PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
LEGAL CONSEQUENCESFOR STATESOF THE
CONTINUED.PRESENCE OF SOUTHAFRICA IN
NAMIBIA (SOUTH WESTAFRICA)
NOTWITHSTANDING SECURITY COUNCIL
RESOLUTION 276(1970)
VOLUME II
Oral Statementsand Correspondence
COUR INTERNATIONALEDE JUSïïCE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
CONSÉQUENCESJURIDIQUES POUR LES ÉTATSDE
LA PRÉSENCE CONTINUE DE L'AFRIQUE DU SUD
EN NAMIBIE (SUD-OUESTAFRICAIN) .
NONOBSTANTLA RÉSOLUTION 276 (1970)
DU CONSEIL DE SÉCURITÉ
VOLUME II
Exposésorauetcorrespondance Abbreviatedreference:
I.C.J. Pleadings,Legal Cansequencesfor Sfafes of the ContinuedPresence
of South Africa inNamibia (South WestAfrica) notwirhstandingSeci~rity
CouncilResolution276 (1970), Vol. II
Référenaebrégée:
C.I.J. Mémoires,Conséqjuridiques pour les Efats de la présence
continuedeAfriquedu Sud en Namibie (Sud-Oirestafricain) nonobstant
la résolution276 (1970) du Conseilde II
Sales numb360 1
I Nodevente:LEGALCONSEQUENCESFOR STATESOF THE CONTINUED
PRESENCEOF SOUTH AFRICAIN NAMIBIA (SOUTHWEST
AFRICA) NOTWITHSTANDINGSECURITYCOUNCIL
RESOLUTION 276 (1970)
CONSÉQUENCESJURIDIQUESPOUR LESETATSDE LA
PRÉSENCECONTINUE DE L'AFKIQUF:DU SUD
EN NAMIBIE(SUD-OUESTAFRICAIN) NONOBSTANT
LA RESOLUTIO 2N6 (1970)DU CONSEILDE S~CUKIT~ INTERNATIONAL COURT OF JUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
LEGAL CONSEQUENCES FOR STATES OF THE
CONTINUED PRESENCE OF SOUTH AFRICA IN
NAMIBIA (SOUTH WEST AFRICA)
NOTWITHSTANDING SECURITY COUNCIL
RESOLUTION 276(1970)
VOLUME II
Oral Statements and Correspondence
COUR INTERNATIONALEDE JUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
CONSÉQUENCES JURIDIQUES POUR LES ÉTATS DE
LA PRÉSENCE CONTINUE DE L'AFRIQUE DU SUD
EN NAMIBIE (SUD-OUEST AFRICAIN)
NONOBSTANT LA RÉSOLUTION 276 (1970)
DU CONSEIL DE SÉCURITÉ
VOLUME Il
Exposésoraux et correspondance The present volume reproduces the oral statements and the Corre-
spondence relating to the case coucerning the Legal Consequencesfor
States of the ContinuedPresenceof South Africa inNamibia (South West
Africa) notwithstandingSecurify CouncilResolution 276 (1970).
This case, entered on the Court's General List on 5August 1970under
number 53, was the subject of an Advisory Opinion delivered on 21 June
1971 (Legal Consequencesfor States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstandingSecurity Council
Resolution 276 (1970), I.C.J. Reports 1971,p. 16).
The page references originally appearing in the statements have been
altered to correspond with the pagination of the present edition.
The Hague, 1972.
Le présent volume reproduit les exposésoraux et la correspondance
relatifsàl'affaire desConséquencejsuridiquespour lesEtats de laprésence
continuedel'Afrique du Sud en Namibie (Sud-Ouest africain) nonobstant
la résolution276 (1970) du Conseilde sécurité.
Cette affaire, inscrite au rôle généralde la Cour sous le no53le 5 août
1970, a fait l'objet d'un avis consultatif rendu le 21 juin 1971 (Consé-
quencesjuridiquespour lesEtats de laprésencecontinuedel'Afriquedu Sud
en Namibie (Sud-Ouest africain) nonobstant la résolution276 (1970) du
Conseilde sécuritéC , .I.J. Recueil 1971,p. 16).
Les renvois d'un exposé à l'autre ont étémodifiéspour tenir compte
de la pagination de la présente édition.
La Haye, 1972. CONTENTS - TABLE DES MATIÈRES
ORAL STATEMENTS
EXPOSÉS ORAUX
OPENING OF THE SITTING INCAMERA . . . . . . . . . . . . . . .
ORALSTATEMEN BTY MR. VIALL(SOUTHARICA) . . . . . . . . . .
ORALSTATEMEN RTV MR. DE VILLERS(SOUTHAFRICA) . . . . . . .
Applicability of Article 83 of the Rules of Court... . . . . . . ..
Historical background . .. . . . . . . . . . . . . . . . . .
Controversy within the United Nations . . . . . . . . . . . .
South West Africacases before the International Court of Just.c.
Differences of opinion after 1966 . . . . . .. . . . . . . . .
Montreux International TelecommunicationConvention of 1965. .
Attitude of the United States of America . . . .. . . . . . .
Is the advisory opinion "requested upon a legal question actually
pending between Iwo or more States"? . . . . . . . . . . . .
Scope of the question submitted to the Court . . . . . . . . . .
South African proposal for a plebiscitei. . . . . . . . . .. . . ..
OPENING OF THE ORALPROCEEDINGS . , , . . . . . . . . . . . .
QUESTION SE M. GROS . . . . . . . . . . . . . . . . . . ..
ORALSTATEMEN BY MR. STAVROPOUL(O UNITEDNATIONS) . . . . .
Position and responsibilities of the Secretary-General of the United
Nations in the case . . , , , . , . . . . . . . . . . . . . .
1. The question whether the Court should render theadvisory opin-
ion requested by the Security Counci. . . . . . . . . . . .
(a) The allegedly political character and background of the
question . . . . . . . . . . .. . . . . . . . . . .
(c) Whether deciding the case involvesdisputed factual issue.
II. Some basic considerationsapplicable to the question of Namibia
III. Objections which have ken advanced to the formal validity of
the relevant SecurityCouncil resolutions relating to Namih. .
(a) The question of the composition of the SecurityCouncil. .
(b) The effect of voluntary abstentions of permanent members
of the Security Council. . . . . . . . . . . . .. . .
(c) The question of the applicability of Article 32of the United
Nations Charter. . . .. . . . . . . . . . . . . . .
(d) of the United Nations Charteriso.t. . .i. . .7,. .a. .ph.3, X NAMlBlA (SOUTH WEST AFRICA)
IV. The scope of the powen of the Security Council. particularly
under Article 24of the United NationsCharte........
V . Questions concerning the legal hasis of General Assemhly
resolution 2145 NXI) of 27 October 1966 .........
lo.Basesfor General Assmbly action..........
lb. Competence ofthe General Aüembly .........
lc) Confim3lion of Generiil Assemblr action by the Security
Council ......................
(d) Basicprincipleof lawapplicahleto the case.......
(e) Observations of France regardingGeneral Assemblyresolu-
lion 2145 MI) ...................
VI .The question whether South Africa has a right to remain in
Namibia inde~endently of the Mandate ..........
(a)Claim 10 acquisition by conquest ...........
(b) Claim to acquis~tionbyacquisitive prescript......
VU .The auestion of material hreaches hv South A~ric~ o~ ~t~~-h-
ligalions rcgarding Namib13 ...............
VI1 1The Icgîl consequences of theconrinued Drecencein Nainibia of
South~~frica ........................
(a) Legal consequences for South Africa ..........
(b) Legal consequences for.other States ..........
Concluding remarks .....................
Ex~osf ORAL DE M . CASTREN (FINLANDE) .............
1.Remarques préliminaires .................
Plébisciteproposépar l'Afrique du Sud ..........
II.lnterpr6tation et modification des trait..........
Ji1.Ouestion de savoir si la Cour devait accéderou noàla deman-
de d'avis consultati...................
IV .Validitt formelle des résolutions pertinentes du Conseil de
sécurité ........................
V .Validitéintrins&quede la rtsolution 276 (1970)du Conseil de
sécurité ........................
VI .Effetjuridique dela résolution276 (1970)du Conseil de sécur.té
Vïi. Quelques remarques sur l'historique et le contenu du Mandat
pour le Sud-Ouest africain................
VIU . Révocabilitt du Mandat .................
iX. Validitéet effetjuridique de larésolution2145(XXI)del'Assem-
hl& gtndrale ......................
X. Conclusions ......................
ORALSTATEME~ BYMR .ELIAS(OROANIZATIO O FAFRICAN UNITY) ...
The validity of the resolutions of the General Assemhly. especially
resolution 2145 (XXI) ....................
Theresolutionsof thesecwity Council. especiallyresolution276(1970).
Linkd setween General Assemhly resolutions and those of the Security
Council ..........................
Competence of the United Nations to revoke South Africa's Mandate. Breaches by South Africa of its international obliga......
Legal consequences for States of the continued presenceof South
Africain Namibia .....................
South African proposal for a plebiscite...........
Submissions .........................
ORALSTATEMEN BY MR .CHAOLA (INDIA)..............
1. Background .......................
I[.TThe law relevant to the questio..............
Buic principles of the Charte...............
Elaboration of the law ..................
As to occuoation of territor, and non-recognition...
As to equal rights and self-delennination of peopl.... 115
As to good faith inulfilling obligati.......... 116
IV .Legal consequences .................... 117
V .Summation and conclusion ................. 118
South African proposai for a plebis............ 119
ORALSTATEMEN BY MR .RIPHAGEN (NFTHERLAND ......... 122
Consequences for international law of the introduction of the man-
dates svstem ........................ 122
Interpretation of the acts performed by governments at the time of
institution of the mandates smtem .............. 123
Functional approach to the mandates system. and the consequences
Adaptation of system as a sanction for non-performance of obligation24
by mandatory State ..................... 126
Significance of General Assembly resolution 2145 (XXD: revision of
the modalities of thecontinuing status of the te....... 128
Choice of le-al constructions of the facts dictat.d .v simificance of
notion of self-determination of people............ 129
Powers and ~rocedures of the General Assembly cannot be tested by
terms of charter only: extent of powers. 1 ......... 129
Duty of non-recognition of other State............. 130
ORALSTATEMEN BY MR .ELIAS(NIGERIA) ............. 131
ORALSTATEMENT BY MR .PIRZADA (PAKISTAN ).......... 132
Should the Court.aive an advis.r. ooinion on the question refer.ed?132
What is the scope of the question?............... 134
Did the Lcÿgueof Nations have the right to revoke the Manda... 136
Did the United Nations succced Io the supervisory functions of the
Leagueof Nations. including the right of revocat....... 138
Was the General Assemblv comoetent to detemine the breach of the
fundamental conditions-of thémandate agreement? ....... 140
What is the effect of the Security Council resolutions confirming
General Assembly decision? ................. 142
What are the legal consequences for States of the continued illegal
presence of South Africa in Namibia............... 142XII NAMIBIA (SOUTH WEST AFRICA)
South African objection as ta the composition of the Security Council
(representation of China). . . . . . . . . . . . . . . . . . . 145
South African proposa1 for a plebiscite . . .. . . . . . . . . . 146
ORALSTATEMEN BY MR. DE VILLIER(S SOUTH AFRICA). . . . . . . . 148
Criticisms of South Africa as living in the past, attitude of intran-
siaence and."leaal nicety" . . . . . . . . . . . . . . . . . . 148
~rUnited Nations, for the position ofa "non-consenting Siaie". the. . . 150
Present-day contentions on this point, and the consequences thereof . 152
Contentions as 10 poivers of the Gçncral Assembly . . . . . . . 152
Combincd action IO 'bv the General ,\semhl\Counciland thç Sccurit\ . 154
Council : . . . . . . . . . . . . . . . . . . . . . . . 155
Special contentions pertaining ta States administering mandated or
tnist-territorie. . . ; . . . . . . . . .. . . . . . ... 156
Summary of propositions.relied on for purposes of case against South
Africa. without basis in tex1of relevant instruments. . . . . . . . 157
Illustration of adverse efïects of these arguments on international
organization generally . . . . . . . . .. . .. . . . . . . ,
Britain and the EECexpe.s. .of.t. . . . . . . . .. . . . . . . .
Legal and logical basis of doctrine of implied powers . . . . . . .
Legislativeapproach unjustified not only in law but also with regard to
Reactions to the South African proposal of a plebiscite .. . . . . ..
Likelyreaction if the Court should declineto do what is urged upon it .
ORALSTATEMEN B-YMn. VIALL(SOUTH AFRICA) . . , , , , , . . .
Ordei of preséntation of issues . . . . . . . . . . , . . . . . .
The scope of the question before the Court . . . . . . . . . . .
Need to ascertain validity or otherwise of action of United Nations
organs 10 terminale the Mandate: arguments of the Secretary-
General of the United Nations and other States . . . . . . . .
Interpretation of Security Council resolution 284 (1970): travaax
pripara2oires . . . .' : . . . , , , , , , , , , , . . . . .
.. Re!eyance of oral statement of Finland . . . . . . . . . . . ,
Competence of Court 10 interpret the request for advisory opinion .
Court must exercise a judicial function . . . . . . . . . . . ..
Conclusion . . .'. . . . . . . . . . . . . . . . . .. . ,
ORALSTATEMEN B Y MR. GROSSKOP (FOUTHAFRICA .) . . . . . . .
ïheopinion.i.n.,. .he. . . . .0 g. . . . . . . . . . . . . .or adv.s.r.
~uestion of political background not to be discussed: South Africa
no1Io be taken 10 agree with viewsexpressed by other representa-
tives on the point. , , , . . . . . . . . . . . , . . , . .
Thother State?st. .di.p. . b,., ,n ... . . . . . .d a.... . . . . , There exist factual issues which the Court will have ta decide if it
accedes ta the request . . . . . . . . . . . . . . . , . . .
Interpretation and modification of treaties . . . . . . . . . . . .
General principles of interpretation and modification . , . , , ,
Purpose of interpretative process: teleological, textual and
"intentions of the parties" methods . . . . . . . . . . . .
Principles governing implication of agreement . . . .. . .. , .. . ..
Principle of effectiveness. . , , , , . . , . . . . . , . . .
Comments on South African arguments of the representative of the
Netherlands . . . . . . . . . . . . . . . . . . . , , . .
Comments on South African arguiiients of the representative of
Finland . . . . . . . . . . . . . . . . . . . . . . . . .
Significanceof the Vienna Convention on the Law of Treaties . .
Obligation to observe treaties in good faith . . . . . . . .. .
Modification of treaties by subsequent practice . . . . . . . . . .
Summary of South African contentions . . . . . . . . . . . .
Deletion of draft Article 38of the Viema Convention on the Law of
Treaties: comments of Mr. Castrkn . . . . . . . . . . . . .
Effect of practice within the United Nations . . . . . . . . . .
Practice of United Nations organs as such . . . . . . . . . .
Interpretation of Article 27, paragraph 3, of the United Nations
Charter . . . . . . . . . . . . . . . . . . . . . . . . . .
Distinction between modification of a treaty by conduct and evolu-
lion of a new rule of customarv law . . . . . . . . . . . .
Reh'dtions Charter permit, of voluntnry ahstention byon thJ Uprmdncnt
memkrof the Security Council . . . . . . . . . . . . . . .
Refutation of argument that abstention permitted by rule of cus-
tomary international law. . . . . . . . . . . . . . . . . .
Refutation of are-rnent that the United Nations Charter has ken
modified by subsequent practice , . . . . . . . . . . . . .
Refutation of argument that the Security Council is sole judge of
Conwquencesomoooftacceptdnc; of South African contentions: refutd-
[ion of argument of the Secretary-Generïl of the United Nations
- ~ ~
The %ope and appliciibility of Article 27, paragraph 3, and Article 32
tionse . . .d . .io. . .rte. .su. .ry.o. South African conten-
Reply ta various suhsidiary arguments:
Representative of the Organi7stion of African Uniiy: argument
rhat no State can prevenr the givingofthe advirory opinion . . .
Reorerntative of the Secrçtarv-Gcneml of the Unitcd Nations:
Gariousarguments asto ~rticie 32of the United Nations Charter.
Refutation of argument that the South West Africa question, when
before the Security Council in 1968, 1969 and 1970, was not a
"dispute" but a "situation" . . . . . . . . . . . . . . . . .
The 1962Judgment of the International Court of Justice . , . .XIV NAMlBlA (SOUTH WEST ARICA)
The 1962dispute remained the same up to 1970 ........
Views of Professor Dahm on distinction between "dispute" and
"situation" .......................
Practice of the Security Council conceming this distincti....
Conclusion: Security Council violated Article 32 of the Charter in
not allowing South Africa to participate in discussions prior to
resolutions 264(1969).269(1969).276(1970)and 284(1970) ...
ORALSTATEMEN BY MR . VIALL(SOUTHWCA) ..........
Introductory remarks .....................
The contention that the Security Council acted independently of. or
in concert with. the General Assemhly in order to terminale the
Mandate ..........................
The Security Councildid not purport to terminate theMandate itself
orCO& action of the General Assembly .........
Alleged powers of the Security Council to take such independent or
confinnatory action....................
Question of joint action hy the two organ..........
Question of alleged power of the Security Council to tenninate
the Mandate ......................
Applicability of Chîpter VI1of the United Nations Charter ....
Pouers of the Security Council under Article 24of thc tiniied Nation5
Charter ......................
Argument from the text of Article 24e.............d on Article .4
Argument frorn the leaislative historv of Article .......
Argument from the object and purpose of the United Nations
Charter .........................
Argument from ihc praciice of the Sccurity Council.......
Argument [rom the opinion of receni authorities ........
Argument from the nature of the ollcged violations by South Africa
of itsinternational obligation...............
Requirements of Chapter VI of the United Nations Charter.....
Summary of South African arguments .............
Conis hased on Article 36 of the United Nations Charter.... (1970)
The intention or purpose of the Security Council........
Security Council did not consider the situation in South West
Africa a threat to international peace and security...
Absence of indication in most written statements as to what provi-
sions in the United Nations Charter the Security Council hased
its action o.......................
Legal effects and consequences of Security Council resolution 276
(1970) ............................
Significance of Article 25 of the Uniied Nations Charter: is a
"recommcndation" a "decision"? ..............
Even assuminn that the Securitv Council can tiike"decisions" under
Article 24ofthe United aii ionCsharter. such decisions arenot
hinding ......................... CONTENTS
Even assuming that the Security Council can take binding decisions
resolution 276 (1970)d.d . . . .en. .o.d. .o . .n.i. . . . . .
Conclusion: only legal consequence an obligation for States to
consider recommendations in good faith in nrder to decide whe-
ther to implement them . . . . . . . . . . . . . . . . . .
ORALSTATEMEN BT MR. GROSSKOP (FOUTHAFRICA .). . ; . . ..
Legal basis on whichthe General Assemblypurportedtoactinadopting
resolution 2145 (XXI). . . . . . . . . . . . . . . . . . . .
Bases for action suggested by the representative of the Secretary-
General of the United Nations . . . . . . . . . . . . . . . .
AInational community responsible for ensuring the fulülment ofinter-
the obligations and sacred tmst assumed in respect of South
West Africa . . . . . . . . . . . . . . . . . . . . . . .
Argument that the General Assembly acted as a contractual paty
to the Mandate treaty . . . . . . . . . . . . . . . . . . .
Significance of the 1962Judgmen .. of the International Court of
"Fundamental principle" advanced by the Secretary-General of .
the United Nations . . . . . . . . . . . . . . . . . . .
Who would be authorized to determine whether there had been a
material breach of the Mandate? .1. . . . . . . . . . . .
Alleged capacity of the General Assembly as the supewisory
authority for the Mandate forSouth West Africa . . . . . . .
EwosÉ.0~~ DE M. LETAITRIEN (RÉPUBLIQU DU VIF-NAM) . . . . .
1. Le maintien illégalde l'Afrique du Sud en Namibie . . . . . .
II. Le droit des Nations Unies de révoquer leMandat . . . . . .
(a) Les doutes quant au droit de révocation . . . . . . . . .
(b) Le droit de révocation s'induitdes principes génerawt . . .
(c) Courroi........................ des avis antkkdents de la
m. du Sud en Namibieuri. . .s . .l. .ré.e.c, ,l..;al.d. .. . . .e
(O) En ce qui concerne l'Afrique du Sud elle-même. . . . . .
(b) En ce qui concerne les Etats Membres des Nations Unies .
(c) En cequiconcerne lesEtatsnon membres desNations Unies.
Conclusions . . . . . . . . . . . . . . . . . . . . . . .. .
OML STATEMEN BY MR. "AN HEERDEN AFRICA). . . . . . .
InWIittenstatementks. . . . . .y . . .p. .nt. .o. i. .o. . .fr. . .
Legal bases for alleged succession by the United Nations to super-
visory powen of the League of Nations . . . . . . . . . . . .
Contentions of representatives of the Netheriands, Pakistan and the
Secretary-General of the United Nations : . . . . . . . . .
Alleged basis in existence of an objective principle of international
tution of Supe~isory powersnd. . . . . . .ul. e. . . . s.b. . . Contentions of the Applicantsin the South WestAfiicacases . .
Observations of the representative of Finland ........
Alleged bssis in substitution of supervisory powers by virluc of
express temis of mandate instrumentsand the C~\~cnant ....
Nature of oblination to reoort and account .....
Statementsmade at the pans Peace Conference. .......
The argument that the obligation was to account to the "orra-
nized international community" ........... .- .
Alleged basis in implied term effecting transfer of supervisory
functions ........................
Observations by Members of the Court in previous cases ....
Legislative history o"C" Mandates ............
Circurnstances in which a term mav be im~liedin an agreement
The "organized international co&nunity" argument : .....
Wasthe Council of the League of Nations empowered IO revoke a
Mandate? .........................
Distinction beiuccn "termination" and "revoc;ltion" ......
Contention that mandate revocible by the League of Nations bv
virtue oan objective principle of international i........
Significanceof the maxim non adimpiefi contracrus ......
Denial that South Africa claims rights under the Mandate while
repudiating other obligations thereof ...........
Common law principles relied on by the representative of the
Secretary-General of the United Nations .........
Revocation by virtue of implied term: importance of ascertaining
intentions of the author of the mandates smtem .......
Suggested application by analogy of private law concepts of trust,
tutelage and mandate is not possible ...........
S-rnificance of events orecedi-i and succeedin-! the conferment
of the mandates ....................
Observations of the representative of Finland on the powers of the
League of Nations to revoke mandates ...........
Significanceof the 1962and 1966Judgments of the International
Court of Justice ....................
Consistency of these Judgments with the Advisory Opinion of the
preration of Article 3, paragraph2,of the Treoty of Lausanne)
case .........................
Viewsof publicists and jurists on revocability of mandates.....
Significance of the discussions in the Permanent Mandates Com-
mission .........................
Simificance of decisions of municioal courts ..........
~Gificance of the work of the ~Gitute of International Law. ..
Signiiïcance of the study of the mandates system by the Inter-
Parliamentary Union ...................
Conclusion: no provision, express or implied, in Article 22 of the
ciple,empowering the League of Nations to revokeea mandate pr. . CONTENTS
Effect on validity of General Assembly resolution 2145 of
Contentions of the representative of the Netherlands: summary of . .
his argument. . . . . . . . . . . . . . . . . . . . . . .
Mandates system not governed by ordinary rules applicable to
treaties . . . . . . . . . . . . . . . . . . . . . . . .
Difficulties of the functional approach . . . . .. . . . .
How are gaps left by the tex1of a treaty and of a mandate, ta be
The principles of self-determination of peoples and non-annex- .
ation of the territories concemed . . . . . . . . . . . . .
Could the Council of the League have dictated to a mandatory the
policies tobe adopted to fulfilits obligations?. . . . . . .. .
Assuming that the Council of the ieague was empowered to revoke
a mandate, would its decision be final and conclusive, and not
open to review by the Permanent Court of International Justice
on the merits? . . . . . . . . . . . . . . . . . . . . . .
Submissions . . . . . . . . . . . . . . . . . . . . . . . . .
ORALSTATEMEN BY MR. GROSSKOP(F SOUTHAFRICA) . .. . . . . .
Agreement of the parties since 1945as basis for alleged succession by
the United Nations to the supemisory powers of the ieague of
Nations . . .. . . . . . . . ... . . . . . . . . . . . .
Review ofhistorical events . . . . . . . . . . . . . . . . . . .
The San Franciso Conference . . . . . . . . . . . . . . . .
The Preparatory Commission . . . . . . . . . .. . . . . .
General Assembly resolution IIn, 1O46. . ... .. . . .. . . . . . ..
General Assembly resolution 14(1) . . . . . . . . . . . . . .
Submissions as to conclusions to be drawn from these events. . . .
The Charter made no provision for any function to be exercised
by the United Nations in respect of mandates asmandates. . .
Conclusions to be deduced from United Nations resolutions
relating to aisumption of the Lcrgue of Natidns functions and
csiahlishnient of the trustccship systen. . . . . . . . . . .
Events during the dissolution of the League of Nations . . . . . . .
First and second Chinese draft resolutions . . . . . . . . . . .
Summary of differences between reporting requirements under the
Charter a. . . .isi.n, . .Ar. . . 7. . .th. U. . . .at. . . . ..
Report of the Board of Liquidation ofthe League ofNations . . .
Conclusion: no agreement at final session of the League of Nations
assembly whereby the United Nations might have acquired rights
of supervision . , . . . . . . , , . . . . . . . . . . . .
South African proposals for incorporation of the Territory (Novem-
ber 1946) . , , . . , , . . . . . . . . . . . . . . . . . .
Arguments ofthe participantsin theproceedings on this question. . .
Statement of Pakistaner.an,s. . .. . . . . . . .. . . . . . . .. ..
Statement of the United States of America. . . . . . . . . . . Statement of Nigeria ....................
Statement of Finland ....................
Statement of lndia .....................
The practice of States on the question of mandates........
Nauru ..........................
Western Samoa ......................
Sumniary ofrelevant Gcneral Assemblyrewlution* 1946-1949 ...
Tlic practicc of States on the quc~tionof mandater (co»r.,..
The Japanese mandated islands ................
Palestin..........................
Conclusion: universal contemplation between 1946and 1950that the
United Nations would have no supervisory authority in respect of
mandated territories not placed under trusteeshi........
Observations of the representative of Finland on this point...
The 1950Advisory Opinion of the International Court of Justice . .
What weight should be attached to advisory opinions? .....
No question of revision of the 1950 provision: relevance of the
allened new factual evidence................
~xamkation of factual findings in 1962.1966..........
Conclusion: overwhelming weight of judicial opinion since 1950
suooorts the orooosition that the 1950Advisorv Ooinion cannot
be'&pported.on basis of consent to an obligation to report to the
United Nations .....................
OthFinland. Pakistan.....................s of the Netherlands .
The views of publicists ...................
The 1950Advisory Opinion was not fortified or confirmed by the
1955and 1956Advisory Opinions .............
REPLY BY MR . CASTRÉN TO THE QUESTION BY JUDGESIR GERALD
F~~ZMAURICE ........................
Did the General Assembly have the power to make a decision with
Operative paramaph 4 of General Assembly resolution 2145 (XXï) is.
clearly legally invali....................
The various attempts at arguing the validity of the resolut....
General Assemblyresolution 2145 mi) wastaken on an overall basis
of "the law be damned" ...................
Examination of the United Nations proceedings. 1961.1966. con-
cerning the legalaspect of the matt.............
General Assembly resolution 1514(XV) and 1568(XV) ....
Reoort of the Fabrenat Committee .............
~cbatcs in the ~ourih Commitiee. 1961 ...........
Dcbates in ihc Fourth Cominittcc.1965 ...........
Discussions of the Soccial Committcc of Twentv.Four. 1966 . .
General Assembly. iiventy-first session. 1966: .. .... Siresolution 214(XXIqu)..................erringto General Assembly
The notion that by succession the General Assemhly obtained powers
in addition to those conferred on it by the United Nations.Charter
Significanceof the recasdto what the intentions werewith regard
to the powers relative to the trusteeshipagr.......
QUESTION BYTHE ESI IDE NTND JUDO€JIMÉNE ZE ARÉCHAOA ....
ORALSTATEMEN BY MR .DE VILLIER conf.). ...........
Powers of the General Assembly: argument of Finlan......
Mr .Castrbn's reolv to Judne Sir Cerald Fitzmaur......
Examination of what powers could theoretically begiven to a super-
viso~y o.gan inregard to the revocation of a m......
Powers of the General Assembly: argument of the Nether....s
Other "necessity" argument..................
Observations made on this in the 1966Judgment of the international
Court of Justice.....................
QUESTION BY JUDGES ONYEAM AND DILLARD ...........
ORALSTATEMEN BY MR .DE VILLIERS(cont.)............
1sthe Court asked to ovenule the 1966Judment? .......
Comparison of the mandatessystem and the tnirtceship sys. .ts
The arnument that the 1966Judsment made ~olitical action neces-
sary to end the impass..................
Alleged precedents on questions of unilateral revocation and of direct
administrative power....................
The case of the Mandate for Palest.............
QUESTION SY JUDGELACHS ...................
ORALSTATEMEN BY MR .DE VILLIER con!.). .........
Conclusions as to the Mandate for Palest..........
The termination of the Mandate for Micronesi........
The case of West Irian...................
The case of the Saar and the League of Natio........
The Secretary-General's list of alleged precedents for action by the
General Assembly ....................
Qu~sno~s DU VICE-~ÉSIDENT €7 DE M . IGNACIO.PINTO ET DE M .
Fons~~n-Qu~sno~s BYJUDGEMOROLOV ...........
ORALSTATEMEN BY MR .DE VILLIER conf.). ...........
Submissions on non-binding nature of operative paragraph 4 of
General Assembly resolution 21@XI) ...........
South Africanplans for self-determination in South WestA...ca
Relevance of considerations of the effect of a South African with-
drawal from South West Afric................
The question of the issues of fact in th...........
The size of the proble................... Request for an answer on the proposal for a plebiscite when the
the United Nations and of the United States of America...ral of
ORALSTATEUEN BY MR .VICKERS (UNITEDNATIONS) ........
Replies to questions posed by Judge..............
Questions posed by Judge Gros
(a) First question ....................
(b) Second question ...................
Tc) Third question ....................
(d) Fourth question ...................
(e) Fifth question....................
f Sixth question....................
Questions posed by Judge Sir Gerald Fitzmaurice
(a) First question ....................
(b)Second question ...................
(c)Third question ....................
(d) Fourth question ...................
Comm.n.s onthe South African proposal for a plebiscite in Nami.ia
ORAL STATEM BYEN R.STEVENSO (NNITED STATE SF~ERICA) ...
Introduction.........................
. 1sthe questionproperly before the Court.........
I. The discretion of the Court to erant or refuse a reauest for
advisory opinion; shouldIIrefuse'............
Il1.The validity of General A%crnbl) resoluiion 21IXXI) . .
IV. ~esolutions of theSecuritv couniil and their conseauences
V. The otTerhy South ~fricato furnishadditional inf&rnation on
conditions in Namibia .................
VI.-The South African proposal for a plebisci........
V v. Conclusions ......................
ORALSTATEMENT BY MR .DE VILLIER(SSOUTHAFRICA) .......
Reply to observations of the United States of America and the Secre-
tary-General of the United Nations on South African proposal for
plebiscite.........................
Attitude of the Secretary-General of the United Nati.....
Attitude of the United States of America...........
Analysis of General Assembly resolution 2145 (XXI) and its
history ........................
Should the Court confine itself to evidence prior to the date of
General Assemblv resolution 2145 . .I) or to nleadines and
evidence in thes&rh West Afiicacases? ..........
ORALSTATEMEN BTYMR .GROSSKOP(F SOUTHAFRICA) ........
The nature and content of the Mandate.............
Reply to the first question by Judge Lac...........
Reply to the questions by Judge Forste............ Reply to the additional question by JudgesOnyeama and Dillard. .
Reply to the question hy thevice-President and Judge Ignacio-Pinto
TrNations Chartervi......................aragraph 1.of the United
Interpretation of the text of the Article in context....
Reply to the fust question by Judge Jiménez Aréchaga ....
Reply to the second question by Judge Lachs ........
Legislative history of the Article.............
Conclusions .......................
Consequences of the lapse of the Mandate ............
Commentsonintroduction to the questions by Judges Onyeama and
Dillard ......................... 548
Reply to the question by the President ............ 549
ReDillardf.........................estions by Judges Onyeama and 550
ORALSTATEMENB TVMR .DE VILLIER(SSOUTHAFRICA) .......
Discussion of the United Nations Secretary-General's replies to
questions by Judges Sir Gerald Fitzmaurice and Gros .....
Reply to comrnents by the Secretary-General of the United Nations
and the United States of America on:
Power of the General Assemhly to take a binding decisi.....
Power of the Security Council ........... : ....
ReUnited Nations Charter b.................Article 24 of the
Reply to first question hy Judge Morozov ..........
The norms and principles applicable to the administration of the
territor..........................
Reply to the second question by Judge Jim6nez de Aréchaga:Article
73 of theUnited Nations Charter ..............
NDo socalled principles concerning human rights and freedoms
have application ergaomnes? .............
South African approach to the matter .............
General objectives and ideals in the field of human rights and
freedoms .......................
Principles and norms of non-discrimination .........
The concept of self.determinatio..............
ORALSTATEMEN BY MR .BOTHA (SOUTHAFRICA) .........
The nature of the task of investigating the facts as to South Africa's
administration of Namibia ..................
Description of the Territory and people............
What are the factual complaints against the South African adminis-
tration ..........................
Practical difficulties resulting from the voluminousrecords relied on
Examples of charges made ..................
Conclusion .........................ORALSTATEMEN BY MR. DE VILLIER(SOUTH AFRICA) . . . . . . .
Statement of three essential themes in South African prese.tation
Observations as to the need for investigation of the factual field and
the position as to the plebiscite pro. . . . . .. . . . .
ORALSTATEMEN BY MR.VICKERS (UNITEDNATIONS) . . . . . . . .
READING OF THE ADVISORO YPINION . . . . . . .. . . .
ANNEXES TO ORAL STATEMENTS
ANNEXES AUX EXPOSÉS ORAUX
BnGOVE~NMENTN . . . . . . .~. .O. . . . . .. . . . . .U.A. .
Preliminary . . . . .. . . . . . . . . .. . . . . . . . . .
A. The composition of the Court. . . . . . . . .. . . . .
B. The jurisdiction of the Co. . . . . . . .. . . . . . .
The merits.. . . . . . . . . . . . . . . . . .. . . . . . .
B. The purported termination of the Mand. . . . . . .....
C. The validity and effect of the relevant Security Council resolu-
tions.. . . . . . . . . . . . .. . . . . . . . . . . .
EXERALASSEMBLRHEYESOLUTIONN1S78eV) TANDI1596ON),AIBY THECOM-
MTITEE ONSom WESTAFNCA(1961) . . . . . . . . . .. . .
PROPOSAL7 RELATING TO THE REVOCATION OF THE MANDATE M THE
MENTAITONOF THE DECLARATIOTUNN THEGRANITNOAROFINDEPENDENCE-
TO COLONTA LOUNIRIE SND PEOPLE S . . .. . . . . . . . . .
REPLY BY MR. STEVENSON TO QUESTION SY JUDGES SIR GUULD
FITZMAURICJE I, ÉNEZDE ARBCHAG AND MOROZOV . . . . . . .
CORRESPONDENCE
CORRESPONDANCE
Nos. 1-107. . . , . . . . . . . . . . .. . . . . . . . . . .
T~LE OF CONCORDANC OETHE ORALSTATEMENT .. . . . . . . .
TABLE DE CONCORDANCE DES EXPOSÉSORAUX . . . . . . . . . . .. ORALSTATEMENTS
PUBLIC SïiïTVGS
heldat the PeacePalace, TheHague,
on27January,from 8 February to
17 March, an21June1971,
thePresidenrpresidingmmad Zafrulla Khan,
EXPOSE OSRAUX
AUDIENCES PUBLIQUES
tenuesaupalais de liaHaye,
le 27janvier, du8Jëvrier au 17 mnrs,
et le21juin 1971, sousla présidence
de sir MuhammadZafiulla Khan,président MINUTES OF THE SITïINGS
HELD FROM 27 JANUARY TO 21 JUNE 1971
YEAR 1971
SïïTiNG IN CAMERA' (27 1 71, 10.05 am.)
Presen!:PresidenSir Muhammad ZAFRULLA KHAN; Vice-Preside! MMOUN;
Judges Sir Gerald FITZMAURICE P, DILLANERVO,FORSTER ,ROS,BENOZON,
PE~N, LACHS,ONYEAMA D,ILLARDI,GNACIO-PINTO DE CASTROM , OROZOV,
JIMENEZ DEARECHAG;A RegisfrarAQUARONE.
Alsopresen!:
Far India:
MI. 1.N. Dhamija, Ambassador to the Netherlands.
For theNetherlands:
Mr. W. Riphagen, Legal Adviser to the Ministry of Foreign Affairs.
For Nigeria:
Mr. Metteden, Secretaryof Embassy.
For SouthAfrica:
Mr. J.D. Viall, Legal Adviser to the Department of Foreign Aiïairs.
Mr. D. P. de Villiers, S.C., Advocate of the Supreme Court of South Africa.
Mr. E. M.Grosskopf, S.C., Member of the South African Bar.
MI. H. J.0. van Heerden, Member of the South African Bar.
MI. R. F. Botha, Member of the South African Bar.
Mr. M. Wiechers,Professor oLaw in the Universityof South Africa.
MI. F. D. Tothill, Member of the Department of Foreign Affairs.
Mr. C. H. S. von Bach, Member of the Department of Foreign Affairs.
For theUnitedStatesof America:
Mr. A. E. Breisky,Secretary of the Embassy.
Verbatim Record made available to the public byionof thCourt.See
Correspondence,o. 90,p.672,infra. ORAL STATEMENT BY MR. WALL
REPRESENTATIVE OF THE GOVERNMENT OF SOUTHAFRlCA
The PRESIDENT: The Court has met this moming to hear the Represen-
tative of South Africa on the question of the appointment of the judge ad hoc
in these proceedings
Mr. VIALL: Mr. President, Members of the Court, permit me at the outset
to introduŒ to you the memèers of the South African delegation. 1 have the
honour to present to you Mr. de Villiers, first on my right, and Mr. Grosskopf,
second on my right, both of them senior counsel of the Supreme Court of
South Africa, who are appearing here as counsel for the Republic of South
Africa. Also appearing as counsel are Mr. van Heerden, third on my right,
Mr. Botha, fourth on my right, and Professor Wiechers next to him, al1 of
whom are members of the South African Bar. In addition, there are Mr.
Tothill next to Professor Wiechers and Mr. von Bach behind me, of the Depart-
ment of Foreign Affairs.
May 1say, ~r. President, on behalf of my colleagues and myself that we are
sensible of the honour of appearing before this Court; some of us for the û~st
time.
On 13November 1970,MI. President, my Government applied to the Court
by letter for the appointment of a South African judge ad hoc in the present
proceedings, which we contend concern a legal question actually pending
between two or more States. On behalf of mv Government 1 renew that annli-
cation today. With the Court's permission, ~r. de Villiers, who is fully auihor-
ized to swak on behalf of my Government. will mesent Our argum.nt in this
matter. ORAL STATEMENT BY MR. DE VILLIERS
REPRESENTATIVE OP THE OOVERNMENT OF SOUTH AFRICA
Mr. deVILLIERS: M~. President. honourable Members of the Court. some
of my colleagues and 1have had the opportunity of appearing before this very
honourable Court on ~revious occasions. To us it is a very special experience
~. .~h- ~ ~ - ~ todav-: to other members of the team it isa novel exoirience:
~~ ~ ~~ ~
to al1of us it isa greaipkvilege and an honour to appear before you.
It is amatter for regret that this IÜst session of the Court should take place
in circumstances of disagreement about the question whether it should be an
open or a closed session. We have, on behalf of Our Government, registered
protest at the fact that this is a closed session. 1do not propose to say any more
about that subject now except this, Mr. President, that with the greatest
respect, Our protest stands. In our submission it is well founded. On the otber
hand, procedure is for the Court to detemine, not for us. When we appear
before this Court, when we take part in these proceedings, as we intend to do,
then it is for us to co-operate with the Court in the procedure upon which it
may decide. We intend to do so with the greatest respect. And 1 need hardly
Say the personal relations which we value very highly need not be affected by
matters of disagreement.
We corne. MI. President, from a country which values its legal and judiciai
trndiiions and heritage vej highly and uhich prides itself in the mainienance
of high standards in that field, or at any rate in a constant attempt 3t the
maintenance of high standards. WCscx the task of legal praciitioners in Our
countr) as king tuo-fold: asheing to statr Our client's case forcefully, inde-
vndently, and fearlessly, to ihe best ofour ability, and at the Famelime10be of
&.sistance to the court if we can.
My colleagues and 1will try Our very best to be faithful to both aspects of
that task in appearing before thisCourt.
The auestion on which vou have kindly invited us to address you, Mr.
~resident, concerns our apilication to the ëffect that South Africa is entitled
ta the appointment of a judge ad hocin these proceedings, notwitbstanding the
fact thzthey are, in foÏÏ it least, advisory proceedings and not contentious
ones. We have set out in writing certain contentions in this regard in a letter' .
addressed to the Court and the letter refers to portions of Ourwritten statement
which are relevant to this subiect. 1 do not intend to traverse in any detail
anything which has ber" alrei;dy submitted to the Coun in witing. If 1 do
refer to ititwill be as a basis for perspective and for taking the matter funhcr
in theadditional oresentaiion which ue wish IO make to the Court orally today.
As a basis for the application, we refer the Court to Rule 83 which provides:
"If the advisory opinion is requested upon a legal question actually
pending between two or more States, Article 31 of the Statute shall apply
as also the provisions of these Rules conceming the application of that
Article."
Article 31, as the Court knows, refers to the facility afforded to a State to
SeeCorrespondence,No. 26, p. 641, infra. appoint a judge ad hoc in certain circumstances and, with respect, it could
hardly be contested that if these were cnntentious proceedings, then those
circumstances would apply in this panicularcase.
The crucial question concerns the applicability, 1submit, of Rule 83.
Now in order to determine whether the present opinion is requested upon a
legal question actually pending between two or more States, it will, in our
submissinn, be convenient to refer very briefly and by way of summary to the
historical background of the present matter.
After the dissolution of the League, South Africa expressed a desire to
incoroorate the Territorv of South West Africa in accordance with the exoressed
wishis of tts inhïbitank ahtch had ken obiained. We deal with that Subject
inour wriitenstatement 31 1.pages615-617.NO\Vihis derirc of the South African
Goternment 31 the 11meuas opposcd b) tlic Gcnersl Aswmbly, to whom the
intentions of the Souih Africdn Government hsd ken convcycd. IIwasopposed
in resolution 65(1)of 14Deceniber 1946.on certain grounds:
". .. that the African inhabitants of South West Africa have not vet
secured political autonomy or reached a stage of political developm&t
enabling them to expressa considered opinion which the Assembly could
recognizeon suchan important questionasincorporationof their territory".
That is found in our written statement, 1,at page 617. The General Assembly
recommended in its resolution that South Africa should enter into a tmste~ ~~ ~ ~
agreement relative to South West Africa. The South ~frica" Gavemm2
declined. The reasoning behind these decisions and attitudes is set out in the
written statement.
In the years from 1947 to 1949 conflicting opinions were expressed in the
proceedingsand debatesof the United Nations on various questions which arose
from this situation. Those conflicting opinions are summarized in our written
statement, 1, pages 624-630. And they were very briefly:
Firstly, whether the Mandate was still in existence: secondly, whether South
Africa was under a duty to conclude a trusteeship a&eement;thirdly, whether,
if no trusteeship agreement was concluded, there was an obligation under the
Mandate on SouthAfrica's Dart to report and account to the UnitedNations
As we point out in 1,at the pages-which 1have cited, there was really at the
time-that is in the years 1947 to 1949-very little support within the United
Nations for a positive answer to this last question, for an answer to the effect
that South Africa would be, outside of trusteeship, under an obligation ta report
and account to the United Nations under the Mandate.
The Advisorv Oninion of 1950was the next staee. In rewrd to these ooints
which 1 have ment'ioned, the Court concluded in Chefirst Place, unanirnksiy,
that the Mandate still existed; secondly, that there was no obligation on South
Africa's oart to conclude a trusteeshin agreement. That conclusion was arrived
at by aiajority of 8to 6. And thirdly,'thg South Africa wasunder an obligation
to report and account to the General Assembly of the United Nations. The
majority in that casewas 12to 2.
After that the subject of South Africa was still regularly considered and
debated and disputed in various organs of the United Nations. The majority
attitude in the United Nations was to uree the conclusion of a truste es hi^
iigrcemeni. Furrhcr. nithin ihc Unitcd ~3tions a number of States conrçnded
ihat South Afric;, \rab coniravening the hlsndliie particularly by the ;ipplica-
tion of its policy of apartheid or separate development in the Territom, and
further that it was contravening the Mandate by not reporting and accounting ORAL STATEMENT BY MR. DE VILLIERS 7
to the General Assembly, the contention king that on the basis of the Court's
~ ~iso-v Oninion it was oblieed to do so.
~outh'~f;iw disputcd these contentions. It disputed firstly the corrcctnes of
the 1950Opinion on the question of the continucd existence of the Mandate,
although tt said thïr in practice this tvould nidkt lirtle or no difference to its
position, 2s itconsidercd iiself ascontinuing Io admintstcr the Territory in the
mirit of that Mandate. Sccondls. and more im~ortantlv. ttdts~uted the Court's
finding by the majority of 12-to 2 to the effect thacsupe&isory powers in
respect of the Mandate had been transferred to the General Assembly, and in
accordance with that attitude it did not systematically report and account to the
United Nations organs although it gave information from time to time as to
!he facts and its policies and its practices in the Territory. Thirdly, it denied
that itwas in any wav violating the Mandate by its ~olicies and nractices in
South West hfriw; and fourthl; itrefused IOconcludc a trustecship agreement
for reasons $\,hichitstiitedIOthe <;encriilAssembly.
This contri)vcrsy wiihin the Unircd Nations Iïd e\eniually to the ~revious
contentious caseson South West Africa. The Applicants, as the court will
recall, were Ethiopia and Liberia but it was, in our submission, perfectly
clearly established-and indeed they did not seek to deny-that they were
acting on khalf of the Organization of African Unity. A steering committee of
that organization had ken established: "To determine the procedures and
tactics incidental to the conduct of the juridical proceedings in this matter."
Weauote that from the Pleadirr~s of the 1966cases. Volume II. naze 448: it was
'
arcsolution of the Conferencc of lndependcnt ~frikan States in i9h0.
Nou, gencrally Icm refcr the Court-l do nùt u,ant t<igo into the details now
-10 ou; treatment of this subject, the Fdct that ~thiopia and Liberia were
really acting on behalf of the Organization of African Unity, to Volume II, of
thePleadingsin those cases,pages 446-449;and 1may also refer the Court to an
article by Anthony A. D'Amato in the Law in TransitionQuarferly of 1967 at
pages 16-17.The article is entitled "Legal and Political Strategies of the South
West Africa Litigation". In a footnote applying to the author it was stated that
he was a member of the New York Bar and that hewas retained by Ethiopia and
Liberia to write portions of the Applicants' brief. It says further that the
author exDressesa~oreciation to. amongst others. Keith Highef, Esouire. for
his kind s;\ist3nce: ~he Cuurt u,ill rccal/that Mr. Highct mai a niem&r of the
legal tcani for tthiopia and Liberia ivhich appesrcd in this Courr. so what hc
says may well be regarded as authenticallystating the position, and at the pages
to which 1have referred thecourt he leavesthe Court in nodoubt on this point,
that the two countries were acting on behalf of the Organization of African
Unity.
Now in their Memorials in that case the Aoolicants asked the Court for a
ruling on a series of matters and they-included'three to which 1would like to
refer. First, whether the Mandate was still in existence; secondly, whether the
General Assembly of the United Nations had succeeded to the supervisory
functions of the League Council; and thirdly, whether South Africa had, by
its policy of apartheid, violated Article 2 of rhe Mandate which required the
mandatorv t. oro.ote to the utmost the material and moral well-beinz and -
social progress of the inhabitantsof theTerritory.
The question then arose, in that case for the purpose of the preliminary
obiections raised bv South Africa. whether in the meaning of the cornpro-
miisory clause of théMandate the& had previously been an; dispute between
the mandatory and another Memkr of the League of Nations which curildnot
besettled bynegotiation, that king broadly thewording of the compromissoryclause in that particular case. The question arose for several reasons, but one
of them was the fact that the differences of opinion which had previously
manifested themselves-those upon which Ethiooia and Liberia relied for
purposesofjurisdiction-hadarisen purely within the proceedingofthe Cnitcd
Nations; they had iiot manifested themwlves on what niight be iemled a direct
inter-Siate relationship outside the United Nations. I'he Applicants Ethiopia
and Liberia contendcd that this neverihelcss meant that there u,;isa dispute, or
that a dispute had. prior to the institution of procecdings, manifested itself
between them and South Africa. We deal in ow-written statement. 1. at oaees
443-445, with their reasoning in that respect. Basically they contended tiat
the mere adoption of wnûicting attitudes in the ~0liti!Xl organs of the United
Nations wnstituted such a dispute and this contention was accepted by the
majority of the Court-there was a divergence of opinion about it-in its
Judgment of 1962,to which we refer in 1at pages 444-445of ow statement. We
quote the 1962Judgment at pages 344-345.We also quote the opinion of Judge
Jessup at page 436.
May 1make it clear South Africa contended to the contrary and it still, with
respect, disputes the correctness of the finding of the majority of the Court as
far as that particular point is concerned. There were also dissenting minority
opinions on this matter, particularly the joint dissenting opinion of Judges
Sir Percy Spender and Sir Gerald Fitzmaurice and the ouinion of Judae van
Wijk. ~hed/ssents were very broadly bascd on the proposit;on that inasmuch as
there wns no specifi: individual ground of dispute between South Africa and the
aoolicant States outside the General Aswmbly of the United Nations there was
nodisnute within the meanine of-the oartr~~l~ ~como~~mi~eorv cl~~s..~ ~ ~ ~
Of course, Mr. President, with submission, the question with which we are
dealing at the moment, concerns Rule 83of thisCourt dealina with the conceot
of a le& question actually pending betueen two or more tat te Ts . question
here is not neirswrily the same as it uas for purposcs of the appliwiton of thc
comoromissorv clause with its different wordinz. and 1am referrina to this
diffërence of opinion which manifested itself at thattime. The point 1dowant to
make is this: that one could now view the matter on one of two alternative
bases. One would be the correctness of the 1962 maioritv Judmnent on this
proposition If IIis applied to uhat WC are dealing withat ihe moment then the
present question, in Ourîubmisrion. is a forriorr one actu3lly pending betuecn
two or more States. On the other hand if one anolies the minoritv view 1 will
endeavour to demonstrate IOthe Court that, in fici, the miter ha by now gone
very very much funher, and that in many important instances the difirences of
ooinion. the conflictina attitudes adoot.d. ,ave extended to the direct inter-
Gate levei on matterswhich are very much part and parcel of the question
which has been submitted to the Court for the purposes of these proceedings. 1
shall corne to that at a later stage.
So\r to revert to the Soi<r/ivesr Africu cases. IJltimJtely, none of the issues
whiçh I h~ve briefiy nientiuned uerc eventu~lly decideJ fi)rmilly by the Court
in its Judgment in 1966, when the Court came to the conclusion that the
Applicants had no right or legal interest in the subject-matter of the dispute and
decided to rest its decision onthat proposition alone.
So after that Judgment in 1966 one could state the uosition about the con-
flicting attitudes. ?.Gy are briefias follows: that ifthe~ourt's 1962Judgment
u,ere accepted ÿs correct then South Africa was engÿged in a dispute wiih al1
States Members of the United Nations who had, in the course of the nctivities
of the Orgnni7atror1, mentioncd views conflicting u,ith those of South Africa
concerning South West Africa. And 1mention, a the Court knous, that even OW STATEMEN ïY MR. DEVILLIERS 9
while the case was~ending from 196ûto 1966the United Nations activities and
debates continued'unaba~edly in respect to South West Africa. And then,
secondly, summarizing the position after the Jugdment in 1966, differences of
view between South ~frica and the two Applicants who represented the mem-
bers of the OAU, had been defined in formal pleadings before this Court and
those differences were still unresolved.
Now this conflict of views on both levels has continued ever since and it ha
developed, as 1shdll endcavour to demonstrate. Let usfirst look ït the position
\\ithin the United Nations; there was in 1966a debatc on the question whcther
the General Assemblv could and sbould revoke the Mandate. This culminated.
as the Court knows.;n rcsolution 2145 (XXI), uhich uas adopted, hrer of;";
against the opposition of South Afriw. We deal with that in our u,ritten statc-
ment, 1, pages 445-446, and ive find, Mr. I'rcsident, in the statement which is
now king submitted to this Court hy the Prikistan Government, the rathcr
telling description of thesecvents, theseeventswhich led up to the adoption of
this resolution.The statement ai 1..D~-C 357. indiwtes Pakistan's disam-enient
with the 1966Judgment of the Court and it proceeds:
"The Afro-Asian countries in 1966, therefore, took the matter to the
General Assembly of the United Nations which on 26 October 1966 re-
solved to terminate the South African right to administer the territory."
In 1969 the matter was taken a stei, further in the United Nations bv the
representatives of a group of more than 40 States, mostly Afro-Asian &tes,
in a letter to the President of the Security Council dated 14 March 1969.Those
re~resentativessiated that it was incumbent mon the Securitv Council to take
méiisurcsand action to enable the people oF'~outh West ~irtw "Io exercise
their right to srlf-determination and independence" in the Itght of the adoption
of resolution 2145(XXI) and South Afriw'scontinued presencein South West
Afriw. We refer Io thst in Our written statement, 1, page446. This action, Mr.
President, ledeventually toSecurity Council resolutions 264of 1969,269 of 1969
and 276 of 1970.al1oiu,hich cdlled upon South Afriw IO ivithdraufrom South
West Africa. Now urhat is important ison the one hand the fïct that this group
of Afro-Asian St.ites look the niaiter to the Security Council, and un the othçr
hand. that the validitv of these resolutions has been disouted bv South Africa
hoth prior to thesepr;ceedtngs anJ in theseproceeding\I As re&rds the dispu-
tation prior IO theseprocccdings i\,e refer to Our urittcn statement. 1,page447.
and weiefer toAnnexureC1, that is a letter which was written in 1969on behalf
of the South African Government to the Secretary-General on the suhject of
the Security Council resolutions.
So. to summarize the position. within the United Nations. it is clear that after
1966'the differences of-opiniori continued, basically dong the same lines as
before, particularly on the question whether the United Nations had succeeded
to the surnrvisorv functions of the Leamie. and whether South Africa had vio-
Iatcd the~andate. Those wcre sonie ojthe basic original issues a'jI might cïll
then~,but the furthcr issuescame to be raised, which are relevant now in these
'rooeedings. in Our submission. as from 1966 onwards
In 19hh;hc issuecame to bcsiatcd ver).clearly uhether the General Assenibly
iias competent to terminate South Africï's rights of administration ovcr South
West Africa. And of course some of the ~revious issues. whether the United
Nations had succeededto the supervisory Lnctions of the~eague, and whetherSouth Africa had violated the Mandate-they also bewme germane to the ques-
tion whether there had beena valid termination oftitle bytheGeneral Assemblv.
And then, as from 1969, yet further issues came into the picture within tic
UnitedNations. Thoseconcerned the validity of the Security Council resolutions
------ri-~ South Africa to deoart from South West Africa.
Going outside the United Nations now, 1 refer first to the confrontation
which has been concretized in this Court in the pleadings between South Africa.
on the one hand, and Ethiopia and Liberia on the other hand. Nothing h&
happenedsince 1966to resolve those issuesand it is signifiant, Mr. President,
that in the preseot proceedings, the Organization of African Unitisagain tak-
inganactivepart. It now appears to be represented by Nigeria. At 1,page 889
of the written statements suhmitted by States to the Court, one finds that the
statement is headed "Written Statement of the Government of Nigeria" and
paragraph 1commences by stating "The Organization of African Unity wishes
to begin hy setting out" certain things. Broadly, as 1 will indicate later, the
attitude taken hy the Organization of African Unity, or byNigeria on its behalf,
still follows the same line as that of Liberia and Ethiopia in theSouth West
Africa cases.
Now taking it a step further, outside of the United ~aiions, on what might be
termed the direct inter-State level. subseouent to resolution 214a number of
Statestook either individual or coilective~ction outside of the United Nations
against South Africa in her administration of South West Africa, and they
la no doubt that they based that upon legal views concerning South ~frica's
right, or lack of right, to administer the Temtory.
We find, in the fmt place, that certain States have withdrawn consular or
similar diolomatic reoresentation (rom South West Afnca on this ven hasis. 1
can furniih the COU; information in this regard, particularly with rekrence to
reolies which have ken furnished by the States themselves to enquiries bv
th; Secretary-Generill of the United Nations, enquirics which werkaimed A
obtaining information to aid the sub-cornmittec which had been estahlished
under Security Council resolution 276 of 1970.In the circular to which I wish
to refer the court, the official reference to whichPOs 230 SOAS/S, dated 16
March 1970, the Secretary-General sought certain information from various
States Members of the Organization. The information was to include: "Anv
diplonlatic, consul~r, tradcor other otfici~lreprescniation that they may ha&
in the Territory orthdt may imply recognition of South African suthority over
iheTcrriiow " Now 1aive the Court crrtilin extracis from re~lies(rom somc of
the States. Finland reiliedas follows:
"Finland is represented in South Africa by a Chargé d'AtTaires. His
duties as renresentative of Finland do not extend to the Territom of Nami-
bia and since the termination of the mandate he has been under instruc-
tions not to visit the Territory. Finland has no career consular representa-
tion in Namibia. An honorary consulate is maintained in Walvis Bay."
(UN Security Council doc. Si9863 of 7 July 1970,p. 8.)
Nonvay's reply:
"Before the termination of South Africa's mandate over Namibia in
1966,the official district of the Nonvegian Consul General at Cape Town
included Namibia. The district has now been limited to the Reouhlic of
South Africa.
An honorary Nonvegian vicesonsulate is maintained at Windhoek." ORALSTATEMENT BY MR. DE VILLIERS II
Sweden replied as follows:
"Sweden has no official representation in or extending to Namihia. A
Swedish honorary consulate existed in Windhoek till 18 November 1966,
but was withdrawn, following the General Assembly's decision on the
status of Narnibia (South West Africa) in its resolufion 2145 (XXI) of 27
October 1966." (Ibid., p. 32.)
The United States of America replied as follows:
"On 20 May, the Government of the United States announced the
following steps relative to future activities of United States nationals and
companies in Namihia. Specifically:
(O) The United States will officially discourage investment hy United
States nationals in Namibia;
(b) United States nationals who, nevertheless, invest in Namibia on
the basis of rights acquired through the Government of South Africa since
adoption of United Nations General Assembly resolution 2145 (XXI), 27
October 1966, shall not rcceive the assistance of the Government of the
United States in protection of such investments against claim of a future
lawful government of Namibia; and
(c) Export-lmport Bank credit guarantees and other facilities shallnot
be made available for trade with Namibia."
And then 1'11quote from a further portion of the reply of the United States:
"T-~~~nited States co.-~~ers that since 27 October 1966. South Africa
haslackedthecapacity to enter into international agreementswith effect for
Namibia and that. since that time, the United Nations has had direct re-
sponsibility for the territory.(Ibid., pp. 46-47.)
I refcr tu these. Mr. Prcsidcnt, admiitcdly from a document u,riitcn in the
United N~tiuns context to u,h,ch rcplics u,cre iurnishrd in thai contcxt. Rut the
repliesreally give ci,idencc of ati~iudcs and actions u,hich were taken outsidc of
the Unlted Nations context. in direct inter-Stste relations with South Afriw. and
in wniiici with the attitude -,hich South Africï has constantly expresscd and
maintaincd concerning ils position relative to South Wcst Africa.
1refcr ncxt io the attitude adopted by Staies ivith reference to thc possibiliiy
ofaw%i<)n tu a oarticular convention on beh~liof South \Vesi Africa bs the
South African Government. This concerned the International ~elecomrnu~ica-
tion Convention which was adopted at the Plenipotentiary Conference in the
International Telecommunication Union-1 will refer to it, with resoect..
President. is the ITU-in Montreux in 1965.TheSouth frica an-and ihc court
wlll noie that this uiis before rcsolution 2145 of 196weicgdtion wasexcludcd
froni the ~rucccJin~3of the confcrencc.Souih Africa coniends illcwalls. bu1that
is not recevant to the present argument. The fact is that for thatreason South
Africa was unable to sign the Convention and that therefore in order to become
a party to the Convention had to avail itself of Article 19 of the Convention
which provided for accession. It provided for accession by countries eligible to
be members of the ITU, which countries were listed in Annex 1to the Conven-
tion, and South Africa was listed as follows: "South Africa (Republic of) and
Territory of South-West Africa." As 1have said, this was 1965. The reference
is to the oficial documents of that Convention, the Montreux Convention of
1965, which are obtainable from the General Secretariat of the International
Tclccommuniwtion Cnion, Gcnci,a, at page 92. 1do not know whcrhcr this
do~.umcnt ii aviiilahlc in ihc librnry-could çumchody tell me-if il is not. u'e
u,111see10 itthai it is made availabletu ihc Kcgistrar.12 NAMIBTA (SOUTH WEST AFRICA)
Now after the South African Government had studied the Convention, it
decided that it would accede to it on behalf of the Repuhlic of South Africa, and
on behalf of South West Africa. and South Africa's accession was duly pub-
lished in ITU Notification No. 989of 10December 1966in the followingwords:
"Republic of SourhAfiica and Terriroryof South-WesrAfrica
The Government of the Republic of South Africa has acceded ta the
International Telecommunication Convention, Montreux, 1965,on behalf
of the Republic of South Africa and the Territory of South-West Africa.
The instmment of accession was deposited with the General Secretariat
on 11November 1966."
It goes on to state that "a duly certified wpy" would be sent to members.
Now this was. as 1oointed out. in December 1966.which was after General
Assembly resolution il45 ~eaclion was no1 long in fonhwming. The Tint
reaction came from ihe Minisiry of Forcign AKain of the Federal Kepublic of
Cameroon. 11was dated 26 Januarv 1967and it wns sent to the Generd Secre-
tariat of the ITU, declaring in a note:
". . thni iheGovernment of the Federal KepublicofCameroon. inconfor-
miiy with resolution 2145,adopted hy the General Assembly of the United
~ ~ ~ ~ ~o~n 28 Octoher 1966bv virtue of which the mandate of the Reou-
blic of South hi& over ~ouih- es Atfrica is terminated, considen any
decision taken hythe Re~uhlicof South Africa in the name of the Territory
of South-West ~frica nul1 and void and must therefore make the most
-~ -~~~~~~ ~- ~ ~~ ~ ~
express reservations concerning the commitment of South-West Africa by
South Africa with respect to the said Convention".
The reference is to ITU Administrative Council, 22nd Session, Geneva, Doc.
No. 364-E,of 30 March 1967.
Next came a communication from the Yugoslav Government dated 13
February 1967. It read as follows-1 am not going to read many of these, 1
will indicate later that othen were of a similar tenor Mr. President-
"The Yugoslav Government considers that the communication of the
Government of the Repuhlic of South Africa regarding its accession to the
International Telecommunication Convention on behalf of the Territory
of South-West Africa has no legal basis and is legally nuIl and void."
It goes on to state:
"The communication of the Government of the Republic of South
Africa is also in complete contradiction with the resolution of the General
Assembly of the United Nations No. 2145 of 28 October 1966, which
stated that South Africa had no right to administer the Territory of South-
West Africa, which comes under the direct reponsibility of the United
Nations. The act of the Government of the Republic of South Africa, at
the same time, directly disregards the clause in the General Assembly
resolution calling upon the Government of South Africa forthwith to
refrain and desist from any action, constitutional, administrative, politi-
cal or othenvise, which will in any manner whatsoever alter or tend to
alter the present international status of South-West Africa."
The reference is to ITU Notification No. 992, Geneva, 10March 1967,page 3.
It is significant, Mr. President, to note that apparently the Yugoslav Govern-
ment considered South Africa's accession on behalf of South West Africa as
being nuIl and void independently of resolution 2145,because it first Statesit to ORAL STATEME~ BY MR. DE VILLIERS 13
be nuIl and void and then says it is alsoin conflict with that resolution. 1 refer
to that in passing.
Then we find that subsequently South Africa's accession on behalf of South
West Africa was challenged by a number of other governments too.
On 28 March 1967, Tanzania sent a communication indicating that in its
view, as a result of resolution 2145 South Africa was no longer responsible for
the implementation of the purposes and functions of the International Tele-
communication Union in theTerritory of South West Africa, adding that South
Africa was no1competent to sign or ratify international instmments on behalf
of South West Africa or io pahiçipîte in international orgîni7~tions. confer-
encesor conventions asa rcprcsentalive of ihat Tcrriiory. This uas l'TU Admin-
istrative Council. 22nd Session,Gcncba, Addendum I to Docunicnt No. 3643.E.
3 May 1967.
The United Arab Republic sent a telegram on 30 March 1967,and in this it
stated:
"Reference to your letter No. 3060/60/TI'of 25 November 1966, regard-
ing accession of Republic of South Africa and Territory of South-West
Africa to the Montreux Convention, 1965.UAR Administration consider-
ine Resolution No. 45 of the Pleninotentiarv Conference. Montreux. 1965.
hcreby reservesthe right of its~o\~~rnnient noi Io accept the siaternc"i sub:
mittcd by the Government ofSouth Africa on behalfofihc Government of
the Terriiorv of South-West Africa king issucd bv an auihoritv which h3s
no legal caiacily towards the aforeyid Ïerritory. ~onsequentl; such stat;
ment is unlawful."
It proceeds to draw attention to the decision of the United Nations General
Assemblv resblution 2145. Then the reference is the same as the orevious one.
-r-~~--~.~~n~ ~ ~ ~
Then the Minister of Foreign Affairs of the Soviet Union sent a letter dated
22 April, and this is the last one which 1will quote:
"With reference to vour letter. ..1enclose the cooies of the documents
from the ~overnmeni of the Republic of South Africa concerning the
accessionof the Republic of South Africa and the Territory of South-West
Africa to the International Telecommunication Covention adonted at
Montreux on 12Novcmkr 1965,which Iam returning becauce the acces-
?ion of ihc Republic of South Africa thereio on behalf of the Tcrriiory of
South-West ~frica is illeeal and cannot have anv iuridical force. Il is a
well-known faci ihai the Ceneral Asscinbly of the United Nations divesrcd
the racialistic régimeof the Republic of South Africa ofany righi ivhatso-
cvcr with rcsDeci io ihc Tcrritorv of South-West Africa (resoluiion 2145.
dated 27 0ctober 1966)."
The referenceis to ITU NotificationNo. 994, Geneva, 10May 1967,pages2to 3.
Then there werecommunications to thesameeffect by the Ministry of Foreign
Affairs of the Ukrainian SSR on 27 April 1967,the Ministry of ForeignAffairs
of the Byelorussian SSR on 29 April 1967 and the Polish Administration on
4 May 1967. The reference is to ITU Notification 994, Geneva, 10 May 1967,
pages I to 2.
Now for South Africa's reaction. Eventuallv the Administrative Council of
the ITU circularized rnember States on 18 ai 1967, with a question whether
South Africa's right to represent South West Africa should be withdrawn-the
question of what~embers' attitudes would be in regard to such proposcd ac-
tion. South Africa too received this circular and il replied fully to it on 23 May
1967. It is a fairly longletter and 1do no1 want Io take the Court's time with
reading it. If theother representatives would no1ohject, Mr. President, 1would
suggest that we follow the procedure which we followed before, that is that 1
hand to the Court a certified copy of the document and that we regard it as if
it were read into the record and that we will hand copies simultaneously to
representatives of other States. 1will refer jus1 to the gist of it, which disputes
the validitv of General Assemhlv resolution 2145 on arounds which have been
stated in the past repeatedly by South Africa and are s&ed again inthe proceed-
ings now before the Court, basically, that the General Assembly lacked any
06x1 to take a resolution in a matter of thiskind havine -.vthinemor- than
recommendatory force. Secondly, that the purported cancellation apparently
rested on the basis that the United Nations had succeeded to the supervisory
oowers of the Council of the Leaeue but that it had never ken established that
&en the Council of the League had had a power of unilateral cancellation ofa
mandate and in any event that the General Assembly had not succeeded to the
oowers of the Council. and furthermore. that there was no su~sta~ ~ in the
;rounds ad\,dnced to the cfi.'t thiit south Alricd hiid fiiiled to f~liil iis obliga-
tion to the inhabitanis of the Territory. ï'hcrc is furiher rez~soninrin sur>r>ortof
these propositions. Will you please hand these documents to the ~epistrar?
Will that be in order MI. President?
THE PRESIDENT indicotedossent'.
Mr. de VILLIERS. So the issue in this respect was firmly joined.
The ~rooosal to withdraw South Africa's riaht to reoresent South West
Africa i\i.3~ne\erlhele~~ddoptcd by a nlijority !riÏhin the ITC irithiinumber of
abstentions. And nou. ihis pr;iciicdl position ha arisen that thcrc is complcte
'South African reply dated 23 May 1967,Io circular telegram 15/18 May 1967,
dispatched Io Membersof InternationalTelecommunication Union by the President
of the Administrative Council:
"Your Circular Telegram No. 15/18re deposit of instrument of accession by the
Republic of South Africa on behalf of the Territory of South West Africa refers.
It is noted that the proposal of the Administrative Council to withdraw South
Africa's rightIo represent South West Africain the International Telecommunica-
lions Union is based an resolution No. 2145(XXI) adopted by the United Nations
General Assembly on 27th October 1966.This resolution has no legal foundation.
The more important reasons for ils invalidityare givenbclow.
(a) The Resolution violates the basic principle enlbodied in Article 10 and
associated provisionsof the Charter, viz. that. with limited and irrelevant
exceptions, the pawers of the General Assemblyare confined to diser<ssion
and making of reeomn!endations. In purporting ta tcrminate, unilaterally,
South Africa's rightsof administration of South West Africa, the majority
in the General Assembly therefore acted in conilict with one of the basic
principles upon which Membersjoined the Organisation.
(b) The purported termination apparently rested upon the basis that the
United Nations had succeededto the supervisory pawers of the League of
Nations. However,
(i) it wasneverestablishedthat the Leagueof Nations itselfhad a power of
unilateral cancellation of a Mandate. On the contrary, the findings of
the International Court of Justice in its 1966Judgment in the South
West Africa cases indicatc plainly that the League had no such power.
(ii)In any event, after the proceedings intheSouth West Africa cascs. the
question whether the Unitcd Nations did succeed ta the supervisory
pawers of the League is, puttingif at its lowest, more controversial
than ever. ORAL STATEMEh7 BY MR. DE VILLIERS 1s
legal uncertainty, or shall 1 say certainly legal dilierences of opinion, on the
~.~stio~~~-~ther South West Africa is. or is not. a oa... Io the oarticular
convention. The Court will appreciate this goes well outside debating postures
and attitudes taken within an oraanization. It concerns the question whethcr a
particular State, and here a pagicular territory, must nowbe regarded as a
party to an international convention. And it concerns South Africa's right, or
lackof right, ta represent that territory in entering into international conven-
.~.~~. -u~ ~~ ~ ~.s 1have sîid. it concerns the oractical outcome in thiscase:
is South West Africa a party or is il not, when there was published what was on
the face of il. a perfectly valid document of accession. and thisother action was
~ ~ ~ ~-~ ~ ~ ~
It is an aspect if what cames before this Court as part of the question sub-
mitted to it. and an aspect which has outside of any organizations manifested
itself on a direct praciical inter-State basis between ou th Africa and these
various other States and affecting directly South West Africa itself.
1 referred earlier ta the reply given by the United States of America ta a
circular letter of the Secretarv-General. 1mav refer Io certain other evidence
ti>o. ahich is nui confidential, ivhich dcmonriraies ta wh~t extent various
issues of 3 relcv~nt nature h3vç m;inifcsted themsel\,es directlv in ;in inter-Sirrte
way between the United States Government and South ~frica relative to
South West Africa.
We prefer not ta refer ta the contents of exchanges, oral or in writing, which
have taken place between the United States Government and South Africa
since the dateof resolution 2145.We would rather not divulge contents of such
communications unilaterally, but 1am in a position to refer, Mr. President, to
public statements which have been made by and on behalf of the United States
Government which ta a large extent reveal some of these representations and
attitudes which have been taken by the United StatesGovernment directly in
ils relationswith theSouth African Government.
(ci failcd to fulfilits obligations in respect of administration of the Territory
and ensuring the well-being of the inhabitants. This point was dealt with
at length by South Africa's Representatives al the 21st Sessian of the
Gcneral Assembly intheir statements on 26 September, 5, 12and 26Octo-
ber 1966. and was carried further in the recenllv ~ublished Soulh West
Afrieo~~;rvey, 1967. ..
(d) anywadrastic actiononfthe part of the Ceneral Assemblyof the United Na-or
tions that legalproceedings were recommended by the United Nations
Special Committee in 1957-1959.One report mentioned:
'...the advantage that the Court in reachingils opinion, would proceed
by impartial methods and on the basis of evidence produced to and
weighedby the Court'.
(el As was pointed out by a Judge of the International Court of Justice in the
CerrrrinExpensrs of the United NririonsAdvisoryOpinion case:
'[TheCharter]cannot bealtered at the will ofthe majority oFthe member
States, no matter how aften that will is expressed or asserted against a
protesting minority and no matter how large be the majority of Member
States which assert ils will in this manner or how small the minority.'
In the light of,inrer alio,he foregoing, the Republic of South Africa strongly
opposes the proposal of the Administrative Council Io withdraw South Africa's
right to represent South West Africa in the International Telecommunications
Union."16 NAMIBIA(SOUTH WEST AFRICA)
1can refer first of al1to a letter dated 26January 1968on behalf of the United
States Government to the Secretary-General of the United Nations in which
it intimated that it had sought to make clear to the Government of South
Africa through the United Nations and bilaterally its position, inter olio, with
respeft to questions of the international status of South West Africa. 1refer to
United Nations General Assembly Twenty-second Session, document Al70451
Add. 3. dated 29 Januarv 1968. Re~ort of the Secretarv-General. oaee 3: ius.~~
the ge"eral indication that ithid made ils position clear not only through the
United Nations but also bilxterîlly.
Then on 20 May 1968the United States reoresentarii~c 31the 1658thmcctinc
of the General ~isembly once more reveale'dthat his Government had madë
representations to the South African Government on several occasions in
connection with auestionsemanatine from resolution 2145and other auest.ons~ ~ ~
flowingfrom souih Africa'sadministration of the Territory.
After the representative referred to specific legislation or contemplated
legislation bythe South African Government, he added:
".. .having recounted thcse ciforts Imust candidly agrce that thus Farthe
eiïorts ofmy Go\ernment, combincd iviththor ofothcr Governments and
the United Nations itself. hï\,e been unavailing against the obdurite
attitude of South Africa. Ncvertheless. we must persevrre . . My own
Government still intends to do ils utmost by al1appropriate and pcaceful
means to help carry through to fruition the aims which are so broadly
shared and which areembodied in resolution 2145."
Now this auotation admittedlv aoes no further than to show that there have
been representations on the subject of resolution 2145 and its consequences
and that it has met with complete resistance on the part of the South African
Government. The reference is to United Nations General Assemblv do~,me~ ~ ~ ~~ ~ ~ ~
AIPV.1658dated 20 May 1968,pages 36-37. utt th e we have these additional
items to add. In a brief summary of United States policy in respect to South
West Africa, published by the United States Department of State in its senes
"Background Notes", March 1969,it isstated at page 5:
"The United States has closely followed developments in the territory
and made vigorous protests against South African violation of the rights
and well-beingoftheinhabitants."
Inother words. adirect attitudeallerrineviolation of theriehtsof theinhabitants.
And then at the 1527thmeeting oFthë Security ~ouncic on 28 January 1970,
the United States representative stated:
"For Our part, we shall continue to point out to South Africa that we
considcr its presence in Xamibia illepai. WCdo not recognire and we do
not intend to recognize South Africî's claim that ithas the right to acr on
behalfofthe peopleofthat territory."
Now the United States revealed in the earlier quotation 1 read, and 1 can
confvm on behalf of the South African Government, that these representations,
these attitudes on the part of the United States, have consistently been resisted
on the direct inter-State level by the Government of South Africa, as it is
doingin the present proceedins before this Court.
niese, M;. ~resident, may be said to be examples-l could give more but 1
do not want to burden the record or take the Court's time unnecessarily-of
the manner in which disputes concerning legal issues regarding South West
Africa, legal issues which in Our suhmission are absolutely part and parcel of ORAL STATEMENT BY MR. DE VILLIERS 17
the question suhmiited io ihis Court, uhere ihose disputes hai9cmanifestcd
thcmselvcson the direct inter-Siïtc lcvcl ourside of the L'niied Nations.
So 1may summarize the general position as follows. Firstly, that there is
within the United Nations a disagreement between South Africa and others
whether the oresenceof South Africa in South West Africa is unlawful. This
ovcrall question is wmposcd of a number olsubsidiary quesiions uhich havc
ken in issue for a numkr of ycars, panicularly issue$perraining IO United
Nationsrights ofsuoervision and whether South Africa hasviolatedthemandate. ~~ ~ ~ ~
But, in addition, new issues have emerged more recently-1 have mentioned
them-as from 1966 onwards concerning the powers of the organs of the
United Nations-the General Assembly and the Security Council and the
validity or othenvise of the resolutions which they have taken. That is in the
United Nations.
Then. secondly. a number of the vital issueswhich are disouted inthe United
~ations were eibodied in formal pleadings before the court in contentious
proceedings between States. Ultimately a decision on those issues was not
necessary and they are still pending between the States which were the real
parties ta the proceedings: South Africa and the members of the Organization
for African Unity.
And thirdlv the ouroorted termination of South Africa's riaht to administer
Souih West ~frica'ani the alleged or suggestedconsequcnce;thcreof have led
to conirovcrsies on ihc dtrcct pr.icttcal intcr-Statc lcvel between Souih Africa
and various other States.exam~lesof which 1have mentioned. concernine the
lawfulncss of South ~frica's administration of South West ~frica and Con-
cerning particularly her right to represent South West Africa internationallv.
~hewritten statements~beforethe Court illustrate the extent to which ihese
ditïercnces of opinion. thcsc conflictr ot'vicu and of aiiiiudc, siill ekisi.anth=
exteni ta which the). have eisied for a long timc. WCfind in thcsc statcmcnts
that South Africa maintains that her oresenŒin South West Africa is lawful
and that she is entitled to administer'the Territory and to represent it inter-
nationally. Wefind on the other hand that thisisdisputed by others.
1do not intend to analyse al1or even any of the statements which have been
filed, but 1want ta make very brief referenceto a few examples.
TheCour1 oùjournedfrom 11.20am. lo 11.45o.m.
I was, at the adjournment, referring ta examples of attitudes taken by other
States in the written statements now submitted to the Court in oooosition to
South Africa's basic attitude about the niaiier uhich 1have broadlidescribed
I wanted ii)rctcr. as I iniimaicd cdrlicr, to the dttiiudc stdicd hy Nigcrid,
reoresenting the Organization of African Unitv. Nigeria's slatement is found at
. -
l.pagcs891~897.~nd one finds hriefly th31Figcria contends that South Africa's
right io administcr South West Africa has bcen validly tcrminatcd on the basis
of violation by South Africï of iis i)hliaatii>ns. II contends further that Souih
Africd's admi"istration is therefore unliiiful and should ccsc and thdi other
Statcsshould condusi ihemsslvesin conforniity iiiih ihat \,ic\r.
We tind. Mr. President. ihït Poland il. o. 3541. Pükistan (1. D. 3571and
India (1, pp. 838842) raisc~ontcntionr much 1;)thc umceiiect.
Now. Ur. Prcsideni. in the Iight of the lacis of the siiuation iihich I havs
dclilt uiih. the qucsiion arisesof ihc anrilicïtion of Rule 83 IO ihcse Tacts.Can
thcrc bes3id 10 ü situation whcrc thèiidvisog opinion in the prexnr caseis
rcqucsicd upon a Icgal question actudlly pending between tuo or more Statcs
within the mcîning of that Rule? My submision is ihai if cirer thcre trere a18 NAM~BIA (SOUTH WEST AFRICA)
case where this Rule is positively applicable, then this must be such a case.
Whatever borderline or questionable cases might arise in other instances, this
would not beone of them. This would be par excellence the type of situation
wntemolated bv the Rule-with the result that this is hardlv an occasion on
;.hich 1;is nece&ary to go inio what might be debatablc asprAs in dn ïcademic
Iceil sense of the Rulc. Nevcrthcless. Iwill refcr io theelements of thai rele\,ant
wordine intheir aoolication to this case.
- ~ ..
First of all, is there legol question? Now, Mr. President, nurnerous of the
comDonent questions in issue between South Africa and other States which 1
-~~~~de~tified. are without anv doubt. leeal auestions. There a~ ~ ~number .. ..
questions which might be termed questions of pure law,such as those pertaining
to the Dowersof the United Nations organs and the validitv or otherwise of
their risolutions. Thev are auestions of intemretation of-the Charter an.
applicaiton IO particular instances
In ihs same cdtcgory i~fqucst~onsof pure Iïw would fdll the question ahethcr
the Council of the~leamiehad a oower of unilateral termination of mandates.
Then there is the question whethe; the supervisory functions of the League pass-
ed to the United Nations. That question too, is overall, in Oursubmission, leaal.
It comorises one element of fact. namelv the question whether South ~frica ~ ~ ~ ~ ~ ~
consenied to a transfer of supervisory pokers. But that question is answerable
entirely from a rewrd of undisputed documentary sources. So that for al1
practi&l purposes, and particularly for present purposes, the whole of the
question whether the supervisory powers passed can rightly be regarded as
legal.
So in so far as the auestion of the lenalitv or otherwise of South Africa's
continued presence in bu t h est Africa depends on the questions which 1have
iust referred Io, that is also a legal question. And the same would apply to the
iegal consequences for States of &th Africa's legal or illegal presence in
South West Africa. And to thisextent, it would therefore be without question
that the questions existing between South Africa and other States king also
questions raised in these proceedings are legal. They are legal for the purposes
of Rule 83 concerning an ad hocjudge, as well as for the purposes of Article
96 oftheCharter concerning advisory opinions.
Now one does find this aspect or the matter. to which reference has been made
by South Africa in its written statement, namely that when one looks at the
whole of the question as posed for the Court by the request of the Security
Council. it has to it a stronr! oolitical backmound and it has comorised within
it a large and important faCtual aspect: the aspect relating to théallegations,
denied by South Africa, that South Africa has violated its obligations to the
inhabitants of the Territory by its policies and practices. Those aspects are
there, the political background and the factual field of potential dispute. They
apply, these aspects, both to the question, as raised for the Court, and to the
issues which have manifested themselves between South Africa and other
Statesoutside the Courtand within and outside the United Nations.
So, at some appropriate stage, the Court will no doubt give attention, with
resoect. to ~outh~~frica's contention that for either or boih of these reasons.
eitier by reason of the poliiical background, or by reüson of the factual aspect;
the question ïs a \\hole should not prcpondçranily be i,ie\ieJ JS legiil for pur-
noses of Ariiclc 96i 1iof thc Charter. Those are ci>ntcntionswhich \ie riiic. The
iesult of upholdingihat contention would be that the Court would decline to
give an advisory opinion. So if the Court were ta come to that conclusion
at itspresent session then,cadirqrtaeslio,the whole of the rest of theproceedings
wouldcollapse. ORAL STATEMENT BY MR. DE VILLIERS
19
We rather assume,perhapscorrectly, perhapswrongly, that the Court would
not wish to no fullv into that auestion at this staze. before the Court hasfinallv
decided on ifs composition foi the proceedings. ff Le are wrong in the assumi-
tion, if the Court would like to hear full argument from us about that matter
at this staze. we shall be oleasedif the Court would indicate that tous. But we
raihcr xskc that the court would not, ai this stage, determine whether ihey
are elcmentstvhich takc ihc matter as 2 whole ouioithe catcgory of king legal.
What is important al this stage is merely to indicate that if the matter as a
whole is taken out of the category of being legal for the purposes of the ap-
pointment of an adhoc judge, then it would by the sametoken be taken out of
thecateaorv of king lenal for purvosesof giving an advisory opinion at al].
So if for-purpose O ?giving an advisoG opinion one assumesat this stage
that the questions are not taken out of the category of being legal, then one
makes the same assumption for the purposes of the appointment of an ad hoc
judge. That isour contentionasat thisstage.
The next element to consider is whether we are dealing with a question
betweentwo or more States.Now. 1 think the answer to that is self-evident. If
the question or the controverjics had stiII becnconiined nierely to thc pro.'ccd-
ingswiihin thc United Nations, then one inighi haves3id. \iJell,is ihistii bescen
as-a auestion between two or more States. or as a auestion between South
~friwand the Orgmi2aiion. the Unitcd ~ations. But is 1have indicatcd IO the
Court e\en if11u,crei,iewedin rhai lighi. ihcn ifonc applics the 1962Judgmeni,
one would still come to the conclusion that it was a dispute between South
Africa and two or more States.
But in fact we have pointed out that the matter has gone far beyond that,
that there have beendirect inter-State disDuteswhich were not resolved bv the
1960Judgmeni. and ihcrc wcrc ihesefuriher dispuics and questions ivhishh~ve
ariscn on thedirect practical inter-Siîte Icvel which I h~veideniificd
So there can be no question about the existenceof a legal question between
twoor more States.
That brings us to the element of whether the question is actually pending.
In the context. we submit there can be no doubt as to what was meant by the
phrasc'.ast~~lly penJing". Il iimply me~nsüdispiiiewhich hasnot beenresolved
-u,hich is unresol\cd-which ristually cxisis and which has no1 ken rcsolvcd.
That is in this kind ofcontexi and looking at itmerely 3s ü matter of Ianguage,
in our submission, the natural consiruciion onc uould give to il.Looking a1
diciion~ry dcfiniiions of "pcnding", it hasd broad mcaning. Irhas the meaning
of "unresolved" in the senseofawaitinp. decision or settlement. Particularly
the word "pending" is taken in itsordinary connolaiion, standing by iiself. 1115
no! rcferring io somcthinp which ir pendinp Tor decision before tribunal ùr
court ofsaime kind. Isri,ihenitsiands br.iiself;\i hc11is ihcintention10 speak
of a dispute or question pending before a tribunal, one saysso. Then onedoes
not use the elliptical phrase, one does not use the phrase "actually pending",
becauseif it were intended to refer to "vendinp. before a tribunal", then it
would be an elliptical phrase merely to say "actually pending". If one says
"actually pending" by itself, the normal natural meaning would be the broad
one of awaitinn decision or settlement. awaiting finality by way of sorne or
.. .
oiherof ihepro&sses ivhich could bring'finaliiy. Ad those processîs,<ifcourse,
include seiilcmcni oi agrccmcnt betucen the parties ihcmscl\cs.
That is a conclusion at which one orima facie arrives merely by looking at
the languags in iis contet. ~hcconcl"sion is Turiher ioriilicd by looking arthe
backgroundand the hisiory and thc generalconicxt. Ihe meaning which I have
jus1 îssigned IO the phrase "aciually pending" aould bring the present Kule20 NAMlBlA(SOUTH WEST AFRICA)
into entire conformity with what the position was under the Permanent Court
Rules where difirent language \%,asused first of al1in regard to matters which
may besubmitted to the Court for advisory opinions and uhere corresponding
language was consequentlv used in regard to the appointment of an ad hoc
judge in such e3scs.~herethe languag~used us somcthing of the nature ofa
sircumlocution-il wds "any dispute or questionM-therefore one had different
language. But the same kindof lanauaae was used when it came to the Rules
periainyng IO the appointment of an-adhoc judge in ad\'lsor). proceeding. Thc
matter isrefcrred to by Kosrnne in hissecond edition, Volume II. pages659-660,
where he tao expressestheview that the change in lanauage is ~robablv not one
ofs ubstance and he even Statesthat the presënt provisions of Rule 8j may be
somewhat broader than the corresponding provision$ of the Rules of 1936-
that is at page 730,
I may saythat ue have not beenable to find 3ny commentator who suggests
that the Rule is to be given a nîrrower interpretation than the corresponding
Kule of the Permanent Court, and particularly me found no suggestion that
this Rule is to be interpreted asreferring to a dispute which is pending before
sometribunal.
Such a contention in favour of narrowing the meaning to that effect would be
incons:stent ulith \i>hathasoften ken stata to be the purpose of the provision
for an od />orjudge in advisory proceedings. The purpose has frequentlv ken
stated to be that in casesof existing disputes, actual ~ractical dis~utes or leaal
questions which have not ken decided betwien statës, if the court were tobe
asked to give an advisory opinion in those cases, that opinion may well be
looked upon in a practical senseas king a kind of decision of that dispute.
~herefore it is only fair to the parties co&rned-where the advisory ophion
is sought without their consent-that there should at least be the same kind of
safeguards as in contentious proceedings-the appointment of an ad hocjudge
king one of the balancing factors and one of the safeguards. One finds that
theme dealt with, for instance, hy Lauchame in "Le juge ad hoc", Revue
pénéralede droir ittrernafionol oublic. Volume LXX. 1966. page 265 at 305.
1 can refer also to the separate Opinion of Judge ~iniarski in ihekace Trearies
case,I.C.J.Reporrs 1950,at page 92.
1 may further point out. Mr. President. that the submission of disoutes to
third pirty determination is highly ehscptional in international Iÿu,înd ~r~ctice.
11occurs rcïlly .n only a ver). small niinorit) of usesIttherefore seemsfrom
a practical point of view almost inconceivable that there should he specific
provision ii Rules 82 and 83 for the highly ehrrptional contingency that an
advisory opinion may beasked upona question betuesn Statesu,hich isactuîlly
pnding before some other tribunal. One would sav. as 1have pointcd out, that
jf that had ken the intention then the Kule wouldexplicitlyha\,csltid ..pînding
before tribunal X or Y" or hwe gi\en some description of the type of iribun~l
which the Rule might have h3d in mind. And lunhermore. one u,oulJ then
have expected that the provision of the Rule would not have been that if this
dispute was actually pending before some other tribunal it would now be
pennissible for a party ta appoint an ad hoc judge in an advisory proceeding
before this Court; one would rather have expected the provision to be that this
Court should then desist, either permanently or temporarily, from giving an
advisory opinion while that dispute was actually pending before some other
tribunal.
We submit there can really be no question about what was meant by this
phrase "actually pending" in the context of this particular Rule, by reason of ORALSTATEMEN TV MR.DEVILLIERS 21
the meaning of language and by reason of context, of historical background
and of orobable intention.
NOW. finallyitmdy be neceswry for me to sdy something at this stageabout
the sape of the question which is being submitted for the Court's advisory
ooinion. 1have. in what 1 have said so far. taken it for arantedthat the auestion
w.hich is being poscd in the Security Council's requesÏis to be dealt iviih in its
full scope,asindicated bythe wordingof theresolution andas wehavewntended
for in Our written statement. In oarticular 1have assumed that the lemlitv or
othenvise of General Assembly ;esolution 2145 is a fundamental p3Ït of the
question posed for the Court. WCsubmit thal there is really no other possible
vieiv com~atible with the exercise by this Court of a iudicial function in this
msiter. RU tere are participants who contend othenvise in the written state-
ments to the Court, notably the Secretary-Cieneral haswntended otherwiseand
lndia has done the same. Thev have wntended for a narrower construction or
application to be given to the-question posed. We submit, as 1said, that those
contentions are without substance, but again we assume that the Court would
not, at the present stage, wish to enter fully into that matter before the Court
has finally decided upon its wmposition. Therefore we do not intend at this
stage to offer full argument on the matter of the scope of the question posed
for the Court.
But again 1say with respect, Mr. President, we ask that if the Court should
wish to hear us fully on that question at this stage we would be obliged if the
Court would indicate that to us. and we would do Our best to wm~lv. What 1
do uant to point oui at this is that even if the question shouid, in Our
submission quite artificiiillyk regarded as assuming the validity of General
Assemblv resolution 2145and if itshould thcrefore for that reason be reaarded
as rcferring only10 the legal consequencesof South Africa's prescnce in-south
Wesi Afriw i)n the assumption of a valid termination of South Afriw's title,
then Our application in respect of the appointment of an od hoc judge would
still, in Our submission, be well-founded, because it would be evident that
several of the practical differences that 1 have mentioned, particularly those
that have manifested themselves in the direct interdtate relationshi~s. oDerate
exactly in the field of Ieg~lconçequences They operate in the field of utheiher
rhere should beçonsular rçpresentdtivcs in South West Africa. whether South
Africa hüs the riehi to reorestnt South Weçi Alricd in regard to international
treaties and conientionsj it gces so far as to operate in-a practical sensein
regard to this situation of South West Africa vis-A-vis the Montreux Tele-
communication Convention-is South West Africa a Dartv or is ilnot? There-
fore even on what we submit would he a completely àrtifiCia1 limitation of the
question. these matters which have manifested them~elves between South
Africa andother States fall well within even that more limitedwnceotion
Mr. President, there is one further matter to which1 wish to draw attention
and which we submit to be relevant. 1 have dealt with Our application for the
amointment of an od hoc iudae on the basis of the wordinn of the relevant
Rule. In substance iireallyamounrs to this, thai rny ~ovcrn~ent's contention
is that these proardings. although advisory in form. are qu3sicontentious in
substance. Our submission isthat the analvsis which we have aiven todav of the
isues which are invi)lved in the qucstion.submitted IO the Court, a..properly
wnstrued, and of the diferences ivhich have manifested themselves between
South Africa and other States bears out the contention that these oroceedings
are, in substance, quasi-wntentious. That is the substantive basfs which,
Our submission, justifies the appointment, and requires the appointment, of an ORAL STATEMENI BY MR. DE VILLIERS 23
have to beworked out in a practical way by agreement between the Court and
the South African Government.
That. 1 wish to ooint out in the nresent context. isoar excellencethe field in
which ajudge viised in the background, the cir&nStances, the lawsand the
customs. and so forth, of South Africa and of South West Africa, would be in a
position'to make a major contribution and be of great assistance to the Court.
As we say in the letter, the proposal and the details, with the implications
thereof. would reauire to be considered at a later stage but we b.ing it to the
court's notice at this stagefor the rea1ohave mentioned.
To summarize our contention, therefore, we subrnit that looking at the
matter in a practical and substantive way, wejustify Our application in respect
of the appointment of an ad hoc judge on the basis that these proceedings,
although advisoiy in form, are quasi-contentious in substance, and that is a
oractical wav of savina that the case falls within the cateaorv of those envisaged
by Kulcof Couri ko. 83,whcre itspeaks ofan üdvisory opinion beingrcquesTrd
upon a lcgalquestion actually pending ktweenIWO or more Siaies.
h'o orher represe~rrarsignifed a desirero speak
The Court roseor 12.30p.m. FlRST PUBLIC SITTING (8 II 71, 3 p.m.)
Present:PresidentSir Muhammad ZAFRULLK AHAN;Vice-PresidenrAMMOUN;
Judges Sir Gerald FITZMAURICEP,AOILLA NERVO,FORSTERG , ROS,BENGZON,
PETRÉNL , ACHSO, NYEAMA D,ILLARD,IGNACIO-PINTO D, CASTROM , OROZOV,
JIMENEZ DE ARÉCHAGA R;egistrar AQUARONE,
Representatives of Governmentsand Organizarions also present during the
sittings:
FortheSecretary-Generalof the UnitedNations:
MI. C. A. Stravropoulos, Under Secretary-General, The Legal Council of the
UnitedNations.
MI. E. Schwelb, Senior Consultant to the Office of Legal Affairs; formerly
Deputy Director, Division of Human Rights, United Nations Secretariat.
MI. D. B. H. Vickers, Senior Legal Officer, United Nations Office of Legal
Affairs.
ForFinland:
Mr. E. J. S. Castrén, Professor of InternatioLaw at the University of
Helsinki.
ForIndia:
MI. M. C. Chagla, Member of Parliament, former Minister for Foreign
Affairs.
Mr. J. NDhamija, Ambassador to the Netherlands.
MI. S.P. Jagota, Director, Legal and Treaties Division in the Ministry of
Extemal Affain.
Mr. Jagmohan Mahajan, Secretary of Embassy.
For theNetherlands:
Mr. W. Riphagen, Legal Adviser to the Ministry of Foreign Affairs,
ForNigeria:
MI. T. O. Elias. Attornev-General and Commissioner for Justice.
Mr. Metteden, ~ecretajof Embassy.
FortheOrganizarionofAfrican Uniry:
Mr. T. O. Elias, Attomey-General and Commissioner forJustice of Nigeria.
Mr. B.A. Shitta-Bey, Junior Counsel.
ForPakistan:
MI. Syed Sharif Uddin Pirzada, S.Pk., Attorney-General of Pakistan.
MI. Zahid Said, Deputy Legal Adviser, Ministry of Foreign Affairs.
Mr. N. D. Ahmad, T.Q.A., Secretaty of Embassy.
Mr. S.T. Joshua, Secretaryof Embassy.
FortheRepublicof Vier-Nam:
Mr. Le Tai Trien, Attorney-General, SupremeCourt of Viet-Nam.
Mr. Nguyen VanTho, Secretary-General, Ministry of Justice.
ForSouthAfrica:
Mr. J.D. Viall, Legal Adviser to the Department of Foreign Affairs.
MI. D. P. de Villiers, S.C., Advocate of the Supreme Court of South Africa.
Mr. E. M. Grosskopf, S.C., Member oftheSouth African Bar. OPENINO OF THE ORAL PROCEEDINGS
Mr. H. J.0. van Heerden, Member of theSouth African Bar.
Mr. R. F. Botha, Member of the South African Bar.
Mr. M. Wiechers, Professor oLaw in the University of South Africa.
MI. F.D. Tothill, Member of the Department of Foreign Affairs.
Mr. C. H. S. von Bach, Member of the Department of Foreign Affairs.
ForrheUnitedStatesof America:
MI. 1.R. Stevenson, LegalAdviser, Depanment of State.
Mr. L. B.Sohn, Counsellor on International Law,Department oistate.
Mr. R. E. Dalton, Officeofthe Legal Adviser, Department of State.
Mr. A. E.Breisky, Secretary ofEmbassy. OPENING OF THE ORAL PROCEEDINGS
The 'PRESIDENT: The Court is meeting today ta hear oral statements,
under Article 66, paragraph 2, of the Statute of the Court, in connection with
a Request for an advisory opinion submitted ta it by the Security Council of
the United Nations. The Request of the Security Council \vas made punuant
Io a resolution of 29July 1970;1shall ask the Registrar ta r~adthe question on
which the opinion of the Court isasked.
The REGISTRAR: "What are the legal consequences for States of the
continued presence of South Africa in Narnibia, notwithstanding Security
Council resolution 276(1970)?"
The PRESIDENT: Notice of the reauest for advisorv ooinion was eiven Io
al1Statesentitled to appear before the court, and the couPt has received frorn
the Secretary-General of the United Nations a dossier of documents likely
ta throw light upon the question. Furthermore, pursuant ta Article 66, para-
graph 2, of the Statute of the Court, al1 States entitled to appear before the
Court were notified that they were considered as likely to be able to furnish
information on the auestion. and that the Court was nrenared to.re.eive ~ ~
urittcn statcmcnts Tramthcm uithin 3 tirne-limit hhed Torthat purposc.
The lollo\ving Sratm. ~ndicited in English nlphabetiwl order, cxercised the
right thus made available to them by transmitting ta the Court written state-
ments or letters: Czechoslovakia, Finland, France, Hungary, India, the
Netherlands, Nigeria, Pakistan, Poland, South Africa, the United States of
America and Yugoslavia.
A writtcn sialement u,asa1soprcscnicd IO the Couri on behalf of the Sccretnry
Gcncrül or the Unitcd Nations. 2nd the rcprcseniative of the Secretary-Gencral
expresseda desireto make an oral statement.
The following States also expressed a desire to make oral statements in the
course of the present proceedings namely: Finland, India, the Netherlands,
Nigeria, Pakistan, the Republic of Viet-Nam, South Africa and the United
States of America.
ln addition, the Court decided that the Organization of African Unity was
likelv to be able to furnish information on the auestion. and was authorized to
maki an oral sidtcment kforc rhcCourt
Aficrconsultnii~~n~ bctuccn the l'resident of iheCouri dnd the rcpre\entdii\es
of those States which have exnressed a wish to make oral staternents. the Court~~
hasdecided to cal1upon such iepresentatives in the following order. '
The representative of the Secretary-General of the United Nations will
address the Coun kt; thereafter 1shall cal1upon the representative of Finland,
and then on the representative of the Organization of African Unity. From
then on, the Court will hear the oral statements of the remaining States in the
alphabetical order of their English names, that is ta say India, the Netherlands,
Nigeria, Pakistan, the Republic of Viet-Nam, South Africa and finally the
United States of America.
