
one of surrounding circumstances to take intoaccount, in order to decide
whether he could or could not have been speaking the truth. Evidence
would be relevant to prove whether he had been walking in his deep
previously; whether similar things had happened to him previously
in order to test his veracity or his credibility in this particular respect. ARGUMENT OF MR. DE VILLIERS 65 1
But the enquiry, as a whole, would be one of fact and there is no reason
-no justification whatsoever-for saying that it is one in which one
party or the otber might not know what type of evidence to adduce in
order to prove any proposition relative to intent.
Therefore, Alr. President, in our submission the Court, in so far as it
regards intent as a relevant consideration, wil determine the question
of Respondent's intent by having regard to al1relevant evidence. It wiil
have regard to the weight to be assigned to circumstances; to the pos-
sible inferences to be drawn from circurnstances. It will have regard,
where necessary and where relevant, to statements made by officials,
by poljcy makers, by political leaders of the Respondent. It will have to
decide in the light of al1 the circumstances what particular weight and
credibility should be assigned to a particular statement or to a particu-
lar pieceofcircurnstantialevidence and in the end it \vil1applythe funda-
mental principle that, if one reasons by inference and if one is to corne to
a conclusion by inference, the inference to be arrived at must be a neces-
sary inference in the sense that it is consistent with al1the proved rele-
vant facts, and that the proved relevant facts exclude al1other reasonable
possibilities.
It seems, hfr. President, ifwe revert to the Applicants' pleadings,
that they themselves are aware of the fact that intent can be proved
in various ways. They have, indeed, apart from seeking to draw inferences
from facts set out in the pleadings, also referred in various places to
statements by Respondent's officials, and they have quite obviously
quoted those statements for the purpose of showing what was the under-
lying intent, and how Respondent's poIicies and practices were to be
interpreted as far as thejr objectives and the underlying intent were
concerned. We find, for instance, in the Memorials, Z,at page 257, a re-
ference to statements made by the South African hlinister of Bantu
Education in May 1960, and Applicants themselves say they do this for
the purpose of giving :
"A grim insight into the quality of education offered for 'Natives'
in the Bantu institutions, as well as the spirit in which it is
offered, ..."
Mr. President, quite obviously where they seek to estabiish the quality
of education offered-the spirit inwhich it is offered-they try to do so
through the medium of a particular statement made by a particular
official.Again, in the Reply the Applicants cite several passages from
different speeches bythe liespondent's Prime hlinister, on pages 263 (IV)
and following, and obviously their purpose again is to illustrate what
Respondent intends to achieve, in the Applicants' subrnission, with a
policy of separate development. So, the intent which the Applicants
seek to derive from these passages must, in some way, in their view be
relevant, but, on the other hand, Mr. President, factual information
tendered by the Respondent so as to place those extracts in their proper
perspective and against their proper background so as to assist in the
interpretation of those extracts from speeches, and in order to show that
they, in fact, retreal a different intent from that contended for by the
Applicants, are treated by them as evidence ïvhich is irrelevant. Such
information which is tendered towards showing Respondent's good faith,
is regarded under Applicants' general formuIa as entirely irrelevant.
The most striking example, Mr. President, of the Applicants' realiza-69 SOUTH WEST AFRICA
tion of the fact that intent cabe proved by direct evidence of a person's
state of mind is to be found in their treatment of Respondent's alleged
violation of the obligation to respect the international status of the Terri-
tory. The Court will recali that the ~lemorials, 1, pag186, have a por-
tion under the heading "The avowed intentions of the Union", and under
that heading we find that the Applicants cited extensively from speeches
made by Respondent's Prime Minister at that time, in order to prove
that it \vas the Respondent's intention to incorporate the Territory into
South Africa. In explaining their introduction of this exposition, the
Applicants said in the Nernorials at page 186:
"Piece-meaI incorporation arnounting to de factoannexation is
both insidious and elusive. Motive is an important indicator since
it sheds light upon the significance of individual actions, which
might othenvise seem ambiguous",
and they cite these statements in order to show the intent or the motives
for which they contend.
Having dealt with Respondent's so-called avowed intentions, the Ap-
plicants then proceeded to set out acts of Respondent which were alleged
to be inconsistent with the international status of the Territory. In the
introduction of this topic, the Applicants said the following ithe Memo-
rials, at 1, page189:
"The intent of the Union, as descnbed above, is manifest not
only from officia1statements, but it haç been given practical effect
by, and explains, Union action."
[Public heuring of 23Afiril 19651
Mr.Presidentand honourable hlembers, before the ajourment yester-
day we dealt with the Applicants' contentions regarding the concept of
intent in so far as that may be relevant to their case on the alleged
violation of Article2, paragraph z,of the Mandate: intent, that is, on the
Respondent's part, as regards its policies.
To round off that argument 1 may just brieily state the conclusions
at which we arrived.
Firstly, we showed, with subrnission,Mr, President, that Applicants do
not explain on what legal basis intent is relevant at al1totheircontention,
now that their contention is said to rest entirely on the modem norms
and standards which are advanced by them.
Secondry, we showed that the distinction which they seek to draw be-
tween so-called objective and subjective intent iswithout substance, and
that there is only one concept of intent, as known to the lawyer and to
the layman.
Thirdly, we showed, Rfr,President, with submission, that the SO-called
presumption that a man intends the natural and probable consequences
ofhisactsis neither an exclusivenor an irrebuttablemethod of ascertaining
jntent, but that it is merelp a generatization of a rebuttable method of
proof which can, in a fit case, provide some aid in thetotal enquiryas to
intent.
Fourthly, we saw that in such a total enquiry as to intent various
techniques can be ernpioyed and combined and that these can include
consideration of direct evidence and statements in regard to intent, as
well as the drawing of inferences from conduct and circumstances. We ARGUMEST OF MU. DE VILLIERS 653
saw, Mr. President, that it is only in this last respect that this generaliza-
tion that a man intends the natural and probable consequences of his
acts, plays or can play a limited role in a fit case.
We demonstrated further, Mr. President, from the Applicants' own
pleadings, that they themselves realize that intent can be proved in vari-
ous waÿs and, amongst others, through statements of officialçand office-
bearers of the body bvhoseintent is in issue.By way of illustration we
referred to various statements quoted in the Applicants' pleadings for
thispurpose, not only in regard to the charge concerning u-eil-being and
progress under Article 2,paragraph 2, of the Mandate, but also in regard
to the charge of alleged violation of the international status of the Terri-
tory,~vhichis brought under Article 2,paragraph 1,of the Nandate. We
referred, merely by waÿ of example, to the manner in which intent was
treated also inrelation to that particular subject.
We shall pursue that aspect of the matter later and demonstrate that,
in regard to that charge-the charge of violation of the international
status of the Territory-the Applicants have, also, since the commence-
ment of the proceedings considerably changed their attitude about the
intent aspect. For the moment 1do not wish to pursue that point. 1shall
come to that when we deal with the otlier portion of the case, and with
thnt particular charge.
For the moment 1 wish to deal only with the charge under paragraph
2, of Article 2, and to revert to the legal basis of the Applicants' case
in that regard, i.e., bvith the legaI basis thereof as they formulate it now.
On analysis it seerns, Mr. President, that the Appiicants have clearly
come to realize the dificulties involved in basing their case entirely upon
the allegations of malicious intent and deliberate oppression on Respon-
dent's part as formulated originally in the llemorials. In the light of our
exposition of the full factsin the Counter-Mernorial, theyhave apparen tly
corne to realize that their allegations cannot bear examination when the
full circle factsis fully analysed and considered and when al1relevant
facts are brought into the picture, and consequently they attempt to
avoid this dificulty.
They have been doing it as from the Reply stage and they have at-
tempted to do so by two expedients. Firstly, they have been relying on
a norm, allegedly capable of exact and objective application, that is,
without consideration of the question of intent at all. Secondly, they
have sought to reduce the ambit of the enquiry in regard to intent by
limiting it through the application of this artificially defined objective test,
covered by the so-called presumption that a man intends the natural and
probable consequences of his acts.
We shall, Alr. President, demonstrate, with subrnission, that bath these
attempted remedies for the difficulties in which the Applicants found
themselves, have turned out to be as defective as their original approach.
1revert tothis norrn, or norms and standards on which the Applicants
have sought to place reliance asfrom the Reply stage wjth certain varia-
tions added thereto, to which 1 shall refer,in the Oral Proceedings.
We have sorne difficulty herein the sense that the Applicants, on the
one hand, speak in the singular of a "generally accepted international
human rights legal norm of non-discrimination or non-separation on the
bais of membcrship of a group, class or race" (p. 260, supra): that is
what we have, on the one hand-the concept of such a norm expressed
in the singular. Then, on the other hand, we find that the Applicants654 SOUTH WEST AFRICA
speak also in the plural of legal norms and standards, on which t hey Say
they rely. I must Say that to me the distinction between the two, as ad-
vanced by the Applicants, is far from clear.
It would seem, from certain expressions used by the Applicants and
certain explanations given by them, that legal norms are, according to
their contention, the product of standards, Le., that they are distilletl
or derived from, amongst others, "political, social and scientihc sources
and standards". That is a formulation we find in the verbatim record at
page 259, supra.
But then we sti11have legal noms in the plural, and this single norrn
of non-discrimination or non-separation appears to be a common de-
nominator of undefined norms-a common minimum norrn which is said
to be found in al1the relevant legal norms-and which appears to be the
ultirnate ground .up.on which the Applicants rely in their reference to
norms and standards.
That seerns to be one possible explanation of the relerence, on the one
hand, to norms and standards in the plural and, on the other hand, to
this norrn in tlie singular, which, for convenience shall refer to as a norm
of non-differentiation.
On the otherhand, RIr.President, from the manner in whichApplicantsl
case is preçented, Le., the reference at times to this norm in the singular,
and the reliance upon it in regard to the facts of the case, and, at other
times, a reliance in gencral on undefined norrns and standards, generally
applicable in modem circumstances-that some reliance is placed on
these undefinited norms and standards, as distinct from the reliance
placed upon the norm (in the singular) of non-differentiation.
Itmay be that my learned friend could clear that up for us, and ex-
plain whethcr there are two alternatives involved in his case in this re-
spect, orwhether the one is supplementary to the other, or ~vhether there
is simply a clistiltation from the norms and standards (in the plural)
to this one single nom-whether it is al1part and parce1of the same case.
It is not clear to me yet: possibly it will be cleared up in due course.
In the meantime we shalldeal with the matter on the assurnption that
we have trvo cases, or two aspects of a case, to meet, or possibly two
contentions in the alternative-one resting on this single norm of non-
differentiation andthe other resting,in addition,on norrns and standards,
undefmed, in the pluraI.
1 proceed first,Mr. President, to consider this so-called legaI norm of
non-discrimination. 1 shall refer to its history and I will demonstrate,
with subrnission, that, notwithstanding the Applicants' protestations,
thi norm was first born halfway through the pleadings stage ofthese
proceedings. It came asan afterthought at that stage, designed to rneet a
particular difficulty with which the Applicants found themselves con-
fronted.
je shall show further, Mr. President, that as a result of the answer
which we gave in Our Rejoinder to the Applicants' case based on that
norm, they have now, in these Oral Proceedings, introduced further
changes in their case in that respect. Thep have been forced to qualify
the content of this alleged norm in such a way as either virtuaily to
destroy it, or to make a new case again-a new case which kas not been
properly canvassed in regard to itsfactual aspectç through tlie pleadings.
1 shall explain later, in more detail, what 1mean in that regard.
1wish to start with the Applicants' Mernorials and point out in what ARCUMEST OF MR. DE VlLLlERS 655
way they stated the legal basis of their case in regard to Article2, para-
graph 2, at that stage. Right at the outset of their treatment of this
subject, the Applicants admitted in the Memorials, 1, at page 104, that
they were-
"...aware that differences of opinion could arise as to close or doubt-
ful issues concerning the application of the terms of Article 22 of
the Covcnant and Article 2 of the Mandate".
But they proceeded to contend:
"In the present case, however, the issues of fact and law, and of
the application of law to fact, do not invoive conjecture.The vio-
lation of the duty to promote 'material and moral well-being and
soual yrogress' is beyond argument." (1, p.104.)
Now the question arises, how did the Applicants proceed? How did
they propose to proceed beyond the conjectural sphere, where differences
of opinion could arise, to the stage of absolute certainty which did not
involve conjecture, and brought them to a result where the violation of
duty \vas beyond argument? In otlier words, hlr. President, what test
or tests did they at that stage suggest should be appliedin order to arrive
at that conclusion? We find part of the answer to the question given in
the nlemorials irnrnediately, following on these passages, at pages 104-
105 (1)(1Say part of it because there is anotherpart\vhich 1wili mention
later). The passage reads:
"Any doubt concerning the interpretation and application of
Article2 of the Mandate and Article 22 of the Covenant to this case
is resolved in the light of currently acceptedstandards as reflected
in Chapters XI, XII and XII1 of the Charter of the United Nations.
The Union, by becomjng a member of the United Nations, not only
must have accepted the validity of the principles contained in the
Charter, but by the act of mernbership, undertook to cornply tliere-
with."
The Court will notice that there is no reference here to a particular
norrn; there is a reference to resolving the doubts concerning interpre-
tation and application of Article 2 in the lightof currently accepted
standards.
Applicants then proceeded-no doubt because they realized that they
were charging Respondent with a breach of the Mandate and not with a
violation of any of the obligations of the Charter-as follows in the Me-
rnorials at page 105:
"The above cited Articles of the United Nations Charter are ilz
pavi matevia with Article 2 of the Mandate and Article 22 of the
Govenant."
And they proceed to put forward the argument, also at page 105, that
these chapters of the United Nations Charter could be used as a guide io
the interpretation of the Mandate. 1 am not concerned with the merits
of that argument for the moment; 1vedealt with that fully inthe plead-
ings. 1 am merely concerned with an analysis of the way in which the
Applicants then put their case.
They purported to fïnd further support for this argument of theirs in
the resolution ofthe Assembly of the League of Nations of 18April1946.
in which, the Court will recaI1, it was noted-656 SOUTH WEST AFRICA
"...that Chapters XI, XII and XII1 of the Charter of the United
Nations embody principles corresponding to those declared in
Article zz ofthe Covenant of the League". (1,p. 106.)
Mr. President, the Applicants accordingly used certain chapters in the
United Nations Charter as a basis for formulating these standards, which
they called norms, and against lvhich they proceeded to measure the
Kespondent's policies. 1 wish to àraw attention to this passage in the
hlemorials at page 107:
"It issubmitted thatthe terms of the second paragraph of Article
2of the Mandate and Paragraph x of Article zzof the Covenant and
their stated purposes, read inthe light of the terms and stated pur-
poses of Chapters XI, XII and XIII of the Charter, establish clear
and meaningful norms marking the duties of the filandatory."
The Court will notice, ~4th respect, the emphaçis placed in this passage
on the stated purposes both of Article 2of the Mandate and of paragaph
I of Article22 of the Covenant, and also of Chapters XI, XII and XIII
of the Charter.
Having quoted from Articles 73 and 76of the Charter as being relevant
provisions of Chapters XI, XII and XIII, the Applicants continue to
Say the following in regard to the content and nature of the clear and
meaningful norms ~irhich, they contended, were established by these
provisions :
"In accordance with these legal norrns, the Mandatory's duties to
safeguard and promote the 'material and moral weU-being', the 'so-
cialprogress' and the 'development' of the people of the Territory
must reasonably be construed to include": (1, p. 107.)
1 paiiçe there with this quotation for the moment. There follow eight
nurnbered paragraphs, in which, to ilse the Applicants' term, "duties"
of the Respondent are set out. This, then, was the distillation of clear and
rneaningful noms from the material to which 1 have referred, and to
which the Mernorials referredat that stage. And it is interesting to read,
in retrospect,hotv these ctear and meaningful norms, also called "duties",
were formulated. That we find at pages 107-10 1) of the Mernoriab.
They read as follows:
"(1) Economic advancement of tlie population of the Territory-
and notably of the 'Natives' who constitute the preponderant part
of the total population in agriculture and industr
(2)Rights and opportunities of members of t ie;population em-
ployed as laborers in agriculture or industry;
(3) Political advancement of such persons through rights of
suffrage,progressively increasing participation in the processes of
government, development of self-governrnent and free political in-
stitutions;
(4)Security of such persons and tlieir protection against arbi-
trar mistreatment and abuse;
5) Eqwl rights aiid opportunities for such persons in respect
of home and residence, and their just and non-discriminatory treat-
ment;
(6)Protection of basic human rights and fundamental freedoms
of such persons;
(7)Educational advancement of such persons; ARGUMENT OF MR. DE VILLIERS 657
(8) Social development of such persons, based upon self-respect
and civilized recognition of their worth and dignity as human
beings."
Mr. President, it will immediately become evident that the nature of
these clear and meaningful noms, or duties, is poles apart from that
of the alleged nom of non-differentiation now relied upon by the
Applicants, or relied upon by them as from the Reply stage. We find
that in the whole of this list whichIhave read out to the Court, there is
virtually no reference to a question of method. The formulation relates
in each instance to an aim, to a resuit to be achieved, to a purpose; in
other bvords, there is a linking up with the language "their stated pur-
poses" used by the Applicants themselves at page 107 of the hlemorials.
The only part of the formulation which could in some measure be said
to relate to questions of method is contained in No. (3) and No. (5)on
the list. In Bo. (3) we have the words "Political advancement of such
persons through rights of suffrage". In other wordç, a specific method is
indicated-it must be through rights of suffrage. And then in No. (5)it
is said that there must be "Equal rights and opportunities for such per-
sons in respect of home and residence, and their just and non-discrimina-
tory treatment". That is the nearest that the Applicants carne in these
formulations to questions of method.
For the rest we have, for instance, "Econornic advancement of the pop-
ulation", with further detail following on that, but nothing indicating
how that economic advancement is to be achieved; certainly nothing,
Mr. President,in that respect or in the case of any of these other duties
as here formulated, indicating that there is to be a method of non-separa-
tion, which has general application and covers this whole field.
\Ve have, in No. (7), "Educational advancement of such perçons"-
nothing to say that everybody must be in the sarne schooIs, or that these
must not be separate schools or the like-çimply "educational advance-
ment of such persons".
Therefore, Mr. President, it appears on analysis, even allowing for
this limited extent to which there was a reference to questions of method,
namely rights of suffrage and equal rights and opportunities, there was
nothing in the Memorials which indicated that the Applicants were rely-
ing upon a contention that there was to be an abstention from any form
of differentiation between different national and ethnic groups in the
Terri tory.
The formulation, therefore, concentrated on the objectives, on the
purposes to be attained, and left the whole question of method to the
Respondent 's diçcretion. We contended in that regard, in the Counter-
hlemorial, Mr. Preçident, that the clear and meaningful norms, or dutles,
in essence amounted to no more than matters to which it could, with
some qualifications, be said that Respondent ought to have regard as
ultimate aims in exercising its discretionary functions under Article z of
the Mandate.
Our comment in a portion which 1should like to quote, is to be found
in the Counter-Mernorial, II,at page 397. ive said there:
"... the duty to promote the material and moral well-being and
social progress of the inhabitants cannot be split up into a number
of different, self-contained fragments, butisin itsnature indivisible.
Although Respondent is in general agreement thatthe specific"clear658 SOUTH WEST AFRICA
and meaningful norms" relied upon by Applicants, can, on the whole,
be said to bematters to wkich regard ought to be had in tlie exercise
of the Mandate, it must be kept in rnind that they represent ultimate
aims, which in certain circumstances or at certain stages of develop-
ment rnay be inconsistent or even irreconcilable. It is therefore arti-
ficid,in Respondent's siibmission, to divide Respondent's duty in
terms of Article 2 of the Mandate into a nurnber of different obliga-
tions and then to suggest, expressIy or by implication, that Respon-
dent is obliged to attempt to comply with all these obligations to
the same degree at the same time."
That was our comment at the tirnc. In other words, we accepted that
these, seen as uitimate aims, were matters to which, in general, regard
ought to be had by a Rlandatory exercising a discretionary fuiiction,
but subject to the qualification which 1 have just mentioned, namely
that al1of them could not be advanced simultaneously to the same de-
gree because to some extent they wouId be conflicting when it came to
practical application, and, also, of course, subject to the qualification
that questions of method to be pursued were matters within the discre-
tion of the Mandatory.
In regard tothe two instances to which 1referred where the Applicants
did, to some extent, refer to matters of method-the one about political
advancement "through rightç of suffrage" and the other about "equa1
rights and opportunities for soch persans"-we contended that, ewn to
that extent, the Applicants went beyond the scope and the effect of the
provisions of the Mandate, Le., that even in regard to those matters of
method the choice was one within the Respondent's discretion.
We said the following in regard to the point of development of political
advancement through rights of suffrage at page 398 of the Counter-Me-
morial (II) :
"... Bejther in the Mandate, nor in the Charter, js there an!; pro-
vision requiring that the political advancement of the inhabitaiits of
dependent territories should necessarily be prornoted 'through
rights of suffrage'. Whereas Respondent admits that it is under a
duty ilzteralia toprornote the political advancement of the inhabi-
tants of the Territory, it is submitted that the method to be adopted
in this regard restsin its oxvndiscretion, which isto be esercised by
applying policies 'as may be appropriate to the particular circurn-
stances of [the] territory and its peoples'."
Those last words are, of course, a quotation from, 1 think, Article 73
of the Charter.
Respondent proceeded to say that while it was "in no way opposed
tothe idea of suffrage for al1orany peoples inappropriate circiin~stances",
it did not consider that provision for such rights in one integrated politi-
cal entity was the only, or the best, method of ackieving politicai
advancement in al1 cases, and that it was satisfied that "it would cer-
tainly not be the best rnethod for the peoples of South West Africa".
That is what we said in the Counter-hlemorial, II, page 398.
In other words, there was no objection at al1to the principle of politi-
cal advancement through this method of "rightç of suffragew-no dif-
ficulty about that at al1in appropriate circumstances. But, the quali-
fication was that the suggestion that that was to happen in South West
Africa through the medium of one integrated, political system concerned ARGUhlENT OF MR. DE VILLIERS 659
aquestion of rnethod with which Respondent was definitely not in agree-
ment.
We pointed out further in the Counter-Memorial that even in cases
where Respondent was in full agreement with the duties, or the so-called
norms, described by the Applicants, there was quite clearly room for
differences as to the best methods which could be applied to give effect
to the ideas expressed therein. And Ive illustrated that point particularly
with reference toduty number (5)on the iist, the one about "Equal rights
and opportunities .,, in respect of home and residence and their just
and non-discriminatory treatment". We ansbvered that proposition as
follows in the Counter-Mernorial, II, at page 398-
"Respondent için entire accord with this propoçition, although it
is evident that differences could ariçe as to the best methods of giving
effect to the ideal expressed therein. Reçpondent must stress that
in its view the expression 'equal rights and opportunities' is not to
be interpreted to mean 'indentical rights and opportunities'."
This is again, hlr. Yresident, a question of difference of method in
seeking to attain an ideal which is comrnon cause. In tliis regard we re-
ferred to a passage in the judgrnent of the Permanent Court in the
MinoritySchools in Albania case. I quote the following from the passage
as appearing in the Counter-Memorial, II, page 398:
"...equality in factmay involve the necessity of different treatment
in order to attain a result which eçtablisheç an equilibrium between
different situations.
It is easy to imagine cases in which equaIity of treatment of
the majority and of the minority, whose situation and requirements
are different, would result in inequality in fact..."
Mr. President, we may, then, surnmarize what we found in the Memo-
rials and how we reacted to it in the Counter-hlcmorial, The cïear and
meaningful norms were so formulated that they indicated objectives.
We stressed in Our reply tliereto in the Counter-Mernorial that those ob-
jectives, in so far as they were acceptable-and they were, on the whole,
entirelyacceptable as objectives, subject to the qualificatioiihave men-
tioned-alowed of a wide variety of methodç by which we could seek to
achieve thern: it did not mean, in particular, that everybody was to be
treated identically, in al1respects, in the process of promotion to the ut-
most.
This, then, was the position at which the Parties stood at the end of
the Counter-Mernorial before there came the switch to this general norm
of non-differentiation in the Reply. First of all, let us analyse whether
the Applicants in any way intended to indicate in the Mernorials that
these clear and meaningful norms were intended to have a fixed or a
definite content capable of exact application to the facts of each case,
or to the policies applied by the Respondent ,without regard to questions
of discretion or of method or of good or bad faith.
1 submit, Mr. President, that when we analyse the position, it seems
quite clear that the Applicants did not, at that stage, intend to suggest
anything of the kind-to suggest a full fetter on the discretion of the
Respondent in regard to the attainment of the ideals. They described
these norms as "legai norms" at page 107 (1) of the hlemorials, but
imrnediately preceding the term "iegal norms", they used the expression660 SOUTH N'EST AFRICA
"clear and meaningful norms". And, indecd, they indicated that the
words were to be regarded virtually as a paraphrase, or the equivalent,
of the "clear and meaningful norrns". Then, at page 104 (1) of the
Memorials, the Applicants speak of:
" ... currently accepted standards as reflected in Chapters SI, YI1
and XIII of the Charter of the United Nations".
These, Mr. President, are the self-same terms and stated purposeç as
those which, according to the Applicants' submiçsion at page 107 of the
Memorials, assist in establishing the "clear aiidmeaningful norms" or
the "legal norrns".
LVesee, therefore, that we hâve so-called "clear and meaningful iiorms"
and that they are also called "legal norms" but that they were not
intended to be anything more than the standards and the purposes
mentioned in Chapters XI, XII and XIII of the Charter of the United
Nations, and more particularly in sections73 and 76 thereof.
The other reason why this is perfectly clear, Mr. President, arises
frorn the fact that the Applicants did not, in their Rfemorials, re1y only
on these "clear and meaningful norms" in support of their proposition
that the violation of cluty on the Mandatory's part went beyoiid the
conjectural sphere aiid was, indeed, beyond argumerit. Thep proceeded,
after stating these norms, to indicate that, in fact, the policies pursued
by the Respondent amounted to a deliberate systeni of oppression of a
certain portion of the population. They said that not only did the
Respondent fail in its duty topromote to the utmoçt, but that it made
no significant effort whatever to do so. And they went on to use the
expressions to which I referred before, indicating a deliberate and
syçtematic course of conduct on the part of the Respondent; in other
words, an attitude of bad faith as far as the prescribed objectives of the
Mandate were concerned-an attitude, not of seeking to achieve the
prescribed objectives, but of seeking to achieve or pursue an ulterior
objective. That, then, was the basis upon which the Applicants sought
to establish, in the uitimate result, that the violation of duty could be
said to be beyond argument. The norms themselves and by themselves,
as the Court will observe frorn this analysis, could never have hrought
them tothat result. The norms merely split up the objectives into several
parts and such objectives remained objectives which could be pursued
through the exercise of the hlandatory's discretion.
13e that as it rnay, Mr. President, in the Counter-Mernorial the Re-
spondent showed that these various norms which the Applicants sought
to apply in the hlemorials, did not, evenifthey existed, materially affect
the discretionary nature of the Respondent's powers under the Mandate,
and that due application of the Respondent's discretion led to practical
results which were opposed to those desired by the Applicants.
In the Counter-hlemorial, Mr. President, we alsodealt verqrfully with
al1 relevant facts bcaring on the question of the real intent of the Re-
spondent Government in regard to the policies applied to the various
popuIation groups, and we dernonstrated that the intent and purposes
and objectives were not oppressive of any portion of the population,
as had been alleged by the Applicants, but that they were, in fact,
objectives airned at the upiiftrnent of al1 the population groups and
at bringing them al1to a point of self-determination and self-realization
which would be fair and just in the circumstances, having regard to ARGUMENT OF MR. DE VILLIERS 661
conflicting interests and to the necessity of bringing about a state of
equilibrium, as mentioned in the judgrnent of the Permanent Court in
the Minorit SchooZs in Albania case.
It is against this background, Mr. President, that the significance of
the new norm, as formulated in the Reply, must be viewed. In the
Reply, IV, at p. 493, we find the norm defined by the Applicants as
follows:
"... the terms 'non-discrimination' [and] '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 . . . indi-
vidual merit, capacity or potential: stated affirmatively, the tems
refer to governmentai policies and actions the objective of which is
to protect equality of opportunity and equal protection of thelaws
to individual persons as such".
One seesat once, Mr. President, the essential difference in character
between this norm and the norms, or standards, as presented in the
Memorials. The norm in the Reply is given the character of a precise
prescription of what the Respondent may and may not do in the exercise
of the Mandate. It is a prescription against which the Respondent's
conduct can be tcsted objectively because the prescription relates to a
mattcr of method of attaining the prescribed aims-a question of
method which covers the whole field. Throughout the whole field of
advancement-political advancement, economic advancement, educa-
tional advancement-it is sought to prescribe a method which is to be
applied, and it immediately becomes clear that it contains a concept,
which was certainly not present in any of those rneaningful norms and
standards suggested in the Memorials.
The Applicants go on in the Reply, IV, at page 493, to say that this
norm gives an "objective content to Article 2, paragraph 2, of the
Mandate". In other words, the norm iç presented as one which defines
aspects of Respondent's obligations in terms as definite as those con-
tained in Articles3 to5 of the Mandate. It is capable of ready application
to the facts ofa particular situation, as objectively and without reference
to the question of motive, purpose, or intent, as is the position under
Articles 3 to5 of the Mandate. We gave an analysis on that point inthe
Rejoinder, V, especially at pages 166-167.
Le pointedout in the Rejoinder, V, page I19, that if there existed such
a norm as defined in the Reply, and as 1 have just read out, and if that
norm had formed a part of the Mandate, then :
". .. it would have the consequence that Respondent's admitted
policiesof differentiation would constitute a contravention of the
Mandate even if the Court were to hold that such policies were
intended to enure, and did in fact enure, to the benefit of the popula-
tion as a whole".
That is quite obvious,Mr. President, fromthe unqualified way in which
this norm was stated inthe Reply, in terms of the definition which1have
just read out.
It, therefore, seems clear that the noms of the hlemorials were not of
the same kind as this "norrn of non-discrimination or non-separation",
and that is the reason why we can, with subrnission, say with every662 SOUTH WEST AFRICA
justification that Applicants have indeed introduced a new cause of
action in the Reply-something which was neither expressly, nor
irnplicitly contained in the Applicants' case, as forrnulated iiiitially in
the ivfemorials. We deal fully with this subject in the Rejoinder, V,
pqeNow, Mr. President, my learned friend, Mr. Gross. exprcssed surprise
at Oursubmission that a new cause of action was involved. 1 refer to the
verbatim record, at page 253, supra, where he stated:
"The only 'cause of action' involved in the present proceed-
ings, ... in the vie\\. of the Applicants, is that embodied in their
Subrnissions Nos. r tlirough 9,and the Prayer for Relief, ail of
which are set out in the Mernorials at1,pages 197 and 198.That has
been, and remains, the 'cause of action'."
Mr. President, it may be that my learned friend and we are not ad idem
as to the meaning of the expression "cause of action". As we know it in
our practice, the expression refers to al1 those elements which a party
has to prove in order to establish his case, i.to,show that he is entitled
to the relief which he claims, or, as in this case, that Applicants' sub-
misions are well-founded. In other words, there is a complete distinction
between the cauçe of action, on the one hand,and the relief claimed, on
the other hand-the submissions, or prayers, as we cal1 them in our
practice, or prayers for relief.The cause of action iç that tvhich has ta
justify the prayer for relief, or the submission, and it is in that sense
that we Say that a new cause of action has been substituted. It is a
setting out of the factual allegations which, upon an application of the
law to the facts, would entitle a litigant to the relief which he claims by
way of his submiçsions, or his prayer for relief.
It needs no argument, Mr. Yresident, to show that submissions, or
prayers for relief,may be based upon various grounds. They rnay be
based upon alternative groundç or, as has happened here, in our sub-
mission, one may start off by putting forward one ground for the prayer
for relief and then switch over completely from that to an entirely
different one-that, we çiibmit, is what haç happened here. The mere
fact, therefore, that the prayers for relief, or the submissions, remain
the same, is no proof at al1that there has been no change in the cause of
action.
On the question whether the Rcply in fact introduced a new elernent
in the shape of this alleged norm of non-differeatiation, the Applicants'
argument is, in our submission, anything but clear. If we analyse what
they Say in the verbatim record of 24 hfarch, at page 253, supra, then
the argument seems to amount, in a nutshell, to this: Our submission as
to a change of cause of action is unjustified because the Applicants have
in the Reply "elaborated certain contents and sources of the suggested
norms". That is the way in which they represent it noiv.
They go on to say that their "reference to the terms and purposes
of Chapters XI, XII and XI11 of the United Xations Charter urasnot, of
course, intended to imply that these ... [noms! and purposes [Le.,
those set out at pages 107-10 1) of the -ifernorials] marked the full
measure and extent of the legal norms applicable to the Covenant and
relevant to the interpretation of the Mandate" (p. 253, supra).
&Ir.President, it inot nearly as easy as that for the Applicants. It is
not merely a matter of elaborating certain contents and sources of the ARGUMEXT OF >IR.DE VILLIERS 663
suggested norms, nor of contrasting a "full measure and extent of the
legal norms" with a lesser "measure and estent". It is a matter of sug-
gesting and advancing an entirely different type of norm. As 1 have
stressed, it is a norm which covers the whole field of the Mandatory's
endeavours to promote to the utmost, and prescribes to it a rnethod of
action which it is to apply in al1its actions in seeking to promote to the
utmost. It is something which imposes a "must" upon it and which takes
away its discretion in that regard. And it is, in these respects, com-
pletely different and completely new, as compared with the formulation
of the "meaningful norms and standards" at the 3Iemorials stage.
My learned friend also stated:
"(a) an international ... norm does exist which rnay fairly be
described as a norm prohibiting officia1governmental alloca-
tion of status, rights, duties and privileges upon the basiç of
membership of a group, class or race, without regard to indi-
vidual merits, capacity or quality;
(6) that such legal norm is applicable to, and determinative of,
Kespondent's obligations in terms of Article 2, paragraph 2,
of the Mandate;" (p. 267,supra).
Here, in tlie Oral Proceedings also, Mr. President, my learned triend
makes it clear that the norm, as so frarned, prohibits certain conduct:
in other words, it is arulewhich deprives Respondent of its diçcretionary
powers on questions of method, and, as I have said, it extends over the
whole field of endeavour to prornote to the utmost.
This is also, a1 have pointed out, the effect of the mle as itappeared,
on analysis, to be stated in the Reply, and there can, therefore, be no
doubt at al1 that the de, as introduced at the Reply stage, was an
entirely new one, whatever the reason may have been for that change.
The next point of importance to which 1 wish to proceed is the fact
that there has been a further change in the oral argument in regard to
the Applicants' case on that norm. They have now found it necessary to
quaiify that norm as originally defined in the Reply, and to Say that it is
not to be taken as an absolute one which must be applied in al1circum-
stances.'In other words, Mr. President,it is now no longer possible to Say,
as we did in our Rejoinder, that the Respondent's admitted policies of
differentiation would necessarily, and per se. constitute a contravention
of ths norm. We said there-
"even ifthe Court were to hold that such policies were intended to
enure, and did in fact enure, to the benefit of the population as a
whole" (V,p. 119).
The norm as originally formulated in tlie Reply was an unquaIificd one.
Tt applied to al1 forms of differentiation without exception, differentia-
tion on the basis of group, race, colour, ris the case might be. There was
no qualification of that proposition, and, therefore, we could Say, on
analysis, and Say correctly, in aur submission. that Respondent's con-
duct would be unIawful for contravention of this norm even if its policies
were, in fact, intended to enure and did, in fact, enure to the benefit of
the population as a whole.
Now, Mr. President, what qualification is it that the Applicants have
sought to introduce in their oral argument? It is not ciearly developed,
nor stated in detail, nor analysed in regard to its implications, but lt 664 SOUTH WEST AFRICA
seems to arnount to this: that in aorne instances differentiation on the
basis of groups is permissible, and that those instances are such as coutd
be described as group protection. Thus the Applicants Say according to
the verbatim record at page 262, swpra:
"The question of differentiation as such does not arise; if itdid,
the minorities treaties themselves would be subject of attack, which
they clearly cannot be. What is at issue here is, as has been said,
the officia1governmental policy of allotting rights, duties, burdens,
etc., upon the basis of membership in groups."
The Applicants also proceeded to say, according ta the sarne verbatim
record, at page 263, supra:
". ..the concept of genuine 'group protection' for those who desired
and required it-protection as distinguished frorn coercion",
was and is widelv acce~ted.
They Say, in fact, illr'.President, that the concept of group protection,
and the norm of non-discrimination and~-o----~aration. are corn~lemen-
tary. That we find in the verbatim record at Page ~6~; sufifa.In-other
words, this concept is now to be read intothe norm as a qualifying factor.
There is in general to be no differentiation on the basis of group, tribe,
race or colour, but, as an exception, there is to be allowed, apparently,
differentiation for the purpose of group protection. 1 do not quite know
which phrase to use-"for the purpose of", or "having that effectl'-the
Applicants did not say.
Rlr. President, in our submission, this qualification strikes at the very
heart of the Applicants' norm of non-differentiation as advanced in this
case, and having regard to the purposes for which it is advanced. The
purpose of bringing that norm into the case, the Court wil1recail, was to
have something by which Respondent's conduct could be measured ob-
jectively so as to avoid having to establish the malicious intent about
which the Applicants found themselves to be in difficulty. They conse-
quently had to find sornething, by which they could objectively, i.e.,
vith ho bringing anything in the nature of intent or state of mind into
the picture, Say the Respondent's conduct constituted a violation of the
Mandate. When we look at this qualification which they now introduce,
and take it to its logical conclu~ion, it demonstrates, in our submission,
nothing less than that there is a discretionary power vested in the Re-
spondent as to the circumstanccs and the cansiderations which justify
group differei~tiation: in other words, that, by this qualification, the
Applicants have brought back the discretion which they sought to re-
move in the first instance.
Rlr. President, let us briefly analyse the Applicants' statement that
genuine group protection is permissible for those who desire and require
it. Who decides what measure of protection is necessary? Who decides
on the methods to be adopted in order to achieve protection? And pre-
cisely what, Mr. President, does the concept of protection inchde? Those
are questions which arise. What is the position where a group desires pro-
tection without possibly requiring it, e.g.,if a group says "1 want this
protection" but other people think that they do not require it, or that
they have no just clairn to it. Who decides whether differentiation is re-
quired or necessary as a protective rneasure? What isthe position where
agroup requires protection but is, because of its state of development, ARGUMENT OF MR. DE VILLIERS 665
state of disorganization, or similar reasons, unable to give proper ex-
pression to itç spccific needs? Who decides in cases where a group might
require protection, but that group does not think that it needs protec-
tion? Mr. President, what test or norm must be applied by the one who
has to decide such questions as 1 have just mentioned? The Applicants
have not dealt with that at ail. They have not said who or what pre-
scribesto the Mandatory what to decide in cases of this kind.
The only logical, the only possible answer, in Our submission, which
could be given to questions of this kind, is the general one, namely that
necessary decisions fa11within the cornpetence of the discretionary powers
vested in the governing body. In the case before the Court, it is the Re-
spondent Governrnent. We do not have to go through thisprocess of say-
ing that there isa norm that you should not differentiate, but that you
may have exceptions tothe norm according to your discretion. The whole
matter is entrusted to the discretion of the government concerned. That
isthe pure and simple ansbver to this whole situation, and it Icads my
learned friend out of al1of his difficulties. It leads him out of thedifficulty
of attempting to formuIate a prohibition for the Mandatory, for as soon
as he formulates it, he lands himself in such difficulties that he has to
qualify, and when he qualifies, he qualifies to such an extent that he is
right back in the discretionary sphere of the Mandatory's powers.
Mr. President,another aspect of this distinction, or qualification, calls
for attention,and that isthis: how can one distinguish between the two
concepts of protection, which is allowed, and coercion, which is not
allowed.How can they be said to be exclusive concepts? Clearly theyare
not. As soon as 1 have a legislative measure which 1 consider to be
necessary in order to protect a certain group, surely that measure, in
order to achieve its purpose, must have certain coercive aspects. It could
be coercive as far as that particular group is concerned, or, at least it
couldbe coercive, andit must necessarily be coercive as far as othergroups
are concerned which do not share that protection. When 1Saythat Na-
tives alone are entitled to own land in a certain area, then coerce other
parties-ther persons-who might be interested in buyjng land in that
area, forI make it impossible for them to do so. By coercion 1keep people
separate, but I do so for the purpose of protection. So how are those con-
cepts to be regarded as mutually exclusive? 1çimply do not followthat.
1do not follow, Mr. President, how the Court decides whether a particu-
lar measure is to be regarded asprotection, or as coercion, when it car-
ries within itself both of these aspects.
Another question arises with which my learned friend has not dealt:
can protection, according to his norm, be extended to underdeveloped
groups only, or also to a more developed group such as-let US take as an
example-the European or white group in South West Africa, a group
whose presence is necessary and desirable for the economic advance-
ment of the Territory? Suppose a Mandatory in its discretion decides
that such a group's presence is necessary for that particular purpose and
suppose that is a sound decision, is the Mandatory then allowed to apply
rneasures to protect the interests of that particular group also, in so far
as it may be necessary, against possible encroachments upo? its domain
from the side of less developed and more nurnerous popuIations? IS that
possibility included in the norm, or is it not, and if it iç not included in
the nom, on what basis of justice or modern standards or ethics or any-
thing on which my learned friends relies for determining his norm is that666 SOUTH WEST AFRICA
exclusion to be justified? \Ne just do not know. Mr. President, the posi-
tion is either that these matters are, as we say, al1to be left entirely to
the discretion of the rnandatory government-i.e., the Mandatory is to
decide in its discretion, honestly, what to do in these cases, and the only
basis upon which the Court tests it is whether its honest in its decisions-
or else the Court would have to undertake this impossible task of analys-
ing measure for measure and of determining in each case: is this a case
of protection, or is it a case of coercion? And the Court would somehow
have to find answers to the various questions1 have mentioned in applying
that test.