In this connection. 1would mention that the reoresentative of South Africa
had requcstcd the hurt's permission IO makc a'brief srilierncnt ai the vcry
beginning of thcsc sittingz, in ordcr io enlnrge upon a niûitcr raiscd in a leiter
üddreucd to the Cuun datcd 27 Januarv 1971'.Conies of ihis lctrer have becn
made available to the other representatives attending this sitting, and to the
public. QUESTIONS DE M. GROS
M. GROS: Je pose ces auestions aprk lecture des deux exposésécritsdu
Secrétariai généralafin de vous pcrniettre, Monsieur le représentant du Secré-
tariat général.d'y répondre soit dans votre exposéoral soit aprésla fin de cet
ex.osé..selonvosconvenances.
Prentiere question - Le Secrétariat généralpropose, dÿns scs det.~ expi>sis
krits déposésle 7 décembreet le 24 dr'cembre19703.la Cour, une interprétation
de la Charte en ce qui concerne les pouvoirs de l'Assembléegénéraleet du
Conseil d-.sécuri~~.
Cette interprétation est-elle sienne ou représente-t-elle, selon le Secrétatiat
général.l'inter~rétation de l'Assembléegénéralesur ses oroores pourvairs et du
Conseil'de sécuritésur les siens? ~ancce dernier cas; le'~ec;étariat général
peut-il indiquer quand et comment cette interprétation a étéadoptée par ces
organes des Nations Unies?
Dans le premier cas, quel est le fondement juridique de la compétence du
Secrétariat généralpour interpréter la Charte? (Voir sur ce point le document
annexé à une lettre du 26 iuillet 1968 du Secrétaire général,re~roduisant
l'opinion du conseiller juridique des Nations Unies suqla reipo'abilité du
Secrétariat générald'accomplir son devoir à la lumière de sa compréhension
des disoositions certinentes delaCharte (A/7146).)
~euiième question - Dans l'exercice'de &ite capacité d'interpréter les
dispositions pertinentes de la Charte, comment le Secrétariat général concilie-
il l'intemrétation au'il oaraît soutenir avec ceau'a dit la Courdans son avis sur
la ~épaktion desdommagessubisau servicedesNationsUnies (C.I.J.Recueil
1949, p. 179):«Encore moins cela équivaut-ilà dire que l'Organisation soit un
«super-Etat», quel que soit le sens de-cetteexpressiona?
Troisième question - Si cet exposédes vues de la Cour n'est plus considéré
comme exact par le Secrétariat général, quelleest la motivation juridique de
l'opinion qu'il se fait aujourd'hui de L'étenduedes pouvoirs de l'Assemblée
genéraleet du Conseil desdcurité?
Quel est alors, dans cette nouvelle perspective, l'effet des réservesfaites par
de nombreux Etats sur la résolution2145 de l'Assembléeaknérale:Darexem~le
des réservesfaites par le Royaume-Uni, la France, I.URS (sur unpoint précis
de larésoliition),du Canada, réservessignaléesdans I'expos6écrirdu Eirérariat
aénérüldu 24 décembre 1970.aux oar.aran-.s 120.233. 30et 50 notamnient.
Uuclest, pour tous les Ftats &i ont formellement résen.6leur position. l'efit de
cctte risolution et a-telle, malgréces rcserves, un effeobligatoire 3 leur égard,
età auel titre?
~;atri~me question Le SecrCtariat généralconsidère-t-il qu'un Eisiqui a
fait une riserve formellc i la résolution 1514,citéecomme le fondenieni de 13
résolution2145,et qui a renouvelésa réserveau cours du débatsur la résolution
2145, est lié malgrécette double réserve?Quelle est l'opinion du Secrktariat
généralsur l'avis de la Cour sur les Condirionsdel'admissiond'un Erar comme
Membre des Narions Unies (arricle 4 de la Charte), en date du 28 mai 1948
(C.I.J.Recueil1948, p. 64):
cile caractkre politique d'un organe ne peut le soustraire à l'observation
des dispositions conventionnelles qui le régissent,lorsque celles-ci cons-
tituent des limitesàson pouvoir ou desnitères àsonjugement D? QUESTIONS DE M. GROS 29
Cinquikme question -Dans le paragraphe 11 6 deson premier exposé écrit
le Secrétariat général,en quelques lignes, wnsidere que R toute relation juri-
dique, de quelque sorteque ce soit intéressantla Namibie, qui a étéétabliepar
le Gouvernementde VAfriauedu Sud ou l'administration sud-africaine illéeale ~~~-~--..
en Namibie depuis la terminaison du Mandatii, est nulle et de nul effet.
Quel serait le fondement juridique de cette opinion en ce qui concerne un
Etat oui. a l'Assembléeeénéraleet au Conseil de skcurité.a émisformell~m~nt-~~~~~~---.....
des doutes sur la portée-juridique de la résolution 2145 énce qui concerne la
findu Mandat?
En examinant par exemple les observations faites par le délégué des Etats-
Unis (S-PV.11465du 20 mars 1969, p. 8-10 et S-PV.11496du 11 aoat 1969,
p. 12-13),les réservesdu délégué de la France (S-PV.11387du 25janvier 1968,
o. 116et S-PV.11464du 20 mars 1969. o. 51-52)auel oeut êtrel'effetnour r~ ~ ~---
deux Etats de la théoriede nullitéabiolue exposéeddns le paragraphe 116 de
I'expod écritdu SecrétariatgCnéral.Sur quelle regle de droit international se
fonde la théoriedela nullitéabsolue?
Sixième question - De maniere générale,le Secrétariat général est-ilen
désaccord aveclepremier paragraphe de la page 157de l'avisdela Cour en date
du 20juillet 1962, Certainesdépensed sesNarionsUnies(article 17, paragraphe
2, dela Charte) et en particulier aveclepassagesuivant:
« la Cour doitavoir la pleine libertéd'examinertous leséléments pertinents
dont elle dispose pour se faire une opinion sur une question qui lui est
poséeen vued'un avisconsultatif»? ORAL STATEMENT BY MR. STAVROPOULOS
REPRESENTATIVE Of THE SECRETARY-CENERAL OF THE
UNITED NATIONS
Mr. STAVROPOULOS: Mr. President, Honourable Members of the Court,
it is a ereat orivileae and nleasure for me to aooear before the hiehest interna-
tional tribunal, on-behalf of the ~ecretar~-Gefi&dl of the United Nations. This
is the seventh occasion when the Secretary-General has been represented before
the principal judicial organ of the United Nations in connection with advisory
opinions requested by the World Organization.
In the past, al1requests from United Nations organs for advisory opinions
have emanated from the General Assemblv. For the first time the International
Court of Justice has brfore ita requesi frini the Sccurity Council. This requcst
is for an all\,isory opinion on the legalconsequences for States of the continued
oresence of South Africa in Namibia. notwithstandine Securitv Council reso-
iution 276 (1970). In resolution 284 (1970), making this requeit, the Security
Council hasexpressed the viewthat the advison ooinion would beusefui for the
Council in its funher consideration of the question of Namihia and in further-
ance of the objectives the Council is seeking.
The source of the request, of course, in no way alters the views of the Secre-
tarv-General ree-rdina his resoonsibilities to this Court to offer snch infoma-
tien and argumcniatio-n 3s hc kl~cves rnay lx helpful in elucidating the request
and the iüucs before the Court. In Dursuance of these responsibilities. the
Secretarv-General has alreadvmade acailable to~ ~ ~ ~urt~a~ ~ssier containine
the relevant documentation. i regret this documentation proved to be so voluy
minous-volurninous because of theiotricacies. thehistory, and thegreat degree
of international concern in the ouestion of ~a&ihia. The Secretarv-General bas
also submitted two documents io the Court, one entitled "~rittén statement"
and the other "Review of the oroceedings of the General Assembly and of the
Security Council relating to the temination of the Mandate for Namibia and
subsequent action". For purposes of brevity, 1 shall henceforth refer ta this
latter document as the "Review of the proceedings".
In addition to these documents, the Court had also received some very valu-
able written statements from a considerable number of governments, which
reflect the wide interest in this case and which will undoubtedly be of great
assistance to the Court in itsconsideration of thequestion before it.
The facts put fonvard and the views expressed in the two documents sub-
mitted by the Secretary-General represent his position in regard to the subject
before the Court. a ~osition formulated in the lieht of the Secretarv-General's
responsibiliticst~u~hic hhri~~calludedearlier.~sïhis~ould be bath ;uperfluous
and iimcconsuming, IIis not my intention codas IO rciterdtc the informïtion
and the argumentation advancedin Ourwritten documents. Thus, for example,
1 shall not expand further upon the information therein on the scope of the
question put ta the Court. (See paragraphs 1 to 15 of the Secretary-Geoerdl's
written statement and oaraeraohs 327 to 353 ~ ~ ~ ~ ~evi~w of the Proceed-
ings".) Nor shall I elaboratc, beyond a briefrefçrence ai the end of this statc-
ment. the vieusof the Sccretary-Generalin ihoscdocumcnts on mhat he consid-
ers to bethe legal consequencesfor States of the continued presence of South
Africa in Namibia. In this latter connectioo, hnwever, 1 should like to invite ORAL STATEMENT BY MR. STAVROPOULOS
31
particular attention to Part 111,paragraphs 106to 109,and Part IV of the Secre-
tarv-General's written statement where his views on the legal conseauences for
~obth Africa and for orher States are set out. -
At this stage of the proceedings the Secretary-General seeshis responsibilities
as requiring him to offer such information and comments as he deems may be
useful to the Court on various points which have been made by the governments
in the written statements which they have presented to the Court. Many of
these points are either of a preliminary nature-such as the issue whether the
Court should accede to the request for an advisory opinion-or relate to the
question of the validity under the United Nations Charter of actionsand deci-
sions of the Security Council and the General Assembly, such as the decision
that the Mandate for South West Africa was terminated. Viewed strictly, these
points may go beyond the scope of the question put to the Court. However,
thev have been raised. Since. in its Advisorv O~inion concernine Certain Ex-
prn>~~o/rheUnrre~dA'ar;un tie Court rerniiikei that it"mus1 haie full liberty
to consider a11relevant data a\ailable to ifin forniing an opinion on a question
DOSUtIo il for an Advisory O~inion" (1.C.J.R~~~orr1 s962. D. 151..dt .. 1571.
ihe Court may wish to consider the relevance of the points3ust mentioned
the issues before it.
Furthemore. the Secretarv-General feelsthat it ishis s~ecialdutv to comment
upon certain of the points iaised mainly in one statement which, if accepted,
would have profound, in fact possibly disastrous effects, upon the structure,
functionine and constitutional oractices of the United Nations as these have
evolved ovër the last 25 years.
It is in the light of the considerationsjust enumerated that 1am today present-
ing the present oral statement on behalf of the Secretary-General. Broadly
speaking, this statement will deal, in the order indicated, with the following
topic?.:
First, the question whether the Court should render the advisory opinion
requested by the Security Council.
Second, some basic considerations applicable to the question of Namibia.
Third, objections which have been advanced to the formal validity of the
relevant Security Council resolutions relating to Namibia.
Fourth, the Qcopeof the powers of the Security Council, particularly under
Article 24 of the United Nations Charter.
Fifth, questions raised concerning the legal basis of General Assernbly resolu-
tion 2145 (XXI) of 27 October 1966, deciding, inter alia.that the Mandate for
South West Africa was terminated.
Sixth, the question whether South Africa has a right ta remain in Namibia
independently of the Mandate.
Seventh, the question of material breaches by South Africa of ifsobligations
regarding Namibia.
Eighth, the legal cnnsequences of the continued presence in Namibia of
South Africa.
The statement concludes with a summary of the basic principles which the
Secretary-General considers to be involved in this case.
1. TheQuesrionWherherrheCourrShouldRendertheAdvisoryOpinionReqrresred
by the Seciirity Council
I turn now ta the first topic 1 have just indicated, namely the question
whether the Court should render the advisory opinion requested by the SecurityCouncil.One of theGovernments which has submitted a statemcnt suggests that
the Court should use its discretion whether or not to accede to a reauest for
an advisory opinion, and should in this case refuse to givc it. In this conneaion
the principal contentions advanced are threefold:
first, that the question posed by the Security Council is intertwined with
political issues andhas a political background in which the Court itself has
become embroiled to an extent rendering it impossible for the Court to exercise
itsjudicial function properly;
second, that the legal question on which the Court isrequested to advise,
relates to an existing dispute between South Africa and other States; and
third, that the questioncan only be answered by deciding disputed factual
issues.
(a) TheAllegedlyPolirical Characrerand Backgroundof rhe Question
As rîgard the first reason-theallegedlypolitical characier and hackground of
the question-it mus1 besdid that in this regard the qucslion non &fore the
Court dots not basimlly diller lrom oiher uucstions which have becn belorc tliis
Court, and before its predecessor, in contentiousas wellas advisory proceedings.
The Statute of the Court provides that in the body of the Court as a whnle
reoresentation of the main fom of civilization and of the orincioal leeal svs-
tems of the world should be assured. The composition of thé~ou;t is iGended
to guarantee that even in questions which have a strong political aspect, the
political elements will nobe unduly predominant.
The Court has already decided not to accede to the objections raised by the
Government of South Africain its written statemcnt against the participation
of three Memben of the Court. The obiections were based on the contention
that political positions taken by these ju>ges in the course of earlier, non-judi-
cial activities might make their participation in the proceedings undesirable.
It can hardly be expected to find iudges selected from amona ororninent inter-
national lawyers and diplomats ulho have not in one rom or-ahother expressed
an opinion on questions such as self-deierminarion 01pcoples, colonialisrn and
racial discrimination. The Court, having rejected the challenge against the
participation of three judges, it would hardly be logical to assume that the
Court as a whole would have difficulty in rendering an advisory opinion which
isunarected byindividual politicalviews. 1submit. therefore. that thecontended
political background of the question should not i> aereasob for this Court to
decline giving the advisory opinion which the Security Council has requested.
(b) Characterizorionof theIssue beforethe Court
The second argument which has been put foward is that the present case
relates to an existingdispute between Statescomparable to the one involved in
the EasrernCarelia case (Collection of Advisorv O~inions of the Permanent
Court of International ~ustiŒ, SeriesB, No. 51, where the Permanent Court of
International Justice declined in 1923to give an advisory opinion. In that case
the question put to the Court related to the issue whether certain provisions of
the ~eace Treaty of Dorpat between Finland and Russia of 1920,-md a Decla-
ration of the Russian delegation annexed to it regarding the autonomy of
Eastern Carelia, constituted engagements of an international character which
placed Russia under an obligatiinÏo Finland asto the carryingout of the provi-
sions containcd iherein. The I'ennancni Court dccl~nedIO givean advisory opin-
ion bcsnuse il borc on an actual dispute between Finland and Russia. Kussia ORALSTATEMENT BY MR. STAVROPOULOS 33
had on several occaqionsclearly declarcd that itaccepted no intervention by the
League of Nations in the dispute iiith Finland. Ihe refusds \\hich Kussia hitd
oooosed 10 the steos suerrestedbv the Council of the Leaeue of Nations had
. --
been rencued upon the receipt b; it of the notification oFthe request for an
advisory opinion The Court thcrefore round it imporFible IO give 11sopinion
on a disoute of this character
7.0 tuin ta the present case before the Court. it is thc view of the kcrctdry-
Gencrÿl that the C'~>rîr,i Carrita ciise is not itprcccdent. Ihope to prove, in a
different context later in this statement. that the nresent casedoes not relate to
an cxisting dispute betucen South Afriu and oiher States Moreover, Anxcle
83 of the Kules of Court is evidcnce that an adi,tsors opinion can be requcsted
and given upon a legal question actually pending between two or moreStates.
Furthermore, since 1923, when the Permanent Court of International Justice
was requested ta give the advisory opinion in the Eastern Carelia case, the law
and oractice concernine the eivine of advisow o~inions on leeal ouestions wnd-
ing between two or more States have undérgone a certainmodification and
development. Although, as 1 have already indicated, the present case is not a
dis~-Gd disoute betieen two or more States. it minht never-helessbeofsome ~ ~ -~
useif I were 10 present a shon survcy of this modification and development.
Whilc ils eventual establishment uriisenvisaned in Article 14of the Covenant
of the Leaeue of Nations~ ~-e Permanent court of Internationa~ ~us~ice was n~ ~ ~
-
organically linked with the League. The present Court, however, is the principal
judicial organ of the United Nations. As such, it hason severaloccasions taken
a stand different from that of the Permanent Court in the Easrern Carelia
case.
In the matter of the I~rrer~rerurionof Peace Treufies wirh Bulaaria. Hunaary
atid rom un;^, the argunien1 uas inbokcd. against the poucr if the ~ou;t ri>
ansuer the questions put to it by the Gcncral Assembly, that the Court could
not give the ad\,isory opinion without violating the u,cll-establishcd principlc of
intcrn;ltiondl lau awording to u,hich no judicial proceedings relating to a legal
question pending betueen Stdtes. cuuld take place uithoui iheir consent. The
Court did no1 accept this argument. It said that, while the consent of States.
parties to a dispute, was the-hasis of the court's jurisdiction in contentious
cases,the situation was different in regard to advisory proceedings, even where
the request for an advisory opinion related to a Iegalquestionactually pending
hetween States. The Court emphasized that its reply was only of an advisory
character. It followed that no State could prevent the giving of an advisory
opinion which the UnitedNations considered to be desirable in order to obtain
enlightenment as to the course of the action it should take. The Court's opi-
nion, the Court said, uïs given nai to the States but to the organ uhich nas
cntitled 10 rcquc,t it;the repl) of the Court, itselfan "organ of the Uniicd Na-
lions". rcpresented its participation in the activities of the Organi7stion, and,
in principle. should not be refused. The Court notcd that itu,asnot mercly an
"organ of the United Nations" but ersentiallv "the principal iudicial oraan" of
-
theorganization (I.C.J. Reports 1950, p. 65it pp. 71, 7a. -
In the caseconcerning Judgments of the Adminisrraiive Tribunal of the Inler-
national Labour Organisation upon Complaints made againsr Unesco (I.C.J.
Reports 1956, p. 77, at pp. 86, 87) the Court, considering whether it should
comply with the request for an opinion, said that the question put to the Court
was a legal one. It arose within the scope of the activities of Unesco. In sub-
mitting the request for an opinion, the Executive Board of Unesco was seeking
a clarification of the legal aspect of a matter with which it was dealing. The
Court stated that only compelling reasonscould causeit to adopt in that mattera negative attitude which would imperil the working of the régimeestablished
by the Statute of the IL0 Administrative Tribunal for the judicial protection of
officiais.It concluded that there were no such compelling reasons, and that it
ought to comply with the request for an opinion.
In the case concerninr Certain Exuerrsesof the CJniiedNarions. this Court
referred to thedecision cken by the Permanent Court concerning the Statirsof
EasterrrCarelia and to the PeaceTrcoties and the IL0 AdminirrrativeTribi<nal
cases. In the Cerrain Exuenses case the Court anain found no "comoellinn
reason" ivhy itshould no; give thc advisory opinion ivhich thc General ~sseiii~
bly requebtcd hy iis rcsolution 1731of thc sixrcenih session. Thc Court rcferrcd
to the argument that the question put ta the Court was intertwined with poli-
tical questions, and that for this reason the Court should refuse to give an
opinion. The Court replied that it was true that most interpretations of the
Charter would have oolitical sianificance. meat or small. In the nature of
things it could not bë otherwise; The ~o"rï, however, could no1 attribute a
political character Io a request which invited it ta undertake an essentially
judicial task, namely the interpretation of a treaty provision. It referred to the
fact that the General Assembly in ifs resolution 1731 of the sixteenth session
had expressed its recognition of "its need for authoritative legal guidance".
In its search for such ruidance it had out to the Court a leral-.uestion. The
Court proceeded therefore ta giveits 0iinion on CerrairtExpeiisesof tlie United
h'arions(1.C.J.Reports1962, p. 151at pp. 155, 156).
Similarlv in the oresent case. the Securitv Council submitted the reauest for
the advis& opinion to the court:
". ..considerinn that an Advisorv Ovinion from the International Court
of Justice wouli be useful for thé~ecurity Council in its further conside-
ration of the question of Namibia and in furtherance of the objectives the
Council is seeking".
1respectfully submit, therefore, that the present request is ta a very large extent
comparable Io the requests which were addressed to tbis Court in the case of the
three other Advisory Opinions ta which 1havejust referred.
(c) WherlrerDecidirrgthe CaseItivolvesDisprttedFacruallssries
The third argument against rendering the advisory opinion is based on the
claim that the question put to the ~ourtcan be answered only by deciding dis-
puted factual issues. In the Secretary-General's opinion this argument is not
convincing, as these factual issueshave already been determined by the bodies
competent to do so. In this respect, resolution 2145 (XXI) of the General
Assembly declared, inter alia,that South Africa had failed to fulfil its obli-
gations in respect of the administration of the mandated territory and ta en-
sure the moral and material well-being and security of the indigenous inhabi-
tants of South West Africa, and had in fact disavowed the Mandate. As a
consequence, the General Assembly stated that the Mandate for South West
Africa was terrninated. Subsequently, those findings and the consequences
drawn from them were expressly confirmed and agreed ta by the Security
Council. Thus the question whether South Africa did or did no1promote ta the
utmost the material and moral well-king and the social progress of the inhabi-
tants, was decided by the organs within the technical and political appreciation
of which it came.
Thefacts have ken established by a near-unanimous decision of the General ORAL STATEMENT BY MR. STAVROPOULOS 35
As~~mblv. hv 114 votes in favour. two axainst with three abstentions. Aoart
from ~o;th ~fricii and Portugîl, there w& unanimity in regard io oper~ttve
paragraphe 2,3and 7 of the resolution, paricularly on the iinding in paragrïph
~ ~ ~ ~ ~~~ ~Africi had failcd 10fulfilitsobliratitins in resocct of the ïdniinis-
tration of the mandated tertitory, and thgby word and~byaction the south
African Government had demonstrated its undeviating determination ta deny
and to reoudiate essential oblieations incumhent uoon it. and that it had for-
feitediis iitlc to administer th~~;indate (rce'.~evieu, of'~roceedings". paras.
77.78 and 24). No fact lindinc is thereforc involved in whîi the Court has bern
asked hy the ~ecurity ~ouncii to do, namely ta advise on the legal consequen-
ces of the continued presence of South Africa in Namihia notwithstanding the
decisions taken by the Security Council.
For al1the foregoingreasons J respectfully suhmit that it will bein accordance
with authoritative precedent if the Court, as the principal judicial organ of the
United Nations, decides to render the advisory opinion which had been re-
quested hy the Security Council, the principal organ of the United Nations
bearing primary responsibility for the maintenance of international peace and
security.
II.SomeBasic ConsiderationA spplicableto the Questionof Namibia
1come now, Mr. President, to the second topic to be considered in this oral
statement, namely some basic considerations which the Secretary-General
considers are applicable to the question of Namibia. In this context, 1 should
like first of al1 to address myself to some of the underlying issues and legal
conceptions concerning which differences have arisen between South Africa
and the United Nations. With great learning and extraordinary industry, the
Government of SouthAfrica has presented to the Court an extremely thorough
analysis and leaal exegesiswhich, if 1may be uermitted to say so, constitutes a
professional aChievenÏent of a very high levil indeed, on Ghich the Govern-
ment's legal advisers deserve to he congratulated. The high professional level
of the South African presentation calls however for a preliminary examination
of what kind of a leeal svstem it is on which the South African statement is
based--whether the kgil uorld in uhich the South African arguments operate
isreally theuorldof 1971,orforihatmaiterof 1966or 1945ore\enof1920.
~hrough more than 25years the Government of South Africa has continued
ta assert that, as a consequence of the dissolution of the League of Nations, the
South African Mandate for South West Africa, now Namibia, has lapsed and
that. as a result. South Africa is freed from anv international suoervision. and
even from any iimitations on the way in &hich it administers O; administered
the Territory. The South African view apuears to be that Namihia is today the
sole and exclusive responsibility of ~outh~frica which, in al1but name, is the
sovereign of the territos..
The United Nations, on the other hand, has maintained that Namibia has
been and remains an international resoonsibilitv. which. thouah formerly
discharged ihrough the ngency of the ~&h,\fri&n ~ov;rnmen~. han ît ail
limes constituted an ehrrcise of international rathcr thîn ofsovereign authority.
A furtheruart of this oremise is that the Deonleand Temitorv of Namibia have,
-
for the past 50 years, possessed a sirigeneris international status, not being
under the sovereignty of any State, and having been placed under the overall
authority and protection of the international community, represented since
1946hy the United Nations. It isapposite to recall that, in his separate opinion36 NAMtBtA (SOUTH WEST AFRICA)
in the SourhWesrAfrica cases,FirsrPhase, Judge Bustamante stated, interalia,
that:
". ..al1themembersoftheorganizationarejointlyandseverallyresponsible
for the fulfilment of the sacred trust". (I.C.JReports 1962, p. 319, at p.
355).
Proceeding frorn the above premise it is the position of the United Nations
that the international territory of Namibia has been a responsibility of the
Organization, virtually since the latter's inceotion. and its orevious adminis-
trafion by South ~frica on behalf of the international cornmunity was at al1
timessince theentry into forceofthe Charter subject tothecomplianceby South
Africa not only with its obligations under the Mandate but also with its duty
to respect the obligations and responsibilities of the United Nations towards
the people and territory of Namibia.
These continuing international obligations, for the fulfilrnent of which the
international community has had the overriding and, since 1966, the direct
responsibility, are derived,inter alia,from the League of Nations mandates
system, from the Charter of the United Nations and from customary nom and
general principles of international law. In addition, these responsibilities are
also derived from those international declarations and resolutions which,
althounh they may not be leaallv binding on States in the exercise of their
indepeident sovereign pou~ers~ne;erthelcs;constitute binding direclives in the
performance oian international function on behalrofthe international commu-
nity. The obligation to "promote to the utmost the material and moral well-
being and thésocial probes of the inhabitants of the territory" permits no
doubt that it was part of the obligation of the mandatory to promote social
Progress by aoplyinn. in favour of the inhabitants. the rules as thev have been
~nt&nationùll~d~\eloped in the lasi 25jears.
lncluded among the international rules u,hi~.hare binding on the administra-
tion of the international territow of Namibia are declarations and resolutions
fomally adopted by principal &ans of the United Nations which represent
generally accepted interpretations and applications of the provisions of the
United Nations Charter. and which cith& are of zeneral ao..ication. or are
stated tuhii\.spccificretgrence to the situ&ion uf~&ibia.
Since the originandscop of these \,arious r>bligaiionsucrc furthçr claborated
in the written statement sühmitted on khalf of the Secretarv-General (Sec. 11.
paras. 16to 67), it is not necessary for me to examine them in detail at thisstage.
One of the common characteristics of the obligations derived from the
relevant treaty and constitutional texts, as well as from the interpretative and
declaratory instruments adopted by United Nations organs is that, in both
cases, they are in most instances directly related to contemporary prevailing
norms. The application of these contemporary prevailing norms is part and
parcel of the promotion of the material and moral well-king and the social
progress of the inhabitants, an obligation of the Mandatory laid down in
positive law.
For example, the reference in Article 22 of the Covenant of the League of
Nations to "the strenuous conditions of the modern world" clearly could not
be interpreted half a century later as still meaning the world of 1920. It was
pointed out, inter aliain the dissenting opinion of Judge Jessup, in theSouth
WestAfrica cases,Secondphase, that themodern world of 1966
"... is a multi-racial world. It is a world in which States of varied ethnic
composition and of different stages of economic and political development ORAL STATEMENT BY MR. STAVROPOULOS 37
are now associated in the United Nations on the basis of 'sovereign
equality' (Article 2 (1) of the Charter). Obviously 'the modern world' is
not a static concept and could not have ken so considered by the framen
ofthe Covenant of the League." (I.C.J. Reports 1966,p. 6at p. 440.)
Indeed. anv assertion that South Africa's obliaations in 1966 should be
interPretid in the light of the standards and expesations of 1920 is patently
absurd. 1 would recall the classic statement of Max Huber, Arbitrator in the
Islandof Palmas case that :
"The same orinciole which subiects the act creative of a riaht to the
law in force atthe tifmethe right a&, demands that the existence of the
right. in otherwords ils continued manifestation, shall follow the condi-
tions required hy theevolution of law."
To apply at a particular point in lime an institution, legal rule or practice
which was formerly acceptable may in fact, at that point of time, prove to be
contra bonos mores. Likewise to apply concepts of moral well-king current 50
yean ago could not k considered as promoting moral well-king today.
South Africa's claim to have promoted the material and moral well-king
and thesocial progress of the inhabitants of the Territory is based solely upon
a unilateral determination by South Africa as to what constitutes well-beina
and social progress, and is apparently not affected by a denial ta the majorit;
of the inhabitantsof basic human rights and fundamental freedoms, including
ea.aiit- kfore the iaw. and ecunomic. social. cultural. civiland wlitical ri.ehts.
In the vicwof the south African ~ovc;nmeniscverc resirictions "n the freedom
of nio\,erncnt of the inhabitants of ihcTcrritory, on thrir frecdom of residence
, and ri-ht to own land. on their ri-ht to work and freedom of emolo.me.t. on
their right to family life, on their right ta education and, las1but not least, on
their right to participate in government are apparently not incompatible with
its oblination Io oromote the well-beina and social oroeress of the inhabitants
and torespect and observe human rights and fundamental freedoms for al1
without distinction asto race.
Whereas South Africa alleees that the United Nations has sought to interfere
unlawfully in the cxercise b)T~outh Africa of her rights, it is oui position ihat
South Africa. uhich has forfeited al1 righis tn hs in Narnibia, has forcibly
prcvcnied boih rhe Uniied Naiions and the people of Ndmib.a from cxersising
ihcir lauful righis. Thesc Iattcr rights arise not only froni coniract, hut also
from the intcriiational staius possesscd by ihc people of Namibia in iheir
relationshio to theinternational wmmunitv~
It mïy be addcd thai neiihcr South Afriw nor ihe Unitrd Nations has
possessed righis in Namibia for ïny purpose oiher than to securc the rights and
intcrcsts of ihe people of ihcèrritory. For thc MïnJsic did not confer owncr-
ship or sovercigniy or permanent rights, but consisied only of a condiiional
grant of poaero for the schievement of3 purpose-noi for ihc kncfit of the
nrantcc but for ihc benelit ofa ihird nariv. tD~OD~C and'l'erriiory of Narnibia.
. mhich powers were ta be relinquished as soon as the purpose was achieved.
The United Nations remains pledged to the achievement of this purpose,
namely theexercise bv the ~eooleof Namibiaof their right to self-determination
and full rncmbershii in the internation~l cornmunityin accordancc wiih the
tcms of the msndaies sbstcm and the Cnited Nations Charter, and the inter-
nationally accepted interpretation of these legal rights at the present time 111.ObjectionsWhichHave BeenAdvaiicedIo theForma1 Validityof the
Rele~,anrSeciirily CouncilResoliilionsrelating10 Namibie
With your permission, Mr. President, 1would now like to take up the third
topic tawhich 1 referred at the outset of this statement, namely objections by
governments to the formal validity of the relevant Security Council resolution.
1 believeit would be convenient for the Court if 1were ta deal with this topic
under four separate subheadings, as follows:
First, thequestion ofthecomposition of thesecurity Council;
second, the effect of voluntary abstentions by permanent members of the
Council;
third, the question of the applicability of Article 32 of the Charter relating
10 invitations to parties to disputes to participate in Security Council dis-
cussions ofthose disputes;and
fourth, thequestion of the applicability of the proviso in Article 27,paragraph
3, of the Charter concerning compulsory abstentions of parties ta a dispute in
taking decisions under Chapter VIof theCharter.
(a) TheQaéstion of theComposirion of theSeciirityCorincil
The question of the composition of the Security Council has been raised hy
the Government of South Africa with reference to the representation of a
permanent memher-namely China-at the time when the various decisions of
the Security Council on the question of Namibia were taken. The Government
states expressly thatit raises this question for the Court's consideration without
making any submission in this regard. It also states that South Africa has
throughout recognized the government of Generalissimo Chiang Kai-Shek
as the legitimategovernment of China.
Well, leaving aside the question whether South Africa has the standing ta
raise this issue in view of the fact that the government of China rewgnized by
South Africa occupied the Chinese seat at the relevant times, it is submitted
that the objection against the validity of the Security Council resolutions on
thisground isnot welltaken.
Rules 13 to 17 of the provisional rules of procedure of the Security Council
pertain to representation and credentials. They provide, inter alia,that the
credentials of a reoresentative on the Securitv Council shall be issued either hv
the Head of the ';tate or of the governmeni concerned or hy its Minister f&
Foreign Afairs and shall be communicated ta the Secretary-General who,
havineexaminedsuch. shallsubmita reoort to theSecuritvCouncil for anoroval.
~uGs 16 and 17 s~ecifically stipulate that, pendin; the approvai'of his
credentials, a representative shall seated provisionally, with the sarne rights
as other re~res~ntatives. and that anv renresentative on the Securitv ~ouncil
to *,hoceirdcntials ohjcction ha\ hein niade uiihin the Seciirity cil shîll
continiie to sii, aith the sdmc rigliis 3s othcr represeiitliriintilthe Securiiy
Council hlisdccided the niaiier. Accordinr?l~.thc Sccuriiv Council itsclf h:is the
right ta consider any question relating tLthé represent;tion or the credentials
of one of its members. Therefore, as long as the Security Council does not
decide that a nerson whom ithas recoenized as the renresentative of a memkr
-
of the Council hüs los1thai capïcity, ihat person 1s.u,iihin ihe mcaning oc ihc
Chliricr, ihe rcprcscniati\c of rhe membcr Siate.As of the prcscnt date naisuch
decision has been taken by the Security Council as regards the representative
of China.
In the unlikely event that the Court were to grant any credence ta this issue ORAL STATEMENT BV MR. STAVROPOULOS 39
whi~- h~s -~en raised in the South African statement. oarticularlv in sofar as it
h2~hcn advanccd to challcnpc pïst Jecisions and sciions, the powihlç effccis
uould range Cdrbeyand the limiis oithe prcscni ca~c For instance, ïmcndnienis
~-~the~-harter of the United Nations reauire. inter alio. ratification. in accor-
dance with their respective constitutional processes,'by two-thirds of the
Members of the United Nations, including al1the permanent members of the
-~~~ritv Council. The amendments to Articles 23. 27 and 61 of the Charter.
enlarging the membcrship oi'ihc Security Council and oi ihc Economic and
SocialCouncil. nerc raiificd on hehdlfoCChina 1111965by thc smte governitteni
of China which wasre~resentedon the Security Council when theresolutionson
Namibia were adoptéd by the Council in 1968, 1969 and 1970. Under the
theory underlying the South African reference to the representation of China
on the Securitv Council. it could beclaimed that the amendments to the Charter
have not entéred into force and that on this ground two principal organs,
namely the Security Council and the Economic and Social Council, have since
- ~ ~k~v 1966 not been leaallv constituted. In other words: to entertain the
allegation that a resolutiono?th~~ecurity ~ouncilado~ted with theconcurrence
of the Government of the Republic of China is invalid would, logically, also
lead to uncertainty as to what is the valid text of the Charter and the constitu-
tional composition oftwo principal organs.
(b) The Effecr of VolirntaryAbstentions of Permanent Members of the Securiry
Coitncil
1come now to thesecond matter which has been raised in the present context,
namely the eflectof voluntaryabstentions of permanent members of the Security
Council in the vote on non-procedural decisions in the Council. South Africa
has claimed-on the basis of the wording of Article 27, paragraph 3, of the
Charte~ ~ ~ch refers to "the wncurrin~ votes of the oermanent membersW-
-
that non-procedural decisions of the Security Council, where voluntary
abstentions by permanent members have occurred, are invalid.
The constant ~ractice of the Securitv Council of not treating the voluntary
abstention of a Permanent member of ihe Security Council as a vote against a
substantive draft resolution before the Council is, it is submitted, customary
law. and was the valid customarv law of the United Nations long before the
sec;rity Council resolutions of 1968, 1969and 1970on the subjectof ~amibia
were adopted. South Africa has itself contributed to the establishment of this
rule of customarv international law by votes in the General Assembly-for
example, in the c&es of the admission of new members in 1949and 196i upon
rewmmendations of the Security Council adopted with voluntary abstentions
of oermanent members.
~ven if the development relating to voluntary abstentions is looked upon as
an inter~retation of the Charter by subsequent practice, the result cannot be
different and the oractice must be recoanized as beinn authoritative for the
Organization itseli its organs, its memb& States and, in the light of Article 2,
naragraph 6, of the Charter, even for non-member States.
- lnthe-ir seoarate ooinions anreeinawith the result of the AdvisorvOoinion in
the case conkrning'cerrain Ëxpenses of the United Notions, Judgis Sir Percy
Soender and Sir Gerald Fitzmaurice expressed reservations with regard to the
view that the oractice of an orean of the United Nations can for DurDosesof
inte~~retation'beheld ta be equhlent in ifseffectto subsequent conduct of the
parties. The most emphatic statement of this reservation concerning the
relevance of subsequent practice by United Nations organs is found in the
separate opinion of Sir Percy Spender. But even Sir Percy Spender makes, inhis separate opiiiion. an important chcepiion from his generally negaiive vicw
ofthe relcvana ofsubscquent prncticc by United Nationsorgans. Thee~ceoiion
is, in his words "a practice which is of a peaceful, unifo& and undisiuted
character accepted in fact by al1current Members" (I.C.J. Reports 1962, p. 151
at o. 195).If there is any practiΠwhich comes within this exception. as formu-
laied bysir Percy, it isihe uniform and undisputed practice ofnot treating the
abstention of a permanent member as a vote against a non-procedural resolu-
tion.
Whether we consider ilto be a nile of customary law, or a binding inter-
pretation of the Charter, the nile was well established by 1965, when the
amendment to Article 27 entered into force, and in 1966 when Portugal and
South Africa, both of whom had never previously questioned the rule, for the
first time advanced doubts regarding it.
Moreover. with the exception of the resewations on the value of subseauent
practice of United Sations orgdns mentioncd a moment aga, the present court
and 11sprcdccesror have rcpeatcdly stressed the importance uhich subscqucnt
oracticiof the organs of international organizations has on the interpretation
of the conrtituen~nstrumcnt of the orgü~zation conurnrd.
Lei me refer. in this wnicxt, to thc Advisory Opinion of 12Augusr 1922on
the auestion whether the cornuetence of the International Labour Organisation
extendcd to international rc&lation of the conditions of labour of persons
employcd inagriculture (Colleciion of Advlsory Opinions, Stvirr R. A'o.:).In
ihis Opinion, the Permanent Couri of International Justice said u,ith rcgard
to the meaning of the relevant pro\,isions of Part Xlll of the Peacc Treiity of
Versailles-namely thcConstitution of the International Lahour Organisation-.
that it had no doubt agricultural labour was included in the cornpetence of
the Organisation. The Court went on to say:
"If there were any ambiguity, the Court might, for the purpose of
arriving at the true meaning, consider the action which has been taken
under the Treaty. The Treaty was signed in June, 1919, and it was no1
until October, 1921,that any of the Contracting Parties raised the question
whether agricultural labour fellwithin the cornpetence of the International
Labour ~r~anisation. During the intenrning period ihc subject of
agriculiurc had repcstedly been discussed and had ken dealt with in one
forni and anothcr. 1\11this might sufice to turn ihc scxlr.in favour of the
inclusion of agriculture, if there were any ambiguity."
It should be noted that the Peace Treaty of Versailleswas signed on 28 June
1919and entered into force on 10January 1920.Pursuant to Article 424 of the
Tretay, the first International Labour Conference took place in October 1919.
The Court considered that the oractice of the oreans of the International
Labour Organisation durlng the compïraiively shorÏperiod beiwccn 1919and
1921was sufficient to support the proposition ihnt agriculture ivs within the
cornoetence of the Orrranisation. If this was the authoritative conclusion drawn
from thefacts which had occurred in a tirne shorter than two years, the constant
practice of the Security Council and of the General Assembly in the inter-
vretation of Article 2..oara-.aoh 3. of the Charter since the establishment of
ihe United Nations over a quarter ofa century agomust certainly be much more
conclusive.
lt would be suoerfluous for me here to elaborate uoon the instances in which
this present ~ou;t has attributed great relevance to the practice of organsof an
international organization. 1 shall therefore limit myself to mentioning the
names of two mies where this issue has been the subj&t of judicial pronounce- ORAL STATEMENT BY MR. STAVROPOULOS 41
ment, namely the Advisory Opinion of 3 March 1950 on Competenceof the
GenerolAssemblyfor the Admissionof o Store to the Ut~itedNations (I.C.J.
Reports1950, p. 4at p. 9),and the Advisory Opinionconcerningthe Constitution
of the Maritime Sufety Committeeof the IntergovernmentoM l aritime Consulta-
tiveOrgonizution(I.C.J. Reports1960, p. 150at p. 167).
In wnsidering this question one has also to keep in mind that under the
principles on which the whole structure of the United Nations is hased, each
principal organ decides upon its own jurisdiction and has the authority to
renulate itsown nrocedure. While the question of the effect or othenvise of
"Zuntary abstencons of permanent members is not a question of the rules of
~rocedure which the Security Council is expressly authorized to adopt under
article 30, the voting arrangements are basically interna1 alïairs of the~~ecurit~
Council. When the presiding officerhas announced that a certain resolution has
been adopted, and no objection toor appeal from his ruling is made, then the
decision that the resolution has been validly adopted is, as it weresjudicato.
As 1am speaking on behalf of the Secretary-General, it isincumbent upon me
to draw the Court's attention to the extraordinary consequences which a
revcml of the cstablished customav la!\,,on the eiTeciof voluniar) abstentions
of pcrmanant members in the vote on non-procedurîl mïtrcrs, would have for
thëorganization and for the international wmmunity as a whole. In the Annex
to the document entiiled "Revicw of the I'roceedings". a long Iisiof resolutions
of the Security Council is given in the vote on the urhole.or part of u,hich, one
or more oermanent memkrs abstained, and no fewer than 21 States are listed
whose admission to the Organization was effected by the General Assembly
upon recommendationsofthe Security Councilmade with voluntaryabstentions
by permanent members.
Manv of the resolutions iust referred to are of wnsiderable continuine and
-
contemporary importance. To give examples, 1 would point out that the
decisions of the Security Council on the peace-keeping arrangements on the
C-,rus~-u~.tion were ado~ted with the abstentionofa oermanent member.
Likcu,ise, the hasic resolutions concernlng the siiuation in Southern Rhodniî;
the wnctionsaoolied b).thcSccurity Council in regard iothat Territors.ïnd the
measures to safiguardnon-nucle&weapon tat te s,rties to the Treaty on the
Non-Proliferation of Nuclear Weapons, are alsoembodied in resolutions of the
Security Council on which one or more permanent members voluntarily
ahstained.
Inconclusion ol'ihispoini, I nced hdrdly SA).thaf a reversal oiihe cstüblished
cusiomdrs Isw mirhi well. in clfect. cr~.~lethe oossibiliiies for effectiveaction
in the~ecurity ~oÜncilin the future.
(c) TheQuestiotlof theApplicubilityof Article 32 of the Charter
The next issue which has been raised in the present connection is the question
of the applicability of Article 32 of the Charter. It has been claimed that the
Security Council violated the ~rovisions of this Article by not inviting South
Africa Ïo pïriicip3te. iviihoui voie, in the procecdings which led to the adoption
of Sccuriry Coiincil rcsolu!ions 264, 2h9,276 and 283 of 1969and 1970respec-
tively.
There is no disagreement on the mandatory character of Article 32: that is,
the Security Council has the obligation to invite a State which is a party to a
dispute to participate. Not only is this clearly indicated by the wording of the
Article itself". ..shall be inviter.but also this orincinle has been consistently
upheld in the practice of the ~ecurit~Council and in constitutional discussions
in the Council concerning the interpretation of Article 32. It must be noted, however, that the obligation of the Security Council to
extend an invitation is inseparable from the consideration that the matter
under discussion is a dispute. The Security Council has an obligation ta issue
an invitation to a State Member of the United Nations or to a non-member
only in cases where it considers that the matter before it is a dispute. Prior to
such determination, or in circumstances where the point has not ken raised at
all, the Council isunder no obligation to initiate a proposal for participation.
In fact, the Council does not usually take the initiative to propose participa-
tion to States Members. The practice shows that the Council decides upon
invitations when it has received a request to that effect, directly from the State
concerned, or when participation is proposed by a member of the Security
Council. Even those States which have themselves brought a matter for the
consideration of the Council have zenerall. re.uested to be allowed to oartici-
patc in the discussion ofihe council. Except for rare instances, the invjtations
to participate in the debïte on the substancc of the maiter have kn grilnted,
unon reauest. under Article 31of the Charter or under Rule 37oithc oro\,isional
Ales of Procedure of the Council.
In the case of Namibia, the Security Council not only did not make the
determination that the matter under discussion was a dispute but, on the con-
trary, adopted the provisional agenda entitled: "Situation in Namibia."
Furthemore. the auestion of Namibia has always ken referred to as a "situa-
tion" hy mekkr siaies who brought it before the Security Council. The chïrac-
terization of the question brought 10the iittention of the Security Council-the
considcration of iihich led to the adoption hs ihc Council of the resolutions
reiecied bv South Africa-aooear in-the coÏnmunications ~ ~ ~ ~ed to t~e
Security Council and in the requests for meetings. In no such communications
and reauests, nor during the debates, bas the question of Namibia been referred
toas a"disp;te". It hasalways been referred to as a "situation".
The Charter and the well-established relevant jurisprudence clearly distin-
guish between "disputes" on the one hand, and "situations" on the other.
"Disputes" are referred to in Article 33, in thefint phrase of Article 34, in the
61st phrase of Article 35, in the first phrase of Article 36, and in Articles37and
38.
"Situations" are referred to in the second ohrase of Article 34. in the second
phrase of Article 35, and in the second of Article 36.~heiracti&of the
Security Council in regard to the question of Namibia, to which 1have already
referred, indicates a wnsistent course of action of dealing with the matter as a
"situation". Article 32of the Charter wastherefore not applicable.
South Africa could havemade use of the provision of Article 31of the Charter
and Rule 37 of the provisional rules of procedure of the Security Council, and
requested, in line with the general and consistent practice of the Security
Council and of member States, to be invited to participate without vote in the
discussion of the question which was before the Council. There is no douht that
in that case the Security Council, if it had considered that the interests of South
Africa werespecially affected,would haveagreed to South Africa'sparticipation.
However, South Africa did not avail herself of the facilities which Article 31
and Rule 37 offer. Perhaps even more significantly, South Aîrica never de-
manded, at any relevant time, that it be invited under Article 32 of the Charter
to participate in the relevant discussions.
Itis of course a matter of record that the Court, in its Judgment of 21
December 1962 in the South West Africa cases, First Phuse, rejected the third
preliminary objection presented by South Africa. This objection was to the
effectthat the conflict ordisagreement alleged by the Governments of Ethiopia ORAL STATEMENT BY MR. STAVROPOULOS 43
and Liberia to exist between them and the Govcrnment of the Republic of
South Africa was, by reason of its nature and content, not a "dispute" as
envisaged in Article 7 of the Mandate for South West Africa. The Court held
"that the present dispute is a dispute as envisaged in Article 7 of the Mandate
and that the third preliminary objection must be dimissed" (I.C.J. Reports
1962, p. 319 at p. 344). From the fact that the Court held that there was a
dispute before it between Ethiopia and Liberia on the one hand and South
Africa on the other. it bv no rneans follows that what was before the Securitv
~ouncil in 1968,1969 and 1970wasalso a dispute between the applicant tat tes
of the South WestAfrico cases and South Africa, or between other States and
South Africa. Nor would it follow that because there mav be existine bases for
disputes between South Africa and other States in respectof ~amibiGthat what
was before the Security Council in the years just mentioned was one such
d-s-ute
in 1968,1969and 1970the Sccuriiy Council \r,assc,zcd of a suhjcct-maticr of
ancniircl) diilZreniiidrure. Iru~scillcd upori roact. înJrliJa.-t, on the biisisof
the circumstances which had been created bv the ~ener-l~~s~~~~~~~-~~ecl.ra-
tion of the termination of the Mandate, by the concurrence of the Security
Council in this termination. and by the further fact that South Africa had not
complied with the various ~ecurity Council decisions. This was a question
fundamentally dilierent frorn that which had ken before the Court in the
contentious SouthWestA/rico cases. Article 32of the Charter was therefore not
applicable and, until the present case, South Africa has not itself argued that it
wasso applicable.
(d) TheApplicabiliiyof thePravisoto Article 27, Para~raph3, ofthe Charter
1come now to the second point raised in connection with the present section
of this oral statement. This relates to the question of the applicability of the
oroviso in Article 27. oaramaoh 3. of the Charter conceinine comoulsorv
abstentions of parties ioa dispite intaking decisions under ~h$ter ~i of thé
Charter. It has been claimed that certain governments members of the Security
Councilin 1969and 1970oueht to haveabstainedfromvotineon the resolutions
concerning Namibia which-were adopted in these years, lbecause they were
parties to a dispute before the Security Council. 1hope that 1have just shown
that what the Security Council was seized of in 1968,1969and 1970was not a
"dispute" within the meaning of Article 27, paragraph 3, and other relevant
articles of the Charter, but was a "situation". It consequently follows that the
proviso of Article 27, paragraph 3, did not apply in these instances.
The PRESIDENT: MI. Stavropoulos, perhaps this may be a convenient time
for the Court to adjourn for 20 minutes, after which you will rcsume your
submission to the Court. Mav 1draw vour attention ~ ~ ~ ~~act that oart of the
earlicrsuhni.ssion ihat ).ouhave niadc;ithc Court ihisafrcrnoon w~s~oncerncd
with malters on aliich the Courr hïs already handcd down iis decision. Thrcc
matters have alreadv becn decided. two of which have been adverted to in that
part. I1crhapsivith &rd IO one "f them itmight h3ve becn thought that pan
of)OUI staicmcni referred to maiiers thai wrrc not s~ccificallydealt with in the
decision ofthe Court. but with reeard to the rest. 1would draw vaur attention
to the fact that the Court havin; disposed of t'hasematters, thai part of the
submission wasnot entirely necessary.
The Corfrtadiourned/rorn 4.15 p.m. ta 4.40 p.m.IV. TheScopeof thePowers o/the Security Council,purticularly underArticle 24
o/the UnitedNations Charter
1would like to take up now, Mr. President, the fourth principal topic forming
oart of this oral statement. reaardina the scoDe of the Dowen of the Securitv
kouncil, panicularly under ~rticle 24 of the ~nited acon Chsaner.
It apl>earsto be the South Afriun contention that the Icgality of any action
taken bv the United Nîtions is dc~cndent on \ihcther rherc exisis in the tex1of
the ~n;ted Nations Charter a specific and express phrase or article prnviding
specific and express authority for such action. Thus, under the restrictive and
textual annroachadootedin theSouth Afriun written statement. it is aonarentlv
suggested'that in the'abscnce of a specific and express provision in thé unitid
Nations Chaner cnviugingeach of rhcdifferentactions which have bcen taken
bv the United Nations in res~ect of Namibia. such actionsmust be nresumed to
have been illegal and u,ithoui eiTect. . ~ ~ ~~ ~
Not onls is this approach Io the intcrpretation and applicütion of the United
Nations Charter. $-set out in the south African written statement. le~a.~.~~-.
unfounded, but ii is also incompatible with the manner in which member States
have in fact interpreted and ap~-ied the United Nations Charter durina the
nast 25vears.
The United Nations Charter is the basic constitutional instrument of the
United Nations, and like other constitutions, it does not set out soecific and
detailed provisions dealing with each ofthemany contingencies which arise.
In the second place, the United Nations Charter, like other similar instru-
ments, is subject to continuing interpretation, which has been provided for the
most oart bv the ioint and collective action of member States acting thoueh
the phncipai or& of the United Nations. Thus. while the United kations-is
naturally bound at al1limes by the Chaner, certain modalities for irn~lemenrina
the orovisions of thelatter which are consistent therewith mav leeallvbe resorted
tuc;cn though they m3y not be set out textually in the C'hart&iïsclf ~his~oui
in 11sAd\.isory Opinion concerning Cerruifi Evpenrrr of tlie Ut~iiedNation, has
said that-
"... when the Organization takes action which warrants the assertion that
it was aooro~riate for the fulfilment of one of the stated Purooses of the
United E\iations,the presumption is that such action is not ulira vires the
Orgdniwtion" (1.C.J. Reports 1962, p. 150at p. 168).
Ap3rt from thc considerations just mentioned, 1 belic\,c that it can he
cunvincingly demonsrratcd that thc pou,crs of the Secur~tyCouncil, pîrticularly
under Article 24 of the Charter. Drovidea sound leaal basis for the actions it has
taken regarding Namibia. In &sing 1 should note that the Security Council
rarely identifies expressly the chapter or articles of the Chaner under which it is
proceeding. The basis of its action, however, derives from the powen given in
Chapters VI and VII, in Article 24 and in the Charter as a whole.
Paragraphs 1and 2 of Article 24 of the Charter read as follows:
"ln vrder to ensure prompt and effectiveaction by the United Nations,
its Members confer on the Security Council primary responsibility for the
maintenance of international peace and security, and agree that in carrying
out its duties under this responsibility the Security Council acts on their
behalf.
In discharging these duties the Security Council shall act in accordance
with the Purposes and Principles of the United Nations. The specific46 NAMIBIA (SOUTH WEST AFRICA)
The representative of France, having recourse to the phraseology of Article
24, said:
"-n mv -.inion. the text of the Charter confers uoon the Securitv
Council a very general mission: that of maintaining peace. Moreover, we
are not faced by an instance where the provisions of the Charter should
be iriterpreted in a restricted sense becaise they clash with another prin-
ciple, such as, for example, the sovereignty of a State. Indeed, world
o~inion would certainly not understand it, if the Security Council were
ri givc the impression of cvading a responsibility sa clo~clyrelated to the
mïintcnïnce of intern3tional peace and sccurity. 3s itis precisely the main
task and responsibility of the Security Council." (Ibid.,p. 16.)
The representative of the USSR invoked Article 24 explicitly. He said:
"As regards the powers and rights of the Security Council, 1consider it
to be obvious that the right and power of the Security Council ta assume
responsibility for the fulfilment of the tasks specified in the document
submitted by the Council of Foreign Ministers are provided for by several
of the terms of the United Nations Charter, in particular by Article 24
of the Charter." (Ibid.,p. 9.)
The representative of the United States expressed the following views:
"The Council of the United Nations is charged, as its highest responsi-
bility by the Charter, with the duty of watching over and maintaining
international ueace and security. Any s~ot on the surface of the earth
where, for whatever reason, conllicts may break out and where men may
be at each other's throats, is a spot of legitimate concern ta the Security
Council
..........................
The Security Council should not in my view, be afraid of leaping to
take such a responsibility. It is in the fulfilment of such a responsibility
that the United Nations justifies its existence."(Ibid.p. 11.)
At the 9lst meeting of the Security Council. a statement by the Secretari-
Gencrïl relating to ih~a~thorit~ ofthe Sc~urityCouncil to ïccipt the rcsponji-
biliiies in question uas prcsented to the Counsil. Regarding the ic\t and legisla-
tivc histury of Article 24, the Sscreiïry-Gcncral obscrvcd:
"The words, 'primary responsibility for the maintenance of international
peace and security', coupled with the phrase, 'acts on their behalf' con-
stitute a grant of power sufficiently wide ta enable the Security Council to
approve the documents in question and to assume the responsibilities
~~~~.u- th~-~~~nm.
Fiirthcrmorc, the rccurds of the San Francisco Confcreiicc demonstrate
that the powcrr of the Council under Article 24 arc not re>tricied to the
speofic grants of authority contïincd in Chïptcrs VI, VLI,VI11and XII.
In pariiculïr. the Secrctary-General wishes io invite attcniion tu the dis-
cusjiun at the fourtccnih nieetinr of Committec lllll at San Francisco.
wheiein itwasclearly recognizcd by al1ihc reprcscntatii9c\ihat the Security
Council \<asno1 restrisicd to the specific powcri set fnrrh in Chiipters VI,
VII, \ III and XII. (I hiive in niind. document 597. Con~iiiiliec ILL1 30.)
It will benoted thai this discussion.concerned a proposed amendment to
limit the obligation of Members to accept decisions of the Council solely
to those decisions made under the specific powers. In the discussion, al1 ORAL STATEMENT BY MR. STAVROPOULOS 47
the delegations which spoke, including both proponents and opponents
of this amendment, recognized that the authority of the Council was not
restricted tosuch snecificoowers. It was recoe-ized in this discussion that
the responsibility to maintain peace and security carried with it a power
to discharge this responsibility. This power, it was noted, was not un-
limited. but subiect to the nurooses and ~rincioles of the United Nations.
II 1sapparent ;h=t this di<cuision ret7ec;sa h&ic conception of the Char-
ter,namcly, thst théMemhers uf the Lnitcd Nations have coitferred won
the ~ecurity Council powers commensurate with its responsibility for-the
maintenance of peace and security. The only limitations are the fundamen-
ta1 principles and purposes found in Chapter 1 of the Charter." (Security
Counci/OficiaI Records (1947), 91st meeting, pp. 44-45.)
In concluding the discussion, the representative of France stated, interalia:
"1pointed out that Article 24 of the Charter, which is drafted in very
general terms, did not, in the case now before us, come up against any
principle which might justify a narrow or limited interpretation of its
terms.
The case is not one where the principle of the sovereignty of States, the
rule according to which there must be no interference in a country's
domestic affairs, is at stak...
..........................
If the ouestion has been broueht before us under Chanter VI and.
particulariy, ~hapter VII, we ihGuld be invisted with eGremely widé
powers extending even to, these are the very words of Article 42, demon-
strations and the use of force
It would be rather extraordinary, if in a case really liable to endanger,
if not peaceitself, at least the maintenance of peace, the Security Council,
which.~in that event. would have such extensive nowers of intervention.
should not even be able to take administrative méasures, far less serioui
than the use of force, in order to ensure the maintenance of peace.
As 1 said the other dav. we are dealinn with a case where the Security
Council must take a fuliview of its res6onsibilities. It is responsible for
the maintenance of peace. It is my opinion that we should not shrink from
the task, however delicate, which the drafters of the peace treaty have
asked us to assume." (Ibid.,pp. 58-59.)
The Securitv Council adooted bv ten votes to none. with one abstention. a
resolution recording its apioval of the annexes of the'draft Peace Treaty with
Italy relating to the creation and government of the Free Territory of Trieste
and its acceotance of the resnonsibilities devolvine uoon it under the same.
Thus 10 oui of II members'of the Security ~ouicii, including al1 5 of its
permanent members, rejected the restrictive interpretation of Article 24 which
had ori-.nallv ken out forward bv 2 members.
It may be appropriate to injeci here a comment which refers to the inter-
vention of the representative of France at the 91st meeting of the Security
Council iust referred 10. He said that the case of Trieste was not one where
the principlc of the sovcreigniy of States, the rule according to whish there
niust he no inicrierence in a couniry's domestic îfl~irsWJS al mke. The sanie
snn, with equal ~ustificjtlon. hesîid of the qucstion uf Namibia where there
does not exkt and never ha; existed any ~tate sovereignty which would stand
between the organs of the international community-in particular at present48 NAMlBlA (SOUTH WEST AFRICA)
the Security Council and the General Assembly of the United Nations-and
the territory and people of Namibia.
The incident to which 1now intend to refer also throws =me light on the
intemretation of Article 24 of the Charter. a circumstance which iustifies t~~
------r---- . ~ ~ ~~s
reference to it, although as to substance it is not in any way connected with
the tvoe of question now before the Court. In Aumst 1951,the Security Coun-
cil Gs dealiug with a question concerning the passage of ships through the
Suez Canal. In contesting the authority of the Council to adopt a resolution
on this subject, the representative of Egypt, speaking at the 553rd meeting of
the Security Council, said, inreralia:
"Althouph we do not want to pretend that the functions and powers of
the Security Council are limited to those specific powers meutioned in
oaraera~h 2 of Article 24 of the Charter. vet we affirm that those oowers
&d dut'iesare limited and should be sthctly regulated and goveied by
the fundamental principles and purposes laid down in Chapter 1 of the
Charter. ~araera~h 2 of Article 24. on the 'functions and nowers' of the
~ecurity ~o&il'reminds us that 'In discharging these dutiésthe Security
Council shall act in accordance with the Purposes and Principles of the
United Nations'. Those Pumoses and Princi~les of the United Nations
are laid down in Chapter 1ofthe Charter; ~rticle 1,paragraph 1,demands
that the adjustment or settlement of intemational disputes should be 'in
conformit; with the principles of justice and inteknational law'. .."
(Securily Council Oficial Records (1951), 553rd meeting, pp. 22-25.)
Thus, a govemment which was opposed to the adoption of a draft resolution
felt it appropriate to admit that the functions and powers of the Security
Council are not limited to those soecific powers mentioned in paragraoh 2
of Article 24, that is the circumstances coming under Chapters VI, v?I, v~II
and XII of the Charter.
While other instances might also be cited, 1 believe the legal opinions and
. -
proceedings just summarized are suficient to illustrate the powers of the Se-
curity Council in the discharge of itsprimary responsibility for the maintenance
of international peace and security. It also permits conclusions to be drawn
r~-ard~~-~the oosition in which the Securitv Council found itse~~ in comection
with thequestlon of Namibia. Repeated aid serious representations were made
to the Security Council both by the General Assembly and by a large number
of member tat te Rs.eardine the details of these reviesentations. Ïwould in-
vite the attention of tg ~ou;t to the detailed survey'contained in'the "Review
of the Proceedings". In particular, the General Assembly, in a number of
resolutions, requested the Security Council to take effective steps to enable
the United Nations to fulfil the responsibilities which it had assumed with
respect to Namibia.
From the documents which were before the Council at its meetings in 1968,
1969 and 1970, it appeared that the General Assembly had decided that the
South African Mandate for Namibia was terminated and that South Africa
had been called-uoon to remove its administration from Namibia. It is clear
that in the circum;tÿnces the Security Council w;is under the obligation to act
and to act prompily and effectivelyas the Charter provides in Article 24.
The action \\hich the Securitv Council took hds full constiiutional iustifica-
tion in Chapters VI and VLiand also in Chapter V, namely in ~rtiile 24 as
interpreted in the light of its text, of its object and purpose, its context in the
Charter as a whole, corroborated hy its legislative history.
1 submit therefore that there can be no doubt that in adopting the relevant ORAL STATEMENT BY MR. STAVROPOULOS 49
resolutions, the Security Council acted within its jurisdiction and with the
effect that South Africa and the other Members of the United Nations are
under the legal obligation to accept and carry out the decisions contained in
these resolutions in accordance with Article 25 of the Charter.
In this connection, the Government of France in ifs written statement has
observed that the relevant Security Council resolutions are recommendations
rather than legally binding decisions under Article 25 of the Charter. The Gov-
ernment of France has drawn attention to the fact that the language used by
the Securitv Council in its resolutions concernine Namibia differs from the
ciar ldngu&c which the Council has used in itr decirions conceming Souihcrn
Rhodcsia, p3rtisularly that in rcgdrd to Souihçrn Rhodesia the languape of
Chanter VIÏ of the Charter has ken used. which is not the case in the decisions
relahng to Namibia. In reply to this argument it can be pointed out that legally
and factually the cases of Southern Rhodesia and of Namibia are fundamen-
tallv differeit. Southern Rhodesia is in law a denendencv of the United Kine-
do; and therefore under the sovereignty of tie unitid Kingdom. To taie
action in regard to a territory which is under the sovereignty of a State Memher
of the ~nited Nations without the consent of that ~tak the determination of
the existence of a threat to the peace, breach of the peaie or act of aggression
was necessary. Namibia, however, is not and has never been under the sover-
eignty of South Africa. As a consequence United Nations organs have powers
in regard to Namibia which they do not have in regard to independent States
or non-self-governing territories which are under the sovereignty of an inde-
nendent State.
Thc Frcn~.hGovernmcnt points out that with one excepiion. namcly opcra-
tive paraprdph 3 of Securii).Council rcsolurion 269(1969).the Securiry Council
has in regard to Namibia used the verb "IO decidc" onlv in relation to ils own
proceduri and not on substantive matters. However, whjlethe Security Council
in ihc resolutions on Namibia did not use the terni "decides", itused a serics
of eauivalent tenns. That the tems are eauivalent is made clear hv the fact
that in operative paragraph 3 of resolution 276 (1970) the ~ouncii declared
that the defiant attitude of South Aïrica towards the Council decisionsunder-
mines the authoritv of the United Nations. and in the fourth ~reambular para-
grdph of resoluiion 283(1970) itnoted uiihgreat cun~.crnthe iontinucd tlakant
refusal of South Africa IO comply u,ith the decisionc of the Security Council
demandine the immediate withdrawai of South Aïrica from the Territorv.
This asp&; of the matter was further elaborated in paragraphs 91 to 97 of the
Secretary-General's written statement.
V. Quesrionsconcerninsthe Legal Basisof GeneralAssemblyResolurion 2145
(XXfJ of27 October 1966
The fifth main topic, MI. President, on which 1wish to present the views of
the Secretary-General to the Court, is concemed with questions raised hy
governments regarding the legal hasis of General Assembly resolution 2145
(XXi) of 27 October 1966. As it will be recalled, this was the resolution by
which the General Assembly decided, inrer aliathat the Mandate for South
West Africa was terminated and the Territory was declared to be under the
direct responsibility of the United Nations. The validity and effect of the
resolution has been challenged in two of the written statements presented to
the Court.
While the grounds advanced for such challenge, and the replies thereto, are
not easily susceptible of clear-cut classification, 1 intend to deal with them, ingeneral terms, under the following headings: first, the bases for General
Assembly action; second, the competence of the General Assembly; third,
confirmation of General Assembly action by the Security Council; and fourth,
the basic principle of law applicable to this case.Finally, 1 shall treat separately
certain observationsmade by the Govemment of France in itswritten statement
to the Court.
(a) Basesfor General Assembly Action
The GeneralAssembly has had, under the relevant international instruments,
several distinct roles in regard to Namibia, and the action which it took in
this instance finds its bases in al1 these roles taken either individually or to-
gether. To enumerate only some of these roles, the General Assembly acted:
in its capacity as the supe~isory authority for the Mandate for South West
Africa;
as a party in the contractual relîtionship arising froni the Mandate;
as the sole organ of the internation~l community rcsponsible for ensuring the
fulfilment of the obligations and sacredtrust assumedin respect of the people
and territory of Namibia;
as the organ primarily concerned with Non-Self-Governing and Trust Terri-
torier;
asthe organ authorized, by Article 13of the Charter, to makc recornniendaiions
for ihe purpose of assisting in the realiwtion of hunian rights and fundamen-
ta1freedoms for all. without distinction as to race, \ex, Iînguage or religion;
as ihe organ of the linited Nations which is authori7ed. by Ariiclc 10 of the
Charter, 10 make recommcndstion~ tu the Membcrs of the United Salions,
or to the Security Council, or to both. on any questions or any matters within
the scibpeof the charter: and astheorgan which may make recommcndations,
under Article II of the Charter. with regard to any qucsiion relaiing to the
maintenance of international peace and security to the State or States con-
cerned, or to the Security Council, or to botb.
(b) Cornpetenceof the General Assembly
To turn now to the question of the comnetence of the General Assemblv. 1
would firjt obser\<ethac. io the extent thït ;esolution 2145 (XXI) ras adopted
by the Cicneral Asiemhly a, the wpervisory üuthority and as a pxty in the
contraciu~l relationship \\,ith South Africa arisiny froiii the Mandate, the
resolution is constitutiondlly valid on its own and therefore legally eiTective.
Furthemore, rhen the General Assembly decided that the Mandate was ter-
minated. and that SouthAfrica had no other right to administer the Territorv.
IImade a statement which. in addition to 11sdi~po~itivecharacier, wüs also of
a declaratory nature. One hundred and fourtecn Menibers of the Gcnerÿl
Assemblv. iiho voted for re~olution 2145 iXXn. and .he three member Gov-
ernments th31 abstained on the resolution, uere al1 tigrecd ihai South hFrica
had fîilçd to fulfil iisobligationin respectoftheadministraiion oFthcTcrriiory
and its obligations to ensure the inoral and material well-being and security
of the indigénous inhabitanti. and thît ithad in fîct diwvor~ed~the hlanddté.
Under thesecircumstances, ilwascleîrly incumbent upon theGeneral Assenibly
not to remain silent, and to declare what in fact and in law was manifest.
The General Assembly is also the principal organ of the United Nations
which has responsibilities towards the people and Territory of Namibia. As
stated in paragraph 41 of the Secretary-General's written statement, in the
absenceof any intervening sovereignjurisdiction betweentheGeneral Assembly ORAL STATEMENT BY MR. STAVROPOULOS 51
and the people and Territory of Namibia, no govemmental authority exists
other than the General Assemblv. and the Securitv Council, havina the com-
petïnce to intcrpret and apply to ~amibta the intern3tional obligatÏons u,hich
are ouing to the latter undcr the Charter of the United Nations and the former
mandates svstem
The fact ihat, broadly speaking, the General Assembly's activities are mainly
of a recommendatory character, does not mean that the General Assembly
cannot act in a situation in which it is a.oar.v to a contractual relationshinin
itcapaiity assuch a Party; nor does itman thai. in regard to aterritory ii,hich
isïn tntcrnation~l responsibility and in regard to which no State sovereignty
intewenes between the General ~ssembl~and the territory, the GeneralÏ~s-
sembly should not be able to act as it did by resolution 2145 (XXI).
in this connection, it may be observed that during the past 25 years, a vast
variety of actions and initiatives of the United Nations, in the fulfilment of the
Purposes and Principles of the Charter, have found expression in General
Assembly resolutions, adopted in the general context of Chapter IV of the
Charter. These resolutions have conferred on various subsidiarv.oraa.s a vast
range of operational functions. To cite but a few examples, the resolutions
havc included thosc appolnting 3 United Nations Mediaior (General Aswmhly
resoluiion 186 (S-2)of 14 May 1948).and United Nations Plehiscite Comniis-
\toners (in 'fogoland undcr L'nited Kingdoni adniinistration, seeGeneral Ai-
senibly rcs<~lutioti944 (X), of 15 Dccetilkr 1955; in Caincroons under United
Kingdoni administration, see General Assembly resolution 1350 (XIIT). of
13Marih 1959, PI .seq.in \Vestcrn sa mu^, see General Asremhly resolution
1569(XV), of 181)eicmkr 1960); those establishing United Nations Commis-
sions(in Libva. seeGeneral Asseniblv resoluiion 289iIV) of 21 Novenibcr 1949:
in ~rctrea, see'~eneral Assembly résolution 289 (~V),'of 21 November 1949
and 390 (V) of 2 December 1950)and Tribunals (in Libya, seeGeneral Assem-
blv resolution 388 (V) of 15 December 1950: in Eritrea. seeGeneral Assemblv
re;oliitton530 (~n'of 29 Janwry 1952.Article XI): for Lihya and Eritrea and
a Comniission and Comniissiuners for I<uanda Urundi (Ciencra1 Assembly
resoluttons 1579(X\'), of 20 December 1960and 1605(XV) of 21 April 1961):
and those ~tting up executive orean5 such as the United Nations Relacf and
M'ork5 Agency (Gener~l A,sembly reiolution 302 (IV) of 8 Decemixr 1949):
the ~nited ~ations Korean Reconstruction Aeencv (General Assemblv resolu-
tion 410 (V) of IDecember 1950); the unitid aii ion Hsigh ~ommissioner
for Refugees (General Assembly resolution 428 (V) of 14 December 1950);
the United Nations Emergency International Force (General Assembly resolu-
tion 1000 (ES-I) of 5 November 1956, seealso General Assembly resolutions
998 (ES-1), IO01 (ES-I), 1121 (Xi), 1122 (X9 and 1126 (XI)) and the United
Nations ooeration for the clearance of the Suez Canal (General Assembl~
resolution'l 121(Xi) of 24 Noveiiiber 1956). In additi<in. the General Assenibl;
authorized the transfer of the adminirtr~tion of the rcrritciry of West New
Guinca West Irian to the United Nations Tempi)rary Cxecutivc Authority, to
k e>r.ihlished by ;tnd undcr the jurirdrciti>n of ihe Sccrewry-Cicnerül. and with
full authority 10 adniin~ster the Territory (Cenerd Asscmbly resolution 1752
The legdlity of these, and numerous other actions and initiatives of the
General Arsembly, did not depend upon the existence of a prccire textual
nrovision in Cha~ter I\'of the Charter. "riwiding foreïch wsc. For the General
~ssembly is the compctent orgdn of the united~ations to act in the name of
the Iatter in a wide rdngc of matten, and in these instances it is the United
Nations itself which is acting. This is especinlly so conarning ewnomic, socialand tmsteeship matters, non-self-governing territories, administration and
hance, and action required under the United Nations Charter not coming
within the special competence of the Security Council.
If, with reference to some of the above exemples, it should be pointed out
that theseinitiatives weretaken with theconsent of the Statesin whosesovereinn
jurisdiction the intended action was 10 be takcn, 1would reply by emphasii.i&
that therc un be no absence ofsuch consent in the case of Namibia. For in the
first place, Namibia has nevcr ken within the so\.ereign jurisdiciion of South
Africa, and moreover, the Unitcd Nations did no1 decidc upcinany unilateril
action in Namibia uniil South Afriça's former right to be prcseni in the Tcrri-
tory had been legally forfciied, and the Mündatc had been terminated.
Thisir not ihefirst instance where the Gcncral Assembly has taken action to
declare the terminationof a mandate. Ircfcr, in thisconnection, Io the Palestine
Mandate.
In spite of al1 the fundamental legal and political differences between the
Mandate for Palestine-including the fact that il was referred to the General
Assemblv bv the Mandatom-and the Mandate for South West Africa. the
proceedi&Lof the Genera<Assembly at its first special session, its s-nd
regular session and its second soecial session, in 1947and 1948,constitute an
authoritative orecedent for the orooosition that iurisdiction to declare a
mandate terminated vests in the Geneiai Assembly. ~owever controvenial the
Palestine question and the resolution eventually adopted (General Assembly
resolutionl81 A (II)). there was unanimitv amone:thehlembers of the General
Assembly that il u&kiihin the ~ssembl;'~ powcrs not only to decide thai the
Mandate for Palestine should k icrminated but also to rewmmend a solution
which was not acceotable to the Mandatom Power. (Proceedinm of the first
special session, thesecond regular session,-second skial session, report of
UNSCOP, A/364; General Assembly resolution 181A (II).)
It is of interest to note that the Union of South Africa was among those
Members of the United Nations which voted, on 29 November 1947,for the
plan of partition of Palestine with economic union (document AIPV. 128).and
that at the second svecial session of the General Assemblv the reoresentative of
South Airica rmlléd thlit his delegalion had supported ihe niakrity report of
the United Nations Commission oii Palestine and had voied in the Assembly
for the plan. The representative of South Africa added that his Government
adhered to the attitude that partition with economic union remained the only
practical solution. He expressed his regret that it had proved impossible to
implement that plan peacefully. (Statement in the 126th meeting of the First
Committee at the second special session, 26 April 1948. Oficial Recordsof the
SecondSpecialSessionof the General Assembly V,ol. II, p. 92.)
(c) Confirmarionof GeneralAssemblyActionbyrheSecurity Council
1turn now to the question of confirmation of General Assembly action by the
Securitv Council. In this context.1should like to recall that. under Article 11.
paragraph 2,oftheCharter, the G=nerülAssemblymayrcferqucstionson which
actionisne<xrslirytotheSecurity Council The Assemblydidso in ihecaseof the
termination of the Palestine an date to which 1have iust referred. In adodinn
the plan of partition with economic union, in resilution 181 A (Il) of 25
November 1947,the General Assembly was aware of the fact that it could not
bv itself imolement the olan contained in the recommendation which it was
adopting. 1i therefore addressed itself to the Security Council, and asked for
the Council's assistance. It requested that the Security Council take the nm-
sary measures, as provided for-inthe plan for its implementation. The General ORAL STATEMENTBY MR. STAVROPOULDS 53
Assembly further asked the Sccurity Council to consider whethcr the situation
in Palestine constituted a thrut to the Face, and 10determine asathreat tothe
peace, breach of the peace or act of aggression any attempt to alter by forcethe
settlement envisaged by the General Assembly's resolution. For present
purposes it is not relevant that, owing to disagreement between permanent
members of the Securitv Council, the Council did not in fact accede to the ~
requests addressed to it by the ~eneral Assembly in regard to Palestine.
When the General Assembly, in 1966,adopted the resolution declarina that
the Mandate for Namibiawasterminated, it proceeded in a way similar to that
which the Assembly had adopted in 1947,in regard to the termioation of the
Mandate for Palestine. By resolutions 2325 (XX11)of 1967; 2372 (XXII) of
1968; 2403 (XXIII) of 1968 and 2498 (XXIV) of 1969, the Assembly also
called for the support of the Security Council as its "secular am". In this
instance, the Security Council not only gave its support but also endorsed the
Assemblv's decisions. For example. bv its resolution 264 (1969) the Securitv
Councilrecogni7ed the terminalion O-fthe Mandate and ~hc&sumption O-f
direct responsibility for the Territory by the Gencrul Assembly; stated that the
continued presence of South Africa in Namibia was illegal: and called uoon
the Govemmcnt of South Africa to wiihdraw imrnediat~y iis administraiion
from the Terriiory. The Sccurity Council furthcr reiierated iis endorsement of
the General Assemblv decivons bv ils resolutions 269 (1969). 276 (1970) and
283(1970,. To the ex& rhït ~eniral Assembly resoluiion 2145(XXI) mi). be
considered a rewmmcndation to the Security Council, itbecame fully etïective
upon itsendorsement bythe Council.
It may be recalled that of the two States, South Africa and Portugal, casting
negative votes on resolution 2145 (XXI), the latter advanced as one of its
areuments that the resolution went bevond the cornoetence of the General
~Gembly, that under the Charter, the ~écwit~~ouncij is the decision-making
organ. Whatever legal questions one may have had conceming the riaht of the
General Assemblvto act alone. or the rieht of the Securitv C.uniil~~~~~~-~~
alone-and 1 mu& emphasize that in the view of the Secretary-General there
can beno doubts on this point-it cannot be denied that the combined action
of both principal organs with respect to Namibia is effective beyond any
constitutional or legalchallenge.
(d) Basic Principleof Low Applicable Iothe Case
1 now corne to what 1consider to be the most fundamental point underlying
the legal basis for General Assembly resolution 2145 WXI), namely that, as
this Court has previously stated in 1950and reaffirmed in its 1962Judgment,
to retain the rights derived from the Mandate and to deny the obligations
thereundercannot bejustified.
In the earlier adviso. .oroceedi-.s. in the contentious ~roceedinm and aeain
in the current proceedings, a considerable amount of argument has &en
devoted to the legal character of the relationship between South Africa and
Namibia and between South Africa and the international communitv. the
latter represcntcd by the League of Nations and subsequently by the United
Nations. Thequestion has ken argued whether the relationship waswntractual
or in rem. or both. and which nrinci~les of interoretation are tbe aoolied in
order to &ive at a correct legal evaiuation of thésituation as it existécibefore
1945,between 1946,and 1966and alter 1966.It is submitted that the attempts
atleaalclassificationwhic have beenmade over decades.with somuchineenuitv.
are khaps notas important for the correct answering'of the question ihich;s
now before the Court as would appear at iïrst sight. Whether the relationship between South Africa and the international
communitv is wntractual. or the result of the establishment of an obiective
situation, or hoth, or whether it is a relationship sui generis which has no
parallel in other fields of international law or in other geographical locations
~ ~ ~ ~t~rical situations. it is neverthelcss a-verned hy certain fundamental
principles which apply in.every legal system, including international law. One
of those principles is the proposition that in any bilateral relationship or, for
that m--~~~~~.n aov multilateral relationshio. .. .tv wh-ch disowns its own
obligations flowing from the relationship, or a party which does not fulfil the
obligations incumbent uoon it and arising from the relationship, cannot be
rccob.nizcd3s retûining thé righis\rhich itcLims to derivc from therc~ïtionshi~.
This is a principle which is nor rcstrictcd tu the law of tredties. Ir u,ould be
a..licablc cvcn if. conrrsry to the lindings of the Court in its 1962Jud&mcnt
-which isresjudhra vis-à-vis South ~f"ca-one would assert that the~an-
date was not, in July 1966,a treaty or aconvention in force.
In connection with this proposition, that is the right of the wronged party to
---~--~e ~n~laterallv.the relationshio...ord McNair has said: "... the mo~e ~
elenicnrary a proposition is, the more ditlicultitoftcn istocitc judicial nuihoriiy
for if" (Laii O/7rearie.s.1961, p. 554). Houever, therc arc nlso other auihoritn-
tive pr6noun&nents supporting this proposition. Thus, Judge Anzilotti said
in his dissenting opinion in the case concerning Diversionof Warerfrom the
River Meuse(Series AIB, No. 70, 1937, p.4 at p. 50): "1 am convinced that the
principle underlying this suhmission (inadimplenrinonestudimplendnm) isso
just, so equitahle, sa universally recognized, that it must he recognized in
international relations also. In any case it is one of those 'general principles of
-~~ recoenized hv civilized nations' which the Court aoolies in virtue of Article
38 of its statute.;' More recently, Sir Humphrey ~aldkk, as Special Rappor-
teur on the Law of Treaties of the International Law Commission, expressed
the idea in the following terms: "Nor is it easy to see how the rule could be
othenvise, since good sense and equity rebel at the idca of a State being held
to the performance of its obligations under a treaty which the other contracting
party is refusing to respect ..." (1963 Yearbook of the International Law
Cornmissio~ V~ol. II, p. 73,Znd report on the Law of Treaties, document A/CN.
41156and Add. 1-3).
'The principle applics. of coursc. no1only in the rclaiionships beiueen Siutes,
bui ïlsuuhçnoncofthep3rticip3nrs 1snot a Siarc but an inrernniional orgsni~a-
tion. in whatever cap.city.it may he involved
To Ilusrr.itc the gencrality of ihc principlenon <rdi~lr,>~p lu»~rJI oilin~ple»-
dum, rcfcrcncc c3n he niadc to the scpïrntc opinion uf Judgc ad hoc van Wyk
whoin 1966implicd (1 C.J. Repurrs1966, p.6 nt p. 117,fuutnotc No. 1.and ai
p. 138,footnotc No. 1). without dcciding ihc question. that 3 Siatc Mcmber of
the United Sarions might k cniitled to refuse to comply wiih the rcporiing
~rovisions of Chaoter XI of the Chancr, u,hcn United Saiions oreans disregard
ihe provisions of the Charter in a way which amounts to théir breach or
repudiation hy the United Nations. Judge ad hoc van Wyk was prepared to
entertain the argument that the breach or repudiation of a provision bv a
United Nations &an entitles a member State akected thereby torepudiate &en
provisions of the Charter of the United Nations.
It is hardlv necessary to corroborate Judge Anzilotti's statement that non
udrmplrorino" es,aditn~1~11dt ~))a general p%ncipleof law of the menibcrs of
ihcinternation31 comniunity. Iisufficesto mention thar ihc French Code Civil,
in Article 1184.makes the violation of the contract by one of the parties an
implied condition suhsequent, that is, a condirionrésoiutaire of evej synallag- ORALSTATEMENT BY MR. STAVROPOULOS 55
matic contract. The wronged party hasthe right either Io enforce the execution
of the contract or to demand its resolutionand Io claim damages.
In the common law, when one party Io a wntract totally or substantially
fails to oerform what he has oromised. or renounces his liabilities under it. the
othcr pirty m3y claini to be releïsed irom his obligations. In 3 field of thclaw
of common law countries iihich is most comparable Io the legal relationship
created hy the mandates under Article 22 of the Cnvcnünt of the League of
Nations. il is uell establishcd ihat a trustcecan be rcmoved for breach of trust,
and a guardian for neglect of dulies or violation of his obltg3tions.
It has beenclaimed that the oarties instrumental in the establishment of the
South Alrian Mandate for ~o'uth West Afriw did not contemplate the con-
tingcncy thÿt the Leïguc of Nations might 31 somç stagc cease IO eist. The
assumution that the dissolurion of the Learue of Nations u,asnot considerd a
possibility in 1919 or 1920may or may no1 be correct. Certainly no1 correct,
however, is the conclusion drawn from this assumed fact that, when an event
which was not foreseen by the parties occurs, one party might retain al1 the
assetswhich it hasacquired by the transaction, while al the same lime il would
be free from the obligations which represented ils consideration for the rights
deriving from the transaction.
No Gnon of interpretation which leads 10 so absurd and incquitable a con-
clusion wn be correct. Ir1snot necesvry to have recoune to what has been
called the "necessity araument" to avoid arriving at so ineauitable a result. If.
as has beenclaimed ov& the decades,the an da tepsed with the dissolution
of the League of Nations, and if reporting Io the Council of the League of
Nations had become imnossible and reoortinr to the United Nations was
declîred not acceptable to South Africa. ihen a-logical and cquitablc solution
ivould have bcen 10find that the Mandate had terminïtcd and that South Africa
had lnst itsright toadministerand to remain in the Territory.
Instead of finding as early as 1950 that, as a consequence of ils own claim
that the Mandate had lapsed, South Africa had los1 any right ta administer
South West Africa. this Court in that vear found a solution involvinn a less
radical change in the srutus quo. This solution had the effect of savin; South
Africa's right Io be in the Territory, subject Io the obligations that il would
continue to report on its conduct of the Mandate to an international authority
to the latter's satisfaction.
The Advisory Opinion of 1950 has been criticized as king '3udicial legisla-
tion". If the Advisorv.Oo.nion amounted to "iudicial lenis-ation". then it was
judisiül Icgislstiun in Fü\our of South Africa, the only Iegal alternïtii'e Io the
Court's findings having bcen to declarc what the Ciencra1Aswmbly declïred
16vears later. namely th31 the Mandate u,asterminated and that South Africa
had los1 any right toremain in South West Africa and ta administer the Ter-
ritory.
One point that has ken emphasized in the South African written statement is
the assertion that "certain new facts" have ken discovered which, had they
ken known to the Court in 1950, would have led the Court to different con-
clusions from those actuallv oronounced inthe Advisori Odnion of that year.
Inits 1962Judgment. the court rcjected this contention b). South ~frica, and
stîted th31 the unanimaus niling of the Coun in 1950continucd Io reflect the
Court's opinion. The Court îdded that nothing had sinceoccurred which ivould
u,arrant the Court reconsidcring il. 1\11important Tactswere stated or rcferred
in in the proceedings before the Court in 1950(I.C.J. Kt~por1.Y1962.p. 319 al
p. 334).
In his dissenting opinion in 1966, Judge Jessup dealt in considerable detailwith these alleged "new facts" and wncluded that it was apparent that there
was nothinn in this armiment wncernina "new facts" to induce the Cour~ ~ ~ ~ ~
alter decisiins about i<e international si~usof south West Afnca which ithad
reached ïfter full argument and full dclihcration (I.C.JRrporrr 1966, p. 4 at
no. 339-351,. 1need onlv add that had thcse "new facts" ken such as IO lead
ihe &&t, & South Afnca contends, to the wnclusion that the Mandate did
not survive the demise ofthe League the result, for the reasons 1havejust given,
would have been the 10%of any right on the part of South Africa to remain in
the Territos'.
(e) Observations ofFrance Regarding GeneraA l ssemblyResolufion2145 (XXI)
Finülly, in thisponion of ihe present statemeni, 1would like to refer to some
of the wriiten observations submitted by the Government of France, regarding
Genernl Assembly resolution 2145 (XXI). The Governmeni has observcd ihiit,
in order10 teminate South Africa's Mandate. the resolution bsed itself upon
contravention by South Africa of the pnnciples of ihe Mandatc. the principles
of the Chuter. the Universal Declaration of Humon Rirhtsand the Declaration
on the ~ranting of Independence to Colonial ~ountries and Peoples. The
Government agrees that the South African Government has systematically
contravened the nom of the Universal Declaration of Human Riehts. the
principles of the Charter and the obligations imposed by the ~an&te.'~he
French Government doubts, however,whether the sanction to be visited onthis
proven breach can in facbe that selected by the General Assembly, namely the
withdrawal of the Mandate.
This observation appears, however, to be based on a misconception of the
nature of the United Nations action in this case. The decision that the Mandate
was terminated and that South Africa should withdraw from the Territory was
not taken for the purpose of imposing a punitive sanctioagainst South Africa,
but to safeguard and protect the rights of the people of Namibia-most
importantly their right to independence at the earliest possible opportunity.
The decision was not therefore a sanction but an exercise of rights on the bases
which I have iust elabnrated.
Leavingaside this, in my opinion, erroneous viewof the nature of theGeneral
Assemblv decision. 1should like to refer to thecomment of the Government of
France that theUniversal Declaration of Human Kights does not uf itself bind
States and is no1of the nature of treaty law. It is no1necerFiiryin thiscontext to
express an opinion on the consequences of the fact that the UniversalDeclara-
lion of Human Rights is not technically speaking a treaty, oron the view that
it is not of itself binding on Statesin general. Even if this should be soasnd
representative of the Secretary-General 1do not have to express an opinion on
this question in the present wntext-it does not follow that the Universal
Declaration of Human Rights, and also similar declarations, are legally
irrelevant in regard to the evaluation, not of the action of a sovereign State in
ils own territory, but in regard to the administration of a territory by a manda-
tory that had undertaken to act on khalf of the international wmmunity in
promoting to the utmost the material and moral well-being and the social
progress of the inhabitants of the territory. If would seem that a mandatory
which, according ta a decision supported by the votes of 114States Memkrs of
the United Nations, has failed to observe the ~>rovisionsof the Universal
Declar3tion in ils administration of the Mandate. &nnot beconsidercd to ha\,e
promoted IOthe utmost the maierial and moral well-king of the inhabitants.
With respect to the obligations under the hlandate. the Government of
France has stated that theoven n of netLeague of Nations did not wnfer on ORAL STATEMENT BV MU. STAVROPOULOS 57
the Council of the League the poucr IO terminate a mandate for misconduci of
the mandatory. 1haveearlier rcferrrd to "the gcneral principleoflaw rccognized
bv ci\,ili7ed nations". that he who does not comoly with his obliaations is not
e~titled toenforce the rights arising from the same transaction This principle
uould, in the view of the Secrctary-General, have applied to a situation arising
during the life-time of the Leaaue involving material and persistent violations
of theobligations of amandat'ry powîr. &il nppliesequalb. now.
The French Government further denies thai the Gencral Asscmbly had the
right to terminaie the Mandate because of South Africa's brcachcs of the prin-
ciples of the Charger. In this regard, the Government refsn to Article 6 of the
Charter u,hich provides îsanction-namely expulsion from the Organization-
for persisicnt violationof the principles of the Chuter. Bui, as 1have already
stated, the dccision of the General Assembly wasnever inicnded Io bea punitive
measureagninst SouthAfrica,such asthat mentioned inAniclc6of thecharter.
The fact that the Charter ~rovides for suecific sanctions is in no wav relevant
IOthe Gencral ~ssembly'sdccision. It may bcnoted, however. that the written
statenient of France expressly confirms the Government's agreement with the
General Assembly's conclusion that South Africa has committed serious inter-
nationally wrongful acts. From this it legally follows that South Africa is
responsible for these acts and one of its resulting obligations is to desist from
continuing the wrongful act and, in the specific case, to remove its administra-
tion from Namibia.
VI. The Question Whether South Africa Hos a Right to Remain in Namibia
Independentlyof the Mondate
The auestion whether South Africa has a riaht to remain in Namibia indeoen-
dently of the Mandate is, Mr. Prcsideni, the &th topic on which the ~ccrekry-
General wishcs me IO express his \,iews to the Court.It hds been clainied by
South Africa, in the various nrocpedines before this Court and in the Gcncrdl
Assembly, & well as by ~udge ad hoc ;an Wyk in his separate opinion in the
second phase of the South WestAfrica cases, that the Mandate is not the basis
for South Africa king in Namibia. In this respect, Iwo principal contentions
have been advanced: first, that South Africa is in South West Africa as a
consequence of the conquest of the Temtory during the First World War, and
second, that South Africa by atquisitive prescription has acquired sovereignty
over South West Africa. 1shall deal separately with these two contentions.
(a) C/oimtoAcquisitionby Conquest
The claim to acquisition by conquest has ken answered in the dissenting
opinion of Judge Jessup in 1966 (I.C.J. Reports 1966,p. 6 at pp. 418 and 419).
1 do not think that it is necessarv to add to what Judge Jessuo said. bevond
summarizing his remarks. No d~h~lo~ioof ~ermany b) South ~irica took place
in World War 1: Souih Africa did not conqucr the whole of the territory of
Germanv: in the Pcace Treatv of Versailles. Germanv did no1cede Souih West
Africa IO South Africn ~oreover, as rncntioned IIIthe Secretary-Generdl's
written statement (see pua. 20), by assunung the re~ponsibilitiesof the Manda-
tow. South Africa therebv acceoted the oremises on which the Mandate was
foinded and ~'3sthus precludéd from Claiming any territorial or sovereign
rights, in respect of South West Africa, inconsistent with the Mandateor arising
from events antecedingitscreation.58 NAMlBlA (SOUTHWEST AFRICA)
(b) Claim to Acqrrisitionby AcquisifivePrescription
1 turn now to the second contention, the claim of South Africa to have
acquired sovereignty ovcr N~mibia by asquisilive prescription, that is through
continuous and uridisturkd cxcrcisc ofsovereignty over 3 long period of iimc.
This claini is com~)lciely unfounded. The concept of aiquisition of sovercigniy
hy prescription 1s;iconcept of Roman Iau \\,hich hasoccasionally bcen rccei\cd
into international law. Thc Koman law or acquisition of the right or ownership
bv orescriotion-usuca~io-reauires long possession with animusdomini. that
isiossessi& with the conviction that onepossesses as the owner. In order to
lead to the acquisition of ownership, the possession onimodomiirimust have
been legally acquired. There must be a iusta causapossessionisa , iusrustitulus
and bona fides. The requirement of good faith, in this context, not only means
that the penon concerned must have acted in good faith in general. It also
means in this particular situation, as a condition for the usucapio,that the
possessor must have bona fide believed throughout the possession that the
thing was his. None of those requirements are complied with in the case of
South Africa's relationship to Namibia. A possessor who holds a thing which
was entrusted to him can under no circumstances claim acquisition of owner-
ship by usucapio.South Africa was not in possessionof Namibia as its owner,
but as a Mandatory. She could not believe, and did not believe, that she was
holdingNamibia as ils sovereign.
It is also obvious that, in the years since 1946, South Africa could not have
acauired sovereientv over Namibia bv acauisitive orescription. It is true that
~o;th Africa re;;tkdly made the claini that the ~~ndïtc.had Iapsed with the
dissolution ofthe I.eagucof Sations. Apiirt from thc fact ihût Suuih Africa also
occasionallv recocnized the continued existence of the Mandate. and ~romised
th31 11(vould conÏinue tu üdniinister the Tcrritory in the spirit of the ilsndate,
it must kzaidthai the unilateral de:hrationthat the Mandate had lapsedsould
not have given to South Africa a iusrrrstitr~lusto rovern Namibia animodomini.
d or couli it k said that. betwcen 1946and 1966.South Alrira hïd the spesifi-
cïlly qualifierl bona fides u,hich is the iùndiiifor thc acquisiiion of propeny
by acquisitiveprescription.
South Africa's claim that the Mandate has lapsed was never accepted by any
international authority or by any other State. On the contrary, the record
shows that South Africa's claim was consistently opposed in proceedings of
political organs and kfore the InternationalCourt of Justice. These facts alone
disprove any attempt at claiming bona fides within the specific meaning of the
rules of usucapio.In the light of the Advisory Opinion of 1950,when the Court
held that the Mandate hadnot lapsed and that SouthAfrica's obligations under
the Mandate continued, it would be manifestly absurd to claim that South
Africa was in good faith, namely that she was bona fide believing that she was
the sovereign of Namibia. In the light of what happened over so many years,
bothwithinandoutsidetheUnited Nationsand beforethecourt, it isimpossible
to claim that South Africa was in continuous and undisturkd exercise of
sovereignty over Namibia.
VI[. The Question of Material Breachesby Sourh Africa of ifs Obligations
reaardingNamibia
With your permission, Mr. President, 1would now like to turn briefiy to the
seventh topic forming part of this oral statement, namely the question of
material breachesby South Africa of its obligations regarding Namibia. ORALSTATEMEN T Y MR.STAVROPOULOS 59
Aspointed out earlierin thisstatement, South Africa'sclaim to havepromoted
the material and moral well-king, and the social progress of the inhabitants
of the Territory, is based solely upon a unilateral detemination by South
Africa as to what constitutes well-king and social vrocress. and. hv wav of
c.vdmplc. isapplircntly not atfccted by a denial to the m&ritof iheinhabi<ants
OCbasic humlin rightç and fundamenial frccdorns, such as equlility bcforc the
law and economic, social, cultural, civil andpolitical rights.
Such a claim by South Africa, however, could not provide any basis for
judging compliance with the international obligations which are owing, unless
it were itself hased on a valid inter~retation of those obligations within the
mraning of the internaiional rcl~tionship under which ~amibia has beenad-
ministered. Sucha valid interpreiation has beene.~prcsscdin succcssire Grneriil
Assembly resolutions. in conlormity vith the tcrrns of the Mandate, the United
Nations Charter and gcncnilly cstablished prinsiples of international I3w. 11is
rhercforc ivith referenccIOihcsc criteria-ivhich require, i~iu,rolio,nothing lcss
than cquiil rights for al1the inhabitants of Namibia, asucll asfull respectfor the
status and integrity of the Territory-thai the lcgality of the acts of the South
African adminisiraiion must hcevdlwtcd.
This question has been investigated and considered repeatedly in various
organs of the United Nations, particularly by the General Assembly and a
series of its suhsidiary bodies, and by the Security Council in the course of its
consideration of the auestion of Namibia in 1968, 1969and 1970.The findine
of the iwo principal organs on this question are reiordcd in their resolutio&
and in the procccdings \\,hich led up to thcm. Thcs h3i.e ken examincd hy the
Secretary-General, inter alia, in his writteo statement and in the document
entitled "Review of the Proceedings".
In the General Assembly and in the Security Council there has been agree-
ment on the basic questions of fact and also on most of the questions of law
relevant to the administration of Namibia by South Africa and in regard to the
consequencesto k drawn from the findings. Thus, at the Twenty-first Session
of the General Assembly, there was agreement among the 114 delegations
which voted for General Assembly resolution 2145 (XXI) and the three delega-
tions which ahstained on that resolution on the reaffirmation of the Territory's
international status; the fact that South Africahad failed to fulfil its obligations
and had disavowed the Mandate; that the Mandate was teminated and that
South Africa had no other right to administer the Territory.
In six resolutions adopted in 1968, 1969and 1970, the Security Council also
recognized, interalia, that the Mandate had been terminated. The Council
ruled that the continued presenceof South Africa in Namihia was illegal, called
uoon South Africa to withdraw its administration from the Territow and
sironpl) condcmncd South Africï for ils refusal to do so. 1do no1 belieie ihat
the Secrctary-Gencral hss to add anything to this unaniniity and, in certain
respects, quasi-unanimity of the international community as expressed in the
proceedings and the decisions of the General Assembly and of the Security
Council, except perhaps to mention that essential facts concerning South
Africa's violations of her internationalobligationsin resoect of Namibia are set
out in publishcd and undisputcd icxts of ~ouih ~frican.legislaiion and regula-
tions which have had thcclTccr. inlernlia, ofdenying basic rightstoa majority of
the inhabitants of the Territory.60 NAMIBIA (SO~H WBT AFRICA)
VIII. The Legal Consequencesof rhe Continned Presence M Namibia of
sourh Africa
Before presenting the concluding observations of the Secretary-General,
MI. President, 1wish to refer in the briefest terms to what is, in fact, the actuai
auestion kfore the Court. namelv the leaal conseauences of the continued
iresencc of Souih Africa i;i~smibia. In Yhisconnection, I irould recall the
remarks made ai the ouisct of this oral siatcnieni, whcn I invitsd ihc attention
of the Court to Parl III, paragraphs 106to 109,and to Parl IV of the Secreiary-
Gcncral's written statemeni, u,hich deal witli this question. The Iegnl consc-
quenccs involvcd hîvc IO be considcred in rclation first to South Africa and
secondly 10other States.
(a) Legol Consequencesfor South Afiico
In paragraphs 106to 109of his written statement, the Secretary-General has
oointed out that South Africa's continued oresence in Namibia constitutes an
iniernationally wrongful act. In spire of the termination of the Mandate and
of thereprated callsupon iisCovernment to remove itsadminisiration from the
Territorv. Souih Afriça has continucd its nrcscnce in Namibiü. For this intcr-
national& wrongful act it kars international responsibility and one of the
primary consequences which flows from this fact is South Africa's obligation
to discontinue committine that internationallv wronaful act and to remove its
administration from the Tenitory. South Africa hasiiolated and continues to
violate its obligations under the Charter, provisions of international law, the
obliaations arisina frorn its soecific undertakina as a former Mandatow Power
and-11scommitrnc~iiito acccl>iand to carry oui,-in ac~.orducc with the chmer.
the dccisions of the Sccurity Council The obligation of South Africa Io rcmo\c
itsadministration from thel'erritory is,however, not the only legalconsequence
of South Africa's continued presence in Namibia. South Africa has incurred,
and as long as it remains in the Territory will continue to incur, international
responsibility both under the United Nations Charter and also under the
general rules of international law conceming State responsibility.
(b) Legal Consequencesfor Ofher State~
While for South Africa the lea-l conseauences of ils continued mesence flow
from the faci that itis continumg to commit an inicrnationally wrongful act
for ivhich it is rcsponsiblc, the lcgal conscqucnccs for Stalcs other thm South
Africa consist in their oblieation not to recoenize this internationallv wronriful
aci. Thcy also consist inthiir obligation tocs-operate aiih the ~nitéd liti ion^
in the action ithas iaken, and continues to take, in cndeavouring to safeguard
the riahts. includina the rieht of self-determinniion. of the DcoDlrof Namihia as
the inhabitants of a terrytory having inleinational statüs. Long the legal
consequences for States, other than South Africa, is their obligation no1 to
recognize in any way South Africa as the territorial authority for the Territory
and not to maintain, in so far as Namibia is concerned, diplomatic, consular or
other relations with South Africa.
In conclusion on this ooint. the further and more extensive duties of States
u,hich flou,from the illeial situation crcated hy thc South African presenre, and
the resulting rneasurcs decided upon by the Saurity Council, arc examined in
grenier delail in Darawranhs 110 to 148 of ihc Secreiary-General's wriiten
Statement. 1shall iot thetefore dwell upon them in this statement. ORAL STATEMENT BY MR. STAVROPOULOS 61
Mr. President, Ihave now reached the stage of the concluding remarks which
the Secretw-General wishes me to place bcfore ihis hiahest ofall international
trihunals.the principal judicial organ of the United h'azons. [shall not endeav-
our to summarize each and every point uhich Ihave made in the course of this
statement. but will onlv indicate what amears to the Secretarv-General to be
thecorrect position on some of the main~ssues which ha\.e kén raised. These
remîrks are no1intended in any vay to bc formal suhniissions and arc tendered
onlv for the assistance and information of the Court.
~irst, the Secretary-General believesthat there is no merit in thecontentions
which have ken advanced'against the Court rendering an advisory opinion in
this case, and he is confident that the Court, in the exercise of its discretion,
willproceed so 10do.
Second,the Secretary-General isconvinced that it isevident that the Territory
presently called Namibia has never been under the sovereignty of South Africa
and that in its relationship to South Africa it has always kenresaliena.This is
established, inrer alia, by the international instmments which have been
referred to in these present proceedings, as wellas in the previous advisory and
contentious proceedings before this Court.
Third, the Secretary-General is certain that the jurisprudence of this Court
has already established beyond any shadow of doubt that the Mandate for
South West Airica did not lapseupon the dissolution of the League of Nations,
and continued to be binding on South Africa with the obligations thereby
entailed towards the international community, which is embodied today in the
United Nations. This derives from the Advisory Opinion of this Court of 1950,
from two subsequent Advisory Opinions, and from the Judgment of the Court
in 1962in the iïrst hase of the South West Africa cases.
Fourth, the ~ec;ctary-~encral take> iito-bc axiomatic that if the !dandate
hïd Iapsed, as contendcd by South Africî. then the authority of the Mandatory
had likewise Ialiwd. u,ith the conseauent terniination of the Iattcr's right to
remain in the ~crritory. As ihir ~ourrhas said, to rctain the rights derived from
thc Mandate and to deny the obligations thereunder wnnot bejurtified.
Fifth. the Secretarv-General believesthat the record establishes conclusivelv
that South Africa ha: f,iilcd to disçhargc the s~cred trust ofsi\~.liwtionplaced
upon ilby the Mandate to prumote to the uimost the niaterial and nioral well-
king and the rocial liroaress of the inhabitants of the Territow. South Africa's
material breaches in th: respect are of a character sufficient to permit the
declaration, by the competent authority, of the termination of the Mandate.
It cannot be accented in anv lexal svstem that leaal-rules and standards of
material and nioral uell-being and socid progress acsepiable at a particular
nionicnt in time are legally acceptable for al1 tiine. Thc standards uf 1970are
not, contrar) to the contentions of South Africa, the standards of 1920.The
failure of South Africa. in diwhargç of its sacrcd trust, to obsenr the intcrna-
tionally declared nnrms and standards of the present constitute a material
breach of its reslionsibilities towards Namibia.
Sixth, the ~ec;etar~-General is confident that under the Charter of the United
Nations, the General Assernbly and the Security Council are endowed with
the powers, and were in possession of al1 the necessary legal and factual
justification, to proceed as they did in regard to the termination of the Mandate
for South West Airica. This view is shared by an overwhelming rnajority of the
world community which comprises the United Nations, as evidenced by the
virtual unanimitv of vote on General Assemblv resolution 2145 O<XD
Seventb, the .~ecretar~-General believes ihat South ~fricà's continued
presence in Namibia since the declaration of the termination of the Mandatecon~titutej an internationally \rrongful xi incurring responsihilities boih for
South Africd and for othcr Siaies under internaiional la*,. The lirst and niost
basic of these consequences, so far as South Africa is concerned, is South
Africa's obligation to discontinue that internationally wrongful act which
consists in ils continucd presence in Namibia. This obligation does not, of
course. exhaust the legs1conseauences for either South Africa or other States.
For a delinition of allyhe Icgalcon$equcnces the Sccurity Council, the principal
organ of the United Nations wiih primary respon~ibility for the iiiaintcndnce of
international oeace and security, has had recourse to this Court. the ~rincioal
judicial organ'of the world community. The Secretary-General is confident that
the United Nations will receive from this Court the definitive guidance which il
isseeking.
Mr. President, honourable Memkrs of the Court, the question before the
Court concerns the fundamental rights and freedoms of more than half a
million oeoole. the indioenous inhabitants of an international territon' Io whom
. ..
promises were made Tn the name of mankind. This international pledge,
restated and enlarged by the United Nations Charter and subsequent under-
takings oursuant thereto. has ken desimed to secure for the inhabitants of
~amibia not merely a state of physical Well-being, but also moral useIl-king
and freedom and equality in the exercise of their economic, social, cultural,
civiland oolitical rights, as wellas their richt to self-determination and member-
ship of the interna<ional community. 1; has ken shown, however, that the
continued and illegal presence of South Africa in Narnibia, in breach of the
trust which the community of nations agreed to share. has deorived the areat
majority of the people of ~amibia hothof their rightsand also of the intima-
tional protection which is virtually their only recourse. In Our submission, the
law cannot be indifferent to a matter so basic to international order and
morality, and il is Ourhope that, by determining the legal consequences of this
breach of trust, the Court may help substantially ta renew the faith of the
world's oeooles in international obligations. and in the will of the international
coniniunityto sce that ihcy are honourcd.
Mr. I'rcsideni. if 1 niay k pcrniitied, I liant ta niake in addition. I have
carerully noted the ininortant aucsiions which hütr been nut by the honourable
Judge Gros and, withihe permission of the Court, will bepresenting our replies
as soonas these have ken prepared.
1have also noted the points raised in the letter to the Registrar of the Court
of 6 February 1971 ' from the Agent of the South African Government which
we shall also examine carefully.
In connection with my own presence here 1 should add that urgent circum-
stances require that 1 should, with the Court's permission, return Io United
Nations Headquarters on approximately II Fehruary 1971. With the leave of
the Court. therefore. 1would not Drooose to ~rolonc further my own presence
hcrc hcyoiid Thurrday. although nccdless IO&y 1sidll rcniiiin~atthe disposal
of the Court as and ivhcn any furiher appearancc on ni).part should k desircd.
In the meantinie I would resoectfully. .auest the Court io ocrmit Our replies
10 the questions put by 1udge-Gros and any observations we might have on
other points which have ken raised to be presented to the Court after my
departure by a representativewho will be remaining.
The Court roseor 6p.m.
' SeeCorrespondence, No. 92, p. 673, infro. SECOND PUBLIC SITTING (9 1171, 10am.)
Present: [Seesitting of 8 II 71.1
QUESTIONS BY JUDGE SIR GERALD FITZMAURICE
' The PRESIDENT: Before 1 cal1 on the distinguished representative of
Finland toaddress the Court, Sir Gerald Fitzmaurice has somequestions to put
to the representative of the Secretary-General.
Sir Gerald FiTZMAURICE: Arising out of the statement made on the
Secretary-General's behalf yesterday:
First Quesfion
What actual limits does the Secretary-General place on the powers of the
General Assembly and the Security Council of the United Nations, respectively?
SecondQuesrion
1s it his viewthat provisions of the Charter apparently, or ostensibly (whether
directly or by necessary implication), involving limitations onthosepowers, can,
if the occasion arises, legitimatelybe disregarded? If so, what would, in his
view, be the, so ta speak, applicable "principles of disregard", or confines
within which such disregard could be considered acceptable?
Third Quesrion
In oarticular what limits. if anv. does the Secretaw-General set on the tvoe of
case or \uhjcci-rilciitcr wirh refercnIO which the Securify Council on emir 3
resoluiion b~ndingon 311Menibers of the Un~iedhiions in ternis of Articl25
of the Charter?
Fourth Question
Assembly resolution 2145 appears 10be based upon, and to embody, what is
in effect iudzment oflow. namelv that fundamental breaches of the Mandate
for South ~fri& have occuked, legallyjustifying its revocation or termi-
nation. 1sit the Secretary-General's view that the Assembly has the power to
make lezal determinations of this kind-that is of a kind that would normallv
fall within the province of a court of law, such as this Court? If so, where, in hcs
view, would the line of distinction corne between the judicial functions of the
Assembly, if il had such functions, and those of this Court which is equally a
main organ of the United Nations, and its principal judicial organ? EXPOSG ORAL DE M. CASTREN
REPR~SENTANT DU GOUVERNEMENTFINLANDAIS
M. CASTRÉN: Monsieur le Prkident, Messieurs les juges, le Gouverne-
ment finlandais, que j'ai i'honneur de représenter, a, comme vous le savez, pris
i'initiative de oroooser au Conseil de sécuritédes Nations Unies de vous sou-
mettre, pour &isconsultatif, la question qui fait l'objet du présentexamen de
la Cour. Ayant le grandhonneur de prendre parole devant la Cour auiourd'hui.
jc vous apporte le; hommages rcspc~tueux de celui qui m'a mande. J; voudrai;
tout d'abord souligner que mon gouvernement intervient d'une façon aussi
objective qu'il est ~ossihle. II n'a pas d'intérétparticulier dans l'araire et agit
uniquement dans I'intérêd tu droit et de la justice. .
I. Remarques préliminaires
1. Je me permets de commencer par quelquesremarques préliminaires. IIme
olait de constater aue le Secrétaire aénéraldes Nations Unies et les autres
gouvernements, l'exception de l'Afrique du Sud qui se trouve dans une sitna-
tion spécialedans cette affaire, ont avancé dans leurs exposésécritsdes idées
et opfnions similaires à celles de mon gouvernement dans plusieurs points
d'importance pour l'appréciation de la question soumise à la Cour. Ainsi le
Gouvernement français aussi admet que l'Afrique du Sud a manqué d'une
maniirc s!stématique 3 ses devoirs découlant du-Mandat sur Ic ~erritoire du
Sud-Ouest africdin et de la Charte des Nations Unies pour les Fiais Membres
et qu'il a agi contrairementauxnormesétablies dans la Déclaration universelle
desdroiis de l'homme, quoique le Gouvernement francais n'estime pas que les
Nations Unies possédaient le droit de révoquer le Mandat. Je reviendrai plus
tard sur cette derniérequestion.
2. Comme il etnit 3 priwir. l'Afrique du Sud n'a pas chsnge son attitude
intransige;inte. ni en ce qui concerne le droit dc révocation ni quant aux auires
questions se rattachani 3.l'administration du Territoire de la Samibic, s'oppo-
sani contiriuellement à toutes les tentatives des Nations Unies d'intervenir dans
les aliïires dc la Namibie. Ellc ailkgur que toutes les résolutionsde I'Asscmblk
gtnerale et du Conseil de secunte relatives à la révocation du Mandat et au
transfert de l'administration dc la Namibie aux Nations Unies sont illégales
et nulles. L'Afrique du Sud est all2e mCmeplus loin en essayant de raire valoir
que Ics avis consultatirs que la Cour a émisen 1950. 1955ri 1956 dans les
affaires relatives autaturinternarional du Sud-Ou~st~-fricoin. à la recevabilité
de demandes d'audience prisentées au ComitC du sud-~~ksi africain ct à
I'admissibilit4 de I'audttion de p4titionniiires par ledit comité.reposent sur des
donnéesincomolètes et devraient mainten~ni --~~-~~~ ~ ~ - ~ ~ -Afriauedu
Sud estime encore que la Cour n'est pas compétente ou devrait s'abstenir pour
certaines autres raisons d'émettrei'avis consultatif demandé, en alléguant aussi
que la Cour, dans sa composition actuelle, et particulikrement certains de ses
membres actuels, seraient mêlés à la question soumise à eux d'une façon qui
pourrait influer sur leur attitude
3. Ma tâche principale est donc de traiter toutes ces objections et les divers
arguments avancés par l'Afrique du Sud à leur appui. Je m'eflorcerai de lesréfuter l'un après l'autre, le mieux possible, en évitant d'aborder les details
de moindre importance.
4. En ce qui concerne la proposition du Gouvernement sud-africain relative
A l'organisation d'un plébiscite enNamibie sous le contrôle conjoint dela Cour
internationale de Justice et ledit gouvernement, mon gouvernement estime
qu'une telle fonction est hors de la compétence de la Cour. En plus, comme
le Conseil des Nations Unies pour la Namibie l'a déjàdéclaré,le Gouverne-
ment sud-africain, n'ayant plus aucun droit d'administrer le Territoire, n'est
pas compétent pour faire une telle proposition, encore moins pour organiser
un plebiscite en Namibie.
II. Interprétationet modification des traités
5. Comme I'Afriaue du Sud l'a fait dans son exoose écrit.ie commence var
quelques obsenations concernant les principes et (es régless;r ~'inter~rc'tation
et la modification des traitCs, car le point de vue que I'on adopte i set égard
neut influer sur la orise de oosition vis-à-vis de olusieurs auestions iuridiaues
hans cette niïairc. je suis d'iccord avec le ou verne iud-eanrca-in que les
articles 31et 32 de la convention de Vienne sur le droit des traités forment une
- ~~~s-lide oour I'interorétation des traites internationaux,
Or. il me semhle que ledit gouvernement attribue unc trop grande impoRance
à l'interprétation litteralej.savoir du tcxtc réelet du sensordinaire des termes
du traité. On ne saurait sous-estimer les autres movens orincioanx d'inter-
prétation mentionnés dans l'article 31 de la convention de vienne, comme
l'objet et le but du traitéet la pratique ultérieurement suivie dans l'application
du traité par les parties, qui Ïeflktënt souvent leur vraie intention. Ën ce qui
concerne particulikrement la valeur de la pratique pour l'interprétation, je ne
peux pas accepter ce que le Gouvernement sud-africain dit à cet égard au
raraeW .be 23 du chaoitre II de son exoosé écrit oùil allèaue -.e I'on ne oeut
faire appel à la pratique que lorsqu'il existe une ambiguïté ou une incertitude
dans le traité même.Cette condition est prescrite seulement pour le cas des
----ns comolémentaires d'intemrétation. comme il ressort de l'article 32 de
la convention de Vienne.
6. Quant au comportement ultérieur des parties au traitécomme moyen de
----~ier les traités. il est asseznéralementreconnu oar les auteurs contemoo-
rains qu'un traité'peut êtrerevis6 ou modifiépar ce moyen. La ~ommisGon
du droit international avait proposédans son projet d'articles sur le droit des
traites.oui constituait la base desdébatsdela conférencede Vienne. une disoo-
sition,'l"article 38, tendantà confirmer expressément leditprincipe. Le fait que
la conférence,aprèsune discussion assez longue, supprima cet article ne signifie
pas, comme le Gouvernement sud-africain voudrait le faire valoir aux para-
graphes 26-32 de son exposé écrit, quele principe lui-mémede l'effet de la
pratique ultérieure sur le contenu du traité aurait étérejeté à Vienne. Les
~~~-~ns orincin.les~-~~la sun~r..sion de la disoosition en cause etaient les
suivantes: d'abord, plusieurs délcgnions. parmi elles la mienne, représentées
à ladite conférence étaient d'avis qu'il était incontestable que Iii pratique
ulttrieure pouvait modifier un traité et que cette disposition etait par conse-
qucnt superiïue. Certaines autres délégations pcnuient que le projet d'article
n'était pas assez préciséet qu'il étaitdiIlicile de trouver une meilleure formule.
Elles oréféraientlaisser les détailsindécis.
7. Pour ce qui est de la Charte des Nations Unies, je ne peux, non plus,
souscrire aux opinions exprimks dans l'exposédu Gouvernement sud-africaindans les paragraphes 33-40. Cet instrument aussi doit êtreinterprétéet peut
êtremodifie par la pratique ultérieure des Etats Membres, ce qui s'est produit
en redit6 coke nous leverrons plus tard
III. Qireslionde savoirsi la Coifr devait accéderou non à la demanded'avis
consirltatif
8. Dans le chapitre IV de son expose écrit, le Gouvernement sud-africain
propose que la Cour, dans l'exercice de son pouvoir discrétionnaire. refuse
pour plusieurs raisons indiquées plus tard, d'accéder à la demande d'avis
consultatif présente.Je ne suis pas du mêmeavis et je tâcherai de montrer que
la Cour manquerait à ses devoirssi elle donnait suiteà la demande du Gouver-
nement sud-africain.
9. S'ilest vrai que la Cour n'est pas obligée, selonson Statut, de rendre un
avis consultatif. mêmedans les cas où elle est iuridiauement fondee de le faire.
elle a souligné a plusieurs reprises que, en tait qu'organe des Nations unies;
elle ne devrait pas en principe refuser une demande dûment présentée par un
autre or-ane et au.il ~audrait donc des raisons décisivesoouÏ aair -utrement.
Contrairement à ce que le Gouvernement sud-africain allègue, il n'y a aucune
raison ni décisivenide moindre importance pour laquelle la Cour devrait refuser
de rendre l'avis demandédans ceke affaire.
10. l'admets que l'on peut dire que la question posée à la Cour est mêlée
à certains problèmes politiques et présente donc aussi un aspect politique.
De même.on ne saurait nier aue la démarcation entre les auesti.ns- ooliti~.~~
etjuridiq"es est souvent impréLise.0;étantdonnéla formulationde la question
par le Conseil de sécuritéqui n'envisage que des conséquences juridiques pour
les Etats de la orésencecontinue de I'Afriaue du Sud en Namibie. il est difficile
de faire valoir qu'il ne s'agit pas dans ce cas d'espèced'une question clairement
juridique. bien qu'elle puisse comporter aussi un aspect politique. La Cour ne
S'est obint eneai-e en'raison de ~e~ ~ ~ect de f~c~n.au'i. lui Soit devenu i~-~ ~
possible d'exercer convenablement sa fonction judiciaire, contrairement à
l'assertion du ~arag-.phe 2 a) de l'exposéécritdu Gouvernement sud-africain.
II. Ledit gouvernement parle longuement dans les paragraphes 7 à 14 de
son exposéécritde l'accueil réservé à l'arrêtde la Cour rendu en 1966dans les
affaires du Sud-Ouestofricain. II est comprehensible que cet arrêtrendu par
sept voix contre sept, la voix du Présidentétantprépondérante - et par lequel
la Cour avait en réalité modifieson point de vue antérieuren ce qui concerne
la compétence pour statuer sur le fond du différend,adopté dans l'arrêtde
1962-ait étél'objet de critiques. Mais dire que cela puisse influer sur l'attitude
des membres de la Cour anciens et nouveaux qui devront se prononcer en
l'affaire présentequi concerne une question nouvelle, signifie mettre àtort leur
imoartialité en cause. II est difficile de dire si l'arrêtde 1966 a influé.et dans
quéllemesure, sur les dernières électionsdes membres de la Cour mais autre
chose est de faire valoir que les personnes élues à la Cour danssa composition
entière sont mêlées àla questionqui leur est soumise, comme le Gouvemement
sud-africain essaie de le montrer dans les paragraphes 15 29 de son exposé
écrit.
Dans I'exoosédu Gouvernement sud-africain on oarle à olusieurs endroits.
par exemple au paragrïphe 30, d'une pression politique qui se serait exercée
sur la Cour. II s'agit dc certaines déclarations faites psr un certain nombre de
déléguesdans divers organes des Nations Unies. ais on ne saurait les prendre
par trop au serieux et il va sans dire que les membres de la Cour n'attachent
aucune importance à ces critiques et suggestions quant à leur activité future. EXPOSÉ ORAL DE M. CASTRÉN 67
12. Au paragraphe 33 de l'exposi écritdu Gouvernement sud-africain il est
dit
aque la jurisprudence de la Cour parait confirmer l'idéeque celle-ci ne
doit pas accéder à une demande si la question poséea directement trait
au point essentiel d'un différendentre Etatsx
A l'appui de cette assertion ledit gouvernement cite l'avis de la Cour perma-
nente de Justice internationale rendu le 23 juillet1923 dans l'affaire de la
Carélieorientaleentre la Finlande et la Russie soviétiqueoù la Cour permanente
s'est refuséepar une majorité assez faible à statuer sur la question dont elle
étaitsaisie, déclarant, entre autres, que:
nil est bien établi en droit international qu'aucun Etat ne saurait être
obligéde soumettre sesdifférends avec lesautres Etats ..à n'importe quel
procédéde solution pacifique sans son consentement n.
Le soi-disant précédentest toutefois peu pertinent déjà pour la raison que la
Russie soviétique n'était pas encore en ce temps-là devenue membre de la
Société des Nations. Du reste, cette décision de la Cour permanente a été
beaucoup critiquée dans la doctrine et la Cour internationale de Justice n'a
pas suivi cet exemple dans des cas pareils. L'affaire qui est soumisà la Cour
ne peut pas êtrequalifiéede différendentre deux ou plusieurs Etats. II s'agit
de l'interprétation d'une résolution du Conseil de sécuritéet c'est le Conseil
lui-mêmequi a demandé l'avis en question afin que la situation juridique ac-
tuelle soit éclaircie aveccompétence et autorité. Rien n'a empêchéla Cour
d'émettre en 1950, en 1955 et en1956 les avis déjàcitéssur différentsproblèmes
se rattachant au Mandat du Sud-Ouest africain et aux pouvoirs de surveillance
de l'Assembléegénéralede l'administration dudit territoire, bien qu'il ait
existéà cesujet, aussi en cetemps-là, des divergences de vues parmi les Membres
des Nations Unies et surtout entre l'Afrique du Sud et l'Organisation elle-
même.
13. Je passe maintenant au troisième point de la contestation du Gouverne-
ment sud-africain. II essaie de faire valoir, au paragraphe 48 de son exposé
écrit,que la Cour ne serait pas en mesure d'émettrel'avis demandésans for-
muler aussi des conclusions sur des élémentsde fait contestéset prêtant àcon-
troverse et
«d'une telle ampleur que la question posée nesaurait, en dernière analyse,
êtreconsidéréecomme purement juridique, et qu'en tout cas il serait au
moins inopportun d'émettrel'avis demandén.
IIcite de nouveau --au parsgrïphe 44 - un Cnonccde IrCour permanente de
Justice internationale dans I'affdiredc13Cùr;./irorrr~iloleuui.i miin ai,is. est
sms iniportance dans I'aifaircmaintenant en cause. En cequi concerne l'opinion
de Rosenne Inqucile on se réfkreau paragrïphe suiv3nl (45).ilestA observer
que cet auteur n'a Das dit autre chose qu'il existe des doutes sur le point de
&voir si, dans I'exeÏcicede la compétenceconsultative, la Cour peut &pondre
à une question concernant exclusivement-je me permets de soulignerce mot -
l'établissementde faits.
Dans le cas de l'affaire orésente.il est demandé à la Cour. comme ie l'ai
déjà fait remarquer, de rendre un avis sur des questions juridiq"es. Bien &en-
du, la Cour ne peut pas se prononcer sur ces problemes sans connaître au
moins certains élémentsde fait avant trait à l'affaire du Sud-Ouest africain et
de la Namibie. Or, plusieurs de cis faits sont notoires ou peuvent Cire vérifiés
en consultant les documents ofliciels comme ceux des Nations Unies ou de la68 NAMIBIE (SUD-OUES ATFRICAIN)
Cour elle-mêmedans les affaires relatives au territoire en nuestion soumises
antérieurement àelle. Quant àla résolution2145(XXI) de l'&emblée générale
oar laauelle le Mandat sur ledit territoire fut révoqué. ilparait oossible de
déterminer si, dans ce cas d'espéce,cet organe des-~ations unies avait des
raisons valables de le faire, si la Cour estime qu'il est nécessaireou opportun
de traiter aussi cette question dans son avis. L'Assembléegénérale a invoqué
dans cette résolution plusieurs raisons à l'appui de sa décision et au moins
certaines d'entre elles sont de telle nature que leur validité peut êtreétablie
sans au'il soit nécessairede oénétrerdans les nuestions de fait. comme je le
d~montrerûi plus tard. Je reviendrai aussi cnc&e sur la question de fuit; qui
est de wvoir si l'Afrique du Sud a manque 3 promouvoir le bicnCtre matériel
et moral et la sécurit?des habitants du Territoire de la N~inibic,ccqu'ellen
conteste continuellemenr. nonobstant l'opinion presque unanime de tous les
autres Et315Membres ou non hlcmbres dcs Nations Unies.
IV. Validitéformelledesrésolutionspertinentes
du Conseilde séciirité
14. Dans le chapitre III de son exposéécritle Gouvernement sud-africain
se donne beaucoup de peine pour montrer que les résolutions du Conseil de
sécurité en généra elt particulièrement les résolutions 264 (1969), 269 (1969),
276 (1970) et 284 (1970) relativeà la question du Sud-Ouest africain et de la
Namibie manquent de validité formellepour diverses raisons que je vais exa-
miner maintenant en essavant de les réfuterl'une a~rèsl'autre.
15. Le premier argumeAt contre la validitéformille des résolutions du Con-
seil de sécuritéen généralest tirépar ledit gouvernement de sa composition et
concerne la représentation de la Chine, uRépublique de Chine,), comme elle
est dénomméeau paragraphe 1 de l'article 23 de la Charte. Nous savons que
c'est le Gouvernement de la Chine nationale (présidépar le généralissime
Tchang Kaï-chek) aui a occuoe le sieee cermanent de la Chine dès le début
dela constitutionde; Nations unies jusqu'ici. Mais apris que le Gouvernement
rival de la République populaire de Chine se fut emparé du pouvoir sur le
continent de Chine. olusieurs Etats Membres des Nations unies ont aoouvé
ses revendicationsde'representer ledir pays au Conseil de sr'curitéet dais ces
autres organes de l'Organisation. Certains de ces Etats ont parfois mCmecon-
testé la légalide toute action entrenrisearle Conseil de sécuritétel au'il est
actuellem&t composé.Or, il y a lie; de "oter que l'Afrique du Sud elle-même
a toujours considéréque le Gouvernement de la Chinenationale est le gouver-
nement légitimede laChine. En ce qui concerne la doctrine, elle admet généra-
lement que la reconnaissance d'un Etat ainsi que d'un gouvernement est un
acte de caractère essentiellement politique qui peut donc êtrelaissé en suspens
siI'Etat le desire. Ouant à la auestion concernant le droit de reorésentation de
deux gouvernemen~srivaux d'Ln Etat Membre, c'estevidemment l'organe com-
pétentdes Nations Unies, àsavoir ['Assembléegénerale,qui en décidepar une
maiorité simule ou de deux tiers conformément aux diiuositions res~ectives
de i'articl18 de la Charte. C'est ainsi que l'on a proc6dé~usqu'ici.11n'y a pas
encore eu de changement à la représentation de la Chine à l'Organisation.
J'estime donc que l'objection du Gouvernement sud-africain contre la validité
de dsolutions du conseil de sécurité,pour les raisons indiquées, devrait être
rejetée.
16. Le Gouvernement sud-africain allèeue.en plus. nue le Conseil de sécurité
ne s'est pas conformé à la procédure pr&c;ite par l'article 27, paragraphe 3,
de la Charte quand il a.adopté les diverses résolutions ayant traità i'affairesoumise présentement à la Cour, et il soutient que, par conséquent, toutes ces
résolutions sont nulles etdéoourvuesd'effetjuridique. Ladite disuosition oré-
voit. comme nous le savons,que les décisionsdu conseil de sécurir~sur toutes
autres questions que celles relatives la procédure devraient êtreprises par un
vote alfirmatif de neuf- avant la modilic;ition de I'ïrticle en 1965.seot- de
ses membres, dans lequel sont comprises les voix de tous les membres penna-
nents. II est aussi vrai que la résolution 284 (1970), qui contient la requête
oour avis consultatif concernant la rése enteaffaire, a étéadoptéeen déoitde
i'abstention de trois membres doni deux étaient des memb~es permanents.
De même,la résolution 276 (1970) a étéadoptée malgrél'abstention de deux
membres oermanents et. au vote orécédent.Dar division sur un membre de
phrase du. projet de résolution, lésmots en'question ont étémaintenus en
dépitde l'abstention de quatre membres dont trois étaient des membres per-
manents. Toutefois. on ne saurait considérer ces votes comme irréauliers et
nuls, car une longue pratique qui a étésuivie pdr lc Conseil de sécuritédés1950
a modifié les dispositions de l'article 27, paragrdphe 3, de telle fason qu'une
abstention d'un ou ulusieurs membres oermanents lors d'un vote n'a Üas le
m2me cRet qu'un voie négatiCAinsi on ieiit dire avec M. Bustamante da& son
opinion dissidente en I'aiTaireC'erroinr.diprnsesdesA'ortonrUnies que:
a11est déjà bienconnu qu'un amendement coutumier de la Charte est
intervenu dans la pratique du Conseil de sécurité, ence sens que l'absten-
tion d'unmembre permanent présent à la séance n'est pas~assimilke A
l'exercice du droit de veto.»
Maisje ne suispas d'accord avecl'éminentancienPrésident dela Cour quand
il affaiblit sa déclaration en ajoutant que rcette sorte d'amendement peut
juridiquement êtrereniée dans un cas d'espèce en invoquant le texte de la
Charten.
II est aussi généralementreconnu aue l'absence d'un membre oermanent à
la séancedu ~inscil de sécuritén3em$che pas de prendre des déci<ionsvalables
mcmc sur les questions dc fond. Nous vo)ons donc que la pratique des parties
au traité,mcme s'ils'agit d'un traité multilatéral d'une importanceuniverselle,
comme la Charte des Nations Unies, peut modifier Ic tcxte et le contrnu du
triité. Cc quc certains dclCguésdes ttats Membres ou hauts functionn~ires de
l'orcanisation ont dit au cours des oremikres annéesde l'existencedes Nations
unies de l'interprétation dc la disp&ition en question n'a aucune valeur pro-
bante,car la nouvelle prdtique est néeplus tard. Pour cette raison je peux passer
outre à toutes les citations.oui -iaurent dans les oaramaohes 17 à 19 et24 de
l'exposéécrit du Gouvernement sud-africain. ~â m<meeremarque vaut aussi
quant aux opinions semblables expriméespar quelques-uns des premiers com-
mentateursde la Charte, opinions citéesauxparagraphes 20 &23 dudit exposé.
La doctrine moderne a pris en considération et approuvé l'évolutionqui s'est
produite à l'organisation pendant vingtcinq ans.
17. Le Gouvernement sud-africain admet lui-même.au oaragraohe 27 deson
~x=~-d écrit.aue la nouvelle oratiaue sur la orocédureseiao~..tant aux vote~ ~-
au sein du conseil de sé~uriiéa éiéu"ifo&ément suivie pal lui entre 1950et
1965et uns objection de la pan de l'Assembléegén2rale. Mais ilsoutient que
cette situation s'est ensuite modifiée en raison des événements postérieur; à
I'année1965 et plus particulièrement en raison de la pratique du Conseil de
s6curitélui-même,ce qui n'est pas toutefois le cas. Ledit gouvernement invoque
d'abord le fait aue l'article 27 dela Charte a étéamendéen 1965conformément
la procédurePrévuepu la Chartesans qu'on ait modifiéIcmembre dc phrase
du paragrüphe 3 où ilest stipulé que les dkcisions sur le fond doivcnt étreprises par un vote affirmatif dans lequel sont comprises les voix de tous les
membres permanents. Or, il faut tenir compte de ce que la seule raison pour
n.oi on a orocédéà cet amendement était le désird'auamente- le nombre des
membres non prrmanents en raison du grand accroissement du nombre des
Membres de I'Oreanisïtion elle-meme On a 5ce momeni-li intentionnellement
évitéde faire d'autres modifications pour ne pas risquer la réussite du but
principal. Et probablement on a aussi pensé qu'il n'étaip tas nécessaired'amen-
der les dispositions déjà modifiées par une longue pratique qui en effet a
continuémêmeaprk l'année1965,contrairement à ce qu'allèguele Gouverne-
ment sud-africain.
Le fait que deux Etats Membres, le Portugal et l'Afrique du Sud. qui n'ont
pas été membresdu Conseil de sécuritéet qui ont mont& peu de respect pour
toutes les résolutions de l'Assembléegénéraleet du Conseil de sécuritéles
concernant varticuliérement. ont expriméau cours des dernières années des
résenes ou des objcciions sur la validitéde ces r2sulutions, ne Eaurait signifier
l'abrogation de la nouvelle pratique, car les autres Etats, y compris tous les
membres permanents et non permanents du Conseil de sécurité,se sont
c~-~~~--~~-~-te oratioue.
18. Le Gouvernement sud-africain soutient encore que les résolutions 264
(1969).269 (1969)et 276 (19.0)du~Conseil de sécuritésont nulles aussi oour le
motif supplémentaireque certains membres du Conseil ne se sont pas abstenus
au moment du vote, bien qu'ils aient été tenusde le faire en vertu de la clause
fiaurant à la fin de l'article 27, paragraphe 3 où il est stioulé que. dans les
décisions prises aux termes du chapitre VI, une partie à-un diff&end doit
s'abstenir de voter. Au paragraphe 41 de l'exposéde ce gouvernement il est dit
que nsi l'arrêtrendu par la Cour en 1962en ce qui concerne i'existence d'un
différendaux Nations Unies est bien fondé,il s'ensuit qu'il existe undifférend
sur la question du Sud-Ouest africain entre l'Afrique du Sud et plusieurs Etats
Membres des Nations Unies y compris vraisemblablement tous ceux qui ont
voté en faveurde la résolution2145(XXI) de l'Assembléegénérale,). Or , mon
avis, on ne peut pas parler d'un différenddans le sens du chapitre VI de la
Charte entre l'Afrique du Sud, d'un côté, et certains autres Membres des
Nations Unies, de l'autre, en connexion avec les trois résolutions du Conseil
de sécuritéque je viens de citer. II s'agit plutôt d'une situation crééepar la
révocation du Mandat et l'attitude intransigeante de l'Afrique du Sud qui ne
s'est pas conformée à la résolution 2145 de l'Assemblée généraleQ . uant à
I'arrètémis par la Cour en 1962,la Cour a seulement constaté,en rejetant les
exceotions rél liminaire se l'Afrique du Sud, qu'il existe un différendentre elle
ei lis deux-Eiais requérants, à &voir 1'~thiopie et le Libr'ria. Je peux donc
conclure quc les trois résoluiions du Conseil de sécuriiéont kt; adoptéesdans
un ordre réaulier.
19. I:n cc iui soncerne p~rticuli2rement IJ rr'soluriori284 (19701Ju C<iriseil
de sécurité,sa vxlidir? formelle a étéci~ntesiéepar le Gouvernement sud-
africain pour deux raisons: premièrement, parce qu'elle a étéadoptée sans le
vote affirmatif de tou~ l~s membres~.rmanents dont trois s~--~n-~abste~ ~ ~o-s ~ ~
du vote et, deuxiemement, parce que l'Afrique du Sud n'a pas étéconviéepar le
Conseil à participer aux discussions ayant vrécedéson adovtion. J'ai déjà
examiné la oremi~re obiection en connexioi avec la auestion concernant la
validitéformelle des r&lutions du Conseil en général ét montr? qu'elle n'est
pas fondée.En plus. il n'est pai certain que le paragraphe 3 de I'artisle 27 soit
aoolicahle à lx decision oar laauelle la rcsolution 284 a etc adoolkc. Nous
voyons dans le paragraphé 49 dél'exposéécrit du Gouvernement sud-africain
que les divergences d'opinions sont grandes entre les auteurs sur le point de EXPOS~ ORAL DE M. CASTR~N 71
savoir si la décisiondu Conseil dedcurité sollicitant un avis doit étreconsidérée
comme une décision de procédure ou de fond. Dans le premier cas, le vote
afimiatif de tous les membres permanents n'est pas nécessaire.
La deuxième objection aussi a été déiatraitée en quelque manière lorsque
j'iiexamini la validité lurmellc desautres risolutions pertinentes du Conseilde
sccuritc:. L'article 32 de la Charte, invoquc pu le Gouvernement sud-africiiin,
CONC S. . I'.Oitenced'un iIrffére,>iloii I'lirat qui n'est pas membre du Conseil
de sbcuritc est partic, pour qu'il ail le droir dr p3riiciper. sansdroit devole, aux
discu%%ions relatives 3 cc différend. La rr'solution 284 du Conseil de sécuriténe
tend oas à réalerun différend entre Etats. elle est liéeà unesituation. a savoir à
la de Namibie et aux responsabilités des Nations Unies assumks en
1966enversce territoire et son peuple. I.'articlc 32de la Charte n'ctait donc pas
applicable.
20. J'en ai maintenant t~r-~~~ a~e~ ~-~tes les obiections du Gouvernement
sud-africain concernant la \,alidité fornielle des r>solutions du Conseil de
sé~urité en cause.objections qui sesont montréesdénuiesde ruut fi~ndemenr.
V. Validitéinrrinsèquede Io résolirtion276 (1970) du Conseil de sécurité
21. Le Gouvernement sud-africain ne secontente oas de contester la validité
lornielle de la résolution276 (1970) du~~onseil de sécurité.II soutient, Jans le
chapitre V deson exposé&rit. en rilus. auc <etter2solution estaussi intrinséque-
ment invalideet n'a aucune o&,b~ ~uridi&e oour lesraisonssuivantes. D'abord.
;tant donnéque ladite résolution SC bases;r la résol~t~on2145 (XXI) de L'AS:
scmblce généralequi, a son avis, est en elle-mr'mc sans valeur juridique, la
résolulion 276 du Conseil est égalementinvalide. Je reviendrai plus tard sur la
question de la \,alidité de la résolution 2145 de I'Assemblte générale.Comme
deuxiéme raison, le üouwrnement sud-africain fait valoir que la résolution 276
du Conseil de sécuritén'a pas étéadoptéeconformément aux dispositions de la
Charte et que celui-ci a par conséquent outrepassésespouvoirs. Le Gouverne-
ment sud-africain estime aue le Conseil de sécurité,en adoptant ladite résolu-
tion, n'a pas agi conformément au chapitre VIL de la Charte, que le chapitre V
ne fournit aucun fondement particulier à l'action du Conseil et que celui-ci ne
s'est pas conformé aux exigencesdu chapitre VI. Regardons si c'est le cas.
22. Je suis d'accord avec-. ~.ou---nem.~-~.~d-africain aue le Conseil de
sécurité,lorsqu'il adopta la résolution 276, n'entendait pasagi; dans le cadre du
chapitre VI1 dela Charte. Les articles 39et suivants nesont donc Dasapplicables
dans ce cas. On ne saurait ~ ~ ~ ~ --- l~- -~tuation crééeDar la auesiion de la
Namibie ait encore causésune menacecontre la paix, une rupture de la paix ou
un acte d'agression » - agression de la art de l'Afrique du Sud - quoique
dans les interventions de ce~ ~ ~s -e~ r~~-~~~tset à I'Assembléenén-raleet au
Conseil de sécurité,ainsi que dans les prr'ambules Je certaines résolutions de
cesorganes, comme dans la résolution du Conseil 269 de 1969et surtout Jans
celle de I'Asseniblke rCnr'rale 2372 (XXIIi. on ait eniolosr' Jcs e~nressionsaui
pourraient être interprétéesainsi. or, force est d'admettre qui la situation
présenteen ce qui concerne la Namibie est loin d'êtresatisfaisante et a donné
lieu à beau cou^ de tension entre les Nations Unies et I'Afriaue du Sud. Sa
prolongation peut être iisusceptible de menacer le maintien deja paix et de la
sécuritéinternationales» pour parler dans les termes desarticles 33 et 34 de la
Charte. Par conséauent. iiest ~ossiblede chercher le fondement iuridiaue de la
résolution 276 du Conseil de ;écuritédans Ics pouvoirs à lui coiférésiu PUA-
graphe I de I'îrticle 36 de la Charte. IIest vrai que certains auteurs soutiennent
que, avant de recourir à cette clause, le Conseil de sécuritéaurait dû constater,72 NAMIBIE (SUD-OUES ATFRICAIN)
oar une décision oréalable.si la orolonaation du différend ou la situation en
question semblai; constituer une menacéau maintien de la paix et de la sécurité
internationales, Mais ce n'est pas une condition sine qua non, comme il est
alléeuéaux oa. -.aohes 32 et 42 de l'exooséécrit du Gouvernement sud-
africain. Au contraire, la pratique généralement suiviepar le Conseil de sécurité
a étételle que l'ona pris directement, après le débat, une décision relative aux
orocédures~ouméthodes d'aiustement &oroori&es si l'on désiraitfaire auelaue
chose pour le règlementpackque de l'affiire: La gravitédelasituation est alors
sous-entendue. Quoique le but concret du Conseil, en adoptant la résolution
276, ait été d'obteni; le retrait des autorit& sud-africaines de la Namibie,
l'intention était de renforcer en mêmetemps le maintien de la paix et de la
sécurité internationales et de diminuer la tension actuelle. Vu qu'il s'agissait
non pas d'un différend entre Etats mais d'une situation qui intéressait les
Nations Unies comme telles, le Conseil de sécuritén'avait aucune obligation
d'inviter l'Afrique du Sud à participer, sans droit de vote. aux débats aui ont
précédé l'adoption dela résoÏution.TOUS les autres ~embr& des ~ations Unies
auraient pu demander, avec le mème droit, de prendre parole dans l'affaire
devant le Conseil, ce qui aurait pu conduire à une situation bizarre. Je me
oermets de me référerà ce aue i'ai déiàdit auoaravant sur cette auestion.
23. Mon opinion diffèreencore de celles émisespar le d ou Ger ne sum- ent
africain dansson exposé écrit ence queje considkre que l'article 24 de la Charte
constitue égalementun fondementjuridique i la Aolution 276 du Conseil de
sécurité. J'estimeque cet article 24 confère au Conseil non seulement les
pouvoirs spécifiquesénoncésaux chapitres VI, VII, VI11et XIIet énuméréà s la
fin du paragraphe 2dudit article, niais aussi des pouvoirs généraux,sompatiblcs
a\.cc les buts et principes des Nations Unies et qui sont nécessairesau Conseil
Dour s'acquitter des devoirs que lui impose la Charte et particulièrement le
paragraphe I de l'article 24qui énonce saresponsabilité pri&ipale du maintien
de la paix et de Is sécuritkinternationales.
J'ai étudiésoianeusement l'argumentation du Gouvernement sud-africain
préscntec 3 l'appui de son opinion contraire aux paragraphes 21-30 dc son
exposéécritsans toutefois étrcconvaincu de sa justessc. IIressort du paragraphe
30 aue. selon deux commentateurs connus. le Conseil de sécuriténe s'est as
con;idér~en pratiquesomme strictement tenu par Icsdispositions spcafiquesdu
chapitre VI et du chapitre VI1 de la Charte conccrnïnt la ligne de conduite .i
suivre lorsau'il s'estoccunéde différendset de certaines autres situations. II est
ausi indiquédc citer 3 ci propos un passage dc l'avis du SecrétairegCnéralqui
est reproduit au pÿragraphe 28dudit cxposé.LeSecrétairegénérad l islit que,par
sadkision prise dans I'üffairedeTrieste, IeConseiliiavaitadmisqu'ilétait investi
de pouvoirs suilisanis aux termes de I'ÿnicle 24 dela Charte pour assumer de
nouvelles responsabilités, sous réservequ'elles fussent liéesdirectement. ou
même indirectement,au maintien de la paix et de la sécuritéinternationaleset
aue. en s'aauittant de ces oouvoir~, le-~o- ~ ~ -e sécurit-a~ ~ ~~conformément
aux'buts et aux principeide la Charteii. II suffitdoncquela décisionprise par le
Conseil soit liéeau moins indirectement à la fonction principale du Conseil,
comme dans lecas dela résolution276.Quant .l'opinion des auteurs modern&
sur la question de l'interprétation de l'article 24 de la Charte, je meorne à
citer la 3' &dition révis& du traité publie en 1969par Goodrich, Hambro et
Simons, intitulé Charterof the UnitedNafions. Les auteurs disentà la page 204:
«Article 24 (2)states that specificpowersranted ta the Security Council
are laid down in Chapters VI, VII, VIII, and XII of the Charter. This
statement raises the question whether the Council has these powers only or whether it may exercise such other powers, consistent with the purposes
and principles of the Charter, as are necessary for it to discharge its
responsibilities. The latter, more liberal interpretation has been generally
accepted. D
Nous avons vu que le Gouvernement sud-africain préfère un autre genre
-'~-~~~~rétation. àsavoir littéra~e~ ~ ~ ~aliste. aui lui est olus convenable.
r~ ..
24. Pour conclure cette partie de mon exposé, jeconstate que les objections
dudit gouvernement contre la validité intrinsèque de la résolution 276 du Con-
seil desécuritédoivent étrerejetées.
VI. Effe jtridique de la résolution276(1970) du Conseil de sécurité
25. Je suis maintenant arrivé à la question principale soumise la Cour, à
savoir i'elïet et les conséquences juridiques de la résolution 276 (1970) du
Conseil de sécurité.Mon gouvernement a déjà traité cette question assez
amplement dans son exposéécrit,ce qui facilitera ma tâche maintenant. Je me
permets de me référer, aussi à cet égard, aux exposésécritsde certains autres
gouvernements, particulièrement à ceux du Gouvernement des Etats-Unis
d'Amériaue et des Pays-Bas. ainsi au'à i'exood écrit du Secrétaire général.
Quant à ia position du-çiouvérnemeit de ~'~friquedu Sud, elle est déterminée
par son attitude négative à i'égardde lavalidité formelle et intrinsèque de ladite
résolution. Pour cette raison il déclarebrièvement dans son exoosk écritaue la
résolution 276 est sans aucun efret juridique. Il ajoute que mime si l'on-tient
cette résolutionpour valable, seules certaines de ses dispositions ont des consé-
quences juridiques pour les Etats, et ces dispositions elles-mêmes n'ontpas un
caractère obligatoire, mais constituent, par leur nature et leurs effets, tout au
plus des recommandations.
26. La lecture du texte de la résolution montre au'elle contient des disoosi-
tions de ditTerentesnatures. Certaines d'entre elles 8nt un card~tbreobligatoire.
commeleGouvcrnement finlïndaisl'a fait obsenerdanssonexposé écrit.IIyen
a d'autres oui ne sont oue desreco~ma~~-~~ons. Les disoositions du préambule
n'ont pas, bien entendu, la même valeurjuridique que celles du dispositif. Il
suffitde présenter quelques brèves observations complémentaires en ce qui
concernequelaues-unes de ces dernières.
27. ~esquairc premiers pxagraphcs du dispositif s'adrcssrnt en premier lieu
i L'Afriquedu Sud. Ils contiennent tous, paniculicrement le paragraphe 2. des
constatations importantes qui lient luridiquement ledit Erat. IIest donc tenu,
en vertu de l'article25 de 13Charte, de changer son comp~~rtementdsns I'alïaire
de 13Namibie conformément aux décisionsdu Conseil de sécurité.Clan1donné
que la prCscnccconilnue des autoritCs sud-africaines en Namibie est illégale,
toutes les mesures o-ises~-a~ ~ll~. --i..-~~~.-- .erritoire ou en ce qui le con-
cerne aprcs lacessation du M3ndat sont illégaleset invalides. Ceitc ConStatation
oblige aussi tous les Etats Membres des Nations Unies autres que l'Afrique du
Sud. On ne saurait donc dire, commc le fait le Gouvernement sud.afric;iin au
paragraphe 49 du chapitre V de son exposé écrit, qu'il s'agit seulement de
simples dklarationsneutressansaucune obligationjuridiquedont la vraie place
serait dans le prémbule et non dans le dispositif de 13nsolutiun.
Le paragraphe 5 du dispositif où le Conseil de sécuritbdemande IOUS In
Etats de s'abstenir de toutes relations avec le Gouvernement sud-africain qui
soient incompatibles avec le précedent paragraphe 2 est égalementimportü"t,
bien qu'il s'agisse dans ce çïs ssulcment d'une invitatiun. Les coIISé~uens~S
juridiques des disposiiii>nsdu pdragraphe 5 ont étédéiernuntcs plus en detail,comme nous le savons, dans la résolution 283 de 1970 du Conseil de sécurité
aui a étél'obiet d'une analyse assezlongue dans l'exposéécrit de mon gouver-
nement à la&elle je me permets de meÏéférer. Le Gouvernement sud-africain
reconnait lui aussi, au paragraphe 53 de son exposéécrit, que le paragraphe 5
ainsi aue le oaranraohe 6 du dispositif de la resolution 276 du conseil oeuvent
. -.
imposer des obligations juridiques aux Etats et peuvent donc avoir desconsé-
quencesjuridiques pour eux. De même, ily a licu de noter que ledit gouveme-
ment seréfère.au pa.agra-.e 59 deson exposé.au oara~ra.he -. 2 de l'article2de
laCharte qui impose 1 tous les Memhrcs je I'0rg;inisütton le dcvi)ir de renipl;r
de bonne Coilesobligations qu'ils ont assuniccsau\ termes de la Cliarte.
28. IIy a licu de faire obscrvcr que I'ACriquc du Sud a. cn \,ertu Ju droit inier-
nïtional. tant que dure sa pr6senceillégalecn Namibie, ~,ertdtncsobligations i
I'cgard dudit territoire et de sa population. Cesobligattons sont pour 13plupart
lesm2mesqui incombaient 3 I'ACriquc du Sud avsnl la ccssxtion du hldndst.
Ainsi, elle es1tenue de 1;tvoriser continuellcnieni Ic bicn-2trc et le dé\,cloppc-
nient des habitants du l'crrituirc, cdnfurnicment B l'article 22 du l'aire de la
Soctctc dcs bations et au Mandat du Sud-Ouest airicain. L'Afrique dit Sud a
Cgalement I'ohligïtion d'agir conformément 3 la dcclaratton rclative aux
territoires non autonomesqui figure au chïpitre XI de II Charte des Nations
Unles. Les droits de l'homme doivent 6trc rcspectcsen Namibie comme partout
sousn'importe quel régime
Y//. QrrelquesremarqrressrrrI'historiqueet le contenudrr Mandai
pour le Sud-Ouest africain
29. Aores avoir traité toutes les obiections du Gouvernement sud-africain
contre 1; compéiencede la Cour pour icndre l'avis consultatif demandéet la
\.<iliJit& des rCsoluttons pcrtinentcs du Conseil de sr'rurité, il reste encore deux
auestions imoortantes a examiner. à savoir la revocation du Mandat et la
;alirlitéet l'ciel juridiqur deIJrr'solution 2145de la vingi et uniCrneAssemblec
gen.'ralc. Mats aviint dc lesabordcr ilest ind~qué,pour pouvoir micuu prendre
oosition sur ces auestions. de faire auelauesremaraues sur ~'historiaue et le
rontenu du an dit , compris le traiicmrkt desa~ïties du Sril-O~<r.,r;/ricoi» h
l'Organisation des Nïtlons Unies et Ics avis ca>nsultatifset Ics arr2ts antérieurs
émispar la Cour elle-mêmedans cesaffaires. oui tous concernent lesdevoirs de
la puissance mandataire, conformément a" Mandat. II y a lieu de dire aussi
quelques mots sur la maniéredont le territoire en question a 6téadministré par
1'~friaue du Sud. Le Gouvernement sud-africain. dans son exposé écrit, a
convcrc à cesquestions plusicursccnraincs de piigcs. 11setiible que, 3 I'exicp-
tion de I'adrninistratson dudit territoire, la description des Piiltset kvknemenrs
oertinents donnée danscet exposéest. en regle générale.objective. On constate
ccpcndant parfois cenaines omissions, au%; en-ce qui concerne la citation des
sources, cnire autrcs, de la doctrine. Certainesconclusions dudit gouvernement
sont, à mon avis, inacceptables. Je ne peux non plus me rallier à la critique
-e~kredesa~isco~~~-~atifs~de la Cour déiàindiaués. critiaue nui sebasesur les
. ~. . . ~ ~
opinions dissidentes d'une pctite minorite et sur les écrits de certains auteurs.
L'interprétation Jcs arrzts rendus par la Cour en 1962et 1966dans le3alfaires
du Sud-Oirrrt afriru,n et pluiieurs conclusions tirecs de leurs motifs et dcs
opinions individuelles et dissidentes ne sont pasconvainiants. hlais, comme je
l'ai deji dit,il n'ert pas nécessaired'cntrcr dans ch~quc dhtsil. car la Cour
connait clle-m2me le niieux l'historique de la qucsiion, cc qui s'est p~ssé i la
Socir'iédes Nations et aux Nations Unies. ainsi que ses decisions >nterieurcs.
Voici mes propres commentaires, brefs. EXPOS OERAL DE M. CASTREN
75
30. Dans la premièrepartie deson long exuosé,leGouvernement sud-africain
tend à démontrer. sur ia bas~ d~s--.its hiitoriaues. au.. la dissol--~on~ ~ ~ .. l.-
SocietédcsN:itions I'AsscmhléegCnéraledesNations Unies n'aurait pu succéder
aux fonctions de surveillance de I'eérutitin du Mandlt du Sud-Ouest africain
en vertu de clauses explicites ou implicites du Mandat, ou d'une règlejuridique
objective applicable à celui-ci, mais que le consentement du mandataire y est
nécessaire, alors qu'il manque en réalité.Dans ses avis consultatifs souvent
cités.la Cour a toutefois constaté au'un tel transfert a eu lieu.
31. Il est intéressantde noterque M. Simon, ministre français des colonies,
a souligné à une séancetenue le 28janvier 1919 à la Conférencede la paix de
Paris, que tout mandat serait révocableet que rien n'en garantirait la continuité,
comme il est indiqué au paragraphe 17 du chapitre VI1de l'exposéécrit du
Gouvernement sud-africain. Le Gouvernement français actuel ainsi que le
Gouvernement sud-africain soutiennent dans leurs exposésécritsnue les m~n- ~
dais sont irrévocables.IIest vrai que les dispositiuns expresFesproposéesp3r le
prcsident Wilson i ladite cunfr.rencr.au sujet du pouvoir de revoquer un mandat
et de rem~laccr le mandataire Dar un autre Etat ou ornanisrnén'ont ras éte
retenues dans l'article 22 du pacte de la Sociétédes Nations.~r, ce'fait ne
saurait êtreinterprétéen faveur de la thèse de l'irrévocabilité du mandat. Proba-
blement pour des raisons de discrétion envers lesmandataires. on n'a vas touché
la question de révocationni Ans ledit plcte, niJans lesmandats cunclus a\ec les
diffr'rents mandataires. On petit dire que Ir.druii de ré\ucation. qui est un
élémentindispensabledespouvoirs de surveillance dans lesystème deimandats,
était sous-entendu.
32. La surveillance des mandats a ét6effectuée principalement par la Com-
mission permanente des mandats instituée par le Conseil de la Sociétédes
Nations, conformément aux dispositions de l'article 22,paragraphe 9 du Pacte,
aux termes duquel elle était chargée de recevoir et d'examiner les rapports
annuels des mandataires et de donner au Conseil son avis sur toutes les aues-
tions relatives à l'exécution des mandats. La Commission est devenue'une
institution efficacemalgré lefait que ses pouvoirs étaient limités.
Une autre forme de survei~~ance~accente. .arle Conseil consistait à examiner
les pr'titiuns rcl~tivesaux gricfs auxquels pouvait donner Ileu la facon dont le
mandataire s'acquittait de son mandat. Un mécnnismc a éte mis en Œuvre
maleréaue l'article 22 du Pacte et les accords sur les mandats ne contenaient
aucine disposition relative à cette possibilité. Le Conseil a mème élaboreles
règlements concernant la procédure à adopter à l'égardde ces pétitions.
L'audience, suspendue à II h 20, est reprise à II h 40
33. En ce qui concerne le contenu du Mandat uour le Sud-Ouest africain.
je me borne à me référerau Mandat adopté par je Conseil de la Sociétéde;
Nations le 17décembre1920,et surtout àsesarticles 2,5,6 et 7. Le paragraphe 2
de I'articlesouligne que le Mandataire est tenud'accroitre, par tous lesmoyens
en son pouvoir, le bien-être matériel etmoral ainsi que le progrès social des
habitants du Territoire soumis au Mandat. L'article 5 parle, entre autres, du
devoir du Mandataire d'assurer. sur toute l'étenduedu Territoire. la libertéde
consc!ence. Les srticles 6 et 7 cbncernent 13sun~illancc. le règlekcnt des dif-
férends relatifs3 I'interpréiationou d l'application des dispositions du Mandat
ainsi aue les conditions de sa m~difi~ ~ion. Les ~andats et les différentes
expressions y eniployCesont fait l'objet d'analyses minutieuses en connexion
avec les affdires antérieures reldtivcs au Mandai pour le Sud-Ouest africain,
d'ou IIressort qu'il s'agit d'une institution spCcialcdu droit internïtional.76 NAMIBIE (SUD-OUES AFRICAIN)
34. 11est dit dans ltexte du ~acaara~he44 du chapitre VIL(oa~es424-425)
de l'exposéécritdu Gouvernemënt sud-africain que jamais, en connexion avec
les affaires du Mandat pour le Sud-Ouest africain,
"aucun membre de la Cour n'a donnéàpenser qu'il pûtexister un principe
de succession qui, s'appliquant indépendammentde l'intention des parties.
aurait ou avoiÏ ~our effei de remdacer automatiauement la ~ociétédes
~atiois, ses organes etjou ses m&bres par 1'0rganisation des ~ations
Unies, ses organes etlou ses membres».
Or. dans la note 1 à la vage 425, on voit que M. Alvarez. dans son o~inion
dikidente. de 1950,acoiclüque 1'0rganisütion des Nations Unies<ii,aitsucc~dé
ade plein droit" 3 la Sociétcdes Nations.
Comme je l'ai deii indique. le Gouvernenient sud-africain conteste aussi
toute succ&ion, soÜsn'importe quel motif, des Nations Unies aux droits de
surveillance de son prédécesseursur le Mandat pour le Sud-Ouest africain.
On trouve les arguments principaux avancés à l'aooui de son ooinion et ses
conclusions aux paragraphes 46, 55, 56, 60, 61 et 64. Sans me'livrer à une
polémiquesur cette question plusieurs fois débattue devant la Cour, je tienà
répkterque la Cour a accepté cettesuccession.
35. Dans le chapitre VI11de son exposéécrit le Gouvernement sud-africain
waie de démontrerqu'il n'y ajamais eu, ni lors de la dissolution de la Société
des Nations. ni olus tard vendant la ~ériodedes Nations Unies. d'accord
explicite ouimplicite entrc~l'~frique d; Sud et Ics autres parties intéressées
relatif au transfert des fonctions de surveillance du Mandat pour le Sud-Ouest
africüinà l'organisation des Nations Unies. Or. le représentant de l'Afrique
du Sud a déclaré A la s6ance du 9 avril 1946dc la Societédes Nittions, entre
autres. aprés avoir d'abord constate que la disparition des organcs de la
Sociétédes Nations oui s'occuoaient du contrfiledu Mandat emDêcheraitde se
conformer entierement à la letire du Mandat, que
«le Gouvernement de l'Union se fera ..un devoir de considérer que la
disparition dela Sociétdes Nations ne diminue en rien les obligations qui
découlentdu Mandat; il continuera à s'en acquitter en pleine conscience
et avec le juste sentiment de ses responsabilités, jusq;'au moment où
d'autres arrangements auront été conclus,quant au statut futur de ce
territoirea.
Cette déclaration estreproduite a. oa-amaohe 26de I'exooséécritsud-africain.
La Socittédes h'ationso adopté3 w dernie'reséance,tcnbe le 18avril 1946,une
résolution rel<iii\.eau systeme des mandats dont les deux dernier; paragraphes
ont le libelle suivant:
II3.[L'Assemblée]Reconnaît que la dissolution dela Sociétédes Nations
mettra fin à ses fonctions en ce oui concerne les Territoires sous mandat.
niais note que le5principescorresponditntAceux que déclarel'article22 du
l'acte sont incorporés dans les chapitres XI, XII et Xlll de la Charte des
Nations Unies:
4. Note que'les Membres de la Société administrantactuellement des
Territoires sous mandat ont exprimé leur intention de continuer à les
administrer, en vue du bien-êtreet du développement despeuples intéressés,
conformémentaux obligations contenues dans les divers Mandats, jusqu'à
ce que de nouveaux arrangements soient pris entre les Nations Unies et
les diverses Puissances mandatairesu
Ce texte figure à la fin dudit paragraphe 26 de l'exposéécritsud-africain. II ressort du même document quele Gouvernement sud-africain, après que
sestentatives d'annexer le Territoire sousmandat eurent échouésur la résistance
énereiaue des Nations Unies et aorès au'il eut refusédéfiiiitivement de sou-
mettrece territoire au régimede tuielle, ;toutefois déclaréà diversesoccasions
qu'il maintiendrait le statu qiro et qu'il continueraià administrer le Territoire
dans I'esorit du Mandat actuel.
36. L'Afrique du Sud ï soumis aux Nations Unies, confoimement à l'article
73 el de la Charte. en 1947et 1948 pour Ics anneesprécedentes,deux rapports
sur le Sud-Ouest ïiricain. bien au'elle ait laitla r2senie au'çlle considérait aue
ladite organisation n'était pas'compétente pour exercér un contrôle sur'le
Territoire.
Anr6s 1948 elle a cesséde soumettre des raDoorts sous le orétexte aue le
~o&il de tutelle avaitutiliseICSrapports à desias autres que céllcsqui ai3icnt
etc prcvucs. en se prononfant sur la question dc ravoir si l'union sud-africaine
s'était acquittée de facon adéauate de ses resoonsabilités conformément au
Mandat. On ne saurait acccptc; le motif invoqui par l'Union sud-africaine car
l'organe auquel un rapport est soumis doit aifair le droit de le discuter et méme
de critiquer au besoin. La Cour, dans son avis consultatif émisen 1950,a
notamment constaté aussi le maintien en vigueur de l'obligation de l'Union
sud-africaine de soumettre aux Nations Unies des rapports annuels pour le
Mandat du Sud-Ouest africain.
37. Il est vrai que, avant que la Cour se fût prononcée sur le statut dudit
Mandat, les opinions expriméesà l'organisation desNations Unies concernant
cette auestion n'étaient oas claires. Ainsi. on trouve ~-~s le~ comotes rendus
des rr';nions dcs dive; organes des ~a~ions unies, pendant les premières
annccs de son activité, dcs déclarations de certains delég~esimpliquant que les
obligdtions de I'Union sud-afrtcaine en tant que Mandataire auraient cléniodi-
fiéesou diminuéesd'une maniCreconsiderable aprh la dissolution de la Sucicté
des Sations. Les paragraphes 42 à 46 de I'cx~oséesrit sud-africain rendent
compte de cesdéclarations. Mais si on les étudiede plus près on voit qu'elles
sont souvent nuancées etleur pertinence a étécontestéepar des dhclarations
d'autres délégués.
38. Je Dassemaintenant aux avis consultatifs et arrêts antérieursde la Cour
relatifs a" Sud-Ouest africain. IIs'agit toujours de la question de surveillance de
l'administration dudit Mandat. Le Gouverncmcnt sud-africain cstimc quc la
Cour devrait. contrairement à son avis consultatif de 1950:déclarer maiote-
nant que les pouvoirs de surveillance 3 l'égard des mandats, qui avaient été
confL:rcsau Conseil de la Sociétédes Nations, n'ont pas étt transféres,mCme
tacitcmcnt. i I'Assemblér généraledes Nations Unies et que l'obligation de
I'Afriquc du Sud de faire dcs rapports et de rendre compte du Mandat pour le
Sud-Ouest africain a pris égalementfin lors de la dis$olution de la Socictc des
Nations. JeconsidèreI oour ma Dar.. au..ceserait une erave erreur aue la Cour
s'r'cartc à cet égardde'son a\,is presque unanime (12 voix contre 2): Mais exa-
minons les arguments principaux avancéspar Ic Gou\,ernement sud-africain à
I'..oui de sa .roo.sition. II all-eue d'abord au.. deou.s.J950. de nouvelles
rcclierches auraient permis de découvrir de nombreux faits qui n'avaient pas
étésoumis à I'e~arnen dc la Cour en 1950. 11s'agirait de faits, traitcs dans les
chaoitres VI1 et Vlll de I'chnose ecrit du Gouvernement sud-africain. con-
cernant la pratique des Etats entre 1946et 1949telle qu'elle résultenotanhent
desexposcsécritset oraux qu'un grand nombre d'Etats Membresont Faitsdans
descirconstances et dessituations diverseset relativement oeu de temDsa~rèsla
creatioti des Nations Unies et la dis~olution de la ~ociéte'des N~~IO 2R l ,st
soutemi que ces exposésmontreraient que les Membres des Nations Uniesauraient été genéralement d'accord pour admettre qu'aucune fonction de
surveillance relative aux Mandats, non transformés en territoires sous tutelle,
n'ait étéprise en charge. Je me permets de remarquer, en me référant à mes
o~~-~vation~ ~rr~~~entes.au'. .ne saur~.t tirer de la oratiaue des Etats une
telle conclusion. En plus, on ne peut pas parler de la découvertede nouveaux
faits. car tous les documents en question et de la Sociétédes Nations et des
~ations Unies étaientbien connus'en 1950et étaientàla disoosition de la Cour
lorsqu'elle a émis son avis consultatif. Si tous les documents n'étaient pas
soumis à la Cour, ils étaientconsirnés àla bibliothèque de la Cour au palais de
la Paix. IIest difficiled'imaginer qÜela Cour aurait émisson avis sans consulter
tous les documents pertinents.
39. Le Gouvernement sud-africain cite, aux paragraphes 20 à 27 du chapitre
IX de son exooséécrit.les écritsde huit auteurs aui ont critiaué la conclusion
de la Cour dans son a& de 1950concernant le transfert despouvoirs de sur-
veillance. II admet toutefois, au oaragraphe 4, qu-il ~ a d'autresjuristes connus
qui ont approuvécette conclusio~, bien quepour des motifs queledit gouverne-
ment n'accepte pas. Et on peut penser que sinon tous les savants, du moins la
grandemajorité d'entre eux qui ont gardélesilence sur cette question, partagent
l'opinion de la Cour.
40. J'ajoute encore quelques remarques sur l'analyse et lescommentaires du
Gouvernement sud-africain des motifsde l'avis en ce qui concerne le transfert
des pouvoirs de surveillance. Tout d'abord, je me voisobligéd'attirer l'attention
de la Cour sur le fait que le résuméde ces motifs qui figure au paragraphe 6 de
l'exposéécrit dudit gouvernement est incomplet. comme on le voit en le com-
parant au texte original, aux pages 136et 13fdu'~ecrmil clesorréfs. 11ressort de
ce passage que la Cour a invoquéplusieurs raisons comme fondementjuridique
de son opinion. A mon avis, déjà 1s première de ces raisons est décisive.L'in-
tention des rédacteurs du Pacte de la Sociétédes Nations étaiten effet de créer
un système efficace des mandats, ce qui présuppose une surveillance inter-
nationale de l'administration des territoires sous mandat.
Sans cela le régimedes mandats n'aurait eu aucun sens. On n'a pas institue
ce régime seulement pour le profit du mandataire. Le but principal était de
protégeret de développer lesterritoires sousmandat et leurs peuples. Et comme
la Cour l'a bien exorimédans son avis: « On ne saurait admettre aue l'oblieat-on
de w soumettre
surveillînce aura11 dispïru pour la simple ;aison que cet
orçïne de contrale (le Conseil de 13 SOCIC~d~ cs Nûtlons) ilccssc d'cxistc~alors
que les Nations Unies offrent un autre organe international chargé de fonctions
analogues encore quenon identiques n.II ressort de l'article 80de la Charteque
le sort des territoires sousmandat était dans la pens6e aussi des rédacteursde la
Charte et les decisians orises au cours des oremières Assemblée~~eénérales
~. ~ ~ ~ ~ -~
relatives au Mandat du Sud-ouest africain montrent que l'organisation des
Nations Unies avait assumé lesres~onsabilitésconcernant ledit Territoire.
Les autres raisons invoquées par la Cour comme motifs du transfert de
surveillance du Mandat du Sud-Ouest africain confirment la première d'entre
elles, comme il découle du texte de l'avis. Mème si l'on avait quelques doutes
sur la pertinence de certaines de ces autres raisons, la conclusion de la Cour
pourrait êtreacceptée.Je sais que le Gouvernement sud-africain est d'un autre
avis, préférant une interprétationrestrictive accentuée.
41. En ce aui concerne les avis cons-lta~ ~s de la Cour émisen 1955e~ ~956
sur certaines questions se rattachant à l'administration du Territoire du Sud-
Ouest africain. ils semblent renforcer les conclusions auxquelles la Cour a
abouti en 1950relativement à la question de surveillance.
42. La Cour elle-même n'apas pris position, dans son arrét de 1962 relatifaux exceptions préliminaires dans les nouvelles araires du Sud-Ouestafricain,
sur ladite question de surveillance, mais certains membres de la Cour l'ont
traitée dans leurs opinions individuelles ou dissidentes.IIsuffit de citer un pas-
sage du paragraphe 32 de l'exposé écrit du Gouvernemerit sud-africain qui
exprime l'opinion individuelle de M. Bustamante et dont 1steneur est la sui-
vante:
«A mon avis, ce texte du paragraphe 2 de l'article 50 qui est lié avec
celui desarticles77 (paragraphe 1 a))et 81,définitclairenlent l'obligatio-
pressante. dirait-on- des Etats mandataires d'arriver sans retard à la
mise en "igueur du nouvel accord de Mandat. Le raisonnement logique
autorise pleinement cette interprétation, car l'intention des auteurs de la
Charte ne veut oas avoir étécelle d'abandonner indéfiniment à la seule
disir6tion du Mandataire - sans aucun iontr6le - les territoirc5 sous
M.irid21. Cc133urdit dénat~récer\g~mejuridique ainsi que lesintentions de
ceux qui l'ont établi. C'est ce au'on a doneléla ~icundl~tionl~ du Manddt.
laquelie pratiquement seconfond aveci'annexion. i-
Je peux laisser de côtétoutes lesspéculationset lesconclusions douteusesdu
Gouvernement sud-africain tiréesdes motifs de l'arrêtde 1962et de certaines
opinions dissidentes. Ledit Gouvernement reconnaît lui-même que même une
analyse détaillée decesmotifs ne permet pas d'aboutir à uneconclusion claire
quant à l'opinion qu'ont eue vraisemblablement les auteurs sur la question de
transfert de surveillance à l'égard des mandats h l'Organisation des Nations
Unies. Qu'il me soit permis de faire seulement une remarque sur un point
soulevépar le Gouvernement sud-africain. Il allègue que le raisonnement de la
Cour concernant lemaintien en vigueur de 19articÏe 7,paragraphe 2 du Mandat
du Sud-Ouest africain implique que la Cour considère vraisemblablement que
l'article
6 dudit mandat est devenu caduc. l'estime au contraire qu'il n'v a
aucunecontradictii~n logique entre le maintien en \,igueur simultan6nirni deces
deu.~dispositions. Les niodiiications de la situation antr'ricure i laquelle la
Cour a fait allusion peuvent viser autre chose que I'oblieatiori de soumettre ces
rapports annuels co~forntément 3.l'article 6 du.~andarn question, par exem-
ple la disparition de la Commission permanente des Mandats et lasubstitution
dc I'Asscmblce ar'néraledesNations Unies au Conseil de la SnciétCdesNations.
43. En ce qui concerne encore son arrêtde 1966 dans les affaires du Sud-
Ouest africain, la Cour ne s'y est pas prononcée non plus sur l'aspect de la
question relatif au transfert des fonctions de surveillanceà l'égard du Mandat
du Sud-Ouest africain. Le Gouvernement sud-africain soutient toutefois qu'il
découlerait des motifs et desconclusions de la Cour que probablement, si elle
avait étéaprwléeà seprononcer sur ladite auestion, elle aurait statuéen faveur
de la ces..;t;on de la s"r\eillanceIIest vra; qu'il a certains passagesdans les
motifs de I'arrct de la Cour, par cxcmple ceux reproduits aux par~graphes56et
57 de I'cxposc écrit du Gouvernement sud-africain, qui semblent appuyer la
thesesud-africaine. Or, d;ins <esprononcés,on seborne i c~üminer la situ~tion
a l'époquede la SociétedesNationsqurnd la question dc transfert desfonctions
de surveillance n'était pas actuelle. I)u reste. I'arrGt de 1966 était rendu pïr
sept voix contre sept. comme nous le sdvi)ns. Je ne penw pas qu'il soit néccs-
mire de Ic traiter maintenant plusen détail en je passeaussioutre aux opinions
individuelles et dissidentes exprimées var certains membres de la Cour dans
~e~t~ ~ ~ ~ ~.
44. Jetermine cette partie de mon exposépar certaines observations concer-
nant l'administration du Mandat du Sud-Ouest africain, ultérieurement le
Territoire de la Namibie, pour répondre à la question supplémentaire, celle de80 NAMIBIE (SUD-OUES AFRICAIN)
savoir si l'Assembléegénéraleavait aussi des raisons suffisantes baséessur des
faitsde révoouerle Mandat. ce aui a kt6 enalement conteste Dar le Gouveme-
ment sud-africain àplusicur;repr~seset dernièrementdans lechapitre XI de son
e.xposéécrit. Est-cc que le Mandataire 3 assiire et fait acroiire le bicn4tre
matériel et moral..le-.-oerès social ainsi aue le d&velonoement eénéraldes
habitants du Territoire sous Mandat conform2mcnt i 1'ar;iclc22 du-l'acte de la
Sociéic:des Nations et les dispositions de I'Accord de Mandat? Les droits de
l'homme. lesa-t-on resoectés?
45. ~~'Ciouverneme~tsud.africain allegue aux paragraphes I jusqu'à 3 et
dans sesexposésanterieurs qu'il s'estconforme aux obligations du Mandataire.
qu'il a pris bien soin des besoins matériels etmoraux de la population du
Territoireet qu'il est dans l'intérétdes habitants indigénesde continuàrêtre
administrés par l'Afrique du Sud, Etat limitrophe. Selon lui, la campagne
oolitiaue dirigéecontre lui Dar la maiorité des Etats Membres des Nations
'UnieLst basle sur des informations fausses et des renseignements insuffisants,
et le seul but en serait de permettre au Territoire d'accédàrl'indépendance
pour former une seule et mêmeentité politique constituant une fin en soi,
indépendamment de toutes autres considérations, ce qui porterait gravement
préjudiceaux habitants du Territoire.
46. D'abord il v a eu certaines difficultàsse orocurer les movens de ren-
seignement objectifs sur lesconditions rkllcs rcla;i\es audit 1errit;ire. Ainsi le
Gouvernement du Nigeria se plaint au pîragrïphe 14de son exposéécritque
le Gouvernement sud-africain svstém$iauement refusé d'accueillirle conseil
des Nations Unies pour la Namibie, charg'éde l'administration dudit territoire,
en déclarant qu'au cas ou celui-ci parviendrait à y +nétrer, il ne pourrait
earantir la sécuritéde ses membres.~~ne source imvortante a étéil va lone-
ïcmps lesdCclarütionsdes pétitionnaireshites uu cornite du sud-0ue; africarn
de I'Organiulion des Nations L'nies.Le C;ou\.crnementsud-africain allégueau
naraera~he 16 aue ces pétitionnairesseraient des eorofessionnels>)et aue leurs
decliraiions seraient, pïr conséquent,douteuses. orildé~ouledu p&agraphe
30que les rcprt?sentantsdudit gouvernement n'ont jamais assistéaux auditions
desiétitionnaires. Il v a lieu de mentionner encore à ce orooos aue I'Afriaue
du sud n'a pas non pius transmis à l'Assemblée généraldees Nations uniesies
pétitions deshabitants du Territoire du Sud-Ouest africain.
47. Aux Dara~raDhes68 et 69 il est dit oue les habitants n'ont iamais formé
uneentitéhomoiérieet qu'ils désirent conserver leurpropre identhé.Pour cette
raison on ne pourrait parler d'un peuple du Territoire et on a étéobligéde
créer~our chaaue réeion une oroire.nre~-isation nolitiaue. économiaue et
social;. IIsemble cependant quel'on exagèreun peulésditficullésde l'organisa-
tion; il existe des siiuations semblables ailleurs en Afrique et aussi dans In
autres continents. ce aui n'a pas emoéchéde constituer des Etats indéoendants
viables sur ces te~ritoires. un-procbde, auquel on a souvent eu recours.dans des
conditions pareilles, est de former un Etat féderal.
48. Le ouv verne m sue-aricain indique au paragraphe 83 de son exposé
qu'il a accordéaux trois plus grands groupes de la population une espèce
d'autonomie, mais nous ne connaissons pas les détailsde ce nouveau régime
et comment il fonctionne en oratiaue.
49. Aux paragraphes 87 et 88 ii est allégué que,nonobstant les conditions
defavorables dans un pays de grande étendue et de faible population, le déve-
lo~wment économiaue.surtout nendant les dernieres années.a été satisfaisant
grâce aux efforts etl'aide financiérede l'Afrique du SudAU paragraphe 142
et aux suivants on cherche à démontrer, entre autres par la statistique, que
I'education et l'enseignement ont atteint un haut niveau. Selon les exposesqui figurent aux paragraphes 151 à 157, les services sanitaires sont également
satisfaisants en comparaison de ceux de certaines autres régions africaines.
50. Tout cela parait bon sur le papier; espérons qu'il en est ainsi aussi en
réalité.Or. en étudiant ce long exoosé. on constate que certaines auestions
importantes et particulièremen~celies d; respect des iroits de l'homme et de
la politique du Gouvernement sud-africain dite d'aparfheid ont étélaissées
entièrement de côté ou n'ont rec...ue oeu d'attention. II est vrai aue. aux
pascs 48 et 49 de Sourh WVJI AJiica Survry 1967. l'annexe A du rh<pitke XI
de l'exposéécrirsud-africïin, le problCme de I'aparrheidest briévementtrairC.
Les raisons avancées pour sa défense ne peuvent cependant convaincre le
lecteur, les faits réelssont trop bien connus partout. 11suffit d'étudierla Iégis-
lation sud-africaine, par exemple la loi contre le terrorisme (Soirth Afiicm
Terrorism Act). adovtée en 1967. et les règlements administratifs qui sont
tous, par leurstermës et dans leur application, arbitraires, déraisonnables et
injustes et par lesquels on tendà supprimer les droits et les libertésdes habi-
tants du Territoire. II s'agit de faits notoires que I'on ne Peut Pas nier.
51. L'Afrique du Sud a donc exercé ses de ~LdaÏaire d'une façon
incompatible avec le statutnternational du Territoire. On ne saurait permettre
la continuation de ce régime inhumain et tout autre que satisfa&nt. Les
interventions des ~ationi Unies pour remédier à la situation ont étébien
motivées et nécessairesde tous les points de vue. L'Organisation possèdedes
moyens excellents pour administre;, assister et développer le Territoire eta
population en ayant comme but ultime son indépendance.
VIII. Révocabiiifédu Mandat
52. Dans mon exposéhistorique j'ai déjà touché par quelques remarques
la question de la révocabilité desmandats en général etde celui du Sud-Ouest
africain particulièrement. J'ai alors souligné la nécessitéd'un droit de révo-
cation comme complément de la surveillance efficace dans le système des
mandats et j'ai aussi essayéde donner une explication acceptable des raisons
pour lesquelles l'article 22 du Pacte de la Sociétédes Nations qui établit les
principes généraux gouvernant le régime des mandats et le Mandat du Sud-
Ouest africain ne contient DaSde disoosition exoresse relativeà la oossibilite
de révocation.Je me permeis de me référeren pl& au paragraphe 5 de l'exposé
écritde mon gouvernement, où il présente des arguments à l'appui du droit
de révocation et où I'on trouve aussi auelques référencesaux ooinions de
certains auteurs et d'un ancien membre dela Cour, qui défendent tous la
thèsede la révocabilité.
53. Le Gouvernement sud-africain ainsi sue le Gouvernement francais. dans
leurs exposéskrits, ne partagent pas ces opinions. Ces deux gouvememcnts
esiimcni que ni13 Societédes Nations ni Irs Nations Unies n'ctaient juridique-
ment habilitees .i révoauer Ic Mandat du Sud-Ouest africain et-qu.. var con-
séquent,la vingt et unieme Assembléegénérale deN s ations Unies, en adoptant
la résolution 2145, avait outrepassé ses pouvoirs. Je laisse pour le moment de
c8té la question de la validité formelle de ladite résolution, pour examiner
d'abord les arguments principaux avances par le Gouvernement sud-africain
à l'appui de sa contestation.
54. Je suis d'accord avec leditgouvernement sue la Societédes Nations
ne possédaitpas le droit de révoquerles mandats a volonté.Il y faut évidem-
ment des raisons sérieuses,à savoir que le mandataire ait gravement manqué
à ses obligations, comme l'exigent la majorité des auteurs qui acceptent le
droit de révocation. Or, le Gouvernement sud-africain se trompe quand ilpritend, au paragraphe 66du chapitre VI1de son c~poséécrit,que I'AssrmblCc
génèrale desNations Uniesaurait adopté sa résolution 2145 à la Iégcre.Comme
je I'aidCjàdémontré,et comme ilest reconnu presque unanimcmcnt, l'Afrique
du Sud s'est rendue coupable penkint une longue pr'riode de plusteurs sortes
de manquements 3 ses obligations cn tant que Piiissance mandataire du Sud-
Ouest africain
55. Déjàle fait seul que le Mandataire avait omis de soumettre des rapports
annuels à l'Assemblée générals euffit comme motif valable pour la révocation
du Mandat. comme il a été soulianédans l'exposéécritde mon gouvernement.
56. aisr reveno ànI'époquede la Sociétedes Nations. Le Gouvernement
sud-africain dit au paragraphe 68 de son exposé écritque I'on ne peut pas
ap..iq.er une règle de droit international indépendante de l'intention des
parties et qu'ellesàuraient aussi la libertéde s'entendre pour ecarter I'applica-
tion des règlesde droit international. II en est ainsi, en règle général,ar la
plupart des normes de droit international ont un caractère facultatif. Quant
. .
aux règlesde droit impératives (jus cogens), je ne pense pas non plus qÜ'elles
soient applicables pour garantir la possibilitéde révocationdes mandats. Qu'il
me soit, toutefois, permis de constater à ce propos, en passant, que l'on consi-
dère gen~ralement~ue les normes du droit dc I'hommr relevent du ,115rog(,»r.
57. 11existe cependant d'autres exceptions à la règlequ'un rapport jur~diquc
contractuel peut étrerompu mêmecontre l'intention originale des parties. La
nouvelle convention de Vienne sur le droit des traités adoptée en 1969, mais
qui n'est pas encore entrée en vigueur, contient plusieurs motifs qui peuvent
êtreinvoquésDarles ~arties pour mettre fin àun traité.II suffitde citer I'article
60sur lesconséquences de laiiolation grave du traité par une partie, mentionné
déjà par mon gouvernement dans son exposé écrit. Le Gouvernement sud-
africain conteste l'aoplicabilité du ~rincice contenu dans cette dis~osition
dans le cas présent,'parce sue 130rganisaiion des Nations Unies n'était pas
partie à raccord sur le Mandat du Sud-Ouest africain. Or, la Cour a constaté
dans son avis consultatif. rendu en 1950. comme ie I'ai déiàsouvent indiaué.
que certaines fonctions i'mportantes de la ~ociéti des aii ion ont ététrans:
féréesà l'Organisation des Nations Unies qui a pris la place de son prédéces-
seur dans le systèmedes mandats. Un rapport jÜridiq"e a étéainsi constitué
entre les Nations Unies et les mandataires.
58. J'admets que l'intention des auteurs du système des mandats est un
facteur important, mais non décisif - comme il ressort de ce que je viens
de dire - lorsqu'il s'agit de déterminer si le mandat est, en droit, révocable
ou non. J'ai soutenu qu'un tel droit était implicitement introduit dans les
mandats. Le Gouvernement sud-africain. de son côté. essaiede démontrer le
contraire. aux paragraphes 73 3 88 de son expi,séécrit. en invoquant, entre
autres, des faits historiques. A mon a\,ni,les travaux prtparatoircs de l'article
22 du l'acrede la Socir'tedes Nations ni ceux du Mandat du Sud-Oucst africain
ne prouvent que l'intention aurait étéd'exclure ledit important droit de révo-
cation du systèmedes mandats. Dans ces travaux préparatoires on trouve des
prononcés tout à fait contradictoires, comme je I'ai déjàindiquéet comme il
ressort du paragraphe 77 de l'exposé écritdu Gouvernement sud-africain.
59. Aux paragraphes 80 et 81 ledit gouvernement, en parlant toujours de
l'époquede la Sociétédes Nations. fait valoir au'un droit de révocation sans
celui de nommer un nouveau mandataire n'a& ét6d'aucune utilité. Or,
si I'on estime que la Sociétédes Nations était vraiment dépourvue du droit
de substituer un autre Etat ou elle-mêmeaux fonctions du mandataire, il
restait toutefois la possibilité de laisser la désignation du successeur aux
Principales Puissances alliéeset associées. 60. Le Gou\.ernement sud-africain se rcfcrc encore, au paragraphe 83, au
Pditque, conformCmcnt aux dtsposiiions du l'acte de la Soc16tCdes Nations.
toute décision du~Conseil relative à un mandat déterminé étaitsubordonn-.~~~~..
à l'accord unanime de tous ses membres, le représentant de I'Etat mandataire
y compris, de sorte qu'une décision de révocation du mandat n'aurait ou
être prisecontre sa volonté. Or, la doctrine a étédiviséesur l'existence d'in
tel droit de veto et mèmedans lecas affirmatif on ne saurait admettre un recours
abusif à cemoyen.
61. Ouant à l'attitude de la doctrinà l'éaardde la auestion orincioale de
la révocabilitédu Mandat, elle est divisée,-comme il ést indiqié aux para-
graphes 89 à 93 de I'exooséécritdudit Gouvernement sud-africain. Je n'oserai
pasparler, contrairement audit gouvernement, d'une majoriténette pour l'une
ou l'autre opinion, et la valeur des divers arguments peut aussi êtrediscutk.
Je me borne à constater que ce gouvernement a omis de mentionner dans son
énumération des partisans de la thèse de la révocabilité unauteur des plus
connus, Paul Fauchille, cité par mon gouvernement dans son exposé écrit,
bien sue son nom figure dans un autre oassage de l'ex~oséécrit sud-africain
plutôt comme adversaire de la révocabilité.Deux autres juristes classéspar
ledit gouvernement comnie appartenant au mêmegroupe, G. Diena et Duncan
Hall, ne se sont pas exprimés clairement sur le problème en question. Qu'il
me soit permis de rappeler encore que les études approfondies de l'Institut
de droit international aboutirent en 1931 à l'adoption, sans voix négatives,
38 oour et 18 abstentions. d'une résolution sur les mandats internationaux
dont l'article VI1 prévoitque les fonctions de I'Etat mandataire prennent fin,
entre autres, par décision du Conseil de la Sociétédes Nations relative à la
révocation du mandataire et par les modes habituels d'expiration des engage-
ments internationaux.
62. Je passe maintenant à l'exposéécrit du Gouvernement français. II est
dit. aux .a.es 21 à 23. ou l'on discute le bien-fondéde la résolution 2145 de
13 \.ingt et uniémc~rsekblr'e gcnerale. que le manquement au; normes inscriies
dans la Decl3rütion universelle des droits dc I'honime ne peut pas Cireini,oqué
citmme motif Dour la révocüiion du Mandat du Sud-Ouest dfriciiin. Certes.
ladite déclaration n'est pas comparable à un traité international qui lie lei
parties. Or, le respect des droits de I'homme est un des principes directeurs
de la Charte, et on oeut dire que l'article 22 du Pacte de la SociétédesNations
ainsi que le ~andaf du sud-ouest africain tendent aussi à protéger au moins
certains des droits de I'homme. Comme je l'ai déjàindiqué, le Gouvernement
francais reconnait aue I'Afriaue du Sud n'a oas res~ecténon olus les termes
du hlatldat. mais lc'd,tgou\e;nerncn~ estirnr due ce'f~it ne donne pÿs iil'As-
semblée generalc le droit de prononcer la dcchCdnccdu mlindlitaire.
Le Gouvernement français, en se ralliant à l'opinion du Gouvernement
sud-africain, soutient en plus que le Pacte de la Société desNations n'avait
pas donné au Conseil la compétence, même implicite,de mettre fin à un
mandat. Par conséauent. il n'admet oas aue l'Assembléegénéraledes Nations
Unies ait recueilli du conseil de la~ociéiédes Nations un pouvoir de révoca-
tion. Le Gouvernement français souligne encore que la Cour, dans son avis
de 1950, avait oosécomme orincix. entre autres. aue le degréde surveillance
à exercer par ~'~ssembléeGnerak des Nations unies sur léMandat du Sud-
Ouest africain ne saurait dépasser celui qui avait étéappliqué à l'époquede
la Société desNations par son Conseil, et ajoute:
eLors mëme, en 1956,que la Cour a interprétéson avis de 1950comme
signifiant que l'ONU recueillait les pouvoirs, non pas seulement effective- ment utilisés par le Conseil de la Société des Nations, mais aussi bien
ceux qu'il n'avait pas mis en Œuvre bien qu'ils lui fussent théoriquement
conférés, ellen'a pas un instant admis que les pouvoirs des Nations
Unies ...à propos du Mandat puissent êtreradicalement plus étendus
que ceux du Conseil de la Société des Nations. Or, il est bien clair que
c'est cependantà cette conclusion que l'on arrive si l'on admet que l'As-
sembléegénérale ale droit de priver un mandataire de son mandat.n
Nous voyons que les arguments du Gouvernement français suivent d'assez
près ceux du Gouvernement sud-africain déjàtraitésDar moi. En ce qui con-
cerne particulièrement la dernière conclusion, je me permets de faireobserver
que, mémes'il est vrai que le droit de surveillance et de contrdle des mandats
est étroitementlié avecceluide révocation,on ne saurait lesconfondre. Comme
j'ai essayéde le démontrer, il est possible d'invoquer aussi des motifs indé-
pendants, comme les principes générauxdu droit, à l'appui du droit de révo-
cation.
63. Le Gouvernement français soutient encore que même lesmanquements
de l'Afrique du Sud à l'égarddes principes de la Charte ne peuvent pas être
considérés commeun motif valable de révocation du mandat, parce que la
Charte a déjà établi une sanction spécifiqued'une autre nature pour ce cas.
II s'agit de l'article 6 qui prévoit que,si un Membre de l'organisation enfreint
de manière persistante les principes énoncésdans la Charte, il peut êtreexclu
de l'organisation. l'estime, pour ma part, que cette disposition ne saurait
êtreinterprétéede façon que l'organisation soit empêchéede recourir à cer-
taines autres mesures plus adéquates contre un mandataire qui a méconnuses
obligations internationales de diverses natures, comme dans le présent cas.
IX. Validiréereffetjuridiquedela résolution2145 (XXI) del'Asssembléegénérale
64. La auestion de la validitéet de l'eff.--~.~>~~~-~ ~ -~.-~~~~~on 2145 de
la vingt et'unième Assembléegenéralerelative à la cessation des droits de la
Puissance mandataire du Sud-Ouest africain, est étroitement liée à la question
de la révocabilitédes mandats que je viensd'examiner de certains points de
vue à la lumière des exposésécrits du Gouvernement sud-africain et du Gou-
vernement français. Le premier d'entre eux a consacré dans son exposé écrit
encore deux chapitres entiers à l'analyse et à la critique de ladite résolution.
Ainsi il dit au paragraphe 4 du chapitre VI, en s'associant à l'opinion déjà
examinée du Gouvernement français, que les violations de la Charte n'habi-
litent pas l'Assemblée génerale à trancher les liens entre le mandataire et le
territoire soumis au contr8le de l'Assemblée,ni à placer ce territoire sous la
responsabilité directe des Nations Unies. Darce que la Charte n'accorde vas
detels pouvoirs. Je reviendrai encore sur-cette question. Le ouv verne ment
sud-africain ajoute, au paragraphe 5, que la resolution 2145semble êtrefondée
seulement sur les ~ouvoirs de contrôle dont l'Assembléegénéralese réclame
relativement au ~andat du Sud-Ouest africain, car l'~sse%bléegénéralen'a
pas prétendu agir en tant que partie contractante à l'Accord de Mandat.
Plus loin, au paragraphe 16, ledit gouvernement allègue que, en adoptant la
résolution 2145, l'Assembléegénéraleaurait outrepassé ses pouvoirs de con-
trôle et ceux que lui confère la Charte. Je me permets de me référer à cet
égardàce quej'ai déjàdit sur ces questions et aux commentaires que je ferai
en passant maintenant sur le chapitre X de l'expos-5écrit du g ou verne ment
sud-africain où il développe plus amplement ses idéeset ses assertions.
65. Ce chapitre commence (au paragraphe 1) par l'allégationque même enadmettant les hypothèses que I'Assemhlk généraledes Nations Unies est
fond& cn droit i exercer les functions de surveillance sur Ir Manda[ du Sud-
Oiiest africain précédemmentexercéespar la Sociétédes Nations, et que les
pouvoirs de la Sociétédes Nations en la matiérecomprennent notamment le
pouvoir de révoquer ledit mandat, IAssemhlée généralen'étaitpas elle-méme
habilitée par la Charte à révoquer ce mandat, et qu'en conséquence la réso-
lution 2145, par laquelle elle a prétendu le faire, dépassait le cadre de ses
compétenceset n'avait aucun effetjuridique.
66. Le Gouvernement sud-africain prend aussi cette fois comme point de
départ I'interprétation textuelle en disant (au paragraphe 2) que la nature et
la portée des pouvoirs de l'Assembléegénéralene peuvent êtredéterminées
aue d'aorks les termes de la Charte elle-même.
-La compétence de l'Assembléegénéralese déduit de plusieurs articles de
la Charte, mais la disposition principale qui nous intérmsedans le cas présent
est sans doute l'article 10. comme~le soulinne-aussi ~-~Gouvernement sud-
africain. Cette compétence est trk large en ceci que 1'3rticle 10autorix l'As-
semblée générdle3 discuter toutes questions ou aiïaires rentrant dans le cadre
de la Charte et - sous réservedesdisoositions de -~a-~ ~ ~ 12 oui concernent
la compétencespécialeet prioritaire du 'Conseilde sécurité à 19ég&d de certaines
questions - à formuler sur ces questions ou à faire des recommandations,
&tre autres, aux Membres de l'Organisation et à certains de ses organes.
D'un autre côté, il decoule de ladite disposition que les décisions prises en
vertu d'elle n'ont pas, en règle générale.de force obligatoire, contrairement
aux autres décisions de l'Assembléeaénéraleconcernant. Dar exemole. des
questions institutionnelles ou financikres. Je suis donc grosso modo &accord
surce qui est dit àcet égardaux paragraphes 4 à7 de I'expod écrit sud-africain
où l'on trouve au.lau.s référencesaux travaux orenaratoires et à la doctrine.
67. Toutefois, je suis obligé de faire une réserve. Les résolutions de I'As-
semblée générale contiennent souvent des constatations de faits ou de situa-
tions qui peuvent servir de base ou donner lieu à des conséauences iuridiaues.
surtout s'il s'agit d'une constatation importante qui figure aux diSpositifs et
non seulement dans le préambule de la résolution, adoptée avec une large
maiorité. on oeut faire valoir aue tous les Membres. v c..oris ceux aui ont
\,olécontre ou se sont abstenus lors du vote. dewdient accepter cette constîta-
lion faisant 3utorité dr l'organe principal de I'Organisstion universelle et agir
et adaoter leur comoortement conformément à elle.
On &ut donc dire que de telles constatations ont une certaine fom~eobliga-
taire. Je me permets de rnr rtfcrer àcet égar3 I'ccuvrerécentedc M.Castaneda
intitulée:/.t,.quf-ffc,îof Litired NrirjonrKrsolririo,!..itéedtji par le Gouver-
nement tinl~ndais dans son chpose ecrit, et pxticulièrement aux pages 117et
suivantes de celui-ci, où les eiïets juridiques des rCsolutiuns de I'Assemhlic
généraleont été examinesde facon aoorofondie à la lumière de la doctrine et
de la pratique des Etats. Or ;'admets mtme temps que toutes les rtsoluiions
de l'Assembléemanquent de wnctions. IIest regrettahlc que les Etats Membres
oucertainsd'entreeuxneto iaesncomnote de ces constatations de l'Assem-
blée,qui n'a pas le pouvoir d'aller plus loin. Or, le risultat pcut 2tre que cette
indifierence ou inobservance ~.rk une situîtion telle que le Conseil de sécurité
estime nécessaired'intervenir en recourant à ses oouvoirs étendus.c. qu--peut
arriver aussi dans lecas de la Namibie.
68. Je passe maintenant à l'examen dela résolution 2145 qui, selon l'opinion
du Gouvernement sud-africain, constitue un excèsde pouvoir de l'Assemblée
générale etserait, par conséquent, dépourvue de tout effetjuridique. II est dit
d'abord, au paragraphe 8 de son exposéécrit, que le point capital de cetteresolution est son paragraphe 4 du dispositif, aux termes duquel I',\ssemblee
eCnéraledecideque IcMandai du Sud-Ouest africain est termincet que li\frique
du Sud n'a aucun droit d'administrer le territoire en auestion aui désormais
relève directement de la responsabilité des Nations uni&. Ledit gouvernement
ajoute (au paragraphe 9 de son exposé écrit)que: (rll ressort clairement du
texte du oaraaraohe 4 au'il ne orétendvas avoir le caractère d'une recomman-
dation»,-quej'~&embfée a dépasséle Cadre de ses cornpetences et que ladite
disposition est doncjuridiquement invalide. Puis (au paragraphe 11) il est dit
oue: aComme la validité du reste de la résolution déoend de cette décision
(contenue au parügraphe 4). 11s'ensuit que I'en~emblede'ldr6solution na aucun
eiTeijuridiquç 1 A l'appui de son avis, ledit gou\'ernemerit clte (ait p~ragr~~he
10deson exposé)sixauteurs.
69. N'étant pas d'accordavec lui quant àla nature et à l'effetjuridique de la
résolution en cause, je me borne, pour commencer, à citer seulement un juris-
~-ns~-te. à savoir celui dont ie viens de or.noncer le nom. M. C.staiie~a~ II ~ ~ ~
soutient, pour les raisons déjà mentionnées,que cette résolution est complè-
tement valide et qu'elle a les mêmeseffetsjuridiques qu'il faut conférer aux
autres résolutions de l'Assemblée, adopté& par-une jarge majorité et qui
contiennent desconstatations importantes.