Mr. President, this brings me back to the fact 1 mentioned earlier,
namely that if this is to be the enquiry which this Court has to conduct,
then the Court is being asked at tliis late stage of the proceedings-alter
al1the pleadings have been closed only at the oralstage of the proceedings
-to undertake a completelp new canvassing of the facts, because every
measure, every policy, every practice involved would have to be tested
according to tliis new criterion: it is something to which no attention
at al1was given anywhere in the pleading stages. 111each instance in the
case of the provisions of any particuiar Statute, we shall have to analyse
the surrounding circumstances, the facts, the background, and ask:
can itbe said to have been a measure for protection, or must it be said
to be a measure of coercion?
hfr. President, as1 have said, the question is not merely a legal one;
it requiresan appreciation of facts, and, in order to determine a question
of that kind, it requires that the relevant facts shoube properly brought
before the Court. Nobody has attempted to bring facts bearing upon that
question before the Court, sirnply because thcre was no allegation of
this kind before; there was no charge formulated on this basis. If the
Court should, therefore, come to the conclusion that this is thenature of
the enquiry to be conducted by it,the Court should conclude that after
consideration of this legal argument. It seems that the whole position
would have to be reconsidered. One would have to see whether leave
should be given to the Applicants to arnend their pleadings so as to
introduce this charge, and, also, whether leave should be given to the
Respondent to reopen its pleadings in order to deal with the facts and
aspects of the matter in this regard. That is the logical conclusion in this
respect to which the Applicants' contentions lead us. But in truth, Mr.
President, I subrnit that this is merely a further demonstration that the
whole of this contention of the Applicants as a matter of law is entirely
without substance, and that there is no justification whatsoever for find-
ing that such a vague norm exists-a norm which is incapabIe of exact or
intelligibly precise formulation on any known principle of interpretation
or on any application of the normal sources from which legal obligations
and legal norrns are derived. The analysiç and review of the history of
this norm, and of the qualifications now introduced into it serve, in our
subrnission, to confirm that the matter isone to be left entirely to the
discretion of the Mandatory; that that is how it jas intended by the
authors of this system; that that is the ordinary, legal effect of the
instrument; and that no interpretation or any other process can introduce
a qualification of this kind into the Iegal approach to the matter.
Now, Mr. President, in view of this change in the Applicants' case,
it may be necessary-1 refer to it in passing-to be explicit about a
particular point to which the Applicants referred in these Oral Proceed- ARGUMENT OF MR. DE VILLIERS 667
ings as being an admission on our part. Rly learned friend, Mr. Gross, on
behalf oi the Applicants stated in the verbatim record, page 261, supra:
"Itshould be noted that Respondent has conceded that this basic
and minimum international standard 'would, if it existed, provide
an objective criterion for measuring Respondent's policies'. [He re-
ferred to the Rejoinder, V, page 165.He proceeded :] 1talso is con-
ceded by Respondent that if the Mandate contains such a minimum
basic standard, then, again in Respondent's ~vords,'Respondent's ad-
mitted policies of differentiation would constitute a contravention
of the Mandate'."
Kow, Mr. President, it will be quite evident that these concessions on our
part related to the norm in its absolute form, as it wasstated in the Reply.
Indeed, in this last passage from the Rejoinder, quoted in part by the
Applicants in the passage 1 Iiave just rcad, there followed immediately
the following words which 1 read out to the Court earlier this morning,
narnely "... even if the Court were to hold that such policies were in-
tended to enure, and did in fact enure, to the benefit of the population
as a whole" (V, p. 119).These words were omitted from the Applicants'
quotation, and the Applicants in effect, in these statements to the Court,
suggest that this extract from the Rejoinder, this concession on our part,
wouldstillbeapplicable also to the norm as amended in these Oral Pro-
ceedings. Now that, emphatically, Mr.President, isnot the case. Ive do not
concede that our policiescontravene this new "protection, not compulsion"
formula. That would involve an entirely new enquiry, as 1have said, ifit
were to be undertaken in every case. In general, &Ir.Preçident, if we have
regard to the underlying considerations of fairness and justice-which,
it would seern, compelled my learned friend to introduce this "protec-
tion, not compulsion" formula-then we submit that our policies comply
in every respect with those underlying ideas, those underlying concepts, of
fairness and justice. It is especiatly because of considerations of protec-
tion, fairly applied in theircumstnnces of the Territory, that ithas been
found necessary to have differentiation; but we do not see the logic of
saying that it must be protection, not compulsion; we do not see any
logical possibility of keeping those two separate as concepts.
Rlr. President, 1 proceed to consider the AppIicants' contention re-
garding the so-called norm of non-differentiation from another angle,
which, in Our submission, independently demonstrates its untenability.
In the Kejoinder, V, at pages 123-127w ,e showed that-
".. .themandate system, by its very terms as well as its underlying
philosophy, according tothe contemplation of its authors, the policy
of the Permanent Mandates Commission, and the practical applica-
tion of the system by Mandatory Powers, pemitted and indeed re-
quired differentiation among various ethnic, linguistic or cultural
groups, and, consequently, arnqng their individual members, on the
very basis of membership in such a group". (V,p. 127.)
That was a conclusion stated after the subject had been reviewed.
hlr. President, it stands to reason, accepting forthe moment the correct-
neçs of that submission (1shalI deal with the argument in support of it
in a moment) that not only would this nom contended for by the Appli-
cants which prohibits such differentiation, first, in an unqualified way,
as stated in the Reply, and now, with qualifications, as stated in the
oral arguments, mean the addition of such a norm to what was agreed668 SOUTH !EST AFRICA
upon in the mandates system, but it would also, to avery large extent,
be a complete reversal ofconcepts which went into the mandates system
aç legal norms binding upon the Mandatory. That appears very clearly
from the material to which we refer in the pleadings in support of the
conclusion which 1 have just read out.
We pointed out in the Rejoinder, V,pages 123-124. that the prevalent
philosophy, during and after the First Iorld War, placed more emphasis
on the right of national groups of self-realization than hasbeen current in
certain spheres of the international scene in more recent tirnes.
We pointed out that this philosophy was effectuated, arnongst others,
by the creation of national States out of the remnants of the German,
Austro-Hungarian and Ottoman Empires, as well as by the minorities
provisions. Ishould like to rcfer the Court in this regard to pages 123-124
of the Rejoinder (V).
1mentiononly some aspectsof ourtreatment ofthesubject. 1 am not go-
ing into it in detail, asit is set out in the Rejoinder.
We quote, for instance, from the 14 Points of President Wilson, Point
9 in which he set out the aim of "A readjustment of the frontiers of Italy
along clearly recognizable lines of~tiodity' " (italics added)(p. 123) ;
then Point IO-"The freest opportunity of autonomousdevelopment to
the peoples of Austria-Hungary ,which it was not intended to destroy "
(italics added) (p. 123); next in Point 12-" 'undoubted security oi life
and an absolutely unmolested opportunity of autonomottsdevelofiment'
to other nationalitiesnow under Turkish rule" (italics added).
\Ve refer to a summary of the principles, as given by President \Vilson
himself, reading-
"An evident principle runs through [the Fourteen Points] ...It is
the principle of justice to alpeofilesand nationalities,and their right
to live on equal terms of liberty and safety with one another, whether
they be strong or weak." (Italics added.) (V,p. 123.)
Then, on II February rg18, President Wilson laid down four principles
as essential to permanent peace, the fourth of which read:
"AU well-definedmlionaE elements shall be accorded the utmost
satisfaction that can be accorded them \vithout introducing new
or perpetuating old elements of discord and antagonism." (Italics
added.) (Ibid.)
We proceed, Mr. President, to refer to provisions of the various rninori-
ties treaties, making it clear that the solution adopted with regard to
minorities was, in keeping with the times-". ..not to encourage their
assimilation with the majority but rather to rotect their existenceas
separateg~oups". (Italics added.)(Ibid., p.124.) fhis was the background
to the large number of treaties. We indicate, for instance, provisions re-
lating to the protection of rninoritiesas groups in regard to matters such
as the use of their language, the establishment of charitable, social, re-
ligious and educational institutions, and the provision of facilitiesby the
State for those purposes.
One of these provisions we quoted, read as follows:
"In any town or district where a considerable number of a linguis-
tic minority was resident, adequate facilities were to be provided
by the State to ensure that in primary schools, instruction should
be given to the children of such nationals through the medium of
their own language. In addition provisions were included for the ARGUMENT OF MR. DE VILLIERS 669
equitable appropriation of public funds by the state, municipalitp
or other budget, for the educational, religious or charitable institu-
tions of minorities in towns and districts where a considerable pro-
portion of the residents belonged to racial, religious or linguistic
minorities." (Ibid.)
It is obvious, hlr. President, that in these cases the protection is on the
basis of the groups. The principle of equality was applied as between
the groups-the majority groups and the minority groups-and that
necessarily involves a differentiation in the treatment of these respective
groups and also in the treatment of the individuals comprised in the
groups. That differentiation proceeds on the very basis of membership
in such a group.
It was in that context that the Permanent Court commented-in the
passage 1read out to this Court this morning-on the difference between
equality in fact and equality in law in cases of treatment of this kind, in
which the aim of equaiity rnay, in fact, make it necessary to have differ-
ent treatment in order to attain a result which establishes an equilibrium
between different interests.
IlIr.President, werefer further to acomment by SirHerschLauterpacht,
which 1 do not want to read ont to the Court now, on a certain change
in philosophy in some quariers in regard tothe protection of the national-
itg rights of minorities, which he regarded to a certain extent, asa pity.
At that stage what we wanted to stress was the philowphy or the
approach of the time. It was in those times and as part of that same
philosophy that the mandates system \vas born, and so it is quite natural
to find that the mandates themselves showed effects of such philosophy,
coupIed with the concept of trusteeship. The mandates system not
only conternplated, but it also required the application of principles
of differentiation among various groups.
FVe find that in the very concept ernbodied in the introductory para-
graph of Article22. Some peoples were to be regarded as "peoples not
yet able to stand by thernselves" and they were to be entrusted to the
tutelage of other peoples called "advanced nations". Different types of
mandates were to be created, inter alia (1 quote from Article 22,para-
graph 3), "according to the stage of development of the people".
The provisions of the various mandates themselves require differentia-
tion. In theA mandates there were provisions, sirnilar to those regarding
minorities, relating to protection of national groups regarding language,
education, religion and social rights, and so forth. We give the references
in the Rejoinder, V, at page 123.
In the R and C mandates the emphasis was more on trusteeship, and
on protection of the Natives against abuses, such as those regarding
liquor, militarization, Native land, and so forth. And those provisions,
of necessity, also involved differentiation.LVefind, Mr. President, that
Article 22 already begins to indicate, expressly, the necessity for such
differentiation. In paragraph 5 of Article 22 of the Covenant, with
reference to the B mandate, it is provided that the mandatory rnust be
responsible for the administration of the territory under certain con-
ditions. One of those conditions read:
". ..the prevention of the establishment offortifications or military
and naval bases and of military training of the natives for other
than poIice purposes and the defence of the territory, .. .".670 SOUTH WEST AFRICA
In Article22, therefore, the authors of the Covenant, with full know-
ledge of the fact that there were other inhabitants than Natives in some
of these mandated territories, already providcd for a certain prohibition
to apply only iii the case of Natives.
\Ve find in paragraph 6, regarding C mandates, that there is a reference
back to al1 the conditions set out in the previous paragraph, and that
reference back reads "subject to the safeguards above mentioned in the
interests of the indigenous population", again indicating that al1 these
various matters referred to in paragraph 5-the administration, the
guarantee of freedom of conscience and religion, the prohibition of
abuses such as slave trade, arms traffic and liquor traffic, and so forth-
were al1 regarded as differential provisions intended to safeguard the
interests of the indigenous population.
Then, when we come to the Mandate for South West Africa, being
typical of C rnandatcs in these particular respects, we find that in
Article 3 the last sentence reads "Tlie supply of intoxicating spirits and
beverages to the natives shall be prohibited". ArticIe 4 contains the
prohibition against the rnilitary training of the Natives othenvise than
for certain purposes. So there again the contemplation of differentiation
finds clear expression. The Artictes impose an obligation upon the
Mandatory to see to it that such differentiation shall occur.
In theB mandates one further finds, Mr. President, certain provisions
in regard to Native land, operating as protection in that regard. We
refer to that at this page (p.125) in the Rejoinder (V), and that refers
back to our references in the Counter-Mernorial.
We next pointed out, Mr. President, that quite apart from these
provisions in the mandates systern itself, the Permanent Mandates
Commission, in its supervision of the application of the system, very
clearly showed its appreciation of the necessity for differentiation
between various population groups and members of such groups, on the
very basisof rnembership in groups. 1 should like to refer the Court to
the Counter-Mernorial, II, pages 417-418 ,here we cite some relevant
excerpts from the records and the minutes of the Permanent Mandates
Commission.
At page 417 wc cite an extract from the minutes for 1937. where the
chairman remarked that-
".. . South West Africa differed from other parts of tropical Africa
in the striking inequalities that existed between the physical and
moral capacity and potentialities of the different races living there.
The principal cause was no doubt to be found in the past history
of the territory-that was to say, in the dispersals and wars of the
past. That inequality called for great elasticity in the native adrninis-
tration and the adoption of different rules for the various tribes
to which they were applied."
At the same page we cite some further random extracts, one from the
1922 minutes in which the Commission expressed the hope "that the
primitive organisation in tribes may be maintained unaltered wherever
it ... exists".
In 1923 Mr. Yanaghita expressed the view that-
" ...themandatory Govemmentsare to becommended on their adop-
tion of the principle of maintaining the former organisation of the
tribes, and of recognising the powof thechiefsup to acertain point". ARGUMENT OF MR. DE VILLIERS 671
In 1924 the Commission expressed the "opinion that the soundness
of the views which have prompted the Administration [that is, in South
West Africa], to adopt a system of segregation of natives in reserves will"
lead to certain furthersteps. But 1 emphasize the phrase "the soundness
of the views which have prompted the Administration toadopt a systern
of segregation of natives in reserves".
In 1937 Mlle Dannevig said that she "agreed that great precaution
should be exercised as regards interference with Native customs".
Mr. President, with respect, it is perfectly clear that thenecessity for
differentiation was contemplated and was intended.
FVe refer in the Rejoinder, V, at pages 125-126, also to an aspect of
the questionnaire which was prepared by the Commissjon for the con-
sideration of the mandatory powers, and to which the latter had to reply
in theirannual reports. Article XI ofthis questionnaire read as follows-
Iam quoting from page 126-
"LVi-tatare, generally speaking, the measures adopted to ensure
the moral, social and material welfare of the natives? (Measures to
maintain the interests, rights and cusfoms of the natives, their par-
ticipation in public service, native tribunals, etc.)" (Italicadded.)
We submit Rlr. President, it was in the nature of things quite i~npos-
sible to adopt appropriate measures to maintain the interests, rights and
custornsof the Natives in South West Africa or in many of the other
mandated territories witliout differentiating between the various groups
and between the members of the groups on the basis of meinbership in
that group.
Mr. President, in the Counter-Mernorial, II, at pages 4r4-416. and
again in the Rejoinder, V, at page 126, we also deal with the fact that
the authors of the Mandate had full knowledge of the fact that policies
of differentiation between the various groups were being applied in
South Africa itself at the time, In the discussions which led up to the
granting of the Mandate to the Respondent, there was a considerable
measure of reference to these Native policies, and at the time the argu-
ment \vas advanced by General Smuts and also by certain other com-
mentators, that it was desirable that the sarne Native policies as in
South Africa shouid be applied in South West Africa. That appeaTs very
clearly frorn the references which we give in the Counter-Memorial, II,
at pages 414-416, and 1 need not read them out to the Court.
Mr. President, we also refer to the fact in the Rejoinder, V, pages
126-127, that in other mandatory and colonial territories, various poli-
cies of differentiation were applied, and 1 shodd liketo read a portion
from the Rejoinder on that point. le refer back to the way in wliich we
dealt with this subject in the Counter-Blemorial and we Say at page 126
of the Rejoinder (V):
"In accordance with the generalIy prevalent philosophy of main-
taining the identity of separate national, linguistic and cultural
groups, and of guardianship and trusteeship of less-developed peo-
ples, other Mandatories also applied policies involving various foms
and degrees of differentiation. This may be seen for instance in the
policy of indirect rule, which has been defined as follows:
[And then follows a quotation from Lord Hailey in his AfricanSurmey
of 1938.1 SOUTH WEST AFRICA
'It insists that [it being the policy of indirect deif the native
authorities are to become not only a part of the machinery of
government but a living part of it, the political energies and
ability of the people mut be directed to the preservation and
development of their own institutions; the native authority selec-
ted for recognition by government must therefore be that which
according to tribal traditionand usage has in the past regulated
the affairs of each unit of native society; itisequally important
that it should be that which the people of to-day are willing to
recognize and obey. But the objective is not merely the utilization
of native autharities as instruments of local government; native
administration is conceived as a means of trying to graft Our
higher civilization upon the soundly rooted native stock .. ,
moulding it and estabiishing it into lines consonant with modern
ides and higher standards'."
That was an expression given to the concept of indirect rule at the
time, the time being in the rgjos. But, Mr. President, 1 may perhaps
read further from the Rejoinder, at page 127:
"lt wiIl be apparent that this policy of indirect rule necessarily
involved differentiationregarding the various Native groups within
a territory, infer seas well as in relation to the more developed
groups such as Europeans or Asians. As noted in the Counler-
Mernorial, one finds that indirect rule was practised in each of the
three British Mandated territories, Tanganyika, British Cameroons,
and British Togoland. And, although not by that name, the prin-
ciples underlying the policy were applied also in each of the other
three African hlandated territories, Ruanda-Urundi, French Carne-
roons and French Tugoland. Similarty the polic found application,
under its name or by way of its underlying principles, ia large num-
ber of other territories. In keeping with this approach,there was up
to World \Var II no participation by Africans in the central legisla-
tiveand executive organs of any of the Mandated territories, as was
also shown in the Counter-Mernorial."
We point outfurther, Mr. President-I am still readingfrorn page127-
"In pursuance of, or in addition, the policy and principlcs of
indirectrule, differentiation as between members of various popula-
tion groups was practised in other Mandated territories (and other
territories) in Africa in a spirit of guardianship, trusteeship and
paternalism, also in regard to iegai systems, land tenure, residential
facilities, aspects of economic policy, control of population move-
ment, education, and other aspects of govemment."
Andwe refer to al1the passages in the Counter-BIemorial which give the
authorities and quotations to substantiate that statement.
That then, Mr. President, is the setting for, and the background top
the mandates system-that was the philosophy which applied at the time
when the system \vas agreed upon-that was the philosophy wliich went
into its application over al1 the years. Incidentally, we know that the
Applicant countries, Ethiopia and Liberia, were Members of the League
of Nations but, as far as we are aware, there is nothing whatsoever on
record to indicate that they, at any time, raised any objection to policies
of differentiation applied in South West Africa or indeed in any other
rnandated territories. ARGUMENT OF MR. DE VILLIERS 673
That was the policy, not only contemplated by the authors of the
mandates system, but in many respects expressly required of a Manda-
tory. Some of the express provisions of the mandates system required
the Mandatory to apply difîersntiationwhile others very obviously con-
templated and expected that such differentiatiori would be applied.
Therefore, hlr. President, to introduce now the norm of non-differentia-
tjon contended for by the Applicants, especially in its unqualified form,
as it \vas originally stated in the Keply, would, as 1 have said, entail not
only some addition to-some incorporation of something extra inththe
mandates system-but also a dramatic reversal of some of the basic
principles which were enshrined in the mandate. And the Applicants,
Mr. President, on that unqualified basis upon which they stated their
norm in the Reply, would, isubmit, be at a Ioss to Say now what happens
to this prohibition against the supply of liquor to the Native popula-
tion-is it to stand or is it not to stand? 1s it operative or is it not
operative? And the same applies with regard to the other provisions.
fiIr. President, it may welbe that it \vasby reason of thiç argument-
this demonstration-on Our part, or for other reasons as tvell, that the
Applicants have now sought to introduce the qualification into their
norm by including this protection, not compulsion, formula.
1 have already demonstrated, Mr. President, that the protection idea
and the compulsion idea are not rnutually exclusive and this appears
~vithparticular clarityfrom sorne of these provisions to lvhic1 have just
referred. So, for instance, the mandate provision regarding intoxicating
liquor, regarding Native land and regarding traffic in arms and ammuni-
tion, although al1of them were intended for the protection of the Natives,
clearlyinvolve compuision and they involve compulsion both in respect
of the Natives and in respect of other groups. A Hative is not allowed to
purchase intoxicating liquor however much he may want to purchase it;
that is compulsion upon hirn, not protection only; it rnay serve the
purpose of protection but itentails compulsion. Conversely, the members
of the other groups were not permitted to sel1 liquor to the Natives
however pleasant and profitable that might have been to them or might
have appeared to thern. They were not even allowed to give liquor to the
Natives. And the same considerations would doubtless apply to the sale
of arms and arnmunition, to protection in regard to Native land, and so
forth. The compulsion element applies both in respect of the Natives
and in respect of the other elements of the population.
In regard to the minorities treaties to svhich sve have referred and
from the provisions of which I have read extracts to the Court, there
again jt \vil1 be evident that those provisions necessarily entailed a
rneasure of compulsion. The majority was compelled to tolerate the
institutions of the minority whether the majority liked it or not-the
majority was compelIed even to expend public funds for the maintenance
of those institutions of the minority, and the majority was prevented
by compulsion from sharing in those amenities-the amenities specially
provided for the minority.
So, Mr. President, again one has demonstration of the impoçsibility
of applying thiç criterion of "protection, not compulsion", and of keeping
the two concepts separate. It is,therefore,RZr. President, apparent that
even on this revised formulation of the Applicants, the acceptance of
the AppIicants' norm would still involve a reversal of sorne of the basjc
principles of the mandates system. There would still, according to their674 SOUTH WEST AFRICA
contention, be a general prohibition against differentiation on a group
baçis but subject only to the exception of "protection, not compulsion".
The Applicants do not show, hlr. President, when and by what legal
process such a complete reversal came about-how something which was
right throughout the mandates system, something which was legally
required of the mandatory, now becomes wrong-something which, as a
matter of law, is not permitted to the Mandatory at au. This aspect
again demonstrates a matter to which 1 referred before, and that is the
distinction between the situation we have here and the situation in the
Brown case in America on the question of public education-a case to
which my learned friend referred and upon which he relies very heavily.
In the Brown case we have a legal norm which requires the equal protec-
tion of the laurs for everybody; that norm remained unaltered aii the
time. The norm did not contain any prescription of method by which
equality was to be attained. It did not Say that there was to beçegrega-
tion or integration between members of various racial groups, in schools,
in other institutions or in residential facilities or what-have-you. Such
details were to be determined by a process of application-the nom-it
simply stated this principle of equality: equal protection of the lalvs.
As a matter of appIication the Court found in 1950that facts had changed
whereas a diHerentia1system could be regarded as being adequate com-
pliance with the norm in former years and in the circumstances which
then obtained, a differential system in the particular circurnstances of
America especially in the light of the development of public education
in America, andhaving regard to the view wl-iichthe Court took of the
psychological situation, could no longer comply with the norm, and,
therefore, the Court gave judgment accordingly. It gave effect to its
consideration of an altered circumstance of fact,and there masno need for
it toirnport any change or alteration into the legal norm at all. The legal
norm remains the same, but the factshave changed. The result of applica-
tion ofthe norm to the facts isnowa different one fromwhatit was before.
In regard to South kvest Africa we have an entireiy different position.
\Ve have the position that the very norm, as embodied in the Mandate
itself and in the mandates system, contains within itself certain pro-
visions which required differentiation, which required iof the Mandatory
and, in other respects, contemplated and expected it of the Mandatory.
Therefore, hlr. President, in order to arrive at this completely opposite
result, for which the Applicants now contend, there would have had to
be a change inthe norm itself. That is the major differencebetween this
case and the Browncase, and the Applicantshave not been able to show
any recognized legal process by which a change in the norm itself could
have come about. It may well be that in certain quarters it is thought
that the underlying philosophy which went into that norm has become
well be the view heldthby certain persons. It is quite obviously a matter
on which there could be differences of opinion, in so far as application to
particular circumstances is concerned, but that is no basis, Mr. President,
for coming to this Court and saying to the Court that it must now regard
the norm as having changed. There is no legal principle or process, to
my knowledge, which would justify such a conclusion.
Rfr. President, in regard to Our attitude in the Rejoinder concerning
the norm as forrnulated in the Reply, the Applicants said the following
in the oral argument : ARGUMENT OF MR. DE VILLIERS
675
"... although Respondent refers to this basic minimum standard
as a 'so-calied'or as an 'aiieged'norm, no serious attempt is made
by Respondent to deny the existence fierse of the standards relied
upon by Applicants. Kather, Respondent appears to content itself
with attempting to dernonstrate that the norm which we have
labelled non-discrimination or non-separatiun does notexist aspart
of theMandate." (P. 261,supra.)
When bveanalyse this contention, Mr. President, it would seem to com-
prise two independent subrnissions. The first one is that Respondent
assertedly did not dispute that there existed a legal norm, as defined by
Applicants, existing independently of the Mandate. The second is that
Respondent assertedly did not dispute the existence of a generally
accepted international standard, whatever its legal effect might be, pos-
sessing the content of Applicants' alleged norm. Those seem to be the
t~voelements comprised in this contention-that we did not deny the
existence ofa norm outside of the Mandate, nor of the existence of a
standard outside of the Mandate. In Oursubmission, in both respects the
Applicants attribute to us sornething which is not justifiedaç will be
shown.
As far as the existence of a legal norrn, arising outside the Mandate
is concerned, we said in our Rejoinder, V, page 140,that this Court
would not have jurisdiction to adjudicate upon alleged breaches of such
a norm. The proposition is perfectly clear: the Court is asked to adjudi-
cate on the interpretation and application of the provisions of the
Mandate, not upon the interpretation or the application of any norm
existing independently of the Mandate, or aIleged to have corne into
existenceindependently of the Mandate.
Secondly, we said that, inany event, none of the recognized sources
of international laiv had-
<... given rise to any 'norm of non-discrimination or non-separa-
tion' as defined by Applicants, which would entai1thatany differen-
tiation on the basis of group membership, however beneficial such
differentintion mightbe in intentor application, would be illegal".
(V, p.140.)
We made it perfectly clear, Mr. President, that, in our submission, no
such unqualified norrn had arisen through legal processes of which we
were a~irare.Now, the correctness of that attitude on Our part is borne
out by the very fact that the Applicants have found it necessary in these
Ord Proceedings to quaiify, or arnend, the norm, as originally pro-
pounded. Moreover, Mr. President, we showed that no such norm became
binding on the Respondent by Respondent's consent to any convention.
We indicated that the large number of the conventions, resolutions, and
so on, referred to by the Applicants were matters to ~vhich the Re-
spondent was never said to be a party, and to which, in fact, the Respon-
dent never was a party. Only two instruments fell to which the Respon-
dent had been a party, to be speciaily considered in this regard. One was
the United Nations Charter, and the other was the Constitution of the
International Labour Organisation. We dealtwith these in the Rejoinder,
V, pages 130-133 w.herewe indicated that the provisions of those instru-
ments were not such that it could be said that Respondent had ever
consented to a norm, as was propounded and advanced by the Appli-
cants.676 SOUTH WEST AFRICA
As regards other possible sources of law, we pointed out that, even if
it might be possible to say thata nom, as relied upon by the Applicants,
kad evolved over the past years in international society generally, or as
between certain States, then such a norrn would not be binding on
Hespondenl, inasmuch asthe basic principles of internationalaw involve
that legal rules are not enforceable against States which, during the
period of the coming into general acceptance of the rules inquestion,
openly and conçistentlp made known their dissent therefrom. That we
deal with in the Rejoinder, V, pages 140-141, and reference was made to
authority for this proposition, namely the Fisbries case, and an article
by the honourable Afember of the Court, Sir Gerald Fitzmaurice. The
rule is. in other words, that if a new rule of international law cornes
about over a certain period of time, it is not binding upon a State which
openly and consistently made known its dissent from it. This principle,
Mr. President, would be of equal application to the Applicants' amended
noim to the extent to which it may stillbe said to embody an objectively
determinable obligation, which ties the hands of the Mandatory aç far
as questions of method in this regard are concerned.
Let me make itclear, Mr. President, that we see in this iiorm, which
Applicants attempt to foist upon us, a prescription of a method of
dealing with difficult situations with a view tu achieving generaliy
desired objectives and principles~bjectives and principles desired and
subscribed to by the Respondent Government, as much as by anybody
else. The essential difference, however, between the Respondent Govern-
ment and others, in this respect, centres upon questions of method, and,
in so far as there may have been attempts to formulate a legal norm by
convention between certain States, dealing with such questions of
method and prescribing a method for indiscriminate application wherever
a problem of this sort may arise, Respondent has consisténtly made
known its dissent from such attempts. That does not mean that any of
the underlying ideas of equity, moraIity, justice, human values, human
rights, and so forth, which underlie the atternpts to formulate a norm of
this kind, are not agreed to or shared by the Respondent. The very
opposite applies. The difference isessentially a difference of method, and
we submit very clearly thatby no process of law has any legal norm corne
into existence which binds the Respondent as far as that question of
method is concerned.
The next question which arises, Mr. President, is have the Applicants
established, independently of this norm of non-separation, the existence
of any generally accepted canons of good government? As 1 indicated
before, it inot clear to us whether the Applicants' case rests entirely
on thisnorm as being a distillation from al1the othernorms and standards
upon which they rely, or whether they alsorely upon generally riccepted
standards existing independently of this particular norm. We shall deal
with the matter further on the assumptioa that they do rely indepen-
dentIy, or additionally, or in the alternative on such undefined general
standards, or canons, or good governrnent, and we shail enquire to
what extent they exist and can be said to assist the Applicants' case,
and what their content is.
Mr. President, in the course of indicating what they conceive to be
legal norms, asdistinct from generally accepted standards, the Applicants
said the follo~vin:
"Legal principles and norms ...are of course derived from and rc- ARGUMEST OF MR. DE VILLIERS .677
flect generally accepted standards of social behaviour." (P. 258,
sztpra.)
The Applicants proceeded to argue that, while courts of law accord
greater weight to some sources of law than others, there is, nevertheless,
such a close relationship between the Applicants' legal norms and stan-
dards that the Court cannot make a conceptual distinction between
them. Thus the Applicants said, in the verbatim record at page258, saifira:
"...it is true that some sources of the law are ..accorded greater weight
than others, ...",but later oii the same page they said:
"It is not in the nature of the judicial process that courts make a
conceptuaï distinction between legal norms on the one Iiand and
standards on the other, from which such legal norms are derived
and which they reflect."
In the same record, at page 247, st$~~a,the Applicants told us that
"thestandards.. .are of...a political, inoral and scientific character", and
the Applicants further contended that these legal norrns ancl standards
are said to enjoy universal acceptance.
Now, Rlr. President, in considering those contentions we would first
like to refer towhat we submit is an entirely illogical distinction which
is drawn in this respect by the Applicants regarding the application of
their standardsand noms to this case.In order to prove universal accep-
tance of these standards, the Applicants refer, amongst others, to the
views, 1 emphasize the word views, of the governments of various States,
and they also rely on so-called standards laid down by United Nations
agencies. They did so in the Reply, and they did so again in these Oral
Proceedings. In the latter respect 1 can refer to the verbatim record at
page 247, supra. Rut it is curious to note, Mr. President, that whilst the
Applicants refer to views of various governments for the purpose ofestab:
lishing their norms or standards, they entirely deny the relevance of the
"practices or policies" of governments in this respect. They deny the
relevance of the "practices or policies" of, "any sovereign State or
society other than that which is [the] subject of cornplaint in the cases
at bar". These were the words which they used accordiiig to the verbatim
record at page 119, supra.
In other words, they ask the Court to find generally accepted standards
and norms of universal application and acceptance, of universal accep-
tance, that is the phrase used by them, as norms which ought to govem
also the Respondent's conduct in this case, but in order to arrive at those,
and in order to establish that they are generalIy or universally nccepted,
they refer only to the views of States and they Say that the practices
or policies of States are entirely irrelevant.
Now we naturally accept, Mr. President, that the Court is not called
upon to pass judgment on the policies or practices of other governments,
but it is very difficult to appreciate the Applicants' argument that the
views of the other governmentj are important even to the extent of
creating standards which have legal force, and that the practices or
policies of governments are irrelevant matters. This is the AppIicantsJ
attitude, and adrnits of no doubt. 1 refer to the verbatim record of 18
March, aipage 119, supra, where they said the following:
"The Applicants are aware, and do not suggest otherwise, that
decisions of domestic tribunals are peculiarly suited to, and reflect,
conditions and traditions particular to their own societies. Such SOUTH WEST AFRICA
678
conditions and traditions may be multi-cultural, multi-lingual, or
multi-racial, or mono-cultural, mono-lingual, or mono-racial, or al1 .
or any of these, and more, in combination. The Applicants do not
intend to comment upon, nor do they believe that this ho~iourable
Court would wish to enquire into, much less pass upon, practices
ciety other than that which is subject of cornplaint in the cases at
bar."
They continued, Mr. President (p. 120):
"Whether Canada or India, merely as randorn examples, areor are
not multi-racial or mono-cultural societies, or whether they maintain
or should maintain or should not maintain, for example, separate
schools for separate cultural or linguistic groupis unknown to the
Applicants and is none of their concern."
And the same attitude we findelsewhere. We find that in the Reply the
Applicant set out certain propositions regarding education which, they
said, had been "deterrnined" (that was the word they used), by political
organs of the United Nations. That is in the Reply, IV, at page 398.
These determinations were also described as "standards", in the Reply
at page 399,or as "United Nations' requirements'l-these were the very
ivords used by the Applicants themselves in the Reply at page 4001,
paragraph (b). And it was the Applicants' theme that all, or many,
States had complied with such "requirements", but not the Respondent,
of course. We answered in our Rejoinder, VI, page 161, that the Respon-
dent was not obliged to comply with tlie said "requirements". We said
that, inter alia.Now in these Oral Proceedings my learned friend, Mr.
Gross, refers to that answer on Our part relating to "requirements".
and he described the word "requirements" as "...this is the characterisa-
tion in the Rejoinder". He said that, according to the verbatim record
at page 266, supra. He seems to have forgotten, &Ir.President, that the
Applicants thernselv aesI,have just dernonstrated, used that eupres-
sion. And he then proceeds as follows,according to the same page of the
verbatim record :
"The implication that Respondent has adduced seems to be that
the United Nations findings or conclusions to which 1 have referred
are asserted by the Applicants to impose specificlegal requirements.
This is gratuitous interpretation on Respondent's part. The Reply
makes it explicitly clear that the conclusions of the United Nations
agencies are referred toas indicative of 'the purposes and principles
of administration of dependent territories'."
hlr. President, in OurRejoinder, VI, page161, we stated that we would
not attempt to establish to what extent various States have complied
with "requirements" ~vhich had been laid down by United Nations
organs. And we also stated that we had doubts as to the propriety of
any such an enquiry on the Respondent's part. We stated in that regard,
in the Rejoinder, VI, page 161, that-
"inquiry by it [that is by Respondent] asto cornpliance or otherwise
by other Governments with requirements or standards which have
been laid down by United Nations organs in respect of territories
administered by çuch Governments miist be open to serious doubt".
Xow it is quite obvious what we intended to convey in this passage, ARGUMENT OF MR. DE VILLIERS
679
what extent, other governments had complied with what the United Na- to
tions organs required them to do. That was what we described as what
would be an invidious task on ourpart. Now we hd, hlr. President, that
the Appiicants have seizedon this passage to repeat their view that "poli-
cies or practices" in territories, other than South West Afnca, are no con-
Cernofthe Court. Thus they Say"The Applicants fully concur". (This isin
the verbatim record at p. 266, swpra.) 1 break off there for a moment.
What they purport to concur in is this statement by the Respondent
which 1have just read regarding the propriety of exarnining other States'
compliance with "United Nations requirements"..And they then say that,
in their submission :
"... this honourable Court rnay not appropriately be requested to
consider, or pass upon, or enquire into, policies or practices regu-
lating the affairs of any State, territory or society other than the
territory in question in this proceeding. It has not been, and it is
not now, the intention of the Applicants to suggest othenvise, and
that of course was not the purpose for which reference was made in
the Reply to the findings of the United Nations agencies."
Now, Mr. President, this attitude on the part of the Applicants is a
very curious and a most illogicalone, in our submission, and it shows up,
at the same time the artificiality and the untenabihty of their contentions
regarding so-called norms and standards. To begin with, Mr. President,
it is hardly logical for the Applicants to rely on the views of governments
as to the basis of their norms, but to argue at the same time, that such
governments' policies are irrelevant. If we may use the Applicants'
example again-a randorn example of Canada or India-it does not seem
to us to rnake sense to Say that it is quite irrelevant whether Canada or
India has separate schools for separate cultural or linguistic groups, or
whether those countries should or should nol have separate schools (that
is what they said in the verbatim record at p. 120, szcpra),and, further-
more, that such matters are none of the Applicants' concern, but to Say,
on the other hand, that Respondent should be condemned purely because
it does not comply with the views of such Govemments-no matter on
what grounds, or motivations, or in what circurnstances such views were
arrived at in a particular country.
Norms and standards are, thereforc, according to the Applicants to be
determined with reference to what certain countries have said, Say,
about South West Africa or about policies in South Africa (that is the
tenor ofmost of thestatementstheyquoted), without any reference to the
question of the state of knowledge of the particular speaker of the sub-
ject he was talking about; of the factual premise which he had in mind
when he made the particular statement; of his sources of information;
or of the particular reason why he made the particular statement on the
particular occasion. Views of countries, the Applicants Say, are to be
determinative of the norms or thestandards to be applied by the Respon-
dent and to be enforced upon it by this Court, but not theactual practices
Respondent.ents in relation to sirnilar problems to those confronting the
It isfurthemare, Mr. President,not merely a question of the argument
being an illogical one. What is more serious is this. They are saying, in
effect, that the Court must accept,and act on, the views of govenunents680 SOUTH WEST AFRICA
without conducting an enquiry of its own in regard thereto-in other
words, the Court must blindly adopt the views expressed by these others.
It must be this very expression of .the views of the others that must be
the basis on which the Court isto conclude that these standards exist
in modern society. Those standards are nou- to be applied by the Court,
That is what the contention arnounts to.
Furthermore, their attitude iç also that the Court must adopt the
findings of, or the standards laid down, by United Nations agencies,
and again, &Ir. President, without any enquiry into the conditions and
circurnstances of the particular countries with reference to which those
findings were made, and those standards were laid down, because enquiry
into what happens in those countries, into the practices of such countries
there, into the factual conditions there, is taboo. Al1 that this Court is
to consider is what representatives of other countries said and what was
said and found by organs of the United Xations. Thisalso, Rlr. President,
is tantamount to saying that the Court mut blindly adopt standards
laid down by others. In effect, therefore, this Court rnust abdicate its
functionsinfavour of the conclusions arrived at, and the views eupressed,
by extraneous bodies.
[Public hcaring O/26 April 19651
Mr. President and honourable Members, in the argument submitted
to the Court so far on the question of the legal basis for adjudication
upon the provisions of Article 2, paragraph z, we submit that we have
eçtablished the following proposition.
Firstly, that the Court can adjudge on alleged contravention of Article
2, paragraph 2, if at all, only on the basis of a determination of good or
bad faith, in thesense of pursuing an authorized or an unauthorized pur-
pose, or objective.
Secondly, that this question falls to be determined by enquiring into
and weighing up al1the relevant facts.
Thirdly, that the Applicants' attempts to rely on an objective legal
nom have failed.
In that regard we have pointed out that in their attempts to establish
such a norm the Applicantshave been forced to amend their own formula-
tion of the suggested norm in such a way that the discretionary element
in the Respondent's polvers is, indeed, not eliminated. For that reason
alone they have failed to eçtabliçh an objective legal norrn as they set out
to do.
More important than that, Mr. President, they have been unable,
in our submission, to show that such a norm has, by any known and
accepted principle of law, corne into existence so as to be legaliy en-
forceable against the Respondent at al1and, in particular, so as to form
part of the Mandate.
The reasons Ive have given why there has not been established any
legal basis for the alleged norm of non-differentiation apply, in our sub-
mission, equally to undefined legal norms, or undefined current standards,
ivhich allegedly possess legal effect; in other words, to any suggested
legal rules irnposing obligations on Respondent conceming the methods
to be employed in administering the Territory.
We submit not only thatthe particular norm of non-differentiation has
not been established, but also that no other norms or standards possessing ARGUMENT OF MR. DE VILLIERS 68I
legal effect, as legal rules, and having any bearing whatsoever on the
manner of administering the Territory have been established.
However, Mr. Preçident, to Saythat there cannot be any legaliy effec-
tive,or enforceable, norms or standards does not in our subrnission mean,
and does not in logic mean, that there do not exist any standards which,
although they lack in legal effect ,are nevertheless widely accepted, or
applied, in practice. In principle and in practice one does find man
practicer, policies, or theories of government, appiied by States, or a$
vanced or propagated by politicians, experts, scientiçts, moralists, or
the like, but which nevertheless do not possesç any legal force in inter-
natIndeed, &Ir.President, one hds this basic distinction in al1spheres of
iife. Many canons of behaviour are not legally enforceable but derive
of convenience,fwenydrewomadistinction in OurRejoinder,tiV,sat pages 166ke
167,between these two concepts: on the one hand, norms or standards
which possess legal effect and, on the other hand, norms, canons or
standards which do not possess such legal effect. For purposes of con-
venience we called those of the first class,norms, and those of the second
class, standards. The terminology in itself, Mr. President, is, of course,
not important, the importance lies in the distinction as to concept. We
could as easilyhave used the term legal niles, on theone hand, as against
non-legal precepts, on the other. For the sakc of convenience, we spoke
of noms to indicate binding legal rules, and of standards to indicate
the other kind of precepts which have no binding force in law.