70. Il me semble que l'interprétation du Gouvernement sud-africain du
paragraphe4 de la rcr1;lurionn'cil pascorrecrc. IIs'estprob.iblcntcnt Idissctrop
intluencer par l'expression Dcctde 1qui figure au début de Idditc disposition.
En vérité. il ne s'agit pas d'une décision.encore moins de caractère obligatoire
dans le sens strici si on lit attentivement tout le texte de la résolucon, le
préambuleet les dispositifs, on voit qu'elle necontient qu'une décision.IIs'agit
du paragraphe 6 relatifà la constitution d'un Comité spécialchargéde tâches
On ne saurait prétendre que l'~ssembléëait dépasse sa compé-
tence à cet égard.Toutes les autres dispositions de la résolution consistent en
constatations, déclarations, invitations et orononcts comparables. En ce aui
concerne pariiculierement le paragraphe4 iu dispositif. ild"it étrclu conjoinie-
ment ave; le paragrsphe precedent (3) aiiquel le mot , donc reni,oic. Le para-
graphe 3 se lit textuellement comme suit:
IDéclareque l'Afrique du Suda failli à sesobligations en cequiconcerne
l'administration du territoire sous mandat. n'a vas assuré le bien-être
moral et matérielet la sécuritédesautochtones dusud-ouest africain et a,
en fait, dénoncéle Mandat. 3)
Voici assez de motifs pertinents pour la cessation du Mandat. Prise à la
lettre, il découlede ladite-disposition que l'Afrique du Sud, par son comporte-
ment condamnable, a terminé elle-mêmele Mandat. L'Assemblke n'a que
constatécefait. De même l'exoression irconclut »au début duoaraaraohe 5 Deut
conduire .4deserreurs, car, en'fait, l'Assembléey constate ceQui est 1& devoir de
l'organisation elle-même.Or, bien qu'il ne s'agisse que de constatations, il
découlede toute la résolution. . . cornoris le oréambule. aue l'Assemblées'est
occupéedequestionsgraves.Voiciunc raison de plus pour que tous lesMembres
de I'Orpÿnisation accordent une attention spéciîle j.la rksolution et autant que
possible se conforment aux constatations et invitations de l'Assemblée.
71. La résolution a été adoptée, commenous le savons, à une très large
majoritéavec seulement deux voix contre et trois abstentions. Dans la pratique
la oluoart des Etats Membres ont acceptéles invitations de l'Assembléeet se
soit conformes aux constatations contenues dans la résolution. Le Conseil de
sécurité,dont l'attention sur la résolution a étéappelée,au paragraphe 8 de
celle-ci, a confirmé à plusieurs reprises les constatations les plus importantes dela résolution dans sespropres résolutions et a pris diverses mesurestendant B
la mettre en Œuvre. La plupart des Etats Membres et même certains non
membres ont collaboré avec l'Assemblée et le Conseil dans l'affaire de la
Namibie oour aider ce territoire et sa nooulation. commenous le savons.
72. nio o r eelques mots pour expliquer pourquoi l'Assembléegénéralea
assume la responsabilité directe du sort du Territoire de 13Namibie. en \rrtu du
paragraphe 4 de la r>solution. Une fois ctdbli que l'Afrique du Sud n'a plus le
droit d'administrer ce territoire, quelqu'un d'autre doit s'occuper de cîtte t;iche
importante jusqu'su moment ou le Territoire sera prCt 3.le faire lui-nieme. On
neoeut nasle laisser ~-ns i'~ide et~~'a~si- ~ -e nécessairea su mom~nt~ ~itiaue.
QU;seraytpluscapable de prcndre la placede l'ancien maitre que l'Organisation
des Ndtions Unies qui. conformCment B 13 Chme. 3 aussi des funcrions et
obli~ÿiions spéiifiques rcldti\es aux territoires non autonomes et qui a d6jih
exercélongtemps desfonctions de surveillance et de contrdlr sur le ierritoire en
question? Ce n'es! pas la premicre fois nue I'Orcanis3tion a administré des
territoires lors d'uni périoie intermédiaire comméles précedentsdu Territoire
Iibrc de'lricste. du partage de la I'ilestine rt de I'lrian occidental le demontrent.
II est vrai que, dans ces cas. l'administration s'est faite d'accord avec toutes
les nuissancës intére~-~~sn.uint ~ ~ ~~ ~ ~ ~ ~ ~ ~ ~unconflit entre l'ancien etle
nouvel administrateur légal. Or, on ne saurait abandonner le territoire en
question B la merci de I'ancien Mandataire. II est à espérerque celui-ci selaisse
encore convaincre de la justesse desmesuresprises par les Nations Unies et de
leurs bonnes intentions dans cette affaire.
X. Conclitsions
Je termine mon exposéDar les conclusions suivantes:
I>remicrenient. la Cour est çomp~tente pour traiter I'afiaire présenteet il est
fort souhaitable qu'elle rende l'avis consultatifdemandC.
Deuki+mement. la résoluti<in276 (1970) du Conseil de scciiritC des Narions
Unies cri \alable du point de vue formel ci intrinséquc.
Iruisi&mement, 13présencecontinue desautoritCs sud-afriiaines en Nainihie
est illémle et en conséquencetoutes les niesures orises par le Gouvernement
sud-afrTcain au nomde fa Namibie ou en ce qui laconcerne apres la cessation
du Mandat sont illégales et invalides, conformément au paragraphe 2 du
dispositif deladite résolution.
~uatri&mement, tous les Etats Membres des Nations Unies, en particulier
ceux qui ont desintérêtséconomiqueset autresen Namibie, devraient s'abstenir
de toutes relations avec le Gouvernement sud-africain qui sont incompatibles
avec ladite clause.
Cinquir'menient, la résolution 2145 (XXI) de I'Asîrmblée gcncrale des
Nations Unies, par Iaqucllc elle a déclare: primo, que l'Afrique du Sud a iailli 3
sesoblieations en ce aui concerne I'admiii~ ~ation ~u ~er~ctoire sous Mandat.
-
n'a pas assuréle bien-êtremoral et matériel et la sécuritédes autochtones du
Sud-Ouest africain et a, en fait, dénoncéle Mandat qui est donc terminé,
secrindo.nue I'Afrioue du Sud n'a aucun autre droit d'administrer le Territoire
qui désormais relébe directement de la responsabilité de l'organisation des
Nations Unies, est valable; et, en conséquence,i'Afrique du Sud est tenue de
retirer surde-champ son administration dÜ Territoire.
L'audience esrlevéeà 13 h THlRD PUBLIC SITTING (10 II 71, 10am.)
Presenr: [Seesitting of 8 1171.1
ORAL STATEMENT BY MR. ELIAS
REPRESENTATIVE OF THE OROANlZATlON OF AFRlCAN UNITY
Mr. ELIAS: MI. President and Members of this honourable Court, may 1
begin by saying that myjunior and 1consider it a great privilege and an honour
to be appearing for the first time before this Court onhalf of the Organization
of African Unity in connection with the question referred by the Security
Council under its resolution 284 of 1970, namely, "What are the legal conse-
quences for States of the continued preseoce of South Africa in Namibia,
notwithstanding Secunty Council resolution 276 (1970)?'
The importance of this occasion is underlined by the fact that it is the first
time that the Security Council is requesting the advisory opinion of this, the
principal judicial organ of the United Nations. It is also the fint time that the
Organization of African Unity is privileged to appear in any proceedings before
this honourable Court. It will be our endeavour to assist the Court in any way
wecan.
1propose to examine the following brief questions:
(a) the question of the validity of the resolutions of the General Assembly,
especially resolution 2145(XXI);
(b) the resolutions of the Security Council, especially resolution 276(1970)and
the issue of abstention;
(ci links between General Assembly resolutions and those of the Security
Council:
(dl thecom~etencr ofthe United Nations IO re\,oke South Africa's Mandüte;
le) breaches by South Africa of her international oblications: and
(f) legal consequences for States of the continued preseoce of South Africa in
Namibia.
1then propose to make a number of submissionsfor the consideration of the
Court.
The first question:theqifestiotrof the validityof rheresolutionsofthe Cenerai
Assembly, especiallyresolurion2145 (XXI). It is proposed to consider this
subject under the following items: fint, the objection that there is no express
power of revocation provided for under the League Covenant and that there
can therefore be no imolied oower. This cannot be seriouslv maintained. in mv
submission. While duri& théperiod of the League the quescion does not appe&
to have ken settled, the writings of iurists would aDDearto indicate that the
Leîguc \vas regardcd as possc&ing-the power to-àbrogate a mandate for
breaches of an! of its fundamental conditions. Thus Wright wrote, in his
Alo»duresUndrr rheLeopueuf A'uriu~~r 1.930.as follous,31pages 440-441 :
"Whether the League can appoint a new mandatory in case one of the
present mandatories should cease to function has not been determined.
Nor has it been decided whether the League can dismiss a mandatory ORAL STATEMENTBY MR. ELIAS 89
though both Powen mav be im~lied from the Covenant assertion that the
mandatories kt 'on behalf of ihe League', and members of the Perma-
nent Mandates Commission have assumed that they exist. Furthermore,
it would seem that the mandate of a aiven nationwould automaticall;
came to an end in case the mandatoiceased ta meet the
stated in the Covenant and that the League would be the competent
authority ta recognize such a fact.... Since the areas subject to mandate
are defined in article22 of the Covenant it would seem that the League,
whose competence is defined by the Covenant, could not withdraw a
territory l'romthe status of mandated territory unless through recognition
that thecondiiionsthere defined no longerexist in the tcrrirory."
Again, reference may hcmade to General Smuts' well-knou,n monograph,
TiteLea#uro/.V<iriufrs---APrucriculS!i#~esrion,1918, in uhich he expressed the
following opinion regarding modification of mandates:
"ln case ofany flagrant and prolonged abuseofthis tmsr, the populariun
concerned should be able to appeal for redress to the Leÿgue who should.
ina proper case,assert its authority to the fulleven ta theextent ofremoving
the mandate and entmsting it ta someother State if necessary."
While it is tme that the Covenant of the Leaaue did not finallv include such
a provision, evidence eisis thal the permanent Mandates ~omkission <vasof
the view th31the League could revoke a mandate in the event of a fundamental
breach ofits obliaation bv a mandatow.
One might alsirefer to-the work of ~rofessor CienryRolin inconnesiion with
the Cdrnbridgc session of the Instiiute of International Law in 1931. In his
report written in 1928there occurred the following passage:
"The mandatory has an acquired right which can only be revoked in a
case in which the mandatory has gravely violated his obligation .. .It is
for the Council acting aloneto revoke a mandate."
The following passage also occun in Volume II of the 36rh Annual of the
Insririireof Inrernationallow, 1931,at page 60:
"The dutiesof themandatory Stateshall be ierminaied bythe resign~tion
or discharse of the mandatory by the usual terms governing expirations of
international commitments and also by the annulment of the mandate and
recognition of the independence of the community under mandate."
1would like ta refer the Court ta the written statements, 1, pages 857-860,in
which occur very useful and extensive citations of the views of publicists,
including those of Professor Alfred Verdross, to the effect that revocation-
"... would be the eauivalent of unilateral termination of a treatr in
response to breach by'the other party of its obligations. In such cirium-
stances, unilateral termination was permitted hy the general principles!of
international law."
Verdross has since received popular support for this view,in Article 60 of the
Vienna Convention on the Law of Treaties. It will be sufficient to cite Oppen-
heim before leaving thispart of my submission. He says:
"Although the majority of Trusteeship Agreements provide that the
territories inuestion shall be administered as an 'intemal nart' of the
~dministering'~iate, it suasmade clear at the time of the approval of the
Agreements thîi thît phrase does not imply any clîim to sovereigniy over the trust territories. mat fact of delegation [and 1 would respectfully
underline that part] implies also the ultimate power of revocation in case
of abuse or failure of the trust vested in the Administering State." (Inter-
narionalLaw, Vol. 1,7th impression, 1961,pp. 237-238.)
Judge McNair, in his separate opinion in the Starus of South Wesr Africa
case, while acknowledging with the majority that it is "not possible to draw
conclusions by analogy fron~the notions of mandate in international law or
from any other corresponding legal conception of private law", went on to
refer to rules and institutioris of private law as an indication of policies and
principles rather than as directly importing these rules and institutions. Surely
the idea of delegation of uower by the United Nations to an administering
authority and the conconi;ttsnt delcgation of üccountability arc genrral princl-
ples of law applicable in both niunisipal and intcrn~tion<ilI>a,.
Thc power of revocation ij ncccssarilyim~licd in the useof the tcrms "trust",
"mandate" and "tutel~ ~ -~~ . ~ ~hich ar~ i~ ~ ~ three domestic leeal r-eimes
of the Anglo-American common law, the Roman law and the civil law systems
of the world. So that, in the absence of express stipulation for revocation in the
mandate instruments, such a power cari-properl ye implied from the use of
these expressions in the Covenant itself. A mandate does not and cannot
envisage a permanent state of affairs; it implies a temporary delegation by the
grantor to the grantee.
Since this Court has, in its Advisory Opinion of 1950, declared the inter-
national legal slatus of South West Africa (Namibia), and since the United
Nations has been declared to be the successor of the League of Nations, with
the General Assembly being vested with the responsibility for mandated (now
rrrrsr)territories, there is clearly no international organ or authority other than
the United Nations to revoke the South African Government's Mandate over
Namibia. If the League had the power to revoke the Mandate, the United
Nations should be the only competent authority extant which is capable of
exercisine-the rieht of revocation.
After all, there was no express provision in the Covenant for dissolution of
the Leacue of Nations and vet the Leaaue found it necessary, in the conditions
of the iost-war world, to kind itself ip after the establishment of the United
Nations by means of itsresolution adopted on 18April 1946,for which, it may
be uointed out, no express provision had been made ~reviously.The cases of the
revocation bythe ~cneriil /\swinbly of ihc ~andxte;over 1>xlestine in 1948iind
the Japiinesc niand~ted islands in 1947ha\c bccn ciircfdlly docunicnted in ihe
written statements, al 1,pages 861-862.
Another obie.tion has b~en~ ~ised. that~~ ~ ~ ~h this Court ruled in 1950
that the poucrs of control and supervision of the Coiincil of the Lcague hxd
paücd tu the Gcncral Assenibly of the United Nations, the Generiil Assembly
did not adopt resolution 2145bytheunanimity rulewhich the League Council
would have had to follow in order for such a resolution to be valid.
In this connection we may recall briefly the conditions laid down by the
Court in that case. Thse are two: (aJ "The degree of supervision . . should
not . ..exceed that which applied under the Mandates System, and", fb)
"should conform as far as possibles-and that is important-"as faras possible
to the procedure followed in this respect by the Council of the League of
Nations"(1.C.J. Reporrs 1950,p. 14at p. 138).
In the Voting Procedure on Qr~estionsRelaring to Reports and Peririons
concerning rhe Terrirory of South West Africa,in its Advisory Opinion (I.C.J.
Reporrs 1955,p. 13a1p. 77),this honourableCourt observed as follows: ORAL STATEMENT BV MR. ELIAS 91
". ..in the nature of things the General Assembly, operating under an
instrument different from that which governed the Council of the League
of Nations, wouldnot be able tofollow precisely the same procedures as
were followed by the Council".
TheCourt furtherpointed out that-
"... the expression 'as far as possible' was designed to allow for adjust-
ments and modifications necessitated by legal or practical considerations".
The oarticular orocedure reauirine unanimitv under the League mandates
systcm'cannot be 'xpecied IO'have-ken rrg"13ted by the tr~nsmission of
functions fromthc I'crmanent Court of International Justice to the Intcrn~tion-
31 Court uf Justi~.c. The United Natii~nsCh4rir.r. Article 21. orovides. i~~rer
alia,that "The General Assembly shall adopt its own rules of procedure". It
has never been argued that resolutions of the General Assembly require
unanimitv for their adontion. The most that is required of the Assembly is that
certain of ils resolutions shall be adopted by a two-thirds majority (seeArt. 18,
para. 2, in which some eight topics are enumerated including the trusteeship
system).
In the particular case of resolution 2145, if was adopted by a majority of
114in favour, 2 against and 3 abstentions (see written statements, 1, para. 19,
o. 130).The total membershio of the United Nations. be it noted. was. at thdt
time, 121.
1 now come to the second point of my statement: the resolutionsof the
SecurityCoiincil,especiallyresol~ilion276 (1970) andtheissueof abstentions.
The Security Council adopted resolution 276 (1970) by 13votes in favour,
none against and 2 abstentions, the two abstainers king France and the
U-~ ~~~Kine~~m ~ -(~bid.,.ara. 279..o. 185). Accordine -o Article 30 of the
United Nations Charter, the Security Council has power to "adopt its own
rules of procedure". But Article 27(3)provides as follows:
"Decisions of the Security Council on al1other matters [non-procedural]
shall be made by an affirmative vote of nine members, including the
concurring votes of the permanent members; provided that, in decisions
under Chapter VI, and under paragraph 3 of Article 52, a Party to a
dispute shallabstain from voting."
In view of the details outlined in the statement by the Secretary-General at
1,.oaees 203 to 206 of the written statements. 1would do no more than drawthe
attention of the Court to evidence there provided of innumerable cases of
voluntary abstention by permanent members of the Security Council, particu-
larlv oaraeraohs 3to 6on-oaee 206
li;s clGr ihat the ~ecuiit; Council has established the practice of treating a
voluntary abstention hy a permanent member as not preventing the adoption
of a non-orocedural decision. even in the case of decisions of the Council taken
in accordance with Chapters 1, VI, VI1 and XII. In paragraph 3 (written
statements.1. P.206)occurs the statement that this practice "has been cndoned
by each permanent member", and in paragraph 5that :
"On three occasions decisions of the Security Council based expressly
upon one or more Articles of Chapter VI1were declared adopted notwith-
standing the abstention of at least one permanent member" (ibid.p. 206).
Finallv. in oaraeraoh 6 it is stated that the oractice hasnot ken affected bv the
entry ;nt0inrccof'the amendments to the'Charter (ncw Aris 23, 27, 61.and
109)2nd that sincc 1965'.the Security Council hdsadopied 25 re~olutionsin thevoting upon the whole or parts of which at least one permanent meniber
abstained" (ibid.).
It is worth pointing out, in passing, that in respect of resolution 276, the
reservations of the United Kingdom and France had ta do with the scope of the
question, not with the voting procedure adopted.
This practice of the Security Council in treating abstentions as being com-
patible with the requirement of unanirnity enshrined in Article 27 (3) of the
United Nations Charter is within the aim and purpose of Article 31 of the
Vienna Convention on the Law of Treaties which, although it has not corne
into force, represents the latest development in the Law of Treaties to which
the majority of States have subscribed. Article 31of the Vienna Convention on
the Law of Treaties provides that:
"A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given ta the terms of the treaty in their context
and in the light of its abject and purpose."
Paragraph 3 (b) provides, in particular, that: "any subsequent practice in the
application of the treaty which establishes the [understanding] ... of the
parties regarding its interpretation must be taken into account. And para-
.rap. 3 (c) ~rovides that "any relevant rules of international law a~..icabiein
the relation; between the pirlies" arc also relt.i,lint.
While iiis [rue that the original Article 38in the Internaiionill Lw Çommts.
siun's drîft. on Modification of Treaties bvSubseauent Practice. mas dropped
at the ~ienna Conference, paragraph 3 (bj of ~rticle 31 clearlyenvisagekthe
situation with which we are dealing in the present context, namely that by
subseauent ~ractice the Securitv Council has ken treatinn cases of abstentions
as king compatible with the provisions of Article 27, sub-paragraph 3, of the
United Nations Charter. This should be a sufficientanswer ta the South African
Government's contention to the contrary.
There are a number of other matters raised by South Africa in connection
with the resolutions of the Security Council, particularly resolufion 276 (1970):
for instance, the contention that it was not invited to participate in the debates
leading ta the adoption of resolutions 276 and 284 in particular, as provided
for in Article 32 of the United Nations Charter.
1 need hardlv dwell on this point. excent to refer this honourable Court to
its Advisory opinion çoncerning the 1,;rrrprrrotion of Proce Treaiies wirh
L(r11goriaH.unfury and Romania(1.C.J. Reporrs1950. p. 10.ai p. 71) where an
objection was raised against the Court's giving an opinion on the ground that
those States did not participate in the proceedings. The Court refused ta
recognize the validity of the objection. It added:
"ltfollows that no State, whether a Member of the United Nations or
not, can pievent the giving of an Advisory Opinion which the United
Nations considen ta be desirable.. . to obtain enlightenment as to the
course of action it should take."
It isan act of participation, the Court continues, in theUnited Nations activities,
the Court itself beina "an oraan of the United Nations".
Again in the case'conditi~nsof Admissionof a Siaie to Membershipin the
UnitedNotions, the Court confirmed its competence to givean advisory opinion
on questions involving the interpretation of the Charter. Again, South Africa
contends that certain parties to the dispute had participated in, instead of
abstaining from the vote, as enjoined in the proviso to Article 27 (3).
To save the time of the Court, 1 would like to adopt the argument of the ORALSTATEMENB TYMR.ELIAS 93
representative of the Secretary-General on this point to the effect that there had
been no "dispute", butonly a "situation" before the Security Council when the
relevant resolution was adopted, so that there could have ken no question of
inviting anybody who considered himself a party to a nonexistent "dispute".
Similarly, 1wouldnot want to take the time of the Court in trying to answer
the objection that. in order for the South African Mandate to be validlv ter-
minated, South ~frica's consent was necessary. The argument of the Legal
Counsel of the United Nations on behalf of the Secretary-General is sufficient
answer on this point also.
With a great deal of energy and resource, South Africa has presented ar-
gumentation on a number of other issues, some of which had already been
disposed of by this honourable Court, either in its Advisory Opinions of 1950,
1955, 1956 and in the 1962 and 1966 Judgments, or in the various rulings
handed down in January 1971. 1 do not consider it a worthwhile exercise to
eneaee in discussina such issues during mv oresent statement. so that if the
c&Ï notices thdt i have omitted to deal &ih some of ihcsc rnditcrs. 1 wish
it to be undersiood thdtitis no1ouiof Iaçk of reqpectfor thc Court of for the
learnedcounsel for South Africa that1 do:o refrain,
1 now come to point three of my statement: links berweertGeneral Assembly
resolirfionsandthoseof theSecuriry Council.
The chain of events beains with resolutii)n 2145and aoesthrouah resolutions
245of 1968.246of thes3ke yeïr, 264and 269of 1969,%6 of 1970,to resolution
284, by which ihis question %vasreferred to this Court. Lei us consider fairly
briefly the b3sis ofresolurion 2145 (XXI) and the way member States regardcd
it in the Gcneral Asscnibly.
The sponsors of the resol~iion prçscnied the iollowing resolutions 4s undcr-
lying the drafi resi)lulion. (II that South Africa by its 3ction had faiIOdfulfil
its obligatii)ns under thc Mandzrc; (iiJthytSouih Africa had forfciicd irs right
to administer the mandatcd terriiory; (iii) that the people of South West Africa
had the righi 10 self-determination and indepndence: (iv) that the Gencral
Assembly had the authority and the oblig;ition to secto itthai the rights of the
people of South West Africa (Kamibiii) are resiored; (v) ihat ihc Mand~te
should bc taken away frum ihe Govcrnmcnt of Souih Africa and thai ishould
be taken over by ihc United Nations, and (vij that the action for which ihc
drali resolution i~llcd usassleïrly inescapablein the circumstancc(sc rxa. 25,
1,p. 131).
In the course of the debate, Austria, for Bxample,said that:
"As the International Court of Justice did not find iisclf in a posiiion to
deli\r.ï judpment un the nierirs oi the cdse submittcd hy Cihiooia and
Liberia, the ~eneral Assembly had u duty to act on the basis of'its own
assessmentof thesituation."
That assessmentwas adequately sumniarized in the preamble of the draft
resolution. There was general agreement regarding the termination of the right
of the Mandatorv Power. The representative of Finland said that, since there
tvds gencrïl agreénient that ou t Whest Africa ws a tcrritory hat;ing interna-
tional staius and thni Souih Africa, by diw\,uning the Mand3tc and hy introdu-
cina into the Territorv the svstem of apartheid. had lost theright to administer
the-~erritory then itrollowed that the ~nited Nations mustassume respon-
sibility for South West Africaand itspeople,
The reoresentative of Italy referred !O the ooinion widely held amona
~ernbcn~of the Cniicd arions ih~t the <;encrsl ~sscmbly should declare ihdt
the Govcrnmcnr ufSouih Africs h3d fi>rfeited ihc right IOc.;erctsc the Mandaic94 NAMIBIA (SOUTH WEST AFRICA)
andthat theGeneralAssemblyshoulddecide that theTemitory must be brought
to indeoendence at the earliest oossible date. This view was fully shared bv the
ltaliandelegation and implied,'he said, in a political context, the termination
of the Mandate. In explaining his affirmative vote, the representative of Italy
said that the text of the resolution in its final version had commanded the
support ofün ovem helmingmajorit) of the Assembl).
The 'Ietherland\ reprnentoiive said thai, after ï thorough consideration of
the legal aspects. his delegation had iomc to the conclusion that the Gcnerïl
Assembly uas legdllyentitled to piil an end to South Africa's Miindate. because
of noncornpliance by the Mandatov with the essential obligations ensulng
from the mandate ameement. Eve~ party to a treaty had the inherent rieht to
ternunate the treïty in case of a m~;c;inl hreachhy the other parts. ~hairighi
could. In thiscnse, u/urrIori. heclaimed by the United S:itions us tIiesucccssi>r
of the Learue oi Nations, in view of the violations of the stipulations of the
Mandate Agreement. ~he Netherlands delegation had no -doubt that the
Mandatory Power had violated the tem of the Mandate. 1t had, therefore,
forfeited the right to administer the Territory. Further, that was the main
aspect of thematter.
Norway's representative declared tbat, after 20 years of futile discussion
about the South African administration of South West Africa, the consensus
had arisen at the Twenty-first Session of the General Assembly that South
Africa had Iost its right to administer the Territory and that its Mandate was
t~ ~ ~ated.
In the \,ieiv of the Suedish deleyation, the Judgment of the Internotional
Court of Justice had placed upon the United Sationsa dut). to fulfilthesacred
trust of civilization uith regard to South West Africd, which had been bctr~jed
by South Africa. The S\!,cdish dclegntion fclt that the üeneral Assembly could,
and should, go further, and decide thït the Mandate îs a consequcnrc wns
tcrminatsd, a Msndate which South Africa itsclf had disavoued, and that the
United Nations hnd specifir responsibilities for transitory administr~ti\~e
arrangements. pending the ekercise by the inhabitants of their right to self-
Australia's representative said that his delegation found itself in a great deal
of agreement with the statements made by the representatives of the United
~inedom and France. but that not havine the s~ecial resnonsibilities which
the; Iwocountries had under the charter, Austraiia fcitable to for the re-
solution. He s3id that he agreed with the point made hy the reprewniïti\e or
Japan, that theGeneral~ss~mbl~mustkee~ sithintcetrameworkof the
Charter and of international law. But, he said, it was necessary also that the
General Assembly should be active in the pursuit ofjustice by al1lawful means,
and iustice clearlv reauired that South West Africa should be administered by
an Luthorit~ fully committed to such principles as enjoyment, in freedom and
without racial discrimination, of the basic human right, the principle of self-
detennination of ~eonlesand so o~
Canada believrd thritSouih Africï had forfcited its right to administcr tlie
Mandate. \Vith referencc to the concern ehpressed by some speakers thst the
General Assemblv miehtnot eniov full leeal comoetence to assume the Mandate
unilaterally, the canadian delegaiion tended ta ihe view that in the light of the
advice which the General Assembly had received in the pas1 from the Inter-
national Court of Justice, the ~sse&bl~ had an adequate basis for the action
proposed.
Israel's representative said that the legal position as previously declared by
the Court in the Advisory Opinions of 1950, 1955 and 1956, and in the Judg- ORAL STATEMENT BY MR. €LIAS 95
ment of 1962,rernained unimpaircd. In the Israeli view, the real eflect <ifthe
1966Judgmentu~asthar ihepoliticiilaspectofihequesiW ioesioffriath
outweiehed the ~ossible leeal ~roblems. and that even the most scm~ulous
conceri for legniniceiies rnigh;, ai this juncture. cede itsplace tn the pblitical
wisdom of the rnajority of the Gcneral Asscmbly. The General Assembly could
leaitimatelv terminale the Mandateon the basisof ihc cxistinc!luris~~dcnce of
the Court and any attempt to embroil the Court in the affairs of South West
Africa would only add to the confusion and controversy and not assuage it,
and would onlv comnlicate still further thework of the General Assemblv.
It is pertinent to knclude thissummary of views with that of New ~ealand's
representative, because it so aptly summarizes the General Assembly's mood
and consensus, in these words:
"ln essence the issue was whether in the face of South Africa's failure to
comply u,ilhitssubstaniive obligations and iis dis.,vowal of the Mandate,
ihe Uniied Naiions aould uscri ihe rcs~onsihilitics which 11undoubtedly
had. In the resolution those resnonsibilities were uneauivocall~ affirmed.
The situation justified an act ofsolidarity on the part of the international
community in support of a resolution incorporating the restatement of the
collectiveLieir.oithe Organilaiion, despile differenîcs of \,iew as to the
most appropriaie ïnd eii'cciiveiiurding of thit resoluiion as ü n.hole. The
question of implementation remained for study."
The representative of France, after agreeing fully that the South African
Government had committed violations of the Charter, of the Declaration of
Human Rights and of the Mandate which South Africa had also disavowed,
said as follows:
"The views which led the French delegation to abstain in the vote did
not relate to the basic findings of fact and of law, but related to the legal
validity of the method proposed for putting an end to the policy of South
Africain South West Africa."
He added, in the same speech, that France's dissent related to the wisdom of
having South West Africa administered by the United Nations. Although the
French delegation had stated that it did not exclude the withdrawal of the
Mandate, it could not agree with themanner in which the withdrawal had been
decidedupon.
Similarlv. the United Kinedom re~resentative said that the reservations he
had expre&ed related to thelast p&agraph of the preamble, and that it had
always been the United Kingdom's contention that the Assembly should not,
at that stage,domore than state that the rights of the South African Govern-
ment under the Mandate had terminated; that was a finding which the United
Kingdom claimed to be right, in view of the iailure of the South African
Government to fulfilits international obligations.
France, for her part, expressed support forparagraphs 2.3 and 7of resolution
2145.
1 want now to deal brieflv with a sub-headine of..he same point. namelv
rlrr rel~rIo~.~/z~erwrwn rr<u/«riu» 245 11968, of rhr Srctir,ly Cur<iici/ o»d
rcsol~tr~u2/i45 ojrhrGr!~crulArre~?ib/y.
In ordcr IO aDorcc,ate the irnnoriance of the Seiurit~ Council resoluiion 245
in relation to the question no; before the Court, it i; to be noted that it was
adopted unanimously by al1 exisling members of the Security Council. This
resolution included thefirst preambular paragraph, which was expressed as96 NAMtBtA (SOUTH WEST AFRICA)
raking "ore of the fact that the Mandate ofSouth Africa overNamibia had been
terminated by the General Assembly. The relevant paragraph reads as follows:
"Taking nore of General ~ssembly,resoiution 2145 (XXI) of 27 October
1966, by which it terminated South Africa's Mandate over South West
Africa and decided. inter alia. that South Africa has no other rieht to
administer the ~erAtory and ihat henceforth South West Africa cornes
under thedirect responsibility of the United Nations."
This was the first lime that the Sccurity Council had occaion ro pronounce
itself on the subject of the temlindtion, by Gener~l Assembly rcsolution 2145,
of South Africa's Mandate over Namibia.
Undcr resolution 246 of 1968,the Security Council in the second paragriiph
reicrred 10 the iennin3tion by General Assembly rcsolution 2145 or South
Africa's Mandate over South West Africa The rclcvant paragraph is as follou,s.
"Taking inro accoii?~!General Assembly resolution 2145 (XXI) of
27 October 1966 by which the General Assembly of the United Nations
terminated the Mandate of South Africa over South West Africa and
assumed direct responsibility for the Territory until ifsindependence."
It will be noticed that the wordine of this ~rovision differs somewhat from the
wordingof theconcspondingpro;ision oithe firsl paragraph of the preamble
of the Securit? Council resolution 245. aciording 10 u,hirh the Council had
ruk'vitiorzof General ,\sscmbly rcsolution 2145, u hcrciisin resolution 246, the
Sriiirity Council took the General Assembly rcsolution t~iiuaccuii~tr.
The importance of resolution 246. like that ofrcsolution 245, consists in the
fact that,by it, the SecurityCouncil unanimously and without any abstention,
confimed the General Assembly resolution 2145 by saying that it took the
latterinroaccounf.
Two permanent members of the Security Council who votedfor theresolution,
however, recalled their earlier reservations in regard ta pans of the General
Assembly resolution 2145. Under resolution 264,while also taking into account
General Assemblv resolution 2145in the second oa.aara-. of its nreamble. and
whilerc-alfirm:ngthesprcial responsibility of the Security ~ounc.il toirard; the
peoplc and the lerritory of Namibia in the sixih ~ïragr3ph of the preamble, ihc
Securitv Council recognized in its first onerative Daraaranh ". .. that the
~nited-~ations ~eneral Assembly terminated the Mandaté of South Africa
over Namibia and assumed direct responsibility for the territory until its
independence".
In the second operative paragraph the Security Council considered "the
continued presence of South Africa in Namibia [ta bel illegal and contrary ta
the principles of the Charter and the previous decisions of the United Na-
tions. . .".
In the third operative paragraph the Security Council called "upon the
Government of South Africa to immediatelywithdraw its administration from
the territory".
In thefourth operative paragraph the Council declared that ".. .the actions
of the Government of South Africadesianedto destrov the national unitv and
territorial integrity of Namibia through the establishment of ~antustahs are
contrary to the provisions of the United Nations Charter".
In o~erative .ara-.aohs 5.6 and 7the Council declared that the Government
of south ~frica "has norighi to enact the 'South West Africa AAàirs Bill'", and
condemned the refusal of South Africa Io comply with its resolutions 245 and ORAL STATEMENTBY MR. ELtAS 97
246. It invited "al1 States to exert their influencein order to obtain compliance
by the Government of South Africa with the provisions of the resolution".
Finally, in operative paragraph 8, the Security Council declared "that in the
event of failure on the part of the Government of South Africa to comply with
the orovisions of the oresent resolution lresolution 2641.the Securitv Council
[shohd] meet immediately to de~emine~upon necesvar; steps or meisures [IO
be taken] in accordance with the relevant provisions of the Charter of thc
United Nations".
Let us now consider briefly resolution 269 of' 1970. This resolution was
adopted by 13votes in favour, none against and 2abstentions-France and the
United Kinadom. The United States and Finland. who abstained in the vote on
resolution Z(rZ,voted in fûvour of resolution 269. Both France dnd the United
Kingdomfavouredsupport for the self-detemination of Namibid and opposed
the oolicv of the creation bv South Africa of autonomous areas in ~amibia.
~~~- ~ ~-
opera;ive paragraph 2 of rcsolution 264. uhich declares "the coniinued
prrsnce of South Alrica in Namihia to be illegal" and operatii.~pîragraph 7
of resolution 269.u hich '.callsuoon al1States to refrain from anv deïlines u,ith
the Government of south ~frica'which areinconsistent with ... &is resoLtionw
are worthy of attention.
TheCouncilalso decided to establish an Ad Hoc Sub-committeeon Namibia.
It should be noted that resolution 276 was no1 only recalled and reaffirrned
respectivelyin the preambles of resolutions 283and 284,but that it is referred to
in operative paragraph 1 of resolution 284, which contains the request of the
Security Council for an advisory opinion on the "Legal Consequences for
States of the Continued Presence of South Africa in Namihia (South West
Africa). notwithstandine Securitv Council Resolution 276 (1970Y'.
und& resolution 283the ~ecu;ity Council reaffirmedresolutions 264and 276
and noted the continued flagrant refusal of South Africa to comply with the
decisions of the Council. demandine the withdrawal of South ~frica from the
Territory. It may therefore beconclided that the Security Council has accord-
ingly established, as far as the consequences for South Africa are concerned,
that South Africa has committed and continues to commit an internationally
wrongful act for which it kas incurred and continues to incur, international
responsibility.
In regard to other States than South Africa, the resolution contains decisions
in the field of diplomatic, consular and other relations, calls upon al1States to
takemeasuresin regard to dealings with respect to commercial or industrial
cnterorises or concessions in Namibia. initiates action in reeard to bilateral and
mu11~1aterût1 reaties ;ni exPrerses ifs interest in actions ofthe United Nations
Councilfor Namibia recarding both ospor.s . and visas. Ir then ciillsfor reports
by States on measures which they have taken to giveeffectto the provisions of
the resolutions.
It is thus clear from this brief analysis of the various resolutions of the
Security Council and their relation to the General Assembly resolutions that
both principal organs of the United Nations had agreed on the fundamental
questions of fact and law relevant to the status of South West Africa, Namihia.
All the 114deleeates w-o vo~ed for re~olut-~n 2145. and the three deleaations
which abstainedTagreed to re-afirni the right of the 'kople of ~amibiaÏo sell-
determination. the ter rit or)'^international status, and the fact that Suuth
Africa had failed to fulfilits oblieations and had disavowed the Mandate: that
the Mandate had been duly terminated and that South Africa had no longer
any right to administer the Territory. Apart from South Africa herself and
Portugal, there was general agreement on the facts of this situation and on the98 NAMlBlA (SOUTH WEST AFRICA,
ends to be aimed at, although in later years, the United Kingdom and France
had registered reservations on themsthods to be applied.
As we have seen, in two resolutions unanimously adopted by the Security
Council in 1968, the Council took note of the termination of the Mandate by
the General Assembly and also took it into accoirInfour additional resolutions
adopted in 1969 and 1970, the Security Council recognized that the General
Ass-mhly had terminated the Mandate, ruled that the continued presence of
South Africain Namibia was illegal, called upon South Africa ta withdraw its
administration from the Territory, strongly condemned South Africa for its
refusal to do so and declared al1actions taken by South Africa on behalf of
or concernine Namibia to be illeaal and invalid.
The virtuaï unanimity of the international community, as expressed in the
proceedings and the determinatiom of the General Assembly and of the
Security~ouncil, has ken described as a phenomenon which is rare and almost
unique in the history of the United Nations.
In connection with this resolution, the representative of France recalled that
his deleaation had stated in the General Assemblv on 27 Mav 1968 that. if such
were th;desirc of the majoriiy, the Frcnch dclegatiun a,ould-be in fûvour uf the
Sccuritv Coiinsil king seiscd of thc problem of South West Africa. Ile asked
whether the members of the Council were not alreadv at one in desirinrr to see
an end to the humiliation imposed on so many ~iricans and in wishing to
restore the prestige of the Organization soravely at stake in this matter.
The re~resentative of ~akistan recalled that. not oossessing the necessarv
au1horii)'to enforcc the de~isionsotthe L'niiedh'atiuns, rhc ~cieral ~sscmbl;
had to iurn. as it di4 in rcsoluiion 2403, Io ihc Sccuriiy Council Io iakc urgcnlly
al1 effective measures in order to eosure the immediate withdrawal of South
Afnca from Namibia.
The representative of the USSR noted that the positive aspects of the
resolution were that it confirmed the decisions which terminated the Mandate
and also that the General Assembly called upon South Africa to withdraw its
administrationfrom the Territory.
With regard ta resolution 269, the representatives of Finland, the United
Kingdom and the United States placed it on record that the differences of
opinion in the Council were about means and not about ends, and that the
differencesdidnot relate to the essential facts pertaining thestate of asairs in
Namibia, but concerned what steps or measures the Security Councilcould thus
appropriately take.
Paragraph 3of resolution 269 reads as follows:
"Brc~ifc~.~hat the continued accup~iiun uf thc territdry of Ndniibia by
ihc South Airican iiuthoritics ronsiiiuicsiin aggressive ensroachnient on
the authoriiy of the United Nations. a violation of the ierriioridl intcgrily
and a deniaiof the political sovereignty of the people of Namibia;".
The main innovations of resolution 269 may be stated brieflyas follows:
1. the in\,ocïiia~nof Article 25 of thc Cniied Saiisns Charter;
2. the chara~~tcri~aiionof the c~niinucd occupation of Namibia by Suuth
Africa as constituting an aggressive encroachment on the authority of
the United Nations; and
3. the setting of a time-limit for the withdrawal of the South African
administrationfrom the Territory.
AI1 these went beyond previous Security Council and General Assembly
resolutions. ORAL STATEMEN BTY MR. ELlAS 99
In vieu. (if the fi~regoing, it is dilficult to accept ihe Frcn~.hmcmoranduni, in
which it issoniended that there is nothing binding about the resolutiuns iif the
Securiiy Council. especiall) resolution 276.and that al1the resoluiion does is to
make reconimendaiiuns in Siates which thcy arc free io disregard or 10 imple-
ment
The French memorandum also attempis to draw ü distinction ktwcen the
Securiiy Council resi~luiion on Khodesia and the preseni one on Namibia, by
oointinc out thai n,hcreasthe Idneuaaeof Chanter VI1 of ihe Charter u3s used
in the hod de esiolution, nosuch phraseology had been employed with
respectto the resolution onNamibia.
1believethat a conclusive casehas ken madeout aaainst this contentionand
that the Securiiy Council hiis left us in no doubi as 1: what ils inieniion redlly
W~S, namely io confirm the termination of South Africa's Mdndaie ovcr Sami-
bia which the General Assemblv had earlier declared.
1 may also submit to the court that 1 am in agreement with much of the
argument of the counsel for the Secretary-General on this point.
1nowcome ta the fourth ooint of mv statement: tlreouc~iurrofthe cornoetence
o/rhr Uttircd.\'urio,ir roretikr Suutli~fricu'su fun do ri.
Roth the South Afriian and the French Governmenis hai,e exnressly ques-
tioned the competence of the General Assembly to revoke south Africa's
Mandate since, in their view, in doing so it would not appear to have acted
under either Chapter V or Chapter VII, but only under Chapter VI, and that
in anvcase the General Assemblv had other remediesin the caseof a recalcitrant
member of the Organization which has persistentlycommitted breaches of its
obligations under the Charter. France fully agreedthat South Africa had failed
to observe internationally accepted noms-using the delegate's own words-
and ta honour ils treaty obligations. In the view of the French Government
there could be no doubt but that the Government of South Africa hadviolated
and in a very real senseinfringed those mles and regulations.
South Africa has violated the Charter, the obligations imposed upon it by
the Mandate, as well as the principles and rules contained in the Universal
Declaration of Human Riehts.
The French GovernmenÏ contends, however, that the sanction provided for
in Article 6. a Member of the United Nations which has ~enistently violated
the Princinlescontained in the Cha~ ~ ~~.-ould haveken &lied .r ~ ~bvthe General
~ssembly'and the Security Council. Thiss-inction proiidi ihat su:h a Mrmber
shsll bc ex~elled from the United Nations by the General Assembly unun the
recommendation of the Se~u~itv Co.n~~~~ ~
If ihis suggestion u,ere accepied, ire \iould thcn arrive ai itie imposs:ble
situation in u,hish the onlv remcds ii,ould be the cxp~lsion of South Alricd and
the apparent abandonment of ~imibia to the Government of the Republic of
South Africa forever. Indeed, such a course would have amounted to being
asked to throw away the baby with the bath water.
Surely the United Nations should not be expectedto beso callous regarding
its clear duty to the Territory and people of Narnibia, as "a sacred tmst of
civilization" given into its charge. How could the UnitedNations choosethe
more perilous course of the two-expulsion or termination of Mandate?
What about the unfulfilled international responsibility towards the people of
. Namibia which has been laid upon it since the dissolution of the League of
Nations in 1946?
South Africa, on the other hand, would apparentlywish to keepNamibia and
still remain a Member of the United Nations. Or sherninht welcome expulsion
as a way out; one does not know. But the United Kingdom, for its part,IM) NAMlBlA (SOUTH WEST AFRICA)
contents'itself with askina that the General Assembly stop at declaring the
terniination of South ~frza's Mandate but not go further IO iniplement~i by
ïny enforcement action. Since therc is then general agreement asto the end to
bc achicvcd. uhy no1leavethe choice of means 10 the llnitcd Nations?
In my respectful submission, ilis ksl for al1concerned ta accept the compe-
tcnce of the General Assemblyand the Security Council Io deal with this matter
in iheir discretion. The Court u,ould do u,ell to confirm that what has iaken
place in boih puhlic organs of the Unitcd Nations has ken eminenily wirhin
the bounds of the General Assemhly and the Security Council and iltat the
Court willnot interfere on these points. Certainly there are abundant precedents
for ihisin many a municipd legÿlsystem wherein the constitution provides that
certain decislons, alwags nuinly politicïl, can be taken by ihe pwliïment or the
oolitical assemblv whose dutv it is to detennine such matters. And when issues
irise bclore a court in whifh the court is called upon to pronounce on the
wisdom,orIackofit, oftheïssembly totÿkeparticulïrdecisions,solongas ihose
decisions are nrouerlv and reaularlv taken within the constitution and the
procedures laid down; al1that the court would be expected to do would be to
say that this matter ought to be decided by the political assembly which has
decided il, and unless %sons could be advanced 10show that the procedures
had not been followed, the coun would declare itself unable to do more. 1
understand that this principle iscommon te both common law and civil law
systems.
With regard ta the General Assembly, 1would like ta remind the Court that
Article 10of the United Nations Charter givesit very widepowers. It authorizes
the Assemblv to discuss anv auestion or an* matten within the scooe of the
Charter or r;lïting10the piwc;sand functions ofîny orgïn providedior in the
Charter. and to make rccommendîtions ro the Memkrs of the United Nations
or the Securitv Council or to both on anv such auestions or matten. To these
must be added~rticlc II, subparagraph i.uhich'enritles the General Assembly
IOdiscuss iniernîtional pcace and securiiy brought before it by any Membcr of
the United Nations, or by the Security Council or even hg a Stsie which is no1
a Member of the United Nations. Itmay ihen make recomniendaririns to the
Security Council for ïny nccessaryaction that should bc taken.
Hans Kelsen hÿseror.sre~ ~ ~ oo~rion in hisLaworihe Unilcd A'arions.1950.
at pages 189-199,that :
". .. there is hardly any international matter which the General Assembly
is not competent to discuss and on which it is not competent to make
recommendations".
And it may be noted that some of these recomrnendations can have binding
effects, for example, in matten relating to admission of members. To the same
effectisthe view of Goodrich and Hambro in their book, The Chorter of the
UniredNations, 1949, at page 152.
When we turn to the Security Council, Article 24, paragraphs 1and 2, of the
Charter, read asfollows:
"1. In order to ensure prompt and effective action by the United
Nations, ils Membersconfer on the Security Council primary responsbility
for the maintenance of international peace and security, and agree that in ,
carrying out its duties under this responsibility the Security Council acts on
their behalf.
2. In discharging thesedutiesthe SecurityCouncilshallact inaccordance
with the purposes and principles of the UnitedNations. The specificpowers ORAL STATEMENTBY MR. ELlAS 101
granted to the Security Council for the discharge of these duties are laid
down in Chapters VI, VII,VI11and XII."
There are two main questions that deserve notice in connection with these
paragraphs. The first is ta determine whether the primary responsibility which
the Security Council has for the maintenance of international Face and security
is limited only to those duties that are specified in Chapters VI, VII, VllI and
XII, or whether it extends beyond those enumerated. The second question
relates to the first sentence of paragraph 2, which requires that the Security
Council: ". . shall act in accordance with the purposes and principles of the
United Nations." Thus thisphraseenvisages also Articles 1and 2of the Charter,
both of which are all-embracing and even cover the entire United Nations
Charter.
It is respectfully submitted that the Security Council is given very wide
powers; one would not say that they are powers of the "shper-Stap", as has
ken mentioned in another case. But they are given, under the provisions of the
Charter, very extensive powen which the Court could take time to consider
beforedismissina them as not as extensive as thev reallv are. Thev are undoubt-
edly not unlimicd in regard to matters outside ihe pÜrviewof theUnited Na-
tions, but. as regards matters under the authority of the United Nations, within
the competence of the United Nations as a whole-as a world body-the
powen of the Security Council and of the General Assembly are very wide
indeed.
We may recall, in this connection, the following observations in the case of
CertainExpensesofthe UnitedNations, I.C.J. Reports 1962,page 150,at page
168: . .
..
".. .when the Organization takes action which warrants the assertion that
it was appropriate for the fulfilment of one of the stated purposes.of t.e
United Nations. .." . .
"one of thestated purposesof theUnited Nationsw-the purposes as laid'down
extensively in Articles 1 and 2 of the Charter, then "the presumption is that
such action is not ultraviresthe Organization". And 1would invite the Courtto
give consideration to that aspect of the matter.
. .
,
TheCourtodjorirnedfrom 11.20 a.m. Io 11.40a.m. . . -
1 now want to deal briefly with the fifth point on which 1propose to touch
in my statement, and that is Breachesby SouthAjrica of ifs iiiternationalobliga-
rions.This mav be considered under two main headinas: la) hreaches towaids
the Uniied ai ion asnd (b) breachcs iowürds ~amib; and the Namibianj.
Under (a, ive may consider brieRy the follo\iing questions:
First. ihe repudiiirion of the hlandaie and of the superbisory authbrity of
the United Nations, contrîry to the Court's Advisory Opinions of 1950,1955
and 1956. 1 do not propose Io elahorate on these as I have dcali ai some kngth
with al1 of them in the earlier pan of my statement. The international legal
status of the Territory as well as the obligations incumbent upon South Africa
to render annual reports on behalf of Namibia and to transmit petitions fr0m
the inhabitants to the Trusteeshio Council on behalf of the General Assernblv
-al1 ihcse are \\,ell-known facis which do not require îny cliiboration. The
South African Governmeni has~onsistently declared ils complcte rejrciion of
ihe advisory opinions of this h?nou~üble Court in respect of ihesc m3iiers.102 NAMIBIA (SOUTH WEST AFRICA)
The second point 1 wish to mention is the hampering of the United Nations
by South Africa in the exercise of ils international responsibilities towards
Namibia; for example, South Africa's refusal to withdraw from Namibia so
that the United Nations Council on Namibia can perform its funclions of
administration within the Territory.
By refusing to permit the Council to enter Namibia, as well as by refusing
to recognize the Council's authority in respect of Namibia and by forcibly
retaining Namibiawithin ils own exclusiveoccupation, South Africa has there-
by prevented the Council and the General Assembly from exercising effective
control or administrative responsibility within Namibia, with the result that
the Council has thus far beenobliged to baseitself temporarily outside Namibia
and to limit its activities accordingly (para. 114, written statements. 1.D. 104).
The third poini is ihe persistent defiancc of the United N3t1onsand pcrsistcni
rcfurdlt,iconiply u,ith rcsolutionsof ihe Unilcd Nations, pariicularly resolutioii
2145of the Cencr31Asscmbly and rcsolutions 276.283 and 284 of the Security
Council hy *,hich ils Mandate ovcr Namibia uas terminated and by which it
\ras also asked to wiihdraw complctely from the Territory.
S-~~ ~Africa has thus continued Io be in illeeal .ccuoation of what is to al1
inicnis and purpoies ioreign ierriiory 10 Souih Africn.
The Security Council rcsoluiion 276 decldres ihat "ihc deliani sriitudc of ihc
-~ver~-ieni of So~th Africa io\vards the Council's decisions land oiher rcconi-
mendations] undermines the authority of the United ~aiions" (para. 94,
written statements, 1, pp. 99-100).
The legal consequencefor South Africa of her continued and illegal presence
in Namibia is therefore that this constitutes an internationally wrongful act
and a breach of international legal obligations owing by South Africa not only
.. ~~~.U~ited Nations but also to the ~eoole andTerritorv of Na~ibi~-~~h-~-..-
liabilities, both under the United ~ations Charter and under general rules of
international law concerning State responsibility, are in addition to the inter-
national responsibility already incurred by South Africa in the form of ad-
ministrative or other acts and omissions in respect of Namibia.
Under (b), that is, in relation to obligations towards Namibia and the
Namibians, we may consider the following matters:
1. Denial of the Namibians of their right to self-determination and indepen-
dence, a right which is enshrined in Article 22 of the League Covenant given
to South Africa to nurture Namibia to self-government and independence, to
ensure the material and moral well-king of the indigenous inhabitants of
Namibia.
This cleürly implies ihat South Afrird hûd beiraycd the sncred rrusi of civili-
zation. which Naniibia ~onstituies iindcr ihc ni3ndaies system.
2. The extension of ihe lairs dnd pracriccs of aDariheid from the Kcoubli;
of South Africa to Namibia; for example, the creation of Bantusla,rs, or so-
called "home-lands". See, for example, the provisions of the South West
Africa Affain Bill. There is no doubt at al1that in the practice of apartheid in
Namibia, it is the rule rather than the exception that there is segregation of
white from black and of one ethnic group from another, instead of the legiti-
mate duty of the mandatory to promote the unity of the people of Namibia.
3. Denial of the right to freedom of movement, participation in modern
government, education, adult franchise and al1 the other fundamental human
riehts which are enshrined in the Universal Declaration of Human Rinhts of
the United Nations and in analogous instrurncnis, guaranieeing the Zght to
cducation. to franchise, Io participation in government of one's 0u.n country.
not rnerely in local governrnent or other devices that keep the majority of the ORAL STATEMENT BY MR. ELlAS 103
inhabitants of Namibia from the main stream of administration of the Territory
of Namibia.
The foregoing is by no means afull, or indeed, an exhaustive list, of breaches
already committedby the Government of South Africa under the Charter of the
UnitedNations against its mandate obliaations and under eeneral international
law. It has ken Yightly asserted that, On the basis of the BarcelonaTrucrion
casedecided hy this honourableCourt, early last year, the denialof fundamental
human rights and other similar infractions of generallv acceoted standards of
bchdviour in ihe 1970s.not in the 1920s.ionstnutc sokethin of the nature of
jtrrcogenr.a peremptory norm of gençral international lauafrom which States
are not permitted to derogate. These are clearly enunciated in Articles 53 and
é4of the Vienna Convention on the Law of Treaties, and it is reassuring to
find that this honourable Court has not been slow in pronouncing its general
attitude rowardssuch matters in the Barcelonacase.
All States are required, under the provisions of Article 25 of the United
Nations Charter, to comply with the resolutions of the Security Council and
to assist the United Nations under Article 2, sub-paragraph 5, of the Charter
in any action it takes in accordance with the Charter. The whole subject will
k found dealt with in 1, paragraphs 68-109, pages 92-103,written statements.
This occurs in the portion submitted on behalf of the Secretary-General of th6
United Nations, to which the attention of the Court is hereby, respectfully.
drawn. 1do not, therefore, intend ta elaborate this headingany further.
1now come to the sixth point: Le~alconseauencefs or Sfaresof theconrinued
presenceof Soi~rhAfrica in ~amibi;?,notwit&randi& Security~ouncilresolu-
lion 276 (1970). One can afford to be brief in discuwing this heading, since out
analysis of the various General Assembly and secuÏity Council resolutions
has poioted up most of the international obligations devolving upon States in
respect of South Africa's illegal occupation of Namibia. In particular, firstly.
States are obliged to support the United Nations in securing the withdrawal
of the South African administration from Narnibia and in ensuring the free
and effective exercise by the people of Namibia of their right to self-determina-
tion and indeoendence. Secondlv. since the termination of South Africa'S
Mandate over Namibia. States aréprecluded frum cstabl~shingor maintaining
any relation with Naniibia through the Government of South Africa or throuph
the illepl South African administration in the Territory. Accordingly, al1
diplom;iiic, consular and other rclations are forbidden to al1Siates.
ThirJ point: no internaiional treaty or agreement may be ~.oncludedby any
State eiiher with South Africü or the illegal Souih African administration of
Naniibia sinie the terniinrition of South Afr,a's Mandate. 1\11such treaties
iiiid iigrecrnents that m3y have been entered inio are declared nuIl and void,
ab ioirio.
Similarly, a11mineral and other concessionsgrantcd or entered into on khalf
of the Territory of Namibia with the Government of South Africa since the
terniinaiion of 11sMandate are also without rfict and are void. States are also
called upon to cease any dealings with and al1 commercial, investment and
tourist activities in South Africa when purporting ta act on behalf of the Terri-
tory of Namibia.
Fifthly, as a result of the continued and illegal presenceof South Africa in
Namibia, al1memkr Statesof the United Nations havecollective responsibility
under the United Nations Charter to help fulfil the still undischarged inter-
national trust awumed by the United Nations on behalf of the people and Terri-
tory of Namibia.
Sixthly, in sum, any legal relations of any kind with or involving Namibia104 NAMIBIA (SOUTH WEST AFRICA)
can only be entered into or maintained through the sole authority legally
res~onsible for the administration of Namibia. That authority is the United
t ai ion Csouncil for Namihia acting on behdf of the Cieneril Assembly. To
deal uith any othcr auihority, such as the Governmcnt of South Africa. or the
illecal South African administration in Namibia since the termination of the
Mandate, would be absolutely void and without legal effect.
1 would, at this point, refrain from further elaboration here, as details are
availablein oarawa~hs 110to 148of the written statement subrnitted on behalf
of the ~ecreiary-Genera~in 1, pages 103-110.
At this stagc and bcfore I make my final submissions,I u,ould like to advert
briefly to the lette'recently circulated by South Africa suggesring the holding
of a plebiscite in Namibia in nrder to ascertain the Tactson the spot.
Now, 1have it on command froni the Orgxni/aiion of African Unity 10 ray
that it does not consider that any useful purpose would be semed by such an
exercise. There is also the question whether the Court has the cornpetence to
undertake it, with or without the South African Government's participation.
To whom would the experts report? Who would be judge of their findings?
Would the Courtnot become embroiled in the political complications and im-
plications of what is, in the final analysis, a pureiy political exercise?The um-
pire should not, in my respectful submission, descend into the arena.
What are the facts wanted for? 70 show that South Africa, as it claims in
Chapter XI of its statement, has beéngoverning Namibia well?Or even better
than some other independent African countries? If so, why do we not agree
that Namihia is therefore better qudlified for political independence righnow,
and give it to it?
The facts are not in dispute, they are well known to the United Nations by
ail the available means of ascertaining facts. The argument that the Court
gave its Judgment of 1950per ineuriam, sa to speak, that al1the facts were not
made available to it and that new ones had been discovered. has already heen
disposed of by the Court itself in ils Judgment of 1962.~he important point
in this respect is the denial of human rights and the degradation of the human
penon in Namihia.
May 1be permitted ta refer to Oliver Goldsmith's couplet in "The Deserted
Village":
"111 fares the land, to hast'ning ills a prey,
Where wealth accumulates, and men decay;".
Men in Namibia are decaying morally and spiritually because of the policies
carried out in that part of the world.
May 1request the permission of the Court, Mr. President, to make a number
of submissions which 1 would recommend resoectfullv to vour attention in
considering whether or not to answer the question putt0 y& by the Security
Council and aliirmwhat has taken place in the United Nations up to date.
1make five submissions as follows:
1. That General Assembly resolution 2145 (XXI) of 1966is valid, and
(i) that accordingly South Africa's Mandate over Namihia has been
validly terminated thereunder; and
(ii) that South Africa's continued presence in Namibia is illegal and has
been illegal since thedate of termination of ils Mandate.
. ~ .. .
' See Correspondence, No. 92, p.673,infra. ORAL STATEMENT BY MR. ELlAS 105
2. That the Securitv Council resolution 276 (197,) is,valid and that even if
General Assembly reiolutions were for any reason to be regarded as merely
recommendatory, the comhined effect of the resolutions of hoth public organs
of the United Nations renders valid the temination of South Africa's Mandate
over Namihia and makes the continued presence of SouthAfrica therein illegal
and riltro vires.
3. That the South African Government be asked to withdraw holus-bolus
from Namihia, which should immediately be placed under the United Nations
trusteeship system, with the declared ohiective of king assisted and Dre~ared
for complete self-government and independence within the sh~rtest~~o~sihle
time.
4. That in the meantirne, al1 States should refrain from entering into any
diplomatic, consular, commercial and economic relations with South Africa
in respect of Namibia and al1illegal transactions, whether by treaty or other-
wise, that might be entered into in contravention be deemed illegal and ofno
effect whatsoever.
5. That al1 States are under an obligation to CO-operate with the United
Nationstowards the fulfilment and achievement of these purposes inaccordance
with Articles 2 (5) and 25 of the United Nations Charter.
May 1implore the Court to permit metoend on a note based on the opinions
stated by Australia and New Zealand in connection with the adoption of
resolution 2145 in the General Assembly tu which 1 alluded earlier in this
address. They can certainly bear repetition here.
The Australian re~resentative said that he had referred to the com~lexity of
the legal and practiial problcms involved. He had agreed ivith the point madc
hy thc represcntative of Japan thar the General Assembly must kcep stricily
uithin the framc\iork of the Charter and of interniitional lau,. But it ivas
neceswry also that the General Assembly should be activc in the pursuit of
justice by al1Iawful means. and justice clearly rcqu~redthat South West Africa
should be administered hy an authority fully commitrcd to such principles as
enjoyment, in freedom and without racial discrimination, of the basic human
rights, the principle of self-determinaiion of peoples, and so on.
Th? New Zeïland rr.presentative said his delegation had voted in Cdvourof
the resolution bccauss itbelieved that a vcry imporiani principlc was at stake.
In a scnse the issue u.as uheiher, in the face of South Africa's failure to comply
\i,ithitssubstantive obliaations and iis disavou,al of the Mandate. the United
Nations would assert tie responsibilities which it undouhtedly .had. In the
resolution these responsibilities were unequivocally affirmed. The situation
iustified an act of solidaritv on the oart of the international community in
;uppori of a rcsolution incorporating the re-stûtement of the colleciivc view
of the Organization, despite differenccs of view as to the most appropriate and
effective wordina of that resolution as a whole.
The Neu, ~caknd rcprcsentative then meni on to sa). that, "in the light of al1
the factors, NeufZealand believed thar the question whether the Assemhly could
Drowrlv regard South Africa as havinn forfeited the riaht to continue with
ihe~andate could be answered affimalively. This conclüsion could be stated
with greater authority if it had the hacking of an advisory opinion of the Inter-
national Court of Justice. In the future there might well be a context in which
the United Nations f~~ ~ ~~ -.-.~ ~ ~ed -.~ .uch corroboration."
1 have no doubt but that the Organization of frica a Unnity, Mr. President
and Members of this Court. would wish me to invite this honourable Court to
give that hacking and that corroboration in an act of solidarity on the part of
the international community in ils search for justice, equity and fair play.106 NAMIBTA (SOUTH WEST AFRICA)
The PRESIDENT: Beginning with tomorrow morning's sitting, the Court
willbe ready to hear the statements on behalf of States who have intimated
their intentionof making oral statements to the Court in the alphabetical
order of their names in English ashas alreadv been announced. The Court will
expect ihar if, ai the conclusion of hls statcmcnt. therc isiimc availablc towards
the end uf the sitting, then thc reprcscntativc of the Sixte ncxi in order should
be ready to follow on.
The Corrrtroseat 12.15p.m FOURTH PUBLIC SITTING (II 11 71, 10 am.)
Presenf:[Seesittingof8 1171.1
ORAL STATEMENT BY MR. CHAGLA
REPRESENTATIVE OF THE GOVERNMENI Of INDIA
Mr. CHAGLA: Mr. President and honourable Members of the Court, 1have
the honour and privilege to present ta you the views of the Govenunent of
India in regard to the request of the United Nations Security Council for an
advisory opinion of the International Court of Justice. By its resolution 284
(1970),adopted on 29 July 1970,the Court was requested to give ilsopinion on
thefollowingquestion:
What are the legal consequences for States of the continued presence of
South Africa in Namibia, notwithstanding Security Council resolution 276
(1970)?
The matter is of the utrnost importance not only to the Security Council and
the UnitedNations, but also to the intemationalcommunity of States asawhole.
Certain aspects of the matter before the honourable Court have been before
the League of Nations as well as the United Nations General Assembly for
over 50 years. The Intemational Court of Justice has also considered some
auestionsrelatin~ to South West Africa in three Advisorv Oninions and in a
~rulunged conirntious cîsc. In accordancc niih the decision; uf ihc pcoplc of
the Tcrriiory, ihc Uniicd N3iions General Assrmhly hy rcsoliiiion 2372(XXII)
of 12 Junc 1968 ha>~roclîimed ihat South Wesi Africa shall henccfonh be
known as Namihia.
My Government has already filed a written statement which has been printed
in the volume of written statements. 1.at Darres830-842. The Government of
India has also hid ihc henclii ofpcr;sing ihc~~ritrcnsiaiemcnis tiled on bïhslf
of the Secreiary-Generîl of the Unitcd Nations, as ircll asothcr go\,ernmenls.
Mv Government is erateful to the honourable Court for the onnortunity
given to it not only tolfile its written statement, but also to participate in the
oral proceedings. We have decided to appear before the honourable Court in
nerson to assist the Court in renderine in oninion on the auestion requested
by ths Seiurity Cuuniil, lrhich u,ill fcilitÿtè the furihcr co~sidcrdiion~of the
question of Namihia in the Unitcd Nations.
The Forcirn Minisicr of Indii. Sdrdîr Suaran Sinch. siatcd in thc Ciencral
Assembly on26 September 1966: '
"The people of South West Africd [Namibia] have bxn dccply injured
and sorcly ncglccicd for many dscades: and 11hehovrs the Unitcd Nations
to iake swifi and eiTeciivc'iction io bring to 3n end thcir subjugation and
opprcssion." (Cniied Nations Gcnïral Assembly, 2lst Session, Plcnary
hlccting, 1417thmeeting, pp. 11-12.)
In the view of my Government the case of South West Africa-Namibia-
has been a blot on the conscience of mankind in spite of international law and108 NAMlBlA (SOUTH WEST AFRICA)
ovenvhelrning public opinion king on the side of the people of that Territory.
It is incumbent on the international community to close this ualy chapter in the
history ofinternational relations.
I. Background
Before1exoress the viewsof the Govemment of India on the auestion which
is before the'honourable Court, may 1 brieily recall the backgiound agai&t
which thisquniion has bcen submitted to this honnurable Court foritsopinion.
As a result of the First World War, Germsny renounced in favour of the
Principal Allied and Associated Poiversal1her rights and ritles over her o\,erseas
oossessions,includina the Territory ofSouth WestAfrica.
To its people, theCovenant ofthe League of Nations applied the principle
that their well-being and development was a sacred tmst of civilization Io
enable them tn stand bv themselves. Securitv for the ournose of this trust was
embodied in the ~ovenant. Countries ivhkh. by rcsoi of iheir resources.
iheir experience or geographical position could best undertake this responsibi-
lity. were giventhe resoonsibility. if thev were willina to acceot it. to Cam, out
thissacred trust asmandatory on behalfofthe ~caguëofh'aiions '
The mandatory u,as to render Io the Council an annual report with regard
to the territory committed to ils charge. These reports were to be received and
examined by the Permanent Mandates Commission. The Territory of South
West Africa was placed under the tutelage of the Union of South Africa by a
Mandate which was conûrmed by the League Council on 17 December 1920.
Followine the termination of the Second World War. the Assemblv -~ the
Leagueof t&tionsadopted on 18April 1946a reiolution wherein ilrecilled the
sxcrcd trust ofcivilization embodied in Article 22ofthe Co\.enant. and recoaniz-
ed that. on the termination of the Leaeue's existence.its functions with resoect
to the mandated territories would corne to an end, b;t noted that ~hapten~~,
XI1 and XII1of the Charter of the United Nations embodied orinciples cor-
responding to those declared in Article 22 of the Covenant of the ~eague and
took note of the expressed intention of the mandatory Powers to continue to
execute the sacred trust of civilization (League of Nations Oficial Journal,
21st Assembly, 1946,Spec. Supp. No. 194,p. 58).
The Charter of the United Nations, in Chapters XI, XII and XII1 contained
orovisions reaarding non-self-aovernina and trust territories whereunder
~embersof the ~niÏed ~stions-haw ac~eptedtheobligation as a wcred trust
to promote to the uimosr the well-king of the inhabitants of ihese territories
and recoanized that their interests are paramount. Attention of the member
States toihese objccti\~csand obligations uas invited by the General Assembly
hyresolution 9(l)<idoptedon 9 Februar) 1946.
Desoitr ils expressed intention to olace the Territors of South West Africa
under ihe trusteeship system, the union of South ~frica did not conclude any
agreement in this regard placing the Territory within the descipline of the
system.
It its Advisory Opinion rendered on II July 1950regarding the Itrternational
Storr~sofSouthWestAfrica, the International Court of Justicestated that:
"South West Africaisa territory under theinternational Mandate assumed
by the Union of South Africa on December 17th, 1920.. .the Union of
South Africa continues to have the international obligations stated in
Article 22 of the Covenant of the League of Nations and in the Mandate
for South West Africa ... the supervisory functions to be exercised by the
UnitedNations." ORAL STATEMENT BY MR. CHAGLA 109
The) furthcr advised that the Union of South Africa ma). bring the Territory
undcr ihc trusteesliip system of the United Nïtions, cvcn though they haveno
legal obligation io do so and that the Union of South Africa acting alone has
noi the iompetence to modify the international status of the Territory. which
competence rests with the Union of South Africa acting with the consent of the
~nitedNations.
The implications of this Advisory Opinion on the supewisory functions of
the United Nations were elaborated in the Opinions given by the Court on 7
June 1955 and 1 June 1956 resvectively, which suvvoned the takina of a
dccision by the Gcneral ~sçmblion questions relating IO reponsand pëtitions
conccrning thc Tcrrttor) ofSouth West Africa by 3 tu,o-thirds rnajority and the
granting of oral hearings to petitioners on matters relating Io the Territory of
South West Africa by the Committee on South West Africa.
In the contentious proceedings before the Court instituted by Ethiopia and
Liberia against South Africa, the Court was requested to adjudge and declare
that South West Africa was a mandated territory, that the Mandate in question
was a treaty in force, that the Union of South Africa remained subject to its
international obligations, and that it had violated the Mandate and its inter-
national obligations by unilaterally modifying ils lem, by failing to promote
to the utmost the moral and material well-being and social progress of the
inhabitants of the Territory, by establishing apartheid, by failing to render
annual reports to the United Nations and transmitting petitions from the
Territory's inhabitants and by otherspecified acts.
Althoue. bv .ts Judment delivered on 21 December 1962 the Court over-
rulcd the objections ofthe Union of South Africa and held that ithad juris-
diction to adjudicate upon the merits of the dispute. by its subsequent Jude-
ment delivered on 18Julv 1966 ithcld that the Avplicants had no Irgal interest
in the subject-matter of iheir claims and, therefire, refused to proceed on the
merits.
In the meanwhile. the General Assemblv made several efforls to ensure that
the Union of South Africa performed its;ntcrnatii?nal obligations relating to
the Territory of Soutli West Afric~. The resolutions adopted by the General
Asscmblv on South West Africa uniil 1966are refcrred to in the writtcn slate-
ment of ihe United Nations Sccrctary.Gcncral. After reaffiming the inalieniiblc
right of the people of South West Alrica to freedom and independence in
accordancc w~ththe Charter of thr L'nitcd Nations. Gencral Assemblv resolu-
tion 1514(XVJ of 14 Decemkr 1960and othcr carlier r~solurions, convinced
thût the Territory Iiad becnadminisrcrcd by South Africa in a manner contrary
IO the Mandate, the Charter of the Uniicd Nations and the Uni\,ersal Decla-
ration of Human Klghts, considering that al1efforts of the United Nations to
inducc the Govcrnnient of South Africa to fulfil 11sobligaiions in respectof the
Territorv and its inhabitants had ken of no avail. mindful of its i)bligations
towards-the people of South West Africa, and affirming its right to takeappro-
priate action in the matter, including the right to revert to itself the adminis-
tration of the mandatedTerritorv. the General Assemblv decided to teminate
the Mandate of South Africa in relation to the ~erritoriof South West Africa
by adopting resolution 2145 (XXI) on 27 October 1966. The resolution was
adovted by a vote of 114in favour. 2aaainst. with 3abstentions.
1nthe operativepart of this resolution the General Assembly, interalia,
(i)reaffirmed the inalienable right of the people of South West Africa Io
self-determination,freedom and independence;
(ii) reaffirmed that South West Africa is a territory having international
statuswhich it shall maintain until it achievedindependence; (iii) declared that South Africa had failed to fulfil its obligations in respect
of theTerritory and had disavowed the Maridate;
(iv) decided that the Mandate conferred upon His Britannic Majesty ta be
exercisedon his behalf by the Govemment of the Union of South Africa
is, therefore, terminated; that South Africa has no other right to ad-
minister the Territory; and that henceforth South West Africa cornes
under the direct responsibility of the United Nations;
(v) resolved to discharge these responsibilities with respect to South West
Africa;
(vi) established an Ad Hoc Committee to recommend practical means by
which South West Africa should be administered so as to enable the
people of the Territory to exercise their right of self-determination and
to achieveindependence;
(vii) called upon the Governrnent of South Africa forthwith to refrain and
desist from any action which will, in any manner whatsoever, alter or
tend to alter the oresent international statui of South West Africa:
(viii) called the attenti'on of the Security ~ouncil to this resolution; and
(ix) requested al1 States for whole-hearted CO-operation and assistance in
implementing this resolution
Suhscqucntly, the Cicncral Assemhly üduptcd resolutions 2248 IS-VI, 2.124
(XXIIJ. 2325 (XXII). 2372 (XII), 2403 (XXIII). 2498 (XXIV). 2517 (XXIVI,
2678IXXViand 2680kXXV1. TheSccuriiy Councilalsosonsidcrcd the question
of Souih West Africa (Namibia) in 3id of the decistons takcn by the Cicneral
Asscmbly. upheld the principles cmhodicd in Gcncral Asscmbly resolution
2145 (XXIi. and adonted resolutions 245. 246 (19681: 264. 269 (1969,: 276.
, ,,
283 and 284(1970). ~heseresolutions relatéd,inter dia, to the ille&l deténtion
andtrial of South West Africans by the Government of South Africa (General
Assemhlv resolution 2324 and Securitv Counci~-re-olu~ ~ ~ 245. 246 and 2761.
the action of Souih Africa in establishing Raniustani insouth 'wcst Africa ln
contraveniton of ihe Ilnitcd Nations Charter (Security Council resolution 2(4J,
extension and enforcement of South African 11u.sin the Terriiory (Security
Council resolution 276) and persi\t<nt defiance of the authoril). of the Ilnitcd
Nations by the Cioierninenr of South zlfrics (Sccurit\ Couiicil resolciions 245
and 246,264 and 269,276 and 283).
In these resolutions, the Security Council recognized that the General
Assemblv terminated the Mandate of South Africa over Namibia and assumed
direct responsibility for ihc Tcrritor, uniil iis indcpendcncc. and called upon
the Cio\ernment of South Africa io wiihdraii. iis ailminisir:iiion from the
Territor). immediaiely (resolurion 264 of 1969.rcdlirnicd in later rcsolu~ionsl.
Faccd u,ith thesituation of thcTerritory bcing in the p~i~scssionof the Cioi.ern-
ment of South Africï. noiwithstanding the resoluiions of the General Assembly
and the Security Council. the Security Council took certain decisions to ensure
cornpliance wiih thcss r;soluiions by ihe Governrnenr of South Africa. The
Iatest mcasurei taken in thir regard îrcemhodied in ils resolution 283(1970).
Mr. Prcsidcnt and honouriihlc Xlembcrs of the Court, itis aginii this bask-
grounù that the question which is brfore thc honourablc Court fur ils advisory
opinion druse. When the Sccurit) Council u,üsconsidering thc measurcsas to
how the decisions and ubicctives of the Gencrÿl Assemblv. cndorscd hy the
Security Council, could be implemented and further realiied, il decided that
an advisory opinion from the International Court of Justice would be useful.
The request for an advisory opinion was made in resolution 284. By this
resolution the Security Council reaffirmed the special responsibility of the
United Nations with regard ta the Territory and the people of Namibia, ORAL STATEMENT BY MR. CHAOLA 111
recalled resolution 276 and decided to suhmit the question to the International
Court of Justice for anadvisory opinion.
In resolution 276(1970),the SecurityCouncil, after reaffirming the inalienahle
right of the people of Namibia to freedom and independence and recalling its
earlier resolution in which it had recognized the termination of the Mandate
snd cïlled upon the Govcrnnient of Si>-uthAfrica immediately to withdr3u. ifs
adniiniitration fromiheTerritory, srrongly condcmned therefus11of theGovern-
ment of South Africa to comol~ with the General Assemhly and Security
Council rcsoluiions penaining io Naniibia. declared that the coniinuing
prcsence of the South African auihoririe~ in Naniibia was illegal and that
conseauently 311acts taken hy the Covernnient of South Airica on behalf of or
concerning Namibia after the termination of the Mandate were illegal and
invalid, and established an Ad Hoc Sub-Committee of the Council to study
wavs and means for effective imolementation of the resolutions of the Council.
~he question refcrred to rhis honourable Court fur its opinion u,as sug~esred
in that Ad Hoc Sub-Committcï: wh~chhad also sugpsted some oiher measures.
The Seireiary-General oi the United Nations has no1 only transmittcd the
text of resolution 284 (1970) to the International Court of Justice but, in
accordance with Article 65 of the Statute of the Court, has also supplied al1
documents likely to throw liaht won the question. These narrate at length
the developmenis in the ~en&al ~isemhl~ and the Security Council since the
termination of the Mandate hy the General Assemhly resolution 2145 (XXI)
II. The QuestionBefore the Court
Permit me now to address myself to the question before this honourahle
C-u~~~
The first question which will arise in regard to the request from the Security
Council is whether the Court should give its opinion. Keeping in mind the fact
that thelnternational Court of Justiceis aorincioal ornan of theUnited Nations.
that its Statute forms an integral part of ihe ~nited Nations Charter, and that
in fact, the Court is the principal judicial organ of the United Nations, that
the ouestion reou.st~d bv the Securitv Council under Article 96 (1) of the
Charter is a lcgal question, and that ihere arc no compclling reasons for it to
refuse ~ts~~pinioni,l isihevicw i,fiheGoi,crniiicnt of Indix thai the Iniernsiional
Court of Justice should address itself to this questionand give its opinion.
The esential principles which the Court would take into accouot in this
regard have heen laid down hy the Court itself on a numher of occasions. In
its Advisory Opinion in the CertainExpenses case in 1962,the Court obsewed
asfollows:
"Ir has hcen argucd that the question put IO the Court 1sintertwincd
iith polirizal quest~ons,ündthai Corthis rcason theCour1 should refuse IO
eive an ooinion. It is true that most inter~retations of the Charter of the
Ünited~ations will havepolitical significance, great orsmall. In the nature
of things, it could not be othenvise. The Court, however, cannot attribute
a political character to a request whichinvites it to undertakean essentially
judicial task, namely, the interpretation of a treaty provision." (I.C.J.
Reports 1962,p. 155.)
In the Peuce Treorres casein 1950,the Court. after;admiiiing thar the consent
of the parties is the basisof itsjurisdiction in contentiousr~scs, added th~t: "The situation is different in regard to advisory proceedings even where
the Request for an Opinion relates to a legal question actually pending
between States. The Court'sreply is onlyof an advisory character: as such,
it has no binding force. It follows that no State, whether a Member of the
United Nations or not, can prevent the giving of a0 Advisory Opinion
which the United Nations considers to be desirable in order to obtain
enlightenment as to the course of action it should take. The Court's
Opinion is given not to the States, but to the organ which is entitled to
~ ~ ~st it: the r..lv of the Court. itself an 'o-ean of the United Nations'.
represents its participation in the activities of the Organization, and, in
principle, should not berefused." (I.C.J. Reports 1950, p. 71 .)
The sxond question u,ill relütc ta the scope of the question rcfcrred. Kcsolu-
tion 284(1970)siatcs the qucstion as folloivs:
"What are the legal consequences for States of the continued presence
of South Africa in Namibia, notwithstanding Security Council resolution
276(1970)Y
Article 65 (2) of the Statute of the Court requires that the written request
for opinion should contain "an exact statement of the question upon which an
ooinion is reauired". The lanauaze used in the auestion put issimole. clear
and direct, and should be gii,caii<ordinay and niturai m&ïning. If IIbecomes
neccssary, rhc Court mîy look nt thc documcnrs supplied by the Security
Council. in accordance wiih Ariicle 65 of the Stütute of the Court, ro throw
light uion the question and ta help it to answer it. The Court h& not been
requested to advise upon the entire question of Namibia. The starting point
~~r the ooinion of the honourable Court should therefore be Securitv Council
resolution 276 (1970), notwithstanding which South Africa continhes to be
Dresentin Namibia. The question referred is, what are thelegal consequences
?or Statesof such continued oresence?
In resolution 276, the ~cchrit~Council reailirmed General Assembly rcsolu-
tion 2145(XXI) bywhiih the United Nations decided to terminale the Mandate
of South West Africa and assumed direct resnonsibilitv for the Territorv until
is independence, and reaffimcd Security coincil resoiution 264 (1969jwhich
recognized this termination and called upon the Government of South Africa
immediately to withdraw from this Territory. Hence, it will be necessary and
appropriate for the honourahle Court to look at these and other directly
applicable resolutions ta consider the legal consequences of the continued
oresence of South Africain Namitiia. However. neither the Securitv Council
;or the Gcneral Assemblyhas requestcd thecou;[ to sd\,isc on the leial validity
or othernire of rheoctioii iaken by thcni or the resolutions pÿssed hythem.
It is respectfully subrnitted that it will not be within the scope of the question
referred to the Court for its advice, and it will not be appropriate for the
honourable Court, to examinethe question of the validity of General Assembly
resolution 2145 (XXI) or Securitv Council resolution 276 or 284. or for that
rniiticr nny orhcr resolutions adoptcd by thcsc orguns, uhcther the) relaie io
matters of substance or proiedure, unlcss a specitic request to that cffect has
been made bythe referring body.
Such a request not having been made, the honourable Court will have to
assume the validity of the action taken by the Security Council and the General
Assemblv on the suestion of Namibia. and that such action was in accordance
with the~hirter. ~hc Court should nit assunie powers ofjudicisl rcvicwof the
action of ilssister principal organs of the Cnited Nations without specific ORAL STATEMENT BY MR. CHAGLA 113
reauest to that effect. To do othenvise would k to introduce an element of
unccriainty in the rrorking of the Unitcd Nations and in the implementaiion of
the Purpox and Principlcs of the Chiiner by the principal orgdns of the United
Nations acting withintheir comwtence and iurisdiction. In the absence of a
request for anadvisory opinion on the point Gythe principal organ entitled to
make such request, the campetence and validity of itsaction should be assumed
bv theCourt.
Such an assumption by the Court would be reasonable and justified, if it
keeps in mind the following points which emerge from the background of this
case referred to by me at the outset of this statement, namely:
that the Territory of South West Africa has a separate international status of
its own;
that South Africa had obligations towards its administration as a Mandatory
of the international community fint organized in the League of Nations and
later in the United Nations;
that the obligation of South Africa of the sacred trust of civilization was to
cnable the people of South Wcst Africa to stand by thcmselves:
thdt this obligation survii'cd the terminaiion of the Leiigue of Nai~ons as a
result of 11sown resolution as well asthe provisions of the Charter of the
United Nations reeardine the non-self-eovernine-and tmst temtories an~ ~ ~
the right of its so$e to self-determination;
that South Africa did not place the Territory of South West Africa within the
disciplineof the ~nited~ations trusteeship system but nevertheless could not
escapeits obligations towards the people of that Territory;
that after prolonged consideration of the question, including several references
to the Honourahle Court. the General Assemblv. after beine convinced that
the Territory had ken aknistered by South ~frica in a marine contras.
to the Mandate, the Charter of the United Nations and the Universal
Declaration of Human Rights, and that South Africa had disavowed the
Mandate, and thereby committed a material breach of the Mandate which
was an international treaty, decided to terminate the Mandate and to
assume direct re~~.~si~ilitv,for the administration of the Territom until its
indcpcndrncc, namcl) untilthesacred trust of civiliraiion tocnable the people
of Namihia tn siand by themselves wiisfuliilled:
ihiit lhis action was rec&nized and cndoncd by the Security Council, which
has takcn further stcps io irnplcmcnt thesc resolutions and tiiken consequent
action;
that the General As~~mblv~,esolution was adoote~.hv an overwhelminz maior--.
ity, amounting almost to unanimity, of the representatives of the inter-
national community, a phenomenon which, as has ken aptly described by
thesecretarv-General. was"rareandalmost uniauein the historvof theUnited
Nations and in the history of international organization and international
relations in general" (1,p. 202);
and that international community has by near unanimity upheld the basic
questions of fact and law relevant ta the statusof Namibia (ibid.,seep. 202).
Accordingly il will not be within the scope of the question for the Court to
advise the Security Council or the General Assembly about the measures
already taken by them, or which may hereafter be taken, in implementing thex
resolutions. Needless to addthat the Security Council and theGeneral Assembly
will give due weight and consideration ta the opinion rendered by the honour-
able Court on the question under reference, while taking further action.114 NAMIBIA (SOUTH WEST AFRICA)
III. TheLaw Relevantfo the Question
Since the action taken ha kn by the United Nations, legal consequences
for States arise from theirmçmknhip of the United Nationsand provisions of
the Charter of the United Nations. an international treatv. to which thev are
Party. Legal consequences also flow from obligations ahSing under geieral
international law. The relevant provisions of the Charter appertaining to the
question under reference may be summed up as under.
BasicPrinciplesof the Charter
Under Article 1, paragraphs 2 and 3, of the Charter, the purposes of the
United Nations are, interalia:
"To develop friendly relations among nations based on respect for the
principle of eaual rights and sclf-determination uf pruplcs ..." and
"TO achieve international cooperation in promoting and encouraging
respect for human rights and for fundamental freedoms for al1 without
distinction asto race, sex, language or religion."
Under Article 2, paragraph 4:
"Al1 Members shall refrain in their international relations from the
threat or use of force against the territorial integrity or political indepen-
dence of any State, or in any other manner inconsistent with the purposes
of the United Nations."
Article 55 provides that:
"With a view to the creation of conditions of stability and well-king
which are necessarv for oeaceful and friendlv relations amone natio-s
based on respect fo;the piinciple of equal righis and self-determination of
peoples, the United Nations shall promote:
(c) universal respect for, and observance of, human rights and funda-
mental freedoms for al1without distinction asto race. sex.language, or
. . - -
religion."
Under Article 73of the Charter:
"Memben of the United Nations which have or assume resoonsib~~ities
forthe administration of territories vhose peoples have not yct altaincd 3
full measure of self-go\,ernment. rçsognizc the principlc thai the intçrests of
the inhabitants of &ese territories are oaramount. and acceot as a sacred
trust the obligation to promote to the itmost, within the sistem of inter-
national peace and security established by the present Charter, the well-
king of the inhabitants ofthese territories .. ."
Under Article 2, paragraph 5, of the Charter:
"All Members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter. .."
Under Article 56:
"All Members pledge themselves to take joint and separate action in
cooperation with the Organization for the achievement of the purposes set
forth inArticle 55." ORAL STATEMENT BY MR. CHAOLA 115
Under Article 25:
"The Members of the United Nations agree Io accept and cany out the
decisions of the Security Council in accordance with the present Charter."
Under Article 2, paragraph 2,of the Charter:
"All Members ... shall fulfil in good faith the obligations assumed by
them in accordance with the present Charter."
Under Article 103of the Charter:
"ln thc cvcnt of3conilict bettvccn the obligations of the Members of the
Uniicd Nations undcr the presrnt Charter and their obligaiions undcr any
other international aereement. their ob-ieations under the oresent charter
shall prevail."
Elaborarionof theLaw
Aspects of the basic principles of the Charter referred Io ahove were further
elaborated bv the United Nations in several resolutions and declarations. and
most conipr;hensivcly by the Spcc.al Commitiee on Fricndly Relations ihich
iras establishcd in 1964and \<hichconiplctcd its report in 1970.tlased upon iis
report. ihc Uniicd Nalions Gcncrill Assenibly îdopicd, on 24 Octobcr 1970,
resolution 2625 (XX\' cmtwdying a Declaration on I'rinciples of International
Ldw concerning the Fricndly Relÿtions and Co-operaiion among States in
accordance with the Charter of the United Nations.
The rélcvant pruvisions of ihc Declararion uhich bcar on the legal sonse-
quenccs for Siaies of the continued presence of Souih Afriia in S3mibia nias be
summed up as follows
As ro Occupatiorrof TerritoryandNon-Recognition
"The territory of a State shall not bethe object of military occupation
resulting from the use of force in contravention of the provisions of the
Charter. The territory of a State shall no1 be the object of acquisition by
another State resulting from the threat or use of force. No territorial
acquisition resulting from the threat or use of force shallrecognized as
legal. Nothing in the foregoing shall be construed as affecting:
(a) Provisions of the Charter or any international agreement prior ta the
Charter regime and valid under international law; or
(b) The powers of the Security Council under the Charter."
(The prirrciplerhot Statesshall refrain iniheir inrernationalrelarions/rom
rhe threar or useof force ogaii~stthe territorial integrity or polirical inde-
pendenceof any State, or in any othermannerinconsistentwirhthepurposes
of the United Nations,para. 10.)
As roEqualRights and Sel/-Determination of Peoples
"The territory of a colony or other Non-Self-Goveming Territory has,
under the Charter, a status separate and distinct from the territory of the
State administering it; and such separate and distinct status under the
Charter shall exist until the people of the colony or Non-Self-Goveming
Territory have exercised their right of self-determination in accordance
with the Charter, and particularly its purposes and principles.':116 NAMIBIA (SOUTH WEST AFRICA)
(Theprincipleof equalrights andselj-determinationofpeoples, para. 6.)
"Evew State has the duty to oromote. throuah ioint and seoarate
action, r~alizition of the principle &equal righis and self-deteminat;on of
peoples, in accordance with the provisions of the Charter, and to rcnder
assistanceto theUnitedNationsincarryingout theresponsibilitiesentrusted
toit by the Charter regarding the impiementation of the principle, in order:
(a) To promotc friendly relations and soopr.ration among States;and
(b) To brinp.a swdv end Io colonialism, havina duc -egard t. the freely
expresse3 will of ihe peoples concerned;
and bearinz in mind that subiection of oeooies to alien subiueation. domi-
nation andexploitation consiitutes a violaLionof the principi, as iell as a
denial of fundamental human rights, and is contrary to the Charter."
(Ibid.,para. 2.)
"Every State has the duty to promote through joint and separate action
universal respect for and observance of buman rights and fundamental
freedomsin accordance with the Charter." (Ibid.,para. 3.)
"Every State has the duty to fulfilin good faith the obligations assumed
by itin accordance with the Charter of the United Nations."
(The orinci~lerhar Sroresshullfilfil ln -.odliiirh rhe ubli-urionro.~.~~tmr~l
by rhéminoccordancewirhthe charter, para. 1.)
"Where obligations arising under international agreements are in
conflict with the obligations of Memben of the United Nations under the
Charter of the United Nations, the obligations under the Charter shall
prevail." (Ibid.,para. 4.)
The above principles of the United Nations Charter, as elaborated in the
Declaration on Friendly Relations, have also entered the body of general
international law. In fact, by this Declaration, the General Assembly has also
declared furtherthat:
"The orincinles of the Charter which are embodied in this Declaration
constituÎe basic principles of international law, and consequently appeals
to al1States to be guided by these principles in their international conduct
and develop their mutual relations on the basis of the strict observance of
these principles." (Declaration, ibid.General Part, para. 3.)
After the General Assembly had unanimously adopted the Declaration on
Friendly Relations on 24 October 1970, the President of the General Assembly,
Mr. Eduard Hambro, made the following statement:
"As a man of law 1am particularly happy to have just announced the
adootion of the Declaration on Princioles of International Law concernine
~riendl). Relations and Co-operation bong States in accordlince with thé
Charter of the United Nations. This mlirksthe culmination oi many ycars
of efiort for the orogresive develooment and codification of the concepts
(rom which basic principles of the charter are dcrived. The Asçernbly WIII
rernember that whcn we first cmbarked upon these eKoris man). doubied
th31 IIwould be r>ossihlcIo obtain a resull which would beacceotablc 10 al1
ihe various polit;cal economic and soci;ilsystems represenied in the United
Nations Today ihox doubts have ken overcome. In asense, however, the
work has just begun. We have proclaimed the principles; from now on we ORAL STATEMENT BY MR. CHAGLA
117
must strive to make them a living reality in the life of States, because these
principleslie at the very heart of peace,justice and progress." (A/PV. 1883,
24 Oct. 1970, p. 7.)
1need hardly dwell at length on the value of General Assembly resolutions
or declarations adopted by an ovenvhelming vote or near-unanimity for general
international law. 1would like. ho.~~,r. 10-citeoninions of two ei~e~ts-i-~rh~s ~~-
connection. Quincy Wright's vie~ isthat:
"A General Assembly resolution, even though it lacks legislative effect
perse, may, if approved by substantial unanimity, manifest general accep-
tance of a norm and thusestablish customaryinternational law." ("Custom
as a Basis for International Law in the Post-War World", The Indian
Journal of Ir~terrruriunu Llaw, Vol. 7,No. 1,January 1967, p.9.)
Another author's viewsare as follows:
"If.. . a resolution contains an assertion that a certain action is in-
compatible with a particular norm of the Charter, thic is not a recommen-
dation, although the assertion may be containcd in a recornmcndatory
resolution. Again, a resolution may contain an assertion that a particular
line of conduct is contrary to a principle of customary international law
or it may contain a principle agreed upon by the Members of the United
Nations to guide their future conduct on an issue. These statemeots of
principle liri no1 rncrcly rccommendations but c\,idcnce of what tIic coiii-
munity ofStatesregürdsaslaw." (Obed Y. Asamu~h, TheLegalSigni/iconre
01' rhe de cl or or io n ^rhe General Assemhlv iof rhr Uuired Norions. The
IV. Legal Consequences
Applying the legal principles as set out in Part III to the situation arising
from the continued presence of South Africa in Namibia notwithstanding the
relevant Security Council and General Assembly resolutions, the legal conse-
quencesfor States may be summed up as follows:
1. From the termination of S~ut~ ~ ~~ ~ ~ ~ ~ ~te bv the Genera~ -~sem~ ~ ~ ~
and the nssumption of direct responsibility by the ~hited Nations over th;
Territory of Namibia until ils independence, and since South Africa hac no
other rieht to administer the territor;. it follows that its oresence in that territom
is illegay. It further follows that ail'acts taken by théGovernment of south
Africa on behalf ofor concerningNamibia after thetermination ofthe Mandate
are without anv leaal authoritv and are conseouentlv ille~al and invalid. It is
incumbent on sou& Africa to-withdraw its administration from the territory.
South Africa's continued illegal presence in Namibia will entail international
resoonsibilitv because both the existence of the internationaliv unlawful act.
a3 ive11asit; imputability to South Africa, have been establishédby the action
tnken by the General Assernhly and the Sccurity Council.
2. Since the action taken has ken bv the United Nxtions. a11Mcmbers of the
United Nations shall give to the unitid Nations every assistancein the action
taken by it in accordance with the present Charter (Art. 2, para. 5). Conse-
quently, it would be the duty of every Member of the United Nations:
(a) to recognize the authorityof the United Nations to administerthe territory
of Namibia:118 NAM~BIA (SOUTH WEST AFRICA)
(b) to recognize the inalienahle right of the people of Namibia to self-determi-
nationand independence:
(c) 10take joint'and separate'action in co-operation with the Cnited Nations
for the achie\,ement of the purpows set forth in Article 55of the Charter.
in particular respectfor the principlc ofcqual rights and self-deterniination
of peoples -in thiscase the people ofYamibia-and universal respect for,
and obser\,~nccof, human rights and fundamental freedom for <il1\vithout
distinction as10 rase,Sei, langusge or religion (Art. 56of the Charter);
, toact in aid ofthe recommendatiiinrfromtimeto time made by the United
Nations Council for Namihia ÿs iiell as the United Nations High Com-
missioncr for Namibia, siich as iravel documents iüued by itto I~cilitate
the trad of 93mibians in other couniries.
3. To accept and carw out the decisions of the Securitv Council which it has
taken or ivhiih it niay Ïake from time to tomein accor&nL.e with the Ch~rter
(Art. 25).suchasthestcps meniionrd in resailulion 283(197111t.ly rïsolution 283
(1970). the Sccurits Council, iizrrr ulio, requesied "a11States io refrain from ïny
rel~tions-diploniatic. consular or otherwise-with South Africa impljing
rccogniiion of the authority of the Sotith African Governmeni over the territory
of Namibia" and called upon thcm to take furrher relatcd ste~s: called uoon
"al1 States to ensure thai companies and other commercial'a"d industrial
enterprisesowned by, or under direct control of the State, ceaseal1dealing with
respect to commercial or industrial enterprises or concessions in Namibia". and
Io lakc rurther related steps: requestrd 311States to re\,ieiv ïII bilatecil ireiries
hetwecn rhemsclvesand South Africa in regard tritheir ïppli~ation to the ler-
ritory of Namibia, in other words. to take stem to remove the ao~lication of
treaties to ~amihia, a similar step being requested to the ~ecretary-General
to review al1 multilateral treaties in regard to their application to Namibia:
called upon "al1 States to discouraee .. tourism and emieration to ~amibia":
4. ~onversely, al1Stateshave the obligationnot to reclgnize the presenceof
South Africa in Namibia in contravention of resolution 276 of the Security
Council and resolution 2145 of the General Assemhlv. Accordinelv. States
shall not act in aid of South Africa, recognize its prisence or autiority in
Namibia, deal withNamibia throunh SouthAfrica. exercisetheir rinhts or carry
out their obliaations arisinn from treaties. cont'racts or other sources with
respect to ~amibia throughihe ~overnmeni of South Africa, or do any other
act which would recognize directly or by implication the authority of South
. .
Africa over Namihia.
Y. S~immationand Conclusion
To sum up and conclude: it is respectfully submitted that, in the view of the
Government of India, the honourable Court should accedeIo the request of the
Security Counciland render an advisory opinion on the question referred to it.
Tbe question is a legal one and there are no compelling reasons for the Court
to decline to give its opinion
The question hcfore the Court is a 1,mited one, namely what are the Icgal
consequencesfor Statc) of the continued presenceof South Africï in Namibia.
notwithstanding Security Criuncil rcsolution 276(1970)?The honourablç Court
has to procecd from the assumption that resolutton 276 \VJS adopted by the
Security Council in accordance wiih the Charter of the Unitcd Nations and
th31il ~huuldcon~tilute the siartina "oint in de ter min inthe Iecal conseauencn
for States of the continued presenie of South Africa in-~amibia. ORAL STATEMENT BY MR. CHACLA 119
In this resolution the Security Council reaiïirmed General Assembly reso-
lution 2145 (XXI) of 27 Octokr 1966 by which the United Nations decided
that the Mandate of South West Africa was terminated. assumed direct re-
spons~bilityfor iheTcrritory uniil lis indcpcnden~.~,and reïliirnicd lis reiolution
264 (1969) which recognixd ihisicrmindtion andwhich called upon theG~iv-
emment of South Africa immediatelv to withdraw from the Territom.
IIfollousthat the Mandate of ~o&h Africa over Xamibia has bcin lcgally
icrminïied. South Africa has no othcr iitle to 3dministcr the Tcrritory. The
United Nstions hîs as~unied direct rcrnonsihiliiy for the Tcrritor\ uniil its
independence. Namibia continues to have a separate international sialus of its
own. The presence of South Africa in this Territory is, therefore, illegal,
amounts 10illegal occupation of the Territory, and constitutes aggression.
States parties to the United Nations Charter have an obligation to act in aid
of the United Nations and to give it every assistancein any action il has taken
in this regard, especially having regard ta the fact that the United Nations has
assumed direct responsibility for the Territory of Namibia until ils indepen-
dence. States have, therefore, an obligation to implement the decisions of the
General Assembly and the Security Council with regard to the steps which they
have taken or which they may, from lime to time, take to put an end to the
continued illegal presence of South Africa in Namibia and ta vacate the ag-
gression and thereby facilitatethe attainment of independence by the people of
Namibia.
The principles of the Charter, on the basis of which action has ken taken hy
the General Assembly and the Security Council, have been elaborated in the
United Nations Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations, which was unanimously adopted by the General
Assembly on 24 October 1970.
The relevant principles of law embodied in this Declaration, applicable to
the question referred to the honourable Court, have already heen indicated by
me a little while aga.
These basic principles, namely the inalienable right of the colonial people to
self-determination and indeoendence. the non-acauisitionof territorv bv threat
or use of force or any otherAformof aggression, the non-recognition of fruits of
aggression or illegal occupation of territory, and the duty to fulfil international
ohliaationsin eood faith.arein fact thefoundationsof international leaal order.
~he; are, therefore, of hterest to the international community of scates as a
whole. Their recognition and application by the World Court is bound 10
strencthen and oromote the rule of law in international relations.
Fifially, Ishohd bricfly likc to refcrIO the question ola plehisciic for Nami-
biï ratscd by South Afrirs. It is3 cle\fcrdevicc to Jrüu s red herrin~:across the
oath of this honourable Court. In the first olace the question of a olehiscite has
no rclc\,ancc ~vhïtsocvcr 10 the quesiion piscd by ihe Sccuriiy ~ouncil for the
advisory opinion of this honourahle Court, and this Court \\,il1not travel oui-
side the limiic laid dosun bs the Securiis Couniil for ils-auidancc and enli.hten-
ment from the Court.
,. In the second place the question of a plebiscite is a political question which
has 10be dealt with bv the United Nations either in the General Assemblr or in
theSecurity ~ouncil.-ln the third place it does not lie in the mouth of~outh
Africa 10 talk of self-determination of the people of Namibiaafter having,for
manv vears. flaerantlv violated the terms ofthelilandate. the resolutions of the
~ssembly and ihe ~ecurity Council and the principles of the Charter.
Finally, South Africa wishes to ascertain today what the conditions of thepeople of Namibia are and what their wishes are. What we areconcerned with
is what South Africa has done in the past. The Secretary-General has given an
impressive lis1 in his documentation of the repressive legislation passed by
South Africa and the equally flag.ant -isregard of what is perhaus the most
bsic principle of the Chaner, namely the dienity of the humn ~personality.
and il$clwr and unequivocal rcfusal 10 respect ihe rcsoluiions of the Assemhly
and the Security Couniil uhile continuing to remain ï Mcmber of the United
Nations.
In my country's opinion, the question raised by South Africa can be briefly
dismissed as beiog irrelevant and not falling within the ambit of the question
~ ~ ~this~Co~rt has been reouested Io aoswer. Mv countrv does not wish ~o ~
express an). opinion on the keriis of the plehiscitc India has always stood for
self-detcrmination but itis u,ell known th21 certain poliiicïl conditions mus1
exist before the rieht ofself-determination can be exercised. If is for the United
Nations to dete-ne the time and method of ascertaining the wishes of the
people of Namibia.
It should not be forgotten that the General Assembly resolution assuming
direct administration of Namibia by the United Nations was adopted by a vote
of 114in favour, 2-Portugal and South Africa-against, and 3 abstaining.
This showsthe ovenvhelmine confidence of the international communitv in the
United Nations. Soulli iithe Iast country in the world 10 t~lkglibly ot'a
~lebis~itcafter tresding under its feet the basic rights of the people of Namibia
and denying to them the inalienable guarantees which are enshnned in the
Charter.
Beforeclosing, 1should like to express to you, Mr. President, and the honour-
able Memben of the Court, my deep appreciation for the patiencewith which
you have heard the views of the Government of India in regard to the important
question before the honourable Court. QUESTION BY JUDGE SIR GERALD FlTZMAURlCE
The PRESIDENT: Sir Gerald Fitmaurice wishes to address a question to
Mr. Castrén, the representative of Finland.
Sir Gerald FITZMAURICE: MI. Castren, in your statement the other day
(1am looking at the top of page 86,supra, of the French text of the verhatim
report), you argued that Assemhly resolution 2145had not directly terminated
the Mandate. What it did in effect, according to your argument, was to declare
that the Mandatom. by its own culpahle behaviour, had itself terminated the
Mandate. The ~ssembly had merely regintered this faci.
In the light of this argument, the question 1u,ant to put to sou. Mr. Castdn.
is this:
Would you not agree that, since the Mandatory has at no time admitted
having broken the Mandate, a declaration by the Assemhly that the Mandatory
has itself temiinated the Mandate by reason of ifs breaches of it, amounts, or is
equivalent to, a finding or judgment by the Assembly that such breaches have
occurred?
As MI. Castren knows 1 think, it is oot necessaty for him to answer the
question now, and if owing to absence it is inconvenient for him to do so in
person, or through a substitute, 1shall he quite satisfied with a written reply
in due course.
M. CASTREN fait un signed'acquiescement.
The PRESIDENT: Mav 1 enauire from the distinauished res~resentative
of the Netherlands whethe;, having regard to his othercornrnitme"ts, it would
be convenient for him to address the Court now or at its next meeting.
MI. RIPHAGEN: MI. President, 1would prefer the next meeting, in view
of other commitments.
The PRESIDEN~:-~he Court. havine ben aoorised of the convenience of
..
representatives of States who are next in order on thelistof speakers during
the oral heltrinr. and havins consulted their convenience, willmeet on Monday
afternoon at 3P.m. to consnue these hearings, when the distinguished repre-
sentative of the Netherlands will first address the Court.
The Court roseat 11.050.m. FlFTH PUBLIC SlïTlNG (15 II 71, 3 p.m.1
Present: [Seesitting of 8 1171.1
ORAL STATEMENTBY MR. RIPHACEN
REPRESENTATIV OEFTHE COVERNMEN OTFTHENETHERLANDS
Mr. RIPHAGEN: Mr. President and Memben of the Court, in view of the
fact that already on several occasions in the past and now again in the present
proceedings, many written and oral commënts have been presented to this
Court, which have dealt at great length with virtually sll 1egalproblems relevant
to the Security Council's resuest for an advisory opinion, you will perhaps
iillow me Io limit myself IO somc vcry general oh;erviitiuns only
Since iniernational Ia\r is 31 the present d3y still primarily ii,r,s tnrer porer-
rare, und conseqiisnily the riahis and dulies of Statesifir~r sr Jre still primsrils
based on the concept~ofeach national government exercising sovereignty over
a given territory and a given group of human beings, it would seem that the
legai status of the peoples and Territory of Namibia are at the core of the
question pu1to ihe couri. Ii should in 0u.r opinion, hotrever, be reali~ed 31thc
outsel that the very legd notions iniruduced on the iriternai.ona1 sccneshortly
afler ihc First World Wïr, in re,pe<t of sonie peoplei ;ind territories fornierly
under the soiereiyniy of vanquished States. arc io ii large extent hliscd on an
approsch io internaiional lau which is fundamcnially difirent froni the one
follo\ied up uiiiil thcn in the elahoraiion of rule.; of international Isw.
In v~rtl~ular II X.OUIJ seeni that b) introdu;ing the niandîtes %)sicm tne
interniitidnal sonitiiuiiity <ifStatesïs il then cxisied, depdrtcd froin the hirherro
accepted hasis of al1 international law rules. accordiria to which any territory
and ils populaiion should corne under the full and pcrh;ineni sover~içnty i)f a
particular national government. Indeed. ihc introduction of ihe new leg~ison-
cepi al ihsi tinie has, IImould becni.three .niportani legal ;onsequcn<es \\hich
are inter-related. First of all.~th~ ~ ~ ~l rulei ConcerniÏneacouiition and loss
of territory do not apply. Secondly, the organized worldCo&unity has a sa?
in the determination of the functional rights and duties of States in respect of
the territory and the peoples concerned; and, thirdly, the peoples concerned
have a separatestatus pending the full exerciseof their right of self-determina-
,ln"
The legül nieaning of the various asts perfornied by the goi,ernmenij concern-
ed al the moment olihe introduction of the manddtcs s)stein and suhseiluenily
culniinaiing in the adoption of Gencrdl Assemhly rc~olution 2145 (XXIJ. ciin.
it would seem.on.v b.aoorai..d in~ ~ ~ ~ ~t o- the fund~me~tal change in the-
approiich tu internattonal Iüu rules uhich underlies the settinc up oi thc man-
dates s)stcm. Indecd. thît systeni nrcrssïrily implies a depsrture from the
classical rulcs of international 13w ~lonly hcr~usethe systcm postulates the in-
depcndent staius of tivo suris of pore.iturtni hitlierto not recognized in inter-
n3110ndlla\<. thïi is, on rhc one h~nd the indiviJuï1 hunian being. in partiiulür
in the exercise of his right of collective self-expression, and on the other hand ORAL STATEMENT BY MU. R~PHAGEN 123
the international organization, in particular as expressing the collective will of
the world community.
The full legal impact of this new approach to the solution of international
oroblems which in themselves were far from novel. makes itself felt bevond
lhc direct definition of the stntus of the peoples and t~rritorics concerned.ithîs
an important beîring on thc interpretation and leçïl eiTectof the individual
and collective decisions of national governments, taken in respect of these
peoples and territories. Indeed, these decisions cannot in law be treated in exact-
ly the same way as those taken in the normal course of formation of legally
binding rules and legal relationships between States under the classical rules
of the law of treaties and the law of inter-governmental institutions. In parti-
cular, the inter-relationship between those various decisions, both in their
sesuence in time and as regards their effectsbevond the arouD of eovernments
pakticipating in such deciiions, must of neceisity follow a pattern different
from that underlying the classical concepts in this field, since those classical
conceDtsare based to a laree extent on bilateralism. resiizteraliosacra and non-
conii"uit) under changedCirciimsiancei
The t\i,o principles on trliich the mandxtcs s,itcni is founded-lirrt oiall the
Dermanent riaht of self-determination of ~eo.le.and. secondlv. th-.nerma.ent
"on-annexation of the territories-those principles ikply an international ré-
gime of what we could nowadays cal1 jus copens, which, both as regards its
function and in resDectof its creation. cannotbe eoverned bv the normal rules
of claisicsl ini~rn3;ioiial I11ulrhich derive nll inkrnxiionnl.rights and duiies
from the ori~in31soveretgnty of each individual nntionxl g<iverninentovcr a
aiven Deooleand territorv.
- NOW ihédciîiled history of theninkingof Article 22ofthc Lcaguçof Sîtions
Covcnant hns been set out so <iftr.nboih beforc and hy this Coiiri 2nd ils indi-
vidual Members that a re~etition of the facts would seem suoerfluous. Besides.
it is the interpretation of ihose facts which gives rise to controversies.
In particular, there is a tendency, which is clearly apparent in the written
statement of the Union of South Africa but is not limited 10 that document
only, ta inierpret the various acts perforined by ihc governments conccrned ai
the tinie of the instiiution of ilic niïndates systcm itthe Iight of the legnl con-
cepts which are largely based on the idea that a state. .v .nterine into a treaty
or-similar instrument; entailing an international obligation, so Cospeak ''dis-
poses" of a part of the othenvise unfettered national sovereignty rather than
"warticioates" in a Drocessof international leeislation. Now surelv the rules of
the law bf nations in respect of the making, the interpretation and the effect of
treaties, asthose rules are generally interpreted and understood in the present
century. reflect both aooroaches. but the mixture seems to be different accord-
ing tothe object and purpose of the particular treaty. And it would seem ac-
cordingly, afortiori, it is respectfully submitted, that the various decisions taken
by governments individuallv and collectivelv in connection with the introduc-
tiiiiof the mandïtes systc~should bc consÏrued withduc regard tu the parti-
culnr character of ihat mandîtes system.
Indeed. from the moment that it is aenerallv acceoted that soecific oeooles
and territories will not be abjects of ~~vereigniyof an existing ~tate, then-the
creation and further development of rights and obligations in respect of such
peoples and territories of necessity is governed by rules different from those ap-
plying to a treaty through which existing States mutually contract obligations
in respect of the exercise of their respective sovereignties.
This, it is respectfully submitted, is not a matter of choosing between a te-
leological interpretation of a treaty and an interpretation in accordance withwhat is called the "will of the parties" of that treaty. It is rather a matter of
considering the legal character of the individual and collective decisions taken
by States in the light of legal premises on which those decisions are based and
of not applying to the adoption, interpretation and effect of those decisions
such mles as are clearly based on different legal premises.
In view of what is stated in the introduction to the written statement by
South Africa, it should perhaps be noted in this connection that in itself the
distinction between the intention of the oarties. the text of the treatv. and the
object and purpose of the trsaty, for the purposes of rules of inierpretaiion is
ccrtainly noi meant a3 an indication of mutually exclusive categories
Indeed. Articlcs 31 and 32 of the Viennï Ci~n\cntion on thc Law of Treaiies
can be considered to refer to al1these three elements together. And it would
seem clear that the emphasis which is often placed on the first, that is the will
of the oarties. rather than on the third obiective element. is iosoired bv the
consid&ation'that States should not lightl; be presumed io have given away
the freedom of action inherent in their sovereignty. However, even so. in the
interoretation rules of the Vienna convention-itis not the intention of ~ ~ ~
part&, but the text of the treaty which has pride of place.
It is obvious that this shift of emohasis makes it necessary to olace the text
of the treatv within the context boih of the obiect and ourio.~.of the treatv ,
and of any relevant rules of international lawapilic3ble in the relations between
the pariies, and this is exlicils what Article 31 of the Vienna Con\ention ores-
cribes.
So even if one were to ignore the fact that the interpretation rules of the
Vienna Convention are primarily directed at treaties through which States
acceot a limitation of their sovereientv and. conseauentlv. .f,one would anolv.. ..
without adaptation, those rules to &e;nteriretatioi of the various instruments
by which the mandates system was established. then the clearly exoressed
obiect and numose of thatsvstem. that is the realization of the self-determina-
lion of the'peoples, and the ~ccepfed basic rule of international Iaw, ihai is the
non-annekation of these terriiories, uould govern such interpretiition. and itis
respectfully submitted that under no circumstancescould one justify a so-called
interpretation of those instruments which would result in reducing either of
those two principles into a nullity.
Now here the fundamental difference between the instruments establishine -
the mandates system on the one hand, and a treaty imposing a limitation on
the exercise of sovereignty by a State party to it on the other hand, becomes
clearlv aooarent. Whereas in the latter t.. of t.eatv. that isa treat. .v which
a ~taïe accepts limitations in the exercise of its sovereignty, any gap left by the
text of the treaty and its interpretation in good faith is necessarily filled by the
sovereizntv of the States concërned. on théother hand. in the former tvve of
instrumeni establishing the mandates system such prbcess is excludéd and
another process is required with equal necessity, that is the construction of
solutions which are comoatible with the basic oremises of the instrument itself.
that is the self-determination of the peoples'and the non-annexation of thé
territories.
Since one cannot. so to soeak. fall back on the sovereientv of an existine
State over those peoples and terrjtories, such solutions muct imply some for;
of powers to be exercised by the organized community of States.
Now actually the mandates svstek. bv adootine theleeal nom of self-deter-
mination of those peoples and by rejéctingthe cl~ssical,~egaitechnique of ter-
ritorial sovereignty, could only embody the approach of functionally limited
powers in respect of the peoples and territoriesconcerned. This applies to the ORAL STATEMENT BY MR. RIPHAGEN 125
powers of the organized community of States, to the powers ta be exercised by
the mandatorv States as well as to the interrelationship between those oowers.
in particular 10 the consiruction according Io tihi~h the mandatory ~tite exer:
clses ifs powverson tchalf of the organiïed community of States.
Now this functional aimroach. adouted with the introduction of the man-
dai~~sysiem. h3s importûni irnpliC3tio;s with respect ia the rules of iniernatio-
na113wappliciiblc iu situlition>involving the peoples 3nd ierrttoriec concc.rned.
Its essential characteristic lies in its adautabilitv to changing circumstances
without having recourse to the fonnal modes of inter- tat ttalies, transfers
and adjudications which, under the classical rules of international law, are
otherwise required in order ta make the distribution of legally protected in-
terests between sovereign States correspond to the needs resulting from funda-
mental changes in the factual conditions.
Now obviouslv this adaotabilitv of the svstem is orimarilv in-.ired bv the
function of prokoting the éxerci&of the right of seif-determination of peopies.
Accordingly the functional powers of the organized community of States as
well as those of the mandatorv States are essentiallv limited in time. Thev cease
automatically at the moment this right of self-détermination has beénduly
exercised.
A further conseauence of this functional aooroa. .is that the oowers of the
organized communiiy of States arc ït any tinie during the period i~fïpplica-
bility of the iniindlitessysicm exercised ihrough such internation~l orgiiniztiion
as at that lime reoresents that communitv of States.
Finally, the functional approach entails an adaptation of the relationship
between the powers of the organized community of States and those of the
mandatorv State if and when such adaotation is reauired to ziv- effect to the
common purpose of these respective powers
In al1three respects the functional approach inherent in the mandates system
orecludes. in orinciole. the aoolication to the relationship between the oowers
of the organiied communityof States and those of the mandatory tat tef the
rules of general international law, which are predicated upon a system of re-
lations between independent States, each of which is presumed to be the out-
come of a process of self-determination of ifs population and each of which is
entitled to permanent sovereignty over a given territory.
The first of the three main conseauences of the functional aooroach. that is
the termination of the powers in reipect of the territory by theexercise of the
right of self-determination, is not directly relevant in the context of the present
Reauest for an advisorr ooinion. It could be remarked. however. in uassing,
thai in the relevant practike of States the question whether or not theionsent
of the mandatory State and/or of the organized community of States was
Ieaally reauired for the termination of their oowers has not been out to the test.
-. .
In any case there is a ground for the contention that as a matter of law such
consent would not freely be given or refused and as such cannot be compared
with the termination of a treatv by consent of al1the parties.
Furthe~~ore. it would seem~~-~~~ ~ ~Judement of ~ox Co,rt in the Norrhern
Cameroons case suggests that the regular exercise of the right of self-determi-
nation puts the stamp of finality on the resulting situation of the peoples and
territories concerned, as nomal parts of sovereign States, to the extent of
precluding an adjudication upon the merits of a claim concerningthe regularity
of the cxercise of powers under the trusteeship system.
Now the second main conseou~n~e ~. the functional aooroach is. . forcefullv
illustratcd by the Advisory Opinion of your Court concerning the It!l~~rnalional
S~olar O/SOIII~ Wtw A/riru. Indeed, it is rcspecifully submitted that this Ad-visorv Ooinion could not be iustified on the streneth ofa construction accord-
ing to which the obligations of south Africa related to the exercise of its sover-
eignty and werecontracted by il towards the Leaeue of Nations. In other words.
il could not be iustified on the streneth of the normal ao~..cation of the rules~~
of iniernation~~lair concerning the Ftrîct uf trcïtier betu.wn sovereign States.
On the contriry. it \vould seciii ihai ihis Opinion riehtl. s..roachcs ihc aues-
tion as one relatine to the modalities of exeicise of the oowers of the oreanized
communiiy of ~iaÏes, mudalitics of which ihc righis and obligations uf the-~ -~
m~ndaiory Stste are an inlegr31psri. Aciually the latter rirhis and oblic~tions
- ~
of the mandatorv State have a leeal character auite different from what: in the
relations between sovereign tat te ar, normaliy called rights and obligations.
Essentially the rights of the mandatory State are powers ta be exercised on
behalf of the organized community of ~Ïates and foi the benefit of the peoples
of the territory concerned, whereas the obligations of the mandatory State are
inseparable from such riahts inasmuch as thes express the functional limitation
of those powers and theFrrelationship to those of the organized community of
States. Now the third main consequence of the functional approach relates to
the manner in which the ada~tation of the mandates svstem to chanaed circum-
stsnccs is elfccied. Here ÿg.i;n itisrcspectt'ull) subm';ited ihai riileof gencrsl
inicrnaiion31 Id\ï relrlt~ngio ireaiier are in principle noi applicablin ihis iicld.
This, it is submitted, is of particular importance in respect of two questions
which have given rise ta controversy, to wit, first, the alleged existence of a
right of the mandatory State to veto such adaptation and, second, the alleged
character of such adaptation as a sanction on the non-performance of obliga-
tions by the mandatory State.
With regard to both questions it is, once again, essential ta keep in mind the
paramount function of the mandates system. which is the realization of the
right of self-determination of the people concerned. Powers of the organized
community of States as well as those of the mandatory State are subordinated
ta this function.
Now surelv no State can be chareed with the task of actine as the mandatorv
State withoui itsconsent and that isclearly expressed in ~rtide 22 of the ~eagüe
of Nations Covendnt. But this consent, once given, together with the decision
of the organized community of States to entrust this task tu the mandatory
State do not together constitute a treaty laying down the rules and procedures
according to which the objectives of the mandates svsiem shall be realized.
Indeed, neiiher the chaGcter of the actiitiiies of the ni>ndütory Stüie. ir,hicti
ibadministration in the largesi wnw of the iiurd, nor the nature of the priiiiary
purpose of the system, that is, self-determination of the people concerned,
wouldadmit any detailed blue-print ta be laid down in terms of an agreement.
Accordingly, the principles laid down in Article 22 of the.Covenant of the
League of Nations and in the resolution of the Council of the League of 17
December 1920 were more in the nature of constitutional guidelines for the
CO-operation of the various organs, both international and national, in the
performance of their common task in respect of the people and territory of
German South Africa. as it was then called. Sienificantlv. a modification of
those guidelines was fomally envisaged in ~rticle-7 of the ;&alution, and made
subject 10 the consent of the Council and of the Council atone.
Turningnow toquestion (b), that isthequestionofthealleged character of the
adaptation of the system as a sanction to the non-performance of obligations
by the mandatory State, it would seem once again, in conformity with the
general character of the mandates system, that an adaptation of its modalities
is not a matter of applying a sanction ta a violation of obligations but rather a ORAL STATEMEN~ BY MR. RIPHACEN 127
measure taken in order to serve the final ouroose of the svstem in view of an
unforeseen development of the factual situation.
The differencein approach between the one and the other legalphenomenon
can, it issubmitted, be illustrated by acomparison hetween the~dvisory Opin-
ion of your Court of 18July 1950on the lnrerprerationof thePeoce Treafies
(Second Phase), and its Advisory Opinion of I June 1956concerning the Ad-
missibiiifyof Hearingsof Pefifionersby the Cornmitreeon South WesrAfrica. In
the first-mentioned Advisory Opinion your Court held, and now 1quote from
I.C.J. Reports 1950at page 229:
"The failure of machinery for settline disoutes by reason of the oractical
inipossibiliiy of cresting ihc Coniniission provided for in the i.;eaiics is
one thing; international rcsponsibiliry is anoiher. The brcdch of a trcaty
obligation cannot be remedied by creating a Commission which is not
the kind of Commission contempldted by the Treaties."
In its Advisory Opinion of 1June 1956,however, your Court noted and now
1 quote from I.C.J. Reporrs 1956al page 31, that "Rule XXVl of its Rules of
Procedure ... of the Committee on South West Africa . . involved a depar-
ture . . from the procedure prescribed by the Council of the League". But
nevertheless your Court held, and now 1quote from the same Reports, page 32:
". . .that it would not be inconsistent with its Opinion of 11 July 1950
for the General Assemblv to authorize a urocedure for the grant of oral
hearings by the cornmittee on South ~esi Africa to petitioners who had
already submitted written petitions: provided that the General Assembly
was satisfied that such a course was necessarv for the maintenance of
effective international supervision of the administration of the Mandated
Territory".
Now as noted by the late Sir Hersch Lauterpacht in his separate opinion
(I.C.J. Reports1956, P.57).there is, as he called it. an "auoarent inconsistency"
between the two ~dviso& opinions, an inconsistenc$'which this regretted
judge and scholar explained by the fact that, as he stated it, and now I quote
from I.C.J. Reporrs 1956,page 58:
"The clauses of the Peace Treaties of 1947 relating to settlement of
disputes were, as shown in their wording and the protracted history of
their adoption, formulated in terms which clearly revealed the absence of
agreement to endow them with a full measure of effectiveness-includinx
safeguards to be resorted to in the event of the failure of one of the parties
to participate in the procedure of settlement of disputes."
Without conrcsting this stliienient of faci or the qu~lificdiion of the rïiuliing
dissin~ilïriiy bctwccn the ciriun~sianccs uf ihc ti<oLXX\ 2s vitdliiis, iriih duc
respect, submitted that the difference goes deeper and illustrates a fundamental
distinction in legal approach between the mandates system on the one hand,
and the settlement of disputes-as it stands today-on the other hand. While
in treaties like the one the Court had to deal with in its Advisorv Ouinion of
1950 the regulation of settlement of disputes relating to the States-parties'
specific rights and obligations under the treaty is an elaboration of the limitd-
tions in the exercise of their sovereignty, coniented toby them, the mandates
Systemstarts from the opposite point of view, that is to say, from the functional
powers of the organized community of States in relation to the realization of
the right of self-determination of peoples. From the latter point of view the
lack of co-operation of the mandatory State in the exercise of its powers isnot so much a failure ta perform obligations ta be sanctioned by the with-
drawal of rights if, and ta the extent such sanction is provided for in the in-
struments novernine the svstem: it is rather a factual situation which obli~es ~ ~ ~ -~-
the organiied com&nitiof &tes ta take such alternative measures as are
necessary ta ensure the ultimate realization of the abject and Durpose of the
svstem.
In order to assess the legal significance of the General Assembly resolution
2145 (XXI), it would seem necessary ta keep in mind the particular status of
the oeoole and Territorv of Namibia as that status was created after the Fi~ ~~ ~ ~ ~~-~
~o;ld War. The norni;of general tnternatio~al Iaw, acceptcd and recognized
at that tinie by the international community of States as a whole, in rcl3tion
to the territories and peoples "which. as a consequence of the lare !iûr ha\e
ceased tu be under the jo\ereignty of the States which fornierly governed
thcm"-this is a quoiaiion frum Article 22. haeue Covenant-have definitels
not ken abandoned since then nor reolaced hvoth.r nom~ ~-.internationa~ ~ ~~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
law having the same peremptory character. Accordingly, the Territory is still
not subject ta annexation by any~.xisting State -nd the peoole are .til. entitled
to self-determination.
Indeed, since the First World War, the right of self-determination has in the
meantime been extended ta peoples and territories which were-or still are-
under the sovereientv of an existine State. but there is no indication whatsoe~e~ ~ ~~
ofa rnodificatton-uirulcs of interrkional law in the opposite dircction, to the
eflect of brtnging çcoples and territoriec, u,hich did not have that status. under
the sovereignty of an~existingState.
In other words, South West Africa or, as it is now called, Namihia, has
retained ils international status. What has changed in the course of time, how-
ever, is first,the organization and purposes of the international community of
States and, on the other hand, the policy of the mandatory State in respect of
the territory and its population; the former, the organization and purposes of
the international community of States, have moved rowards, and the latter,
the policy of the mandatory State, has moved away from a full realization of
the right ta self-determination of peooles.
It would seem obvious that sich a fundamental change of circumstances
could not but affect the modalities of the legal status of the people and territory
concerned. The international status had either to disaopear. or its..odal.ties
had to be drastically revised. Nat surprisingly,the formercourse was advocated
by the Union of South Africa who persistently took the view that each and al1
international surxwision under the mandates system over its administration
of South West Africa had Iapsed at the momeni of dissolution of the League
of Nations. The Ilittrr cuurse, that is, drasticlilly to rei.ise the niodalities. is the
one taken by the Gencial Assembly oithc United Nationsin ils resolutiun 2145
(XXI), deciding, inter alia, that the powers of South Africa relating ta South
West Africa under the mandates system had came to an end.
It is submitted that, also from the legal point of view, the choice lies between
the leaal eouivalents of those two solutions. that is to sav between. on the one
-.
hand, a legal construction according ta which the individual and collective
decisions of governments after the First World War resulted in a transfer of
the territory of German South West Africa to South Africa, coupled with a
treaty relating to the exercise by the latter State of its sovereignty over the
territory; that is one construction.
The other one is a leeal construction accordine ta which the teiritorv of
German South West ~kica was placed under an international r&gime,.the
modalities of which were, in the finalanalysis, ta be determined hy the organized ORAL STATEMENT BY MR. RIPHAGEN 129
international community of States, of course with the proviso that no State
would beobliged ta dischargea function under theinternational régimewithout
- . .
~-s~ ~nsent.
It is also submitted that the choice between the two constructions depends
upon the question whether or not legal, in contradistinction ta purely political,
sienificance is ta beattached to the notion of self-determination of oeooles.
Ïndeed it woulds&m that the status of the territory as not forming pa;t oi the
territory of an existina State. as well as the international administration as a
safeeu&d for the iust treatment of the nonulation. are the translation. in leeal
- - . . -
terms, of an inchoate title ta sovereignty erga omnes.
It is finally submitted that, bath at the time of the introduction of the man-
dates svstem and o fortiori at the oresent time. such legal -ignif-cance was and
is given to this notion of self-determination of peoples, and that consequently
only thesecond of thetwo possible constmctions could beretained asexpressing
the-law as it st~ ~ ~~~ ~ ~
Now on the basis of the opinion that an international status was created for
the people and territory of Namibia after the First World War, and that such
stat"s implies a function of the organized community of States in relation
to the administration of the Territory and the people, it would seem legal-
ly incorrect to test the powers and procedures of the General Assembly in this
re~-r~~ bv ,he t~rms~ ~~-~e Charter of the United Nations onlv. Actuallv
thereexi<t several exmplesofsiiuationrin whichone selof rulesofintcrnaiionsl
1awproi'ides for functions, trithin the ~~pliclttion of such rules. io bc fulfilled
by an international institution establishëdand governed by another set of rules
of international 1aw:In such situations, and provided of course that the inter-
national institution concerned has duly given its consent to the discharge of
these functions, both sets of legal rules have to be taken into account in order
ta determine the effectof decisions taken according ta certain procedures. Since
each set of rules may stand on its own, such combination of the two sets of
rules mav. .auire a nrocess of mutual adaotation.
Thus it would indeed be strange to apply limitations of the powers of various
organs of the United Nations, generally provided for in the Charter in order
tosafeguard the independent soverei&& of member States, ta the powers
held by the United Nations organs themselves under another set of rules, in
relation to a State acting on behalf of the United Nations in fulfilment of a
United Nations task in respect of a people and territory which is not under its
sovereignty.
Now obviously the proces of mutual adaptation of the two sets of rules on
the one hand presupposes a common element in the general purposes of the
two sets, in the absence of which, it may be remarked in passing, the inter-
national institution governed by one set of rules would hardly accept ta dis-
charge functions within the framework of the other set. On the other hand.
this adaptation must respect the fundamental tenets of each set of rules. ~0th
requirements are met in the present situation: the realization of self-determina-
tion underlying the mandates system is also one of the fundamental purposes
of the United Nations system.
It would seem therefore that arguments against the validity of General
Assembly resolution 2145 (XXI), in so far as they are based on the fact that
under the Charter of the United Nations the General Assembly can generally
only adopt recommendations addressed to member States, are not legally
sound. That resolution deals with the modalities of exercise of United Nations
powen, including powers which were exercised by a member State on behalf
of the United Nations. It would seem that a comparison with the General130 NAMlBlA (SOUTH WEST AFRICA)
Assembly's powers of decision under the Charter with respect to specific
organizational matters would seem legally more appropriate.
Now. .or t.e reasons brieflv indicated before. it is suhmitte~ t~ ~ ~ ~ United
~ations General Assembly had the power to~kodify the organization of~the
administration of Namibia if and when such modification were required in
order to fulfilthe underlvina oumose of the international status of the ~erritor~~
thaÏistoslty, the ultimïtccxcrciseofthe right ofsclf-dctcrmination ofits peoplc.,.
The Gcncrÿl Assemhly hïs cxcrcised this poucr bs adoptine, rcsi)lulion 2145.
Conseauentlv. the union of South Africais under a leeal ditv to discontinue
its adiinist;ation of the Territory and to take al1ste6 neceLw in order to
enable the United Nations and ils agents effectively to fulfil their functions in
relation to the Territory.
Now it is obvious that the Union of South Africa has not complied with
this duty and has, in fact, virtually annexed the Territory. The consequences
to be attached to this factual situation are orimarilv a matter of noli.v to.be
pursurd within the frame\rork of the gcncrai rules oiintcrnïtional law and the
Charter of the lln~tcd Nations. Surely the continued de facro cxcrcise by South
Africa of powers over Namibiacannot be recognized as kgal and, consequently,
al1States are under a general duty ta refrain from any conduct expressing, or
necessarily implying, such recognition.
As reeards the content of this dutv of non-recoenition. it results from the
practiceof States in similar cases th& such non-recognition does not exclude
taking into account the fact of exercise of powers in so far as that taking into
account is necessary in order to do justice to the legitimate interests of the
individual which is, in fact, subjected to that power. Now this principle is of
particular importance in the present situation since the very purpose of the
mandates svstem. as well as of General Assemblv resolution 2145. is to orotect
the people of the ~erritor~ concerned. ~ccordin&~ the duty of non-recognition
is again subject to the functional limitations flowinr from the obiect and Dur-
-
.~~~~of the jnternational status of the Territorv.
Sow non-recognition of dc,jiiriuadmini\iration is one tliing: positi\.ç action
tu hring the factual situation into conformit). uith the leml status is another.
In this resoect there does not seem to exist under eeneral international law anv
<iuronrurr cuty inîumbcnt on cvcry individus1 Sta& io iakc action designcd to
<vr/orcethe sbligaiion of South Africa IO discontinue 11srl,,locrundniinistraiion
of Namibia. lndeed such enforcement action would go beyond the scope of
attaching consequences to the international status of Namibia and would be
directed against South Africa itself. Any such action would clearly be reserved
to the Security Council acting in conformity with the Charter of the United
Nations.
Mr. President and Members of the Court, my Government is fully aware of
the fact that the oresent Reauest for an advisorv oo-.ion raises a number of
questions not treated in either ils writteo statement or this oral argument.
In particular there are many points in the written and oral statements of other
eovernments and international or~anizations on which comment miaht be
&en. But bath the nature of advisory opinion procedures, as dislinguished
from contentious procedures, and the role of individual governments inter-
venina in such arocedures would seem to iustifv some restraint in this resoect.
Mr. &esident and Members of the couri, 1 Gould like to thank you foi the
patience with which you have listened to me. ORAL STATEMENT BY MR. ELIAS
REPRESENTATIVE OF THE GOVERNMENT OF NIGERIA
Mr. ELIAS: Mr. President and Members of this honourable Court, apart
from the memorandum which the Nigerian Government submitted earlier ta
this Court, 1wish ta say that Nigeria adopts the argument put fotward by me
on behalf of the Organization of African Unity on Wednesday last week.
Nigeria does not intend to add to that statement. ORAL STATEMENT BY MR. PIRZADA
REPRESENTATIVE OF THE OOVERNMENT OF PAKISTAN
MI. PIR7ADA Mr President and honourable Member, of the Court, this is
the first occasion upon which Pdkisian 1s king represented before the Intcr-
national Court of Justice, and 1consider it a great honour to appear on behalf
of Pakistan before this august COUR.
Mr. President, the Security Council of the United Nations, in resolution 284
(1970)on 29 Julv 1970.has reauested the honourable Court to eive an advisorv
opinion on the l'ollowingqucsiion: '.What are the lcgal conseq&nces for ~tatei
of theconrinucd presenceofSouth Africa in Nlrmibio, nots,ithsronding Sccurity
Council resoluiion 276 (1970)?"
The events leîding IOresolution 284 (1970)have kn set out in the u,ritren
siaiement filed on behalf of the Government of Pükistan. which is incorporüted
in the writtcnstntement%.1.at vase, 355 to 358and I need not reDeatthrm. The
. .-
factual background of the material resolutions has ken highllighted in the
illuminating written statement filed on behalf of the Secretary-General of the
United Nations. Namibia is not new to the International Court: most of the
points arising out of or relîting to the quesiion referreIO have ken deali \\;th
by the disiinguished reprcsenlaiives u.ho preceded me. Exccpt where neceswry.
1will try not to go over the ground already covered lest 1encroach upon the
precious time of the Court.
1fully support the submissions made by Dr. Elias on behalf of the Organiza-
tion of African Unitv and am in aeneral agreement with theviewsex~ressed bv
the representative oi the ~ecretary-cenerai. '
1would, however, like to make submissions, among others, on the following
points:
1. Whether the Court should give an advisory opinion on the question
referred?
2. What is the scope of the question?
3. What is the nature of the mandates svstem?
4. Whether the League of Nations hai the right to revoke the Mandate?
5. Whether the United Nations has succeeded to that right, or is othenvise
entitled to revoke the Mandate?
6. Whether the General Assembly was competent to determine the breach
of the fundamental conditions of the Mandate?
7. What is the effect of the resolutions of the Securitv Council confinnine -
the decisions of the General Assembly?
8. What are the legal consequences for States?
9. Miscellaneous points.
The list is somewhat long, but my submissions will be short. 1mus1however
state that my submissions on points 3 to 7 will k without prejudice to my con-
tentions regarding the scope of the question referred ta the Court.
Mr. President, 1 now come to the first point, namely whether the Court
should eive an advisorv ooinion on the auestion referred to it.
south Africa has reFeked to the pe&issive and discretionary nature of the
advisory jurisdiction of the International Court and has relied on the Eastern
arel lia caseI. that case, the Permanent Court declined ta give an advisory ORAL STATEMENT BV MR. PIRZAOA 133
opinion on the questions arising out of the Peace Treaty of Dorpat between
Finland and Russia of 1920 regarding the autonomy of Eastern Carelia, as it
bore on an actual dispute between the two States.
Firstly, on facts that case is distinguishable and does not apply to the cir-
cumstances of the present reference. Secondly, the 'EasternCarelia case raised a
question of fact which could not be elucidated without hearing both parties.
Lastly, whatever may be the delimitation or delineation of the doctrine of the
Eastern Carelia case. the distinction between the Covenant of the Leaeue of ~~ -~ ~ ~
Nations and the chiner of the United ~a~ions must be taken into Iiccount. il\
has bccn rightly dons by this honourable Court in ils recent advisors ooinions.
Under ~Ïticle 14of ihe Covenant. the Permanent Court was embowered to
~ ~ ~ ~ ~ ~ -~ . ~~~~~-
give an advisory opinion upon any dispute or question referred to it by the
Council or the Assembly. The Permanent Court itself considered the distinc-
tion made bv Article 14of the Covenant between dis~ut~ ~an~~-eest~-ns which ~. ~ ~ ~
might be reierred to it for an advisory opinion. And in due couise it developed
the doctrine of the Eastern Carelia case, narnelv that the existence of advisory
c~~noetence should not oermit the surreotiti6us intro~ ~t-o~ of ~ form if ~ ~ ~ ~~ ~
compulsory jurisdiction. In the instant case, no such situation arises.
Further, under Article 92 of the Charter, the Statute of the International
Court is an integral part of the Charter which reflects the fact that the Court is
an integral part of the United Nations and is under a duty to participate in the
activities of the Organization, and that no State is entitled to stop such partici-
pation.
The present advisory jurisdiction of the Court is governed hy Article 96,
paragraph 1,of the Charter: as well as Article 65 of the Statute. The riaht of the
~esurity Council to seck an opinion on any lesal question under ~ri;clc 96 of
the Chsrter 1snot subjest to any limitations. Thc uord "any" nny be nuticcd,,
as it appcïrs in Article 96 oftheChartcr as ucll as in Article 65of the Statute of
the court. In the ~eservations case. the International Court exolained that
Article 96 of the Charter confen upon the General Assembly and'the Security
Council. i. g-neral terms. the riabt to reauest the Court to aive an .dvisorv
o- r ~n~"on anv le.a~~oue~t~-n-~-~ ~ ~
Mr. President, the nature of the advisory jurisdiction of the International
Courthas been elucidated and explained hy the Court itselfin the Znteruretation
of Peace Treaties case. 1950.which has b&n referred to earlier bv a n"mber of
distinguished representatives. 1would, therefore, just like to sum up the prin-
ciples embodied therein. They are that the Court's replv is o..y of an advisorv
character and. as such. it.~~-no bind~ ~ force. - ~ - ~
Itfollous that~nostste, irhethsra Memberof the United Natiimsor not,can
prcvent the giving of an advisory opinion which ihc United N~tions considers
desirahle in orde; to obtain enlightenment as to thecourse of action it should
take. The Court's opinion is given, not Io the States, but to the organ which is
entitled to request il. The reply of the Court, itself no1 only an organ of the
United Nations, but the principal judicial organ of the Organization, represents
participation in the activities of the Organization, and in principle therefore an
advisory opinion should not be refused.
From the Advisorv Ooinions of this Court eiven in the Znteruretation of
Peacr Trearirs case. ihc cise of the ~dminisirarii.~~rtb~~na~o/thr /.;.. and. thr.
Crrruin E.rpe».rz.r case, the following -r~nciolcs are deducible:
Fintly, the Court, king the principal judicial organ of the United Nations, is
under a duty to CO-operatewith other organs, consequently, a request for an
advisory opinion should not, in principle; be refused; secondly, even if a con-
tention was raised that the question put to the Court was intertwined withpoliticalquertions.theCouric arribote apoliticalch~racicr idthe rcqucst;
and lastly, only compelling rcïsons should Icad the Court tu refuse to give ihc
In the prcient rcfcrcnce. thcrc arc no conipclling rcm,?ns for refiising to gii,e
an advisory opinion. This ik sipc:ially 30 *ince rcfusal to gi\c ;in opinion is
likcly ioimperil ihc\\orkin~sof ihc Security Council and the Gcncral Asembly.
The due p~nisipation of the Court in respcci of the important inrcrnaii,?nal
issueof Namibia cannoi k uvcr-cmphasi~ed.
I thcrcfore rcsiicctfulls submitth~t this honouriible Court should answcr ihc
question referred to it khich, according to my submission, by any canon of
construction is a legal question.
Mr. President. next 1come to the auestion: what is the scopeof the auestion.
The Court has an inherent poupe; to interprct any request for an advisory
opinion, to ascertainthe object for which the question was put, and to establish
an interpretation of the question itself. In interpreting the meaninç of the ques-
tion, the Court has to pay attention, interalia, to the circumstances in which
the request came to be made, the terms of the resolution embodying the re-
quest and the discussions in the requesting organ prior to the adoption of
the request (see Rosenne, LowandProcriceof the International Court, Vol. II,
p. 107).
Having regard to the proceedings of the Ad Hoc Sub-Committee of the
Sccurir) C'oiincil, ctt3blishcd in pursuancc of Security Council resolution 276
(1970), and ihe proceedings of the 1550thmeeting of the Sccuriiy Cour.cil held
on 29 July 1970.and hïving regard IO the Ianguage of rcsoluiion 284 (1970). it
is reswctfully suhmiited that the question referred to the Court only concerns
the Icgal conwqucnccs fur Staics of the coniinued illcgal prcsense of South
Africain Namibia
It may be noted that in the Security Council meetingitself it was pointedout
by the representatives of France and the United Kingdom that the question was
bascd on certain assum~tions. amone. others. about the cornpetence of the
u,orld body IO icrminïre'the ~andate'and IO assumedirect responsihi~ii~(see
Security Council procccdings, 1550thmcciing, p. 18). Ii is thcrefure suhmiiicd.
likewise, that the Court ought also to proceed on the basis of such assump-
lions.
Then it may be mentioned that in the It~terpretarionof the Greco-Bulgarian
Aareement case.the Permanent Court exolained that since the rieht to reauest
oeinions uas givcn IO only iwo organs mentioncd in the CovenÛnt, the couri
was bound by the ternis of the questions asformulated in the caw by thc Coun-
cil. With rcspeii. itis submittcd thai ihc Couri is bound likcii,iu by the terms
of the question as formulated by the Security Council.
No doubt in ils Advisory Opinion in the Certain Expenses case, the Court
remarked that it "must have full liberty to consider al1relevant data available
to it in forming an opinionon a question posed to it for an advisory opinion".
(I.C.J. Reports 1962, p. 157.)
It is also noteworthy that in the Peace Treaties and Reserration casesit was
argued on various grounds that the action of the General Assembly, in dealing
with the agenda item out of which the request emerged, or the decision to
request the opinion itself, were ultra viresthe General Assembly. In neither of
these casesdid the Court eo so far as to denv the validitv of the arguments
ad\,anccd agdinst thejurisdztion ofthe Court basedupoii a;i ~lkgcrl iicompe-
tencc of thc Gcneral Assenibly ICdcal uiih the item which lcd il IOrcqucsi the
advisory opinion. What the court did was to demonstrate the inapplicability
of those arguments in these two cases. ORAL STATEMENTBY MR. PIRZADA 135
Discussing the approach of the Court in the said two cases, Rosenne ob-
served :
"Having regard to the very wide competence of the General Assembly
under the Charter, it is difficult to conceive cases in which a request for an
advisory.ooi.ion would be ultra vires the comvetence of the General
,\ssénibly, ehcept. perhaps. uhcrc comperence is spccihcslly givcn by the
Chartcr io xnother organ, or ivhrrc the Gcncral Assenlbly hïd ücicd, uy,
in violation of a vroviiion such as ArticIc12of the Chïricr." (Sec Ilaisenne.
The Law arrd~rocticeof the InrernatiorfalCorrrr, Vol. II, p.715.)
Mr. President. it must be noticed that thourh the Court has the indeoendent
status of the principal judicial organ and isnot subordinate ta any éxternal
authority in the exerciseof itsjudicial functions, it has to CO-existand CO-operate
with the other oreans of the United Nations which are not subordinate to the
Court either.It may be recalled that at least on one occasion the President of the
Security Council, speaking as the representative of the Ukrainian SSR, said
that the Court could not be reearded as a kind of court of anoeal from the
decisions of the General ~ssembly and the Seciirity Council. 0; fhat occasion,
the Security Council did not dissent from that view (see Securiry Coimcil
lt is res~éctfull; submitted that the International Court is not a court of
appeal and does not possess any supervisory jurisdiction over the decisions and
actions of the General Assemblv and the ~ecuritv Council. Of course. a reauest-
ing organ of its own accord ca; refer the question of the legality of its action.
This was done, for example, in the SoirthWestAfrica (Vorifrg) case, where the
General Assembly first decided upon its course of action and later asked if it
corresponded to a correct interpretation of the 1950 Advisory Opinion of the
Court. The question concerned the legality of action upon which the General
Assemblv had alreadv decided. but 1 must emohasize that the Assemblv itself
had refe;red the rqueition. In ihe instant case; this has not been done by the
Security Council. The Court, sao moto, or at the instance of any especially
interested Party, cannot go behind the reference made to it.
To sum up, for the above reasons the Court is bound by the terms of the
question as formulated by the Security Council, whereunder the validity of
the relevant resolutions of the General Assemblv and the Securitv Council is
not under issue. The Court cannot sit in appeal or review such decisions. The
Court ought to give an advisory opinion on the assumptions aforesaid without
going into the legality of the resolutions adopted and the actions taken by the
General Assembly and the Security Council.
Mr. President, the next question is-what is the nature of the mandates sys-
tem? The mandates svstem was founded uoon two vrinciples, in fact, as was
jusi said by the disiinguished represeni;itivn ho prcccdcd mc. First, the princi-
plr of non->nne~art<>n,and sccwnd,thcprinciplcthat theucll-king and de\cl<>p-
ment of the oeooles of the territories concerned formed a sacred trust of civili-
zation. The luiciage which was established for those peoples \\,as.under Article
22 of the C<i\,enxntor the Ixîgue of Nati<ins, IO he entrusicd to certain nxtions
as mandatories on bchalfof the Le3gue. The hlxndatc did no1invulr,eany ces-
sion of tcrriiory ur irdnsfcr ofs<n.err'i:nty over South Wcjr Africs to thc L'nion
of South Africa. 'l'héManhie was nieanr ii,be a rcsponsibility rdihcr than 3
right. A Power was free to accept or not to accept a mandate, but once it was
undenaken no shrinking from the obligations resulting from the mandate was
permissible.
Theseobligations weretwo-fold-ta thepeople of theterritoryconcerned andto the international community. The rights of themandatory in relation to the
mandated territory and inhabitants thereof, as has been said by the Court
itself. have their foundation in the obligations of the mdndatorv. and these
rights are merely the tools given to enable it to fulfil its obligations under the
mandate. If this foundation is disturbed or displaced, the whole edifice of the
mandate must surely fall.
The doctrine of Sovereignty has no application to the mandates system.
Sovereignty over a mandated territory is in abeyance; if and when the inhabi-
tants obtain recoanition as an indeoendent tat tas has alreadvhaooened in the
case of other maidated territorieg sovereignty Li11revive and veki in the new
State. The mandatory Power, as such, was not the sovereign of the territory, it
had no riaht of dis~osition and was merelv a mandatorv on behalf of mankind
through the ~eague. As was said hy President Wilson ;n the Paris Peace Con-
ference:
"The fundamental idea would be that the world was acting as trustee
through a mandatory and would be in charge of the whole administration
until the day when thetrue wishesof the inhabitants would be ascertained."
Hyde points out:
"A territory or entity under mandate is ta be distinguished from the
colonial possession, which in international contemplation is a Dart of the
State to which it belongs. The outstanding and perhaps novel featureof the
mandates system is the international obligation imposed upon and accept-
ed hy the mandatory to administer a territorial area, not its own. and
not constiiutinç a siaie. undcr the super) ision of the internaiionïl agcncy."
(Sce I»rerf~oriono lutu ChieJly os Ii,trrprrred undAppliedhy rhr Ufiirrd
Srurrr,Second edition 1945, pp. 102.103.)
By its very nature, a mandate was not meant to be prolonged indefinitely, but
onlv until the oeoole under tutelaee were caoable of rnanaeine their own
affiirs. The sole.jusiification give61 the instiiution of the mandate was that
the peoples of these territories were. to quote the words of Article 22 of the
Covenant of the Leaaue "not vetableto stand bvthemselvesunder thestrenuous
conditions of the modern wo&". 1emphasize ihe words "not yet". It was clear,
and the fact wasnever left merelyto inference, that the objective was to prepare
such oeoole for exercisinrrtheir rieht of self-detemination. It followed that anv
approach which would Kavetheeffect of freezing the mandate, or making ft
permanent, was repugnant and wholly inimical to the concept of the mandates
In short, the intention and the purposeof the mandates system was to inter-
nationalize instead of to annex, to make the principle of self-detemination
ao~licable. to exerciseinternational authoritv to~thefull. and in case ofabuse of
1% evento revoke the mandate.
TheCoiirf udjournedfrom4.20 p.m. fo 4.40 p.m
&fore ihc honourable Court row 1wasabout tu begin niysubmissionson the
point whethcr the Lrdguc of Nations hîd the righi to re\oke the Mandate.
Refore the Covenani of the League of Nations wds finalized. the prospccti\,e
mandaiory States vcre auarc th31 the mandate, by its \,Cr).nature. wis revo-
cable, and u,irhcycs open accepted their oblig;itions.
The procecdings nf the I'aris Pcïcc Confcrcnce of 1919 fully reilect thib.
Mr. Clemenceau, !%,hile ehpressing scrious rnisgivings,uid. ORAL STATEMENT BY MR. PIRZADA 137
"The League of Nations was to be a League of Defence to ensure the
peace of the world, but it appeared that it had gone beyond that limit
when they proposed to create a League of Nations with govemmental
functions to interfere in interna1 aKairs with trustees in various places,
sending reports to . . ."
and he did not know whom. In answer to him. Mr. Llovd George said that he
regarded the system merely as general trust&ship upon definid 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 ex-
planation.
Realizing this nature of the mandate, some of the Statesindicated preference
for annexation as com~ared to the mandates svstem. Mr. Massev. the Prime
Minister of New ~ealand, pleading for annexaiion pointed out thédifference
between a mandate and annexation, namely between lease-hold and free-hold
tenure. The French Minister for Colonies w& more explicit. favouring annexa-
tion he said "every mandate was revocable and there would, therefore, be no
guarantee for its continuance". (See U.S. Foreign Relations, Paris Peace Con-
ference, 1919,Vol. III, pp. 752-768.)
The proponents of the mandates system, especially President Wilson and
General Smuts, bath envisaged that the League of Nations would have the
authority to terminate the mandate. General Smuts in his monograph, The
League of Nations: APracticalSuggestion, al page 22,had clearly stated that the
League in a proper case could assert ils authonty in full, even Io the extent of
removing the mandate. In particular, the following observationsmade by Gen-
eral Smuts must be noted: "Reversion to the League of Nations should be the
substitute for any policy of national annexation."
Mr. President. it has been sueeested that neither Article 22 of the Covenant
nor the individual mandate agr&&ents contain express reference to the right
of revocation of the mandate. It is submitted that Article 22 of the Covenant
orovides that the welfare of the inhabitants of the mandated territories should
iorm a sacred trust of civilization, and that the tutelage of such peoples should
he entrusted ta advanced nations and that this tutelage should be exercised
bv them as mandatories on behalf of the Leaaue. The Article thus makes a
-
reference io the thrsc private law institutions. namsly trust. tutel~aiid mon-
<Iut~~m A.r pointed oui by Lord McNair in his separaie opinion in the Starr<<
of South West Africa case, under al1 the three institutions or domestic legal
régimesof the Roman law, Anglo-American common law and the civil law
systems of the world, revocation or termination was permissible.
Whatever mav be the inter~retation of Article 22 of the Covenant. the riaht
of revocation must be regarded as an implicit part of the mandates system.
The obligation of accountability hy a mandatory to the League for the ad-
ministration of itstrust showsthat the corresoondina riaht and. in certain cases.
the duiy to revoke the mandate, rested in the kag&. in ïny case ihc ultimate
sanction of rcvocaiion, in ihc cvent of the ahuse of the wcred trust by the nian-
datory. is im~licit in the su~ervisow Dowers. Mr. President. it cannot be
deniedthat if ihe mandatory did not mend, the mandate couldbe ended.
It may be mentioned that Lord Lugard presented a memorandum to the
Permanent Mandates Commission in 1924. in which he declared that revoca-
lion of a mandate niay for practical purpoxs be regarded as inconceivîblc: but.
hc added, itcould only tïke place in ihcevcnt of grosc iiolation of the mndate.
(Permanent Mandates Commission.'Third Session. 1923. o.311.)In thc discus-
;ion which ensued in the ~ommission, the members apGared to have agreed138 NAMlBlA (SOUTH WEST AFRICA)
in principle that the Council of the League could in the final resort dissolve
the mandate. Severaljurists, for example, Wright, Stoyanvsky, Batnich, Wes-
sels, Feinberg and Hales, al1accepted the possihility of revocation. 1may add
that when the nature of the mandates systemwasdiscussed by the South African
An..al Court in R. v. Christian.two -udees raised the isiue of the ~-rht -~
rcvoctiion and neither denied its existence (1924 A.D. 101).Thc pronoJnce-
ment of the Suprcrnc Couri of Ne,\, Zealand is niore direct. K. v.Tonirna,,rr
the Suprerne Court acceptcd the cornpetence of the lrague of Natiims to re-
voke New Zealand's Mandate for Sanioa and appoint another rnandatory "if
Ne\r Zealand uçre IO fail in itsohlip~tioIOthc Sarnoïn peo~les"(~ce 1733-34
A.D. and ReoortsofPublic ~nternafionalLaw Cases. casé NO. 16):
Against this impied right of the Council of the ~éagueof ~ations to revoke
a mandate, it has sometimes ben contended that while the Council of the
Leaeue mav have held the rieht to revoke a mandate. in orinciole. it could not
haveexerc&d such right in practice hecause the procedure of the Council was
to invite each mandatory not represented on the Council to attend and vote at
those meetings. It iseven suggested that the mandatory-in this case the Union
of South Africa-could have attended the meeting of the Council and would
have been able to veto any resolution aimed at revocation. Thus the decision
of the Council of the League would have been fnistrated, since Article 5 of the
Covenant required unanirnity for passing of the resolution Iwould like to suh-
mit that such a view would run counter to the Advisory Opinion of the Per-
manent Court in the Mosirl case (P.C.I.J., SeriesB, No. 12) in which it was
held that the unanimity procedure was subject to the well-known nile that no
one can bejudge in his own suit. Furthermore, Judge Lauterpacht, in his sepa-
rate opinion in theVotingProcedcire case (I.C.J. Reports1955, p.67) .eclared
that on the basis of this principle South Africa would have been prevented
from voting in the Council on a dispute in respect of the rights of South Africa.
It may bé addedthat if the mandate is to béregarded as; treaty, the Council
would have had an implied right of revocation in the event of the violation of
the obligations therein contained. The law of treaties entitles the innocent
party torenounce the treaty in the event of a material breach of the treaty by
the other party.
Thus Article 60of the Vienna Convention on the Law of Treaties 1969,which
to a large extent codifies the customary law, provides:
1.A material breach of a bilateral treaty by one of the parties entitles the
otherparty to invoke the breach as a ground for terminating the treaty or
suspending ils operation in whole or in part.
2. A material breach of a treaty, for the purpose of the Article, consists in:
a repudiation of a treaty not sancti'onedby the present convention;
the violation of a provision essential to the accomplishment of the objectand
purpose of the trcaty.
It may be noted that the Union of South Africa is not only in material breach
of the mandate agreement but has also sought to repudiate that agreement.
In conclusion it is submitted that the League of Nations had the right to
revoke the mandate in case of a breach of the basic conditions of the trust
and there was nothing in the Covenant which could have prevented the Council
of the League from doing so in practice.
Now 1come to the ooint whether the United Nations succeeded to the suoer-
visory functions of the League of Nations, including the right of revocation.
The competence of the United Nations in the matter of enablina the people
of Narnibii to attain their independence, which is their right, is beiond dispute ORAL STATEMENT BY MR. PIRZADA
139
and challenge. Though South Africa has raised many technical contentions in
recent years, its own representatives have admitted the continuation of their
obligations under the Mandate and the power of the General Assembly of the
United Nations in this regard. On 22 January 1946the representative of South
Africa stated in the Fourth Comrnittee of the General Assembly that no agree-
ment would be drawn up for the future status of the Territory until the freely
expressedwillof both the Europeanandnative population had beenascertained.
He added-and the words which 1 now quote are rather significant: "when
that had been done, the decision of the Union would besubmitted to theCien-
eral Assembly for judgment." The words "for judgment" must be noted.
Then in a statement of 9 April 1946, at the final Plenary Meeting of the
League of Nations, the representative of South Africa said:
"The disaooearance of these oreans of the Leasue concemed with the
supervision if mandates, prima"iy the ~andatei Cothission and the
League Council, will necessarily preclude complete com~liance with the
letter of the mandate. The Union CiovernmeG will nevertheless reear-
the dissolution of the League as in no way diminishing its obligations
under the mandate. which it will continue to discharge with the full and
proper appreciation of its responsibilities until such time as other ar-
rangementsare agreedupon conceming the future status of the territory."
On the day of its dissolution, thats, on 18April 1946,the LeagueAssembly
in a resolution recognized "that on thetermination of the League's existence,
its functions with resoectto the mandated territories will came ta an end". but
ihe League noted thidChapters XI. XII and Xlll of thc Charrer of rhe Uniied
Nations embodied principles corresponding to those deilared in Article 22 of
the Covenant of the Leaëue. and took note of the exoressedintentions of the
membersof the Leaguethen adminirtering them for ihe utIl-bcingand Jevelop.
ment of ihc people, concerned, In accordance wiih the obligations cont~ined
in the respective mandates. until other arrangements had beenac-eed between
the United liaiions and the respective mdn&tory poners
The Union of South Africa refused io place the Territory under the trustee-
shio %\lem and in ihe first Generdi Assemblv of the United Nations of 1946
it submitted a formal proposal for the incorporation of the Territory of Nami-
bia for approval. When this proposal was rejected, South Africa, while ex-
pressing regret and disappointment, announced that it would continue to
submit reports on its administration of the Territory as it had done vis-&vis
the League. Later South Africa discontinued submitting such reports to the
General Assemblv and went ahead with a strict aoolication of its oolicv of
apartheid and incLrporation of the Territory within~outh Africa. ~ubseqben!
events, leading to the termination of the Mandate, are well known.
Mr. President, these declarations constitute recognition by the Union Gov-
ernment of South Africa of the continuance of its obligations under the Man-
date. lnterpretations placed upon legal instruments hy the parties to them,
though not conclusive as to their meaning, have considerable probative value.
This was accepted by this honourable Court in its Advisory Opinion on the
Status of South West Africa case in 1950. In view of this, in the events that
have hao~ened-that is the declaration of the League on the dav of its dis-
solutionond the ddmlzsions of SoUih Africa and iisçonduct ai ihe mdteri3l
lime-South Africa is estopped from challenging the auihority of the United
Nations.
The question of succession of supervisory functions of the League in this
regard came up for discussion in the Advisory Opinion of the International Court of Justice in 1950. The Court held that "the General Assembly of the
United Nations is legally qualified to exercisethe supewisory functions previous-
ly exercised by the League of Nations with regard ta the administration of the
Territory" (I.C.J. Reports 1950, p. 137). This would mean that the General
Assemblv was emnowered to exercise al1 the su~emisorv functions which the
League could have exercised, including the right'of revocation. The opinion of
the International Cuurt that the United Salions had succeeded to the super-
visorv functions of the Leaaue was confirmed bv the Court in its subseouent
opinions of 1955and 1956ÿnd was substantiall~reïffirmed in 11s~ud~nieh of
1962.This position is no1 atiected by the decision of the honourable Court in
1966in thesecond Phaw of the Sourh WestAfrica cases. as the decision ~roceed-
edw,ithout prunouncing upon. and urholly without prejudice IO,the question of
whether the Mandate wu still in force. This fact u,as rightly stressed by Judye
Jessupin his opinion in the said caseof 1966.
It would thus follow that the GeneralAssembly of the United Nations suc-
ceeded to the right of the League Council to revoke the Mandate of South
Africa over Namibia for breach of the basic conditions of the tmst. The Gen-
eral Assembly could therefore, acting on behalf of the United Nations, ter-
minate the Mandate by adoption of the resolution passed by a two-thirds
maioritv vote in accordance with the orovisions of Article 18 of the United
~Gion; Charter. As to the non-appl/cability of the unanimity rule to the
General Assembly, 1 completely concur with the comments made by Dr. Elias
in his oral statement
1mii) now refer to the arguments that are advanced in aswiling the validity
of the unilateral action of the Ciencriil Absemhly in terniinîting the Mandate.
These ar~-~ent~ are based on the fact that the International Court held in its
~d$sor~ Opinion of 1950 that rhc cornpetence tu modify the international
status of South West Afriiî rests with the Union of South Africî, acting with
the conscnt of the United Nations (1.C.J. Rrporrs 1950,p. 143).
II is nrgued thai this declaratinn of the Court implies that the Cnited Sstiuns,
acting alonc. ha$no capacity to modify the stîtus of the Territory and that any
modification would reauirethe consent of the Union of South Africa.
It is pertinent to po'int out that these findings of the Court were given in
reply to a query as to whether South Africa could alter unilaterally the status
of the Mandate. The auestion of the rieht of the United Nations. acting alone.
to revoke the ~andak was not, in an; way, before the Court and wa< there:
fore, not considered hy the honourable Court. It is obvious that the rights of
the international oersonalitv which confers the mandate as a trust of civili-
zation cannot be'the same.as the rights and obligations of the mïndatory.
The only reference tn the question ofrevoc~t~on of the Mandate by the United
Nations in the 1950 Jude-ent is to be round in the discentina uninion of Judxe
Alvarez who stated: . .
"Ir may happen that a mandatory siaie doesno1perform the obligations
resulting frum its Mandate. In thît c;lse the United Nation, Assembly mîy
make admonitions, and if necessary,revoke thc Mandate. II has this right
under Article 10of the Charter" (I.C.J. Rrporrs 1950,p. 182).
Now I come to the point whether the Cieneral Assembly was competent to
determine the brçach of the fundamental conditions of the mandate agreement.
The Ceneral Asscmbly of the United Nations had the right to determine the
compîtibility of apartheid and other priictices of South Alria in Naniibia
with the pro\,isions of the Mandate. and to revoke the hlandate on that basis.
Of cour&, the General Assembly was free to request the International Court of ORAL STATEMENT BY MR. PIRZADA 141
Justice for an advisory opinion to assistit in the task of deciding the unlawful-
nessof apartheid under the Mandate, but like the Council of the Leaaue. it -
was not leaallv bound to do so.
lntcrnat~on~l Iïu docs not. in the ahsenccof3 treaty obligation, compel the
innocent pari). toah a pronouncement (rom 3 court of law before terniinaiin-.
the treatv onnrounds of material breach bv the other oartv.
It ma; be that in the days of the League of ~ations a brerequisite for the
revocation of a mandate by the Council of the League was a decision by the
Permanent Court of International Justicethat the mandat0~'s conduct violated
the obligations under the mandate. Perhapsthat u.isone 0.f the reasonswhich
lcd Ethiopia and Liberid to brine an Ariplicntion before the Iiiternational Couri
to adiudae and declare failures of Souih~frica under the Covenant.~T~ ~ ~- - ~ ~
was, however, unable to entertain a dispute between a member State of the
League of Nations and the mandatory over the latter's treatment of the in-
habitants becausemember States of thé League had enjoyed no legal right or
interest in such a matter.
The Court indicated that the political organs of the Leaaue had ken the
appropriate agencies for inve~tigatin~ a mandatory's administration of her
sacred trust under the mandates system, and not the Court itself.
Mr. President, commenting on this decision, John Dugard, Senior Lecturer,
University of Witwatersrand, South Africa, writes:
"The rcsult of the Court's dcctsion, u,hether intcnded or not. uas that
the South M'estAfrican dispute uas h~ndedover to thc political organs of
the United Nations for determination. For while the Court hcld thiit only
the politic;il organs of the League had beenempowercd to Jecide on the
compatibility of ï polic) pursucd in a mandated territory with the pro-
vihions of the Mandatc in the days of the Leagueof Nations. itfiailcd tu Jis-
turb its ,>\in previirui tinding of 1950to the ctïect that the United N~tions
had succcedcd to thc supcnisnry funciions <ifthe Lenguc. The comhincd
effect of the International Court's two most important pronouncements
on South West Africa, namely those of 1950and 1960,can only be that it
isfor the General Assembly, as successorto the Council of the League, to
decide whether or not apartheid violates the provisions of the Mandate. ..
The Assembly . ..already had considerable judicial opinion to guide it
in the form of the separate opinions of those judges who did direct their
attention to the ultimate merits of the South West African disoute in 1966.
Six of the fourteen judges examined the compatibility of apartheid with
South Africa's obligation to 'promote to the utmost' the welfare of the
inhabitants. and onlv the South African Judee ad hoc Van Wvk found in
favour of South fric aJudges Wellington Koo, Tanaka, aii il a ervo
and Forster and Judge ad hoc Mbanefo al1found against South Africa on
this vital issue.
In the light of theabove considerations itcan hardly be contended that
the General Assembly acted improperly in determining that South Africa
has failed to fulfil its obligations in resoect of the administration of the
mandated territory, as a prelude to revocation, without first obtaining an
opinion from the Court on this matter" (American Journal ofInternational
Law, 1968,pp. 80 and 81).
1conclude this point by concurring in the comments of the leamed author.
Another reason which merits consideration bv the Court is that resolution
2145 (XXI) of the General Assembly was adoGed by an overwhelming ma-
jority and is the expression of the world community in respect of the most 142 NAMIBIA (SOUTH WEST AFRICA)
fundamental of al1 rights of a people, that is, the right of self-determination.
The Assembly terminated the Mandate for the reason that the right of self-
determination was being denied in Namibia by the Mandatory and the Ter-
ritory was not king helped in its advancement so that it could in the future
exercise its right of self-determination. It is submitted that the General Assem-
bly was applying a rule of jus cogens overwhelmingly recognized and accepted
by the comity of nations.
That the riaht of self-determination is a recoenized rule ofjus copeiisis evi-
dencedby thefact that the International oven n ona Cniil and ~oli<cal Rights
has incorporated ifin Article 1, paragraph 1, as follows:
"Allpeopleshave the right of self-determination. By virtue of that right
they freely determine their political status and freely pursue their economic,
social and cultural development."
The same principle has also been reaffirmed by the General Assembly in ifs
declaration on the principles of friendly relations.
It wilbe oertinent to note that under Articles 53 and 64 of the Vienna Con-
vention on <heLaw of Treaties of 1969,any treaty in conflict with a peremptory
norm of general international law becomes void and terminates.
Now Icometo the ooint. what is the effect of the resolutions of the Securitv
Council confirming the decision of the General Assembly?
It is submitted that the General Assembly resolution 2145 (XXI) of 27 Oc-
tober 1966 was of a binding nature. In any case, defect therein, if any, was
certainly cured by the subsequentSecurity Council resolutions which confirmed
the termination of the Mandate. Even in the general casethe General Assembly
resolutions can become binding when the Security Council adopts them in its
decisions.
The Security Council in its resolution 264 (1969)of 20 March 1969recognized
the decision of the Assembly to terminate the Mandate. The Council in the
same resolution called upon South Africa "ta immediately withdraw its ad-
ministration from the Territory", This basic position was reiterated in subse-
quent resolutions. Now as this honourable Court is aware, Article 25 of the
Charter provides:
". . the members of the United Nations agree to accept and carry out
the decisions of the Security Council in accordance with the present
Charter".
Itis therefore submitted that the Mandate of South Africa over Namibia
stands validl) dissolved. Thus the qucstitin arisc5, what are the consequcnces
for States of the continued illcglil prcicnce of South Airicli in Namibia.I nuw
turn to that auestion
In Jctermining thc lcgal coniequences of the iIleg3l prescnceof South Arrica
in Namibia itis rele\,ant. first of all, to ascertain the niture of the illcgliliiy
cornmitted bv the Union of South Africa. This would helo us in as certain in^
which pir1ic;lar proi,isions of the Charter arc attr~ctcd. II 'wibe recallcd thdy
the Security Council hlis char~ctcri~ed the oresenccuf South Africd in Namihia
asilleaal (Securitv Council resolution 264 i1969). oara. 2) and hasalso declared
that "Tt constitutés an aggressiveencroach;nenf on the authority of the United
Nations, a violation of the territorial integrity and a denial of the political
sovereienty of the oeoole of Namibia".
It is'ubmittedthat the Security Council hasrightly categorized thecontinued
presence of South Africa in Namibia as an act of aggression. Any State that
continues to remain by the use of force in a dependent State, in breach of its ORAL STATEMENT BY MR. PIRZADA 143
obligations under the Charter, Security Council resolutions, or its international
commitments in bilateral treaties, commits an act of aggression and its actions
are at least asculpable as those of a State which usesarmcd force to enter into
another State and commit aeeres--on ~ ~the traditional sense
In both casestheact is condemnable as an act of aggression. In fact, the act
of using force, in breach of international obligations, with the object of frust-
ratingtheright of self-determination, iscertainly more grave in nature since the
right of self-determination in the international society is a norm of the nature
ofjus cogerrs derogation from which is not permissible under any circumstances.
The first conseauence that follows~ ~o~ th~ illeeal act of aeeression is that
the powers of the 'Security Council under Articles ?9,40 and Zof the Charter
are attracted. The Security Council could under Article 39 make recommenda-
tions or decide what measuresshould be taken in accordance with Articles 41
and 42 to maintain or restore international peace and security. Article 41, as
is well known. visualizes measuresshort of force such as the ~artial interruo-
tion of economic relations and of rail, sea, air, postal, telegraphic, radio and
other means of communications and the severance of diplomatic relations.
Such of these measures as have alreadv been recommended bv the Securitv
Council in ils vlirious resolutions dnd Iisted in deiail in the u,ritten siatenient
of the Secrciary-Gencrlil are 3 legdl i>bligüi~onfor States by i,iriue of Article 25
of ihe Charter. And by \,irtue of Arii.Ac 2 (5, .il1Members shall gi\c the United
Nations asrisiance in the implenientation and c~inipliiince thereof.
Article 42 provides ihiii should the Security Council consider ihai meïsurer
~rovided for in Article 41 would beinadeouate or haveproved to beinadequate.
. .
it may take such actions by air, seaor land forces asmay be necessaryto main-
tain or restore international peace and security. Such action may include de-
monstrations, blockade and other operations by air, sea or land forces of the
Members of the United Nations.
It may be notedthat bath under Articles 39 and 42 of the Charter the mea-
suresare to be attracted to maintain or restore international peaceand security.
In this context it is submitted that an action like that of the continued presence
of South Africain Namibia in breach of international obligations, king an act
of aaaression. must be reaarded as a threat to international peaceand security.
In continuin; its illegal Gesence, South Africahas placedthe burden on other
States ta take action against it. This, however, does not mean that the threat
to peace is from these other States. but from the act of aaares..on Derpetr.te.
by Souih Africa. In order to main~ain iniernational pcïcc and security, there-
fore. iiis the oblipaiion ufihc Sccurity Cùuncil hy al1the means available io il
to ensure that South Africa vacates its aagre--ion
Ai ihc in3lienahle righi ai' sclf-detcrniinatiun ~if the people of h'amibia is
beingsuppressed by ihc urc offorce by Souih Afric~, a duiy Tdllson aII Memhers
of ihe United Ndtii>nx. by \,:rt~e ,if the ùblisdiions rcgrirdine self-Jeiermin.iiion
in the Charter, to help and aid the peopleof ~amibia in Gcuring that right.
In this connection, reference may be made to paragraph 6 of the draft
proposal submitted by the Soviet Socialist Republic in the Special Committee
on the Definition of Aggression, which stated:
"... nothing in the foregoing shall prevent the use of armed force in ac-
cordance with the Charter of the United Nations, including its use by a
dependent people in order to exercise their inherent right of self-determina-
tion in accordance with General Assembly resolution 1514(50)".
Reference may also be made to paragraph 125 of the written statement of
the Secretary-General, filed in this Court, wherein the following is provided: ORAL SIAIEMENT BY MR. PIRZADA 145
(a) to promote friendly relations and co-operation arnong States, and
(61 to brina a sueedyend to colonialism, having due regard to the freely
expressëd will of the peoplesconcerned:
and karing in mind that subjcciion of peoples IOalicn suhjugation. dumi-
nation and exploitation constiiutcs a violation of the principle, as ueas
a denial of fundamental human riehts. and is contrarv to the Charter of
-.
the United Nations."
We have indicated a few of the many legal consequencesfor States of the
continued presenceof South Africa in Namibia, as a comprehensive analysis
has already been made by the Secretary-General and the Organization of
African Unity, which analysis has the complete concurrence of Pakistan.
Mr. President, may 1now briefly deal with the two points raised by South
Africa.
In the plethora of pleas put in the written statement on behalf of the Govern-
ment of South Africa, the formal validity of Security Council resolutions in
general has been attacked by posing the following question. And this 1 am
quoting from the written statement:
"Whether the composition of the Security Council was lawful, and, in
particular, whether the Republic of China was at al1 material times a
member of the Security Council as required by Article 23, paragraph 1,
of the Charter?'
South Africa hîs overlooked the distinciion ktween the mcmkrship of the
Kcpuhlis of China ln ihc Uniicd Nstions and ils represcntaiion in the various
orrans thcrcuC The rnembership of China in the United Nations kas nsver
ken dispuied. As reg~rds ils represeniatlon, South Africa, having recognircd
the government of Chiang Kai-Shck. is csiopped fruni r31sing the objectiun.
So far as Pakistan is concerned. it has from the inception not only recoanized,
but always maintained that thegovernment of the ~eople's~epublic ofchina
is entitled to its rightful representation in the various organs of the United
Nations.
The question of the incapacity of the member concerned could only be
raised in thecompetent forum and cannot becanvassedin collateral proceedings
such as the instant case.
This principle is also recognized as a general principle in municipal juris-
dictions. It has beenheld by the House of Lords, the Privy Council, the courts
in Canada and by the American Supreme Court, that, notwithstanding the
disqualification of the participant in the proceedings of the assemblies,courts,
tribunals or other bodies, the validity of their decisions and actions cannot be
assailed in collateral proceedings.
The relevant caselaw was reviewed by the Supreme Court of Pakistan in its
recent decision in the case of Leghari which was reported in Pakisran Legal
Decisions(PLD 1969).
This obiection hv South Africa certainlv cannot be considered in the oresent
proceedings &foi; the International CO&, which are to be confined'to the
question referred to itby the Security Council for an advisory opinion.
Even otherwise, the position hasnot been atïected in any way, for if the
representative of the People's Republic of China had beenthere at al1material
times, it can be asserted with confidence that he would have wholeheartedly
concurred in the termination of the Mandate of South Africa over Namibia
and would havevoted in favour of al1the resolutions in the General Assembly
and the Security Council in respect thereof. MI. President, may I nou briefly refer io the soçallcd proposal of plebiscite
coniiiined in the Icitc' dnicd 27 Jiinusry 1971of the representniive of South
Africa.
The said letter contains scandalous allegations against the United Nations
and imputes incurable bias to il and proposes to put the allegations of op-
nression and reoression in Namibia to-tesi throueh~a olebiscitc South ~frica
has no /ocus simrdti o make any such proposal-which is a mere pretext to
perpetuate its presence in Namibia notwithstanding Security Council resolution
276 (1970). It is an attemot to reooen the decisions taken bv the General
, .
Assembly and the Security ~ouncil \;hich are now irrevocable and irreversible.
The proposal is beyond the scope of the auestion referred and is inconsistent
withthe-orevious siand of south Africa and is othenvise irrelevant and illeeal.
~t thi; stage, it is unnecessary to make an; comments on the merits ofihe
principle of plebiscite. The position of Pakistan regarding a plebiscite under
the auspices of the United Nations is well known.
Mr. President and Members of this Court, before I conclude, 1consider it
pertinent to recall what 1 stated before the General Assembly in September
1966,as Foreign Minister of Pakistan when the matter of Namibia was under
consideration:
"We would be blind to the urgencies involved, if we treated the question
of Namibia as if it were of a nurelv technical character. We must euard
against the danger of legal obfuscafion. The world is to be purged of the
arrogance of race. It is to be cured of the cancer of colonialism. The time
for half-hearted measures has passed."
The PRESIDENT: As there is no representative of the Republic of Viet-Nam
present, the next speaker will be the distinguished representative of the Republic
of South Africa.
The Court rose ut 5.26p.m.
See Correspondence, No. 79, p. 668,infra. SIXTH PUBLIC SITTING (16 1171. 10 am.)
Presenl: [Seesitting of 8 1171.1
ORAL STATEMENT BY MR. WALL
REPRESENTATIVE OF THE GOVERNMENT OF SOUTH AFRlCA
Mr. VIALL: Mr. President, Members of the Court, at the earlier in camera
session of these proceedings 1expressed on behalf of my colleagues, and myself,
the sense of privilege that we felt in appearing before this, the World Court.
1do so again today when we speak for the first time during the public sittings
of the Court.
The oral statement of the South African Government will, 1 fear, be rather
longer than the oral statements made on behalf of the other governments and
the Iwo organizations which have thus far taken part in these proceedings.
This is not because we are addicted to makina long statements. ~r. Presi~-~t~ ~
but because the vast range, the generality and the complexity of the issues;
both legal and factual. which have been raised by the distinnuished teDresenta-
tives who have participated, and in the written statements iubmitted; make it
necessary for us to reply at some length. We shall, however, as far as may be
possible, certainly endeavour to avoid repetition of what we have already sub-
mitted in Ourwritten statement, though of course we shall be constantly refer-
ring to il.
Different parts of Our oral statement will be presented by different members
of Our delegation, al1of whom are fully authorized to speak on behalf of the
South African Government. With these few remarks 1 shall, with the Court's
permission, ask my learned colleague, Mr. de Villiers, to present the introduc-
tory part of Our statement. ORAL STATEMENT BY MR. DE VILLIERS
REPRESENTATIVE OF THE COVERNMENT OF SOUTH AFRlCA
MI. de VILLIERS: Mr. President, honourable Memhers of the Court, as
the learned representative for South Africa has indicated, 1intend Io present
an introductorv statement to the Court todav. a broad survev as il were. and
an initial ansuir to the \îriods oral statcme~;s uhich have &n prcsented on
bchalf of other panicipating States and organizîtions, and Iu,ill include in that
the suhject of South Africa's plebiscite propos~l. Unless the Court should
indicdteoiheruice to us, ue shïll ivishto follou this up ivith some more dctailed
st;itcments on specific leg~l questions about which issues have bern raiscd in
these oroceedines. We have informallv intimated ta the Rezistrar that after
the pr~xntation~of this opening stîte&ent it uould nibthe possible Tor us to
tûkc the mÿtter further in th15second phase. as I have described ii, iintil Friday.
and 1understand that that would m&t with the Court's convenience.
The PRESIDENT indicatedassent.
Mr. de VILLIERS: After the second stage would follow an enquiry into the
field of fact, and the procedures~to he adopted in that respect would still be a
matter forarrangement, as il seems ta us.
At this stage 1 want ta concentrate on certain of the broad aspects of the
issues which have been indicated, mainly in the oral statements which have
ken presented thus far.
Certain distinguished representatives of participating States and organiza-
lions have expressed praise and appreciation of the industry and the profes-
sional standards that have gone into the South African written statement.
This is, naturally, appreciated on Our side, but we find at the same tirne that
the praise serves as a basis for criticism of our case. Perhaps not surprisingly:
1 would besorry ta hear that the other representatives considered it their task
to came here ta burv. us. but thev could certainlv not have thought -hat it was
their task to praise us! The criticisms ran more or less like this: that South
Africa in the first instance lives in the past: that the legal world in which the
South African arguments operate is not that of 1971but of 1945and even 1920,
and further, Mr. President, that South Africa seeks to apply concepts of 50
years aga ta the promotion of moral well-being today. Again, the suggestion is
that South Africa~s a~o7ea~~~~o t~e~in~e~ ~ ~ ~ ~ order and ta thehumanitarian
' prohlems of Our limes, is one of intransigence and of so-called "legal nicety",
in which, moreover, we pay over-much attention to the literal texts of docu-
ments and .lav.down considerations of obiect and ouroos. .
That, broadly, was the line of attack, and it came in part from one speaker
and in part from another. For our part, 1 propose ta show that these criticisms
are wilhout foundation, and 1 want ta answer them at this stage very briefly,
but nevertheless in proper context.
In regard to the international order generally, it may well be recalled-and
we do so not without a measure of oride-that a South African oremier of
former timcs, thc late Gencral J C. Smuts ,layed a \.ery prominentpart in the
establishment first of the League of Nation5 and its mandatessystcm. and, some
25 years Iater, of the Unitcd Nations. In proceedings of the United Nations ORAL STATEMENI BV MR. DE VILLIERS 149
in the course of the years South Africa came to be suhjected to constant treat-
ment which, certainly as seen from the South African point of view, has been
unfair, frustrating and unpleasant in the extreme. Yet South Africa has not
onlv remained a Member of the United Nations. it i~.said to be one of the mort ~-~
faithful in the discharge of its uommitntents to thît organizdtion.
South Africa vers much regrets the ostrïcizing movenient which hasexcluded
it from normal participation in much of theéxcellent work being done by
United Nations specialized agencies and organizations in the fieldofeconomics,
social welfare, health and so forth. Our regret arises mainly from the fact
that we consider that we have a valuable contribution to make to those causes,
particularly on the continent of Africa, as South Africa was in a position to do
in a very substantial measure in the past, but is now to a considerable extent
precluded from doing.
To this Court, South Africa has, on the several occasions of appearing
before il, given full support and CO-operation,while naturally fighting hard for
what we have considered to be Ourjust dues.
1could, MI. President, but 1do not propose to do so, give further demon-
stration that South Africa is hly committed to the maintenance and develop
ment of an international order of the highest possible quality, in the political,
the economic and social, and the judicial spheres. What 1 do want to stress at
this stage is that South Africa believes that this very cause which it suoDorts
is beingbrought into mortal danger by some of the p;opositions that have-been
advanced in this Court in these proceedings. Our apprehension arises exactly
from.the fact that we are not tied down to the letter and the text of relevant
instmments, but that we do appreciate some of the basic underlying practical
realities as distinct from the "legal niceties".
We believe that growth and development in the international order are
desirablc,provided thal that procecds according to acknou,ledged processes of
intern~tional lau; and much, Mr. President. hds occurred, and beneficially
occurred. in this respect since 1920and. again. since 1945.What u,eshould Iike
to do in these proceedings, and particuiarl; in this statement, is to take a
closer look at this world of 1971 as ifhas been pressed upon this Court by
several representatives. and to look at it oarticularly in the perswctive and
against the background of the correspondi& situations in 1945and, in so far
as it may be relevant, 1920.
1want to approach if first from this background angle: the setting up of the
two world organizations, the first one in 1920 and the second one in 1945.
These enormous steps were taken by the States concerned with high idealistic
objectives, but at the same time with a strong sense of practical realism. The
idealism pertained chiefly to peace-keeping, the presemation of international
peace and security, but as is well known, it extended also to attendant and
additional matters of considerable importance in themselves. In each instance
these organizations were set up by multilateral convention, whereby the States
concerned voluntarily agreed to such measure of curtailment of their sovereign
rights and prerogatives as might be necessaty for the particular purpose in
hand. And that is exactlv where the oractica~ ~ ~~~sm came in. In view of the
enormous political implications of, ai it were, carving into the sphere of State
sovereignty, extreme care was displayed in express and exact definition and
delimitation of these incursions info State sovereientv.
A particularly sensitiveareawasthat of the extencifiny, to which resolutions
of organs of the organizations, taken by ordinary or special majorities, could
be made binding in law upon non-consenting %tes. Let me explain that by
non-consenting States 1mean those which had not specially agreed to be boundby such resolutions and had no1voted for them or in any other way associated
themselves with such resolutions. 1 am not suggesting, in giving this general
concept of a non-consenting State, that by voting for a resolution in an organi-
zation a State necessarily incurs legal liabilities from that resolution; whether
that would be so or no1 in a particular case would depend upon a variety of
circumstances.
1 am merely approaching the matter from the other side of the coin. 1am
looking at the position of a State which has in no way associated itself with a
resolution whether bv soecial consent. bv votine for il. or in some other wav:
a State which may-indeed have vehemently &posed the adoption of thai
resolution. And the question would then be: to what extent could such a State
nevertheless incur a legal obligation from such a resolution by virtue of the
fact that it was taken by an organ of one of these organizations by a special
or an ordinary majority? And that is the sphere in which, as 1have said, there
was special sensitivity in setting up these world organizations. As the Court
would know, the limits to the inroads upon State sovereignty were very largely
set bv limits uDon the powers of the organs in this res~ect-the Dowersto bind
non-consenting tat te An:d, Mr. ~resident, as the court wouldalso know, the
approach was from the start a conservative one.
Bv deliberate design the organizations were not to be anvthina a~oroachinz
su&-~tatcs or super-parlia&ents. In ihe case of the haeue of~û.tions. thé
basic pattern wlisset by the unanimiiy rule u,hich applied both in the Assembly
and in the Council. the only exceDtion. as the court knows. king matters of
procedure. And asthe ~ouncil wàs a body of limited rnembership, there was
the special provision in Article 4, paragraph 5, of the Covenant that a League
mernber not represented on the Council was to be invited to "sit asa member"
of theCouncil during consideration of matters speciallyaffecting that member's
interests.
This Court has twice decided, as a Court, in 1962 and in 1966,in the two
phases of the SoirrlrCVesrAfrica cases, that the result of these provisions of the
Covenant was a right of veto for such a member invited to sit specially as a
member of the Council during consideration of matters specially affecting ils
interests: and indeed, with respect, that is what the wording of the Covenant
clearly seems to indicate.
Onlv in Article 15of the Covenant which related to the handling of disDutes
by ihe~~ouncil na, there proi,tsion for the Council to ïci \\,ithouÏthe concur-
rence of spcci~llyalfected mcmkri. but then it ii3only on a recommendatory
basis.
So, MI. President, outside of procedural matters, non-consenting League
membersenjoyed absolute protection against being bound by decisions specially
affecting their interests,
That brings us to the Charter. In the Charter there was considerable innova-
tion in regard to the mechanics of this protection, but rather lessin regard to
ils substantive scope.
Let us look al théposition fint ofthe General Assembly. There the unanimity
principle was abandoned in favour of an arrangement of a Iwo-thirds majority
for imuartant questions and a bare mai6ritv for others. But. al the sarne lime.
except'again foi procedural and budgeiarymatters, the powers of the General
Assembly were limited to discussion and recomrnendation. These two things
went hand in hand: the dropping of the unanimity principle and the arrange-
ment, Savefor the exceptional cases, that the resolutions were to be of recom-
mendatory character only. It was part of the basic design of the General
Assembly or, if one prefers, one could say it was part of the balance that was ORAL S'TATEMEN TY MU. DEVILLIERS 151
struck or the bargain that was struck. In the 1955 Advisory Proceedings on
South West Africa concernine the Vorinz Procediire in the General Assemblv.
this point <varp3rliculiirly jtrc,,r.d by iu:o of the judgci-JurlgKlxetad
Lauierprlihi. Roih of them saw in the non-binding elTeciofGenerîl Assembly
resolutions a reason why supervision by that body would not be more oneroui
than it had been by the League Council, despite the fact that in the General
Assembly the unanimity principle had beenabandoned. 1refer to I.C.J.Reporrs
1955at oaees88 and 123.
I am iiwxrc of the frlii. ofcoiirse, ihni Jiidge 1.auterp;ichi in ihst \,ers sÿnic
opinion siiited some qualilicniii~n to the proposiiion <if the non-binding eifeci
of General Assembly resolutions, but that is no1 for the moment relevant to
my purpose. This Advisory Opinion was in 1955. It was only II years, Mr.
President, before the General Assembly adopted resolution 2145, without
SouthAfrica's concurrence and aeainst its will. the suooorters of the resolution
insisiing thatIIhrld hiniling elTeir upon South ~friLi: ~nd upon othcr Sirltes
concerned, in the seme of rendering South Africa's presencc in South West
Africa illeeal
Now leïus look at the case of the Security Council. There the innovation,
even substantively, went further. The unanimity principle was dropped for the
Council as a whole and. in addition. the Council was eranted the oower to
make, in certain circumstances, decisions thai could he binding eien upon
noni-onstnting United Nations Menikrs whoïeinterestsu~erespcciiilIyaiTected.
This was. therefore. a verv.imoo.tant innovation. But. for that verv reason.
because it was so important suhstantively, it was, as one might expect con-
ditioned by very important safeguards: and 1 want ta mention four of them.
The first one is that. except.aea-n for orocedural matters. the unanimitv
principlc uas retiiined for the five permanent memhers of the Securiiy ~'ouncii,
although il did no1apply IOthe Counc~l as a whole. Contemporary comment.
of which we cite various passagesin Our written statement, emphasized the
importance which was attached ta this arrangement, the basic substantive idea
king that in the field of peace-keeping, that very important and onerous
resoonsibilitv beine olaced uoon the Council. it would no1 serve either the
intérestsof the maj&powers or the interests of the world asa whole to permit
coercive action Io be taken in the name of the United Nations unlessit could be
taken with the full support of al1of the permanent members.
The second important safeguard was the requirement that a non-member of
the Security Councii, if he was a party to a dispute being considered by the
Council, had to be invited ta participate in the discussion, although without
vote.
The third safeguard was that a member of the Security Council, ifa party
10 a dispute, was ta abstain from voting. And the fourth safeguard, the over-
ridingly important one, wasthe fact that the grant of power to make decisions
that would be binding upon non-consenting States was very carefully limited
to circumstances which were exolicitlv and carefully defined in the Charter.
1 am not going into detailed'analysis at this stage, Mr. President, but Our
submission is that if one analysesthe position under the Charter, in accordance
with its natural meaning and as it was seen at that stage by the founders of
the United Nations, it really amounted to this: that, apart possihly from one
or Iwo specific cases which 1 need no1 define a1 this stage, this grant was
confined to cases falling under Chapter VI1 of the Charter-in other words,
caseswhere the Council had, in terms of Article 39, determined the existence
of a threat to the peace, a breach of the peaceor an act of aggression. Those
were the limited circumstances in which it was conceived that the Security152 NAMlBlA (SOUTH WEST AFRICA)
Council could act in what, up to that stage, had been a completely unknown
method in international organization.
Now, Mr. President, let us look by contras1 at what is king urged upon the
Court concerning the world of 1971in these respects.
First, again, concerning the General Assembly. On behalf of the Secretary-
General one finds in the oral statement presented last week the contention
that "the General Assembly is the competent organ of the United Nations to
act in the name of the latter in a wide range of matters". 1 stress the words
"to act in the name of the latter [United Nations]". The distinguished rep-
resentative proceeded to state that in such cases it was the United Nations
itself that was acting and he defined those cases as king especially-
". .. economic, social and tmsteeshi~ matten. non-self-~overnine terri-
tories, administration and finance, and action kequired &der the United
Nations Charter not coming within the special competence of the Securitv
Council" (pp. 51-52, sitpra)
Now, Mr. President, we have looked at those contentions very carefully in
their context, and this much seems to us to be clear-if wemisunderstand the
Secretary-General it is for him to say so-but il seems to us that he makes it
clear that he suggests that this isa power even to bind non-consenting member
States, which could be any member States. He does make soecial submissions.
with which 1shall deal later, concerning States in the position of administering
trust or mandated territories. But this particular contention which 1have now
read out to the Court we understand as relatine. to al1States. If that were so.
let us look at what could happen, in these variou;spheres, which he hasdefined;
in this world of 1971.
For the United States of America. a socialistic oolicv could beorescribed or
dictated, or for the Soviet Union a capitalist one,'by the appropriate majority
decisions in the General Assembly; because, after all, although those are both
permanent Members of the Secunty Council, they have no right of veto in the
General Assembly. For both, there could be a prohibition of space flights.
And let us look at the possibilities for other States.
First of all, as soon as action of this kind is taken. or decisions of this kind
are made in regard direcily Io parriculdr States. it Gis in moiion a chain of
consequences indirectly for other Siaies. They could then be prohibited from
having, with ihosc States directly aKected,dcrtlingsor relations which ivouldhe
inconsislent uiih the rcsolutions taken by the General Asîenihly-much along
the lines of uhnt ha%happened, or \\ha1 is purpor~ed~to ha\,e happened, ~~
regard ta the South West Africa situation.
Let us look at other possibilities, still in the economic sphere. 1s it now
suggested that the economically under-developed countries, who are probably
bv far in the maiority in the General Assemblv. could imoose international
obligations on thédeveloped countries? lnterna&nal obligGions, shall we say
in the first place, to pay an annual contribution to development aid, based
upon some formula such as a certain percentage of thegrossdomestic product of
the developed country. 1sthat the suggestion? Becausethat does seem to be one
of the implications following from this contention of the Secretary-General.
Could the under-developed countries, hy their majority, exact an obligation
from the developed ones to pay minimum or floor prices for raw products
coming from the under-developed countries, and the counterpan of king
bound by frozen or maximum prices for the manufactured goods of the
developed countries exported to the under-developed ones? Are those matters ORAL STATEMENT BY MR. DE VILLIERS 153
in which it issuggestednow that the General Assembly,in the economic sphere,
could lav down internationallv bindine oblieations for States?
Let uclook al the social sphére,MI. President. Majority decisions, according
to this contention of the Secretary-General, could prohibit State religions,
whether thev were Christian. or Hindu. or Moslem. or anv other relleion.
They sould promote non-disckimination ;or instance by enforcing equal &hts
for women in lslamiccountrics; or thcy could urovide that the King of Encland
may be a non-Anglican, and that the Pope, ii his capacity as ~ead of tat tof
the Vatican, may be a non-Catholic-al1 in the sphere of promoting non-
discrimination. Majority decisions could rigidly prohibit traditional customs in
Africa:.the. could lav down curricula for education. th.v could lav down mles
about mother-longue instruction, either making itcompulsu~ or prohibiting II.
Thcy could rcquirc the United States to ado~t diiiercnt policies than the? are
doing at the moment with regard to their ~eko and lndian populations.
There is no end to the examples that one could give as to what this body
could do, if this Court were to place ils sanction upon the contentions that are
bein-.oressed uoon il as to the oowers of the General Assemhlv.
In order to promote self-determination or to terminale colonial or semi-
colonial situations, there coulbebinding resolutions by the General Assembly
that Estonia or Lithuania be declared indeoendent. or that a oiebiscite be
arranged in those areas. They could do thé same about a posiible Basque
territory, Saypartly in Spain and partly in France. For different States which
have latelv exoerienced some difficultv or another in regard to their State
organiwtion, ihere may be hinding préscriptions as to what kind of govern-
mcntal systcm or civil rights there should be. let usay in Northern Ireland.
in Soain or in Grçece. or in Ilranda. Niacriî. Cvnrus and so forth. Ar 1have
said; there is probabh no endto it'andl do noi want to pursue the matter
any further. One might ask generally, if this were the world of 1971, what
would then have become of the essentially deliberative character of the Assem-
bly, which was so intentionally designed and so explicitly described by the
authors of the Charter.
1 want to auote at this staee onlv one of those descriotions eiven at the
relevant time.'lt was one by Gr. €diard R. Stettinius, ~r.;a former Secretary
of State of the United States, and 1auote from his Report to the President of
the United Statèson the Results of the San Francisco conference:
"lt will be the responsibility of the General Assemblyto discuss, debate,
reveal, expose, lay open-to perform, that is ta Say, the healthful and
ventilating functions of a free deliberative body, without the right or duty
to enact or legislate." (Department of State, Publication No. 2349,
CorferenceSeries 71, p. 14.)
By way of contrast, Mr. President, in these proceedings, the distinguished
representative of the Organization of African Unity, in identifying himself
with the Secretary-General's'conn towntexpoicily asks.this Court to
view decisions of the General Assembly on the basis as if they had been taken
by a parliament or a political assemblv. And if 1 understand him correctly.
by suggestion more than by what he said, it should be looked upon as a kind
of sovereign parliament, because he ascribes to it the kind of attributes of a
sovereign parliament, namely that what appears to be formally in order by
publication of the parliament itself, must be accepted without question by the
Court-we find that at page100, supra.
Now wecome to a second astounding claim made for the General Assembly, ORAL STATEMENT BV MR. DE VILLIERS 1%
And now cominn to the most im~ortant aspect of all. the limited nrant of
pourrs tu the ~ecurjiy Council: here,~r. l~residenr,one findsthe most istound-
ing attitude of311.an sttiiude uhich seeks IOignore those limitations cntirely-
Derhaos 1 should not sav entirely. but subiect to one confinement onlv. and ihat
is a vérybroad one, théconfinément orjimitation that the ~ecurity Council
is to remain within the broad confines of the purposes and principles of the
United Nations. However much room there mav be for difference of o~inion
as ta appropriate and desirable methods for khieving those purposes and
principles, the Security Council may decide al1 that for itself: and it may in
that broad sphere exercise powers of binding non-consenting member States.
That is the effect of the contention, as we understand it, advanced at pages
44 ta 49, sirpra.
Mr. President. aaain it would be obvious that the imolications of this con-
tention are eno;mous in regard to potential inroads ifito the sovereignty of
member States finding themselves in a minority on a particular subject. In
this instance the threat is ~robably a more direct one to~thesmaller-or shall
1 say, ordinary-~embers of the-~nited Nations, Members other than per-
manent members of the Security Council who have a right of veto in the Secu-
rity Council. But if one takes into account the reauirement that a oarty to a
dispute is ta abstain from voting under the provko of Article 27(3) of the
Charter, and if one takes into account the contention that the Security Council
is to bethe final and binding arbiterand iudge as to whether oro~er Drocedures
have ken adopted and whëther a valid-resilution has hcen passed, then the
position may become uncornfortable also for permanent members of the Secu-
ritv Council.And in that wav. Mr. President. and in general. manv of the Drac-
iicil ex;implei uhich I haveiitcd to ihc ~i>u;t in regird to the ~~neral r\&m-
bly, and niany similar ones could arise on this basis hy u3y of hindinç resolu-
tions by the Security Council tao. They need-according to this contention-
not relate to a situation where the Security Council has determined that there
is a threat ta the peace or a breach of the peace or an act of aggression, or even
a situation which immediatelv makes likelv the develonment of circumstances
of thai kind: the Securiiy Co;ncil could go vcry. very'far kyond those liniiis
and trîvel anyu,here uithin the purposes and principles of the United Nations.
Then there is a further sianificant contention. about comhined action on the
pari of the Gener~l ~~sembly and the Security Cuuncil If I undersiand thai
contcniion correctly itcorne5to this one hïs a case whcre the General Assem.
bly, so it is assumed. does not have the Dowerto Dass a binding resolution
on 3 particular subject. but11ne\,ertheless passesonei the Security Council too,
standing by itsclf. h3s no pourr 10 pa% a btnding resolution on thai suhject;
but the maitcr roes from the Gcneral Assembly ta the Security Council, uhish
then conlirms ihe action of the General ~csembly and then iibecomes a valid
resolution. a \,alid and a binding one. That contention one finds sr page 52.
supra, and here again 1 believe-subject ta correction-that the distinguished
representative of Pakistan associated himself with that contention yesterday.
Again, Mr. President, this isa startling thing. 1do not contest for one moment
that it would be possible in a panicular constitutional instmment to make a
provision of that kind: to say we have two organs, and this matter we regard
as important; so we are not going ta give either of them separately a power to
pronounce upon that in a binding way; but if bath of them do then it will be
binding. But then the constitution would have to provide for il. Othenvise in
general law one finds this: proceeding from the hypothesis, organ "A begins
by passing a resolution which is beyond its powers and therefore invalid; then
organ "B" cames and, on the same hypothesis, that subject-matter is beyondils power too; if passes a resolulion purporting to confirm the resolution of the
first organ, so a nullity is now by a non-competent organ made into something
valid and binding. That is the effect of the contention, unless, of course, the
Court should imply into the Charter a power of that kind which was not
written there.