Consequently, hlr. President, when a particular rule, or canan is in
issue, the determination of the question ~vhetherit constitutes a norm
or astandard, inourusage of the terms, really involves an enquiry whether
or not it qualifies as a rule or principle of internatiolaw,to be applied
by this Court in terms of Article 38 of the Statute. That is reaily what
it amounts to.
If it isa norm, according to this usage of terms, it rnust qualify asa
rule, or principle,of international law, in one of the methods envisaged
in Article 38 of the Statute. If not, ican, at most, be a standard.
Mr. President, wc would have thought that this distinction between,
on the one hand, rules which possess legal effect, and, on the other, those
which do not, was an elemental and a fundamental one. Yet we find
that the Applicants refer in their argument to such a distinction as being
"quite unrealistic". That \vas the phrase used in the verbatirn record at
page 258, supra. They said further, at the same page:
"Legal principles and noms, as has been said, are of course denved
from and reflect generally accepted standards of social behaviour.
As I have said, experience is the life of the law. Standards are the
sources frorn which the law derives its application to the human
condition."
They said, further:
"It is not in the nature of the judicial process that courts make a
conceptual distinction between legal norms on the one hand and
standards on the other, from which such legal norms are derived
and whjch tliey reflect."
Mr. President, it is of course a fundamental consideration that the
only sources of international law which can be applied by this Court are682 SOUTH WEST AFRICA
those laid doin by Article 38of the Statute, namely conventions, inter-
national custom, as evidence of general principles accepted as law, and,
thirdly, the general principles of law recognized by civilized nations.
So, if a standard has attained the status of a legal norm in terrns of this
Article, the Respondent, for convenience, calls ita norm. If it has not,
we In the Applicants' argument under review they apparently attempt
to establish a further source, or sources, of law, not recognizedin Article
38 of the Statute. Or, alternatively, their contention means that this
Court is entitled to apply any standard of behaviour or conduct it sees
fit, whether or not such a standard falls under Article 38 of the Statute.
Needless to sajr, Mr. President, the Applicants have been unable to
produce anyauthority, and wehave been unable to find anywhichwould
afford aIiy support for such a proposition, asI shd demonstrate more
in a moment. In principle it cannot in any way be justified, either the legal
precept is one of those conternplated in Article 38 of the Statute, or that
precept is not a iegal precept at all.
It follows then, Mr. President, in Oursubrnission, that there exists a
ckar and a well-recognized distinction between what we cal1norms and
standards, that is, as matters of concept, apart from the question of
terrninology. The Applicants' denial of the validity of this distinction,
in so far asthe denial is cornprehensible at all, must, in our submission,
therefore also fail.
In their attempted rebuttal of this distinction which we draw, the
Applicants referred to certain judicial decisions, about which they said
the foiiowing :
".. . Applicants refer to judicial decisions in which concepts of the
sort described by Respondent as standards have been applied, not
pose of measuring and limiting the discretionary powers of govern-pur-
mental authorities on the basiç of objectively ascertained and deter-
minable standards." (P. 258. su#ra.)
Mr.President, in Oursubmission, this whole line of argument displays
a basic confusion of thought on thepart of the Applicants, whichbecomes
al1 the more apparent when we have regard to the actual decisions to
which they refer.
The distinction ktween noms and standards, in the wag in which
we draw it-in the way in which we use these tennsdoes not liein the
content of the canons, or precepts, concemed ;it Liesin their legal effect.
We expressly stated this in the Rejoinder, V, at page 167, and this the
Applicants indeed acknowledge, according to the verbatim record at
page 258, strp-a.
The dispute between the Parties may, therefore, be said to relate to
the method, or procedure, or the principle, whereby a rule, or a canon,
attains the status of a IegaUÿenforceable rule of law, rather than as a
like. Consequently it cannot avail the Applicants to point to the fact thatthe
courts have applied precepts of the same content as, or analogous to,
those which are under consideration here. The important question is
on what legal basis did the courts apply those precepts.
The Applicants, in order to establish their argument, would have to go
so far as to show that these rules attained their Iegal character by some ARGUMENT OF MR. DE VILLIERS
683
method other than that contemplated in Article 38 of the Statute:
in other words, that they were applied as principles of law by courts
merely because they were standards40 useour terminology-despitethe
fact that they had not been given legal force by any of the processes
contemplated in Article 38. That iswhat the Applicants would have to
establishby these authorities and, needless to say, they have failed to
doIf we consider first of al1the decision in the CorfuChannel case,referred
to by my learned friends in the verbatim record at page 258, sufiru, we
find, Mr. President, that what the Court applied there were general
principles of international law, principlfallingeither under paragraph
(6) or paragraph (C of subsection (1) of Article 38: in other words, as
being either international custom, accepted as law, or general principles
oflaw recognized by civilized nations. The very passages from the Judg-
ment and the opinions quoted by my learned friends show that the
Court was dealing with the question whether certain conduct could or
could not be said to constituteinlaw, aninternational delinquency. That
was the question before the Court; the Court did not determine whether
standards not possessing the force of law could provide an answer to
the question before it. The Court had to decide what principles of law
had received acceptance under either of the two paragraphs of Article
38 (1)to which 1have referred.
Secondly, in the case of Lmisiana ex ?el.Franci s.Resw~be~q , uoted
at thesame page of the verbatim record, the American Suprerne Court
applied the provisions of the United States Constitution. The particular
requirement of the Constitution applied in that case was that of due
process, and the standards of decencyreferred toby the Court in applying
that requirement of the Constitution related merely to the question of
application, in 0th- words, of evaluation of the facts to which this re-
quirement of the constitution had to be appIied in the particular case.
Then, Mr. President, rny learned friends placed particular reliance on
a number of decisions in regard to the principles of "denial of justice".
Theyare referred to in the verbatim record at pages 254-25a 5,d at page
259,supra. These principles, in our submission, quite clearly arose from
custom accepted as law, or, in some instances, also from specific conven-
tions, or,in someinstances, from a combination ofthese. In this regarwe
may point out in passing that the content of the relevant rules is also
wrongly stated by the Applicants. But, inasmuch as the present inquiry
relates to the method or the principle by which a rule attains the status
of a rule of law, and not to the question of content, 1shall not at the mo-
ment pursue that matter, 1 shall return to it aa later stage. AU1 wish
to point out at themoment isthat these judicjal authorities, relied upon
by the Applicants and referred to by them in this regard, do not support
them in the least. In each case what the Court applied was something
accepted as binding, general principles lof international law accepted
as binding, general principles applied by civilized nations, or principles
laid down or agreed upoa inconventions, or, finally, principles laid down
in a particular Statute which the particular Court had to apply.
Apart from these judicial authorities the Applicants alço referred to
certain statements by Professor Quincy Wright, and they said in this
regard, in the verbatim record at page 255, su$ra:
". .the concept of standards capable of guiding policy and action SOUTH WEST -4FRICA
in the mandated territories, and providing a basis upon which
inesome detail bye...Professor Wright j..."., has been analysed
Now, Mr. President, in the Rejoinder, V, at pages 168-16w 9e dealt
with a similar argument which had been raised in the Reply. That argu-
ment had been to the effect that the Permanent Mandates Commission
had established certain norms and standards, capable of serving as ob-
jective yardsticks, to be appliedby the Court in adjudgin Kespondent's
policies. In the Rejoinder we pointed out in that regar d that the Per-
manent Mandates Commissionhad a twofoldfunction :one of supervision,
on the one hand, and one of CO-operationwith mandatories, on the other.
And we pointed out that the saine Professor Wright, in the same work
quote in the Rejoinder, V, at page 169. It reads as follows:ssage which we
"In supervising the mandates [that is the first of these two func-
tions] the Commission has felt obliged to lirnit its criticisrn 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 au-
thoritative text, but if such a conflict is reported by the Commission
and the report isadopted bp the Council the mandatory is bound to
recognizeit. It becomes an authoritative interpretationof thelatter's
obligations...
In CO-operatingwith the mandatories, however [that is the other
aspect of the function], though the League's powers are more limi-
sidered itself lirnited by authoritative documents but has formulated-
standards of good administration from the widest sources, and sug-
gested whatevc-r practical steps it deems expedient to give them
effect. Such suggestions, ho~vever,even when indarsed by the Coun-
cil, never have more than the character of advice. Themandatory is
free to differ from them, though ifbased on an adequate under-
standing of the situation he will do weli to consider them."
169-170-thater ein exercising Its functions, and particularlp this last-s
mentioned function of CO-operating with the Mandatories, the Per-
manent Mandates Commission could not, and in fact did not, purport to
create legal rules binding on Mandatories. This appears very clearly
from the work of Professor Wright himself, and, in pacticular, from this
passage 1 have just read.
In addition to other references which we give in the Rejoinder we
may also, respectfully, invite the Court's attention to a further passage
in Wright, the same work, ai page 220, which reads as follows:
"The Commission ...has found it necessary to establisb certain
binding but subject to modification by experience.'(AlandatesnUnderense
theLeagw ofNations.)
Œ-
Mr. President, one would Say,wjth subrnjssion and respect, that that
is, after all, the very essence of the concept oa standard as opposed to
a nom. A standard is, from its very nature, something of the nature of
current theory-a current point of viebv-in respect of which complete
agreement has not been attained. Complete agreement or unanimity ARGUMENT OF MR. DE VILLIERS
685
might be sought about it but it might in many cases never be attained
for the simple reason that, in some respects, that standard might be
wrong, or erroneous, thus it might require modification, or qualification,
as esperience teaches more about it or as other facets of the particular
subject corne to light and show their effect. Therefore, we fmdit very
properly stressed by the leamed author that the standards used by the
Permanent Mandates Commission were recognized aç being "in no sense
binding but subject to modification by experience".
my learned friends now reIy, the learned author dealt with the establish-
ment of these self-same standards of colonial administration by the
League organs. Consequently, hlr. President, it is quite clear that there
could be no suggestion that these standards would be legally binding
on mandatories, or that they could be enforced by the Court. Such a
suggestion would have no bais in law, nor was it in the contemplation
ofthe leamed author. Indeed, the very passage from which the Applicants
quote according to the verbatim record at page 256, supra, shows that
the converse isthe position. The learned author in that passage (it is at
pp. 192-19o3 f his work), distinguishes between two methods of govem-
mental action which, he says, may be defined as, on the one hand,
legalistic, and, on the other, administrative. 1 quote from what he says
at page 192 :
"The first [that is the legalistic methodj lays doivn generd rules
and enforces them ordinarily through the legisiature and the Courts.
The second declares general policies and carries them out ordinarily
through the executive and the administration. Clearly, the League'ç
relation to the mandatories cannot be defined as exclusively in either
of these categories. The League gives validity to general rules by con-
firming and interpreting the mandates and judgeç the acts of the
mandatories according to their conformity with these rules, possibly
date, but at the same time it givesgeneral advice on pohcy and criti-
cizes the activity of the mandatory according to its results. The
first type of activity is mainly performed through the Council and
the Permanent Court of International Justice; the second through
the Council and the Permanent Mandates Commission, but the line
of divisionis not strict."
It is, therefore, quite clear, Mr. President, that in so far as the legalistic
method is concerned, with reference to which the author says that the
first type of activity is performed mainly through the Council and the
Permanent Court of International Justice, it is conhed to the casewhere
the League-
"...gives validity to general des by confirming and interpreting
the mandates and judges the acts of the mandatories according
to their conformity with these des ...".
relates purely to the administrative supervisory authorityeinotherwords,
to cases where the League acts through the Council and the Permanent
Mandates Commission. That is where, in the words of the author, the
League "gives general advice on policy and criticizes the activityof the
mandatory according to its resdts".686 SOUTH WEST AFRICA
It folio\vs,Mr. President, that the foliowingstatement in the verbatirn
record at page 2j6,supra, is wholly unjustified:
"...the learned author stresses the power of the Court to judge the
administration in mandated areas in the light of such standards,
which includes references ta matters within the scope of Article 2,
paragraph 2, of the Mandate ...".
Afr.Preçident, it will be evident not only that this statement reflects
something not stated by Professor Wright, but that itis directly in con-
flict with what he states, as 1have just demonstrated. It is not surprising,
therefore, that my learned friends give no reference whatsoever in their
argument on the pleadings or in the verbatim record for thiç version of
what was allegedly stressed by the learned author.
It follows then, in our submission, that al1 authorities, judicial and
otherwise, fail to support the Applicants' argument that standards can
be regarded as legally binding perse, even though they havenot been con-
stituted rules or principles of law by the ordinary processes contemplated
by Article 38 of the Statute. Indeed, Mr. President, the authorities con-
firm thatthe opposite is the true position, namely that standards per se
by operation of the ordinary contemplated processes. only become binding
Now, 1 indicated a feurminutes ago that the content of the principles
regarding denial of justice to aliens, relied upon so strongly by my
learned friends, is strictly speaking not relevant to this enquiry, which
is concerned only with the method or the principles by which des attain
legal effect. But an examination thereof rnay nevertheless be revealing,
Mr. President, to show what, in fact, the content of these principles re-
garding denial of justice to aliens is, and show that, in thal regard, too,
the representation of the Applicants iswithout any substance. The Appli-
cants introduced this subject in support of their contention which we
find stated in the verbatirn record at page 254, supra, and which reads-
"the concept ofdiscretionary powers limited by legalnoms isweil known
to international judicial tribunals".
They went on to state, on the next page- .
"The discretionary powers of governments indeed are very wide
with respect to' aliens living within their borders, but they are
Iimited by international noms, rather than by any açserted test of
good faith or mns rea."
NowMr.President, wehave already dealt with the so-cailed "minimum
internationalstandards" referred to in this extract, in order to showthat,
contrary to my learned friends' contention, the authors of the mandates
system were not familiar with the concept of judicial review of the in-
temal practices and poticiesof States in accordance with such standards.
That was dealt with particularly by my learned friend, Mr. Grosskopf,
in his address to this Court some time aga. It remains to consider how-
ever, what roIe is to be assigned to these standards in the evaluation of
the treatment of aIiens by any givcn State; in other words, what exactly
is the content and the legal effect of these standards? We are prepared
to accept in that regard, for purposes of argument, the existence and
the applicability of the so-called "minimum international standards".
We are also prepared to accept for purposes of argument that customary
international law has now evolved to a stage where States may be said
to be Iegally obliged to comply with such standards, but what we do ARGUMENT OF MR. DE VILLIERS 687
dispute is that these standards are to be equated with legal norms of
an exact content, capable of precise and objective application to the
conduct of a State and its organs, as distinct from merely providing a
means of testing whether a discretionary function in that regard has
been honestly and legally exercised. If these standards were indeed in-
tended to be precise, legal or international norms of the kind 1 have
just referred to, then any treatrnent of an alien by a State in conflict
with these precise requirements would obviously be illegal and such a
result would follow quite independently of the good or bad faith of the
StaIt is evident that the Applicants have represented these particuIar
standards in this light. In the verbatim record at page 259, supra, we *
find that the Applicants state the following-
"The use of standards in the sense in which Applicants have
viewed that concept, for purposes of measuring legal limits upon
discretionary powers in objectively determinable ways rather than
for the purpose of judging good or bad faith, also is found further in
the denial of justice cases..."
The Applicants make it perfectly clear that they Saythat we are dealing
here with precise norms capable of objective application, rather than
with standards which may assist in an enquiry for the purpose of judging
good or bad faith.
The authorities, however, Mr. President, including those relied upon
by the Applicants themselves, in our submission make it quite clear
that this representation by the Applicants is entirely wrong, and that
the opposite is the tme position.
Claims Commission in thens United Stades{RobertsClaim) v. Mexico,whichal
was decided in rg27,reference was indeed made to the test "...whether
aliens are treatedin accordance with ordinary standards of civilization",
but the Commission did not Say that such standards constituted precise
legal norms of the kind suggested by the Applicants, and if regard is had
to other decisions of the Comrniçsion in that year, in the previous year
and subsequently, it becomes quite clear that that could never have been
the intention of the Commission.
In the previous year there was the celebrated Neer case. There the
Commission also referred to "the test of international standards", but
at the same time indicated explicitly how these standards came into
play. The case was also concerned with alleged denial of justice to an
alien, and the Commission stated the following (1 quote from reports of
IfiternationalArbitvalAwavds, Vol. IV, pp. 61-62) :
"The Commission recognizes the difficulty of devising a general
formula for determining the boundary between an international
delinquency of this type and an unsatisfactory use ofpower included
in national sovereignty. In 1910John Bassett Moore observed that
he did 'not consider it tbe practicable to lay dom inadvance pre-
cise and unyielding formulas by which the question of a denial of
justicemay in every instance be determined', {I leave out the ref-
erence] and in1923 De LapradeUe and Politis stated that the evasiv:
and complex character of a denial ofjustice seems to defy anydefini-
tion [I again omit the reference and some words which follow] ...
Without attempting to announce a precise formula it,is in the opin-688 SOUTH WEST AFRICA
ion of the Commissionpossible to go a little further than the authors
quoted, and to hold (first) that the propriety of governmental acts
shodd be put to the test ofinternationalstandards,and (second)that
the treatment of an alien, in order to constitute an international de-
linquency, should amount to an outrage, to bad faith, to wilful ne-
glect of duty, or to an insufficiency of governmental action so far
short of international standards that every reasonable and impartial
man would readily recognize its insufficiency."
In the next year, Mr.President-in July 1927-there was the Venable
case. That was some nine months later than the Roberts case to which
my learned friends referred. There, the Commission again referred to-
"an insufficiencyof governmentalaction so far short of international
standards that every reasonable and impartial man would readily
recognize its insufficienc".
The reference is to the sarne work as before, International Arbitral
Awards, Volume IV, page 229.
We may also in this regard refer to the attitude maintained by the
British Government in a certain Browfi case, decided in 1923by the
American and British ClairnsTribunal. The British attitude is set out at
page 252 of Americanad British Claims Arbitration, Reportof Fred K.
Nielsen, and 1 quote the following from that page :
"A decision does not constitute a denial of justice unless it is
so obviously wrong and unjust that no court could honestly have
arrived at such conclusions."
Then, Mr. President, there is Mr. AlwynFreeman, an authority quoted
by the Applicants, who was one of the foremost champions of the theory
of "minimum international standards". In the work which my learned
review of international practice and theory regarding this concept oftive
denial of justice to aliens, and he came to the following conclusion at
page 330-331:
"It is believed that an anaiysis of international practice provides
a sounder approach to the problem of naaljugé in connection with
the local Iaw. The principles governing the solution ofthis problem
may be safely summarized as follows: Although there is unquestion-
ably no responsibility for simple or ordinary 'reversible' errors
(i.e.errors which might allow a domestic court ofappeals to reverse
the judgment below) clear proof of serious error plus additional
factors in the nature of malice toward the alien-which may be
evidenced by the court 'in consciously misapplying the law or in
declaring the existence of a fact which it had previously recognized
as non existent, or the non existence of a fact which obvjou~ly
exists'-or, stated negatively, the absence of good faith, will in-
volve the State where the alien's rights are materially prejudiced
thereby. Where it is not passible to establish the influence of cor-
ruption, bias or malice upon the outcome of the proceedings-
and here it is worth remembering that the psychological motives of
the judge arc absolutely imrnaterial if the judgment is based ypon
law-the State's responsibility rnay still be engaged whereIhedectston
is so erroneouslhat no courtwhick was com$osed of coMeted iurists
cdd bomily haveaMvd ut such a decision. . ." ARGUMENT OF MR. DE VILLIERS 689
It is clear, Mr. President, 1submit, from this review of the authorities,
that the Applicants have failed in their attempt to dernonstrate that
the discretionary powers ofa State are in this particular instance limited
by objective noms. On the contrary, this topic whch they have chosen
to introduce provides, in Our submission, a clear illustration of the use
of standards in the sense for which we contend, namely with a view to
providing some assistance in an enquiry whether there has been an
abuse of a discretionary function through mala fidesThat is, as 1 shall
point out, exactly the function which, we subrnit, is to be assigned to
international standards in the enquiry now before the Court, and these
tion, of a sirnilar approach. And that brings us, Mr. President, to the-
question of the sig-nificance,if any, which can, in our submission, be
attached to standards in the present context-standards in Our sense
of the word, as1explained earlier, as distinct from legaliy binding des.
I must first stress that we do not contend that the existence of generaliy
accepted standards of administration not possessing legal force
is irrelevant to a consideration of the issues before the Courtttet re
certainly do not contend.
Nevertheless, such a submission is, in effect, attributed to us by my
learned friends when they suggest, both in the Reply and in these
Oral Proceedings, that we contend that Respondent's policy should be
rneasured according to standards prevailing in 1920. The reference to
the verbatim proceedings on this point I gave to the Court before in
another context. It is the verbatim record at page 260, swpra.We dealt
and indicated there that this attitude on the Applicants' part flowed,
from a misapprehension of the pnnciples of interpretation, and partic-
ularly of the principle of contemporaneity. Ail we said was that the
legal norm to be applied in this case, namely Article 2 (z),was to be
interpreted in accordance with the intent of its authors in 1920, and
that the meaning of that norm would, therefore, today still be the same
as in ~gzo,We did not Say that in the application of the norm to facts
the Court must put on blinkers and look at the facts only as they existed
in 1920; it would obviously have been ridiculous to Say so. Similarly,
we did not suggest that, in fulfiiling its discretionary function under the
Mandate of prornoting to the utmost, and in formulating its policies with
that purpose in view, the mandatory was to have regard only to facts,
conceptions and attitudes as they existed in920. That would have been
equally ludicrous.
from the facts,bututhey will be more fullydealt with in the later stages
of the proceedings dealing with the facts): we know, as set out in the
review which we give in OurCounter-Mernorial, and refer to again in our
Rejoinder, that, on the whole, African Natives in 1920 showed little or
no interest in political development of the kind which they, in fact,
experienced after the Second World War, and are still experiencing at
present. In 1920 little or no interest was shown in that subject by
African Natives generally, including those in South West Africa. But
the Mandatory could not, in the new circumstances which arose after the
Second World War, when there was an a~vakeningof interest on thepart
of African Natives in that regard, retain the same attitude as in 1920
when applying the law to the facts, or in formulating policies with a6g0 SOUTH \TEST AFRICA
of this change in attitudes andigconceptions, in order to fultii its discre-
tionary function properly.
Similarly, as regards education, in ~gzo, on the facts we give, there
was Littleor no interest at al1on the part of the masses of the Native
population, but, the position has changed, and today, a Mandatory,
could not maintain the same attitude aswas maintained in 1920 because
of the fact ofnon-interest at that particular time. Its policy would have to
be adapted to the changed circumstances, and changed attitudes on the
part of the peoplesconcerned wouldbe part of the changed circurnstances.
Similarly, hlr. President, in so far as trends of general opinio~ihave
changed in the natural sciences and, as a consequence, or independentIy
thereof, also in social and political sciences and in the moral concepts
involved in them, the Mandatory would certainly fail in its discretionary
task ifit did not pay proper regard to such altered conceptions in deciding
upon appropnate policies. If 1may give an example, Mr. President, very
bluntly but with the greatest deference, if we should assume, for the
sake of argument, that it could be shown that the general conceptions
in 1920 were to the effect that African Natives were inherentIy and
perrnanently inferior to Europeans, that they would never be able to
govern their own countrieç satisfactorily, and so forth, then, surely,
policies can, in modern circurnstances, no longer be formulated on the
basis that such conceptions were establislied and accepted as factç in
our times. Conceptions have changed. 1am not suggesting that that was
the attitude in 1920, 1 am merely putting it forward as an example.
In so faras conceptions of that kind have changed, they mut, of course,
necessarily be considered by the mandatory in the exercise of its dis-
cretion in formulating appropriate policies with a view to fumling its
sacred trust,
The extent to which there has been an altered conception, or altered
conceptions, in the relevant scientific respects, willbe dealt with by us
in the courseofdealing rvith the factç, and the significance ivhich that
may have in the present enquiry wiii also be dealt with at that par-
ticular stage. Al11want to ernphasize at the moment is the relevance of
changed attitudes also in those fields, as a matter of principle and a
matter of relevance.
The considerations to which 1have just referred, Mr. President, in my
submission, at the sarne time explain what role can appropriately be
assigned to contemporary standards in the enquiry before the Court.
In our submission, they can afford very valuable guidance to the Court
in determining whether the Mandatory has or has not honestly appIied
Mandatory's good or bad faith, the existence of currently acceptedng the
standards can most certainly be relevant to that purpose, as we indi-
cated in the Rejoinder, V, page 171, But, as \ve also stressed there, this
is again, by a process of elirnination, the only sense in which these stan-
dards can be relevant. They may provide relevant material from which
inferences asto Respondent's intentions may be drawn, in the light of
an the circumstances, in the manner we indicated in the Rejoinder, at
the particular page.
If a Mandatory's policy and conduct should be totdly at variance
with concepts of justice, equityand morality currently operative arnongst
al1right-thinking persons, there might well be justification for drawing ARGUMENT OF MR. DE VILLIERS
69r
the inference that something mut be wrong, in the sense that the
Mandatory's attitude must be either arbitrary or mala fide,directed at
an unauthorized or improper purpose. That is a technique or method of
argument which is reguiarly ernployed by courts which have fo conduct
an enquiry into questions of good orbad faith on thepart of an authority
exercising a discretionary task, and that is the sense in which current
and modern standards becorne relevant.
The Mandatory's position might arnount to this: that it stands alone,
them in relation to a particular matter when the whole of the reaçonablyfend
thinking world differs frorn it. When the Mandatory is the only one out
of step, there may be a basis for beginning to infer that something must
be wrong on the Mandatory's part, that theremust be either an arbitrary
or a maEa fideattitude on its part. That demonstrates, Mr. President, the
test of good faith in enquiries of this nature, and, in particular, in the
present enquiry. It cari, indeed,constitute a very practical and valuable
check upon the person or the body exercising a discretionary function,
and is not something worthless, or "drained of vitality", asmy learned
friend suggested in the verbatim record at page 244, supïa, specificaily
with reference to this contention on our part. At that page, my leamed
friend went on to Say:
".. .Respondent's contention that the scope and content of the
obLigation entrusted to Respondent in terms of Article 2, para-
graph 2,is to be measured by its so-called good or bad faith in the
exercise of discretion under that Article, embodies its own built-in
reductioad abszsrdum.
Without any purposeor intimation of cornparison, or suggestion
of analogy to facts in the cases at bar, the lesson of hiçtory teaches
that the greatest excesses of policy, and the most reprehensible
doctrines, frequently are propounded and executed with professions
of good faith and lo£ty purpose. Indeed, hurnan experience and aü
sonable lengths, or improper ends,tyitis often difficult to distinguish
from obsession." (Pp. 244-24 5up~a.)
Now, Mr. President, 1 am pointing out to th& Court, with respect,
that once the premise isaccepted that a power is limited with reference
to a purpose, as a matter of law, then there can be no such redactio ad
absurdzm as my learned friend contended for.
When my learned friend speaks of "the geatest excesses ofpolicy",
and "the rnost reprehensible doctrines of history", he no doubt has in
mind cases of policies and doctrines applied by rulers of sovereign States
whose powers were not considered legally Iimited by an objective or
purpose to promote the well-being and progress of all persons or groups
concerned. He appears, Mr. President, to have been concemed primarily,
and particularly, with cases where the excesses, or reprehensiveness,
conçisted in the deliberate subordination of the well-being of some
persons to that of others, even to the extent of the extermination, sub-
jugation, expulsion and so forth of certain personç whose interestç were
sacrificed for the sake of a particular doctrine or to favour other persons.
If such excesses were to occur under mandatory rule, they would be so
as to leave no doubt whatsoever in regard to their illegality. The samed SOUTH WEST AFRICA
692
would apply to any conceivable case where "sincerity of purpose"-I
am using my learned friend's words again-"is carried to unreasonable
lengths", so asto be "difficult to distinguish from obsession". My learned
fnend himself, in this passage which I have quoted, mentioned in that
regard "irnproper ends". Nr. President, that is exactly what 1 am point-
ing out: "sincerity of purpose" must, under the Mandate, relate to the
authorized purpose only, namely the purpose of promoting the well-
being and progress of al1the inhabitants;and any "sincerity of purpose"
of which it could be said that it "is carried to unreasonable lengths",
tinguish it from obsession", mut surely and inevitably relate to someto dis-
purpose other than this authorized and legitimate purpose prescribed
by the Mandate. And if that is so, Mr. President, a court of law would
generally have no difficulty in discovering the real purpose of such a
policy. The purpose would in such instances surely appear from express
statements by leading expounders of the policy, if such "sincerity of
purpose" carried to such excesses and to such unreasonable lengths on
the basis of professions of good faith and lofty purpose. If we have a
situation-bordering on an obsession, we are bound to have express
statements of purpose by Ieading expounders of the policy or doctrine
which would make it clear to the court, in the mandate context, that
what is being aimed at is an objective other than the prescribed one.
And even if such leaders should endeavour to put up a srnoke-screen,
or a camouflage, a court would nevertheless, on proof of the relevant
facts properly presented to it, have no difficulty in drawing the correct
inference as to the real objective of the persons or the authority con-
cerned; the court would be able to draw those conclusionsfrom the very
unreasonableness of the objective, from the very improper ends border-
ing on an obsession, and that is why, as 1 have said, the method of
testing a Mandatory's conduct for its honesty of purpose, for its bona
fides, by enquiring whether it has been directed at an authorized purpose,
at a prescribed purpose, as distinct frorn an unauthorized and unpre-
scribed purpose, is in practice, avery valuable one. It specifically dis-
tinguishes the mandate case from the type of case referred to by my
learned friend.
But it must be borne in mind that any inference from conduct and
circumstances must be a necessary inference in order to be valid, and
that there must be no doubt about the utter unreasonableness, or the
excess bordering on an obsession,before the inferenceofan ulteriormotive
would be justified. If it is sought to establish this through the medium
of referring to currently accepted standards, as distinct from noms, if
it is sought to establish it through showing disparity between Respon-
dent's policies and such current standards, then the Applicants would
have to show that Respondent is, indeed, out of step with virtually all
relevant modem thought. It would not avail the Applicants to show
merely that some people, or many people, disagree with the uisdom or
the propriety of some of Respondent's policies, or of al1Respondent's
policies, or of some of the measures involved, or of al1 the measures
involved, even if, with respect, such disagreement may be shared by
this honourable Court. That appears quite clearly also from the prin-
ciples of Iaw stated by Sir Hersch Lauterpacht. which we quote in the
Rejoinder, V, at page 171-1 need not read the passage again to the
Court. The question, in our subrnission, must always be: is there room ARGUMENT OF MR. DE VILLIERS
693
for honest difference of opinion? If the answer is in the affirmative, i.e.,
if the Court finds that there is room for honest difference of opinion, the
Court canot, on this line of reasoning, introducing currently accepted
standards or not, come to the conclusion that Respondent has esceeded
the scope of its discretionary powers.
facts, there is, in our submission, no prospect that the Court will arrive
at a conclusion that there is no scope for honest difference of opinion
when regard is had to everything that can be said on this subject of
currently accepted noms and standards. And it seems that my learned
friends representing the Applicants indeed realize this. That is why
they indicate to this Court that they do not accept the task of establish-
ing that there is, in facmala fidesin the sense under discussion on the
part of the Respondent Government. There is in our submission in fact
no substantial difference at al1 between Respondent's policies and
general modern thought on the basic principles of justice and equity
involved, and 1stress the basic principles involved. The differences which
exist relate to questions of inethod, and~vefind that condemnations of
Respondent 's policies,so frequently quoted by my learned friends, very
often proceed from purely political motivation or from a wrong apprecia-
tion of the facts. LVefind, Ur. President, as we shall show more fully,
that amongst properly informed and thinking perçons (rom al1over the
~vorldthere is ever-groïving support and appreciation of Respondent's
policies, at least as regards their general trend, their objectives and the
broad means by which the objectives are sought to be attained; wveshali
show this more fully when we come to deal with the facts. But that, in
law, is, in my submission, the role that can be assigned to modern,
currently accepted standards as distinct from binding rules of law.
At this stage 1 should like to revert to a statement made by my
learned friend, Mr. Gross, in comection with the Applicants' alleged
norm of non-differentiation, because it is relevant to this question of
the relevancy of standards. 1quote from the verbatim record at page 261,
supra, where my learned friend said this:
". ..although Respondent refers to this basic minimum standard
as a 'so-called'or as an 'alleged'norm, no serious attempt is made
by Respondent to deny the existence fier se of the standards relied
upon by Applicants".
In other words, Mr. President, the suggestion seems to be this: that the
existence of a standard, in our sense of the word, with a content of the
alleged norm is not in dispute. Now, 1have already pointed out that we
denied that any such norm in such an unqualified form existed at al1
(we did that on the pleadings), quite apart from the fact that it was not
applicable to the Respondent; that we were correct in saying that, Le.,
that there was no norm in such an unqualified form as was being sug-
gested in the Reply stage by my learned friends, has been demonstrated,
found it necessary to introduce qualifications into the norm. By the
clearest implication, Mr. President, we also denied the existence of such
an unqualified standard. In regard to standards generally, I can refer
the Court to what we said in the Rejoinder, V, at page 174, where we
stated, amongst others, the following (about ten lines from the bottom
of the page):694 SOUTH WEST AFRICA
"In so far as some recent formulations in resolutions of political
bodies, or even in international agreements, prospective or real, may
be read as seeking to lay down that methods found appropriate in
stances, including those pertaining to SouthWest Africa and South
Africa, Respondent has made no secret of its disagreement with
such notions, or of the fact that its policiesdonot comply therewith.
In tmth, however, as wdi later be demonstrated, most formulations
contain expbcit or implicit qualifications which, in their underlying
ratio, fïnd cornmon ground with the approach inherent in Respon-
dent's policies."
1should like ta say some more on that subject, Mr. President, with
particular reference to the material relied upon by the Applicants in
regard to their suggested norm of non-differentiation. The Court will
recall that in the Reply the Applicants referred to a number of sources
insupport ofthiscontention. Wedidnot, in the Rejoinder, deal with them
oneby one,asdistinct fromdealing with themin general, forthe reason that
it was shown, conclusively in our subrnission, that no such norm existed
or was in any way binding upon the Respondent. Now,when considering
the sarne question in relation to its use as a possible standard, 1 should
like to deal Withit further in the lightof the general statement which we
made in the Rejoinder, and which we maintain.
First of all, in order to avoid misunderstanding, 1 want to make it
clear that although wedo not dispute the existence of a political standard
of nondiscrimination involving a prohibition of unfair or oppressive
differentiation, we do dispute the existence of an absolute standard of
non-differeritiation; we rnust draw that distinction quite clearly-a dis-
tinction between non-discrimination involving a prohibition of unfair or
oppressive differentiation and an absolute standard of non-differentiation
fierse.\Ivecan point out, Mr. President, with reference to the conventions
and draft conventions to which rny learned friends referred the Court,
that theStates which are seeking to achieve a convention on the subject
of non-differentiation are still groping about on the question of necessary
qualifications which they have to introduce in that regard, andthat there
is no concept having nearly the absolute nature which the Applicants
seem to assign, or wish to assign, to this suggested norm or standard.
sourcesdcited by the Applicants, both in the Reply and in the presentthe
Oral Proceedings, reference is made to, and judgment is delivered on,
Respondent's policies specifically, and my learned friends were not slow
to point that out. Amongst nurnerous exarnples which we find in the
pleadings and in the Oral Proceedings, 1 can refer to a statement by my
learned friend, Mr. Gross, in the Oral Proceedings-the verbatim record,
at page 265, supra, where he referred to the Draft Convention adopted
by the Human Rights Commission at its 20th session, and he said:
"The approved Draft Convention condemns in expressisverbis'policiesof
apartheid' . . ."Now. Mr. President, our submission in that regard is
this: for reasons which 1 have already indicated, such a condemnation
cannot $er se assist the Applicants in establishing the content of any
particular norm, When we have a condemnation of a policy, there enters
into that condemnation two elementç which are separate and distinct.
The first element is that of the applicable standard, and the second is
the appraisal of the factual elernentç of the policy or practice. It is only ARGUMENT OF MR. DE VILLIERS 495
when we have the second, i.e., the appraisal of what factual elements
are involved in the particular policy or practice, that we can apply the
norm. So, Mr. President, if a policy is condemned on a wrong factual
assumption, for instance, an assumption that it involves deliberate op-
pression, or that itis based on concepts of racial superiority or racial
hatred, then the condemnation itself tells us nothing about standards,
except about the very elementary ones which everybody accepts-that
deliberate oppression is a bad thing, or that concepts of racial superi-
ority or racial hatred are bad things; that is al1 such a condemnation
tellus. And this is precisely what we findinthe case of this last example
to which 1referred: theDraft Convention of the Human Rights Commis-
sion as set out in thReply, IV, at page 507. We find this condemnation
of apartheid Trzexpressis veïbis in the Third Preamble of the Draft
Convention as tkere set out, and it reads as follows:
"The StatesParties 20this Convewtion,
..............................
"Concerned by manifestations of racial discrimination stiIl in
evidence in some areas of the world and by governmental policies
based on racial superiority or hatred, such as policies ofaficartheid,
segregation or separation ..."
That makes it perfectIy clear on what basis, on mhat assumption, this
condemnation was based. This Court is not assisted in any way by such
acondemnation as far asthe standards involved are concerned, because
the Court must make its own determination and will, in my submission,
make its own determination, on the evidence presented to it, whether
that evaluation, that judgment, that the policy is based on a concept of
racial superiority or racial hatred, is correct or not; and once that factual
evaluation falls away, we are left in the dark, at any rate asfar as the
condemnation itself is concerned, in regard to the particular standard
applied. When it comes to the particular standards contemplateci by this
particular Commission, we have to look, therefore, at the other provisions
of that Draft Convention, and it is in that regard that we submit that
the qualifications inherent in them are of the greatest significance also
in the present enquiry.
Mr. President,1 proceed then to the provisions of the Draft Convention
on the Elimination of Al1Forms of Racial Discrimination, adopted by
the Human Rights Commission at its 20th Session in 1964.
1 may Say that, for my present purpose, i.e., forthepurpose ofcom-
paring modern standards, in so far as they are relevant, with the con-
ceptions of the Respondent Government as expressed in its policies, 1
shall confine myself, out of al1 the sources cited by the Applicants, to
this particular one. This is the very latest development on the subject
in the international sphere. It does not seem to us to be necessary to go
fidly into the whole historical background and the precise wording of
each resolution, declaration, draft convention, convention and so.011,
which led up to this ultimate one. This one contains al1the adaptations
that have been foiind to be necessary, from time to time, and itprovides
sufficientillustration othe point which we want ta make inthe present
argument.
The preamble and the first three operative articles of the Draft Con-
vention are cited in the Reply, IV, at page 507, footnote z. The Court
will there see that in the first article racial discrimination is defined as SOUTH WEST AFRICA
696
follows: ". ..any distinction, exclusion, restriction or preference based
on race, colour, [national] or ethnic orgin..."
But the Court wiii also notice that the word "national" appears in
parenthesis. At the end ofthe artide there appears, by way of expianation
for the parenthesis, a sentence in which a special interpretation is placed
on the word "national". The sentence reads as follows: "[In this para-
graph the expression 'national origin' does not cover the status of any
person as a citizen of a given State.]"
In other wordç, where there is, in general, to be a prohibition against
excluçion, or restriction based,gilzter alia,on national origin, such pro-
hibition does not apply to a distinction because of the status of any persan
as a citizen of a given State.
This Draft Convention, Mr. President, is, in this respect, essentiaily
the same as that adopted by the Sub-Commission on the Prevention of
Discrimination and Protection of Minorities, which fully discussed the
several drafts placed before it by experts. It is very interesting to note
that in these diçcüssions much concern was expressed by members of
the Sub-Commission in regard to the use of the word "natronal" in some
of the draft definitions of racial discrimination.
They made it clear in these discussions that the Convention should be
so framed that it could not be regarded as interfering with the right of
each State to differentiate between its nationals and aiiens.
Thus we find that at the 411th meeting of the Sub-Commissjon on 16
January 1964, Mr. Krishxiaswami of India proposed an amendment to
the draft which waç then under consideration. The amendment \vas to
the effect that the word "nationahty" should be placed in quotation
marks in the definition contained in Article I and that its meaning
should be explained in a footnote, assigning to it rnuch the same inter-
pretation asto the last sentence of Article I of thedraft eventually adop-
ted and asprinted in the Reply. He proceeded to çtate, Mr. President:
"\iVith that explanatory footnote, the article could not be inter-
preted as denying to a Stateits right to make special provisions re-
garding aliens within its territory." (U.M. Doc. EICN.~/SU~.~/SR.
441. P. 4.1
At the 425th meeting of the Sub-Commission Mr. Cuevas Cancino of
Mexico expressed the following opinion :
"...the convention obviously could not require States to grant equal
rights to nationals and aliens". (U.N. Doc. EICN.4/Sub.z/SR.425,
At the same meeting Rlr.Mudawi of thé Sudan, referring to a draft
Article 8 in which it was sought to place a restrictive interpretation on
the word "national" in Article I,remarked that-
which were granted to nationab".d righ(U.N. Doc. EICN.4ISub.21SR.ts
411, p. IO.)
The next speaker, hIr. Saario of Finland, cornmented that:
"... There were some areas other than political rights, e.g., the right
to social security and the right to work, in which a distinctionwas
made betrveen nationals and aliens; accordingly, it might be unwlse
to single out political rights in the interpretative clause." (U.N.
Doc. E/CK.4/Sub.z/SR.qrr, p. IO.) ARGUMENT OF MR. DE VILLIERS
697
These, Mr.President,as I have said, are extracts from the deiiberations
of the Sub-Commission.
Atthe meetings of the Commission of Human Rights in 1964 similar
sentiments were expreçsed by delegates and it was generally understood,
as appears from the record, that the Draft Convention should not be
read so as to prohibit differentiation between nationals and aliens, hence
the retention of the interpretative sentence in Article I of the draft
which is in the Reply.