Mr. President, the aspects which 1have so far dealt with concern al1member
States of the United Nations. But now, as 1intimated before, there are special
or alternative arguments pertaining to States administering mandated or trust
territories. They are singled out for very special treatment in the contentions
about the world of 1971.As a background to those contentions as they have
been advanced, let us look fint al the general understanding about the mandates
system and the trusteeship system on this particular point.
Both of those systems were devised in such a way as nor to subordinate the
mandatory or the administerina authority to the dictates of a su~ervisorv bodv.
The proposition is really a trife one, and il could be demonitrated at great
length; but for present purposes 1 wish to give the Court only two references,
the first one a very brief one. It comes from the Judgment in the Sorrrlt West
Africa cases in 1966 (I.C.J. Reports 1966, p. 46); this is after a very careful
and extensive analysis, in that Judgment, historical, legal and otherwise, of the
mandates system, the constituent documents, their background and history,
the practices in the lime of the League and so forth. The conclusion is:
"The plain fact is that, in relation to the 'conduct' provisions of the
mandates, it was never the intention that the Council should be able to
impose ils views on the various mandatories-the system adopted was
one which deliberately rendered this impossible."
That is about ihc mandates skstcm; noir about the trusteeship sysicni. I rcfcr
to the rame opinion (as bcforc) of Judge Lauterpasht in I.C.J. Reporrs 19.55,
at page 116:
". .. there is no legal obligation, on the pan of the Administering Author-
ity to give effect to a recommendation of the General Assembly to adopt
or depart from a particular course of legislation or any particular adminis-
trative measure. The legal obligation reking upon the Administering
Authority is to administer the Trust Territory in accordance with the
principles of the Charter and the provisions of the Tmsteeship Agreement.
but not necessarilv in accordance with anv snecific recommendation of
the General ~ssekbly or of the ~rusteeshi~~&ncil. This is so as a matter
both of existing law and of sound vrinciples of aovernment. The Admin-
isterine ~uthoÏitv. not the ~enerai ~ss&blv. Gars the direct resoo'si-
bility for the weliire of the population of thé~rust Territory .. .
In fact States administering Trust Territories have often asserted their
riaht no1 to accent recommendations of the General Assemblv or of the
~iusteeship ~o""cil as approved by the General Assembly. ~hat right has
never been seriously challenged."
That was said in 1955: and now, Mr. President, for the contrast with this
world of 1971.
Runnina like a theme throueh the oral s~ateme~t eiven on behalf of the
~ecretary-General is the contenïion that in the case ofa State performing an
administrative function over a t~st or a mandated territory the international
supewisory organs, including the General Assembly, have the power to issue
"binding directivesw-those are his words, not minelbinding directives to
such a State; and he says the supewisory organs may do that by way of decla- ORAL STATEMENT BY MR. DE V1LLIERS 157
rations and resolutions which bind those administering authorities although
they may not necessarily be legally binding upon States generally in the exercise
of their individual sovereign powers.
On this latter qualification 1 did not understand him to make any binding
admissions, he leaves that open, whether these sn-called standards or inter-
pretations in regard to tmsteeship or mandates matters would be binding upon
sovereign States generally; but he says, apparently, that for the purposes of
his argument he need not take it further than to say they are binding, as direc-
tives, upon the administering authority. And 1 refer you to pages 36, 49,
56 and 59, rupro. The process by which this can occur is described in various
ways by the Secretary-General.
Sometimes it is described as the international development of rules; some-
times it is describedas a valid or an authoritative internretation of the obli-a-
tions pertaining to the trust or mandated territory; sometimes it is described
as the definition or identification of "contemporary urevailing norms", or of
contemporary concepts which have to be applied-in promo$ng moral well-
king. But whatever label is given to the process, MI. President, the descrip-
tions have this feature in common, namely that the process is said to result in
binding directives to the administering State concemed, even where that State
does not consent to them and in the face of its opposition. For this proposition
no provision of the Charter is cited in support, no legal argument even is
offered in support: the propositions are simply stated to this Court as if they
were dogma pertaining to the world of 1971,and weare at a loss to know what
orocesses of law are said to have ouerated in the meantime to have produced
ihis result. which is direcily the opposite of the rriuli conternplaied and expli-
uitly enunciared u,hen the trusieeship sysiem wa, devised.
So itu,ilhe evideni. MI. Presideni, that the international lesal world 01 1971
as urged upon the Court on behalf of the Secretary-General and certain of the
other participants, rests upon what one might cal1 "a doctrine of implied
powers" of enormous implications and extent.
By way of a summary 1can give the Court a concise list of al1the proposi-
tions which are relied upon for the purposes of the case king presented, so Io
speak, against South Africa in these proceedings, which rest upon a basis not
to be found anywhere in the text of relevant instruments and which therefore
has to be implied in some way or another.
The list begins with, firstly: a power of unilateral termination or revocation
of a mandate on the part of the League authorities. The mandate instruments
did not provide for itin their texts. The Covenant did not provide for il. So,
ifit exists, it would have to be implied.
Secondly: the transfer of supewisory powers from the Council of the League
to the General Assembly of the United Nations. There the matter goes even
further. There are relevant texts which provide for the manner in which a
transfer is to be eflected in each oarticular case if it is intended. and we know
from the records that those procédureswere not followed in thécase of South
West Africa. Yet, it is contended, despite that position, despite the absence of
exoress ~rovision which automaticallv brought about a transfer of supervisory
p&vers,'the Court is to imply that suih a transfer has taken place.
Thirdly: a uower on the part of the General Assembly to adopt resolutions,
outside of procedural and budgetary matters, which are binding on non-
consenting States, whether they are States generally or States administering
mandated or trust territories.
Fourth: a power on the part of the General Assembly to make binding
determinationson questions of fact or law or both.158 NAMlBlA (SOUTH WEST AFRICA)
Fifth: a oower on the oart of the Securitv Council~~o adoot~7~sol~t~ ~~- ~.t~ ~ ~ ~
side of procedural and budgetary matters,.which bind non-consenting States,
despite the fact, in the first place, that the matter does not fall under Chapter
VI1 or some other specific empowenng provision of the Charter and, secondly,
that al1the permanent memkrs have not agreed ta it. That is the fifth heading
to powers to be implied.
The sixth one is this: a power on the part of the Security Council to make
final and binding determinations; (i) generally, on questions of law and fact,
and then particularly on the questions: (ii) whether a resolution has validly
ken adopted; (iii) whether a matter coming kfore the Security Council i* a
"dispute" or a "situation" for purposesof Articles 27(3) and 32of the Charter;
and (iv) whether the Security Council is properly constituted.
Finally, my seventh heading: a power on the part of the General Assembly
and the Security Council to do in combination what is beyond the powers of
each acting separately.
1have raid that my list numbers seven, but the Court will have noticed that
some of the items have sub-divisions, so in fact, the list cornes to about II
items where powers would have to be iniplied in order to support the case
king brought to ihis Court on behalf of the Secretary-General. And now if
will kcome clearer why 1expressedat the beginning, on behalf of South Africa,
concern about the causeof international organization and international adju-
dication if the Court were to accedeto thesecontentions concerning the world
of 1971. Because it sa happens that in order to justify the opinion which the
Organization (the Secretary-General) and several other participating States
are apparently seeking-the generally unfavourable opinion to the position
taken by South Africa-virtually every one of the powers in this list 1 have
niven would have to be implied by the Court. There are one or two instances
where the contentions runon an alternative basis, so that would sborten the
lis1to maybe eight or nine, but in general, the position is that a finding against
the suggestedimplication on any one of those items in the list must result in
an over-al1conclusion favourable to South Africa.
In other words, Mr. President, in order to put South Africa in its place, as
it were, al1 the Members of the United Nations are now to be told, on the
authoritv of this Court. that the interoretation and ~oo~.cation of the Charter
and iissiciated insirum;nis arc subjcc; to a docirine <if implied pouçrs. which
has alreiidy rcsulted in ihc iwo principal poliiis31 orgîns of the United Niiiions
havine vastlv ereater oowers of bindine non-consentine States than were
writt& into ihiinstruiients by their authors. That is what it amounts to. ln
addition, as 1 shall endeavour to demonstrate, this Court is asked to act, in
this ~rocessof imolication which is sueeesteduoon it. not on a iudicial or a
juridical basis, bit upon a basis which is essentially non-judic/al and non-
juridical and really a legislative one. That is what iffurther amounts ta.
In Our resoectful subrnission. one could hardlv imaaine a combination of
circumsiance~ uhich ivould brmorc likely io fr&hien-otl States front intîr-
national orgÿnizaiion gcnerûlly. and in piirticulîr froni \oluniiiry pîriisipaiion
in the proceedings of the United Nations and from voluntary suhmission of
their disputes to the judicial processesof this Court. That is the basis of the
concern which 1expressedat the beginning of this address.
Let me try to illustrate that somewhat to the Court with reference to the
realities in the world of today as weseethem.
1 want to begin a few years aga, not so many years before 1971. The year
1965takes us back far enough. That was the year in which the issuewhich one
might cal1 the one pertaining to the Cerrain Expensesof the United Nations ORAL STATEMENT BY MR. DE VILLIERS 159
developed into one of near crisis within the United Nations, when the Organi-
zation itself was on the brink of a break-up.
There is a voluine of documentation. of comment and of debates at the time
on these particular problems, to which1 could refer. 1do not want to do so in
detail at this stage, but1want to refer to some of the statements then made
becausethev are so oertinent to the oresent subiect of discussionIn the debates
about that ;ituation.. one round thïi rneniber States of the Unitcd Nations, of
311political pcrsti3sions and ifx11 ,hades of psliti~al opinioii aliuut ihc partisu-
lar auestions heine debated at the moment. aareed about one thinn. and that is
that'the rooi CJU~ of the ditticuliies inio *,hich the ~rganizatioihad run at
that stage uas the tendcni) on the part uf majorities ts excced theconsiitutional
limits of the particular organs. one finds that running like a theme through the
whole of their discussions.
1can take it back even to a preceding phase of that same matter, shall 1 say,
the advisorv oroceedines in this Court on the Certain Exoensesmatter. In Our
presentatiok io the court in 1965,during the South West~frica cases, wegave
many quotations which are apposite to this matter, in a survey which is to be
found in Volume IX of the 1966Pleadinas.Oral AraurnetirsandDocunzentsat
pages643-649, froin which 1 should like ;oiead some portions. 1am not going
to give the exact original citations, Mr. President, with your leave,causethey
are al1 given in these pages of Our presentation in 1965. In order to save time
I will not do that now and I am not going to quote extensively. I want to take
just a few of the passages,the others are there to be read if the Court should
wish to study them. 1 will begin with a statement to this Court in a written
memorandum of the Soviet Government, in the advisory proceedings:
"It should he added that the resolutions of the UN General Assembly,
as it is stioulated in Article 10 of the Charter. are of the nature of recom-
mendations and are not binding upon tat te Ts.e UN Member States
themselves determine their attitude to these resolutions. All measuresthat
follow from the General Assembly resolutions are also of only recommen-
datory nature and cannot establish legal obligations for the Member
States of the Organization."
Now two passagesfrom the Russian oral presentation to the Court. The
first one:
"II is universally recognized in internation31 Iathït none of the parties
10 a [rat) is obliged t<ibear morc responsibility ihan \tas 3,sun)ed by II
iiccordinc to this treatv. For the Siate Members of the United Sariuns
such a treaty is the charter within the limits of which they bear their
responsibility."
Now the second hrief quotation:
"The competence of each organ of the United Nations is determined by
the provisions of the United Nations Charter. The Charter is a treaty
concluded between States, and no organ of the United Nations can amend
it except according to the provisions described by the Charter itself."
And so, Mr. Prcsident, onc proceeds to a list of other Sixtes. TherIS \lene-
rucla-l quoie only 3 fcii \rords, thesc are no\< in the debates during April Io
June of 1965 in the United Nations (o. 644 of the 1966 Pl6~o~l11ie ~c..,. The
quotation is: "The United Nations charter is thus a treaty that can be revised
only through thespecial procedures laiddown inthe Charter itself and accepted160 NAMlBlA (SOUTH WEST AFRICA)
by al1the signalories." And then later in the same quotation "only a unanimous
consensus could provide a final solution to any problem of interpretation".
Now 1 will proceed to the distinguished representative of France, two brief
quotations from a larger passage which occurs at the pages to which 1 have
referred. The first one is this: "There is one common denominator"-meaning
thereby. MI. President, a basis for coming fo a solution of the difficulties in
the United Nations. And then the representative proceeds to state what it
was: ". ..the Charter which we have signed or to which we have adhered, the
Charter which, until it has been amended or revised in accordance with the
procedures which it provides for that purpose, remains binding law for us ail.
It is because there has been a departure from the Charter that the difficulties
and conflicts weighing today on the Organization have arisen. It is only by
reverting to that incontestablesource, and not by the invention of new artifices,
that we can put an end to the differences of opinion which are paralysing us."
Next, the representative of India:
"Past experience has proved beyond doubt that a resolution of the
General Assembly which does not conform to the urovisions of the Charter
cannot solve a problem. This would be true evenif such a resolution were
to be supported by al1the great Powers."
It goes on, MI. President, at the pagesto which 1have referred, with quota-
tions from statements by the representatives of Brazil, of the Argentine and of
various nthers. 1want to quote two more and that willbe the end of my reference
to these debates. One is the statement by the representative of the Soviet Union
in these debates, on 25 May 1965.He said:
"The Soviet Union, along with other States, became a Member of the
United Nations under certain snecific conditions which are clearlv stated
in the United Nations Charter. During the 20 years of the existence of the
United Nations the Soviet Union has unswewingiy adhered to the provi-
sions of the Charter. Any attempts to force uGn the Soviet union es-
sentially new conditions for membership in the United Nations. ..con-
stituting a violation and distortion of the wiseprinciples of the Charter.
are not going to succeed.
We also wish to point out that it is not only the States Members of the
United Nations that signed the Charter in San Francisco 20 years ago
which are obliged to follow unswervingly the provisions of the Charter.
All the young countries which have become Members of the United Na-
tions in recent years, and whose acceptance as Members has greatly
strennthened the United Nations and made it more re~resentative and
more-viable, must also be guid'edby the provisions of the Charter. As is
known, in becoming members ofour Organization, those countries gave a
solemn oromise to resvect the United Nations Charter which is the basic
law govkning the actiiities of the Organization."
And finally, just this brief one from the representatiof Mexico, which is
important because he sponsored the eventual resolution. Speaking about the
draft resolution, hesaid: "Paragraph4 emphasizes strict respect for the Charter.
Not just any interpretation of il, but the Charter itself as the embodiment of
the spirit of international solidarity."
That, as t have said, was as recent as five-and-a-half years ago. but we can
come nearer to today.
The Courtadjournedfrom 11.20 a.m. to 11.40 a.m. ORAL STATEMENT BY MR. DE VILLIERS 161
1shouldliketo refer ta present-day evidence of concern about maintaining a
proper bÿlïnce kt\recn the grlint of pouers to international organizations and
the desirc for preserving State sovereignty, in spite of the vcry urgent need for
new fonns of international organization. Last Friday, there were various dis-
cussions on high level in the United Kingdom about the possibility of British
entry into the European Community. We have the evidence of The Tii~ies,
Saturday, 13February 1971,ofwhich weshall hand photostats ta the Registrar.
1wish ta refer brieiiy to three elements only.
The British Prime Minister, Mr. Heath, emphasized the need for new think-
ing. saying that the Community was the "sort of organization that had never
ben seen in the world before", and adding (front page of The Titnes):
"We should be thinking in fresh terms of fresh institutions as the found-
ing fathers thought when they first beaan .he creation of this work in the
early 1950s." -
In this Mr. Heath was supported by the Foreign Secretary, Sir Alec Douglas-
Home, in a rnemorial lecture on the same day; but the latter added a note of
realism :
"Successful economic integration rnust inevitably lead to closer and
closer political association and that means more c~llective decisions and
developing machinery for putting them into operation for the good of all.
In a continent where the nationState has olayed so large a oart, 1fore-
cast that new political machinery will evolve ilowly and thai new insti-
tutions will k limited to those where there is a practical job ta be done."
In an editorial, The Timeswas quick to put ils finger on the spot:
"Most people might grant the case that a united Europe would be a
force for good in the world. What some of them fear is that in ioining in
the enterprise British sovereignty, all,ihat we tiold most valuable in our
tradition of parliamentary government, mat be curtailed in some way."
MI. President, those considerations are still very much alive in the world of
today. The need for taking them into account in advancing along the road of
'more effectiveinternational organization is as strong as ever.
Right up to this time there is in leading countries in the world a continuing
debate, of which Memkrs of this Court would no doubt be aware. about the
subjec~ofdistribution of voting powers in thc United Nations ln relation to the
powers of the organs cnnrprned. South Africa is one of the smallcr Members
of the United Nations. each one of which clin. in the Generdl Alsembly. bring
out a vo~e ~hich then counts ~h~ ~ame a~ th~ vote of anv of the lareesi States
in the world. That isa very favourablc position for us sm<illcr~tate~(Some of
us arc evcn referred to ss "mini-States".) But some of thc larger States-repre-
sentatives of those States or leading pekonalities debating these issues within
those States-have indicated that while this situation lasts, the IargerStates
could hardly be called upon ta agree ta an extension or a growth of the powers
of the General Assemblv in the direction of a body with leaislative or oarfia-
menta& power. As a pre-requisite forany growth of that kind, howeveidesir-
able il might be-that in itself.of course, is a matter for debate-but assuming
the desirabilit~ of a developméntin thai direction, informed sources seem to be
agreed that a prerequisite would be a re-distribution of voting powers within
the Assembly, a re-distribution which would take more realistic cognizance
of differences in sizes in populations, in strength and sa forth of the various
State Memkrs. And it must be very obvious, MI. President, with the greatestresnect. that in this atmosohere which nrevails verv much in 1971. ororninent
~embén of the United ~ations are noigoing Io take kindly ta a iu=eptitious
prncess of developing the General Assembly into a legislative body by freely
im~ortine so<alled im~lied nowers into the Charter. without taking into ac-
coint these considerations Ôf practical balance which 1 have just mentioned.
In narticular, if that should hapnen through pronouncements of this Court,
onecould hardly expect States tobe keen $0-submit theirinternational disputes
ta adjudication, by voluntary submission ta the jurisdiction of this Court.
It is true, Mr. President, that some of the implied powers which 1 have listed
are snecificallv desiened. bv those who contend for them. in such a wav as to
hit a; South ~frica.-~hat isuppose is something new in international law too,
international law as opposed to international politin. The general idea of law
is to make rules and principles for all, and no1 ta make some rules for one and
other rules for al1others. But, be that as it may, the questions which have been
nul bv Judae Gros have, with resriect, vew clearly drawn attention ta the fact
thal direil~~.iion tdkcn ag3inzt 3 p.irtic"lar siaie inlay have irnportant conse-
quencesof 13~. or supgerted legal consequcnies.for variour other Stxtcs. Aiid in
any case, if a legally unjustified process is once begun with a view to getting at
South Africa, if 1may usethat expression, how does one know where is the rot
going Io stop.
That brings me to the basis upon which this Coun is asked 10 make the
implications under discussion.There is, as we al1know, a well-established hasis
in law and in logic for importing an implied provision into a contractual
or a similar instrument. We deal with the authorities and the principles in
our written statement, 1, Chapter 11, paragraphs 10 ta 13, pages 387-388.
It amounts very brieRy 10 this, that an implication of that nature is only per-
missible where it apnears from the record. either directly or by inference. that
the parties were in &cl agreed that suchwas ta be a part of their contract,
but that they only omitted to record it becausethey thought is was tao clear,
because they considered that it was self-evident and went without saying. Or,
10 put il perhaps more fonnally, the inference that the parties were actually
agreed upon the suggestedterm or provision or power must, in the first place,
be consistent with al1 the relevant facts and. in the second place. il mus1 be a
neccssaryinference from those F~cts.in the ense thal a11re3sunüble alternative '
inferences are excluded. le.. lhilt no othcr reasonable inference can be drau,n.
So that is a considerable discinline 10 annlv. and rizhtlv sa. 10 a suaaestion
that a term ii to be implied in a contr&i"al instni~e~. pariicularl;'in the
interniitional sphere wiih multilateral con\,eiiiions, uhere one has the position
that certain States agree upon the convention and others come in later by ac-
cession.
Now in the lis1 of changes in the powen of organs of the United Nations, as
suagested bv various representatives. there is one which is said ta rest on a
m0dification of rhe Iûu by practm. and rltai is the one concerning unanimiiy
amonpst the permanent mcmbers of the Sccurity Council. But in sll the other
instances in tliat list. the disc~nline of the Iaw and of loaic. \%hich1 haie iust
mcntioncd, u,ould habe to beapplied in order IOseewhcthcr the implied puwer
which is suggestedcîn justifiably be'aid ta form part of the Charter. The disci-
pline requires a very careful investigation over aconsiderahle field. It requires
an investigation in10 al1 the relevant data whichcould throw iight on the prob-
able intent of the parties: the antecedent history, the travairx préparatoires,
the structure. the schemeand the wordina of the written instrument, the ae-eral
probahilities; the subsequent conduct ofthose affected and sa forth.
Now, Mr. President, is this the approach of the distinguished representatives ORAL STATEMENT BY MR. DE VtLLlERS 163
who have ken urging these implied powers upon this Court? Decidedly not,
they do not refer to this discipline at all. Their approach is rather an argument
of socalled necessitv: and if one analvses the akument it amounts reallv to
no marc ihiin this, that. ifthe iinplicaiion i> n<ltniade. tt uill noi he possihle to
force the situation along the lincs dcs,rcd by the maiorities in the United Na-
tions organs against the will of South frica a ~hat-is what it amounts to in
essence, in the first place. In the second place, the consideration is raised that
the United Nations may be inconvenienced in regard to constitutional oractices
which have evolved over the years. 1know it is put into moredramatic ianguage
than that, but that is what it amounts to in effect. (Statement on behalf of the
Secretary-Ceneral: pp. 31 and 48-50, supra.)
And thirdly, Mr. President, it is suggested that this Court should show its
solidarity with the other Unitcd Nations organs, whatever that might mean.
Thislast suggestion camefrom the Organization for African Unity, at page 105,
supra.
Now, Mr. President, demonstration could hardly be necessary that such an
approach is wholly unfounded in law, regard king had to the'principles which
have been so clearly expounded by this Court itself in its jurisprudence. One
need merely refer ta the principles which 1 have just mentioned in regard ta
the implication of a provision into a contractual instrument to see that the
Court is in effecthere uraed to act. not on a iudicial. but on a leeislative basis.
And, in addition, this ~Durt very'pertinently and authoritativeïy disposed of
similar contentions in ils 1966Judgment in the Sourh Wesr Afrieo cases:
". .. if, on a correct legal reading of a given situation, certain alleged
rights are found ta be non-existent, the consequences of this must be ac-
cepted. The Court cannot properly postulate the existence of such rights in
order to avert those conseauences. This would be to enaaae in an essen-
tially legislative task, in the service of political ends tie-promotion of
which, however desirable in itself, lies outside the function of a court-of-
law" (I.C.J. Reports 1966,p. 36).
Now, Mr. President. this Dassaae from the Court's Judament ost tu la tes
evcn desirîbility (rom 3 polit;cal pisnt or vicw tn particular ;ituatio~ns. whish
ncvcrthcless could not ~nfluencethe position ,n law. I ivant IO take up thar
element in relation ta the present case and I want ta put it very strongly ta the
Court on hehalf of South Africa~ ~ ~ ~ ~ ~ ~ ~ified as this sueeested aooroach
of a legislative nature, which is urged upon the Court, is in law, so unjustified
it is when regard is had to the facts of the situation which prooerly come before
the Court for consideration in thes~ ~.~c~ ~ ~ ~.
Our contention is that satisfactciry progress towards solution of the problems
of South West Africa, humanitarian problems and other problems, can only
lie along the road which was wiseiy indicated by the authors of the mandates
system and the trusteeship system: the processof discussion,understanding and
dialogue, and not the process of trying to force a situation upon an authority
and uoon a ~eo~lewho do not want that ~articular remedv for their situation.
1 say that; in'the full realization and with full acknowlidgement of the fact
that circumstances in South West Africa, as in South Africa, are not perfect-
nobodv could claim that for anv oarticular countrv. But at the same lime they
, .
are no1static. thcy are evolving; thcre arc forces ilt~'orku,ithin the communi-
lies, taking into ziccouni the hisioricÿl anrccedents and procccdine with a view
to findinaa solution. in a multi-national situation. and in the circumstances of
a worldwhich is rather emotionally charged about the problems involved.
The objectives are the same as far as the humanitarian considerations are con-cerned: objectives of self-determination, of human rights and human dignity;
the problem is one of finding appropriate methods in the particular circum-
stances.
In the Sourh West Africa cases.South Africa went out of its wav t. ore.ent
Io this Court. and through this Court to the ivorld. as systematic and as com-
prehcnsive and as well-documented an acsount iiscuuld ever bc expected of
the facts and the problems of South West Africa, of South Africa's policies in
thcTerritory. of the objectives and the aimsof thuse pulicies and of the measurc
and extent of propress already made in putting ihose policies into elïect. South
Africa offered extensive oral testimonv.~and it invited the Court to inswct the
Territory, in furthcr refutation of thé chdrges of oppresion, repress;on and
denial of self-deterniinarionof the indiyenous peoples \\hich hîd regularly ken
made in the Uniisd Suions and which had been taL,e.cn uo bv Eih~onta and
Liberia in their pleadings in that case. Those expositions made it cl&, Mr.
President, that South Africa's rnethods differed from those desired by the
United Nations majorities but, at the same time, they emphasized that the
objectives were, in principle, in accord with the modem conccpts 1have men-
tioned.
Now. the further develooments in that case are well known. The aoolicant
States, i\,identlyreülizing iheir inability to estiiblish the crude charges upon
ivhich thcir casehîd ken hdsed, in the course of the oral procccdings acceptcd
as true South Africa's expositions of Cdct.and they modified their Submissions
so as to omit the charges of oppresrion, repression and dcnial of xlf-dcter-
mination. Even then South Africa prosreded tu put bcforc the Court uncon-
testedtestimony by 14experts to showthat the absolute rules of non-discrimi-
nation and non-separation urged upon the Court by the Applicants could not
possibly, in South West Africa, serve the cause of promoting well-king and
nrogress.
fie Court's Judgment in 1966eventually dld not prunounce upon this latter
aspect of the issucs.The South African delegation then tient to the tu,cnty-first
session of the General Assembly fully prepared and eager, Mr. President, to
discuss the South West Africa position fully and constructively on the basis
of this enormous record which had been built up in this Court-the full and
fullv documentedaccount which has beenniven to the Court-and on the basis
of the developments in the course of the c&e which were there on record. The
delegation found themselvesconfronted by a wall of emotionalism and of utter
unwillingness to listen to or to discussanything with them, least of al1the court
case orthe developments in the court case.
When South African representatives went to the rostmm to address the
General Assemhlv. blocks of renresentatives of certain other Stateswalked out.
South African representatii,es. ;n their presentations to the General Assenibly,
recapitulîted brictly what hiid happened in the court case,and \\ha1 had ken
the gist of their exoositions. Thev invited study of those records, al1to no avail.
~heÏe were extensive consultat<ons-infor&l consultations, the proceedings
were adjournedfor the purposebetween al1concerned with aview to reaching
the maximum of consensus.so it wassaid: but the one vartv able to throw most
light on the situation, and probably the most interested init, particularly from
the point of view of the humanitarian considerations involved-South Africa-
wasneverinvited toany ofthoseconsultations; it wasa matter ofthose aligning
themselves ae-inst South Africa trvin+ t- find maximum consensus between
themselves.And sa, Mr. President, a great opportunityfor starting and getting
off the mound with constructive dialogue was Iost. The old charges of oppres-
sion, reiression, denial of self-determination, were brought forthagain by one ORAL STATEMENT BY MR. DE VILLIERS
165
delegate after another with renewed vigour, as if they had somehow been en-
hanced and not discredited in the South West Africacases.And noattempt was
made al establishing any of them or brinaina material in supvort of them:
they weresimply siaÏed ns ifthcy wcregospei,jüst say so.ip~rdiiif propositions:
Reprerniatives of the Siates that had brought the case againsi South Africî
in the South West Africacases went so far as to deny that the course of events
in the proceedings of this Coun which 1 have just mentioned, ever occurred.
The outcome was, as we know, resolution 2145.
South Africa continued to seek avenues of dialogue. It ~resented the South
West Africa Survey in 1967.It presented a host ofdetai~ed information after-
wards; it invited diplomatic representatives of other States to visit South West
Africa and, except for a few creditable cases, the reaction was a legalistic one
of not wishing to recognize South Africa's right to administer South West
Africa and therefore of not king willing to visit the Territory.
Meanwhile, Mr. President, South Africa has continued within the Territory
with spectacular developments in the political field, in the economic, social,
educational, health and other spheres. It has done so throughout in close con-
sultation with, and with the CO-operationof, the peooles involved. And in the
field of human relations, 1 wish io say again thai matters are not static, they
are evolving. They are evolving ln the direction of ktter understanding and
better accommodations, althoueh the end of the road. where theevolution is to
lead to, has oot been reached yet, by far. It is in these'circumstances that South
Africa seeks and invites dialogue and discussion, criticism, if necessary, but
let us proceed and see where we can pet from there
~here are encouraging signs that t6is is positivelyresponded to in the black
Africa of today, not only in neighbouring States of South Africa but in States
further afield. where there are reioonsible leaders who are seekin~.or favourinn
contact and dialogue u,ith ~ouih Africa. even thuugh res~rving;~ehcnient dit
ferenccs of opinion and ofaiiitudcs ahout policics king applicd South Afrtca
looks forwnrd tirthe day u,hen ihc Orgnnization of African Unity uall no
longer be an organizaiion hostile ro it.in the forums of the uorld or in the
practicdl cvers-day business of devcloping Africa: that it uill be an ally and a
fricnd, plirtisiilarly in the de\.clopmcnt of the truc poiential of the great Afriian
contineni. Thai is uhat South African policies and the Souih Africnn appruach
in regard Io South \Vcsi Africd niean, in real terms, in the \rorld of 1971.And
that is why1saythat, under thesecircumstances, an attemptat forcing solutions
against the will of the peoples and the authorities concemed could get one
nowhere, and particularly not at the price of established precedents, principles
and disciplines which are so necessarr in the international order of todav.
There are. regrettably, some who sÏill seem to be &ni on a collt\ii>riCourse
wirh Si>uthAfrica. and pariicularly in reparJ io South West Africa. The) have
endeavoured to spur the Security Council to coercive action and they are here
in this Couri with a renewal of the old charges and in the hope that these pro-
ceedings may be a spur to coercive action.
Mr. President, 1Saythat is very much to be regretted, but it is part of the
realitv and it is necessarv to test their annroach. T-~~. .~lete hollowness ~~-
that approach when it rélatesti the weil:king and the seif-determination of
the peoples ofSouth West Africa is demonstrated best hv South Africa's vlebi-
scite pr6posal and the reactions that have so far been ainounced to this court.
If those bringing these charges against South Africa had seriously believed
in them, Mr. President, one would have expected that they would have wel-
comed a proposal to have a plebiscite, they would have welcomed it is a means
ofproving their case and ofcutting the very ground from under South Africa's166 NAMIBIA (SOUTH WEST AFRICA)
feet. But what do wefind in fact?Wefind from themcomplete and utter rejection
of the ~ro~osal.cou~led with the flimsiest Dretencea1technical and leaal ob-
jeciion; and eïcuses II is. 1might say, ihe'label of legal niceiy in rever& II is
the cxtrcme of Iegïlism and ii icry ohviously hasthe prasiical purpose oftrying
to conceal something. Let us examine these points which have ken raised.
First of al1there is the question of the competence of the Court. That was
raised by the Organization of Afncan Unity (p. 104, supra) and by the dis-
tinauished re~resentative of Finland (D. 65....oro). The aueries about the
cornpetence of the Court are posed in arather vague and unipecified manner.
Mr. President, Our plebiscite proposal is made on the basis that the Court
finds it necessaryto investicate and pronounce uDon the factual issueswhich
have ken îqudrely raired <orne of rhosc fdciual iisue,. as hcing rdised for the
Cuuri's considcrdiion in the wriiren as ucll as ihc oral prcscniiiiion~ to the
Court, concern the basis of the General Assembly's purported termination of
the Mandate in resolution 2145. Others serve a different purpose. They are
raised by way of allegations ofcontinuing violations, after 1966,of international
obligations on the part of South Africa-international obligations owing to
the inhabitants-and it is said that South Africa has incurred and is still in-
curring international responsibility becauseof those violations.
Now. Mr. President. in each instance where these facts are raised bv the
oiher participïnrs for consider~iidn by the Couri. the accent is very h&vily
on alleged inh~nlsnities and on an slleged denial of self-deierminlition to rhe
inhabitants. As illustration one need merely refer Io the concluding remarks
offered on behalf of the Secretary-General at pages 61 to 62, supro, and to
the list of alleged violations asoffered on behalf of the Organization of African
Unity.at D.-e102.suoro.In both casesthe Court will seethe accent on alleaed
inhumaniiies. and vciy sirongly on alleged denial of sclf.deicrmin~tion. ~con
the basis thst thcse issuesarc IO be in\,esiigaied and prondunced upon by the
Court. what Dossible doubt could there exist about the Court's cornpetence to
avail hself oian offer to provide the Courtwith probably the bestand the most
relevant, and potentially the most crucially significant, evidence for this pur-
Dose.the evidence of what the inhabitantsthemselves sav.
It is true, Mr. President, that the Court in advisory proceedings does not
usually engage upon extensive investigations into disputes of fact. But on the
hasis under discussion. on the basis that the Court docs find it necessarv.in
order IO determine the quesiion put 10 ii hy the Securiiy Council. tu go iniothe
~actualficldinihis~ase, ihcCouri issurely lcfi a1ihi)nlydneof lu0 3Iternaiivcs:
the one alternative would k to say we decline iurisdiction becauseadvisory
proieerlings ire nor appropriate 1.0;thls kind iif~ni,c\tigiiiion: ihc uihcr alicr-
native isIO sa) \veïi,s~l uursehes of the Kules of the Court, or ufthe pruvisiun,
of the Statute. which enable us to adapt advisorv oro. .dinrs-or shall 1 s. .
the procedurcs in advisory prciccedings-to ihose applicïblc to conicntious
casesaî fiir as may he necessriryin order ri)du jutice in a p3riicular insiancc.
Thai is specifically providcd for in Article 68 of ihc Siiiiure. And if this second
aliern3iive is iidopied. ihen there could be nu difficuliy \rh3isocver about the
appointment hy ihc Court of ;iconiniiitcc ofindcpcndeni experts in ic~ur&dn~.c
with Article 50 of the Statute.
So we do no1 understand what the technical difficulties are which are sug-
gested-and the ubjectors do no1 say what they are. The main point for the
Dresentis that if there were technical obiections one would have exwcted the
~ccusers IO olïer IO assisi, even by their conseni 3s Faras mJy be necessïry. in
ovcrcomc the rechnicalities 50 risIO mdke the plebiscire possiblç. r'iihcr than 10
shield behind the ic~.hnicdliiics \riih a i,icu. tu avuiding a plebiscire. ORAL STATEMENT BY MR. DE VILLIERS 167
The next point that was raised was one of relevancy. Under this heading we
are again met by an attitude which is technical in form but of much deeper
significancein substance. It is an attitude of king very loud on the one hand in
accusine.and evencondemnine. South Africa of violations bvreasonsof nolicies ~~ ~
and prii~ticcs. but of ple~dincon the other hand. ihdt nlthough ~ouih Africa
consistentls denier these allegations. and still ddes so in this Court. this Couri
must olease not uronounce uoon those issues. becausethev have been finallv
determined in théorgans of théUnited ~ationiand the COU> must nowsi&&
rubber-stamp the findings that have been made in those political organs.
That is an~attilude which we first of al1met in the course of the oral oroc~~d-
ings in the South West Africa cases.As we demonstrated earlier in these pro-
ceedings, that is in the application for the appointment of ajudge adhoc, those
caseswere really conducted by Ethiopia Gd Liberia acting as agents for the
Organization of African Unity-1 refer to the record of those proceedings
which 1 believe has now been authorized for publication, Mr. President (p. 7,
supra). So it is not surprising to see that the Organization of African Unity
is still pursuing that same line in theseproceedingsbeforethe Court-we find
that at page 99, srcpra, read in contrast with page 102, supra. Now the
Organization of African Unity isjoined in these proceedings by the Secretary-
General who makes the same contentions (pp. 34-35, supra), by India
(pp. 112-113 and 118-119, supra), and 1 believe, subject to correction, that
the distinguished representative of Pakistan identified himself with that line
yesterday-the linc, that is, of relying on allegations of fact against South
Africa but saying that this Court must pleasenot determine them. It must be
added that Finland. to its credit. does not ioin in this disin..nuous disolav. (1
uantc<l to53).phou~is6010n~~b su; my learnédcolleagucs =y that would besiani
so I uould raiher no! usethe term') (F~,,lu,lJ. DD. 77-78~t ri,q., ,/,pro.)
Mr. President. that sureestion thatthe facts aie there but that th& have been
determined by ~o~itical~~ans and the Court must accept that asfinal-that
serves as the basis for these various States and organizations ta say that this
proposal about a plebiscite is not relevant to the issuesbefore this Court. 1 do
not think 1 need say more about that, except, asain, that it is an attitude of
relying on the allegations but not wishing to stand up to a test about them.
Then. thirdlv. a ooint is raised about South Africa's so-called "standina".
in lan cdntends that South ~fiica hasno standing to propose or organize fhe
plebiscite since it no longer has any right ta administer the Territory (p. 65,
suera). But. Mr. President. surelv that isauestion-bee--ne-of the hiahest dearee.
lt'bcis thevcr) quesiionai i,s;c in thij Court. is South ~fri<:i;here legslly
or illcgally? South Africs in msking the plcbiscite propos31Joes no1 beg that
ouestion. The V~ctis ihai South Afrtca is in d~ fuclo conirol of ihe l'erritorv
at the moment, whatever the legal position mightbe, and the plebisciteproposal
merely proceeds from that practical basis. Without South Africa's practical
CO-operation, a plebiscite would be impossible in South West Africa at the
moment, so the proposal is made on that basis and South Africa explicitly
says, in its lctter to the Court of6 February, 1971, page 3 '.
"Acceptance of the proposal by the Court, or support for it by any
State, person or organization, will be entirely without prejudice to the
legal positions adopted by them, or to any contentions or findings that
might later be advanced or made."
' See Correspondence, No. 92, p. 673, infi.168 NAMlBlA (SOUTH WEST AFRICA)
And the lctier procceds IO explain that this p3rticularly wfeguards attitudes or
contcntionsabout theleaaliiv of South Africî's nresenîe in the Terriion. SoII
is an übsolutely ncutralÏand~legiilly correct b3sis upon \\hich the priipos:il is
mdde and set i\,earc nict with this attitude ihai South Africa has no standing
to make it.
Next, questions are asked about the report of the cornmittee of experts.
The Organization of African Unity asks: "To whom would the experts report?
Who would be the judge of their findings?"~. 104, supra). But surely, Mr.
President, the answers are obvious, with respect. The report will be made to
thisCourt. And theCourt will presumably giveother participants an opportuni-
ty for comment, and it will then decide what significance it should attach to
this report on the plebiscite, for theurposes of the Court's opinion in these
proceedings and for no othcr purpose whatsoever.
Next we find that the Organization of African Unity and India express con-
Cernabout the Court's becornine "embroiled" in a no7i~ ~ ~ ~~ ~ ~~which. thev
Say,should resort with the unitid ~ations~(pp. 104and 119,supra). MI. ~res;
dent, this is perhaps the most sardonic touch of all. If the Court is likely to be-
cor nm broiled in a political matter it is because of the nature of this question
which has been put before il-because of the nature and the political back-
ground, which is so well known, pertaining to this case. The plebiscite proposal
does not create a situation of political overtones or implications, it merely
suggests a form of very pertinent evidence for resolving the factual disputes
which have now come before the Court.
The Court will be required to pronounce on the plebiscite only within the
course of ilsjudicial task and in the context of itsjudicial task in these proceed-
ings.
Then, finally, the Organization of African Unity and India pose various
questions about the potential value of the plebiscite. The answers to most of
those questions which they pose have in effect ken given in what 1have said
already. They have in effect even been given earlier, in South Africa's letter in
which the proposal was made to the Court. But the interesting factor is that
the reasons or conclusions advanced by the Organization of African Unity on
the one hand. and bv lndia on the other hand. for rei- -ine the olebiscite ore-
posa1as king of insufficient value, are directl; contradictory. one finds India
saying, on the one hand, that "certain political conditions rnust exist before
the rieht of self-determinationcan be exercised". Thev imolv that such is not
yet t& case in South West Africa, and so India coniend; ihat "it is for the
United Nations to determine the time and method of ascertaining the wishes
of the people. . .".I refer to page 120, supra.
Now, the Organization of African Unity, on the other hand, says directly
the opposite. It says that if things in therritory should be as good as South
Africa claims, then:
"... why do we not agree that Namibia is therefore better qualified for
political independence rightnow, and give it to it?" (p. 104,supra).
The Court will see the obvious contradiction: one says the time is not yet
here: the other says it is overdue. And this lastint. MI. President. is nerhavs
the most callous Contention of al1when related-to théwell-king oftheinhabi-
tants and their self-determination; because it is suggested that the Territory
should now be given an unspecified form of independence-unspecified in
relation to forms of government and so forth-without consultation with the
inhabitants and merely on the basis of a debating point which has emerged
between Iwo participants in the proceedings before the Court. 1 think the ORAL STATEMENT BK MR. DE VILLIERS 169
kindest interpretation of this suggestion isprobably that it isno1seriously made.
So, MI. President, al1this smokescreening, because that is al1that it really
could be called, serves to emphasize rather than to hide the fact that South
Africa's leading accusers have now run into rather serious trouble about these
very accusations of fact that they have ben seeking to present to the world.
They have already demonstrated their aversion to having the factual issues
investigated by the Court. Now they have shown an equal or a stronger aver-
sion to hearing the views and the wishes of the inhabitants of South West
Africa, those people whose cause they profess to champion.
The principle of self-determination which is so useful when they use if as a
weapon for attacking South Africa, now comes to nothing when it.is to be
applied in practice; when an opportunity is being offered for the peoples con-
cerned to be consulted on the shaping of their future destiny, under circum-
stances where the Court will be able, through a committee of independent
experts, to inform itself about the fairness and the adequacy of the procedures
adopted; and when the Court can, and is invited ta, inter into s'discussion
and investigation into appropriate and fair conditions under which a plebiscite
could be held.
So, Mr. President, 10 revert now to the theme which 1 have been developing,
the theme in regard to international organization and international adjudica-
tion: rhis is now the type of cause for which this Court is asked in effect to
betray ils judicial function and to indulge in a legislative rewriting of the
Charter, a course which, in Our respectful submission, can have only the most
dire consequences for international organizdtion ingeneral and for international
adjudication in particular. Yet, Mr. President, if the Court should decline tu
do what is urged upon il, there can hardly be any doubt about the kind of
pillory which is likely to be heaped on the heads of ils Members aaain. as we
si, shockingly erperienccd in 1966: racism. solonialism, bribery, Corruption
and so forth. Those arc somc of the dangers inherent in this \rry ~itudiion;
and it\ras because of this kind of dilemma that WC,in our nritten preientation.
contended that this Court should. as a matter of discretion or~ ~ ~ ~~l .~o~ ~~ 7
priety, dccline to cniertain the rcqucst for an adi9isoryopinion ewn if itrhould
consider ihat II has jurisd~ctton. Our conccrn was no1 so niuch, Mr. President,
the potential reaciion of individual judgcs 10 prcssurc as the poteniial impli-
cation5 for the future of this Court. pdrt~culxrlythe good name and reputîtion
of the Court and the csteem in which itis ~ubliclv hcld. and thus for the cause
of international adjudication as such. ~hetourt has ruled against Our conten-
tion and 1do not want ta say anything-more about il, except that we sincerely
hope that this may lead to a better end-result in the context of the international
order.
We believe, indeed, that it could do so. The best way in the long run could
well be the hardest way for the immediate future. That would be a wav of firm
rcjcction. on their merits, of edch and every one of the revolutionary and
essentially non-judicial prop(iitions ivhich have ken urged upon the Court
under thc guise of legal interprctation. Ii uould. in particular. in\.olve reieciion
of al1 notions that the orgins of the United ~ations are now clothed with
extensive socalled "implie; powers" to bind non-consenting member States,
where such powers cannot be shown to have been either contemplated by the
authors of the Charter, or subsequently created by regular procesies of amend-
ment. Furthermore, Mr. President, if would involve an insistence on the essen-
tially judicial functions of this Court and on ils refusal to indulge in judicial
legislalion.
As 1have mentioned, the taking of this line would necessarily mean an overallresult which would be favourable to South Africa; and for that reason there
would no doubt bean outcry. The more responsible members of the inter-
national community would have to stand firm aeainst such an outcni. But
nevcrtheler? one kno~s, and one ssy, this with tkrm apprwilttion, that the
conxqucnces for indi\,iduliljudgcs could be very unpleasant.
However, MI. President. it seems to us. with resoect. that such a firm adher-
ence to basic values and disciplines must in the long r;n make their mark, not
the least amongst those who may temporarily be disappoin~~d as a result of
being kept in check by those disciplines.
In municipal legal systems, experience has shown that it is exactly by the
fearless and impartial administration of justice, regardless of the popularity or
the unoooularity of its verdicts. that a court of law wins the confidence and
respeciof the p"blic which it serves. And so it must be too, in the international
sphere. And the wimer will not be South Africa, but mankind.
ïhat great Roman, Cicero, in an oration on the Roman Law delivered more
than 2,000 years ago, posed the question rhetorically: "What sort of thing is
the Civil Law?'And he proceeded to answer his question thus: "It is of a sort
that cannot be bent by influence, or broken by power, or spoilt by money."
Such, MI. President, is the heritage, one of the proudest of mankind, which it
is this Court's duty and privilege to preserve and to enhance.
Unless we hear otherwise from you, we shall be prepared to continue our
oral presentation on Fnday.
TheCourr rose at 12.40 p.m SEVENTH PUBLIC SITTING (19 II 71, 10 am.)
Presenr: [See Sitting of 8 II 71.1
ORAL STATEMENT BY MR. VIALL
REPRESENTATIVE OF THE QOVERNMENT Of SOUIH AFRICA
Mr. VIALL: Mr. President, Members of the Court, 1 wish to deal at the
outset today with the order of presentation of Our suhmissions on the various
Icgalqucslions upon trhich u,esh;~llsiari spcaking. WCfccl ihai iimay be usclul
to the Couri 10 indicaie in advancc the approhimatc schcmc or order in which
we propose 10 deal with these legal questions.
1 say "approximate" because factors not foreseen at the moment may laler
make il necessary or desirable for us to modify or deviate from what we now
have in mind, and we wish, Mr. President, to remain free to do so, though we
shall naturally apprisethe Court of any substantial deviations,
With this resewation, 1 will broadly explain the scheme we have in mind.
Now that the hearings have started and proceeded up to this stage on a basis
of non-sevaration of the vreliminarv.au.stions from those nertai~-~ ~ ~ ~ ~~~ - ~ u
merits, wedo not, in our own presentation, intend to maintain such a separalion
fully as we did in our written statement. This decision. MI. President. is due
10various factors which include the following:
Firstly, the Court has already decided on some of the preliminary matters;
secondly, some of the remaining matters are, in their nature, preliminary
only, that is 10 say, they bear only on questions of the Court's jurisdictiotl or
the propriety of exercising that jurisdiction, whereas others again bear in
addition uoon imoortant aspects of the merits: and thirdlv. an imo..tant
ad\,iiniage of noi mainia~n~ng ü rigid separïtion is thai al1the various questions
concerning the rclcv~nt resolutii~ns of the Security Council can he broughi
together for purooses of oresentalion.
?onsequcnrly lhe rhemc ivepropose io adopi rails ii;iiurallg inlu ihree p3r[s,
namcly first of all. certain prcliininïry questions and bïsic principles; secondly,
al1 auestions, orelimina~ or othenvise. concemine the validitv and effect of
the ielevant resolutions of the ~ecurit; Council; Gd thirdly, iegal questions
pertaining 10 the validity and effect of the relevant General Assembly resolu-
tions and more particularly resolution 2145 (XXI).
With that, Mr. President, 1 am now in a position 10 give a more detailed
subdivision of these three parts:
Part 1: Certain Preliminory QuesrionsatrdBasic Principles
Under this head we intend dealing with the following:
Firstly, the scope of the question submitted to the Court;
secondly, the contention that that question bears on an actual dispute
between South Africa and other States, and the effect thereof, and here, Mr.
President, 1 would refer the Court to paragraph B.3 (b) of the Brief Statement
of South Africa's contentions. 1 think, Mr. President, that this document has
been circulated informally to Members of the Court. If il has not, of coursewe shall supply copies, but 1would request that it be treated as an annexure
to this part of our Statement ';
then, thirdly under Part 1,we shall deal with the contention that extensive
and unresolved issues of fact underlie the question posed-and the effect of
that. (Here 1refer to paragraphs B.l (b) and 8.3 (c) of the Brief Statement);
fourthly, we deal with certain matters concerning principles of interpretation
and of modification of a treaty by subsequent conduct.
Part II: The Validityand the Effectsand Comequences of the RelevantSecuriry
CouncilResolutions
Broadly, there is a division here between formal validity, intrinsic validity
and effects and consequences. Under formal validity will fall, fistly, the effect
of the abstention from votina of certain oermanent members of the Council:
this concerns, Mr. ~resident,fhe validity of al1four resolutions, that is to say;
resolution 284 (1970), 264 (1969), 269 (1969) and 276 (1970). Here 1 refer to
the Brief Statement, paragraphs B.1 (a) (i) and C.l (b). Secondly, under the
question of formal validity, there is the effect of the non-invitation of South
Africa under Article 32; this likewise concerns the validity of each of the
above resolutions (Brief Statement, paragraphs B.1 (a) (ii) and C.1(c) refer).
Thirdly, there is the effect of the non-abstention of certain members of the
Council under Article 27(3); thisconcems the validity of resolutions 264(1969),
269 (1969) and 276 (1970) (Brief Statement, paragraph C.3 (a)).
Then, under the intrinsic validity of the resolutions, we shall deal with,
firstly, the relationship between General Assembly resolution 2145 and the
relevant Security Council resolutions (Brief Statement, under "The Merits",
Part A), and secondly, under this head, the question of whether, in any event,
resolution 276 (1970) fell substantively within the powers of the Security
Council. The Brief Statement reference there, Mr. President, is paragraph
C.3 (b).
Then, under effects and consequences will fall the questions of whether,
iùstly, if resolution 276 (1970) is valid, are its terms binding or recommenda-
tory? And secondly, what are its consequences? (Brief Statement, C.4.)
Part 111:The Validity and Efecr of GeneralAssemb/yResolutions,particularly
Resolution2145 (Legal Questions)
Here would come the various legal questions listed in the section of the
Brief Statement headed "B. The Purported Termination of the Mandate". The
probable order in which we shall deal with these questions, will be:
Firstly, introductory matters, including the question of whether the General
Assembly could have acted or purported to act as a party to a treaty, or, as
contended by South Africa, purported to act as a supervisory authority. Here
may 1 refer the Court to paragraph (b) (i) of the section of the Brief Statement
iust referred to.
Secondly, the powers of the ~upe~isory organs of the League of Nations,
and the question of whether those powers included one of unilateral termination
or revocation of the Mandate. (Ibid..oara. IbJ (iii).)
Thirdly, whether the ~enerai~sseribl~ if th; United Nations succeeded to
the supervisory powers of the Council of the League. (Ibid.,para. (b) (ii).)
Fourthly, the question of whether, in any event, the General Assembly had
the power to make a decision with binding effect. (Ibid.,para. (a).)
' Seep. 609, infra. ORAL STATEMENTBV MR. WALL
173
Finally, MI. President, after having disposed of the legal questions, we
shall deal with questions conceming the factual basis for General Assembly
resolution 2145(XXI), but weshall advert to this in more detail at a later stage.
THESCOPE OF THE QUESTLO BNEFORE THE COURT
1 shall no\\, turn, Mr. President. io the firsi of Our submissions, that çon-
ccrning ihc scopc of ihe qucsiion bcfore the Court. The question put to the
Court in Security Council rcsoluiion 284 (1970) reads as follows:
"Whai arc the lcgîl consequences for States of ihc continued prcscnce
of South Africa in Namibia, notwithsianding Swuriiy Council resolution
Now, Mr. President, if South Africa's presence in South West Mrica islegal,
one set of wnsequences for States would follow; if, on the other hand, it is
illegal, another and completely different set of consequences would follow.
It is therefore, we submit, logically impossible for the Court to give a proper
answer to the question put to it without first deciding the prior question of
whether South Africa's presence is legalor illegal, and that question can only
be decided by enquiring into and determining the validity or otherwise of the
action taken by organs of the United Nations with a view to terminating the
Mandate for South West Africa. States which contend that--outh Africa's
presence in South West Africa is illegal rely for their contentions basically
General Assembly resolution 2145 (XXD: some, however. rely also. or alter-
natively, on certain resolutinns of the ~ecurity~ouncil and notably resolutions
264 (1969) and 276 (1970).
In order to answer the Council's reauest it is tberefnre necessarv for the
Court firstly to examine the validity of the General Assembly's iurported
revocation of the Mandate and the alleged confirmation of that action by the
Security Council. and then to determine the legal conseauences for States uDon
the ba<s of the answers that it arrives at. ~his,~r. ~reskient, would seem th us
to be logically unanswerable.
Nevertheless. in two of the written statements submitted Io the Court it is
contcndcd thai the question was Iramed bythe Sccurity Council soas to prcvent
the Court sonsidering the vdlidity of General Assembly resolution 2145 (XXi)
-1 am refcrring hcrc IO the wriiten stîtements of thc Government of Lndia
ai 1, pages 830 Io 836. ;ind thc Secretüry-Generiil's writtcn statcment in 1,
pîragraphs 3 to II. pape5 75-77. It iscvcn said. Mr. President, by the Govern-
ment of India. thai the auestion ut to it docs no1entiile ihe Court 10 exoress
an opinion on the comp&tenceofthe Assembly to revoke the an date-tha s
at page 833 of India's written statement.
And now again, in the oral statements of some disiinguished representatives,
we have heard that the scooe of the aue~ti~n must beres~r~~-~d. The distin-
guishcd rcprcseniaiive of the Secretary-Ccnerül stïted ihai he would no1expünd
furiher upon the information contained in his urriiten statcmcnt regarding this
rnatter of the scope of the question-1 would refer the Court here io page 31,
supra. Nevertheless, his attitude-that is, the Secretary-General's-is not
uncquivoc;il, for in rcfcrring lu points relating io prcliminîry questions of
jtiri~dictionand thc \,ïlidity of United Nations action, and decisionspurporting
10 tcrniinîic the hlandatc he wcnr on to stîte:
"Viewed strictly, these points may go beyond the scope of the question
put to the Court. However, they have been raised. Since, in its Advisory174 NAMlBlA (SOUTH WEST AFRICA)
Opinion concerning Certain Expenses of the United Nations. the Court
remarked that it 'must have full liberty to consider al1 relevant data
available to it in formina an ooinion on a auestion oosed to it for an
advisory opinion' (~.~.~.-~epor;s 1962, p. 15i at p. l57), the Court [the
Secretary-Generalgoesonl may wishtoconsider the relevance of the points
just mentioned to the issues before il." (Supra, p. 31.)
In Oursuhmission, Mr. President, as will become apparent, it isnot a question
of whether the Court may wish to go iqto these matters; it has, we contend,
no alternative but to do so.
The distinguished reoresentative of India went even further in his oral
rtatenient th'n did hir <$o%,ernnienitn its rvrittcn statciiirnt for no! only uould
he exclude from the considerïtion of the Court the validity or otheru,ise of
Gençral Assembly rcwlut~on 2145 (XXn. he ui~uld nlso exclude [rom consid-
eration the validiiy of every one of the relevant resolutions adopted by either
the General Assembly or the Security Council, including even resolution 284
of 1970 by which the Council requested the opinion-that appears at page
112.,suo.a. He would thus denv the Court. Mr. President. even the com-
pctenîe Io consider ils oun jurisdiclion, ils vers i.o,npt;ri~,,crdrs1"co!tip<'rr~~cc.
The Coiiri. he snys, "u,ill have Io asrumc the i9altdityof the action taken by the
Security Council and the Cienernl Arsembly on the question of Naniibia, and
thal ruch action was in necordance iviih the Charter".
Ihe distinguished repreientative of Pakirian tou would haie ilic Court
restrictthescooeof the auestion before it. This aooears from oaees 133 Io 136.
supra, where he is reported as stating, amonghother thin&, Lat the court
ought to proceed on the assumption that the world body-here, 1 take il
that he is referring to the United Nations-was competent to terminate the
Mandate and to assume direct responsibility for South West Africa.
It willbe noted, Mr. President. that of the 13 oarticioants who have thus
far made presentations to the Court, either written or oraÏor both, only three-
and here 1 name the Secretary-General, India and Pakistan-ontend for a
limitation of the scope of the question. They base their contentions mainly on
the following: firstly, the language of Security Council resolution 284 (1970)-1
would refer here, Mr. President, to the oral statements of the distinguished
representatives of Pakistan at page 134, supra, and of India at page 112,
supra, of the records-and they place particular reliance on the retention
of the phrase "notwithstanding Security Council resolution 276 (1970)" after
a separate vote upon it in the Council. That appears in the written statement
of the Government of lndia a1 1,page 834.
Secondly, they also base their contentions on proceedings and debates in
the Security Council and in the Ad Hoc Sub-Committee which preceded the
adoption of ~cziirit~C'i>uncilresolution 284. Kefsreniéshere are 10 the \rritien
statcments of India. 1, page; 830-834.and of the Secret3ry-Cenerdl, paragraphs
3-11. 1~.Da.es75-77; and the oral siatenienti of India 31 .aa. 112,.sir~r<i~and
Pakistan at page 134,supra.
Then there are subsidiary arguments, and these relate to an alleged duty of
this Court to CO-operatewith other United Nations organs and appear in the
written statement of India. 1.,oa..s 834-8~-. ~ ~~,he oral statement of the
distinguished representative of Pakistan at page 135, siipra. These arguments
also relate to the right of competent ormns to defineand restrict legal questions
on which thev desire an ooinion. We iav see here. Mr. ~resident. the written
statement of india again, rit 1,pages 834-835.
1 shall proceed to deal with these subjects seriariiii, but first 1 would jus1 ORAL STATEMENT BY MR. VIALL 175
point out that in the present context India and Pakistan also rely on arguments
which apwar to ascribe to the oraans of the United Nations the Dowers of
fuial andbinding adjudication by dëcisions not subject ta review exce& at their
own request. That appears in the written statement of India, 1, page 833, the
oral statement of India at page 112. su.ra..and the oral statement of Pakistan
at page 135, sr<pru.~hcsc.aiguments, 11 seenis iu us, Mr. Prcsident, rcïlly
perrdin tu the Iiicriir, the mcriis rcgdrding the pou,ers of the Gcneral Arscnibly
and the Securiiy Council. and ae iiill ihcrcforc dcal \wih theni laier in that
context.
Now, Mr. President, as regards the language of Security Council resolution
284 of 1970, it is Our submission that the interpretation of the question as
framed nresents no difficultv. no difficultv at ail: there is no akbieuitv or
obscurit; in the language u&d nor in the.applicaiion of the language to the
subject-matter to which ilrelates. By the use of the word "notwithstanding"
the~auestion sueeeststhat there is. or mav be. an antithesis between ~ecur'zv
ouic c rcl olui~n 276 (1970) and South ifr!ca3s continued prcîenLe in ~outi
West Afriw. The wurdincofthe question docî no1of iisclfcxpldin iheaniiihesiî
but that becomes quite E~earupon referring to the content; of resolution 276
(1970). Operative paragraph 2 of the resolution "declares that the continued
presence of the South African authorities in Namibia is illeaal", and the
prîamble, together wiih operaiive paragraph 1, explicitly indicites the basis
for thii declaration, namcly General A>icmbly rc:uluiion 2145 (XXI) of 1966
"by \%hichthe United Nations decided th31 the mand3tc of South \Veît Africa
was tcrniinaicd" and. sccondly. Securiiy Council resolution 264 (1969) "which
recogni7cd the terminaiion of the mand~tc and cïllcd upon the Govcrnmeni
of South Africï irnniediatclv tiwiihdrau 11sadmin~straiion froni the ierriiorv".
These are quotations frok the second and third preambular paragraphs-of
resolution 276.
Consequently. the question as posed indicates in the clearest possible wav
that the basic field ofénquiry rnuit relate al least to the validity and effect if
hoth these resolutions together with Security Council resolution 276 of 1970it-
self. To suggestthat the whole or a part of this basisis to beassumedor accepted
without enquiry by the Court-for example the validity of Assembly resolution
2145-is to import into the question a restrictive qualification which il does
not contain. And there is. in the result, Mr. President. no substance in the
contention bv.India that the ~hrase "notwithstandine - Securitv Council resolu-
lion 276 (1970)" is to be seenas in some way containing or implying some such
restriction. much less as placing the matter beyond doubt. as averred by lndia
in her written statement at 1, page 834.
The relevant records of the Security Council show that in the view of France
the language of the resolution presented by the five Powers sponsering it was
imperfect-t refer here to pages 87 and 88 of Security Council record S/PV.
155Gand indeed we may agree with that for the phrase does no1 carry the
question any further and could, in Our view, jus1 as well have been omitted.
But that. Mr. President. is a verv far ctv from savine that ils retention. after a
separate;ote on il, demhnstrated beyond al1doubt lie intention of the ~ouncil
10restrict the scopeof the question so asto exclude the Court from considering .
the validity of the termination of the Manddte.
Finally there is the contention of India, al page 833, 1, of its written state-
ment, that had the Council's intention been to ask the Court "ta express ils
opinion directly on the competence of the United Nations to revoke the
Mandate of South Africa" it could have asked the Court to do sa. The obvious
answer to that contention is that had the Council not wished the Court to 176 NAMlBlA (SOUTH WEST AFRICA)
express its opinion on that matter it could have asked the Court nor to; it could
have asked the Court to assume the validitv of General Assembly resolution
2145 @XI). Significantly however, it did no;.
Now in view of the absence of obscurity or amhiguity in the question as
finallv formulated bv the Council. it is reallv unnecessarv for the Court in
interpreting the quesiion Io go into lhe recordsof those mcciingsof the Sccurity
Council and the Ad Hoc Sub-Cornmittee which prmded the adopilon of
kcuriiv Council rerolution 284 of 1970. However. it is to a ver, larae extent
upon these records that the Secretary-General, ~ndia and ~aiisti rely in
support of their contentions to which 1 have already referred. And India
and Pakistan also rely upon arguments relating to the Court's advisory
jurisdictinn.
In these circumstances, 1 propose to deal next with the debates of the Sub-
Committee and the Security Council, analysing them also in the light of the
statements submitted to the Court both orally and in writing and, more
particularly, those submitted by govemments which were represented on the
Sub-Committee and on the Council at the relevant times. Thereafter, 1 shall
deal with the matter of the competence of the Court to interpret the question
put to it and the considerations which it is submitted should guide it in this
connection.
MI. President, in the dehates of the Ad Hoc Sub-Committee, Finland, in
sponsoring the proposal Io seek an advisory opinion from the Court, stated
that the proposal-
"... was not intended to cal1into a~.~tio~~~r to subiect to the mline or
opinion of the Court the basic decirions takïn by the ~Sneral ~ssemblGnd
the SecurityCouncil on the termination of ihc mandate, for the termination
was an irrevocable step by which the United Nations had assumed direct
responsibility for the future ofmibia" (S/AC.17/SR.12, p. 3).
However, Finland then qualified this statement in such a way as to make
it virtually meaningless, by going on to state, as reasons for requesting the
opinion, inter alia,the following-and 1quote here from the same document
at page 4. The representative said:
"Thirdly, an advisory opinion from the Court could make it clear once
and for al1that South Africa had forfeited its mandate over South West
Africa by violating the terms of the mandate and by actingcontrary to its
own international obligations, the international status of the Terntory,
international law and the fundamental rights of the inhabitants of the
Temtor,.
~ourthly. by giving the Court anothcr chance to pronounce itself, the
Council ii,ould provide an opportuniiy to dives1the South Africdn autho-
ritics of the cloak of fiilsc lcaalitv assumed aftcr the Court's decision of
1966,which they regarded as arul;ng in their favour."
Now. these statements. Mr. Presi~en~. .~n s~relv,~.lv be construed to mean
that what Finland cnviuged (rom the Court wiisan opinion which uould make
itclcïr that South Africa had/or/eiredirs ri~,/zrto the Mandate over South West
Africa because it had violated its international obligations in connection there-
with, and which would thus expose the so-called "false legality" of South
Africa's position on South West Africa. Since the Court could not possibly
arrive at these conclusions without iirsi going into the question of the-validity
of the iermination of the Mand3te. it is apparent thît the re3sons given by
Finland in the Ad hoc Suh-Commiticc for requcsting the opinion ihrow con- ORAL STATEMENT BY MR. VIALL
177
siderable doubt on her earlier statement that it was not intended to cal1 into
auestion the decision of the General Assembly to terminate the Mandate.
The statenient made in the Sub-~ommittccby Colombia II rcfcr to di>iuiiient
SJAC.I7/SRIZ üt p.5) appears Io favour 3 narrou formulation of the question,
which would exclude consideration bs the Court of the v3liditv of the revoca-
tion of the Mandate. On the other hand, the statements of ranc (ieid., p. 6)
and of the United Kingdom (S/AC.17/SR.17, at p. 5) indicated their support
for a wider formulation which would take that validity into account. None of
t~e~other members of the Sub-Committee. Mr. President. exoressedt,-m--.-es...~~~~-~-~.
on this onehay or the other and they cannot therefore be regarde* as having
committed themselveson theauestion of what they intended to ask of the Court.
Then we come to the debate in the ~ecurity~council which preceded the
adoption of resolution 2&4of 1970.It is of particular significance that Finland,
as sponsor of the draft resolution, firstly, repeated that an advisorv ooinion
from the Coun: "could undcrline the fict that South Africa has forfeited its
manùate" on the grounds mentioned by it in the Sub-Committce. Secondly,
Finland also rc~cdtcd that iiwas ini~ortant "tocxDose ihc falsefront ofleaal-.v"
prcscntedtuthc world by South ~fr.ica (S I>V.ISS~,p. 18).but, ai the samelime,
rhirdly. did nurrrpeat her earlier statemcnr that il uas not intcndcd IO sall inio
question the termination of the Mandate.
We can, of course, only conjecture what the reasons were for Finland's
silence on this specific issue, but since the issuewas by then a central one, and
one which was oertinentlr raised by certain States durina the debate. it isnot
unreasonüblc. s;rely, to issume thar alter reilection and-private consultat,ons
iimong the members of the Sub-Committec and Iïtcr of the Security Council,
Finland had come to acceot that the leral conseauencesfor ~tates~couldnot
propcrly be deicrmined uiiho~it considerTngthe viiiidity of the Gencral Arsem-
hly's purporteci revocation of the Mandate, and that the redsonswhich shc ïd-
vanced in favour of requesting an opinion were irreconcilable with her earlier
statement in the Sub-Cornmittee that the termination of the Mandate should
not be called into question.
This inference is reinforced. Mr. President. in our contention bevond any
doubt, u,hen regard is had to Finland's presentations ta the couri in these
proceedings. Firstly, there is the written stitemcnt uhich Finland submiticd
to the Court. In it,shestiited that although the question to the Court is briefly
u,orded "its scope is rather exien~ive" (uritten stiitemcnts, 1, p. 370). She also
stated chat theobscrvations made by herselfand by a numbcr ofothersountries
in the Sccuritv Council and the Ad Iloc Suh-Committec "give considerable,
althouph perhdps no1 conclusive guidance in this rcspcct". Thiit quoiaiion is
also to befound at 1,page 370.And althuugh shestatcs that, "having takcn the
initiative leading to this requesr" Corthe opinion shc "ihcrcfore deems itappro-
priate to cxplïin in greaterdetailtheeçsence of the question on which the Court
is rcqucstcd to pronounce itself" (ihid.,, ihc nevertheles ccarcfully refrains in
her explanation from stating that the Court should not examine the question
of the validity of the termination of the Mandate. On the contrary, she states
that-and this isstillat 1,page370:
". .. the Court's Opinion should make it clear that South Africa lost its
Mandate over South West Africa precisely because it acted contrary to
its aforementioned international obligations, thereby violating the legal
status of the Territory".
No longer, Mr. President, does she aver unambiguously, as she did in the
Sub-Committee, or even in passing, as she did in the Security Council, thatthe decision of the General Assembly to terminale the Mandate was an "irre-
vocable step". Instead, she says that that decision, and 1 quote again from 1,
page 370, "bas been described as final and irrevocable by the overwhelming
majority of United Nations member States". It "has kn described as final
and irrevocable".
Finally, perhaps the most conclusive indications arise from Finland's oral
statement before this Court. At no time during that statement did the dis-
tinguished representative of Finland even suggestthat the scopeof the question
shouldberestricted.
Indeed, on the contrary, il is more than apparent from his statement that he
re~arded the ouestion of the validitv of the relevant General Assemblv and , ~ ~-
~Gurity ~ouncil rewlutions as of vit31importance to the determination oi the
auesiion put to the Court. He treats thece mattcrs st lençth, and 1u,ould rcfer
t~ ~ ~ ~t here to naees 65 to 70. 78 to 84. suora. He~reeards the auestion
. -~ . . - .
of the legal effect of Security Council resolution 276 as "the main question put
to the Court", thus clearly implying that there are other and anteccdent
o~.stions which cal1for examination.
He argues al length, at pages82 1084, supraof the record, in an attempt to
show that the General Assemhly didhave the power to terminale the Mandate.
and at pages 76 ta 77, supra, and the following pages, he addresses himself
specifically ta the question "whether the Ceneral Assembly had sufficient
reason, on a basis of fact, ta terminate the Mandatew-thereby acknowledging
that South Africa disn-7~s ~he noint.
Finally. ai the end of his s;aiemznt he siated what he called in French hic
conclusiu>isat p. 87, .sitpro),the word in French for foml submissions. Theu.
included. inier ulio. ihït "Sciuritv Cuuncil rcsolution 276 11970) is furmallv
andintrinsically vaiid'ind that "&solution 2145 (~~l)ofthe'Cen&al~ssemb~
of the UnitedNations. .. isvalid.
In other words~~.e ~as~ ~s formallv a,~~an be done in advisorv oroceedines.
on~behalfof~inland askedthe Court io pronounce upon the pro6o;itions.
AI1 this,11 1ssubmitted, uholly refutes the assertion of the Secrctars-General
in paragraph 5of his written statëment that:
"The sponsor of the proposal ... made it clear from the outset that the
termination of the Mandate and the assumption by the General Assembly
of direct responsibility for the territory was not beingcalled into question.
For this had beenas'irrevocable step' ..." (written statements, 1,p. 75).
Most of the States reoresented on the Securitv Council did not during the
debaies in the Cuuncil. ;xpre,s themsclveson théscope of the quesiion fit to
thc Court. Oithosc that did. Nepal and, somc\vh~t more ÿmhiguously, Syria,
Zambia and Burundi indicaird their vieiv that the Court should not cx~niinc
the validity of the General Assembly's revocation of the Mandate, and that is ta
be found 31 Security Council rciurd S/PV. 1550,pp. 37. 47, 53.and 71 respcc-
tively. On the other hînd, France and the Untted Kinçdoni (ibi'l. pp.87, 89-90.
91, respectively) expressed the ionirxry vieu.. Thiis again, as in the casc of thc
Sub-Committee, a majorits oi the memberj of the Cuuniil, IO he exact eighr.
apart from Finland, Gere apparently uncommitted in regard ta this matter of
the scopeof the question.
However, as has already heen indicated, in two of the written statements
submitted to the Court it was sunees--d that al1 the memhers of the Securitv
Council, excepting France. sharrd an undcrjt;tnding th~ the Court ~as heing
asked to limit the ssopeof the question put IO itso as ta exclude consideration
of the validity of rcsoluiion 2145 (XXl), and thdi the intention of the Security ORAL STATEMENT BK Ma. VIALL 179
Council Io thus restrict the question was clear and beyond douht (written
statement of the Secretarv-General. 1. nara. 10. n. 77. and of India at 1.... 833).
Il is submitted, Mr. l>;esident, thal'thcsc p;6posi;ions are untenitblc. /\ps;t
from the rtatcmcnts of Nep~l, Syri'i, Zamhi3 and nurundi on the une hand, and
Franceandthe United ~inedom onthe other hand. there is nothine. nothine at
all, in the relevant debatek the Security ~ounciito show that the remainyng
nine members of the Council shared any understanding that the Court was
heing askedto restrict the scopeof the question put to it.Ëight were completely
silent on the point, and the statements of Finland would seem to indicate the
contrary, as 1havejust shown.
Nor. it is submitted. can anv such understandine be deduced from the mere
Pdrt th21sewn ofthese;emÿining nine memkrsvot;d in favourofthe rcsolution
requestinp the ,>pinion and the other tuo absiained from \,oting. Belore them,
.Mr. Prcsidcnt, rhey hitd tu.0 poinirof vieu,: one, that the Council u,asnot being
askcd Io pronouncc un the vdlidity of the tcrniination of ihc Manddte. and the
otlicr, th~t eveti "rhc inipcrfr'ct Iitnguitgc" of the request to the Court made it
~ossihle for the Court "io clarifv &e leeal nositionas reeards the leealitv of
ihe revocation" of the ~andatë-that ap&ars in the statement offrance,
S/PV. 1550 at page 87. The scope of the question was thus an open one. It is
submitted thatit is. in such circumstances. imnossihle to attributeto a member
of the Council concerned, an intention to request the Court to limit the scope
of the question because itvoted in favour ofrequesting the Courtfor anopinion.
or abstained from voting.
That such was in fact no1the intention of at least someof the members of the
Council which so voted or abstained is, moreover, borne out by the written
statements now submitted by them to the Court. Thus, the United States,
which voted forresolution 284(1970):
". .. helieves that, apart from some preliminary and incidental questions,
the following legal issues need to be discussed in connection with this
request :
(1) Whether the rights and authority of South Africa with respect to
Namibia (South West Africa) were validly terminated hy United
Nations action.
(2) Whether South Africa is in illegal occupation of Namibia." (Written
statements, 1,p. 843.)
The position of Finland, which voted for the resolution, 1 have already
adverted Io, and that position also puts forward this natural interpretation of
the question put to the Court.
It will he seen therefore that no reliance can be placed on the proposition
that an affirmative vote indicated an understanding that the Court is king
askedtolimit the scopeof the question put toit.
It is submitted then that the records of the discussions of the Ad Hoc Sub-
Committee and of the Security Council, which preceded the adoption of re-
solution 284. b. n, means indicate an int~n~ ~ ~~~~the oart of the Council to
rr',trici the scopc of the quesiion put to the Court so as to excludc ihc basic
qucstion of the \,alidiis of the Ciencral Asscmbly's termination of the Mandate
in its resolutio~ ~145 (~XI). ,.~nd tha~ ~ ~~~-~ ~ ~~ons~ar- in~e~d to the contrarv.
In the circumstances, Mr. President, there is really no problem of interpreta-
lion. In view. however, of someof the other arguments which havebeenraised.
it is pertinent to refer to certain aspects of the Court's functions and powers
vis-à-vis the requestfor an advisory opinion.
There can of course be no doubt that the Court is competent to interpret the180 NAMIBIA (SOUTH WEST AFRICA)
request for the advisory opinion now before it. This 1think, Mr. President, is
generally admitted. 1would only refer here to the oral statement of the distin-
guished representative of Pakistan at page 133,supra.
As Rosenne states in his work The Law and Pructice of the Internutional
Coirrt, at page 701:
"lt is not a matter for discussion, king inherent in the quality of the
Court as a judicial organ, that it has the power to interpret any request
for [an] advisory opinion. This has ken applied by the Court both to
establish the object for which the question was put, and to establish an
interpretation of thequestion itself."
Now in the oresent case, the obiect of reauestinr! an advisorv o~inion is
clcar. It !vasstaicd by the Security ciuncil in the preakhle to its rc~ol;tion 284
(1970)to bcthar such an opinion:
"... would be useful for the Security Council in its further consideration
of the question ofNamibia and in furtherance of the objectives the Council
isseeking".
India,inher written statement, at1,pages 833 to 834, gives this object as one
of the reasons why the question, as formulated by the Council, "does not
entitle the Court to express an opinion on the competence of the General
Assembly to terminate the Mandate". The Court, say both lndia and Pakistan
in effect. must co-ooerate with other organs of the United Nations in order
that theobjecti!,es ofthe latter mîy becfTe~iivelyimplemented.
That may be so. Mr. Prcsident. but surclyitcîn hardly bc seriously suggcsted
that the Court mus1lend iiselfto the imolementaiion of thosc obieciivcs .v a.v
means whatsoever.
The Court, after all, is a judicial body. It is indeed the principal judicial
oraan of the United Nations. as Article 92 of the Charter states. As such. it is
boÜnd IO îct in a judicial way, that i10 wy, in accordance u,ith its judicial
function. Ifitfails Io do thaitwould kcorne mercly another political organ-
a oolitical orcan of the United Nations-and indeed there would be no reason
for its existence. And, as the Court said in the Norther,~ Comeroons case
(I.C.J. Reports 1963,at p. 30):
"The Court may, of course, give advisory opinions-not at the request
of a State but at the request of a dulv authorized orean or anencv of the
Unlied Narrons. Rut &th the Permanent Court of Ïnternat~naf~usi#ce
and this Court have emphasi7cd the hct thît thc Court's authority to give
advisory opinions must be exercised as a judicial function. Both Courts
have had occasion to make pronouncements concerning requests for
advisory opinions, which are equally applicable to the proper role of the
Court in disoosing of contested cases. in both situations the Court is
excrcising a judiciÛl function. That funcrion is cirsumscribed by inherent
limitations u,hich arc nonc the less imperativc because they mas he
difficult to catalogue, and may not freauentlv..rese.t themselves as a
conclusive bar to adjudication in a co'ncrcic case. Ne\,erthelesr, it is
alivays a mattcr for the dcterniination of the Court uhciher 11sjudicisi
functionsareinvolved.ThisCou rer, liekeCthurt of Internation-
al Juuicc, hüs aIi\sys been guided b) the principlc uhich the latter rratzd
in the case concerning the Slulus of Eu,rer,t Curt,liuon 23 July 1923:
'The Court, king a Court of Justice, cannot even in giving advisory
opinions, depart from the essential rules guiding their activity as a
Court. (P.C.I.J., Series B, No. 5, p. "9.)' ORAL STATEMENT BY MR. VMLL 181
1referthe Court also inthisconnection, MI. President, to the CertainExpenses
case (I.C.J. Reports 1962, p. 155); The Admit~istrativeTribunalof the I.L.O.
case (I.C.J. Reports 1956, p. 84); and the Maritime Safety Commillee case
(I.C.J. Reports 1960, p. 153).1refer also to an article by Sir Gerald Fitmaurice,
being one of a series by the learned author, entitled "The Law and Procedure of
the International Court of Justice", in 29British YearBookof InternationalLaw
(1952),at page 53. .
The extract that 1 have just quoted, MI. President, shows that the Court
must exercisea iudicial function. How must it do that?
In the first piace, as the Court itself has more than once said, as a judicial
body it is "bound, in the exercise of its advisory function, to remain faithful to
the requirements of itsjudicial character". 1refer here, again. to those cases and
authoritv that 1have iustcited at the same~~ ~ x ~-
Now in order to exerciseproperly itsjudicial function, the Court must natu-
rally be faithful to its task of applying the law and not making it (jus dicere
~. ~ -
sed~nondare) and, within that discipline, it must surely be masÏer of its own
reasoning and free ta take into account al1 the relevant legal aspects of any
question before it. As Ibrahim Shihata states in his work The Powers of the
InternationalCourt Io Determine ils Own Jurisdiction,at page 236, the Inter-
national Court has nat surrendered in the advisory field the judicial freedom
which it enjoys as a court of justice.
~hererore, in thr light of th& considerïtions, itissurely to k presurnîd thai
the Sccurity Council. another organ of the United Nations, in requesting the
International Court of Jucticr for a Icral opinion in ordcr tu further certain of
its objectives, was not seeking ta fetter the-court in the exercise of its judicial
function by asking it to ignore legal considerations which in logic are vital and
fundamental to the proper determination of the question being put to it. If
that were the intention of the Council, MI. President, if will in effectbe asking
the Court to depart radically from its judicial function, in fact to prejudge, in
favour of a majority of the Council, what is clearly the fundamental legal issue
in disoute.
It is no doubt trueas India contends, that thecompetent organs of the United
Nations need not submit al1 their decisions for judicial review. and that the
Court is not a court of appeal or review against decisions of these organs. But,
Mr. President, once such an organ does submit a question to the Court, it
cannot simply separate the inter-dependent legal issues involved to suit itself
because while it wants iudicial confirmati~ ~ ~ ~ ~ certain leeal si-uation~ ~ ~ ~.
it must at the sarne tike accept the risk that the Court's viewswillnot coincidé
with its own. It cannot exclude that part of the question to which it thinks the
risk is attached: that would make a mockem. MI. President. of the Court's
judicial role and, furthermore, while the Gcurity Council can, of course,
prescribe the broad limits of the question which it decides to put to the Court,
that is a verv different matter from attemo~~n7~to-interfere with the nowerTo~ the
Court, as rnaster of ils min reïsoning, to take into acci)unt iill the legal issues
rele\.ant Io the proper determination of thî question before il.Thesc tiio son-
cepts should bc clearly disringuished. In lirnitinga question on whichthey desire
advice, organs of the United Nations may plcase themselves. So, by u,ay of
erarnple, ita~iuldbeconipctent for the Security Councilnierel) to ask a question
such as this: having narticular reeard to ~ractices since the inceotion of the
United Nations, w&id the abstenfion from voting of one or more permanent
members of the Security Council invalidate that resolution? It could ask it if
that would be so (a) in any circumstances, or (6) in some particular circum-
stances, and if in some particular circumstances, what would those circum-182 NAMlBlA (SOUTH WEST AFRICA)
stances be. That, Mr. President, would obviously have been a much more limited
question than the one now before the Court. But what is not permissible for
ore-ns of the United Nations is to interfere with or fetter the court in ~ ~ ~ter-
mining the area and the scope of considerations which the Court may consider
relevant in answeringthe question decided upon by those organs.
As Judge Bustamante stated in his dissenting opinion in the Certain E.xpei~ses
case (I.C.J. Reports 1962,p. 288):
"But 1think that the General Assembly's power to determine the limits
of the auestions uoon which it asks an o~inion is not incomoatible with
the power of the Court ai mastcr of ils ou,n rciisoning. IO iake intoconsid-
crdtion al1the clcnicnts of apprdiscment which IIthinks useful or nccessary
in order to arrive at a definition of its standooint on the auestion on which
an opinion isasked . .."
Then 1 ski^ a oassaxe and the auotation eoes on "Anv limitation whatever on ~ ~
this point L,ould ni; countcr IO the prinGple of judic.ia1independence". That
is the end of the quotai~on, and I uould just add this quotation from Carstcn
Smith. "The I<clation Hctucen Proccc~linrs and Premiscs". an ürriclc uhich
appe&ed in 32Nordisk Tidsskrgt/or ~nfernationol et(1962).Page 5at page 1 13:
"With regard to the legal reasoning in an advisory opinion it must be a
consequence of the purpose of these opinions [he was there, Mr. President,
referring to advisory opinions] that the Court enjoys full freedom to
consider the various legal aspects of the presented question .. ."
In the present case, it is submitted that the proper exercise of its judicial
function demands that it is for this Court itself to determine not only the
properlimits of the question put to it but also which are the legalconsiderations
that it mus1 take into account in arriving at its answer to the question.
In the Certain Expenses case (I.C.J. Reports 1962,p. 157),the Court stated:
"The reiection of the French amendment does not constitute a directive
to ihc CO& to exclude from its considcr~iion the question u hciher ccriïin
expenditurcs ucre 'dectded on in conformii) uith the Chmer'. ifthe Court
finds sucb consideration aoorooriate. It is not to be assumed that the
General Assembly would th"s seek to fetter or hamper the Court in the
discharge of its judicial functions; the Court must have full liberty to
consider al1 relevant data available to it in forming an opinion on a
question posed to it for an advisory opinion."
In the light of al1these considerations, Mr. President, it is submitted that in
giving its opinion on the question now before it, the Court is bound to enquire
into and pronounce upon the validity of the General Assembly's purported
termination of the Mandate for South West Africa.
It has kn shown e.~/<icirthe question itsclr. as uell as rroni the record of ihe
AdllocSub-Committeeand thcSecurity C'ouncil,rçad inconjuncti~in\\:th sonic
of the written and oral statements oresented to the Court. that that is in fact
what the Court is being asked to do; It has been shown that both as a matter of
principle and in accordance with its past practice, the Court is comperenrto do
so. And finally, it is submitted thatit is bound to do so because, from what 1
havealready said, it is apparent that if it did not do so, it would beacting coni-
pletely contrary to the proper exercise of its judicial function and the rules
which must nuide its activities as a Court.
The essential links between the relevant Security Council resolutions and
the decision of the General Assembly to terminate the Mandate appear clearly ORAL STATEMENT BY MR. WALL 183
from the wording of the Council resolutions and are not really in issue between
the participants in these proceedings, Mr. President.
It follows that were the Court to exclude from its consideration the question
of the validit. ~ ~that deci~ ~ ~ ~d of the Securitv Council's resol~-~~ns~ ~ ~ow-
ing upon it and to consider only the legal consequences for States, it would be
~roceedinn upon a legal assumption which is contested by South Africa, the
Country &OS; concerned, and certain other States as welll That, in fact, as 1
have already pointed out, is exactly what the Court has ken urged to do by
india, Pakistan and the Secretary-General of the United Nations.
An oni?i~ ~oredicated unon such an assumotion. Mr. President. an assumD-
lion u,hich rel;ies Io u,hüt is erscntially the miin qucitiun i"dispu'tc. uould bc
futile and nieaningless Il uuuld lx an abiise of the Couri'sjiidicial funciion 2nd
a travesty of justice.
As the then President of the Permanent Court, Judge Anzilotti, said in the
Free City of Dunzig case:
"As the hvoothesis assumed bv the reouest relates to a noint of law. the
~ourtcann$acce~t it without first ascer.tainingwhether is sound O; not
... To my mind it is equally inadmissible for the Court to comply with
a request based on a hypothesis which is legally unsound" (P.C.I.J., Series
B, No. 18, at pp. 19 and 20).
And here 1 would also refer the Court to the individual opinion of the same
judge in the CitsromsRégimeberweenGermanyand Austriacase (P.C.I.J., Series
AIB, No. 41, at p. 68). And we may ask, Mr. President, would it not be ridicu-
lous if, say, in a municipal court of law "A" were to corne to court saying
that "B" had no title to occupy a certain house or a certain piece of property and
although "B" contested "A's" claim, the court, in agreeing to a request by "A"
and in adjudicating upon the matter, should assumethe matter of title, should
assume that "B's" title to occupy the house or the property was invalid, and
merely pronounce itself upon the consequences of the invalid occupation.
That, as 1say Mr. President, would be quite ridiculous, the court would not
be fulfillingany judicial function, it would not be fulfilling its proper function of
adjudication, it would be assuming the law and pronouncing something upon
that assumotion.
To sumkarize therefore, Mr. President: if the SecurityCouncil had in truth
intended the Court to assume, without investigation, the validitv of the action
taken in organs of the United Nations with a vlew to terminating the Mandate,
that would have amounted to an improper and impermissible attempt to
harness the Court in the fulfilment of its judicial function. in that event the
Court woul-~ ~~ ~ ~en faced with a choice between two alternatives. namelv
first, to ignore the attempt to fetter it and therefore to give the~opinion on thé
basis of al1 the considerations which it considers to be legally relevant; or,
secondly, to decline to give the opinion altogether.
In Our submission, however, Mr. President, this situation does not arise, for
on a proper interpretation of the requect there isnothing tojustify the contention
that the Security Council itself, as distinct from a few of ils members, intended
to impose such a fetter upon the Court.
In conclusion. Mr. President. we mav ask: whv this reluctance on the part of
ccrtain States and orginizations to go inio the fiindanicnral question of rhe
viilidiiy<if General Asscmbly resolurion 2145 (XXI) and the rcsolution~ bîsed
won II'Can IIbe perhiips thai ihc Statcs and orgiinizations conccrncd realize
that the purported iermination of the Mandate and the assumption of control
and administration of South West Africa by the General Assembly and thewnseouent resolutions of the Securitv Council have no basis in the law of the
charter or in international law in general? 1s it perhaps that they fear the
consequencaofajudicial investigation into these matters or, if not the conse-
quencës, the broader implications thereof? We need not attempt to answer
these questions, Mr. President, we merely put them. ORAL STATEMENTBY MR. GROSSKOPF
REPRESENTATIVE OF THE WVERNMENT OP SOUTH AFRICA
Mr. GROSSKOPF: Mr. Preiident and Meitikrs of the Court, as my learned
colleiigue, Mr. Viall, indicaied in his iniroduction this morning, the next topic
to be di~~ussed is the auestion of the Court's discretion to-arant or to decline a
request for an advisory opinion.
In pîragrîph 1 of Chapier IV of Our uritten staternent ne pointcd out ihat
Article65 of the Statute of the Court confers on the Court a discretion u,hethcr
or no1 accede to a competent request for an advisory opinion and that the
Court itself has stated. on a number of occasions, that even in cases where il is
leg~ll)entitledIO do sa it isnot obliged ta givean opinion. This does not appear
to be disputed. In that çhapter ue ndvanced three groundi why, in Oursubniis-
sion, the Couri should in the present case. in the erercise of its discretion. refuse
tu accede IO the request of the SecurityCouncil. These grounds n,ere, firsrly, ihe
political background of the question and the involvement of the Court therein;
xcondly. the existence of a disoute ktueen South Africii and other States;and
thirdly,-lhe fact that the question before the court can only be answered by
deciding, interaliae ,xtensive disputed factual issues. The Court has already
decided that it willnot declineta give an opinion by reason of the first ground,
which 1 have jus1 mentioned, and 1consequently do not propose ta deal with
that.
1 would merely Say ihaf Our failure to deal with this topic must no1 be con-
strued as aereement with the exoressions of ooinion thereon by such of the Dar-
ticipants n%o have, despite the'~ourt's prior.ruling, discussed 11.
As regards the second ground. thdt is the question ofs dispute, ue demon-
siraied. 1submit. in oaraeraohs 34 Io 43 of Chanter TV of our wrilten stîtement
that thire in fact dies exista dispute between'south Africa and a number of
other States relative to issues which, in Our submission, will have to be deter-
mined bv the Court in these oroceedin~s.
In hi< oral îddress to thé Court, Ïhr distinguished representative of the
Secretary-Gencral, uhen dealing n,ith the ground undcr consideraiion, siaied
that he hoped to prove in a different context later in his statement that the
present proceedings do not relate to an existing dispute between South Africa
and other States (p.33, supra). He adverted ta this topic again when consider-
ine the auestion of the aoolicabilitv of Article 32 of the CharterIn that context
he-said ihat when the reievant resolution\ of the Security Council nere adopted
there did not cxist iidisDule betu,een South Africa and other States witlun the
meanine of that article of the Charter. The reason which he assimed for this
contentTon was that neith& the Security Council nor membeFStates who
brought the question of South West Africa before the Security Council had re-
ferred 10the auestion asadiso.te. .ut that. on the contraw. it was dealt withand
treated as a Situation. 1do not propose toge into this arbment. It will be dealt
with in due course by my colleague, Professor Wiechers. For present purposes
it suffice10 ooint out that even if the Security Council were legally em~owered
Io deodc whethcr a particulor question rrlaÏed to a siruationor a diGute for
the purposes of Article 32 of the Charter, its decision can ohviously no1 bind
this Court in considerinc n heiher itshould or should no1exercise ilsdiscretion.
In other words, eve; if the representative of the Secretary-General were 186 NAMIBIA (SOUTH WEST AFRICA)
correct in his contention that the Security Council having once decided that it
was a situation that decision could not be disouted bv anvbodv. that contention
would obviously have no bearing on the di'scretionof ihe court nevertheless
to decline to give an opinion because it relates ta an existing dispute. The Court
would clearly have to consider the matter for itself.
The Coitrt adjournedfron~11.20 a.rn. Io 11.40 ~.I,I.
Beforethe break Icontended that the Court must necessarily have power to
determine for itself whether there exists a dispute and whether the existence of
any such dispute should lead the Court to decline ta give an opinion. In para-
graph 37 of Chapter IV of our written statement, we noted that in its 1962
Judgment in the contentious South West Africa proceedings, this Court had
found that a dispute existed between South Africa and the then Applicants,
Ethiopia and Liberia, and that it was a dispute within the meaning of Article 7,
paragraph 2, of the Mandate for South West Africa.
We oointed out that the Court had held that the number of oarties on one
side or.rhe oiher of a diipuie is of no iniporiance iind thai a dikpute could be
grneraieci wiihin the framework of the ora.ms of ille United Nations dnd iheir
ooeration. We also showed that the disoute which then. accordine to the Court.
eiijicd, riill rxirt; aihÿt furrher di~iuies Merégener3ted in subwqucnt devel:
opmeni,. Thex aspects havc. huwever. alre3Jy ken dealt wiih in conneciion
with Our argunieni for ihc appoiniment of an udhuc judge anci I sonsequenily
do no1 wani IO elaboraie on ihem any furiher. 1 mly jus1add that my ci)lleïgue,
Profersor Wiechcrs. \\,il1dlboïdvert hricfl) to ihis niaiier ivhen he discussci the
a.~.ication of Article 32 of the Charter.
t\s regards the question uherher, if ihcre is a dispute as ae coniend there IS,
the Court should accede io the requejt fur an adviwiry opinion. tic relieJ pri-
marilv on the decision of the Permanent Court in the ~asrernCardia case to
which my learned friend, Mr. Viall, alsoreferredthismorning. Wealso referred
to the passage in the Opinion of the Court in the PeaceTreaties case, in which
the view was expressed that:
". ..no State . ..can prevent the giving of an Advisory Opinion which the
United Nations considers to be desirable in order ta obtain enlightenment
as to the course of conduct it should take". (I.C.J. Reports1950, p. 71.)
However, as we noted, the Court did not, in the Peace Treaties case, express
any disagreement with the decision in the EasternCarelia case, but said that:
".. .the circumstances of the present case are profoundly different from
those which [existed in the former case when the Permanent Court1
declined to give an opinion because it found that the question put toit wa;
directly related to the main point of a dispute actually pending between
two States.. .".
In the Peace Treaties case, the Court found that the request for an opinion did
not touch the merits of the dispute between the States concerned, and it conse-
quently acceded to the request.
In other words, Mr. President, it was not that the Peoce Treaties case had
overruled the principle of theEasternCarelia case; it had merely found that the
circumstances were different and it consequently distinguished the opinion
which had ken given by the Permanent Court in the EasternCarelia case. ORAL STATEMENT BY MR. GROSSKOPF 187
It was on the strength of thesecasesthat we submitted that the jurisprudence
of the Court seemsto support the proposition that the Court should not accede
to a request ifthe question relates directly to a main Point of a disoute between
States,3nd, as 1have already said, we submttted thaithat is the sliuation in the
prcscntcasc. Non in rcply tuour contcntions, the rcprescntaiive of the Sccretary-
General submitted that after the Permanent Court was reauested to eive an
advisory opinion in the Eastern Carelia case, the law and Gactice concerning
the giving of advisory opinions on legal questions pending between two or more
States underwent a certain modificationand develooment. That is at oaee 33.
.- .
1tpro. I-tc rcferred to the barious changes which ha* been hrought ihoui in ihe
Statute and Kulcs of Court and wid that these changes rendcrcd the Eastern
Carelia case no longer of the same weiaht and force as nreviouslv. The first
point that he rnade;vïi thxi the ~ertiid&nt C~urt n,asnAt organifdlly linked
<i,iihthe Leaguc, and thar the preient Court is the principal judici:il org;in of the
Uiiited Natiuns. That. he said. ni3de a subrrantial difirence tcithe nosilion~ ~
inasmuch asit related the preseht Court to the activities of the United Nations.
And, he continued, on that basis, this Court has on several occasions taken a
stand different from that of the Permanent Court in the Eastern Carelia
case.
He went on to refer to the decisions of the present Court in the Inierpretorion
offeace Treariescaseand also in the Jude~nentsof rheA<lministrative Tribunal of
/lie 1.L O. cdseand the Ci,rruin ~.r~z,,re.i-c~se. luev ve r,r. Prcsidcnt, in no&
i)fthcr sdsesdiJ the Cii~rt rxprehs .iny disiçrccnieni with the deciaion of the
Perniancni Court in the Eostrrn C<rr<,liocdseor \isiththe orinciole anolied bv it.
In fact, as 1 have already noted, the Court, although referring &-the fiace
Treoties case to the earlier Eastern Carelio case, merely stated that it was not
ao~licable and so distinzuished il. Of course. Mr. President. it is so. that the
~ules and Statute of theCourt have beenchanged \ince the ~<isrern&relia case
uas dccided, but. on the other hünd, thar i< no1 of niuch assistanceto a party
who comes before this Court unless the oroceedines are in fact assimilated to
those pertaining to contentious proceed&s. So, unless the Secretary-General
were to go further and Io state that in a casewhere there is a dispute the Court
should aoolv those orincides. itin Factdoes not avail him. 1would resoectfullv
suggest,meiely to siate that &ch provisions exist and ma; be applied.'
In his oral address, the distinguished representative of Finland also took up
the attitude that the auestion Du. to the Court cannot be des~ ~ ~ ~ ~ ~ disoute .
bçt\ieeti tuuor niore States, wnce it concerns the interpretation oftheresolution
of the Security Coiinzil and it\vasthe Council it\elf!i hich requestcd the opinion
-that is at baee 18. suora. Now. it is clear. and one must aeree. that the
question itselk cinnot be'descrihed'as a dispuie. However, Mr. President, our
suhmission isnot that the question is a dispute, but that in order to answer the
auestion the Court will have to decide legaiand factual issue~~hichare actuallv
in Jirpute betueen South Alrica and otlhcr States; and u,ecannot seethe relé-
vance, with rerpect, of the sinleinent that the question concerns the inierpre-
talion of the resolution of the Sccurity Council. Ur. President, alter aII. the
vilidity or the interprctaiiun of a re,olution 01 the Security Council ma? ilself
foriii3 part of a dispute; so, if one nerc to dctcrmine u,hcthcr a dispute e~ists
il would. in Our resoectful submission. not be a relevant criterion and certainlv
not a decisive criterion that the question relates to the interpretation and elTeA
of Security Council resolutions.
Apart from the two representatives to whom 1 have already alluded, namely
those of the Secretary-General and Finland, the distinguished representative
of Pakistan is the only participant in these proceedings who dealt with this188 NAMIBIA (SOUTH WEST AFRICA)
question, and he did so at pages 132-134, supra. He commenced by stating
that the Eastern Carelia case was distinguishable and that it did not apply ta
the circumstances of the present proceedings. However, Mr. President, in my
submission he failed to indicate any grounds of distinction and he did not
develop this part of his argument at all.
His second point was that in theEasternCarelia case there were raised ques-
tions of fact which could not be elucidated without hearing both Parties. Our
submission is,of course, that in the prcsent proceedings tiut is also thc cÿse,
and that here also questions of factareraised whichcannoi be elucidated with-
out hearing al1 parties fully and without applying prccedures which are not
customary in advisory proceedings.
His third point was that the distinction between the Covenant and the
Charter should be taken into account. that the mesent Court is an intenral
part of the United Sÿtions and under a duty ta &rticipcüie in the actiritie~ of
the Organizaiion, und that no Stüte is entitled to stop such participation. Well,
Mr. President. we have never contended that we or anv State would have a
right tostop the participation oftheCoun in ihcacti\,itiesof the United Nations
or Io stop the Court giving an opinion. Our contention isthat in certain cir-
cumstances the Court should itself decline. not because we so wish or because
i\e want to stop il.but &cause the cour;, in the excrcise of ils judicial dis-
crction, should decide that the circumstances are not appropriate for the giving
of the opinion which is reauested of it. And in the nr&nt context we sümest
thar the'court should do ;O because of thc existenie of an actuul dispuLon
thc mattcr on which the Court is asked tagive the opinion.