With respect, the Court could refer in that regard, for example, to
United Nations Documents E/CN.q/SR.783-785.
Now, Mr. President, once it is accepted that differentiation between
nationals and aliens is permissible, then surely as a matter of logic and
tween different groups inhabiting a given territorial area, which is, fore-
the tirne being, administered as a unit but which is destined to be split
up into separate political areas, each with its own nationality and each
capable of achieving autonomy.
Surely there can be no distinction, as 1have said, of logic, or ofjustice,
or of equity, between these two cases.
If it is accepted that it is in the interestof all the different groups
in such a territory, that a separate country, orhomeland, should be set
aside for each group, and if it isfurther accepted that, on the road towards
achieving this objective, it is necessary to distinguish between the various
groups, even before their respective areas have developed to countries,
in the tme sense of the word, what difference could there then be in
logic, or fairness, or justice, between differentiation in such a case and
that involving nationals of States already existing as separate States.
Surely, Mr, President, it would, in our submission, .be hypocritical
to süggest that the various States might freely differentiate between
nationals and aliens once they have become autonomous, or semi-auton-
omous, but that until that stage were reached, the administering power,
which is striving to that ultimate end, would be precluded from any
differentiation between the groups at ail.Surely that would be a com-
pletely artificial and a completely unjustified distinction and it would,
as we submit, be hypocritical.
It would be tantamount to saying, Mr. President, that such a solution
is not to be allowed to the administering power at all, because once it is
accepted that the best purpose to be striven after is the creation of dif-
ferent political units with different nationalities, the application of a
policy of differentiation with a view to achieving that end could not be
distinguished in justice or fairness from the case where the final result
has already been achieved.
As I have said, Mr. President, it would be tantamount to saying that
such a solution is in itself debarred to the adrninistering authority,and
as faras 1know there is no modern standard, or rule, or norm, whichhas
that content. There certainly could not be any moral or equitable justi-
fication forsuch a norm or standard because it involves not a question of
principle, of justice, of equity, orof morality, but purely a question of
method of achieving ideals of justice and fairness towards everybody
concerned-and the soundness of the method appfied would have to
depend upon the facts and the circurnstances of each particular case.
Tt therefore, Mr. President, becomes clear from this qualification
about differentiating on a nationality basis aIone tliat there is no material6gS SOUTH M'EST AFRICA
distinction between the underlying concepts of justice, equity and mo-
rality (asdistinct from particular questions of method) of the particular
Draft Convention and those invoived in the Respondent's policy. But,
&Ir.President, the same feature appears from a further factor, namely
the following: the authors of the Draft Convention did not consider that
differentiation between groups in a country destined to be administered
as a territorial unit would be impermissible in al1 circumstaiices, even
on apermanent basis. In other words, even in cases where it is not the
the country is being administered asdiffeaesingle territorial unitand the
intention is that it is to continue to be so adrninistered, even there the
conference did not consider that differentiation was to be barred in all
circumstances.
So we find that the same speaker from ~~esico, hlr.Cuevas Cancino,
said the following at the 411th meeting of the Sub-Commission:
"... [it] was important to bear in mind that protection of certain
groups did not constitute discrimination. Nor shoüld such measures
be abruptly discontinued. In some cases, they became part 'of na-
tional institutions, anda permanent means of securing rights mhich
were in the interests of the country as a whole. As an esample, he
cited the case of Mexico, where the ownership of the land by the
Indians had been originally recognized by the Spanish Crorvn, and
1870,ço that the Indian villages had been left entirely without land.
It bad required the revolution of 1910, with its ensuing land reform,
to restore the original more equifable situation." (U.N.Doc. E[CN.4/
Sub. 215R.411, p. g.)
This was, therefore, a further case, Mr. President, where particular cir-
cumstances rendered such a solution more equitable than a rigid precept
of non-differentiation, even in a country governed as a territoriat unit
and destined to continue to be so governed.
mented adversely on a draft Article 8 that had been proposed. The rele-
vant portion of paragraph 2 of the draft Article 8 read as follows:
"Nothing in this Convention shall be interpreted as irnplying ...
a grant of political rights to a distinct racial ethnic or national
group as such." (U.N. Doc. E/CN.4/Sub.z/L.340.)
Mr. Cuevas Cancino çaid in this regard:
"The second part raised a question as regards the kind of groups
to which it referred. He could suggest some cases where political
rights would have to be granted to distinct groups as such-the
Turkishminority in Cypms was a casein point. In fact, in somecases
the denial of special political rights on such grounds might in itself
constitute discrimination." (U.N. Doc. E/CN.4/Sub. zlSR.425, p. 8.)
At the same meeting Mr. Ivanov of Russia also objected to the cited
portion of the draft Article 8, paragraph z. He is reported to havesaid
the following in the same document at page 6:
"...the draft convention shouid not deny political rights to any
ethnic groups had political autonomy, and special provisionial anwas
made for that situation in the Constitution. Ifa limitation along the ARGUMENT OP MR. DE VILLIERS
699
lines proposed was included in the draft convention, it might have
the effect.of depriving entire groups of their legitimate rights. At
a time when peoples in many parts of the globe were striving for
autonomy, such rights ought to be defended."
Mr. President, one of the proposers of this draft Article 8, Mr. Calvo-
coressi of the United Kingdom, reacted to these speeches which 1 have
cited by assuring Mr. Ivanov as follows:
"...that paragraph 2 of Mr. Capotori's and his own draft for Article
VI11 ...was not intended to limit the rights to political autonomy
held by raciaI, ethnic or national groups ...".
.4nd he also assured Mr. Cuevas Cancino as follows:
"... that it was not intended to affectthe rights of such groups as
the Turkish minority in Cyprus. The paragraph simply stated that
nothing in the draft convention should be interpreted as grant-
ing such rights." (U.N. Doc. E/CN.~/SU~.Z/SR.~Z~,p. 9.)
So Mr. President, it becomes ciear again that there was general agree-
ment that there could, in fit cases, be distinctions of this nature, such as
the granting of political and other rights to particular ethnic groups as
such, even ~vithin a country destined to be governed as a unit. And it
ence of real principle-betweent therthe attitudes of the authors of theffer-
Draft Convention and that of the Respondent Government regarding
differentiation in a country or area inhabitated by various national or
racial groups.
The common attitude seerns to be that differentiation of the nature of
unfair discrimination is impermissible but that measures of differentia-
tion which are genuinely designed to promote the interests of al1 the
groupç concerned, is permissible. Anydifference which may exist between
Respondent's attitude and that of the authors of the Draft Covention,
relates to formulation, particularly of detailed aspects of method, and
not to the underlying ideas themselves.
Well, there are, indeed, such differences in regard to formulation of
particular aspects of method. 1 may in that regard refer the Court to
paragraph 2 of Article I of the Draft Convention, as an example. The
paragraph is quoted in the Reply, IV, at page 507. It contains wording
which, in my subrnission, will quite evidently require further considera-
tion, and probably modification, in the course of gaining full wisdorn on '
the subject and before a final conclusion is reached, because we findthat
it reads as follows: c
"Special measures taken for the sole purpose of securing adequate
development or protection of certain under-developed racial groups
or individuals belonging to them in order to ensure to such groups
or individuals equal enjoyment or exercise of human rights and
fundamental freedoms shall not be deemed racial discrimination,
provided, however, that such measures do not, as a consequence,
lead to the maintenance of separate rights for different racial groups
and that they shall not be continued after the objectives for which
they were taken have been achieved."
Mr. President, the part of this paragraph before the proviso accords
entirely with the basic underlying attitude of the Respondent in regard70° SOUTH WEST -4FRICA
to its policies. The only difference arises from this rather rigidly \vorded
proviso reading "provided, however, that çuch measures do not, as a
consequence, lead to the maintenance of separate rights for different
racial groups and that they ;hall not be continued after the objectives
for which they were taken have been achieved". Mr. President, the in-
junction in this proviso that protective measures are not to "lead to the
maintenance of separate rights for different racial groups" appears to
be in conflict with certain of the sentiments expressed by speakers in the
very debate 1 have referred the Court to, which led up to the adoption,
by that conference at lest, of the Draft.
It is certainly in confiicwith the fears expressed on behalf of various
States in regard to paragraph 2 of the draft Article 8 to which 1 have
referred.
SureIy the separate rightç granted to the Turkishmin~rity in Cyprus
were not intended to be of a ternporary nature and they were not dis-
cussed in the debate as ifthey were intended to be of a temporary nature
only. And the rights of the racialand ethnic groups, referred to by the
Russian delegate, in the passage which I quoted to the Court, were not
spokenof asbeingintended to be temporary. The wording of this proviso,
therefore, seems to be going beyond the contemplation of at least some
of the delegates. That is one of the reasons why 1 have said, with the
greatest respect, that it would çeem to be evident that this is anexample
of a standard which would require modification with experience as it goes
along, In addition, Mr. President, if underdeveloped groups rnay be
specially protected by measures involving compulsion from the point of
view of the developed groups, there can, in our submission, hardly be
any logical or equitable justification for denying sirnilar protection to
developed groups, which may be minority groups in particular countries,
involving compulsion frorn the point of view of the underdeveloped
groups. I have dealt with that point before but on a basis of equity or
justice orethicsor morality, Mr.President, there cannot be any distinction
in that regard. If there isa moral right, on the part of a more developed
group, to inhabit a certain country, if that groupplays a constructive part
in that country, ifit istothe advantage of al1that that group is to remain,
then what objection could there be in fairness or justice to such special
rneasures of protection as might be required for that group? l'et this
proviso, to which 1 referred, or ~ather the whole of that paragraph z
of Article 1, does not make provision for a case of that kind. It makes
provision for protection of underdeveloped goups but not for the most
developed groups in the territory even thaugh that group may be a
minority.
rigidity into what must essentially in Our submission be questions ofs of
tion but clearly not from the underlying principleç of justice and equity.
So, Mr. President, having considered the suggested noms andthe sug-
gested standards and the interpretation which, in Our submission, is
to be placed on Article z,paragraph 2, of the Mandate, we corne to the
question of the application of the legal principles to the facts-the legal
principles contended for by us and by my lenrned friends. The full con-
sideration of that part of the enquiry, of course, is to be left over until
the facts have been properly debated and canvassed and investigated
but there are certain aspects of that part of the enquiry to which 1 ARGUMENT OF >IR.DE VILLIERS 701
should like to draw attention now because they seem to be relevant in
regard to the legal questions whicli we have been debating.
On the first day of these Oral Proceedings, my learned friend, Mr.
Grosç, made the submiçsion-
"...that the legal issue joined between the Parties in respect of
the irreconcilabilitof the policy and practice of apartheid wjth the
obligations of Article 2, paragraph 2 of the Mandate, hinges on no
undisputed fact".
That is from the verbatim record at page 115, supra.
He also said at the same page-
"That there is no 'issue of fact to be determined betiveen the
parties' on any decisively relevant aspect of these cases, has been
made clear in the Reply and is here reaffirmed."
Still proceeding at the same page, he said-
"The Applicants, of course, take sharp issue with the premises
upon which Kespondent's policy is based, as cvellas with the in-
ferences and legal conclusions wiiich Respondent seeks to draw from
its admitted, factual, policies."
Now we have pointed out several times bcfore, &Ir.President, that the
suggested norm of non-differentiation was formulated in the Reply in
such absolute termç as to outlaw any differentiation of any kind between
ethnic groups, no matter for what reason and nomatter what the results
of the differentiation might be. Measured against that norm, Respon-
dent's policies and practices were obviously irnpermissible and if, such
a norm were to exist in that absoiute form, it wodd be truc to say that
there would be no factual disputes between the Parties which prevented
adjudication and indeed condemnation of Respondent's policies and
practices. That result would follow automatically because it is common
cause that thcrc is differentiation on a group basisAnd in that respect of
course, there is no factual dispute and on application of the absolute
norm the consequence of illegality would follow.
As soon, Mr. Yresident, as we depart from such an absolute norm, i.e.,
to there being no fact in dispute, becomes certaidy not nearly as clear as
on the said premise. In fact, we submit that in the light of the correct
basis for adjudication of the issues regarding Article2, paragraph z,this
attitude stated by my learned friendin regard to there being no dispute
on material questions of fact, is an untenable one. It is untenable for
two reasonç: the first one is the very fact that, aswe have pointed out, it
has been necessaryfor the Applicants to introduce qualifications intotheir
suggested norm of non-differentiation. They have qualified it by the con-
cept of "protection, not compulsion", and if the Court were indeed to
have to apply a formula of that kind, then numerous factual disputes
might be involved in regard to each one of the various mesures and
policies and practices concemed. I have pointed that out earlier to the
Court and 1 need not elaborate upon it.
What 1 do want to stress at this stage, is this furtherfactor, that my
leamed friend himself says that he takes sharp issue on the prerniçes
upon which Respondent's policy isbased, as well as on the inferences and
legal conclusions to be drawn therefrom.
It is, in our submission, completely illogical, Mr. President, for the702 SOUTH WEST AFRICA
Applicants to sa); that there is no materid factual dispute bettveen them
and us and to Say at the sarne time that they take this sharp issue on
I I premises upon which our poiicy is based. What do they mean by
premises"? That becomes perfectly clear, when we have regard to what
they said about this ver same word "premises" in the pleadings which
are before the Court. d en we have regard to that, Mr. President, we
find that those prernises indeed involve questions of pure fact-pure
fact as distinguished from evaluations of fact or inferences to be
drawn from fact. Surely, Mr. President, the question whether various
population groups in South West Africa desire to retain their separate
identities or desire to have separate schools or separate territories and
separate residential areas or separate political institutions, and so forth,
is a pure question offact. And tan my learned friend Sayto this Court that
there is,for relevant purposes aç far as any of these theses or bases are
aoquestion of fact whether school children might progress better whennt,
taught in their home language than in a foreign language? 1s it not a
question of fact as to the psychological way in which children and in-
deed adults in South West Africa react to separate institutions, separate
schools and separate other institutions, as compared with the situation
in a country, for instance, like the United States of Arnerica where the
psychological aspect of the matter was dealt with in the Bvown case?
1s that not a question of fact?1sit not a question of fact in what manner
members of groups, of ethnic groups, react when they feel that the
identity or the continued existence of the group is being threatened? 1s
that not a question of fact? And is it not a question of fact, or at least
of evaluation of techniques involved in government, to decide what is
the best reaction of a government to group reactions of that nature, if
established as facts? hlust a govemment try to smash them altogether,
try to over-mle them, ignore thern, or must the government take cog-
nizance of their existence and try to evolye a policy which takes cogni-
zance of them and which iscapable of using the hurnan material involved,
the human sentiments involved, the human reactions involved, to a posi-
tive purpose and to a positive result?
Surely, Mr. President, those are questions of fact and of scientific
appraisal of the problems involved. Tn the Reply, IV, page 302, we find
the cIearest indication that the AppLicants include these matters, to
which 1 have referred, in what they cal1 the premises upon which the
Respondent's policies are based. They Say there, under the heading of a
portion of their Reply, namely The Weighl of Codem$mary Scieniific
Aectharity:
"Respondent's underlying premises are, in effect, that historical
circurnstances have created asituation in which members of different
'groups' preferto 'associate with rnembers of their own group'."
Mr. President, let us pause here, for a moment. Surely, that in itselfis a
stateinent of a question of fact, whether members of groups indeed,
prefer to associate with members of their own group. The AppLicants
go further and state various other examples, some absolutely correctly,
some correct with some qualifications, some incorrectly, but, neverthe-
las, in purported i1lustration of what the Applicantç conceived to be
the premises which we, on our part, stated to be those underlying the
policy of separate development, These pre~nisesreferred, inter aZia,to ARGUMENT OF &IR.DE VILLIERS 703
group reactions, which we said existed as social phenornena, as facts
independent of government action. The whole subject is discussed in the
Reply, IV, pages 303-305, where the Applicants set out what they con-
ceive to be our stated basic prernises. Then, Mr. President, at the con-
clusion of this setting out of Our prernises, or the wvayin which we
expressed the premises, the Applicants Say:
"In reply, AppIicants show that, to the contrary, the foregoing
assumptions and generalizations, assertedby 13espondent to underly
and shape its policy of apartheid, or separate development, are
contrary to, and are rejected by, the ovenvhelming weight of au-
thority in the political and social sciences."(IV,p. 305.)
1 ask the Court again, with due respect, is that nota statement of an
issueof fact, especially &en the Appiicants proceed to isolate three of
these so-calied prernises, or assumptions, or generalizations, asserteby
Respondent to underly and shape its policy, and to deal with them in
order to show that they arecontrary to and rejected by the overwhelming
weight of authority in the political and social sciences. The first one is
paraphrased at page 305 of the Reply as being Respondent's contention
regarding "'Difference'without 'Inferiority' ". The second one at pag306
is paraphrased as being Respondent's contention of "Inevitable 'Frustra-
tion' if al1Inhabitants of the Territory AreAccordedEqual Opportunity".
The third one is paraphrased as "Respondent's Contention that, As a
'Realistic Governrnent', it Must Support Existing 'Group Reac-
tions". The Applicants then proceed under this heading with a discus-
sion, running from page 305 to page 312, in which they offer, what they
cd, the ovenvhelming weight of authority in the political and social
sciences, which they say refuteç these underlying assumptions, gener-
alizations-in other words, prernises-of Respondent's policies.
Rlr. President, we dealt with that subject-matter in our Rejoinder, V,
pages 400-461-a treatrnent spread out over, if1 recail correctly, four
different chapters of oiir Rejoinder-in order to show that the Applicants'
statement that the overwhelming weight of authority in the political and
social sciences, is against these various premises on the Respondent's
part, properl y sated and properly understood-that that contention on
the Applicants' part is whoiiy unfounded. Mr. Yresident, surelv that'
constitutes an issue of fact between the Parties on what the Applicants
cal1 the prernises, on which they take sharp issue. How then can the
Applicants tell us that there are no material issues of fact between the
Parties which are relevant to a determination of ths case in regard to
Article 2 (z)?
These are only someexamples. There are others which make it equally
clear that, in contending as they do that the policy of apartheid, as
practised in South West Africa, is repugnant to the Mandate (that we
find in the verbatim record at p. 113,supra) the Applicants have in mind
a certain factua1 conception of the policy of apartheidThey indeed make
that very clear, Mr. President. They go on to Say, at page 114 of that
sarne verbatim record :
"... it is impossible to deal with the legal issues underlying the
mandatory ri hts towards the inhabitants of the Territory without
considering, ! only briefly, the Applicants' theones, or contentions
at least, with respect to the nature of the practices and policies with
which those legal issues are vitally concerned".7O4 SOUTH WEST AFRICA
At page 113 the Applicants make it perfectly clear what is their factual
conception of the policy of apartheid, as practised in South West Africa,
and1 quote:
"The Applicants do not use the terms 'apartheid' or 'separate
development' as words, but as defined acts with a legal consequence.
The Applicants present to this honourable Court the policy and
practice of apartheid as it is, and asit has been, in the daily lives of
the individual persons who comprise the collectivity of the inhabi-
tants of the Territory.
ceedings, asaatpolicy and practice under which:oses of these pro-
'thestatus, rights,duties, opportunities and burdens of the popula-
tion are determined and aiiotted arbitrarily on the basis of race,
color and tribe, in a pattern which ignores the needs and capaci-
ties of the groups and individuals affected, and suboràinates the
interests and rights of the great majority of the people to the
preferences of a minority'. [1,p. 108.1"
Mr. President, in that passage 1 can point to three basic questions on
which the sharpest issue was taken by the Respondent in the pleadings
before the Court, The suggestion that the allotment isarbitrary, the
suggestion, or allegation, that the pattern ignores the needs and capaci-
ties of the groups and individuals affected, and the allegation that the
pattern subordinates the rightç and interests of the great majority of the
people to the preferences of a minority, are the cardinal factual issues
between the Parties in this case. My learned friend retainsthis definition
when he says that the policy of apartheid, as practised in South West
Africa, is repugnant to the Mandate. Indeed, he stresses that this defini-
tion mut be read into that concept because he doeç not use the term
"apartheid", or "separate development" as words, but as defined acts.
and tfüs is the dekition. So, Mr. President, how can he tell this Court
thHis further recognition of the importancetweeoftthe factual aspects, to
which 1 have reierred, appears from the fact that, when he came to the
end of his arguments in the verbatim record at page 269, sufra, my
learned friend stated certain submissions to the Court apparently as if
he had put his full case in regard to those already, but he made an
exception in regard to his Submissions 3 and 4 when he said:
".. . 1 terminate, on behalf of the Applicants, the first phase of
these oral proceedings, and reserve to the subsequent phase a fuller
discussion of issuesinvolved in Article 2, paragraph 2, of the Man-
date, including the legal issues there involved and the submissions
relevant thercto, which 1 have not now presented to the Court ...".
Mr. President, that is the lack of logic which we still, with the greatest
respect, find in this presentation of the Applicants' case, and 1 mention
it, not in order to be facetious about it, but because it creates a real
practical difficulty as to what case it is that we have to meet, and as to
what case it is that this Court is asked to decide. It may well be, and 1
Say it with the greatest respect, that questions ought to be asked of the
Applicants (1 cannot ask them), questions that may be necessary to
clarify these basic aspects of what their case really is. Perhaps my
Iearned friend will deal with the matter in any case ln reply to what 1 ARGUMENT OP MR. DE VILLIERS 7O5
am çaying now, so that we may in fact know where we stand in regard
to this matter.
The practical conclusion to which we corne, Mr. President, on the
argument which 1 have presented to the Court in regard to the law
involved in Article2 (2)of the Mandate, amounts to this: Let us assume
that the Applicants have not succceded in establishing any of thcir sug-
gested legal noms, or standards having legal effect erse. Let us assume
further that the Court finds in our favour that the asis upon which the
alleged violation of Articlz (2)of the Mandate is to be determined, is
one of good faith-in other words, that in order to establish a breach
or violation of our obligation under that Article, it is encurnbent upon
the Appbcants to establish bad faith on our part, in the sense under
discussion.
Let us assume further that the Court finds in Our favour that an
enquiry into that question of bad faith is not to proceed on the limited
and artificial basis suggested by the Applicants in their reference to a
so-called presumption that a man is presurned to intend the naturaland
probable consequences of his actions, but that the Court agrees with us
that al1 the relevant facts-a11 the relevant evidence-is to be con-
sidered before the Court cornes to a conclusion on the issue of intent of
good or bad faith involved in that respect.
Mr. President, on the assumption that those findings are made by the
Court purely on an assessrnent of the legal argument which is now being
adduced to the Court, and if the Court then, in addition, takes into
basis of bad faith-1trefer the Court again tothat in the verbatim record
at page 116, sztpa, where the Applicants say-
"... the' fact undisputedlyis that the Applicants do not make an
issue, have not sought to make an issue, and do not intend to make
an issue of good or bad faith in the premises".
Mr. President, on that basis, the question map well be put to the Appli-
cants that if the Court rnakes these findings1 have postulated, do the
Applicants wish to proceed at al1with their case in regard to the facts
and, if so, on what basis? On what basis can the facts be said to be
legally relevant and for what purpose?
If this attitude, which I have just read to the Court, is maintained
and assuming the Court makes these findings as to the law involved in
the matter, that may well mean the end of the Applicants' case.
The Respondent is ready and willing and anxious to put its full case
in regard to the facts before the Court, to proceed with the evidence
1have referred to-oral evidence-and to proceed with the inspection,
if the Court decides to have an ins ection. The Respondent is anxious
question may well arise, as a matter of practical convenience ivhether,
if the Court rnakes these findings on the basis of the law, there is any
presentation of an issue of fact at all, from the Applicants' point of view,
which requires consideration by this Court.
In that event, one would have ta draw one's own conclusions and the
world would have to draw its own conclusions from the fact that the
Applicants have not çeen fit to meet squarely on its merits the case
which we have already presented in full on the pleadings, in regard to706 SOUTH WEST AFRICA
the facts involved, in regard to Respondent's poiicy and objectives,
motives and so forth, but that instead thep prefer to rely on legal
technicalities in that regard and that those legd technicalities have
turned out to be unsound and without substance.
Mr. President, 1 submit, that that is a very real practical result which
would flow from acceptance of our contentions on the legal questions
involvecl regnrding Article2, paragraph 2.
1 should like to add anly one further comment. If the Court should
corne to the conclusion that Our contention is correct in regard to the
discretion which was intended to be exercised by the Mandatory in this
regard, and that the sole test, apart from Article3 to 5 of the Mandate,
is whether the Mandatory is honestly setting about its sacred mission in
that regard, then 1 want to emphasize that that conclusion wiil not be
a negative one, Alr. President. It will be a positive one-positivein this
sense, that the task involved in that sacred trust, or sacred mission, is
one which must necessarily, from its very nature, adapt itself to circurn-
stances as they change and as they evolve. That is why it is so necessary
to have a discretion on thepart of the administering authonty-a discre-
tion which makes it possible for that administering authority to apply
policies which are pliable, which are elastic and which are adaptable to
dtered circumstances. \Vithout that Iegal discretion that would not be
possible, especially notif the authority were, from tirne to time, to be
fettered with a type of norrn or standard having the effect in law, sug-
gested by the Applicants.
31r. President, 1 may refer the Court in that regard to a brief passage
in the very brilliant judgment of Lord Birkenhead in McCawley v. TJw
King, reported in the Law Reports of Appeal Cases in 1920 and 1 am
paring various constitutional systems and 1 merely want to read hism-
rernarks regarding the constitutional systems of the British Empire.
"Some comrnunities, and notably Great Britain, have not in the
framing of constitutions felt it necessary, or thought it useful, to
shackle the complete independence of their successors. They have
shmnk from the assumption that a degree of wisdom and foresight
has been conceded to their generation which will be, or may be,
wanting to their successors, in spite of the fact that those successors
will possess more experience of the circurnstances andnecessities
amid which their lives are lived. Those constitution framers who
adopted the other view must be supposed to have believed that
certainty and stability wereinsuch a matter the supreme desiderata."
(Italics added.)
The judgment goes on to analyse the various aspects of the distinction.
1 merely want to ernphasize these words asbeing par excellenceappli-
cable to the mandate instrument before the Court.
Apart from the particular instances in which a Mandatory's discretion
was shackled, the authors of the hiandate quite obviously shrank from
the assumption that they had a degree of wisdom and foresight that
would be denied to successive generations of Mandatories, despite the
fact that those successors, asLord Birkenhead said, would possess more
experience of the circumstances and necessities arnid which their lives
would be Iived.
It is true, Mr. President, that the authors of the mandates system ARGUMENT OF hiR. DE VILLIERS 7O7
considered that hlandatories, in this discretionary task, would have the
assistance, by way ofCO-operationand collaboration, in the rnanner whch
1have indicated before, ofthe Permanent Mandates Commission,anexpert
commission, and of the supervisory powers of the League Council itself.
Respondent itself would have preferred to be assisted in its discretion
by that type of supervision. 13utthen it must be that typeMr. President.
It must be thetype of supervision which realizes the ever-changing facts
and circumstances involved, which realizes that if one evolves standards
those are not binding rules but are there only for guidance, and are
subject to modification, according to the teachingsof experience.
Under those circurnstances, supervisory functions and powers on the
part of bodies of that kind are indeed of assistance to a mandatory
authority which has to exercise a discretion of that kind.
Any açsistance ofthat kind which is still offered by way of criticism,
Mr.President, is always welcorne. The only stand which the Mandatory
Government, the Respondent Government, takes in that regard, and
strongly takes, is that when criticism is offered from outside, which is
either politicdy motivated, or uninformed, which is directed at forcing
its hand in accepting a policy which the South African Government
itself knows will have disastrous results, then that type of assistance
from outside is not welcome and does not help. That is where the South
African Government stands in law, and in conscience, in regard to this
sacred trust.
That, Mr. President, concludes my argument in regard to Article 2,
paragraph 2.
It remains for me to refer, very briefly, to the legal questions invohed
in the only other matter which requires discussion now, namely in regard
to the suggested modification, unilateral modification, by Respondent
of the international status of the Territory, as referred to in the Appli-
cants' Submission number 5 and, as was argued in conjunction therewith,
by my learned friends, also the suggested modification of the terms of
the hfandate itseIf, as stated in the Appiicants' Submission number g.
Mr. President, 1 have scanned the record of the verbatim records in
this regard very carefully, and 1 find that very bief reference was made
to this matter, by my Iearnedfriends.
1 could give the Court first a summary of the passages where any
reference was made at al1 to these matterç and then indicate, in sum,
what they arnount to. The first reference is to the verbatim record at
pages 134-135, supra. The second is to page 139. The third is to the
verbatim record of 23 hfarch. There are three passages in it-one at
pages 219-220, the second at page 221 and the third at page 231. Then
we find a reference to the matter again at pages 268-269.
Now, Mr. President, on analyçiç what do we find here? We find, first,
that in the first passage to which 1 referred the Court (the verbatim
record, pp. 134-135 m)y learned friend indicated very clearly that he
would not deal with the subject-matter of Submision 5 at this particular
stage. He would reserve this treatment of the subject to what he called
the facts stage of the enquiry.
He saidthe same in regardto issues arising in regard to miljtarization-
the alleged violation of the military clause-as dealt with in the Apph-
cants' Submission number 6.
Nevertheless when it cornes to the end (in the verbatim record at
pp. 268-269, sufiru)we find that rny learned friend, in fact, stated his70~ SOUTH WEST AFRICA
submissions as if he were then asking for orders in terms of thoçe sub-
missions-in regard to both Subrnission number 5 and Subrnission
number 9-Submission 5 relating to alleged violation of the separate
international status of the Territory and number g to modification of
the Mandate.
This, Mr. President, he did despite the fact that Submission No. g
was expressly qualified as depending on the facts discussed in Chapters
V, VI, VI1and VI11 of the Memorials.The Court willrecall that Chapters
V and VI of the Memorialçdealt with the Applicants' version of the Re-
spondent's poIicy of apartheid, and with aU the facts relating to that;
consideration under Articleez,nparagrapho 2,of the Mandate. And in thator
respect my learned friend,as 1 have pointed out, atthe end of his address
stated that he was not putting hissubmissions in regard to that matter
to the Court at ali,but that he was reserving that for further considera-
tion at the factçstage. But nevertheless, wehd that Submission gwhich
is dependent in part on the canvassing of the facts in regard to Sub-
missions 3 and 4, is already stated to the Court, as a submission.
We hd, hlr. President, that Submisçion g also refers specificaily and
expressly to Chapter VI1 of the MemonaIs. Chapter VII, as the Court
will recaii, dealt with rnilitarization. This is again a matter which is
reserved to be dealt with at the facts stage. Not only isthere the state-
ment to which 1referred in the verbatim record (pp. 134-13 su,pra) in
that regard, but, in fact, my learned friend put no submission in regard
to militarization to the Court at that stage.
And Submission 9 referç also to Chapter VI11 of the Memorials,which
deals with the subject of alleged violation of international status, and
which I cali, for short, alIeged piecemeal incorporation of the Territory.
Now, Mr. President, in that regard we find that there are a nurnber
of facts which are indeed also in issue between the Parties, and which
fali to be considered, amongst others, in conjunction with the issues re-
lating to Article2,paragraph 2, of the Mandate. We hd that in regard
to the charges of piecemeal incorporation the -4pplicants refer, amongst
others, to subjects çuch as the fact that Native administration in South
West Africa is conducted as from 1954by the Department of Bantu
Administration and Developmcnt, as distinct from the position that had
obtained before, namely that itfellunder the South West Africa Adminis-
tration. They refer to the fact that Native land in South West Africa is.
as from that sarne time, vested in the South African Native Trust. They
cornplain about the fact that the Eastern Caprivi is administered sepa-
rately from the rest of South West Africa.
Now, Mr.President, in that regard they themselves made a submission
to the Court which is very significant and relevant in this regard. They
pointed out that power was given to the Mandatory to adrninister South
West Africa as an integral portion of the Union, but they submitted in
that regard that although acts may appear to be innocent, as falling
under the exercise of this power, the real motive of the Mandatory in
that regard may be an important indicator. They said in their Memorials,
1,at page 186:
"Piece-meal incorporation arnounting to de facto annexation is
both insidious and elusive. Motive is an important indicator since
it sheds light upon the significance of individual actions, hi ch
might othenvise seem ambiguous." ARGULIEST OF MR. DE VILLIERS
7O9
They suggested, therefore, that if they could estabiish an intent to
incorporate then these acts, which rnight othenvise have been innocent
under the formulation of administration as an integral part of the Union,
that that rnight become in tmth a violation of the Mandate.
Now, Mr. President, we took them up on that basis, and we submitted
that in fact the motive or the intent in that regard was not only an im-
portant indicator, it was the decisive factor. If the intent was bona fide
to adrninister South West Africa as an integral art of the Union, with
a view to better administration under the Man cf'te-in the interests of
dl concerned-then such acts would be perfectly in order. If the motive
was, as alieged by the Applicants, a motive unilaterally to incorporate
South lest Africa into the Union, or now into the Repubiic, then such
acts would, on the assumption that the Mandate is in force, be a con-
trOn that issue between the Parties then, Alr.President, it becomes very
clear that, when one views subjects such as the administration of Native
Affairsby the South African Department of Bantu Administration and
Development, the question of vesting land in the South African Native
Trust, the separate administration of the Caprivi strip, that one has to
examine al1the facts involved, in order to seewhether the purpose was
better administration or whether the purpose was piecemeal incorpora-
tion, and that, therefore, one cannot come to any conclusion that in
that respect there has been an attempted violation of the international
status of the 'Ièrritory, unilaterally, or an attempted unilateral amend-
ment of modification of the terrns of the Mandate, before going into
al1these facts. And yet my learned friend indicated that he is now ask-
ing for an order in that regard. Perhaps 1 rnisunderstood him; perhaps
that is not his intention, because he certainly didnot deal with any of the
facts in support of that submission, and he did indicate initially that he
would reserve dealing with those facts at what he called the fact stage.
1 shall, therefore, in the circumstances, also, Mr. President, not at this
stage of my argument deal with the details and the ramifications-if 1
may cd them that-o f these two particular contentions or subrnissions,
Nos. 5 and g, on the part of the Applicants. There are, in some of the de-
tailed aspects, certain questions of la\v.to be considered, but they seem
to be essentiaiiy tied up with specific points complained of, specific as-
pects of fact, specific transactions, specific laws, specific policies and so
forth. We shall, thereforc, deal with those matters after the Applicants
have made it clear to the Court what exactlytheir case now is in that rem-
gard, because it wodd seem to me that they could hardly have intended
to present their full oral case to the Court in regard to those submissions
already.
If that is indeed their intention, they can say so at the Replystage and
then 1 shall, at a convenient stage, deal with the rest of the matter, or
somebody on our side will. But, since at this stage wehave not heard the
Applicants' case in that regard I do not intend to reply thereto.
Iwish to reply to only one general aspect, and that is one to which 1
have already referred to a certain extent. That isthe attitude which the
Applicants adopt in regard to this very question of intent to incorporate,
or, altematively, intent to modify the terms of the Mandate. 1 pointed
out beforc, Mr. President, that in this regard, too, in the Memorials the
Applicants commenced with an degation-a very positive and a specific
allegation-that intent is an important aspect of what one might cal1 SOUTH WEST AFRICA
71''
their cause of action. 1read some passages to the Court earlier relating to
their Submission 9,namely the question ofincorporation.There isanother
one to which Ilwish to refer. It occurs in the Memorials, 1,at page 195,
where the Applicants stated their legal conclusions and surnmarp in this
rLL.rd, and where they said:
"By the foregoing actions, read in the light of the Union's avowed
intent, the Union has violated, and is violating, its international
obligations stated in Article 22 of the Covenant of the League of
Nations and in Article 2 of the Mandate."
And, Mr. President, in their Submission No. 5 itself, at page 198of the
Memorials (1), they saidthat "the Union,by word and by action" was vio-
lating its obligationç regardjng the separate international status of the
Territory. "By word" there refers to the references they had already
given to a çeries of speeches, by officialsand political leaders, from which
they sought to draw the inference of an intent to incorporate the Terri-
tory. But after we dealt with the matter fdly and when it came to the
Reply stage, the Applicants then came with an alternative contention,
which we find in the Reply, N, at page 573, to this effect:
"Respondent's policies and acts ... constitute perse,andjwithout
regard to Respondent's purpose or motive, a violation of Respon-
dent's obligation to respect the separate international legal status of
the Territory."
But at the same time they maintained that "Respondent 's purpose or
motive to incorporate the Territory clearly emergesfrom the record here-
in", and they even maintained, at the next page, that "in decisive re-
spects, indeed, sucha purpose isconceded in Respondent's own avowals".
Now we may corne to the present Oral Proceedings. The Applicants
completely minimize the requirement of intent regarding this part of
their case also. They now Say,in the verbatim record at page 220, supra:
"As formulated in the Memorials (1), at pages 184-19 5,d re-
afbmed in the Reply (IV), at pages 572-586,Respondent has taken
action reflectinga purpose, objectively determined, to incorporate
and annex the Territory into the Republicof South Africa. Respon-
dent has pursued this objective by means of policies andacts which
impair, and are incompatible with, the separate international status
of the Territory."
They make it clear, Mr. President, that this objectively determined
intent is one which rests entirely on this suggested presumption. One
finds that in passages which 1need not read to the Court, in the verbatim
record at pages 220-221, SU@U. 1 might read the last few lines:
"The 'intent' referred to in Submission No. g, as 1 have said, is
the. objectively determinable intent, legally to be inferred from
Respondent's conduct by virtue of the universally accepted prin-
ciple thata person or entity is presumed to 'intend' the necessary
and reasonably foreseeabIe consequences of his, or its, actions."
And irnmediately beiore they made it clear that what they say in regard
to Submission g applies also to their Submission 5.
So, Mr. President, the position, on analysis, now is that whereas in
the Memorials they attempted to show by direct evidence that Respon-
dent has the intent or purpose, and in the Reply, while formulating
an alternative basis for their charge in regard to Submission 5. they stili ARGUMENT OF MR. DE VILLIERS
71=
maintained that the intent or purpose appeared clearly from state-
ments made by Respondent 's Prime Minister, they now contend that
Respondent's intent is to be inferred solely from its deeds in accordance
with this artificial presurnption.
contentions under their Submission No.. Prg.iThe charge made in the Me-
rnorials (1 read from (1), p. 196 again), was that certain acts of the
Respondent read in the light of the Respondent's intent "constitute a
unilateral attempt ... tomodify the terms of the MandateJ'without the
consent of the United Nations.
We pointed out in the Counter-Mernorial that the Applicants appeared
to concede that in order to establish a contravention of Article 7 they
would require to prove an intent on Respondent's part to modify the
terms of the Mandate.
Now we get the Applicants' reaction in their Reply, IV, at page 587,
where they say that the alleged violations of Article 7 of the Mandate-
"do not turn upon the question of 'goodor bad faith', or subjective
motivation. Respondent iç presurned to intend the reasonably pre-
dictable consequences of its acts. In this sense, intentioisimplicit
in Respondent's conduct ..."
Now, hlr. President, in the Xejoinder, VI, at pages, 424-425,we pointed
out the fallacy underlying this approach-I need not read that passage
to the Court. What 1want to emphasize is that in regard to both these
submissions, i.e., Submission 5and Submission g,the Applicantsnowseem
tube driven to take up this untenable attitude that an enquiry into in-
tent is to beernbarked upon, merely on the basis of this so-caliedpresump-
tion, only with reference to some of tlie relevant facts and to the exclu-
sion of the others. And that is the same type of attitude previously
taken, llr. President, in respectof Article 2,paragaph 2; 1have dealt
with that fully; I have indicated to the Courtwith submission, why that
is in principle an untenable attitude.
In regard totheir Submission g it is, in conclusion, significant to note
thatthe Applicants have retained a reference to intent in the submission
itself, and they gave this explanation for it in the verbatim record at
page 22 I,supra :
"Submission No. 9 is the only one of the Applicants' Subrnissions
...in which explicit reference to 'intent' is made. Such reference
is regarded by the Applicants as relevant because of the fact that
Article 7, paragraph r, is the only provision in the Mandate which
contemplates a consensual arrangement between the Mandatory
and the supervisory organ, a subsequent agreement to accomplish
a certain resuIt.
Accordingly, conduct from which may be objectively inferred an
intent to evade the requirements of Article 7,paragraph 1,by means
of unilateral action, takes on significancein the absence oshowing
by Respondent of any plan or purpose to seek consent of the super-
visory organ."
Mr.President, 1submit that this explanation rnakes no sensewhatsoever.
Surely ifat the the of preparing the Mernorials the Applicants thought
that Respondent's intent wasindeed to be determined only by application
of this particular objective-criterion in the same way as in regard to
theirSubmissions 3 and 4and 5,then oneivouidnothave found this specific7Iz SOUTH WEST AFRICA
reference to intent in this formulation of their Submission No. g. In our
submission, Mr. President, whether intent relates to modification of an
a eement, whether it relates to a suggested international delinquency,
wY ether it relates to a suggested violation of duty where itis necessary
to establish intent in order to establaviolation, the principles remain
the same: the enquiry has to be a fuUone in respect of al1the relevant
facts, and only then the Court can corne to its conclusion.
The fact is, inour submission, that the Applicants are here also run-
ning away fromthe taskof embarking upon that fullenquiry,of establish-
ing by ordinary, evidential meansan intent which they have to proire,
and which they admit that they have to prove, in order to establish their
case in law. I have never heard of a proposition that an unintentional
violation of an obligation canbe seen as an attempt atunilateral mod-
ification thereof.
I must express my appreciation to the Court for the very patient man-
ner in which it has listened to a rather lengthy argument. Thank you.
Procès-verbaux des audiences publiques tenues du 15 mars au 14 juillet, du 20 septembre au 15 novembre, le 29 novembre 1965, le 21 mars et le 18 juillet 1966, sous la présidence de sir Percy Spender, président (Procès-verbaux et Annexes aux procès-verbaux)