This brinas me naturally to the Iast point u,hich wc ÿrcucd in this rer~rd and
to which 1 have already made brief riference, namely that there exist factual
issues which the Court will have to decide were it to accede to the present
reauest. In ~aragra~h 45 of Chaoter VI1of our written statement we contended
that since the ~Guit may only give an advisory opinion on a legal question it
may be doubted whether it is entitled to furnish an opinion if, in order to do
so. it also has to make findings as to oriman facts. In other words. MI. Presi-
dent, the u,hole concept of an-advisor; opinion isthat hy making a requesi for
such an opinion the pürtiiular organ üuthorizrd to do so ccünobtain advicr on
a ooint of law. It was. we susrestid. clear from the terms of the relevant docu-
m'ents-the Charter and the-~tatut&that it was never contemplated that the
Court should make extensive factual enquiries in the course of advisory pro-
ceedings. But even if one were to assume that the Court does have the com-
petencé to do so. we submitied that the Court. in the cxcrcisc of its discretion,
should refuse Io do sa, particularly u,hcre. as ire submittcd is the position in
the present case, it would have to-estahlish controvened pnmary facts which
do not fall within a limited compass and which are not capable of easy and
speedy ascertainment.
In addition to the theoretical obiections based unon the wordinn of the
Statute and the Charter to which 1 Lave already refeked, we pointedout the
many practical disadvantages which would be attendant upon the Court engag-
ing in such a factual enquiry in proceedings such as the These practical
considerations arise from the circumstance that, when the Court gives an
advisory opinion which is not binding upon parties, there is no onus upon
parties to assist the Court in makine factual enauiries. and there is no onus
of proof in the ordinary sense which'would enabie the'court to make factual
findings in the absence of sufficient evidence. Although the proceedings may
be adapted by making use of the methods of contentious proceedings that is
a matter within the Court's discretion and, in any event, that raises a number ORAL STATEMENT BY MR. OROSSKOPF 189
of difficultiesrelating to definition of issues, the manner of presenting evidence,
the order of ~resentinn evidence. and so on.
These practical con<iderationS, we suggested, would lead the Court, as a
matter of discretion, to decline to answer a request for an opinion where such
extensive factual enquiries have to be made, even if such a Ïequest were to be
regarded as one relating to a legal question.
1do not again want to traverse the arguments advanced to demonstrate that
there are factual enquiries involved in the present question. We contended, in
paragraph 48 of Chapter IV of our written statement, that these factual issues
which the Court will have to decide relate to a large extent to the validity of
resolution 2145 (XX.) of,the General Assemblv b~~. of course. thev would
also go wider because, as the Gu; will have nitid, some of the participants
in these proceedings contend that South Africa has incurred international
liability by virtue certain acts allegedly done, certain procedures adopted,
and certain obligations not complied with.
So these questions would have to be gone into, in OUI submission, and they
would involve an enauirv into a laree field of factual alleeation and denial.
As regdrds the promoiion of ucll-bcing, many of the pdrtici~3nts herc contend
th31 \\e have failed to comply uith our obligations in that respect, where~s
the South African Government has always contended that it has complied with
those obligations.
SO,Mr. President, on al1these aspects, which will be amplifie* later, it is our
submission that the auestion before the Court cannot be answered without
the Court's going int; these factual questions.
In hisoral address the representative of the Secretary-General did not appear
to contest our contentionthat ~ ~ ~~ C~urt has to decide these contro;&ted ~ ~~ ~
factual issues the question c3n no longer k considered a legirlone. He did not
advert to thc theorettcal proposition as IO uhat the eKectwould k if the Court
were to find it necessai to~gointo these factual questions, as we submit the
Court should do. His argument was solely that there are no factual issues to
be determined by the Court, in that, as he contended, the factual issues had
alreadv ben decided bv the comnetent international bodies which had dealt ~ ~
with ii; in other words,-by the "ahoui political organsof the United Nations.
In answer to Ourcontention on this aspect he thus stated that the Court cannot,
should not. and mav not. enter into this factual field. He did not. thereforel
contest ouIproposition that if the Court were to find it necessary to enter into
this field, then the Court should decline to give an o~inion altosether.
At a later staee we will deal with the areurnent that the ooliiical Ornans of
the United ~ationsare empou,ered in some-\%,a)to niîke the& findinpk facc.
It is not relcvant to the present topic. WCivillthen contend that thlit statement
is incorrect, that that contentionahould not be accepted and that there is no
such power in any of the orsans of the United Nations. Indeed, we will Say
that the Court itself would have to make the necessary factual determinations
ifil were to give the Opinion; andour contention is that if that situation anses,
the Court will be in a position where it either cannot or should not give an
opinion on the question.
The representative of Finland adopted a somewhat diKerent attitude to this
matter. He conceded that the Court cannot answer the question before it
unless it is "acquainted with at least some of the relevant factual issues in the
South West Africa and Namibia ouestions" (D. 67. suera). He contended.
houever, that mïny of the relevani facts are Cornmon knowledge or cdn be
verified by looking up official documents such as those of the United Nations.
He 3150 statcd that in resolution 2145 (XXI) the Cieneral Asscnibly had reliedon various grounds for its decision and that some of these grounds are of such
a nature that their validity can be established without the necessity of going
into any factual issues.
Now. MI. President. the difficultv about that contention is that the distin-
guished representativeof Finland did not state which are the facts which are
common knowledae or could be verified in the manner suggested by him so
asto have a decisiie bearing on the issue before the Court. itis true ihat later
in his oral presentation, at page 50, supra, of the record 1have mentioned, he
was sliahtly more exact. but his only specific reference to a measure to which
hc objecicd, and \\hich he regarded ;sa-breüch of the South Africün ublig~tions
conccrniny the administraiion of South Wcsr Africa. uns one püssed in 1967,
in other words after the purported termination of the Mandate.
Mr. President, it may be that one can take one or two facts in isolation and
out of their context, facts which are not controverted and cannot be con-
troverted. but my submission is that no Court can make any conclusion or
makc ans finding upon an incornpleie presenrarion of fücrs of ihat sort. One
cïnnot iakc one single Siatuic or one single measure. or .Icouplc of Starutes
or measures, as apparently suggested by the distinguished representative of
Finland, and consider them in isolation. One would have to look at the whole
background and context in which these measures are passed and one must
have regard to al1 the factual features and al1 the aspects of policy which
dictated-their application. Without such a full enquiry'it would, in our sub-
mission, be quite impossible to come to any conclusion on the merits of the
apparently small number of measures or facts which the distinguished repre-
sentative of Finland suggested are common knowledge.
And, indeed, MI. President, at a later stage we propose showing that the
so-called facts contained in many United Nations official documents differ
profoundly from reality in South West Africa. In short, Mr. President, we
propose ta show that the General Assembly very often, as a matter of fact in
general, proceeded on a wrong factual appreciation and that there is no ques-
tion that manv of the facts arecornmon knowledee as stated bv the reoresen-
tative off in land.
So. in brief. Mr. President. we reiieat our submission that because of the
existence of these frlctual issues, hccause of the Tactrhdr they di>no1lall iiithin
a small conipass, the qucsiion hefore the Court can on an~lysis ni>the regardcd
as a legal one, and that the Court consequently has no jurisdiction ta accede
to the reouest of the Securitv Council. Alternativelv. we contend that because
of the exiitence of these factial issues, the Court in ihe exercise of its discretion
should refuse to accede to the reauest. Of course. MI. President, as we have
already indicated, if the Court wëre nevenhelessto decide to accede to the
request, there would have to be some procedure, in our submission, whereby
the advisory proceedings are adapted to comply with the requirenients in a
matter such as the present; in some manner appropriate tu the determination
of these factual issues that arise. This aspect was mentioned pertinently by
my learned colleague MI. de Villiers on Tuesday, at pages 166-167, supra,
and it is not necessarv for me to sav anvthine more about that.
That then, MI. président, concl;des our argument on the question of the
Court'sdiscretion and, as indicated by my learned friend MI. Viall this morning,
the next topic which we will deal iith is the interpretation and modification
of treaties.1 will deal with this with particular reference, of course, to the
with this matter in the following sequence. First 1 will consider the generaling
principles of interpretation applicable to treaties, conventions and other ORAL STATEMENT BY MR. GROSSKOPF 191
instruments embodying international obligations. Secondly, 1 will consider
the extent to which treaties may be modified by the subsequent practice of
parties to the treaties. Thirdly, 1propose dealing with the effect of subsequent
nractice o.~r- ~ u ~ ~ns such as the United Nations. Thereafter. 1 ivill oroceed
to the specific application of the rules relating to practice within the'united
Nations. to the provisions of Article 27, paragraph 3, of the Charter. This will
then eohevond-a eeneral theoretical statement-of the rules of interoretation
- ~ ~~ ~ --, ~~
and modification, rbut because of the close correlation between the rules of
modification and the application to the specific question of Article 27, para-
graph 3,it will be convenient to deal withthem in that sequence.
That part of my argument will therefore constitute the first section of Our
contentions concerning the formal validity of Security Council resolutions,
but since it links up naturally with the topic of modification by practice, 1
will deal with it whereas the rest of the argument on that topic will be dealt
with by my learned friend Professor Wiechers.
Dealine-firs~ with the aeneral ~rincioles of interoretation and modification.
1would point out that in-~hapter II o'four written statement these principles;
in so far as we regard them of importance for the purposes of the present case,
were set out in some detail. ~e there indicated that the general approach
which one adopts to these matters could well have an important bearing on
the outcome of the present proceedings, or indeed, for that matter, any pro-
ceedings in international law. 1would respectfully suggest that the correctness
of that contention has been borne out by the oral proceedings in this Court,
both where representatives have criticized OUI Chapter II in express tems and
also where lip service has been paid 10 some of the principles set out in that
Chapter, but those principles were not applied in the actual arguments pre-
sented by such representatives.
It will therefore, Mr. President, be convenient first to summarize our con-
tentions in very broad outline, and then to devote some more specific attention
to those which have been contested before this Court.
In Chapter 11,paragraph 2, we stated the rather trite proposition that the
aim or purpose of treaty interpretation is to ascertain and give eiïect to the
common intent of the parties. We showed that, in addition to a teleological
approach which does no1 always accept this basic premise, there are two
schools of thought in regard 10 the interpretation of treaties with respect to
the intent of the parties. There is firstly the textual approach, which proceeds
from the assumotion that the ascertainment of the meaning of the text is
~ - ~~- ~ -
reïlly the truc aim to bc pursucd. inasniuch as thit mus1 bc takcn to cmbody
the intention ofihc pûrtics, and the othcr approüch iihiih engages in an invcs-
tigation ob i~tiriinto the intentions of the parties, and has regard to the tex1
as one of the elements, and naturally an important element, to be taken into
account.
We sh~r~-~~summarized the oroceedines at the United Nations Conference
on the Law of~reaties, where ihe textuaiapproach proved to be more accept-
able to the delegates than any other. This aspect will be dealt with in some
more detail later. in the liaht of comments bv some of the distinguished repre-
sentatives which'have apGared here before ihe Court in this session.
However, MI. President, 1must emphasize right at the outset that the fact
that the textual approach prevailed in Vienna is not of any great significance
for our case. The important point which westressed in Chapter II, paragraph 5,
of our written statement was the following: ORAL STATEMENT BY MR. GROSSKOPF 193
Firstly. the expression "implied amment" is used in two senses. either
where there is ancxisting treah hetw&n the parties. or in circunistances where
there is no cxisting treaty at all.
Secondlv. where there is an existine. treaty. the text would normallv. in ac-
cordance %th the principles 1 have mentioned above, be regarded &a con-
clusive record of the parties' agreement, unless there is some necessary or in-
evitable implication that some part thereof was not expressly incorporated.
This must be something which was either agreed to in fact, or it must be some-
thing which is so ohviously implied in the written text that the parties did not
think it necessary to srate it in express terms.
From that principle my third proposition flows which has two aspects,
namely:
(a) Such animplied term. which the parties regarded as too obvious to .out
in th& written aireement, must bc capable of fu&ulation substantially in one
ivay only. If it is not cïpable of fi,rmulation subsianti3lly in one u,~y only,
then one clearlv cannot. in mv submission. come Io the conclusion that if is
an inevitable or a necessary consequence of the parties' \$ritien agrecnient.
Where the written document miikes express provision for a p3nicuIar con-
tinaencv or a oarticular to~ic. it would be verv difficult indeed for anvbodv
to contend or io find that the-parties in addition had entered into an ikplied
agreement or an implied term which covers the same field as the express terms
of the contract. Clear... Mr. President. if the parties deal with . .00ic s~ecificallv
and cxpreîsly, iiirvcry dinicult to imagine thxt thcy would nt the rame lime
have had an intention to deal with itin an implicit and an unexpressed manner:
the two are, in the ordinary run of cases, completely irreconcilable.
My fourth general proposition deals with the situation where there is no
written convention or treaty. In such cases one may have an agreement con-
cluded hv conduct between the oarties. However. Mr. President. ta establish
such an agreement by conducr, the circumitiincesof the c3se mus[, W.C submit.
be entirely and completely clear. In this regïrd we also referred in parïgraph 12
of Chaoter II lo the recent Judment of this Court in the North Sen Conri»enral
she[fcise for the proposition chat where specific machinery is provided for the
conclusion of a treaty, which machinery is available to a State, it will he ex-
tremelv difficult for anvbodv to alleee that the same treatv was concluded bv
diilerent means. The ci~cum~tanceswould then be such thit one cannot impli
an intention, excepl perhaps in the clearest possible cüse, that ihe parties per-
formed the same act by a procedure different from that expressly provided
for the purpose.
1 would just at this stage note that this consideration would also apply ta
the modification or amendment of a treaty such as the Charter, where specific
provision is made for such modification or amendment. But that is an aspect
to which 1will come later.
A fifth element in the interpretation of treaties. with which we dealt in
Chapter II, was the principle of effectiveness, whichwe considered in the light
of Our whole general approach to interpretation. 1 will not discuss it now,
because some of the deleaates. one in ~articular. namelv the distinauished
rcpresentativc of Finland, hïd some comment on Oursiatement in that regard.
and 1will therefore Jeal with itin more detail Iater.
In oaracriinhs 19and 20 of Chaoter II of ihe \iritten sintenientWC indicatcd
that ihese-principles of interpretation are of universal application and not of
application only to some treaties or some conventions. Our contention was
that they are applicable to all, and, in particular, also to multilateral treaties
which are open to accession by States or partieswho were not originally parties194 NAMIBIA(SO~H WEST AFRICA)
to the instmment. That does not of course mean that the weight to be given
to the various indicia of intention must necessarily be the same in al1classes
or types of instruments. In this regard we noted, in particular in paragraph 20,
the following:
"lt is submitted that in 'constitutional' instruments the text of the in-
strument attains increased imoortance as a~ains- other indicia of the i~- ~ ~
tentions of its authori. inasmuch ai ihew instruments Ire iipcn IOsiccsslon
hy States u,hich might have no knoivledgc of fcïtures suzh as thc rr<ri<iti.r
priparatoires, or subsequent conduct of the original parties, and whose
intentions can in anyevent not beascertained by referenceto such features."
Because instruments of this sort are open to accession. one must. we sub-
mitted, have perhaps even greater regard to the text of the instrument than in
other cases where there are a limited and fixed number of parties and where
the rravauxpréparaloires or the subsequent conduct, or features such as those,
mieht indeed be an indication of the intention of those oarties when the" con-
cluded their contract. We quoted substantial authorit; for this propo;i$on,
and 1 did not understand the propos~tio~ to have been contested before the
Court.
1 now turn, Mr. President, to the comments of participants in these pro-
ceedings. 1 propose dealing first with those of the distinguished representative
of the Netherlands. Before 1come to the main burden of his comments, there
are one or Iwo small points 1wish to mention. He refers, at page 124,supra,
to something supposed to have been stated "in the introduction to the written
statement hy South Africa". He presumably means Chapter II when he says
"introduction". Be that as it may, he states the following:
".. .in itself the distinction between the intention of the parties, the text
of the treaty, and the object and purpose of the treaty. for the PurDoses
of rules of interoretation iscertainlv not meant as an indicat~~n of inuiual~~ ~
exclusive categories".
If 1understand him correctly, he is suggesting that we have stated or implied
that these are mutually exclusive categories. It will suffice therefore to state
that we certainly did not intend to suggest anything of the sort.
Later he states that "it is not the intention of the parties, but the text of the
treaty which has pride of place". (Ibid.)
Now there we can agree with him, on the basis that the text of the treaty is
presumed to incorporate or emhody the intentions of the parties. But, if his
approach is, as 1understand it, that one must have regard primarily to the text,
then we are in thorough agreement with each other.
Coming now, Mr. President, to the major point of criticism, which, with al1
respect, 1 would submit to the Court, that relates to his contention that the
rules of interpretation, to which 1have alluded previously, apply only to "trea-
ties through which States accept a limitation of their sovereignty". (Ibid.)
And he contends that some other rules apply in respect of the interpretation
of Article 22 of the Covenant and the mandate declaration. In regard to these
he says:
". ..the principles laid down in Article 22 of the Covenant of the League
of Nations and in the resolution of the Council of the League of 17 De-
cember 1920 were more in the nature of constitutional guidelines for the
co-operation of the various organs, both international and national, in
the performance of their common task in respect of the people and terri-
tory .. ." (ibid., p. 126). ORAL STATEMENT BY MU. OROSSKOPF 195
So, MI. President, his general attitude may be summarized. that he am- - -
basically with Oursubmissions asto what rules ought to be applied in the inter-
pretation of treaties and conventions but he says those rules are not applicable
to the type of instruments which we are now dealing with. He says that the
mles which we have set out, although apparently he concedes their correctness
generally, apply only ta treaties or conventions involving in some way the
sovereignty of States.
1 must concede, with respect Mr. President, 1 find it difficult ta follow that
argument. There is no doubt that the Covenant was a multilateral convention
and one would therefore prima facie expect that the ordinary mles applicable
to the interpretation of conventions should apply. Whether the mandate in-
strument as such was a treaty or not has been hotly disputed in this Court-1
do not want to go into that now, Saveta say that whatever the position might
be, the mandate instrument was clearly intended ta have certain legal effects.
If one were to accept it, as we have always contended that it is, as a quasi-
legislative act of the League Council, that does not detract from the fact that
it was an instrument which was intended to have legal consequences and to
have legal effects. Now, is it suggested by the learned representative of the
Netherlands that the legal effects ofthese instruments are to be ascertained in-
dependently of the intentions of the parties thereto, as these intentions are
expressed in these instruments? That seems to me to be the burden of his
argument: that one is not to have effectto the intention of the authors of these
instruments when one ascertains their meaning and effect. He does not, how-
ever, quote any authority at al1in respect of any such proposition. In my sub-
mission, MI. President, such a proposition would be contrary to the most
basic principles, not only of international law, but of general municipal and
national law applied throughout the world. The most basic principle, 1 would
most respectfully suggest, is that the meaning and effectof any legal document,
be if a law, a contract, a will, a treaty, anything of the sort must necessarily
primarily depend on the intention of its author or authors.
It is not, Mr. President, something peculiar ta documents concerning State
sovereignty. Those of us who appear in municipal courts deal with these in-
struments daily. One interprets statutes, contracts, wills, and the primary
object is always to ascertain the intention of the author. That is the primary
purpose of the whole process of interpretation, even in matters where sover-
eignty, as such, plays no role whatsoever.
Sa, 1would suggest, with respect, MI. President, that if one ignores this basic
principle that in al1documents intended to have legal effects, it is the intent of
the author which must prevail, then one is moving in a field of law which is
quite outside that which has been a~plied over the centuries throuchout the
iiorld. On a revoluiionary basis su~.h as thar. one iould no doubt diow one's
imaginaiion to roam frccly and to c\~olvcal1sorts of iheories. I\r.ould,ho\rc\,cr.
suggest that this sort of exercise. althouch intellectuallv stimulatinc. is not.
with respect, of any great practical assiilance in a concrete case-like thé
present.
1 now came, Mr. President, to the more detailed points of criticism which
were raised by the distinguished representative of Finland.
The distinguished representative of Finland started from the same basic
premise as we did, namely that Articles 31 and 32 of the Vienna Convention
on the Law of Treaties constitute a sound basis for the interpretation of inter-
national treaties. That is to be found in his oral statement at page 65, supra.
He then, however, adds: "But it seems to me that the South African Government attaches too
much importance to literal interpretation, Le., of the actual wording of a
treatv and the ordinarv meanineof its tems. It is wrone 10olav doin the
othe; principal means of interpretation mentioned in-~rticlé 31 of the
Vienna Convention, such as the object and purpose of the Treaty and the
subsequent practice of the parties in ifs application, which ofcen reflest
their real intention."
Mr. President, as 1have already said, we discussed in Chapter II, paragraphs
4 to 5, the debate which there was in the Vienna Conference on the antithesis
or dispute between the two different schools of thought: whether it is the inten-
tion, ab inirio,that has to be ascertained, or the intention as expressed in the
wording of the text. The attitude of the International Law Commission which
had prepared the draft Convention appears frorn the following comment on its
draft Article 27, which was ultimately incorporated in the Convention as
Article 31. The International Law Commission said the following:
"The article as alreadv indicated is based on the view that the text mus1
be presumed to kthe aithentic expression of the intentions of the parties;
and that, in consequence. the starting point of interpretation is the elucida-
tion of the meaoiie of the text. not an investieation ob initio into the in-
tentions of the parfies. The lnstitute of ~ntern~tional Law adopted this-
the textual-approach to treaty interpretation. The objections to giving
too large a place to the intentions of the parties as an independentbasis
of interpretation find expression in the proceedings of the Institute."
The International Law Commission then mentioned that the textual approach
commended itself bv the fact that. as one authoritv which thev ouote out it:
the signed text isin general the onl; and the most reient expression of thécorn-
mon intent of the parties. After referring to this authoritv. the International
Law Commission continued asfollows:
"Moreovcr. rhejurisprudence of the Intcrnaiional Court contains niany
pronouncemenis frorn irhich iiis permissible to concludc that the textudl
approach to treatv interpretation is reaarded bv it as estahlished law. In
iaiticuliir. the ~obrt hds.rnore than once strczsed that it is not the function
of interpreiaiion io rcvise treaiies or to rad into [hem uhat they do not.
expressly or by implication, contain." (Yearbook of the InternationalLaw
Commission,1966, Vol. II, at pp. 220-221.)
As we showed in Chapter II, paragraph 4, this approach by the International
Law Commission was criticized by certain delegates at the Vienna Conference,
particularly by the representative of the United States of Arnerica. We also
quoted, in that paragraph, certain passages from the address by the representa-
tive of Umguay in which he emphasized the importance of the text as the
authentic expression of the parties' intentions, andin which he also mentioned
the dangers of permitting recourse to a real or supposed true intention of the
parties divorced from the text. We also rave referen~-~~t~-t~- statements of
other dcleg3tes und to the ultirnaie rijeciion or the United ~~;tes propowi,
which u% opposed io the trxtual approüch rccommended by the Intcrnaiional
Lau Commission. Ir is of interesr io noie. hlr. President. ihai the Finnish
delegation to the Conference supported the approach of the International
Law Commission in unqualified terms. The reference there is to the United
Nations Conferenceon the Law of Treafies, Oficial Records, First Session, at
page 182.
Now, concerning the two aspects specificallyrnentioned by the distinguished ORAL STATEMENTBY MR. GROSSKOPF 197
representative of Finland, namely the objects and purposes of a treaty and
subsequent conduct, I wish ta make a few observations. 1 deal ht with the
objects and purpose of a treaty as a means of interpretation.
The attitude of the International Law Commission to the principle expressed
in the maxim ut res magis valeat quampereut was stated by the Commission in
its report published in its 1966 Yearbook, Volume II, page 219, asfollows:
"The Commisrion, however, took the view that, in so far as the maxim
ut res magis valearquumpereal reflectsa true general rule of interpretation,
it is embodied in article 27, paragraph 1,which requires that a treaty shall
be interpreted ingoodfaith in accordance with the ordinary meaning to be
eiven ta its terms in the context of the treatv and in the "iekt-of ifs obiect
ond purpose. When a treaty is open to two interpretations one of wkch
does and the other doa not enable the treaty to have appropriate effects,
ad faith and the obiects and DurDosesof the treatvdemand that the
Formerinterpretation Lhould be adopted."
Just pausing here, MI. President, 1 would wish to emphasize these words:
"When a treaty is open to two interpretations one of which does and the other
does not enable the treaty to have appropriate effects, good faith and the
objects and purposes of the treaty demand that the former interpretation
should beadopted."
In other words, there is no suggestion that the objects and purpose could
have an effect ta give to the treaty a meaning which its language will not bear.
1carryon with the quotation, Mr. President:
"Properly limited and applied, the maxim does not cal1foran 'extensive'
or 'liberal' interpretation in the sense of an interpretation going beyond
what is expressed or necessarily to be implied in the terms of the treaty.
Accordingly, it did not seem to the Commission that there \vas any need
to include a separate provision on this point. Moreover. to do so miaht
encourage atte&ts to-extend the meaning of treaties illegitimately on The
basis of the so-called principle of 'effective interpretation'. The Court,
which has by no means ado~ted a narrow view of the extent to which it is
proper to imply tems in treaties, has neverthelesr insisted that there are
definite limits to the use which may be made of the principle ut res magis
valeaf for this Durpose. In the Inter~retation of Peace Treaties Advisorv
Opinion it saidf -
'The principle of interpretation expressed in the maxim: ut res mgis
valeat auam oereat. often referred toas the rule of effectiveness.cannot
justify ihe court in attributing to the provisions forthe settlekent of
disputes in the Peace Treaties a meaning which ... would be contrary
to their letter and spirit.'
And it emphasized that to adopt an interpretation which ran counter to
the clear meaning of the terms would not he to interpret but to revise the
treaty."
The quotation shows clearly, Mr. President, that the International Law
Commission, in proposing these articles in the draft Convention, did not
consider that the object and purpose of a treaty could play a role in interpre-
tation where there was no ambiguity or uncertainty in the text itself.And1
might add that this comment of the International Law Commission on its
draft Articles 27 and 28. which ultimatelv became Articles~31~.nd 32 of the
convention, did not cause the Fimish delégationto add any reservations to its
support at the Conference of the International Law Commission's proposals. In conclusion, on this aspect of my presentation, 1 might jus1 state, Mr.
President, that reference tor written statement, Chapter II, paragraphs 14
ta 16 and paragraph 18, will show that Our attitude was, in my submission,
in entire accord with thdt advanced by the International Law Commission. Mv
rcipeciful subnlisiton is accordingly ihai the Finnish rcprcscniaiive's criiiits;
<ifour stateinent in thai regard 1snot jusiitied.
Now ihe second point raiscd specifiwlly by ihc distinguished rcprcscniative
of Finland conccrncd subscquent conduct asan aidIOinirrprctütion. He did
not agrce with our ionienrion th31 subscqucni praciice c3n be of srsistancc in
the interpretation of treaties only where theree ambiguity or uncertainty
in the treaty itself. In this regard.dd, he seems tobe supported by the
distinguished representdtive of the Organization of African Unity at pages
92, supra. Neither of these distinguished representatives, however, referred
to any authority at al1 in support of their attitude Save the wording of the
Vienna Convention itself;nor, in my submission, did they attempt in any way,
to counter the authorities which we quoted in Our statement, Chapter II,
paragraphs 22 and 23-Lord McNair. D. W. Bowett and Sir Percy Spender.
As 1shall show later, the same principle emerges also from certain cases to
which reference will made when 1deal with the argument of the distinguished
again, in my submission, indicate clearly that subsequent practice can be ofes
assistance as an aida interpretation only where there is some uncertainty or
ambiguity in the treaty itself.
As stated, the distinguished representatives of Finland and the Organization
of African Unity referred to the wording of the Vienna Convention. My
submission is that the wording by itself is inconclusive. It says no more than
that-
"There shall be taken into account toaether with the context anv
suhwquçni praîiice in the applic~tion of ihi ireaty uhich esiablishes th;
undcrstnndingof the partics regarding its intcrprctarion."
The Convention does not, however, indicate in what circumstances or to
what extent weight should be accorded to such subsequent practice. It merely
savs that it shbetaken intoaccount. In the same wa; the ~ienna convention
dies not, of course, indicate the circumstances in whi&, or the extent to which
regard is to be had to the object and purpose of a treaty. As 1have iust indicated
certainlv as far as the lnternational ~aw Commission bas cancernid. the obiect
and purposes were ta be taken into account only ta resolve some ambiguil; or
uncertainty. So the mere fact that the Viema Convention does not state to 1
what extent and with what weight these features shobetaken into account
does no1 mean, in my submission, that they may be taken into account in al1
circumstances and ta be accorded great weight irres~ective of the clarity or 1
othenviseof the text of the instrument.
MI. President, in view of the pre-existing law, as we set it out in Our written
statement: in view of thextual approach which was followed not only in the
Vienna Convention and in the comments of the International Law Commission
but also in the debci31the Viennx C<infcrencc;and alsi, in vie\<of the very
sirong resirtancc !\,hichemcrg:Lthe Vienna Conference io the concept th~t 1
treaties mav be modified hv iubseauent oractice. which is a matter to1which 1
shall alludélater, there wo;ld, in ;y submissbenno warrant for accepting
that the Vienna Convention intended ta provide that subsequent practice
could, for theurposes of interpretation, detract from the clear and unam-
biguous meaning of the text. ORAL STATEMENT BY MR. GROSSKOPF
199
If that was the intention of the Viema Convention. it would have eone
- ~~.
against not only the preexisting law, but also against the basic tenets of the
textual approach, which underlay the whole Convention, and really al1 the
work at the Conference. and also it would have eone aeainst the ve& strone
feelings that were obvio;sly felt at the Vienna conFerence-against the p~ssibil~~
that treaties might be modified by subsesuent ~ractice. If that had been the
intention then the Vienna ~onveniion would, inmy submission, not have been
a codifying one as far as that part of it was concerned. It would in that respect
then have gone beyond existina law and would then not be aoolicable to the
preseni proieedinis becausc, cifcourss. the Convention does no; iiçsuch apply
toanyol iheinstriimenisiiir\h rcu,re.dehaling here no\\,. Its only relçvincc
really is as a convenient codification of the existing law of interpretation and,
in sa Faras they may be applicable to these proceedings, of the existing rules
concerning other aspects of treaty law. But, MI. President, if that had been the
intention of the parties to the Convention, there would, in my submission,
have been clear language to that effect, because the result which would then
have been achieved would have ken almost startling and one cannot imagine
that this wouldjust have been allowed toslip throughas itwerealmost unnoticed.
Of course, Mr. President, 1must add one qualification to the submissions 1
have made and that is that although forthe purposesof interpretationIcontend
that subseauent ~racticecan be of assistance onlv where there issome ambiguitv
or unceriainty in ihc text. ifdoes no1 follow Ïhat a pîrry mïy no1 beable to
show thdt a particular uord. iilihough apparently slear, had a spcciiil mcaning
in ihc intcntiun i~f ihs nariiei. Thai is sonicthinc!else. thxr is a nrinciple which
is not interpretation perhaps in the strict sense of 'the wordand for which
special provision is made in Article 31 (4) of the Vienna Convention, which
provides that a special meaning shall be given to a term if it is established that
the partiesso intended.
So 1 must leave open that possibility that the parties can always show that
they intended to give a soecial meaning to a oarticular word. But. aoart from
thai possibility, and apari from the proif which might be adduced; whether by
evidence of subsequent practice or otherwise, ta establish such a contention,
there would, in my submission, be no warrant for making use of subsequent
practice as an aid ta interpretation unless there issome ambiguity or uncertainty
in the text itself.
So, to conclude. Mr. President. for the reasons aiven we contend that the
suniniary of principlcs of intcrpreiaiion set out in Ck1ptr.r Il b,'ves a corrcct
rcflecrion of the conieiiipor3ry inicrnitii)nal Iaw. But. evcn if tic werc to hava
erred somewhat in the direction of a too rigid adherence to the text, 1pose the
rhetorical auestion: ~ ~~~-uld t~~~ ~ffect the ourcom~ -~~~~is ~ase? In mv
submission'neither the Finnish representative nor the distinguished represei-
tative of the Organization of African Unity apparently advocates the type of
teleological approach ta interpretation which would ignore both the text and
the subjective intentions of the parties so as ta give maximum effect to the
obiects and Durposesof a treatv. At any rate thev have not come here to say so
exilicitly and i<they do so, it aipears Grhaps only in the arguments and in the
application of rules ofinterpretation to certain documents. But, Mr. President,
none of them has come here and said that the intentions of the ~arties should
not prevail and if they were ta adopt this teleological approach ail 1need say is
that. as we have shown in Chapter II, they would represent a school of thought
which has insimificant suo~ort in modern international law.
But if one dors dcccpt'ih~t the aini and objcci of ireaiy interpretdtion 15to
ascertain the intention. of the parties, ildocr not reîlly niaiter for Ourpurpùwç200 NAMIBlA (SOUTH WEST AFRICA)
whether one aives slightly more or sliahtlv less effect to the text as a-ain~~-~~ ~ ~ ~ ~
accordcd to othcr of intention l. the prescnt caw, as wc have thown,
and as we propoic shoiiing again, the interpretütions which u,chave adwncîd
to the Courtare in accordaicënot onlv withthe text. not onlvwith the n.d~~-r~.~~.~
meaning of the tvords, but al=, in our.contcnt~on. uith ihc s;bjcciive intcntio&
of the parties as these subjective intentions may bedcrivcd from any lc~itimate
evidence, such as the preparatory work, practice or other relevant katures,
general probabilities and so on.
Before 1lave the subject of interpretationof treaties, there isonefurther topic
witb which 1 might conveniently deal at this stage. The United States of
America in its written statement at 1, pages 855 to 856, included a section
entitled "There is a Legal Obligation to Observe Treaties in Good Faith".
Although it does not appear that any zignifiant conclusion is drawn in the
written statement of the United States by the application of this principle it
might nevertheless be convenient to say a few words about it.
AS a principle it ha., of course, ofténixen stated, and is again emhodied in
Article 26 of the Vienna Convention. It also appears in the Charter in Article 2
(2).so one must accept that as a general principle treaties are to be observed and
carried out in good faith. However, it is not always so easy to give a definite,
distinct meaning to thisconcept. Schwarzenberger statedthat "treaties are to be
interpreted and applied asjusaequurn"(InternarionalLaw, 3rd ed., Vol.1,p.447).
He continued:
"Com~liance with this rule means more than absence of dolus. malice
or frûudulent intent. Ii cdls for inierprci3tion and application oiireaiies
in accordance witli ihcir \pirit, as distinct froni their lctt(ibid.1.
Later, he States that this rde "demands both reasonableness and aood -aith
in the intcrprctation and application of trcatics" (ibid.).
Lord McNair in his u,ork on the Laiv u/Treuries also discussed ths concept
and hc stated at pape 465 ihat "the ~erforniance of ireaties is subiect to an
overriding obligatioRof mutual good-faith". In a footnote he ackOowledged
that "it is difficult to give the expression a precise meaning", but he gave a
number of examples from which one can aet an im~ression of what he had in
mind when he stated the general ~hus'he stated that it would be
a breach of this obligation for a party to make use of an ambiguity in order to
put fonvard an interpretation which it was known to the neaotiators of the
ireatvnot to be theinlentio~ ~~ ~ ~ r ~ ~ ~ ,~~~~~,.
~oreover, he stated that rights or concessions granted by treaty to be exer-
cised in the territory of the mantor State mav be reaulated hy such State but
th31the principleofgood faiÏh u,ouldopcratc in such~riumstancessoast~~~ace
some limitation on ihc poa,ers of the grdiitor Staie. Conscqucntls rcgulations
cannot be made in order to destroy or frustrate the treaty rights (ibid.,pp. 449-
450 and 762-764, in which he referred to the North Atlantic Coast Fisheries
arhitration which the United States cited in its written statement at 1,p. 856).
Another authority quoted in the United States written statement is Hudson.
u ho in his ivork on the Peri>,o>zcnC rourt o/ Inrernorio~ioJlusrire, at page 636,
also refcrrcd to this principle of good faith. but his only conclusion \\,a\ ihat
"littlc hospitality has ken shown to ,-cason5advanced hy parties for the non-
performance of their obligations". The Iack of hospitality mas. of course, that
of the Pernianent Court: the Permanent Court did not acccpt or did noi lightly
accept the reasons advanced by parties for the non-performance of their
obligations.
It seemsclear, in my submission, fromthe above authonties, that the principle ORAL STATEMENT BY MR. GROSSKOPF 201
of good faiih is not something irluch can opcraie indcpcndcntly of the intention
of the parties.As Judgc Lauterpacht =id iithe Norwegia,tLoons çÿse:
"The question of the obligation to act in good faith arises only in
relation tolegitimafe expectations of the other Party" (I.C.J.Reports 1957,
p. 53).
So it is the legitimate expectations of the other party that are protected by
this rule of goodfaith. Bin Cheng stated that the principle:
"... means, essentially, that treaty obligations should be carried out
according th the cvmmon and rcal Ïnicntion of ihe parties al the lime the
treîty urasconcludcd, that 1sto say, the spirit of the treaty and not ils merc
literal meînin-.. (GeneralPr>rinc.nle..o/Law~.,.114.)
He conceded. however. at oaae 116. that this ~rinci~leshould be read subiect
to the tcxtuxl apprw~ch IO ~ntérpretationto which 1havc rcfcrred. ~ltimakl~.
Cheng gave the same type of exsmple of the application of good faith iis that
givcn by Lord McNîir IO which 1have referred, namcly that trcaty obligations
mdy no1 be frustrîied by the niolafidr exercis of a right, e.6.. of a right of
conirol (ihai isagain the Fisherirsarbitraiion): ihat3 dispute may be said to be
incapable of settlement by negotiation even if one of-the parties mala fide
professes a willingness to negotiate (he refers ta the Mavrommatis cases for
that proposition); that a pactum de contrahendo requires a genuine effort by
the parties to reach agreement; that clear errors and ambiguities in treaties
cannot derogate from the parties' true intentions; that a condition ofrebussic
stanribus may sometimes be implied, and that abuse of rights is unlawful in
certain circumstances. These examples are given in the quoted work al pages
114-119.
Mr. President, if one analyses these examples, they really cover a number of
different leeal institutions. and it mav. with resoect. be doubted whether anv
uscful purp-oseis rerved by classifyin~ ;hem undir the gcneral heading of go&
fdith in the performiincc of treaties. tlowcver. be that as it niîyitis clear thît
there is no rule of cood hith which could resuli in the variation of the content
of a treaty, otherwise than pursuant to the intentions or expectations of the
parties. Thus, for instance, the principle of rebus sic stantibus, which was
referred to as a orinciole of good faith. could. where aoolicable. orevent the
extension of a Geaty to circÜmstances'which fall within ils te&, literally
interpreted, but were not contemplated by the parties when the treaty was
concluded
One might, of course, have an implied term, as 1have already stated, which
could possihly extend the application of a treaty beyond what is expressly
stated in the text. But the leaitimate exoectations and the true intentions of the
parties must, it is submitted, always pt&ail. 1might just add, in conclusion of
this part of my argument, that the conception of the rule of good faith as
directed 10 the giving of effect to the leg&imate expectations of parties also
appears from the proceedings of the International Law Commission in its
1966 Yearbook, Volume II. If mentioned this principle, for instance, in the
context of the rule of IIIres magis valeat quanzpereat at page 218; 1 have
already referred the Court to that passage. It also refers to the rule of good
faith inils comment on the principle that the tex1of a treaty is to be read in its
context, that is at page 221, and it also referred to this principle in support of
ils view that inter-temporal law did not require express mention in ifs draft
convention since the element of good faith would require its application where
the parties intended it toapply. That is at page 222.
The Corirt roseor 1.05 p.m. EIGHTH PUBLIC SITïING (22 II 71, 3 p.m.)
Present: [See sitting of8 11711.
MI. GROSSKOPF: Mr. President and honourable Members of the Court,
on Friday 1 dealt with the pnnciples which we submit should govern the
interpretation of such treaties and conventions and other instruments having
leeal effect as mav be relevant for the nurooses of the nresent case.
Yoday 1propose considering the nilés&lating to the modification of treaties
by subsequent practice. This, in oursubmission, is a matter ofsome importance
for the oresent case. There have been reoeated references in the course of the
proceedings up to now, both in the writien and in the &al statekents, to the
practice of States and also to the practice of United Nations organs. Often
these references were given without any argument or discussion asio the basis
of devance on which it was presented or as to the weight which was to be
accorded to it.
By way of introduction 1would mention that 1have already deflt with the
effect of the practice of States in two respects as it affectserpretation.
Firstly, 1 contended on Friday that the subseauent practice of the parties
to a treaty may be invoked as an aid to interpretation in cases where the text
is obscure orambiguous and, secondly, 1alsostated that thesubsequent practice
of the parties may in particular circumstances provide relevant evidence to
assist in showing that a particular word or an expression, although prima facie
clear, was nevertheless used by the parties in a special sense. In both these
aspects, MI. President, the subsequent practice of the parties is directed to
ascertaining what the actual intent of the parties was when they concluded the
agreement. In other words, in these circumstances the subsequent practice is
not adduced to add to or to change or alter what the parties had intended to
establish by their agreement, but merely to provide clarity as to what it was
they had agreed upon.
The concept of modification by practice, on the other hand, in so far as such
a orincinle mav exist. serves an essentiallv different ouroose. The ournose of
modification b; praciice is not to ascertain what the iniention of ihe'parties
was but to effect an alteration in the parties' agreement in accordance with an
intention of the narties which suoervened subseauent to the conclusion of the
original treaty. it is therefore, in essence, a meihod whereby an agreement is
reached rather than a method whereby the meaning of an existing agreement is
determined or ascertained.
Before 1 consider the comments of other participants in these proceedings,
it will be convenient to summanze briefly what we said in Chapter II, para-
graphs 26 to 32, of our written statement.~In those paragraphs we said, firstly,
that there exists substantial scholarly support for the proposition that a treaty
or convention may be revised or modified by the subsequent conduct of the
oarties thereto. In accordance with this orevailine view. the International Law
~ommis;ion had proposed a draft ~rtiric 38 in it;drîfi conveiitiori oii treaties,
whiih incorporated ihir proposition.
Ho\irvcr. at thc Vicnna Conference on the L~iiof Trcaries dcl~.a3tesshowcd
strong resiitance to this proposal and the grounds advanced b; them were
mainly twofold, namely firstly, that the recognition of any such principle wouldthe principle of pocra suntservando, which was incorporated in Article 26 of
the Convention.
The second reason adduced by the representative of Finland was that the
draft was not sufficiently clear but that it would be difficult to find a better
form of words. Now it is apparent îrom the official records of the Conference
that the lack of clarity of the draft was, indeed, criticized but it was criticized
not only by people who might have been prepared to accept the principle of
Article 38, subject to qualifications, but it wds also criticized by those who
we.e-ae-inst the whole orinciole of the article.
So my overall submission, Mr. President, is that the reasons advanced by
the distinguished representative of Finland for the rejection of this proposal
~~~-no~ borne out bi the official records of the Conference. In oarticular. it is
my contention thlit it appears quite clearly troni the ulficiül rectird that there
ivas considerablc ooposiiion Io the whole principle of modilicatiun hy conduct
.. t~-~~~~-. 1 would-like to refer to some of the relevant documents for this
purpose of this contention and I must jus1express the hop~ihat thosc Slembers
of the Coun u,ho wcre presçnt at the Conference do no1 find iiiinneccss~ril)
.. -. . -. .
1would first refer to theactual proposal of the lnternational LawCommission
which aowars in the Yearbook of the Commission for 1966, Volume II, at
page 236.'~here the draft article is formulated in simple terms as follows:
"A treaty may be modified by subsequent practice in the application
of the treaty establishing the agreement of the parties to modify its
provisions."
In its commentary the lnternational Law Commission intimated that this
article was intended to cover those cases where the parties by common consent
in fact apply the treaty in a rnanner which its provisions do not envisage.
The International Law Commission pointed out that "a consistent practice
establishing the common consent of the parties to the application of the treaty
in a manner different from that laid down in certain of its provisions may have
the effect of modifyina the treaty". (Ibid.) Subsequently, on the same page,
the lnternational ~awCommissionstated that altho"gh the line may sometimes
be blurred between interpretation and amendment of a treaty through sub-
sequent practice, legally the processes are distinct.
That, Mr. President. was then the basis upon which the matter was brought
before the Vienna Conference; and the principle laid down in draft Article 38
immediately came under heavy attack by some of the delepates.
1 would, with the Court's permission, merely quote a couple and give
references to the rest.
1would firstly quote some of the comments of the representative of Vene-
zuela. These comments appear in the Oficial Recordsof the United Norions
Co~iJërenceon the Law of Trearies, Firsr Session, paragraph 60, page 208.
There the distinguished delegate said:
"Practice incompatible with a treaty constituted no bdsis for a new rule
of law. but an abuse of law and a violation of the treaty. When the parties
found that circumstances had changed, they could not authorize a violation
of law, but should proceed to modify the treaty by concluding another
or by preparing an additional protocol which would legalize the new
situation; that had always been the procedure followed by the inter-
national community. Practice in itself could not be a hasis for derogation
from written, domestic or international law .. ." ORAL STATEMENT BY MR. GROSSKOPF 205
The representative of Viet-Nam was 10 much the same effect al page 208,
paragraph 61, where he said his delegation-
"... could see no advantage in including a provision on modification
of treaties bv subseauent oractice. If. in aoolvinp. the treatv. the oarties~~
noted that new circ;msta&es had arisen sj"cé the signatureof theireaty,
which made modification or re-drafting desirable or necessary,they could
at any time agree in writing on an appendix, protocol or annex to the
original treaty. To allow for the possibility of modifying the treaty by
subsequent practice would open the door to al1 kinds of interpretations,
in the course of which the treaty might lose much of ils substance."
The representative of France, al page 208, paragraph 63, said:
"Although the idea of recourse to State practice in the application of
a treaty as a means of interpretation was unexceptionable, it was quite a
different matter to lay down a rule whereby that practice could in itself
alter the substance of treaty obligations. The formulation of article 38 was
ooen to three main obiections.
First, many international agreementscontain specific provisions on the
conditions of their revision: to admit that the parties could derogate from
those clausesmerely by their conduct in the application of the treaty would
deprive those provisions of al1meaning.
Secondly, adoption of the arlicle might raise serious constitutional
oroblems for manv States. The orinciole of formal oarallelism reauired
ihat modificationsbf a treaty at the domestic level should follow the'same
procedure as the original text. If the manner in which the responsible
officiaisaoolied the treatv was in itself caoable of leadincrto modification.
that requjranent of par~llelism could hkdly be met. ~oreover, it wa;
doubtful whether the precise and strict conditions laid down in article 6
and the following articles of the draft, on consent 10be bound by a treaty,
would retain any meaning if the treaty could be subsequently modified
in the manner provided for in article 38.
Thirdlv. the rule nrooosed in article 38 would hardlv conform with the
harmon; in international relations. Indeed, if States kere given the im-
pression that any flexible attitude towards the application of a treaty was
tantamount to agreement to modify the treaty, they would tend in future
to become much more circumspect and rigid in their attitudes."
The representative of France went on 10 state that in cerlain technical agree-
ments he thought there might be some scope for the application of a principle
of modification by practice, but not otherwise.
Then. Mr. President, at page 210, there is a statement by the representative
of Chile who said that his delegation:
"... would vote for thedeletion ofarticle 38, in the belief that the adoption
of the orovision would weaken the principle of Docra sunt servanda which
the ~ommiirce hïd aJi,pteJ in srri!le 23:onie';i ireaty \vas in force, the
piirties uere bouiid by IIuiitiII\%asniùdified in accordance with article 35
bv agreement between the parties. That agreement implied expressconsent
by ihc Staies in qursiion. ifarticle38 nere adopted. anv siaie wishing IO
evade ils ohligaiions under 3 trcaiy could invùke suhsequeni practix with
a view to modifying the treaty for ils own ends."206 NAMlBlA (SOUTH WEST AFRICA)
The other quotations, Mr. President, are fortunately short. There is one
from the United States of America, paragraph 6, pages 210-211, where the
distinguished representative said:
"What particularly worried the United States delegation was that
relatively Ïow-ranking officiais, such as vice-consuls and-third secretaries
might interpret a treaty erroneously and follow a course of conduct which,
unknown to governments, could lead to modification of the treaty."
Columbia, paragraph 20, page 211:
"Article 38, ...was contrary to law and to democracy, because treaties
were unmade in the same way as they were made, and if a particular
~rocedure had been followed in the negotiation. signing. internal approval
and ratification of a treaty-a procedk which i&olvëd cornpliance with
the internal constitutional system-the same procedure must be followed
for anv modification of the treatv. so as ta ensure the desired balance
betwee" the internal powers of gov&nments and parliaments in the process
of contracting or modifying international obligations."
Then, Mr. President, 1 would refer to the representative of Uruguay, para-
graph 34, page 212. He said:
"There was no rule of international law laying down that a treaty could
be modified hy subsequent practice, even if that practice resulted from the
tacit agreement of the parties. Furthermore, it was not practice that
modified a treaty; an agreement could be modified only by another
agreement."
The representative of Tanzania, at page 212, paragraph 38, said:
"... he had come to the conclusion that it would be better to delete
article 38. For the rule stated in that article did not exist, and even if it
did, it would be a bad rule."
1would quote only one further extract, MI. President, and givethe references
to the othen. The last is from the representative of the Philippines, paragraph
43, page 213, where he:
". . pointed out that many constitutions provided that any modification
of a treaty must be ratified by the legislative organs of the country. That
applied 16 the Philippines, where theapproval of the Senate was required.
Thus article 38 would create serious problems, since it would lay down a
rule that was incompatible with the provisions of internal law in force in
many States. The article would introduce an element of uncertainty and
it would be better ta delete it."
In addition ta these passages 1have quoted, I would refer the Court to the
statement hy the representative of Japan, paragraph 58 at page 208; Spain,
paragraph 65, and following, pages 209 to 210; the USSR, paragraph 1, at
page 210; Turkey, paragraph 27, page 211; Cuba, paragraph 40, page 213;
Portugal, paragraph 42, page 213; and Czechoslovakia, paragraph 52,page 214.
These delegates al1made itquite clear, in my submission, that they opposed
the very principle of the draft Article 38. It was not just a matter of faulty
formulation-they were in opposition to the whole concept that forma1treaties
might be modified purely by the subsequent conduct of the parties thereto.
And 1might add that the basis upon which representatives objected to the draft
article also appears from the comments of the expert consultant at page 214
of the record 1have mentioned. ORAL STATEMENT BY MR. GROSSKOPF 207
1 cannot of course sav. M..,President~~that the deleeates whou ~ ~ ~ ~ ~ ~ ~~~~~~~~~-~
voted against the article and a fortiori, those who abstained, were al1opposed
to theprinciple incorporated in draft Article 38, but what 1 do sav is that the
published 0&ciu[ ~&orrls show that there was a strong current oi opposition
to this principle, which was demonstrated in the addresses of many of the
re~resentatives.
But even, Mr. President, if one were to assumein principle that a treaty may
be modified by practice, that still leaves the question: what are the rules
a~~licable to this type of modification?
. . . .
I have alreddy ,ummlirized our conicntii~ns in thi, rcglird. The). evokrd no
coninleni or .2riticisni idvr. the bdre statenlcni. wiihoui üuihorit), by the
d!stinauishcd rînresentaiive of Finland. that the Charter also "can bemodificd
in thé light of-the subsequent practice of member States" (supro, p. 66).
This was, however, said without any argument, or without any citation of
authority. Nor was any consideration given to the requirements which had to
be complied with for such modification.
Specifically on this point of the Charter, it is of interest that some States
at the Vienna Conference were opposed to the principle of modification of
treaties by subsequent practice, iirter olia, becauseof a fear that this principle
might be invoked to modify treaties for which a particular method of amend-
ment was provided.
That has already appeared from the passage 1 have read from the address
by the distinguished representative of France, but it also appears from what
was said by the representatives of Spain, at page 209, paragraph 70, and
Uruguay, page 212, paragraph 36. The former said:
"Another difficulty would arise if the treaty contained a clause on
modification. In that event, could an official who did not possesstreaty-
makina authoritv neverthelessmodifv the snecial revision or modification
clausc~1f so. article 38could mesn rh;il if ;,as possihlc and legal to rl<iby
tacii agreement what itU,~S~mpossibleand illcgal 10 do hy form31 agree-
ment; it couldonly be regardedas conflicting with the principlepacr~suni
servuirdo."
In oiher wsrds, Mr. Presideni, ihis refers ioexacily ihc suri ofcircumstances
wtth which \i.e are dealing hcre nom,: a ireüiy which provides for a ipecial
meihorl ofamendnient and which ii rd, neverthcless.to hai,c ken modilied by
~.onJuct in an informal manner. To the sanic effccr iiai what massaid by the
reprcsrntüti\,c i~f Urugu.iy at p3gc 212, par~graph 36:
"ln addition, it was clear that during the proceedings of the Inter-
national Law Commission, its members had not agreed on the conditions
to be satisfied by subsequent practice if it was to modify rnultilateral
treaties. Any modification of those treaties should be made in accordance
with certain conditions laid down in the treaty itself."
In the result therefore, Mr. President, it is contended that the exposition of
law in Chapter II of Our written statement hasnot ken shown to be inaccurate
in any respect.
1turn now to the effect of practice within the United Nations. In Chapter II,
paragraphs 33 to 40, of Our written statement we considered how, if at all,
the practice within the United Nations could affect the meaning or inter-
pretation of the Charter, either hy way of interpretation or hy way of modifica-
tion. Since the Charter is a multilateral treaty open Io accessionby new Mem-
bers, the subsequent conduct of parties can be of little or no assistance ininterpretation and in any event only if it complies with the requirements which
I have alreadv mentioned.
The ~ourt.will recall that when 1 considered the special problems of such
multilateral treaties on Friday, 1made the point that because these multilateral
treaties are open to accession, one must be very circumspect in making use of
aids to interpretation such as preparatory work or subsequent conduct which
mieht not have any bearin~.on the intentions of these subseauentlv accedine
parties. They, when they ac&de, would normally accedeon the.basisof the te;
and might no1 have intended the same consequences as might appear from the
oreoaratorv work or other extraneous aids to interoretation.
AS regards modification of the charter by conduci that possihilityseems to be
excluded, in Our submission, by the existence of Articles 108 and 109 of the
Charter. which exvressl..orovide for amendment. We referred in this re-ard to
the separoie opinion <iSir I'ercySpender in the CerrrirnL.rpr,,srrclise uhere he
said so expliciily. and 1hxe also jus1quoted sirnilïr viens expressed hy certain
-overnments at the United Nations conference on the Law of ~reaties
In any event, quite apari [rom the c*isience of Articles 108and 109,ifihere
were io be any niodification by practice of partieIO the Charter, ihai practice
would have ta comply with the general requirements which I have jus1 summa-
rized.
NOW,Mr. President, that then applies to the practice of parties. When one
comes to the effect of the practice of organs, as distinct from parties, the prob-
lems are, it issubmitted, even greater. We discussed the problems which arise
there inOur Chapter 11,paragraphs 36 ta 40, of the written statement. There is
no vrovision in the Charter itself which vermits anv orean to intervret the
charter with binding effect, so that any practice within the ~rganimti'on can,
we submit, not be accorded greater weight than would have ben accorded to
the conduct of the Members acting outside the oraan. As a matter of fact we
suggesied in Chapter II, parügrüph'36. that the art~udes adopied by Members
inde the Cnited Nations niighi wellhave lcss value as a feliiure in inrerpreting
the Charter than the conduit of such Members mieht ha-e had if Üursued
ouiside the organization. l'hç reason for that is the essentially political aitivities
of the Orgsniration. u hich would often encourage Members tu adopt atiitiides
which mie-t not be in confomitv with their conceotion of what the lee-. oosi-
lion isor iihat ihc rneaning or the Charter is, but inighi bedictired raihrr rnsirc
by the considerüiions ihai their 0u.n interests are noi affected and iiiiniiahi 1
be inexpedient or unwise to oppose a certain course of action proposed-by
others.
The result is that this type of continuous political activity requiring the adop-
tion of attitudesbv Members on al1sorts of asoects. al1sorts of controversies.
in u hich the). niight not have an). pariiculïr inieiest thern\clves. miphi lead the;
Io accepr certain proiediires whisli are not stricily in accordance with whai the). 1
conceive the Charter to orovide. But be that asitmav. our sueeestion is al anv
rate that the practiceiihin the organs of the ~nited~ations-&no1 have an;
greater probative value than itwould have had had it been pursued by these
States individually outside the organization.
Regarding themodification of the Charter by practice within the organsof the
United Nations, one mus1accept that the organs do have a role to play in the
evolution of practices which are no1 inconsistent with the Charter and which
relaieIo the internal a.i)rkingsof theOrgaiiization.~l'hliproper fieldin *,hich
prüctice could upcrdte HUI \tewbrnii ihït no practiLe within ihc Organirütion
can alter the meanine of the Charter so as to affect the riehts which Members ORAL STATEMENT BY MR. GROSSKOPF 209
can have no greater effect 10modify than practice pursued by Membersoutside
the organ. In fact. here also, probably less, becausefirstly, the organs of the
~nited~ations on the whole do not consist of al1the Members. ~anv or mo.t~ ~~~~~-~
of the organs have a limited membership and their practice, therefore, does not
represent the participation of al1 Members. Secondly. most decisions are not
taken unanimously, 50 that one normally has a number of States, greater or
lesser,who do no1agreewith a particular decision. Thirdly, the Members when
they take a decision, or adopt an attitude, in the United Nations would verv
seldoiii he sctuated hy rny anintus Io modify ihcCharter. The proceedingq,3si
h3vealready tried to sho\r, are of~n irdhocpolitical nature and delegaiesdo noi
oarticioate a'ith the intention of altering the rubstanseofihe Charter. lndeed the
fourth-point we make is that the delegates to the United Nations are not, in the
ordinary course, authorized 10 consent on behalf of their govemments to any
revision or modification of the Charter.
So. Mr. President. for al1thesereasons.we submittedinourwrittenstatement
that ihe possibility of any modification if the terms of the Charter by subse-
quent conduct, if it were at al1 legally permissible, would arise very seldom in
practice, because one could hardly ever have a situation in whichall thesere-
quirements were complied with.
Now, in the present proceedings, the modification by practice of the Charter
has beenconsideredby other distinguished representatives principally inconnec-
lion with provisions of Article 27, paragraph 3, of the Charter, to which 1 shall
presently come. But 1 would emphasize that it does, of course, have a wider
significance. It is a question which would also arise in relation to the various
powers of the Organization and it could also arise in relation to various other
requirements of a procedural nature. So that, although most others, and we
ourselves, treat of it particularly with reference to Article 27, paragraph 3, it
does have, in my submission, a wider significance.
1 come now, Mr. President. 10 Article 27, paragraph 3. The problem which
is posed here arises, of course, from the words "affirmative vote of nine mem-
bers, including the concurring votes of the permanent members". In Chapter
III. ~aragravhs 13 to 26. we considered the oroblem whether a voluntarv ab-
steniion by = permanent member of the couniil may besaid 10be a compliance
with this provision. A voluntary abstention, of course. is an abstention other-
wise than pursuant to the proviso to the paramaph which vrovides that parties
IO ü dirpuie should;ibstai~from v,>ting. Rut the iuestion trhich ;irises is ihether
pernianent mcmbers \\ho are not requirïd tirh~tsin are nei,crtheleri permitted
to do so without preventing the adoption of a valid resolution.
We ~h~w~d. fi.~~~-~ Mr. President. in mv sub.~~sion. t~at .s a matter of
interpretation, no reiolution can betaken to have ken validly adopted if one
or more of the Dermanent members abstained. That is as a matter of interpre-
talion. in other~words a matter of ascertainine the meanine of -he tex1 as also
the intentions of ils authors. Here, as, 1 submitted, asin al1other cases,the two
in fact coincide. The natural meaning of the English text, in my submission,
~un..rrs this construction-we contended that invar.erao-. 14. of Chanter III
of Our written statement-and it was placed beyond doubt, in oursubmission,
by theequally authoritativeversions in theother languages(Chap. III,para. 15).
~~ ~ trovoux o.énr~~~oires ~ reveal that the text. in fat< correctlv reflected the
intentions of the authors of the Article. We set out to demonstrate that in
varazra~hs 1610 20. Moreover. Mr. President, we pointed out that early com-
meniators on the Charter were al1agreed on this, that a permanent member of
the Council could not properly abstain voluntarily from voting without
causing the failure of the resolution.210 NAMlBlA (SOUTH WEST AFRICA)
So. in Oursuhmission. it seems auite clear that. as a matter of internretation-
thatis, as a matter of ascertaininbhat was meaht by the Charter a"d what was
intended hy its authors-a resolution can clearly not be adopted despite the
voluntarv abstentio~ ~ ~~ ~rmanent member.
Now, ~r. ~resident, thcdistinguished representative of the Secretary-General
in his oral statement. at Qage39. supra. contended to the contrary. He relied
. .-
basically upon a rule of customary law which, he said, had changedthe Charter
but, at the same lime, he did not abandon the theory that one could also as a
matter of interpretation achieve the result that a resolution could be adopted
despite the voluntary abstention of a permanent member. ln contending that,
he was adopting much the same attitude as he had in his personal capacity
advanced in an article entitled "The Practice of Voluntary Abstentions hy
Permanent Members of the Security Council undcr Article 27-(3)of the charter
of the United Kations" u hich appeared in the Afrlrric.onJournalo/'/t~rrrnariu~r~il
I.<IH.Volume 61. Daae737. at ~aees 741 to 742. 1 mus1 iust add thai referenie
wa~~-~ ~ ~ - -10ihis ~ ~ ~ ~~in-théaddendum to the wiitten statement of the
Secretary-General. So that hoth in this article and in the oral statement made
here by the dislinguished re~resentative of the Secretary-General the proposition
wa~ ~~v~ ~ed~that as~a ~ ~ter of intemretation one could somehow reach the
result that the voluntary abstention of a permanent member was no1neces\iirily
FdtaIta the adoption of a resolution. 15h311come ro that latcr. and miphi jus1
add that the di~tin~uishedrepresentative of the Organization of frica a ~nnity
alsosupported him in this contention-that is al pages 91 10 92, supra.
The other comment which has been made in this Court on this topic was by
the distinguished representative of Finland ai pages 66 IO 67. supra; ivhere he
relied basically on a concept of modification. So that in gencral. tu sunl up the
attitudes adonted bv other narticinants here, there is some difference of ap-
proîch betacin theni. The ~écretari-~eneral relied mainly onthee\olution ofa
rule of customary Iaw,and, alternatively, on an interpretation of the Charter by
suhsequent practice within the Security Council; in the latter respect he was
supported by the OAU. The learned representative of Finland, on the other
hand, considered that we were dealing here with a case of modification hy
conduct.
The difference between a modification of a treaty hy conduct and the evolu-
tion of a new rule of customary law is, of course,quite substantial. Theidea of
modification was the one which Mr. Stavroooulos had advanced in his article I
in the American Journal and the concept o'fevolution of a customary rule of
law, which he advanced here, is, in my suhmission, basically something else.
1will come to that later but 1would like to point out at this stage that the two
-
concepts difir in niy suhniission in this respect, that u,herea\ in niodification hy
subsequent practice there must he an intent IO modify-inotheruord\ an intent 1
to change the law. an intent to create a new law-the vew reverse is the ~osition
when oie in deal& with theevolution of customary la; This is so because one
of the elements of customary law, as 1will attempt to show later, is the opinio
juris sivenecessitaris, the contemplation that one is, in fact, complying with the
law, so that there one does not have an intent of changing the law-on the
contrary one has a contemplation that one is acting in accordance with the law.
But 1will come to that later. Mr. President. 1 iust wanted 10 make il ciear al
the outsi th31u,hen Ideal ivith theseconcepts that these two are in fact seplirdtc.
they do in fact invi>l\edilterent principles and dilferent rules.
So. hlr. Presiilent. the three niîin contentions iidvanced befairethis Court are:
firstly, that as a matter of interpretation the Charter perniits of a voluntary
ah~tention by a permanent member; secondly, that a rule permitting such ORAL STATEMENT BY MR. GROSSKOPF 211
volunrary abstention had been established by customary international Iaw;
and thirdlv. that the Charter had been modified bv nractice in order to nermit
such volunt'aryabstention. Those were the three main contentions advancédhere
and 1propose dealing with them in turn; then there are a few lesser ones with
which I shall deal laCr.
Now the first one is interpretation. From what 1 have already said, niy
contention on this will be apparent Io the Court. Nevertheless 1must refer Io
what the Secretam-General's reoresentative said at naees 39-40. snora. In that
passage he referred to the separate opinions of sir-percy ~penéer and Sir
Gerald Fitzmaurice in the Certain Expenses case and he made the ooint that
althouah both these learned iudees wire. in e.ner-l. rath.r ~ ~ ~ ~ ~ ~ ~ ~ ~~-~~~~~ ~
permissibility or the value oi suisequent practice in the organsof the United
Nationsas an aid to interpretation, even Sir Percy Soender, he said, di. oer.it
of it in a certain situation and that situation. the-leamed ~~oresentat~ve ~ ~ ~ ~ ~ ~
Secretary-General said, was where there is "a practice which is of a peaceful,
uniform and undisuuted character acceoted in fact bv al1 current Members".
Where there is such a practice, the repre;entative of théSecretary-General said.
then even according to Sir Percy Spender one could use such a practice in
interpretation.
Now, MI. President, reading the passage from the separate opinion of Sir
Percy Spender in the I.C.J. Reports 1962,page 151at page 195,it iswith respect,
not so clear to me that the learned iudre did say that in these circumstances the
practice of the organs would necessarili beofvilue. It seems to me, with respect,
that al1he did was to admit the theoretical possibility that it might, in a particu-
lar case, so be. However. he was not dealing exoresslv with such a situation and
he did not advert at al1to the weight which aiy such practice might have if ils
use were pzrmissible. In Cdct,ifone reads his opinion as a whole, and has regard
particularly to the stress which he Piaced on the orooosition that subseauent
bractice could be of assistance onl; where there is soie uncertainty or 'mbi-
guity in the text, it seemsclear, in mysubrnission. that thissortofpracticewould,
inhisview,ifoermissibleat all. not have been of anv areat weight in eeneral. and
that it couldreally only have been of any weight-aÏ al1wheie theri was iome
ambiguiiy or uncertainty in the text of the Charter.
The relevant passages from the separate opinion were auoted by us in Chaoter '
II, paragraph 23, and it is not neceisary for me to referio them~again.
That practice can be employed as an aid to interpretation only in cases of
ambiauity or uncertainty is aaain emohasized in the oassaaes auoted bv the
reprc&n~-ativcof the ~ecreldry-C>encralhtmself-l woujd rcfër the Court Ïo the
pasrage quoied by him iitpagc40, ritpro.from the case concerning the Cotizpe-
rztlceof tlzz I.L.O. Also in the Ad»r~rrio»i cas. which he quoted at pdge 41.
mprir (I.C.J. Xeporrc1950. p. 4iiip. 8). the Court rinphaii7ed ihat extrancous
nieïns of interpretation cïn bc rcjurtcd io only in sasrs of ambiguiiy or uncer-
tainty. So there also was no1 a case where suhsequent practice was invoked, or
where ilwas said that it could beinvoked, to change the clear meaning of the
text. In fact in the Admissions case the Court referred to subsequent practice
only after it had found that the meaninn of the words was clear and unambi-
guous. Thereafter it found comfort in the consideration that subsequent prac-
tice was also in accordance with such clear and unamhiguous meaning. But
there wu no suagestion, in my submission. that suhseauent practice could
eiTectan inicrprciition which u,is contrar). io the meanin; of the words.
The furihcr case quoied by the distinguished reprcscniiiti\'e of the Sccreiary-
Gencral was the Consriturionof rht, Muririme Suferv Conimirree cïss (I.C.J.
Reports 1960, p. 150)which was-cited by the ~ecreÏaj-~eneral's representativeat page 41, supra. Ln that case the Court was confronted with a real case of
ambieuitv and uncertaintv in the document itself, and ildid pay attention to the
subse~ue~tpriiciicc. But in general nonc of the cases referred to by this disttn-
guishcd rcprescntativcuf the Sccrctaw-Gencral ivould support an? mod~fication
of the Charter under the guise of interoretation.
1ci)mc nom, Mr. ~resident, to the sciond argument advanccd by the disrin-
guishcd rcpreientati\c of iheScirctary-General. namely thai a rulcofcuuomar)
internat~onal Iaw had cvolvcd which irould perniit the Security Council to adopt
resolutions despitc the \oluntar) ahrtçniion of periiiancnt mcmkrs. Thiscontcn-
tion of hir. of course, musi rest on the baws thal such an absicniion u,as no1
permitted under the Charter as originally framed, so it is really in the nature of
an alternative argument. It is trite law that for the evolution of a rule of cus-
tomary international law there niust be not only a clear and consistent practice
but there rnust also be the opinio juris sive necessifalis, in other words the con-
ception or the contemplationthat the practice is required by or consistent with
prevailing international law.
Ineed hardly cite authority for this but I could refer the Court to the state-
ment by Judge Hudson, when he was president of the lnternational Law Com-
mission in 1950, in the 1950 Yearbook of rhe Commissioti, Volume II,page 26.
Oppenheim states in this regard:
"Int~rnational ~9~r~ ~~ s.eak of a custom when a clear and continuous
habit of doing certain actions has grown up under the aegis of the convic-
tion that these actions are. according to international law, obligatory or
right." (InternarionolLaw,'~~~. 1, 8th ed., p. 26.)
In that reeard. he distineuishes between a custom and a usage. A usage exists
"when a Kabit of doingcertain actions has grown up withoÜt there béingthe
conviction that these actions are, according to international law, obligatory or
ri-ht". He statesthat such usaeed-es not create a bindin~ rule-of international
law. The reference is to the same page of the same work.
Now, Mr. President, Saveto refer to theexistence ofcustomary international
law and to make the contention that it aoolies to the orecent case, the distin-
..
guishcdrcprcseniativc of ihc Secrctag-Gencr~1prcscnicdniiiirpumcntinnuppurt
of his conicnt~on. ItIS my \ubniiss.on that the probleiiis which nould arisc in s
caselike this asa result of the interaction of custom with treatv law are difficult
lndccd and woilld requirc clireful considerîtion. A convention like the Chîricr
embodies lcgal rulcs created by ihc agrcemeni of ihc parties thercto. The Charter
itself makesprovision for its amendment. Now, how can a non-compliance with
the clear terms of the Charter ever have the effect of circumventing these pro-
visions? In my submission, Mr. President, it cannot. In my submission. if
there is a provision for amendment, then that provision niust be complied with
before there can beany revision. and this aspect was not dealt with at al1by the
distinguished representative of the Secretary-General.
The next aspect which, in my submission, requires consideration but was
not dealt with is the whole question of opinio jriris sive necessifaris. Can one
really say that there is any opinio juris in a case like this where the practice is
contrary to the clear terms of the Charter; can one Say that the parties, the
Members of the United Nations, when they adopted this practicc, or when
they participated in it, were under the impression that they were complying
with the Charter in doing so- This asoect, Mr. President. was not canvassed
at al1 by the representative of ihe Sccretary-Gencrül iind. in my submis,~on.
rhcrc is nothing befurc the Court to show thai thnt was in faci so As a matier
of fact one knows the practical and other reasons which have led up to the ORAL STATEMENT BV MR. GROSSKOPF 213
adoption of this practice; they relate to considerations of policy and practical
convenience muchmore than to anycontemolation that what is done is reauired
hv or consistent with the Charter.
Another aspect which was no1 dealt with at al1 was the question of what
sort of practice would have been necessarv to brinz about the sueeestedrule
ofcusi6m3ry la~. At ivhat stage did the priictice crfstalli~e into a rule of law?
Because, asI have noted. this argument must necessïrily rest on the premisc
that, ai Içast initiallg, the conduci of the parties uas not in accordance uith
the Charter Soai whai stagedid thesonduci which aas cuntrary io the Charter
obiain thiselement of legalii)\hiçh the representativeof the Secreiary-Cieneral
contended for?
Furthermore, there is the feature that1 have already mentioned: thac one
is here dealing with an instrument which is open to accessionby new memben.
Now, in theory, how doesa practice which is said to create a nile of customary
law bind States who accede to the convention at a subsequent stage?
In my submission, Mr. President, the concepts inherent in this whole line
of argument-that one can have a rule of customary law, which adds 10 or
detracts from the rights and obligations of parties to a multilateral treaty,
otherwise than hy amending the treaty-create such problems of a legal and
practical nature that, in my submission, this contention cannot be accepted.
The only way, 1 would suggest, in which the Charter could be changed or
amended, would be in accordance with the provisions made therefor in the
Charter itself.
Icome now, to the third main ground upon which it was contended befare
this Court that the voluntary abstention of a permanent Member would not
cause the invalidity of a puruorted resolution. and that is the contention that
the Charter had becomernodijîed by subsequknt practice. That was the con-
tention advanced by the distinguished representative of Finland at pages
69-70, supra. 1 have already pointed out that the distinguished representative
of Finland made no attempt to argue or to present any authority in support
of the proposition that such a modification would be possible or what the
requirements would be.Nor did hemake any attempl to show lhat suchrequire-
ments had been satisfied. He also, in my respectful submission, did not really
discuss the effect of the 1965arnendments to the Charter which would, if his
contention were correct, have resulted in the possihility of a valid Security
Council resolution despite the absence or the abstention of al1 the permanent
members. In other words, Mr. President, this rather vital change which had
taken place inthecomposition of the Security Council in 1965and which would,
in Our suhmission, necessarily have affected this issue also, was not really
deall with in depth by any of the participants who have appeared.
We discussed this whole aspect in Chapter III, paragraphs 34-35, of Our
written statement and 1 do not have to repeat it here. Basically it amounts
to this: firstly that if indeed there was this general contemplation that the
voluntary abstention of a permanent member is permissible, then one would
haveexpected that it would have ken incorporated in the formal amendments
which were effected in 1965.
The response 10 this argument by the distinguished representative of Fin-
land was that this modification was not included because of a general policy
whereby "Other modifications were at that time intentionally avoided so as
not to compromise the success of the main aim". (Supra, p. 70.) But, Mr.
Presidcnt. does this not sumort Our contention? If indeed there was a aeneral
consensus amongst al1 ~imbers of the United Nations that a voïuntary
abstention should he permitted, why would there have been any difficulty214 NAMlBlA (SOUTH WEST AFRICA)
~ ~ ~ includine-it in the formal amendments? There would then have heen no
possihility of thereby compromising the success of the main aim as the repre-
sentative of Finland said; there would have been no possibility of such com-
promising because there bould have been complete unanimity on the part of
everybody that such an amendment would be a wise thing to have.
Secondly, there has also ken no discussion of what eîTectsthese amend-
-~~~s~would have had uoon anv modification that might have existed ore-
viously. We also pointed out in Chapter III, paragraphs-34-35, that had there
been such a modification by conduct before the amendments, it does not
follow that it would necessarily have continued afterwards, because States
might well have ken satisfied or acquiescent in having a possibility of absten-
tion by permanent members where the Security Council was still the smaller
body but might, on the other hand have raised grave objections afterwards
when, as 1 have said, decisions could then, in accordance with this alleged
modification, have been taken despite the abstention of al1 the permanent
members. That, in my submission, would have created such a substantial
change in the suggested modification that the amendments themselves niust
necessarily have cast doubt upon it even had it previously heen generally
~ ~ ~ ~ ~
gose then, Mr. President were the main arguments advanced; there were
also others, apparently subsidiary, with which 1 must nevertheless deal. Thus
the representative of the ~ecretary-General said at page 41, supra, that
the Security Council can determine its own composition and procedure. He
stated that once the chairman has declared a resolution adopted without
objection, the matter is, as it were, res judicatu. In our respectful submission
there are vdrious confusions of concepts in this contention on hehalf of the
Secretary-General.
Firstly, we would respectfully suggest that there is a confusion ktween (a)
the Council's own viewabout the validity of its resolution and (b) the question
whether the resolution is really valid or invalid. Now, Mr. President, it must
be accepted that when a chairman announces that a resolution has been duly
adopted and no member of the body abjects or subjects the ruling ta a vote
of the meeting or some other form of review or appeal, the resolution can be
said ta be treated by that meeting or body itself as if it were valid; sa for the
purposes of that meeting or that body it may be regarded as valid. But that,
in our submission, does not mean and cannot possibly mean that it is ta be
regarded as valid for al1 purposes-for instance, that it is to be regarded as
valid even in respect of a non-member who is potentially affected by it and
who then, if that were so, would be precluded from-relying on a defect in the
. .oorted adootion of the resolution.
Ccrisinly, in Our scbrnijsion, ihat cÿnnot be ihc cdse. thai a non-mcnibcr
niay ihen he prcvented frotn coniesiing the vrliJit) of the decision iïkcn by
the meeting or bodv on the rounds of some irrecularity in its ~roceedings.
It also, in our subm~ssion.d&s noi mciin thai if ulÏ~rnÿieI~the \,iilidiiy of thît
dccision uere to be dispuicd befure a coun of lau thdr a court of Iïw cm bc
precluded from enquiring into the matter and pronouncing upon it. The distinc-
tion there,MI. President, is between the interna1 validity in the meeting itself
and the validity which it would have as against some third party who might
contest it in court and, in our submission, would always be entitled to show
that it was not properly adopted.
A second point in respect of which we respectfully submit there is some
confusion of concept in the contention advanced by the distinguished repre-
sentative of the Secretary-General, relates rather more ta a suggestion made ORAL STATEMENT BV MR. CROSSKOPF 215
by him than something explicitly stated. It arises from the circumstance that
there are of course in various constitutional systems protections for particular
legislative organs against having their procedural matters tested or reviewed
in a court of law. So although we have stated the general proposition that
people can contest the validity of proceedings, one must immediately concede
that there are certain constitutional systems where particular legislative organs
do have the privilege of king the masters of their own procedure.
In British constitutional law such a privilege of being exclusive and final
judges of their own procedure hecame estahlished for each of the Houses of
Parliament through the growth and development of /ex et consuetudo Pnrlia-
menti. It was the result of long historical develo~ment in which the Houses
strongly rcsisied ideas of inicrfcrcncc hy the cuurk of las, and. Mr. Presidcni.
thecourts of Iau in time acquicsced in thisatiitudc of parliament. This historlcîl
proccss is dc5crik.d in constitutional cases such as I.ainbrir*.hutid Dulkcirh
Railway Company v. Wauchope which was reported in 8 ~nglishReports at
page 285, then the well-known case of Bradlaugh v.Gosset, 12Queens Bench
Division, at pages 285-287, and the case of Rex v. lrwin of which 1 unfortu-
natelv have onlv the reference to the Enrlish and Emoire Dieest. .~~~Vo~ ~ ~~~42.
pageo0l. ~his;however, was a peculiar developrneh and because it had thi;
particular nature, it followed that when parliamentary institutions were created
for the colonies by letters patent or other legislation the privilege was not
regarded as heing conferred upon the Houses concerned unless it was expressly
done in the constituent instruments or in associated legislation. This was so
decided hy the Privy Council in the cases of Kiellyv. Carson (1842)4 Moore's
Privy Council cases, 63 at page 88, and Barton v. Taylor (1886) 11 A.C. 197
(P.C.), at page 203. So, Mr. President, this particular privilege which the British
Parliament had in time demanded and obtained was not automaticallyexported
to the colonies. There had to be special provision either in the letters patent
or in other legislation kfore any of the colonial houses of parliament or legis-
lative bodies could obtain such a privilege of being masters of their own
procedure.
The Coirrtadjournedfrom 4.20p.m. to 4.40p.m.
Before the adjournment 1was dealing with the contention advanced bv the
disiinguished reprercntaiive i,iihc ~ecrerary-~eneral thsi the Security d oh cil
can determine lis own compo%iiionand proccdure and ihat. accordingly, once
the Chairman has declared a resolution ado~ted. without obiection. the matter
is. as it were.resirtdicara,
'1pointed out that, in our view, this contention hetrayed a confusion between
two concepts, being, (a) the Council's own viewas to the validity of its resolu-
tion and. (b) the obiective auestion whether the resolution is reacv. as a matter
,.~-~
of fact oi'law, valid or invalid. Secondly, 1pointid out that there are indeed,
in certain constitutions, protections for particular leaislative oraans aaainst
havina their ~rocedural matters tested or reviewed in-a court of law. Ïcon-
tended, however, that where that is the position, it occurred either hy a long
historical process or, otherwise, it was expressly so orovided hv leaislation.
1referred. as an examol.. t. the oosition in Great ~rGain whereboth H-~~~s ~ ~ ~ ~ ~
or Pirliamcni, sr iireult oi'i long hisiorical devclopmcnt. intime rnanagcd ta]
obiain ihis privilege of belne rnasicr ibfthcir oiin rirocedure. but I oointsd out
that that did not apply automatically to colonial legislafures and 1;eferred the
Court to certain cases.
This suhject is further dealt with inHalsbury'sLawsofErrglarid, third edition,216 NAMIBIA (SOUTH WEST AFRICA)
Volume V, at pages 478 to 479, paragraphs 1058 to 1060, and also at page
588, paragraph 1261.The last-mentioned paragraph commences:
"A colonial legislature has no right to privileges of the type enjoyed
by the House of Commons under the lex et consueri~dP oarliamenti and
has only the power to secure the due conduct of its proceedings, save in
so far as additional authority may be taken by legislation." ,
The important point is that such additional authority must be taken by
legislation, otherwise it does not exist. The result was that special legislative
provision was made in such cases where it was intended to confer this privilege.
In South Africa, for instance, it exists for the two Houses of Parliament hy
vinue of a special Powers and Privileges of Parliament Act of 1911.So for the
Houses of Parliament this privilege does exist but it doesno1 exist for our
provincial councils. It therefore follows that from time to time the courts are
called upon to decide on the correctness or otherwise of procedural decisions
in the provincial councils. One example to which 1 may refer the Court was in
the case of Berman v. The Chairmanof the Cape Provincial Counci leported
in 1961, Volume II, SouthAfrican Law Reports 412, at page 414. Now these
are examples of British constitutional law which has also been taken over in
some respects by their colonies and former colonies, but they illustrate the
position which is no doubt true in other municipal legal systems also, namely
that the privilege of king master of its own procedure does not exist in the
absence of either (a) long historical development and acceptance in the par-
ticular constitution ascustomary law or (hl a special provision in a constituent
o~ ~s- - ~ ~ ~ ~strument. In other words. MI. Preside~~. there can be no iusti-
fication for regarding such a privilege as a general principle of law for which
svecial vrovision need not be made if intended to be conferred upon an inter-
'ationaj organ. As far as an international organ is concerned, our submission
is that theordinary position would have to obtain, namely that its procedural
decisions may always be impugned by any third party who is potentially or
actually affected thereby.
A third important distinction to hear in mind for present purposes, in our
respectful submission, is that even where the above privilege exists, it concerns
only questions of procedure, as such, in the legislative assemblies. It is limited
to matters which are purely procedural. It does not extend, in our submission,
to cases where a constitutional instrument lays down a requirement which is
in form concerned with procedure, but is in substance intended as a limitation
upon the legislative powers of the legislature.
That. for instance, occurs where the legislature is reauired for particular
purposés to adopt a special procedure which is more o"erous than its usual
procedure-for instance, a joint session of two houses plus a IWO-thirdsor a
three-quarten majority, or something of that sort. Where such procedural
provisions are inserted in a constitutional instrument, the reasons are very
frequently, if not almost always, in order to protect some special interest or
some substantive right.
Now, in Our submission, where provisions which are apparently procedural
nevertheless serve to protect substantive rights of that sort, the courts may,
and do, enforce them when they are violated by the legislatures.
If one has regard to al1these aspects, MI. President, then we submit that the
claim of privilege for a Security Council decision in the cases under considera-
tion must fail.
Firstly, the question before the Court is not whether the members of the
Security Council have acquiesced in a procedural ruling, but whether a reso- ORAL STATEMENI BV MR. GROSSKOPF 217
lution can be reearded as bindine on a non-memter of the Council notwith-
standing ivhat we contend ta have ben violation of mandatory requirements
of the Charter in the processes of the adoption of the purported resolution.
So, here is not simply a case where a memher of the Council is aftenvards
seeking to upset a resolution which he did not oppose at the lime. Here we are
dealing with third parties who were not parties ta the resolutions in question.
Secondlv. there is no soecial nrovision for conferrine uoon the Securitv
Council an exclusive right or privjlege of deciding whether procedural require-
ments have ben complied with, and, in the absence of such provision, no
such riaht or orivilere exists. In Our submission they have not been eiven the
right titake a.fin.11desision on tliat iiidttcr, but. in our submission, Ïhe C~urr
muri decide uhethcr they in Iact complied urith the prescribed requircmcnts.
Thirdly. we contend thot the reuuirements of Article 27. oaracraoh 3. and ..
Article 32 of the Charter, though in form concerned with procedure, serve the
purpose of protecting kbstantive rights. In respect of such cases it would, in
our submission, te contrary to normal practices to confer on the organ con-
cerned such a special right or privilege, which further, we contend, confirms
that the presumption of such a grant is out of the question.
This also. with resoect, Mr. President. must follow as a matter of aeneral
principle. 1fthe poweis of a body are restricted for the benefit of otheri, or to
protect certain substantive rights, then it must surely as a matter of principle
not normally be in the hands of that very body, whose powers are limited, to
decide whether it has complied or not.
So for al1 these rasons, we submit that the claim made on behalf of the
Secretaw-General that there is some sort of privileae which attaches to the
~ecuriti~ouncil and which would have the result th; it can te the final judge
of whether its procedure has been followed, is not a correct contention.
The final contention with which 1wish to deal was also made bv the reoresen-
iative of the Secretary-Gencral, and that wss his staiement thiit the ionrequen-
ces of accepting Ourcontention$ tiould be extremely far-reaching. lle referred
to the Iarac numher of Security Council resolutions uhich have ken declared
adopted despite the voluntary abstention of one or more of the permanent
members, and he also pointed to the future, saying that the workings of the
Security Council might well be rendered very dificult, or il might he frustrated
completely, were our contentions to be accepted as Sound.
In strict law of course, Mr. President, these are irrelevant considerations,
with respect. and Oursubmission is that if the conseauences of a leaal situation
are far-reaching. or ifthey are disodvontageous. thdt cannot empoair the Court
to avcrt those consequenccs Thc legdl principles niurt be dpplied, irrerpcctive
of where they lead, in my submission. But, in any event, theresults arenot, in
mv submission. as far-reachine as the reoresentative of the Secretarv-General
~~ntended.On any basis, Saveiossibly thébasisof interpretation of théCharter,
some resolutions of the Security Council were invalidly adooted by reason of
the wrongful abstention of permanent members. If one adopts any of the
arguments which have been propounded here, there must be at least some of
those resolutions which were invalid. If one takes the argument that a rule of
customarv law has evolved which must. in some .av. .. b~ ~~oe.imoosed on the
Charter to render these decisions valid in future, then there must have been a
certain oeriod of lime durina which thev were still invalid and durina which this
mle was in the orocess of eiolution. .
~ ~ ~ r ~ ~ ~ ~~~ ~ ~ ~~ ~
The same consideration appltes ii one iiere to consider thoi the Chxrter hos
bcen modilied by ordctice. Theréoaoin, ihc modificîtions uould not hai,eiume
into effect on <hévery fint occasionwhen a permanent member abstained.218 NAMtBiA (SOUTH WEST AFRICA)
There must have been some period during which this modification took effect.
There must have been some course of practice which resulted in the modifica-
tion and durinn this orocess of modification one would then oresumablv have
had certain resoluti~ns that were invalid, certain resolutioni the validity of
which was doubtful, and then after the modification had ciystallized into law,
certain resolutions which were valid.
So on any basis, Save the one of pure interpretation, one must accept that
some resolutions were invalidly adopted.
But from that it does not of course follow. in our resoectful submission
Mr. President, thît thosc rcsoluiions. whether theyhe fcw i);many. :irecntircly
devoid of legdlcfiect, ci,cn today. As \ve hl\< shoiin in our uritten ciatcment,
Chapter III. p.ragr..h 39, in international law one has various processes
whiih mitig~tc the invalidity of 3cts. One has processcs such 3s ac(l"iescencr,
Iîpse of lime, estoppel, and similar ones. ivhich might have had the clïect of
rendering valid resolutions trhiçh misht orieinally haYebeen invalid for non-
comoliak with Article 27. oaraeraoh 3
.. -.
Ir is, in my respstful subniission. no! for us to go inro al1of these nor would
WC be physi<allyable ro do so but 1ivouldjust niake the point that 11doci not
follow~fromour argument that al1these other resolutions are now invalid; al1
we are saying and al1we are asking the Court to find is that the particular reso-
lutions with which we are now concerned are invalid. The fate of the others is
not now before the Court and it does not follow ipsofacto that they must also
necessarily be invalid.
For the reasons 1 have advanced, Mr. President, we contend that our argu-
ments wncerning Article 27,paragraph 3, still stand and that the relevant reso-
lutions of the Security Council are, by reason of nonsompliance with that Ar-
ticle, void of effect.This then deals with the first part of our argumerit concern-
ing the formal validity of Security Council resolutions. We still have certain
further contentions on that subject, relating to the provisions of Article 32 and
to the proviso to Article 27, paragraph 3. ORAL STATEMENT BY MR. WIECHERS
REPRESENTATIVE OF THE OOVERNMENT OF SOUTH AFRICA
Mr. WIECHERS: Mr. President, honourable Members of the Court, in
view of the oral submissions made by the distinguished representatives of the
Secretary-General and other member States, it has become necessary for the
Government of South Africa ta give further attention ta the contentions con-
tained in its written statement. as reeards the scooe and annlicabilitv of the
proviso to Article 27(3) and of~rticle32 of the charter of the United Nations.
We shall show that, in the oral submissions presented to this Court. the con-
tentions raised bv the South African Government have not been met and that.
for the rest, these submissions are based on an incorrect interpretation of thé
meaning and scope of these Articles. For.reasons of clarity. 1 propose, in this
.. . .
resoect.brieflv t6 summarize the conten~ ~ns~adv~ ~ed hv the Sout-, ~ ~ ~ ~ ~fric~ an
Government. ihereafter, thesubmissions made by the other distinguished rep-
resentatives will be dealt with.
Firstly, the submissions made by the South African Government: the South
African Government, in its written statement, submitted that there was a dis-
pute between South Africa and other members of the Security Council and/or
the General Assembly at the tirne when Security Council resolutions 264, 269,
276 and 284 were adopted, and as a result thereof:
fa) Members of the Security Council who wereparties to that dispute should,
in terms of Article 27 (3). that is ta Saythe proviso ta this sub-section, have
abstained from voting (in this respect, see Chap. III; para. 41, of written state-
ment); and
(b) South Africa should, in terms of Article 32, have been invited to partici-
pate in the proceedings of the Security Council antecedent to the passing of the
above-mentioned resolutions. (1refer you to Chap. III, paras. 51-55,of written
statement.)
Xonc of tlie~cparticular objections raised by the South African Governmenr
was deali wiih by the Secretary-General or pariic~patingStates in written state-
ments to this Court. In their oral ~e~resentations,some representatives did,
however, deal with them. Al1of them who dealt with these objections in the
oral submissions suggested to the Court that it should not uphold the objections
raised bv the South African Government.
It shiuld be noted that the mandatory nature of the provisions was not in
any manner contested. Indeed, the distinguished representative of the Secretary-
General exoresslv conceded the mandatorv character of Article 32. and this he
did at page 41, supra. The contentions were mainly directed at 'denying the
existence of a dispute within the meaning of the provisions in question.
Before 1came io deal with this main a~eument-1would like ;O answer some
subsididry .irgunients raised by the disiinguishcd representatives.
In hl<Ji>sussiun of the applicability of Article 32. the distinguished rcpresen-
tati\,e or the Oreanilation of African Unit\ refcrrcd. at naee 92. ,rioru. ta the
. .-
Advisory opinion of this Court concerning the Inrerpretation~&ce ~reafies
with Birlgaria,Hungory and Romania,I.C.J. Reports 1950, page 10 at page 71,
where it was stated that:
"It follows that no State, whether a Member of the United Nations or
not, can prevent the giving of an Advisory Opinion which the United Nations considers Io be desirable.. . ta obtain enlightenment as ta the
course of action it should take."
Now, u.ith respect. the relevance of this quotaiion is no1 altogeiher clear.
11has never been ruggeited that South Africî. by no1 king invited io pxrtici-
paie in the discussions of the Seciiriiy Council, prevented or endcavoured io
orevent the Court from xivina an advisow ooinion. What has been contendcd
1sthat the organ whichasked for the advisbry opinion, that is, the Security
Council, byitsown non-compliance with the provisions of the Charter, has not
made a valid request for such an advisory opinion.
The distinguished representative of the Secretary-General also raised other,
more or lessindependent, considerations, namely:
Firstly, that the Security Council is under no obligation ta invite a non-
member to participate if the matter under discussion has not as yet been deter-
mined Io be a dispute-I refer you ta page42, supra. The rather startling result
of this argumentation would be that if the Security Council chooses not ta
determine the nature of the matter which is under its discussion, or if the
Council's attention, for some or other reason, hasnot beendrawn to the nature
of that matter. then Article 32 ceasesto aool..no.withstandinr . the fact that
Article 32isiin objective legal rule nith mandatory force. and dso notwith:t;ind-
ing the f2c.t thdl the niilter ~nder diwusiion might vers well bein the ndrurc of
a disoute. Stated terselv. the areument of the reoresentative of the Secretarv-
Genéralwould bc th31if the ~cc;riiy Council doe; no1want. or forgets. io 3pp&
Article 32.that Articlecimply hdsno need IObc~pplied,e\en ihough,objecti\e-
IV.there doesexist a disoute:~his is surelvindir&toooos.t.on to hisreco-nition
of the mandatory character of Article 3i.
Secondly, at page 42, .supra, the representative of the Secretary-General
then goes on ta state that:
"The characterization of the question brought Io the attention of the
Security Council-the consideration of which led to the adoption by the
Council of the resolutions rejected by South Afnca-appear in the com-
munications addressed ta the Security Council and in the requests for
meetings. [And that] in no such communications and requests, nor during
the debates, has the question of Namibia been referred ta as a 'dispute'."
Therefore, he contends, it is not a dispute, but a situation. This, with respect,
is another startling argument. Surely the neglect of the Security Council, for
the reason stated here by the representative of the Secretary-General, to apply
the provisions of Article 32, can never be advanced as a justification for the
Security Council's non-compliance with the peremptory provisions of that
article.
Thirdly, at page42, supra, the representative of the Secretary-General States:
"Perhaps even more significantly, South Africa never demanded, at any
relevant time, that it be invited under Article 32 of the Charter Io partici-
pate in the relevant discussions.''
It is very difficult Io understand the relevance of this remark and also his con-
clusion at page 43, which goes ta the same end:
"Article 32 of the Charter was therefore not applicable and, until the
present case,South Africa has not itself argued that it was.so applicable." ORAL STATEMENT BY MR. WlECHERS 221
How can these remarks be reconciled with his argument at page 41 that there
is no disagreement on the mandatory character of Article 32 and that the Se-
cunty Council has the obligation to invite a State which is a Party to a dispute
to participate? Surely, if the matter of South West Africa was a dispute, the
Security Councilhad to inviteSouth Africa to participate, whether she demand-
ed it or not.
In passing, it must be remarked that the representative of the Secretary-
General, at page 42, supra, also, reverted ta Article 31 of theCharterand Rule
37 of the provisional rules of procedure of the Secunty Council in order
to mention that:
"Except for rare instances, the invitations to participate in the debate
on the substance of the matter have been granted, upon request, under
Article 31 of the Charter or under Rule 37 of the provisional rules of
procedure of the Council."
And then the distinguished representative went on to Say:
"There is no doubt that in that case the Security Council, if it had con-
sidered that the interests of South Africa were specificallyaffected, would
have agreed to South Africa's participation."
Again, the relevance of this argument is not quite clear. The fact that the South
African Government did not avail itself of its opportunity, according ta the
provisions of Article 31, can surely not deprive it of its right to be invited to
participate under Article 32, which has a mandatory character.
Having dealt with these subsidiary arguments, 1 now came ta the main
reason advanced by the distinguished representatives why the provisions of
Article 32 and the proviso to Article 27 (3) did not find application in the pro-
ceedings of the Security Council antecedent to the adoption of resolutions 264,
269, 276 and 284. The gist of the representations is, apparently, that the South
West Africa question, in the way it came before the Secunty Council in 1968,
1969and 1970, was not a dispute between legal suhjects, that is, States, but an
abstraction labelled a "situation". This beine the main argument used bv the
distinguished representatives, 1 shall now ~roceed ta deal kith the distinction
between a dispute and a situation for the purposes of Article 32and the proviso
to Article 2713)
In rluing this 1shall refer hrieny to the Judgnient of this Court, Io the Fdctson
iih~chSouth Africd ciintends thdt thcrc isa rlir~iitc.the opinion of one emincnt
oublicist. and the oractice within the S~c~ritv ~,un-~l itself.
1.~irs;ly, ihe Judgmcnt of rhe International Court of Justice of 21 Deceniber
1962.The conflict which led in the contcntious ~roceedings betircen Ethiupia
and Liberia on the one side. and South Africa in the other side. involved the
. ~ ~ ~~~ ~
presence and actions of South Africa in the~irritory of ~outh'wes! Africa.
That basicconflictcontained questions such as the continuance of the Mandate
and the succession of the ~nited Nations to the supervisory powers of the
League Council, and the obligations of South Africa towards other States and
the inhabitants of the Territory.
As has been argued in the written statement of the South African Govem-
ment, in paragraph 41, Chapter III, 1, p. 417, ifit isaccepted that the Judgment
of this Court on the Preliminary Objections (South West Africa cases, First
Phase. I.C.J. Reoorls1962. o. 318). iscorrect. then it must follow that the Ques-
tion &rtaining in the lepdlstatus if~outh West Africa and the attendant mat-
tcrs nientioned ïbo\e rest un a dispute hetaeen South hfrisa and other lem-
bers of the United Nations.222 NAMIBIA (SOUTH WEST AFRICA)
~l~ ~ ~ ~~~-this resoect to draw the attention of the Court to the written
statement of the outh hi fri coavnrnment, Chapter IV, paragraphs 31 to 38,
where the dispute underlyi.g -he 1962contentious South WestAfiica cases is
explained in detail.
Turning to the decision itself, at pages 343 and 344 of the 1962Judgment,
the Court found that any disagreement between South Africa and other ex-
members of the Leaeue of Nations as to the scooe and the anoiic. .litv of the
provisions of the hlandate-thus also a disagreement on the question of hnw
the nioral and materidl wcll-king of the inhabitants of thc Territor) should he
promoted-constitutes a justiciable dispute for the purposes of ~rticle 7 of the
Mandate
- .-.-- .-.
In its preliminary objections, the South African Government contended, in
1962,that the matter brought before the Court had ben dealt with only in the
United Nations and that it could consequently not be said, within the meaning
of the com~rornissory clause of the Mandate, to be a dispute which was inca-
nable o~ s~ ~lement bv.neeo-iations hetween South ~frica and the annlican..
States. This, of course, bears on the provisions of the compromissory clause,
Article 7 of the Mandate. A propos of this contention, the Court held, at page
346 of the Judgment:
"The number of parties to one side or the other of a dispute is of no
imoortance: it deoends unon the nature of the auestion at issue.If it isone
of mutual interest to many States, whether in an organized body or not,
there is no reason why each of them should go through the formality and
oretence of direct neeotiation with the common adversarv State after thev
have already fully participated in the collective negoiiations with the
same State in opposition." (I.C.J. Reports 1962.)
The latter finding of the Court was further explained in the separate, support-
ing opinions of Judges Bustamante and Jessup. In his separate opinion, the
former Judge remarked:
"... for several years the two Applicant States, in their capacit,~as mem-
bersofcertain orpansandcornmitteesof the UnitedNations. have maintain-
ed of vie; iundanienially aippi)ied Io thorc olthe ilandaion. uith
regard IO the interpretation of various provisions of the hlanddte and
uith regard to the application of the Mandate hg the \landïtorg in a
seriesof concrctccüses. A disputc could noi have heen more clearly estïh-
lished." (lbid..p. 381. italics added.)
Judge Jessup, at page 436, remarked:
"An international organization may indeed be something more than the
sum of its parts, but, to change the metaphor, one must not overlook the
trees when one sees the forest.
There are numerous instances in the history of the United Nations where
it might be said that certain States which are in a rninority in the voting on
some action to be taken by the Organization, have a 'dispute' withthe
Organization, ..."
that is to Say,a dispute with the Organization. And then Judge Jessup goes on,
and 1would like to emphasize this:
". .. but it cannot be doubted that in many of these cases the States in the
minority also have a 'dispute' with certainStates in the majority and that
the latter States can easily be identified"(ibid.,p. 436). ORAL STATEMENT BY MR. WIECHERS 223
At this stage 1 would like to emphasize, as Mr. de Villiers did in support of
the application for the appointment of an ad hocjudge in the present proceed-
ings, that there was a divergence amongst the Memkrs of the Court on the
question whether manifestations within the UnitedNations were sufficient for
constituting a dispute within the meaning of the particular compromissory
clause. Even if one supports the minority view, as South Africa did and still
does, this becomes immaterial for nresent nurposes since the matter has now
gone very much further. In m3nyimport~ntinstanccî, and previi>us io the
Security Council's dealing irith thc matter in 1969, the ditïerences of opinion
and the conilictinp. aiririides hü\c extende(ri>the direct inter-Stnre level. An
explanation of askts of this development is to be found in the compte rendu
of this Court of ils closed session, pages3 and following, supra, and 1 do not
want to reneat them here.
Refi,re ldciil uith the iihove-mentioned dicta of the Court,ilu,ould beuorth-
while Io rwù11the conieni, that isIO say the suhject-iiiùtter of the Jiçpute a'hich
the Court in 1962foiind IO exisr bctxeen South Africii andthcariril:cantStùtes.
Thc ci~ntentof ihat dispute wasthe continuance of rhc ~andùte.in othcr uords
the starus of the Territory. and the obligation5 (ilthe hlandaiory vis.i-vis the
inhabitants. esr>eciallythe ~romotion of their material and moral well-beina.
and the obligations of the Mandatory towards the United Nations and ig
Members, particularly as regards the submission of the Mandatory to super-
vision by the General Assembly.
As 1h3t.c already inJic~rcd.the rcprcsenutivc of the Secrerary-Generül, in
his oral subnl~ssions,suggesredth31 the dispute betuccn South Africa and ihe
othcr menitcr States of the United Nations. which the Court in 1962 found
Io exist. by 1969reiol\ed itself into an abstract "situation".At page 43, supra,
thiit rcpresentati\e a\,crrcd: "This [the marter befurc the Security Council in
19611.1969;inJ 19701ua5 iig.~cstion fiindarnentally djtlerent froni thùt tihich
had been before the court in-the contentious south West Africa cases."
Although not disputing the Court's finding that "the number of parties to
one side or the other of a dispute is of no importance" and that "it depends
upon the nature of the question at issue"-cf. the Judgment of 1962 in I.C.J.
Reports 1962, at page 346-the distinguished representative of the Secretary-
Generalclaimed that, and 1quote his exact words, "the nature of the question
regarding South West Africa, has changed fundamentally since 1966".
However, if one analyses the Security Council resolutions pertaining to
South West Africa of the years 1969 and 1970-and 1 think only those two
)eïn are important hcre Io note hecauseal1 the Security councii resolutions
which are of iniportùnce in the present case have been adoptcd during thosc
tuu lars-and also Gcnernl As5cmhlv resoluiion 2145 ol 1966,un uhich thsy
werefounded. one still finds rhat theauestions uDon which ~outh~fricaand
other ~embeis of the Organization d&remain'basic& the same,although
admittedly. some aspects have,over the vears. beenadded. It can bestated that
exactly the same dispute ,$hich underlx; the South IVrst Afiicu casesin 1962,
Ied up, aftcr the Judgmenr of 1966, IOthe purported rci.ucùtion of rhc .Miindate
by the General A>rernbls and the cnsuinr resolutions of the Se~urits Suuncil,
in regard of which the court is now being asked to give an opinio"
To put itin other words: the crucial and over-al1aspectof the dispute was by
1969, as it is now in this Court, whether South Africa's continued presencein,
and administration of, South West Africa, waslawful or unlawful. This depend-
ed essentially on the validity of the purported termination of the Mandate.
That purported revocation rested on the disputed assertions of general viola-
tions hy South Africa of ils essential obligations. So this basis of the dispute 224 NAMIBIA (SOUTH WEST AFRICA)
was still very much the same as the basis for the dispute which existed from
1960 uo to 1966 when this Court dealt with the South West Afii,a ~ cases.Since
then, other elemcnts for dispute came 10 be added, that is, disagreement 3s to
the power of the General Assenibly and the Securily Council 10take the actions
which the" did. The matter was fÜllv dealt with bv-~r. de Villiers in ~h~ ~~o..~--~-..-
hearing and Iwish to refer particuiarly to the simmaries at pages 9 and IO,
and 16 and 17, supra.
It is therefore submitted that the dispute which was before the Court in 1962
remained fundamentally the same, although not in al1 the exact trimmings.
The fact that the whole problem of South West Africa since October 1966has
gained in dimensions and complexity, only emphasized the growth of the origi-
nal dispute; it can in no way be said that that dispute has thereby been elimi-
nated or ceasedto exist.
To summarize, our submission is that the present dispute which concerns the
legality or not of South Africa's presence in South West Africa, is a dispute
which finds its origin in and indeed developed from the same dispute that was
before the Court in 1962and, of course, in 1966.The basiccomponents of that
dispute remain the same, although its development within the United Nations
and on an inter-State level has brought many new causes for divergent and
conflictinp vie>%,-points,for example,~conflicting vicw-points conceriing the
pouers of the organs of the United Nations. the legal validity and force of
General Asïenibly 3nd Security Council resoliitions and the duties of memkr
Statesto giveeffect to theseresolutions.
Mr. President, Members of the Court, in its final analysis the primordial
element of the dispute of 1962 which, in Our submission, was and still is the
promotion of the material and moral well-king of the peoples of South West
Africa, remained exactly the same when the matter of South West Africa was
discussedand decided upon by the Security Council in the years 1969and 1970.
Whatever the~t~c~ ~ ~ ~issuesabout this mav have,beeno~ ~ ~ ~ticular occasion. ~ ~
it would simply not make practicalcommon senseto deny the existence of the
basic disoute about this matter between South Africa and other United Nations
~emberi over avery long periodolyears.
Il.Secondly, 1would nowlike to refer to the opinion of an eminent publicist
as regards differences between a dispute and a situation for the purposes of
Article 32and the oroviso to Article 27 (3).
~~~.
The late Professor Georg ~ahkin hiihonumental V6lkerrec Vorlme IL.
1961,writes at oage 228 asfollows about the distinction between a disoute and
a situation for the>urposes of the proviso to Article 27(3) andArticle j2:
"The concept of a situation is wider than that of a dispute. Every dispute
restson a situation, but every situation is not a dispute-situation. A dispute
exists in the fact that there are two oarties [or.~or~~of coursel. who.,old
conflicting convictions. The one demands a thing, which is formulated
more or lessconcretely and which is denied or refused by the other party."
[Ijust want to remark that this is my own free translationfrom the ~erman.]
Applring this distinction to Security Council resolutions 264. 269.276 and
284, il(5ckar thït althuugh ihcy could also largcly be said to rest on 3 certain
situation. itis nioreovcr pitent thdi th.s situ3tion has al1 the characteristic.; of
a disoutc-ïituation. This contention is cledrly hornr out by the Tact thai 311
theseresolutions reflect and indeed find the; raison dërrein the conflicting
views of South Africa and other members of the Security Council and/or the
General Assembly.
It should also be noted that Professor Dahm, at page 228 of Volume II of ORAL STATEMENT BY MR. WIECHERS 225
his work, is of the opinion that the proviso to Article 27 (3) should be given an
extensive application, even though of course it might result that the Security
Council. for that reason. finds itself unable to exerci& ils wwers under chauler
VI. The redson for this view, although not expressed by the eminent auihor
himself, is, in my submission, altogether clear: ilis namely the consideration,
which is -ood in law as well as in ea.it-. that the S~~~ritv Council shoul-~not
expressitself on a dispute if more than six of its members are themselvesparties
to that dispute. The fact that so many of its members have, in some way or
other, committed themselves may afïect the soundness and impartiality of the
recommendatory resolution which has to be passed by the Security Council
under Chapter VI.
III T.hirdl...1 should likenow to discuss brieflv the oracticeof the Securitv
Coiincilïr regards thedistinction betwccn 3 disputéand 3 situation forIhr pur-
porcs of ihc proviso tuArticlc 27(3) and Ariiile 32.
In cxdniinine the oractice of the Securiiv Council iisclf. itisoossihle to auotc
from many deGatesduring the course of tiie years in which mémhersexpréssed
themselves very clearly that the Council should never simply assume that a
matter coming before~it is a situation rather than a dispute without having
heard the parties concerned. It will suffice to quote one or two statements to
this effect.
On 10 December 1946 Judee Padilla Nervo. who was then the Mexican
delegate to the Security coicil, in a discusiion of the Greek complaint
concerning thesituation in Northern Greece,rernarked asfollows:
"In London 1stated that it would be unfair IO any State if this Council
intended to decide the secondary question of whether there was a dispute
or a situation solelv on the hasis~of the comnlaint or letter sent hv-the
~--~~ ~
complaining ~&e] khich would be at libertyio cal1the case a situation,
thereby eliminatin the oossihility of the other State's being heard in
accordance with gicle 3i.
My idea is that those States [in that case it wds Albania and Bulgarial
should be heard. If, after they have ken heard, this Council decides that
this is just a situation and that. therefore, those States should not take
part without a vote in the discussion, that is another matter. But 1 believe
that we cannot decide the secondary question of whether or no1 this is a
dispute." (1refer to the SC, OR. 1stYear, SecondSeries,at p. 535.)
Then towards the end of the debate on the samequestion Mr. Padilla Nervo
sounded a warning: "1 think this Council must not assume anything. This
Council could act objectively only after hearing the facts, and we cannot hear
the facts if the partiesconcerned are not called to this table." (Ibid.,P. 541.)
Mr. Padilla Nervo. i~.this st~te~ent. did not indicate what criteria the
Security ~ouncil, for purposes of Article 32, should apply to determine whether
a matter is a dispute or situation. and he also did not express himself on the
question whether-such adetermination would be final and binding on memben,
but he did make it clear that before the Security Council makes such a deter-
mination the parties concemed should be heard, thereby emphasizing the
imoortance of full comnliance with the mandatorv orovisions of Article 32.
ihc scc"nrl exûniplc ironi the practicc of the ~cL.irit~ Caiuncil ahiih 1ai,iild
Iikc to rcfer to uc tind in the Sccurity Council dchxie of Ih hugu~t 1951<inthc
Suez question whcre the Egypiian dclcgatc, quoting the deled.ite ofthc Un~tcd
Kingdom. hlr. Revin. in a previi)ur dchatc, gave the folluwing rather concise
delinition ofa dispute for purposesoftheproiti~otoArticlr' 27(31: "If a State makes a charge against another State and the State against
which ilis made repudiates or contests it, then there is adispute"(SC,OR,
553rd Meeting al p. 23).
The general tenor of lheseremarks and of the opinions e.xpre!sedby niemkrs
of the Security Council during al1 ihc ycars aar aluïy, that: F!nrly, for ihr
purpuses of Article 32, the Security Council should not himply assume, when
a niatier conies hefore 11,thee.xistenceof 3 niere ab,tract situ3tion: furthcrmore
that 11 is, particularly in view of ihe mandaioiy proviiions of Article 32,
incumbent on the Security Council when a matter cames before il, to imite to
hear the parties in order to determine whether a dispute does exist or not;
Secondly,for the purposes of the proviso to Article 27 (3):a member should
abstain from voting if. ~revious to the Securitv Council's dealinz with a given
maitcr. hç has actëd inthüt s3me rnatter in &ch 3 way ihat hi;actionshave
ken coniestcd or repudidted by another iiiember of the orgünization.
1 deliberately use the word "act" in order to signify that 1 mean something
more thdn a mere objective expression of opinion or difference of opinion. By
using the word "act" 1 mean something to which-and 1 do not try to be
exhaustive in this rea-rd-there attaches an element of demand. accusation.
challtngeor rcpudiationof title. or authoriiy.orthe Iike.
Mr. President, honourablc Memhcri of thc Court. Inow came to my cm-
clu~ion.
In the light of the aforcgoing. il 15subniitied by the South Afriian C;i)vern-
Neni that the Sesurity Council, in no1 üllouing South Africa to particip3te in
itsdisiui\ions prior ro the adopiion oi Sc;uriiy Council resolutii)ns 264. 269,
276 and 284, violated the mandatury provisions of Article 32of the Charter. Il
is the subinimion of the South African Government that to discard the mdn-
datory. .ovisions of Article 32 becausea rnatter issimolv.l.belled to bea "situ-
aiion" u,,>uldaniouni io iophisiry in iis inost nbstrïci and cynical form.
It is also ,ubmiited, for the reïsons advanced in ilie written $tatement of the
South African Government as well as those supplied by me here today, that
the 13 members of the Security Council who participated in the discussions
and look part in the voting on these resolutions have, through their previous
deeds and the exDression of their views. revealed themselves to be narties to a
dispute of which'~outh Africa is an opposite party and that they should there-
fore have abstained from voting. In this regard 1refer to their ~articipation and
votins in the General ~ssemblv on resolufion 2145 which ouroorted to revoke
the Mandate and, as has beenShow in the oral submission b; Mr. de Villiers
10 the fact that many of these States also on a direct interdtate level carried
this dispute much further and that therefore this dispute al a practical, inter-
State level resulted in some very definite clashes of opinion and conflicting
views with South Africa on the very same matter, i.e., the presence of South
Africain the mandated territory.
To conclude, I wish to repeat that the dispute which existed in 1962, and
which then led this Court to passjudgment on the existence of such a dispute
between South Africa and other Members of the United Nations. still exists
today and that, although the original dispute has gained in during
the las1years, no1 only in the United Nations Organization itself but, as 1have
said, also on a direct inter-State level, it is still that very samebasic divergence
of conflicting views on the promotion of the material and moral well-king of
the inhahitants of the Territoiy which forms the basis of Security Council
resolutions 264,268,276 and 284.
Our submission is that Article 32 and the proviso to Article 27 (3), although ORAL STATEMENT BY MR. WECHERS 227
supenïcially they may seem to be in the nature of formalproceduralprovisions,
in tmth entail much more, as has been pointed out by my learned friend Mr.
Grosskopf. They present a basis on which memhers have agreed to submit
their disputes to the Security Council. As such they are binding conditions
under which the Security Council can exercise ils oowers for the oacific settle-
ment of disputes and the maintenance of world péace.If the ~ec;rity Council
does no1 fulfill these conditions, it does no1 simply neglect rules of procedure
but it in fact transgresses ilspowers under the Charter.
MI. President, honourable Memhers of the Court, by baptizing the South
West Africa dispute, which confronts South Africa with other Memhers of
the United Nations Organizations and which has evidenced itself on manv
levels over the course <ifmany years. slmply as 2 siluillion, hlr. ~tavro~oulo~
did no1dispense wiih the objcciion rüiscd hy the Soulh African Governmcnt in
this respect.Allow me to conclude. perha~s in a liehter vein. this exolanation
of mine-by quoting the Russian delegale, MI. ~romiko, al the ~ecuri&Council
meeting of 10 December 1946,during the debate on the same question which
we mentioned before, i.e., the Greek complaint concerning the situation in
Nonhern Greece. He said "1 do not think that it would beappropriatefor us
to follow the example of one of the characters of the French writer Dumas.
This r>ersonaEewanted to eat meat on a dav in Lent and killed a chicken. He
roastëd it and ate it, but before doing so he baptized il and called it a fish. Of
course, the chicken did not become a fich as a result of this, nor will a dispute
become a situation because the Greek representative calls if a situation."
(SC, OR, First Year, 2nd Series,p. 537.)
The Court rose or 5.50p.m. ORAL STATEMENT BY MR. WALL 229
Secondly, it is said that even if the Assembly's temination was legally
defective, the subsequent action of the Council cured the defect and invested
the termination with legal validity. There we have the written statement of the
Government of Nigeria at page 895 in the written statements, 1,and the oral
statement of the distinguished representative of Pakistan at page 142, supra.
Thirdly, we have the proposition that the General Assemhly and the Security
Council. acting together. could terminate the Mandate even if the General
Assembly, acting îïone, could nui do so That proposition is to be round in the
written staiement of the Governiiicni of the United States ai page 877. 1, and
in the oral stiitenicnt of the disiingui~hed representativc of the Secrctary-
-~ne~al ai .aeU~~~2-5~ ~su'ra.
MI. President, these are startling propositions indeed, but the fact remains
that they have been made. Now, 1 would refer the Court only ta the following
passagesfrom the various statementssuhmitted in thisconnection.
One is the written statement of the Govemment of Nigeria ai the place 1
havejust indicated, where it isstated:
"Even ifthe General Assemblyresolution 2145 (XXI) wereto heregarded
as defective by itself, it has acquired the force of a Security Council
resolution hy its adoption and -affirmation hy and in the following
Security Council resolutions ..." [written statemeni, 1,p. 895).
Then operative paragraph 1 of resolution 2b4 and operative paragraph 3
of resolution 269 are quoted, and reference is also made to resolutions 283 and
276,apparently to show the truth of the main statement.
Much the samc contention was voiced, MI. President, hy the distinguished
representative of Pakistan, who said in his oral statement:
"It is submitted that the General Ascemhly resolution 2145.(XXD of
27 October 1966was of a hindingnature. In any case defect therein, if any,
was certainlv cured bv the subseauent Security Council resolutions which
confirnisd ihc ierniinition of th; Mand~tc. ~ven in the gcnerîl case the
General Assembly rcsoluiions cîn kcomc bindind uhen ihc Security
Council adopts thcm in ils desisions."(Supro, p. 142.)
Next there is, in the written statement of the United States Government,
this passage:
"If there were any doubt that the General Assembly alone could do so
[that is. terminate a mandatory's authority], surely the General Assemhly
and Security Council acting together could make such a decision; bath
those organs have decided that South Africa's rights under the Mandate
have been terminated." (Written statement, 1,p. 877.)
Finally, there isthe oral statement of the Secretary-General to which I wish
to refer, in which he too appears to consider that the mere endorsement hy the
Security Council of resolution 2145 (XXI) would have the effect of rendering
it valid. 1refer here to page 53, sripro. where the distinguished representative is
reported as follows:
"11may berecalled that of the two States, South Africa and Portugal,
castin- nee-tive votes on resolution 2145 IXXI)~ the..atter advanced as
one of ils arguments that the resolution went beyond the competence of
the General Assembly, that under the Charter, the Security Council is the
decision-making organ. Whatever legal questions one may have had230 NAMIBIA (SOUTH WEST AFRICA)
concernine the rieht of the General Assemblv to act alone. or the rieht of
Ïhe ~ecuriÏy ~ouncil to act alone-and 1 muil emphasize that in theview
of the Secretary-General there can be no doubts on this point-it cannot
be denied that the combined action of both principal organs with respect
to Namibia is effective beyond any constitutional or legal challenge."
That, Mr. President, is indeed a startling statement-"it cannot be denied
that the combined action of both principal organs with respect ta Namibia is
effective beyond any constitutional or legal challengen-where there is some
doubt asta whether the prior organ would have had the power under the Char-
ter to do asit did.
Now the first thing that strikes one about al1thesestatementsis that they are
that and no~ ~~~ more. Thev are~.ade without anv attemot whatsoever to
suhstÿniiaie ihciii. Thcy ignore coniplcrcly ihc full argunicni ofmy <;i)vernment
in Part H.ofChapter V ufour \i,riiicn ~iiienlent, 1,and 1rcfer hcre io paragrophs
...o 15. ~ ~ ~ ~ ~ , ~e s~ ~ ~ ~ ~~~how that Securitv Council resol&on 276 of
1970,Iikc the othcr relevant rïci)lutions of thc Cuiin.'il, ir hasedeniircl) upon
thedecision oftheGrnera1 Al,emhly in ~~ragra~h4ufrcsrilution 214S(XXI) Io
terminate the Mandate over South ~esi ~frica;to deny South Africa any other
right to administer the Territory and Io place it under the direct responsibility
of the United Nations. No attempt is made by any of the participants in these
proceedings to meet or refute any of the information given in Part B of Our
statement, or the conclusionsclearly flowing from il.
Mr. President, the most important first point I wish to underscore, and this
with reference to an undisputed record, is that the essential dependenceof the
Security Council's action upon the prior action of the General Assembly
appears clearly from the Council's own evidence as to what it was doing or
purporting ta do. It appears, Mr. President, in both a positive way and in a
negative way.
Let us, first of all. look at what the Council did notdo, or did not purport 10
do. It did no1purport to investigate or consider, firstly, the question of whether
there was, or in 1966had ken, justification for terminating the Mandate for
South West Africa. It did not investigate or consider whether the General
Assembly had the legal right or power ta take a termination decision. Thirdly,
it did not investigdte or consider whether, if the Security Council had been
asked to do sa. it would have beenwithin its uowersto terminatetheMandate.
In the result it is not surprising ta find that ihe Security Council did not pur-
port to terminale the Mandate itself or to confirm anything the General As- 1
sernbly had done in that regard.
Stated positively, what the Security Council did was to assume or accept,
without question or investigation, that the General Assembly's decision was
justified,valid and binding, and to proceed upon that basis with a view to im-
plementing that decision.
The evidence of this is clear and unmistakable. It is supplied both by the
terms of the relevant resolutions themselves and from the debates and the
correspondence preceding the adoption of those resolutions. Mr. President,
without repeating the contents of al1 those documents, already dealt with in
Our written statement. 1would look again at some of the main points.
Thus, for example. the 46 States which in hlïrch 1969brought the question
ofSouih West Africa io the nuiiccofthcSecuriiy Cuuncilihem~cl~ç~rr'co&nizeJ
ihai ituas the Asreniblv which had tcrminated ihc Alandaie. or a1 3ny raie
purported to have done ;o. In their letter to the President of the Council, which
was referred to in paragraph 8 of our Chapter V, these States wrote: ORAL STATEMENT BY MR. VIALL 231
"Your Excellency and the members of the Security Council will recall
that the General Assembly, by itsresolution 2145(XXI)of27 October 1966,
terminated the mandate of the South African Government to administer
Namibia (South West Africa), and decided that 'henceforth South West
Africa comes under the direct responsibility of the United Nations'."
You will observe, Mr. President, that they say it was the General Assembly,
by its resolution 2145, which terminated the Mandate of the South African
-.overnment.
Then there are Security Council resolutions 245 and 246 of 1968whichwere
not dealt with in OurCha~ter V but which have been adverted to in the present
context by, for example, ihe distinguished representatives of the ~rganization
of African Unity and of the Secretary-General.
The first preambular paragraph of resolution 245 of 1968reads:
"The SccrrriryCorricil,
Taking note of General Assembly resolution 2145 (XXI) of 27 October
1966, by which it terminated South Africa's Mandate over South West
~f~ ~~ and decided. inter alia.that South Africa has no other rirht Io
administer the ~erritory and ihat henceforth South West Africa cornes
under the direct responsibility of the United Nations,. .."
Then, Mr. President, there is the second preambular paragraph of resolution
246 whicb reads:
"The SecrrriryCoitncil,
. . . . . . . . . . . . . . . . . . . . . . . .
Taking inIo occount General Assembly resolution 2145 (XXl) ...by
which the General Assembly of the United Nations terminated the Man-
date of South Africa over South West Africa and assumed direct responsi-
bility for the Territory until its independence."
The second preambular paragraph of Security Council resolution 264 of
1969 is in exactly the same words. Operative paragraph 1 of that resolution
reads:
"Recognires that the United Nations General Assembly terminated the
mandate of South Africa over Namibia and assumed direct responsibility
for the territory until its independence."
Again, in resolution 276 of 1970, the Council, in preambular paragraph 2,
reaffirmed :
". ..General Assembly resolution 2145 (XXI) of 27 October 1966, by
which the United Nations decided that the mandate of South-West Africa
was terminated and assumed direct responsibility for the territory until
its independence."
Notice, Mr. President, the change of wording there from General Assembly
to United Nations.
And in preambular paragraph 3 of the same resolution, the Council re-
affirmed its resolution 264 (1969) which "recognized the termination of the
mandate and called upon the Government of South Africa immediately Io
withdraw its administration from the territory".
In adverting, Mr. President, ta the change of wording to which 1 have just
referred, any suggestion that by the substitution of the generic term "United
Nations" for "General Assembly" in preambular paragraph 2 of resolution276 the Security Council intended to convey that it was now itself acting to
terminate the Mandate, perhaps in conjunction with the General Assembly,
is at once dispelled when reference is had to preambular paragraph 2 of its
next resolution on South West Africa, that is, resolution 283 of 1970,for that
paragraph reads:
"Reafikming ils resolutions 264 (1969) and 276 (1970) by which the
Security Council recognized the decision of the General Assembly to
terminate the mandate of South West Africa and assume direct responsi-
bility for the territory until ifs independence.. ." [I need not continue
further with that quotation.]
What 1 have said serves to show that at no time did the Security Council
even purport to terminate the Mandate itself. Al1 it did was to recognize the
action of the General Assembly. IItook note of General Assembly resolution
2145, it took ifinto account and it reafirmed it. In ils ordinary meaning the
word "affirrn" means, and 1 quote from the Concise Oxford Dictionary, 5th
edition: "assert strongly, aver, make formal declaration", but it does not mean
"confirm".
It is also clear that it was the view of those members of the Securitv Council
who participated in the debates leading to the adoption of resolutioni 264 and
269 of 1969,and of 276 of 1970,that the Security Council was not being called
uoon either to terminate the Mandate or to confirm that termination.-~ere 1
u.ould nicrcls rcfcrIOone cxîniplc in connesiion with each of thcsc rcsolutions.
Thus in the ciiseof resolution 264of 1969the representîti\,c of Finland sraicd
that the starting point of the Council-
"... must, of course, be the recognition ofthe fact that the United Nations
General Assembly has terrninated the Mandate of South Africa over
Namibia and ass;med direct responsibility for the Territory until its in-
dependence. Adoption by the Security Council of a resolution expressing
such recognition ... will mean that for the first time the authority and the
power ofthesecurity Council willbefully engagedin the task of translating
that decision into reality."
Then,in the case of resolution 269 of 1969, the representative of Paraguay
said :'
"There canbe no doubt that the major importance of resolution 264
(1969) of the Council lies in'the express recognition of the fact that the
General Assembly has terrninated the Mandate ... and that the United
Nations has assumed direct responsibility for the Territory until its in-
dependence. The other provisions of that resolution have a juridical basis
in that recognition."
Finally, resolution 276 of 1970,where the representative of Poland stated
that the foundation of the political and legal frameworkfor the United Nation's
action on South West Africa-". .. is contained in.. .resolution 2145 (XXI)
terminating the Mandate of the Republic of South Africa over South West
Africa now ...Namibia".
And furthemore, Mr. President, as we indeed pointed out in paragraph 13
of Chapter V of Our written statement, it is of particular significance that at
no time durina the relevant Council debates did anv renresentative denv that
the resolutionsof the Council were founded upon, bked upon, the decision of
the General Assembly which purported to terminate the Mandate. There is no ORAL STATEMENT BY MR. VIALL 233
indication at al1in those debates that members of the Council considered they
were acting to terminate the Mandate or to provide independent confirmation
of that action.
Now. Mr. President. the conclusion that the Securitv Council itself did not
pupur; to act al al1in the niatier of tcrminaiing the ~ïnd.iie, eiiher indcpen-
denily or b) \va). of confirmation of the General Assembly's action. rcnders
it. strjc. . skakine-.unnecessarvto enauire into the auestionof what the Coun-
cil's powers are in relation to such independent or conhatory action, or
oerhaos 1should say, what they would be did it exist. Nevertheless, in view of
ihe contentions advanced bv other oarlicioants in these oroceedines. we -us1
give some attention now to thi, aspect of the matter
WCarc coriserncd parri~ul3rly u,ith the contention spelled out by somç and
~e~ ~~,s~eeuutedbv others. that in so far asthere mav have been leeal flaws or
defccts or deficienfici aita;hing to the Gcneral ~jsekhly's action,-these niust
be regardcd as having ken cured by the Security Counzil's subsequent dcci-
sionslln anv enauirv as to whether the Council would have had the oower to
achieve sucia reiult; had it set out to do sa, two questions fall to be considered:
firstly, does the Security Council itself have the necessary power whereby it
c~-~~. bv ~~.eoendent action. have terminated the andG G w ithout South
~frica'sconseni and despite itiohjections; and secondly, if the Security Council
does not have such a power could the two organs, that is to say the General
~ - - ~ ~and the Securitv Council. bv ioint or combined action haveachieved
what wa; legally imperm~ssibleforéiihér of rhem Io do acting separately?
It will beconvenient, Mr. President, Io deal withthe secondof thesequestions
first.
It is significant that those States and organizations who contended for a
oositive answer to the question advanced, advanced no legal argument in sup-
port of their contention, no analysis of the provisions of the Charter, no refer-
ence ta customary international law or general principles of law, or juris-
prudence, or the writings of publicists-indeed nothing except bare assertion.
- ~ ~~ ~-ot surorisine-.o.rhaos. ,or it is onlv in bare assertion that the con-
tentions may even be made to sound like something worth considering at all.
There is, ~erhaps, a superficial attractiveness in the suggestion that, after all,
both org& ha;e spoken, and even though separateaction may have beenopen
ta question, al1 objections must surely fall away when both have acted. But
there, Mr. President, it ends. Once one starts Io analyse the contention, its
attractiveness fades. we and. .erv...oidlv.
Perhaps a confusion of thought arises from an unconscious assumption that
one is dealing here with a situation akin to that in a federal State, for example,
where the totalitv of the lezislative oowers is divided betweenStateor orovincial
lcg~~l~tures.on ;he one hand, înd'ihc cïnir~l fcdcral legislature, onthe oiher.
In ruch ;isituaiion ii is conceitable ihat certain lcgisl;iti%,eaction rnÿy lie somc-
where alone the border-line of the division of oowers, so that it is auestionable
whether theaction falls within the competenceof the provincial or of the federal
legislature; and it is conceivable too that in such casescombined action by
orovincial and federal leaistatures miaht sometimes remove anv doubts which
kisht othenvise pertain Cothe separareaction of either. But such a possibility,
Mr. President, would flow from the basic premise that the power must reside
in either the one legislature or in the other, or partly in one and partly in the
other, the totality of possible legislative powers within the federation having
been divided between the two of them.
Now it will be immediately apparent that this basic premise does not apply
to the General Assembly and the Security Council of the United Nations.234 NAMIBlA (SOUTH WEST AFRICA)
There is just no such thing as a division of the totality of possible powers be-
tween these two organs. Each was granted rigidly limited and circumscribed
powers only, and there is a vast field of potential actions falling outside the
competence of either or of bath of them. At the time when the Charter came
into ooeration. nobodv could surelv have sueeested that it would be comoetent
either'for the ~eneral~ssemhl~, or for the Security Council, or for the iwo of
them combined, to ordain, for example, that the year is to consist of 10months
or the day of 20 hours-and one doubts whether even the Secretary-General
would so contend today. Consequently, there is no legal or logical hasis either
for saying that comhined action hy the General Assembly and the Security
Council must necessarily he valid action, or that it must necessarily resolve
douhts as to whether either could have done something alone. To put it this
way, Mr. President, the question is not one of whether a power lies on the
border-line of a delimitation of powers between the General Assembly or the
Security Council, it is one of considering whether the power was conferred at
all, upon either one of these organs, acting singly or acting jointly.
The Secretarv-General. indeed. acceots as an hvo,.hesis~t~at a oarticular
power mÿy not hïvc becn granted either to the Generül Asseiiihly a-ting alone,
or to the Sccuriiy Council acting Iilonc. And he coniends that ei,cn inwch a
case ioint action could oroduce a valid result. aooarentlv even so as to bind a
noni-onsenting United Nations member tat téS already stated, he does not
say on what ground he contends this. Nor does he say whether by such com-
hined action the two organs could exercise a power of binding action in regard
to any subject or matter under the sun, or whether there are any limits, and if
so, what these limits are.
Mr. President. in his ooenin- statement on behalf of South Africa last Tues-
day. niy learncd c~~llcaguc.Mr. de Villierj. dedt uiih ihis iontenti(in of the
Sccreiary-Gcneral, thouyh only hriefly. 1\rould rcfer the honourïble Court to
pages 155-156. rupro.Yct, although hc dcali with this only hrictly, lirtle more
need be said about 11tn this more detailcd ürgumcni.
If onc postulates thït organ A has no pouer io make a binding decision on
a certain matter, yet it purports to do so,then, surely, the result must be some-
thing which is either nuIl and void or, at any rate, not binding. Now organ B
cornes on ta the scene, and the postulation is that it, too, acting alone, has no
nower to make a bindinz decision on that matter. Surelv. if it should ouroort
io do sa, either independently of the action of organ A.& in confirmation of
that action, the result must remain the same as before-still something which
is either nuIl and void or at any rate not binding. It would remain merely a case
of two organs both acting outside the scope of their respective constitutional
powers.
The only factor which could change this would be an enabling grant of
power which specifically accords ta joint action by the two organs, or to con-
firmatory action by organ B, a legal efïect which is denied to separate and in-
deoendent action ofeither oraan. As Mr. de Villiersindicated. it is not loaicallv
inionceivahle that such an arrangement could be made in k particular con-
stitution; the important point is that this was not done in the Charter, and that
the omission to do so was, aooarentlv. a deliberate one
In general, one would ex@& that ifa constitution was intended to contain
an arrangement of the kind 1 havejust referred to, then the arrangement would
beex~ressed in some orovision or~rovisions of orecise wordinz. which would
cïrcfhly indicate the 'copc and ihç'limitsof uha;niighi bcdonc-by joint aciton
beyond the sphcrc of indi\,iduaI action.
This, &Ir.I'rcsidcnt, ispa~rcelleocrthe casc usherethe Chmer of the Unitcd236 NAMlBlA (SOUTH WEST AFRICA)
to specifically prescribed voting requirements-Iwo-thirds majority for the
General Assembly, less stringest requiremenfs than normal for the Security
Council. But the results must concur.
The most significant aspect of al1 these provisions is exactly the care with
which they define what may be done by joint or combined action of the two
organs. as regards both the enablina asoect and the limitative aswct-this
exLendreven Ïo the Idying down ofpr%cedurdl requirement, which &fier from
one cîsc io înother; for cxmple, the iime sequcnce in u hich ihe organs \hould
consider the matter, the reauisite maiorities and so on. Al1this. MI. President.
emphaqiies 3.very importani point, Ïhai \uch cdses are cxccptions-exception!
cîrefully devised and carcfully circumscribed.
And the normal infcrcnce would be that itcould noi have been the intention
of the îuihors of the Charter ihar there should be other, unmcniioned and un-
sircumscribed cdses in whi~.hthe organs might. by joint action. do whni ivas
impermissible 10each of them acting separately.
In this scheme of things, MI. President, it is of obvious significance that
neither the Secretary-General nor anybody else suggests that even a single
factor exists which makes it likelv that the authors of the Charter were aareed
upon an implied grani of power ;O the organs in ihis reipeci. Of comp&ible
significînce, furihcrmurc. is the f~ctthat nonî of ihem suggests iiny detiniiion
or criteria for ascertaininc the scove or limits of such a vower. Far from beina
able to contend that such an impiication goes without iaying, they would be
constrained to admit, 1think, that the whole scheme of the Charter militates
directly against it
Tu conclude, therefore, in regard to this contention that the t\vo organs have
a paner iu do byjoini action \rhx neither cîn di1sep~raiely,such a pou,er could
not, in the first.lace..exist without a soecific grant-whether that arant be of a
wide ambit or a narrow ambit dwsnot matter; there must, hiwever, be a
specific grant. Secondly, there is no express grant in the Charter. Il isjust no1
there, it does not exist. Thirdly, no grant can be implied on the basis of the
intent of the authors of the Charter and any such implication by the Court
would, therefore, in effect have to rest on a basis of judicial legislation or at
any rate on bases which, in the past, have consistently been rejected in the juris-
prudence of this Court.
This brings me, MI. President, to the further question mentioned earlier in
this connection, the question:
Does the Security Council itself possess power whereby it could have ter-
minated South Africa's Mandate had it set out 10 do so, against South Africa's
will, and whether or not uoon the recommendation of the General Assembly?
Various participants, p&ticipating govemments or their representatives in
these oral proceedings, seemed to assume that this must be so though nobody
has addressed any argument to it.
The auestion reallv.amoun~ ~t-~this: ~ ~ ~ ~e SecuritvCouncil. in the absence
of some special consent, have a power of making a binàing deterhination upon
a question ofa territorial nature. or one concerning a territorial settlement of a
title?
1mus1confess, Mr. Presideni, 1for one am completely a1a loss io know from
u,here in the Charter thc Security Council could possibly be said io derivc such
a nower. Such a determinati~ ~ ~ ~ ~ ~-~~~ u-.~ ~u~, onlv he in the nature of
deciding 3 dispute, or disposing ofa situariun-action contemplated in Chaptcr
VI ofthe Charter. But ihc o ou er sf the Council under Chîpier VI, and I think
that in these proceedings this has been more or less generally admitted, are
recommendatory only. ORAL STATEMENT BY &IR.VIALL 237
Thus the only sources for a power of binding decision ta be found in the
Charter are Chapter VII, which is limited ta situations constituting a threat
to the oeace. a breach of the neace or an act of aamession and. therefore.
does not extend ta a territorial or title settlement and, besides chapte;
VII, possibly one or two specificcases which do not however include territorial
or title settlement. Some vartici~ants relv uDon a third source. a source. I
may say, which is disputed by us, and that is Article 24 of the charter. ~his
article, tao, operates only in the sphere of the maintenance of the international
peace and s&urity and it cannot, therefore, extend to a territorial or title
settlement as such. Chapter VI and Chapter VII of the Charter, as well as
Article 24,will be dealt with presently.
Support for this contention that the Secunty Council has no power of
eiïecting a binding territorial settlement is ta be found, MI. President, in a
statement made by the representative of the United States in the Security
Council on 24 February 1948 in regard to the question of Palestine. That
representative said:
"The Secunty Council is authorized to take forceful masures with
respect to Palestine to remove a threat to internationavace. The Charter
of ihe United Nations does not empower the Security Council to enforce
a political settlement u,hethcrit1spursuant io a reconimendation of the
General Assembly or of the Security Council itself.
What this means is this [he continued] the Security Council, under the
Charter, can take action to prevent aggression against Palestine from
outside. The Security Council, by these same powers, can take action to
prevent a threat to international peace and security from inside Palestine.
But this action must be directed solely to the maintenance of international
peace. The SecurityCouncil's action, in other words, is directed to keeping
the peace and not ta enforcing partition." (SC, OR, Third Year, 253rd
Meeting, p. 267.)
The learned authors, Goodrich and Hambro, in the second edition of their
work, The Charter of the Unite dations, at page 207, state that the Security
Council apparently accepted this argument and on that basis refused ta accede
ta the General Assembly's requests concerning Palestine. Upon reading the
debates in question, I must agree with the learned authors that it was on that
basis and no other that the Council refused to accept the responsibilities which
the General Assembly sought to impose upon them.
If we are right in saying that the Security Council has no power of making
a hinding territorial or title settlement as such. it must therefore follow that
the ~ecuÏity Councilcould not haveterminated South Africa'stitle to administer
South West Africa even if it in fact purported to do so. And the remaining
question would be whether the General Assembly had the power ta do so.
A negative answer, for which we contend, would eiïectively dispose of the
contention that South Afnca is now, as a result of United Nations action,
illegally in South West Africa.
How,ever, even if one approaches the matter on the basis that General
Assembly resolution 2145was valid and binding, there are stillvarious questions
which fall to be considered concernina the validitv and eîïect of the Security
Council resolutions under discussion in these procëedings. 1shall now proceed
to deal with some of these in the order in whicb 1indicated earlier on.
That brings me, MI. President, to the question of the applicability of Chapter
VI1of the Charter. in paragraph 16 of Chapter V of our written statement we submitted
that it clearly appears that in adopting its relevant resolutions the Security
Councildid not intendnor purport toact in terms of Chapter VII of the Charter.
In the first place, we pointed out that the Councildid not, in terms of Article 39,
make any determination, either expressly or tacitly, that there existed any
threat to the peace, breach of the peace or act of aggression, and that such a
determination is a condition precedent to further action under Chapter VU.
In the second place, we demonstrated that it is manifest from the dehates
sur round in^the adootion of the relevant resolutions that the Council deli~er~ ~ ~ ~
atelydeclin~d to impo~emeasuresunder Chapter \Il and that, despite pressure
brought to hear upon itb) certain nienibers of the Council \\,hoaraued stronals
. -.
that such measures should he imoosed.
in none of the written statements in these proceedings was any argument
advanced that the Council in fact acted under Chapter VII. However. although
that mav not aooear exoresslv. the contention is imolied. and im~lied faidv
clearly, in paraGaph 9 of the Statement of the ~ovemmeit of ~akistan which
reads in part:
"... the measures listed in Article 41 of the Charter have alrea~v h~ ~ d ~---~-
taken hy the Security Council to restore peace. ~he termination of the
Mandate, the cal1on al1States ... may be treated as 'measures'. within
the meaning of Article 41, to restore pice."
And in the final paragraph of its statement Pakistan suhmitted that the
Court should list a number of legal consequences for States as a result of South
Africa's continued presence in South West Africa, one of these heing:
"All the resolutions adopted by the Security Council in this behalf,
especially resolutions 264 (1969), 276 (1970), and 284 (1970), and the
decisions, calls and recommendations contained therein, are covered by
Article 41 of the Charter and are valid and justified."
In his oral address ta this Court the distinguished representative of Finland
expressed agreement with our contention that the Security Council did not
intend to act within the framework of Chapter VII of the Charter. He then
went on to Say:
"Articles 39 cr szy. arc thererore not applicable in th15 case. It cannot
be said that the situation created by the question of Naniibia has )et sÿused
'any threat ta the peace, breach of the peace or act of aggression' on the
part of South Africa ..." (Supra, p. 71.)
The distinguished representative of Pakistan in his oral statement again
aooeared to contend that the relevant resolutions of the Securitv Council were
adbpted under the provisions of Chapter VII of the Charter. He referred to
resolution 264, which declared that South Africa's presence in South West
Africa "constitutes an aee--ssive encroachment on the authoritv of the United
Nations", and he went onto Say:
"It is suhmitted that the Security Council has rightly categorized the
continued presence of South Africa in Namibia as an act of aggression."
(Supra, p. 142.)
He then set out certain consequences which he considered flowed from this
so-called illegal act of aggression. The first consequence he mentioned was that
the powers of the Security Council under Articles 39,40 and 42 of the Charter
were attracted-that is at page 143,supra.
It will be obsemed, Mr. President, that the words of the Security Council240 NAMIBIA (SOUTH WEST AFRICA)
"The cmcial ouestion concerns. of c.u-~e. ~he~ ~e of coercive measures
under ~hapter <II of the &art&. The divisionof Ginion on th& question
in the Council seems to be irreconcilable, at least for the present ..."
In the ensuing discussion there was clear acceptance by members of the
Council that the draft resolution did not reoresent action taken under Chauter
Vil of the Charter. Thus the representative of Nepal stated that the draft
resolution did not initiate the appropriate measures called for in General
Assembly resolution 2517 (XXIV). He went on to express the conviction of
-~~.deleeation that no meas;re bv th~.Unit~d Nati~ns-w~ ~ ~ ~ ~ short of those
providei for in Chapter VII would be sufficient to persuade South Afnca to
withdraw its oresence from South West Africa. and stated his realizatioo of the
difficulty in Ïhe way of securing the appli&tion of those measures by the
Council. (UN doc. S/PV. 1528,p. 57.)
And the representative of the Soviet Union stated that in different conditions
and with a different approach on the part of some delegations the Security
Council could adopt an effective resolution in keeping with the provisions of
Chapter VII of the Charter. (Ibid., p. 87.)
1 would also like to refer the Court to the other relevant expressions of
opinion, which are set out in the paragraphs of Ourwritten siatement to which
1 bave already referred. 1 know of no re~resentative who. durinp: the course
of the debates preceding the adoption oi the resolutions,expres&d the view
that the draft resolution did in fact fall under the provisions of Chapter VI1
of the Charter, nor has any participant in these proceedings attempted to prove
t.~-~s-~h~ ~s ~~ fac~ ~ ~ intent~ ~ ~ ~ ~ ~
1 think. therefore, hlr. President, that it consequently suilices for nie io
repear the subniissions cont~ined in paragrirph 20 of Chpter \' of Our wnttcn
sintement, that is th31 it is abundïntly cleïr thït in adopting the resolutions
in quntion the Security Council never inrended nor purported to act, and
accordinaiy did not in faci act. under Ch~oter VI1of the Chdrter: that having
reeard to the attitude of certain of its neckanent members. it wuld not ha&
acïed in terms of that Chapter, and thai consequently the keasures adopted in
resolution 276 (1970) were not preventative or enforcement measures within
the meanine o- chagter VII.
There is thus, in the event, Mr. President, no substance, we contend, in the
contention that the Security Council acted in terms of Chaoter VI1in adopting
its relevant resolutions
Withthat, MI. President, Icome ta thequestion, theveryimportant question,
of the powers of the Security Council under Article 24 of the Charter. In
Part D of Chapter V of our written statemeot we showed that although Article
24confers upon the Security Councilprimary responsibility for the maintenance
of international peace and security, il confers no powers other than those
soecificallv orovided for in Chauters VI. VII. VI11 and XU of the Charter.
that is, it contains no reserveof p&vers,it isnota source of authority which can
be drawn on to meet situations not covered by the speciûc grants of power in
those Chapters.
We showed this by reference ta the plain language of the Article itself and
the prohabilities regarding the intentions of those who framed the Charter.
We showed. Mr. President. whv the Article was inserted in the Charter. and
we showed the unahïshedly poiitical and extra-legal nature of the arguments
which have, from tinie 10 rime, both in the Council aiidelsewhere, been adduccd
to the contrary.
Of al1those governments and organizations which submitted written state- ORAL STATEMENT BY MR. VlALL 241
ments to the Court, it was only the Secretary-General who saw Article 24 as
the legal basis for the action of the Security Council in adopting its relevant
resolutions-1 refer here to his written statement, paragraphs 91 and 95.
All the governments which submitted statements were silent on the matter of
the source of the Security Council's authority to act in the matter, except in
the case of Pakistan which, as1 have shown. incorrectly invoked the provisions
of Chapter VII. Then when we come to the oral statements presenied to the
Court, we find that the distinguished representative of the Secretary-General
repeats his written contention regarding Article 24, 1 refer here to pages 44
to 45, supra. And the distinguished representative of Finland also finds in
Article 24 a legal basis forthe action of the Council (supra,pp. 72 to 73). This
is, perhaps, also the attitude of the distinguished representative of the Organiza-
tion of African Unity, because with reference to Article 24 he describes the
powers of the Security Council as very wide indeed in regard to matters under
the authority of the United Nations (supra,pp. 100to 101).
Sn that in the result, of al1the wntten and oral statements presented to the
Court to date it is only in those of the Secretary-General, Finland and perhaps
the Organization of African Unity, that Article 24 of the Charter has ben
invoked as the source of authority for the action of the Council.
The ground advanced in support of this invocation is that Article 24-and
here 1 quote from page 72, supra, the oral statement of the distinguished
representative of Finland, which sums up the matter, with respect, well-
"... confers on the Council not only the specific powers set forth in
Chapters VI, VII,VIL1 and XII, listed at the end of paragraph 2 of that
Article, but also general powers, consistent with the aims and principles
of the United Nations, such as may be necessary to the Council for the
accomplishment of the duties imposed upon it by the Charter and in
particular paragraph 1of Article 24 thereof, which states that the Council
has primary responsibility for the maintenance of international peace and
security".
The distinguished representative of the Secretary-General is to the same
eiïect, here1 refer to page 45, supra, of his oral statement, and so, it would
a..ear..is the distine-ished renresentative of the Or~ani-ation of African
Unity, though as 1say, this is perhaps not quite ceruin. The latter, in üny case.
simply ignores the araunlents ofihe South African Government. He sïys rnerely
that.the Security ciuncil is given very wide powers, very extensive powers,
which the Court could take time to consider before dismissing them as not as
extensive as they really are.
However. the Secretarv-General and Finland seek to substantiate their con-
tentions by'reference to:-firstly, the text of Article 24: secondly, the legislaiive
history of the Article; thirdfy, the ohject and the purpose of the Charter;
fourthlv. the oractice of the Council: and fifthlv. the oninions of recent writen.
All these conientions, al1these grounds, appe<from ihe oral statement of the
Secretary-General (supra, pp. 44-49), and of Finland (supra, pp. 72-73).
Furthemore, Mr. President, it is said hy the Secretary-General in his written
statement, paragraph 95, and 1quote a passage that is apparently put fonvard
as a sixth item:
"That the Security Council was acting in the exercise of its powers as
defined in Article 24 of the United Nations Charter is evident from the
nature of the violation committed by South Africa of her international
obligations, and of the measures which the Council found it necessary
to take."242 NAMIBIA (SOUTH WEST AFRICA)
1propose, Mr. President, to deal briefly with al1these aspects one by one.
The Court aàiournedfrom 11.200.m. 10 11.40 a.m.
Just before the adjournment 1 was dealing with the grounds upon which
the Secretary-General and Finland seek to substantiate their contentions
regarding Article 24 and 1 had just reached the stage of the first of those
grounds, namely the text of Article 24.
Now, in paragsaphs 22 to 24 of Chapter V of our written statement, we
pointed out that paragraph I of Article 24 is clearly general in its nature and
effect.As wesaid, in paragraph 22of our statement,paragraph (1)of Article 24:
"... provides in essence that the Members of the United Nations confer
upon the Security Council vrimary resvonsibility for the maintenance of
international peace and s&urity.-It indicates &at this responsibility is
conferred in order to ensure prompt and effective action by the United
Nations. and that in carwina out its duties under this resnoosibilitv the
~ouncilacts on behalf ofthe-~embers of the United ~ations. It sais no
more than that." 0, p. 502.)
There is nothing, it is submitted, in the language of this paragraph 1 that
can be construed to imply any grant or reserve of powers. We showed that the
whole obiect of insertinéthe . -.eraoh was merelvto emnhasize t~e~oa.amount
importance of the Council's 5u-ciilled"pedcc-kïeping" function and its priinar).
responsibility in this regard. We showcd lhït the confermcnt upon the Security
Council of vrimarv resnonsibilitv for the maintenance of international oea&
and securit; implks no more <han that the General Assemhly has only a
secondary responsibility in this regard. In other words, paragraph 1 is of the
nature of a delimitation of functions hetween the Security Council, on the one
hand, and the General Assemhly, on the other. But it does not purport to
grant powers for fulfilment of the functions, that is something which is left
to paragraph 2.
As regards paragraph 2 of the Article, we pointed out that it provides in
plain language that in discharging "these duties", that is, ils duties under its
vrimarv.resv.nsibility for the maintenance of oeace and securitv. the Council
"shall act in accordance with the purposes and principles of the ~nfted Nations"
-an obvious reference to the purposes and principles set out in Article1 and 2
of the Charter-and furthermore. that the "soecific oowers eranted to the
Security Council for the dischargc ;f these dutie's"sh3libe thos~"l3id dou,n in
Chaptcrs VI, VI[.vrlIiind XII".
We quoted authority for these propositions and we Say again, today, that
the plain language of Article 24 allows, in our submission, of no other inter-
pretation than the one for which we contend. That wording, MI. President,
draws the clearest possible distinction between, on the one hand, "responsi-
bilities" or "duties", to be carried out "in accordance with the purposes and
principles of the United Nations"; and on the other hand, "the specificpowers
aranted to the Securitv Council for the discharae of these duties". 1 would
ëmphasize that word these,MI. President, "the Gecific powers granted to the
SecurityCouncil for the discharge of theseduties".
In al1Ioaic. it seems to us that this can onlv mean. firstlv. that the arants of
puu,crs are tu bc fouiid in the ch~ptcrs ind;wtcd. and secondly, tlit thusc
powerz are. apart from limits indiciilcd in the grants thcnisclvc~,suhj .LI 10 <r
Iwo-fuld ~cncr~llimitation. this hin~. firstlv. the limitation of beinr! crantcd
for a purpose, that purpose'being thedischarge of the "primary respo~s~hility" ORAL STATEMENT BY MR. WALL 243
or "duties" for "the maintenance of peace and security", and secondly, the
limitation of beingrequired to act, in the discharge ofe duties, inaccordance
with the nurooses and orincioles of the United Nations.
So iha; the rcfcrcnci in th&hriiil10responsibilities, duiies and the purpores
and principlcs of the United Nations, hr froni adding io orcnlarging thc pouers
-ranted. serves infact to limit them.
As we indicated in our written statement, a contention such as that advanced
by the Secretan-General and by Finland would render the last sentence of
Gragraph 2of Article 24meaningless. That sentence reads, and 1 read it again
at the risk of repetition, Mr. President: "The specific powers granted to the
Security Council for the discharge of these duties are laid down in Chapters
VI. VU. VLIIand XII."
if~riicle 24 conferred the virtually unlimited powers contended for by the
Secretam-General and Finland then, we ask, what vossible meaning could that
sentence-have? It would be. Mr. ~resident. suoerfl;ous
It is to be noted that non; of the arguments >hich we have adduced in regard
to the text of Article4 has been refuted, or even adverted to. in any of the
suhmissions. written or oral, presented to the Court. AI1thereisthe following
quotation by the distinguished representative of the Secretary-General-1 refer
to his oral statement at page46,sriprowith reference to a statement hy the then
Secretary-General at the 91st meeting of the Security Council in connection
with the question of Trieste:
"Regarding the text and legislative history of Article4, the Secretav
General obsewed:
'The words, "primary responsibility for the maintenance of inter-
national peace and security", coupled with the phrase, "acts on their
behalf" constitute a grant of power sufficiently wide to enahle the
Security Council to approve the documents in question and to assume
theresponsibilities arising therefrom'."
It will be obsewed that the then Secretary-General ignored altogether the
provisions of paragraph 2 of Article 24 and the true significance of the dis-
tinctions drawn between various concepts in the Article as a whole, as does the
present Secretary-General, or his representative, in these proceedings. Nor are
weeven told how or why the two phrases referred to in the quotation constitute
a grant of power at all, let alone one which would enable the Security Council
to assume the resoonsibilities soueht to be oiaced uoon it in thecase in auestion,
responsibilities, may add, for ;hich noprovisi~n is made in any chapter of
the Charter and which, 1may add further, are sought to be applied in such a
wav in the oresent case asto be bindine uoon a non-consentinr! State
Again we find ourselves faced with bit a bare and unsupporïed statement.
Then, secondly, the legislative history of Article 24 is also invoked by the
Secretaw-General in su~oort of his contention that Article 24 contains a
re\cwe ofimplicd pouer; iaid IO he binding In this connection he rrferc Io the
report ofthe ihen Sccrctary-Gcneral mdde in connection uith the debaie of the
Securitv Council. aaain on the auestion of Trieste. in which the latter relied on
the discussion whici took at the 14th meeting of Committee nI/i at the
San Francisco Conference. He stated:
"... it was clearly recomized durina that discussion by al1 the represen-
tatives that the security-~ouiicil wa;not restricicd to Ïhc spccilic poners
set forth in Chaptcrs VI. VI[. Vlll and XII. (1have in mind. documen597,
Commiticc Ill il3O.) It *,il1hc noicd that ihis discussion concerned 3 proposed amendment to limit the obligation of Members to accept
decisions of the Councilsolely to those decisions made under the specific
powers. In the discussion,al1the delegations which spoke, including both
orooonents and oooonents of this amendment. recognized that the author-
;iti of the ~ouncil was not restricted to such specific powers. It was
recognized in this discussion that the responsibility to maintain peace and
security carried with it a oow10 discharge this resoonsibility. This oower
it was noted, wasno1 unlimited, but subjëct tthepurposesandprinciples
of the United Nations."
At the relevant meeting an amendment by the representative of Belgium
to paragraph 4, section B of Chapter VI of the Dumbarton Oaks Proposals,
corresponding Io the present Article 25, was discussed. That paragraph read
asfollows:
"Al1 members of the Organization should obligate themselves to accept
the decisions of the Securitv Council ando carw them out in accordance
with the provisions of thé Charter" (Russel, A Hisrory of the United
Nations Charter,p. 1022).
In terms of the proposed amendment by Belgium, the words "taken under
Chapter VIiS" were to be inserted after the words "Security Council".
Chapter VI11contained provisions which eventually became Chapters VI and
VI1 of the Charter. but did not contain anv orovision corresoondine-to the
prcscnt Article 24.'Ihat was in aliogcther anuihérchapter.
Ihe representativc of üclgium stated that hc ivas iully atvare that the Cudncil
had othcr dutics in additionIO thore stipulaicd in Chspter \'III. He asiuiiicd
that on a proper interpretation of panigraph 4 ituus only spplicsblc IO the
pou,crs laid down in Chapter VIII. but he introduced his amendnient to make
it clear beyond the possibility of doubt that this wase.
The representative of the United Kingdom, in the same discussion, stated
that it mightbe dangerous so ta limit the powers of the Security Council. He
suaaested that theohrase "in accordance with the orovisions of the Charter"
$uiyciently met the Point rdi,cd hy the representative of Belgiumand he pointed
oui thal pardgrdph 1 of Chdpt~r XII, which concerned certain tran\itional 1
arranaements. orovided that ihe States oarties to the Moscow declaration 1
should conrult hth one another and. as kasion arore. u,ith other nicmbers
of the Organi7siion. with a \.icivto such joint action on behalf of the Orgsni- 1
zation as mieht be necessarv for the ouroose of maintainina international veace
andsecurity-This iniplicd.s~cord~n~~othercpre~entati~eof~he~nit einkdom,
action by the Sccurity Counsil even though it&,asno! specificslly rnentioned.
He thouaht that if the aoolication of oaramaoh 4 were ta be limited. oerhaos
both ~hÜpter XIIand ~ha.pier ~111ought tob; specificd.
Ltiippeÿrs that the only objection of the rcprcscntative of the United King-
dom aiainst this orooosed Ëeleian amendment was that oaraeraoh 4 should
3150 be-applicïblcio dccisions (<;kenin ternis ofchapter X~I,th;co~rresponding
provisions of uhich in the Charter arc of courre not rclciant ta our prcscnt 1
purposes.
The representative of the Soviet Union also voiced objection to the Belgian
proposal. He stated that the obligation of members vis-à-vis decisions of the
Security Council should not be restricted to the functions and powersunder
Chapter VIII, but without indicating, however, what other powers he had in
mind.
The representative of Canadaexpressed the view that paragraph 4 should be
interpreted as referringexclusively to. Chapter VIII, whilst the Australian ORAL STATEMENT BY MR. VIALL 245
representative expressed dissatisfaction with the language of paragraph 4 but
for reasons which are immaterial for present purposes. No other representative
took part in the debate and eventually the Belgian amendment was reiected
becau&. althourh it received a favourable vo~e~-f 14 to 13. it lacked the ne-
cessary iwo-thi;ds majority. And al1this is apparent, Mr. ~resident, from the
UNClO documents, Volume II,pages 393-395.
Now, it will be & once appa;eit that the fact that the Belgian amendment
was rejected cannot possibly be invoked in favour of a contention that the
Security Council may take binding decisions under some supposed grant in
Article 24of the Charter. That Article or its provisions werenot even mentioned
in the debate.
It will also be seen that the only two representatives who voiced opposition
to the Belgian proposal did so for different reasons. The representative
of the United Kingdom appeared to be satisfied if the application of
paragraph 4 should be limited to decisions taken in terms of Chapters VI11 and
XU of the Charter, whereas the representative of the Soviet Union stated in
rather vague terms that the applicability of paragraph 4 (now Article 25)
should not be restricted to functions and powers under Chapter VUI. On the
oihcr hand, ihc rcpreseniïtive of Canada cxprcrscd the view-thüt on LIproper
~nierpretïtion of p~rügrûph 4 hi$application u,as limited to decisions tïken in
icrnis of Ch3ptrr VtII. It is con~c~ucntly. we submit. impossible IO conclude
whether the Ïepresentatives who Goted against the ÉelGan proposal did so
because they agreed with the Canadian representative, and consequently
considered the amendment to be unnecessary, or whether they agreed with the
United Kingdom representative that paragraph 4 should also beapplicable to
decisions taken under Chapter XII, or whether they agreed with the views of
the representative of the USSR, or, perhaps, for reasons of their own.
We consequently submit that the discussions relating to the Belgian amend-
ment do not afford any support whatsoever for the contention that it was
intended that the Security Council should be able to take binding decisions in .
terms of ~rticle 24 of the~C-~r~ ~ ~
There is, Mr. President, indeed, another aspect of the history of Article 24
whichindicatesthatthat Article wasnot intended toconferoowers on the Securitv
Council, but on the contrary to lay down limitations & be observed by the
Council in exercising the powers to be granted to if.And 1 refer here to the
wording of the relevant paragraphs of the Dumbarton Oaks proposais, which
1 proceed to quote from the text of the third edition of Goodrich, Hambro
and Simons, at page 668.That text, Mr. President, under "Section B-Principal
Functions and Powers" reads as follows:
"1. In order to ensure oromot and effectiveaction bv the Orpanization,
members of the ~rganiwiion ihould by the Charter confer on ti;e Sccurity
Coiincil primary rcsponsihility for the m~inienancc of iniernational peace
and security and should agree that in carrying out these duties under this
responsibility it should act on theiralf."
Very much the same, it will beobsewed, as thewording of the present Article24,
paragraph 1.
Then, paragraph 2:
"2. In discharging these duties the Security Council should act in
accordance with the purposes and principles of the Organization."
And then, paragraph 3:246 NAMIBIA (SOUTH WEST AFRICA)
"3. The specific powers conferred on the Security Council in order 10
carry out these dulies are laid down in Chapter VUI."
It willbe recalled that Chapter VI11corresponds to Chapters VI and VI1of the
present Charter.
Mr. President, as regards the third ground advanced in favour of the reserve
of powers said to be contained in Article 24-that is, that the existence.of these
wide powers is substantiated hy the object and the purpose of the Charter-
no argument is advanced in any of the submissions before the Court to take
this proposition any further. There issimply the statement of the Secretary-
General, at page 45, supra,and again at pages 48-49 of the record of his oral
statement,that this isso.
The objects and the purposes of the Charter are to be found in Articles 1and
2, setting out thepurposes and principles of the UnitedNations. And, as we
showed in o. -.raoh 23 of Chaoter V of Our written statement. neither the
purpoîesnor thc principlesadd to the poucrsconferredclsewhere in the Chartcr
upon the Securiiy Council Nor, as uc \taled inparagraph 23.
"... do thev indicate. exceut in the most aeneral way. thmeans by which
the stated&rposes aie to be implementedTand understandably so, because
that is something which is left to and governed by other provisions of the
Charter".
We quoted examples. We:also quoted authority from the jurisprudence of
this Court to show that the. .rooses of the United Nations. broad thoua- thev
may be, cannot be implemented by any means whatsoever, but only in accor-
dance with the means specifically ~rovided in the Charter. At the risk of repe-
tition,1would refer the-Court inthis connectiontothepertinent wordsof ~udge
Winiarski in his dissenting opinion in theCertain Expenses case (I.C.JReporls
1962,p. 230),where he stated:
"The Charter has set forth the purposes of the United Nations in very
wide. and for that reason too indefinite. lems. But-apart from the
reso;rces, including the financial resources, of the Organization-itdoes
not follow, far from it, that the Organization is entitled to seek to achieve
those oumoses bv no matter what means. The fact that an organ of the
~nited Nations isseeking ta achieve one of those purpows-does not
sufficeto render ils action lawful. The Charter, a multilateral treaty which
was the result of prolonged and laborious negotiations, carefully created
organsand determined theircompetence and means of action."
1emphasize those words, Mr. President "and means of action".
"The intention of those [the learned Judge continuedl who drafted il
was clearly to abandon the possibility of useful action rather than to
sacrifice the balance of carefully established fields of competence, as can
be seen, for example, in the case of the voting in the Security Council. It
is onlv bv such procedures. which were clearly defined, that the United
~ationr c-anseekto achici,~itspurposcs. IImaybe that the United Nations
is sometimes not in a positionto undertake action which ivould he uxful
for the maintenance of international peace and security or for one or
another of the purporcs indiclited in ~rticle 1 of the charter. but thît is
the way in iihich the Organizationwds conceived and bro~ght :nt0 being."
In the result. Mr. President. Our ar-uments remain unanswered and stand
unimpaired in thisconnection.
Then we come to the next ground, advanced by both the ~ecretary-General ORAL STATEMENT BY MR. VIALL 247
and Finland, that is to say, the practice of the Council. 1refer here to the oral
statements of the Secretary-General at pages 45-49, supra, and of Finland at
pages 72-73, siipra, of the respective records of their statement'.
Now the only practice, sa called, relied upon in this connection, is the ques-
tion of the Free Territory of Trieste, which was considered by the Security
Council in January 1947, and the statement of one representative at the 553rd
meeting of the Security Council in August 1951,inconnection with the question
of the passage of shipsthough the SuezCanal.
As regards Trieste, Mr. President, reliance is placed upon a statement sub.
mitted to the Council at its 91st meeting by the then Secretary-General of the
United Nations. to which 1 have alreadv referred. as well as~u~ ~~ce~~ .~ ~~~~~..
statements iiiade by the five permaneni kembers of ~heCouncil during the
course of the debaie on the question. The siaienieni of the Sccretary-General
u,as haed largely upon ihc legislatiic history of Arii-le 24-a question wiih
which 1h3\e alrcad) dwlt. The st;itcmcntsi>f the livr permanent nienibers, as
the Secretar?-Gencral corrïclly pointso~t at paxes 45-46....r>ro.ofthe rccorduf
his oral statement, drew attention either to imilicit powers or to the spirit of
the Charter. It should, however, be remembered that in that case the Council
was beingrequested ta act on the basis of the consent of the interested parties,
and the permanent members were in effect merely ~aying that the approach
should not be narrowand technical in such a case.
As we pointed out in oa.agr..hs 28 to 30 of Chaoter V of Our written
stateiiieni; the* arguiiienis. as ucll as arguments in other cases dealt uith hy
the Ci)iincil in the e3rlg yearr of its praiiice, uerc undouhtedly political rliihcr
than legal and were, in some rcipects, bascd Lpon a teleological inicrpretation
of the Charter. They soughr rd judfy action in situations for which the Charter
in truth did noi provide. Apxt from the siairments of thcpermïncnt members,
as quoted by the Secretary-General, we quoted in our written rtatement other
statements made in this Connection, staiernents showing the clearly political
and extra-legal nature of the contentions advanced. And, as we concluded in
paragraph 30ofour written statement:
"Political arguments such as these and decisions taken in oursuance of
them cannot o;erride the provisions of the Charter or be usédto supple-
ment a supposed lacrinain the Charter. As the Court has said. 'the oolitical
character of an orzan cannnt release it from the observance of the treatv
provisions established by the Charter when they constitute limitations on
its powers'. The Security Council is no exceotion to this rule. It has only
the powers conferred uion it by the Charterand it must act in accordance
with them." 0,p. 508.)
And in ihis connection, .Vr Presidcnt, ue may repeat here a statemcnt made
hy the representaiivc of the Soviet Union in the Security Council Jurinç the
Iatier's dissuision oithe Grcek Frontiers Incidents auesiion iii1947.a siaiemeni
which isas true today as it was then. He said:
"While the Charter exists in the form in which it was adopted at the
Conference [he was talking there of the San Francisco Conference] and
ratifiedhy the States, we should adhere ta it and not try by giving inter-
pretations to bypass it or act as it suits us-one way in 1945and a different
way in 1947. If we follow such a policy, our work in the Security Council
will have no sound foundation and it will be difficult for us to work
normally."
Now it is submitted that it can hardly be said that the action of the Council in245 NAMIBIA (SOUTH WEST AFRICA)
the Trieste case,and the statement of one reoresentative in the SuezCanal case
-the rcprcscntativc of Egypt-(I am referring hcre to ihc oral statcmcni of the
Sccretars-Gcncral at p. 48, rupro) consiitutes authority for the proposition that
the praciicc of the Council shous ihïi Article 24 contains a grant or rcscne of
pouers and ihat in the maintenance of internaiional peaceand sccurity ii can
thercf<ircacr othcrwisc than in accordanse trith the specihcprovision\ laid doun
in Chapters VI, VII, \'III and XII ofrhcChltrter.
In anv case. the ouestion of Trieste. we submit. is distineuishahle fro. the
present -case. AS thé secretary-~eneral pointed but, in the Trieste case the
Security Council was beingasked by the Councilof ForeinnMinisters to assume
certain resoonsibilities. The element of consent was thusire.~~-~ Tha~ ~ ~ ~ ~rv
diifercnt mattcr from the present case\rhere the Sczurity Coun~.il is sesking io
cxcrcise powers which, in Our contention, itdoes not have and. asainsi the will
ofa member Stateto imnoseunon itmeasures whichthat ~tatemkiGainswerenot
taken in accordance wiih the charter. The element of consentcannot, of course,
justify actionwhich would, evenwith that consent. be beyond the oowers of the
Council as laid down in the Charter: but it can. oerha& undeistandablv. lead
IOa prïciical attitude on the pari of Gcuriiy CO;~CII mimbers ihat they ihould
no[ beover-technical in declining Douer to help the inrcrcsted parties in terms of
their own consent.
Now, however, the Councilis seeking Io go much further even than it did in
the Trieste case, becausein the oresent case the consent is dtoaether lacking.
Moreover, Mr. President, there js no sustained body of practicë which coucd
beinvokedto support the action of the Council in the present case.All we have
in reality are one or two isolated instances of action by the Security Council
which occurred some 20 vear. ae~. -~e leeali-. of that actio~~~.hich wa~ noli-
tical raiher than legdl, hÿs nevcr kn conicsied in a court of Iïw, it has ken
actepied in a poliiicdl forum. Now, for the firsi rime. the \,alidiiy of thc principle
involved is beina out to the test. and now for the first time ~ ~ lntema~ional
Couri of~usiice Lrkingasked iopronounce upon the matter. The actions of the
Council 20 scïrs ago may ucll have beçn invalid: they reniained uncontested
then becausethe interestid narties consented. ~lternahvelv. th.. mav. .rhan.
be regarded as valid. not si much on the basis of the Charter as on a sort of
q~asi-arbitral bï,is, flowing from thc consent of the inrcrcsrcd parties. tlowc~~er,
whatever the position, those actions cannot today be invoked in support of a
theory of a reserveof powers said to becontained in Article 24and sought to be
invoked against the will of a non-consenting member State.
In suooort of his contention the distineuis-ed renresen.ative of Finland
in\oked; ïnd 1 refzr to pagcs 72-73, vripro.of hisornlsiaicmeni, ihe"opinionof
recent authorities u,iih regard to the inierpretation of Ariiclc 24of the Charter".
Thcre follous, howevcr. mercly a quoiationfrom page204of the Third Kevised
Edition of the work of Goodrich, Hïmbro and Simons, The Cliorrer uf rhc
U~iirrd h'orion.~iiwhich the authors concludc ihat "ihc niorc Iiberal interprc-
tation" has aenerallv been acceoted. It will be found. Mr. President. that this
conclusion i;basedbrincipally bpon what look place in the Council io connec-
lion with the question of the Free Territory of Trieste, with which 1 have just
dealt. and thatcertainlv doesnot bear out Cheirsweeoin~.co-~~ntio~s ~ ~
~inally ihcre is thçsi~tcnient of rhc Sccrctary-Gencralcontdincd in parapraph
95 of his wriiten slatcmcni, thïi in adopiing the rcs~ilutions with which weare
now concemed it is evident that the ~ecuriti Council was actine in the exercise
of ils powers under Ariicle 24; cvidenr, ilissaid, from the nature of the ïlleged
violîiion by South Africa of her intemaiional oblic~t~onsand of the narure of
the consequent measureswhich the Council found Ttnecessaryto take ORAL STATEMEN'I BK MR. VIALL 249
With respect, we do not understand the statement or ils supposed relevancy.
It cannot mean that the nature of the violations and the measures taken show
that this was not a casewhere international peace and security wereendangered,
since if that were the case Article 24 wnuld clearly not k applicable at all-
because that Article refers onlv to oowers inconnection with the maintenance of
international peace and secur~y. ~hat beingso, it seemsto us that the statement
can only mean one thing and that is, that the applicability of Article 24 is
evident because no other orovision of the Charter reaardinri themaintenanceof
international pe3ce and iecurity is applicable. ~hat,-ofcou~se. is ohviously no
argument; itaniounts, in the prcsent contest. to sayingthat becauseChapter~VI
and VI1of the Charter do not ao~lv.. ..refurethe action of the Council must be
justified under Article 24. Again, the question-begging kind ofattitude which is
so evident throughout in the contentions against us.
It is submitted. Mr. President. that in the event there is no substance in the
contention that in adopting ils relevant resolutions the Security Council acted,
or could have acted bv virtue of a reserve of powers contained in Article 24 of
t~ ~ ~ ~ter.~a.d thatihe areuments adducedin suDDortof tha..contention do ~ ~
not bear analysis. It mGbe iointed out that even ifArticle 24had contained an
implied reserve of powers, we yet fail 10see where that would really lead us in
this case for it isuncontesied and incontestablethat Article 24isconfined to the
fieldof the maintenance of international pcïceand security. Suchimplicd p<iicers
uould therefore ha\e to bc conlined to the purpose of the mainten~nce of
international Deaceand securitv. and. as 1will oroceed to show. when dealine
just now with'the powers of th; ~ouncil under ~hapter VI of the Charter, the
Council did not in ado~ting its resolution relevant to the present proceedings
act in o~~er to maintain oeace and securitv but for ouite different Durvoses. .
In coticl~sion on this point. Mr. Prc5ident. 1uould Iike pcrhaps to put this
question of the importance of Article 24in some sort of ~>erspectivcI.I is impor-
tant f~~ ~the DO& of view of those who contend aeainstus: il is imooÏtant
beca~seal1are'ïpparrntly agred, with the one excepti& of thc'~overn~ent of
Pakistan, that Chapter VI1docs not 3ppls iiithese procccdings. When .rrecome
to Chanter VI we~will show that there~aeain it is eenerallv accented bv al1
or so at any rate it seems to us;that acti& undeichapier VI if the
Charter cannot amount to more than a recommendation-in other words, that
it cannot be binding. Therefore, if we have in this case to deal wiih any action
of a binding nature, then that action can only have been taken under Article
24 and the arguments that have been advanced, the contentions that have ken
made in various statements, both written and oral, regarding Article 24 appear
to us, Mr. President, to be perhaps, juridically speaking, the weakest conten-
tions or arguments of al].
Mr. President, 1come now to the question of relevancy and the requirements
of Chapter VI of the Charter in the present case.
In oaraaranhs 32 et seo. of Chaoter Vof Ourwritten statement. wecontended
firstli tha;the poivcrsofihe ~ecu;ity Council, under Chapter VI ,)fthe Charter,
can only be invoked for the purpose of mïintïining international peace and
securitv. and that since the real ourooses of the Council in adooting the reso-
lution' Concerned were altogether diferent and quite unrelated 10the main-
tenance of international peace and security, its action-the action of the
Council-was not authorized hv the orovisions of this Chaoter. And we con-
tended secondly that the ~ouncil did not act in conformity &th the provisions
of the Chapter because itdid not conduct an irnpdrtial and an objective inves-
tigation in order to detemine whether the dispute or situation was likely toendanger international peace and security. We furthermore contended that
such an investigation is a sine qua non for any action that the Council may take
under Chapter VI.
As regards the scope of the powers of the Council under Chapter VI, we
demonstrated that the only relevant powers under this Chapter are those
conferred in Articles 34, 36 and 37, since the Council clearly did not act in
terms of Article 33. va.aar..h 2. since it could not have acted in terms of
Article 38 bccïusc the partics did not so requect. and since Ariiclc 35dozs noi
confer in). poacrs whdtsoevcr upon the Council. Morcover, since Artt~.lc34
concerns only powers of investigation, we submitted that the resolutions could
only be justified, if at all, under the relevant paragraph of Article 36 or of
Article 37.
As renardsthe ~rovisions of those twoArticles. wecontendedthat the Securitv
~ouncircan onlyact in order to mdintdin intr.rnitionltl pcacc and security, wheh
it acts under thosc tuo Articles. Itis for that purplfie, for the mainicnïncc oi
Deaceand security. and for that DurDasealone. that the ~owers of the Council
Ünder Chapter VIhere conferred. ~oreover, the councii cannot intervene in
every dispute or situation, but only in one which, in the words of the Charter, is
"likelv to endanaer the maintenance of international oeace and securitv".
~onséquentl~,if ïhis rcquirement is not satisfied the ohc ci hlas no basis >or
action. In support of this proposition we relied upon the views of a number
of well-known publicists. We also pointed out that statements supportingour
contention had frequently been made in theproceedings of the Security Cnun-
cil itself. Thus, for example, during the consideration of the Corfu Channel
case, it is said in the Repertory of United Notions Proctice, Volume II, page
283 :
"Several members observed that the Charter had circumscribed the
functions of the Council hy providing that it might make recommendations
under Article 36 only whe" the continuance if the dispute was likely to
endanger the maintenance of international peace and security. The con-
sideration of any other dispute or situation enlarged the competence of
the Council beyond the limits fixed by the Charter."
And we showed that it was for the very reason that al1the other articles of
Chapter VI, including Articles 36 and 37, required the dispute ta be one the
continuance of which is likely ta endanger the maintenance of international
Deace and securitv. that Article 38 found ils wav into the Charter. For that
ieason alone, the insertion of thït Ariiclc. whichdid not apper in the original
Dumharton Oaks Proposals, was proposed by the spcmsoringgovernments and
motivated as follows:
"The purpose of this amendment was to give the Security Council, at the
request of the parties to a dispute, the power to make recommendations
concerning its settlement, even if the dispute was not of such a character as
to constitute a threat to the neace. Under the Dumbarton Oaks Pro~osals
the Security Council did not'pos~cssauthorit) to dcïl with \uch \çcondary
disputes and tthas been thought desirable thus to broaden itscompetcncc."
That was the proposal of the sponsoring governments. In other words, but
for the provisions of Article 38the Security Council would not Iegallyhave heen
empowered to act under Chapter VI ifa dispute or a situation did nit constitute
a threat to the peace.
Now, Mr. President, in the present proceedings only one participant has
contended that the Security Council, in adopting the resolutions in question, ORAL STATEMENT BY MR. WALL 251
in fact acted under Chapter VI of the Charter. Having agreed with Our conten-
tion that the Securitv Council did not act in t~ ~ ~ ~~~haoter VII. th~ ~~~ ~~-
guished representative of~inland stated that "thelegai foundation for Security
Council resolution 276may besought in the powers conferred upon the Council
in paragraph 1 of Article 36 of the Charter". (Supra, p. 71.)
Although he referred to that portion of our written statement dealing with
the relevance and reauirements of Cha~ter VI of the Charter. the re~resentative
of Finland made ni attempt to dispute the basic correctness of most of Our
contentions. He did not dispute, firstly, that the sole purpose for which the
oowers under Chaoter VI. and more ~articularlv underArticle36.can beinvok-
ed is ihc maintcnînic of internîtional pesce2nd sccurity. He diil noi contcst,
secondly, that the only disputes or situations usiih uhich the Council m!y deal
are those which are likelv io endanger the maintenance of international Deace
and security; and he also did not dispute, thirdly, that if the Council is io act
under Chapter VI, it must conduct an impartialand an objective investigation
in order to determine whether the dispute or the situation is of such a nature.
But it seemsthat perhaps the representative of Finland may have misunder-
stood our contentions regarding this third requirement. He said:
"Il is truc that somc wriiers maintain thai hefore h~ving rccourse to rhît
clause [hc urîs referring ihcre to pîrîyraph 1of Article 36of the Chîrter],
the Securio Couiicil should have dcterniined hv î ~rcliminary dcciiion.
whether the prolongation of the dipute or of ihe situation in question
seemedto constitute a threat 10the maintenance of international peaceand I
security. But that is not aconditionsinequanon, asisalleged in paragraphs
32 and 42 of the South African Government's written statement." (Supra,
p.72.) l
Non, ii is irue th31 \se conrendrd th31 a determinati~~nto the eiTectrhat the
c~iniinuanîeofa dispute or ofa situaiion consiitutcs î thrcït to the msintenance
of international oeace and securitv is a sine aua non for action in terms of
Chapter VI. We did not, however, Contend thaisuch a determination has to be
made by way of a preliminary decision-in other ivords, that as a matter of
Drocedure the Securitv Council should make two seoarate decisions: firstlv. a
prclimin~ry dccisii>n as to the nature of î disputc or a situation. and secondly, a
recommendation rcgarding appropriate procedurcs or meihod* of adjusinient
in casethe Council should find that a continuation of a dis~uteor situation does
in fact constitute a threat to the maintenance of international peaceand secunty.
Our contention was, and is, that the Council must make the necessary
determination, that this must appear either expressly or impliedly, from the
relevant resolution itself or from the debates ~.-.e.~~~ and u~rroundine its
adoption. and ihai as far as the Security C:ouncil resoluiions undcr considers-
tionarcconcerncd, ii 3ppi'ars quiicilcarly ihat the Council did no1consider thît
there existed ïny dispute or situation the coniinumce of which mighi besaid Io
he likely io constitute a threat io the niïintenance of international peîce and
security.
In support of his argÙment, the distinguished representative of Finland also
referred to the practice followed by the Security Council. He contended that
the relevant practice has been that directlv after the Security Council dis-
cussesa question it iakes a decision concerning the appropriatc procedures or
mcthods of îdjusiment. if. of course, ithasfound it necessary IOtakc action for
the pcaceful setilement of the mattcr. and thît in such î case ihe gravit, of the
situation is implied. He consequently appears to agreewith Ourcontentionthatthere must be at least an implied determination that the continuation of that
dispute or situation isin fact likely10endanger international peaceand security.
And when the representative of Finland statedthat inadoptingresolution 276
the definite aim of the Security Council was to obtain the withdrawal of the
South African authoritiesfrom South West Africa. he added that at the same
lime the intention was ti~srrcngihen the maintenance of international pcaccand
security and ro rcduce the cxisiing tension-l refer here to page 72supru. Hoir,.
ever. he made no attemot whatever to ooint out anv indiciai of such intention -~
or purpose, either in the wording of ihe resolution itself, or in the debates
preceding ils ado~tion. We will deal presently. Mr. President. with the relevant
;xpressiins of inkntion, but before doing sol I wish to point but that the repre-
sentative of Finlaiid also did not dispute Ourconientiun that ihcre is a further
reason why the relevant resolutions of the Security Council were ultra vires
Chïptcr VI ul the Churierand that is,thît the ~ouncil did not üct in conformity
with Article 34of ihat Chpter. WCsubniittçd that even if ican be iaid thït ihc
Council did make ihe neccssary determinaiion, 11still did no1act 3s reauired of
it bv that Article in that it did not act in conformitv with orincioles of iustice
ani international law. In elaborating upon this wésuhmiited tiat ~rticle 34
requires the Council to consider al1the facts, 10consider them objectively and
dispassionately and to consider both or al1sides of the question- We showed
further that in adopting ils relevant resolutions the Council did no1fulfilany of
these requirements.
Neither the re~resentative of Finland nor anv other oartici~ant in these oro-
ceedings questioned the validity of theserequirekents & attempted to showihat
they were in fact fulfilledat the time that the relevant resolutions wereadopted
or even before then.
Reverting now, Mr. President, to the intention or purpose of the Security
Council, it is Our primary contention that the Council invoked the powers
conferred uoon it bv Articles 36 and 37. if in fact il acted under those Articles.
not for the purpose-of maintaining international peace and security but for an
altogether extraneous purpose, that is to say, the removal of the South African
authoritiesfrom South West Africa. At the outset of thedebate which led to the
adoption ofresolurion 264~(1969),the Prcsident of ihe Council drciv the Coun-
cil's aitîntion to a letter from the Sccretary-Gcneriil in uhich the latter trüns-
mitted thc iehrof CiencrdlAsscmhly rcsolution 2403(XXIIIJ and "drasving par-
iicular îttention to operativc paragraphs 3 and 4 uhich are of immediate
conccrn to the Security Ci~uncil". (UN doc. Sll'V.1464, nn. 7-10.)
Para-.aoh 3 of thi~ ~ ~ ~ ~i~n d~ew the attention ofthe Council 10 the
"serious situiition iihich has arisen as a result of the illegal prescnccand actions
of the Govcrnment of South Africa in Namibia", uhile paragraph 4 recommcn-
ded to the Securitv Council the adootion of measures io ensu~ethe immediate
wiihdrüw31of ~ou-thAfriciiiiatithori;ics from South WestAfrica so iistoenablc
the latier to atiiiin independence in :iccordancc with the pro\~isionsof Gçneral
Assembly resolutions 1514(XV) and 2145 (XXI). 1 draw attcniion tu thosç
words to "ensure the immediate withdra\ral of South African authoriiics from
South Wcst Africü so as to enablc the Iïtier to airain independcnce".
The debates prcçeding the adoption of resolution 264 (1969) ati'ord, in our
submission. ample proof of the prcoccupïtioii of members of the Council with
the objective coniîincd in paragraph 4 of the resolution which 1 have jus1
auoted. that is to sav. the attainine of indeoendence bv the oeonles of South
est Africa. Thus thc'firstspeaker In thai de'bïte.the reprcsen;ati;,e of Algcria,
described the question before the Security Council ïs "the adoption ofpractiçdl
means to achieve Ourobjectives,whichare the accession of the Namibian people ORAL STATEMENT BV MR. VIALL 253
to sovereignty and the independence of that country". (UN doc. S/PV.1464,
pp. 11-12.)
The representative of Pakistan, in the same debate, stated that the General
Assembly had requested the Security Council to take measures in order to
enable South West Africa to attain independence.
The representative of the USSR declared that his country's opposition to
colonialism would determine the positionof the Soviet Union in the problem of
South West Africa.
The re~resentative of Finland. havina said that no Droaresshad beenmade to
help thepeople of South West ~frica;o achieve self-d~erminïtion and inde-
penJence. refcrred to the stepsthat the Security Council should tiike, so that the
United Nations could disch~rge its responsihilities for South M'est Airica. And
then, finiilly. the representative of the United Kingdimi reiteraicd an earlier
statement madein the General Assembly. on behalf of h~cGovernment, {vhercin
he had said: "Let me state aaa-. ~lainlv that our motive. our aim. our deter-
mination mus1 be to set the people of ~okh West Africa fr&, free to.advance to
the destiny of their own choice in full self-determination."
Similar statements were made. Mr. President. bv the re~resentatives of the
United Arab Rcpublic. Paraguay, China. the ~niied c ta teSps;in and Colom-
bia. Referenccsto aII thesesiatemenis arcsontained in paragraph 37of Chapter
V of ourwritten statement. where they are set out in extenso. Thev indicate auite
slearly that the purpose of the draf~resolution \sas the aitainnient of frecdoni
and independence by the people of Namihia rather thdn the mdintendnce of
international peaceand security. That purpose is also apparent from the debates
preceding the adoption of resolutions 269 (1969) and 276 (1970). In these
debates relevant statements were made by the representatives of Syria, Sierra
Leone. the USSR. Poland. Colombia. Zambia. India and Pakistan. al1of which
k;ir o;t the contentions 1 have adviinced. ~he;eferences to thesesiatements are
to be found in the Iast footnote to p.raar.ph 37 of Cha~ter V of Our written
statement.
The general conviction of the Council that its resolutions were directed to the
attainment of freedom and independence by the people of South West Africa
also appears from the terms of the resolutions themselves. In this regard, it is
important to keepin mind that, ashasalready beendemonstrated in our written
statement, and again in Ouroral statement, theseresolutions were basedsquarely
uDon the decision of the General Assemblv to terminate the Mandate for South
~csr Afric~. and that the meas.ires suhs&uentlg adopted by the Council were
taken in pursuInce of thlit dccison and in order to implement it.
We will demonstrate at a later stanethat the Durooseunderlvina the decisions
of thc Assembly was iilso IO scsure it üII costs iheipeedy inde.peidence and the
self-deirrmination of South West Africa asa single territorialunit. Not only the
Council, but the Assembly too, had thi< goal. I.li>iievcr. as flir as the Council is
concerned, 11sresolution 264 (1969)resffirmcd "the inslien3ble righr of the peo-
ple of Namibia tu freedom and independence". And, in resolution 269 (1969)
the Couniil decided that the continued occupation of the territory by South
Africü constituted "a denial of the pulitical sovereignty of the people of Nami-
bia", and the Council further requesied al1Siiites IO"increase their moral and
material assistance to the oeoole of Namibia in their struaale aaainst foreim
occupation". Then in resoiution 276 (1970) the Council asn re-&med "the
inalienable right of the people of Namibia to freedom and independence".
It willbe seen,therefore, that the emphasis here fell on freedom, on indepen-
dence and upon self-determination, not upon the maintenance of international
peaceand security.254 NAMIB~A (SOUTH WEST AFRICA)
It is true that there were some members of the Council who did maintain that
thesituatton in South WeslAfricaconstituted a threat tu international peüccand
security. In the lettcr addressed by 46 Siaies to the I'rcsident of the Council, to
which 1 referred earlier. it was stated that South Africa's continued occuoation
of South West Africa constituted a grave threaf to international peace and secu-
rity. (SC, OR, Supplement, Jan.-Mar. 1969,pp. 126to 127.)
In the debates leading to the adootion of resolutions 264 (196.). 2.. (196.) .
and 276 (1970) 3 number of rcprec~ntaiives m~de a siniilar allegaiion and ad-
vanced various reasons why thesituation in South \VestAlricd should be vieived
as constitutine a threat to international neace and securitv. Those reasonsare
set out in paragraph 39 of Chapter V of'our written statekent.
However, despite these allegations and these expressions of opinion, the
tems of the resolutions themselves as eventually adopted do not indicatethat
the Council, quo Council, considered the situation in South West Africa to be
a threat to international peace and security, or in any way likely to endanger
that oeace and securitv.
0; the contrary, MI. President, the Council rather significantly refrained
from saying this. lnstead it spoke of the grave consequences of South Africa's
continued occuoation of the territory. of an aagressive encroachment on the
authoriiy of the~niied Nations, but; be it noted; not or anact or Jggressiun. Ir
spoke also of3 violation of the territorial intcgrit) and thc denilil of the political
sovereiantv of the oeoole of South West Africa. It is conseauentlv qu.te.clear
thai th;C;>uncil did niil müke a determination, rithcr cxpre;s or iniplicd, rhat
thcre existed in rclation to South West Africa a situation or dispiitr the contin-
uation of which was likely to endanger international peace and security.
If the Council had in fact considered that there existed such a dispute or
situation, it would certainly, wesubmit, have said so. Apart from this, there are
other indications which firmlv neeative a conclusion that the Council made
even a taiit detcrniination to ihij &cf.
Ftrsily, ihere is the filcl that the Council refuxd to apply measures under
Chao.er ~I1ofihe Charter. and that leads to the inference. iie subinit. that it
did not consider that there existed any threat to the peace, hreach of the peace
or act of aggression.
Secondlv. althoueh certain reoresentatives ureed that the situation in South
West was oie likely to éndanger international peace and security, the
Council deliberately avoided making any assertion to this effect.
Thirdly, of the 15 members of the ciuncil as constituted when it discussed
resolutions 264 and 269 (1969),only five,namely Algeria, Zamhia, Nepal, Sene-
gal and Pakistan, indicated that in their opinion the international peace was
endaneered. or likelv to be endan~ered. And of the members of the Council as
constiïuted hhenit &nsideredres~lution276 (1970)andresolutions 283and 284
(1970)~nly ~our. Zambia, the Soviet Union, Nepal and Burundi, gave any such
indication. The relevant references here are to be found in paragraph~40 of
Chapter V of our written statement. No other member of the Council, MI.
President, indicated that he in any way shared this opinion.
Fourthly, the evidence already addufed to show the real purpose of the
Council indicates that it was not even concerned with the question of peace
and security and thus still less with making a determination in that connection.
We conseauentlv suhmit. MI. President. that in adontina the relevant reso-
lutionsthe ~;uncii'sonl~ ioiivstion u,sst;>=cure the i~m~diate indcpcndence
and self-determin~tiun of the peoplei of South \Vert Africii in pursuancc of
General Asseniblv resoluiion 2145 IXXII. It did not act with the DurDoreof
. .
securing international peace and security and it did not make a de&rmination ORAL STATEMENT BY MR. VIALL 255
that there existed a dis~ute or situation the continuance of which was likelv
to endanger such peacè and security. Thus, even on the assumption that thé
Security Council did intend to act under Chapter VI of the Charter, it invoked
its noGers for a .urD.se altoge-her unauthorized by that Cha~ter and. we
ruhmit, the relevant resolutiun~ are therefore rilrro!,ire,.
In ionclusion on this point rnxy I say thai from al1thiti 1havç said in regard
to the source of the Council's authoritv in ado~ting the various resolutions
with which we are here concemed, hoth in regard to-~rticle 24 and Chapters
VI and VII, there arises one point of more than ordinaty significance and one
which 1 am sure will not escape the attention of the Court.
1 refer ~ ~the f~c~ that in al1the written statements and in al1the oral state-
ments ahich have thus far been presented to the Court, it is only the Secretary-
General and the Governments of Finland and Pakistan that have indicated
clearly the provisions of the Charter which they consider authorized the Se-
curity Council ta take the action it did.
That is significant, MI. President, for while we may agree with the Secretary-
General that it is not the usual practice of the Council to indicate the provision
under which it acts in adopting any particular resolution, nevertheless, one
miaht surelv have ex~ected that in a case of this nature. at least more than three
of Ïhe part;cipating ~iatci and i>rganizalions would have attempted Io indicaie
the actual source in ihe Charter of the Council's auihoriiy,cspeiially since they
.rr,ereaware of South r\frica's posititm in the rnaiter. After 311.thai quciiion is
one of cardinal irnportanze in these proceedings. Yet, the great mïjoriiy did
no! even veniiire 3 suggestion in This conncction, niuch les, ïny moiiv~ted
- -~~
The inference seems inescapable, that in regard to the Security Council, as
in regard also to the General Assembly, the States and organizations concerned
wereJimply unable ta point to any specific enahling provisions in the Charter,
and for that reason sought refuge in the vague generalities in which, with res-
pect, their statements ahound. Moreover, even the three participants who did
attempt an answer differ in their positions. The Secretaty-General invokes
Article 24, Finland invokes Articles 24 and 36, and Pakistan invokes Chapter
v.A-,
In short, there isconsiderableconfusion inthe matter. Perhaps, Mr. President,
that is not strange in the circumstances.
TheCourt rose of 1.05 p.in. TENTH PUBLIC SITTING (24 II71, 10 am.)
Present: [Sec Sitting of 8 II71.1
hlr. VIALI.: Mr. President, honourablc ,Vcmbers of ihc Court. 1comc nuw
ti~the last püri ofour argument concerning ihe pou,ers of the Security Council.
thst 1;.the Dart dealine.with the lccal ciïects and ihc con,euuences of Sccuriiv
Council resblution 2760~ 1970. -
1 demonstrated yesterday, Mr. President, that only three participants in
these oroceedinas evenattem~ted to indicatethe source of the Securitv Council's
authoiity in ils adoption of the various resolutions which are relevas. Of these,
one, the Governrnent of Pakistan, invoked the provisions of Chapter VU
In Our resoectful submission we have shown clearlv and convincinalv that the
Council did not act, nor purport to act, under thatkhapter and, c&Sequently,
this contention need detain us no further.
Of the other two, one, the Secretary-General, invoked the provision of Ar-
ticle 24, and the other, the Governrnent of Finland, those of Article 24 and of
Article 36.
Now. in a number of statements both written and oral. it has been contended
that the resolutions concerned arc binding on Stateq ~ciiiben of the Vnited
Nations hy virtue of the pruvisiùn; of Article 25,\\hich rads as f~~llous:
"The Members of the United Nations agree to accept and carry out the
decisions of the Security Council in accordance with the present Charter".
The obligation imposed in this Article is, in the words of Kelsen,
". . a srnification of the general oblieation of the Members stioulated
in ~rticle 2, paragraph 5: 1; give the United Nations every assistance in
any action il takes in accordance with the present Charter" (The Low of
the United Notions, p. 97).
However, MI. President, as we pointed out in Chapter V, paragraph 54, of
our written statement, it is generally agreed that the obligation under Article 25
extends only 10those decisions which are taken in accordance with the Charter.
It follows that if a particular resolution of the Security Council is not validly
adopted under an empowering provision of the Charter, in other words, if it
is ultra vires the Charter, lhere can beno legal obligation for the Members of
the United Nations to accept and carry out any decision taken in terms of such
a resolution.
In paragraphs 55 to 58 of Chapter V of our written statement, we showed,
moreover, that Article 25 does no1 apply Io al1decisions of the Council in the
wide senseof that term "decisions" and thus including recommendations. In the
first place, the word "recommend" which is used in Article 36, paragraph 1,
and in Article 37, paragraph 2, connotes in ifs ordinary meaning a form of
advice or suggestion, the essential characteristics of which. we oointed out. are
that il mus1 be addrissed to sorne person or body and it léaveithat person or
body achoice of action. Byits very nature it cannot, of itself,imposeupon those
to whom it is addressed an obligation to behave in conformity therewith. 1
would quote here from the statement of Judge Winiarski in the context of the258 NAMlBlA (SOUTHWEST AFNCA)
It follows then that if it be assumed, contrary to what we have already sub-
mitted. that resolution 276 (1970)was validlv adonted under Cha~ter VI of the
charter, the resolution cannot be characteriied aiembodying injunctions, but,
on the contrary, can at the most he said to contain recommendations. That
beinr so. the Memhers of the United Nations arenot oblieed in terms of Article~ ~ ~ ~
25 togive effect to the recommendations. To put it at its'iiighest, Members are
required, in terms of Article 2, paragraph 2. to consider such recommendations
seriously and in good faith and to decide for themselves whether to implement
thern or not.
Although the representative of Finland contended that the legal foundation
for resolution 276 (1970) may be soueht in the nowers conferred unon the
Council in terms i>fparigraph 1 of ~Giclc 36 or'the Chdrter. he also statcd
thai Ariicle 24consiitutcs a lurther legal basis for the resolution. I refer here to
page 72. siipro.\Vhen dedling wiih the legïl erfeciof this resoluiion hc stated
lhar somc of the provisions of the resolution are of ü bind~ngcharacter tihilst
orhers are only recoiiinicndations. And he ~tated thai ,uch recommcnrlüiions
have no hindin~character (o. 73.suoi-a).Therenresentative of Finland therefore
agrees with ou;suhmissionthat &ticle 25 ofihe Charter is not applicable to
recommendations of the Security Council. Therefore, and since he also did
not dispute our contention that under Article 36 of the Charter the Council is
merely empowered Io make recommendations and nothing more, it is difficult
ta understand how he can ascribe binding effect to certain provisions of reso-
lution 276on the first basis advanced by him for the validity of that resolution,
that is, Article 36 of the Charter. And the only possible inference with which
we are left is that the recommendatory nrovisions of the resolution are. ac-
cording to the disiinguished represeniat&e; bdsedon ihe provisions of Article 36
and the su-callcd binding provision5 on those of Article 24.
Roth he and the Sccretary-Generirl contcnded ihai resoluiion 276\\as validly
adopicd under Article 24 of the Charter. and a nuniber of participants have
sought tu dcmun5trate the general binding characier of the resoluiion for
Menlberi of the Ilnitcd Niilions by invoking Article 25. Thus. for exïniole. tn
his written statement the ~ecretary-General, having said that the s;curity
Council was acting in the exercise of its powers as defined in Article 24 of the
Charter. went on to state that the powers and res~onsihilities conferred uuon
the ~ouncil are complemented by a specific corre~pondin~ obligation on-the
part of member States under Article 25 of the Charter. That appears in the
Secretary-General's written statement at na.agr-.h 96.
~ther~~ariicipani>ivho relied on the provisions of Article 25 did so without
indiratinp any lcgal basis in the Charter for iheadoption ofresolution 276. For
example, in its written statement the Govemment of Nigeria, summarizing the
socalled principal legal consequences for States of the continued presence of
South Africa in South West Africa notwithstanding Security Council reso-
lution 276, merely stated that memher States of the United Nations are under
"an inescapable duty under Article 25 of the Charter" (written statements, 1,
p. 896).
Pakistan, India and the Organization of African Unity are to similar effect,
but again we are faced with bare and unsupported assertions. The Govern-
ment of Hungary-1 refer to page 359 of ifs written statements, 1-does not
even invoke Article 25: it savs merelv that "member States of the United Na-
tions are expectcd to rcspectînd ïccépt this resolution of the Security Council
in accordance wiih the Charter. and they are obliged to gibethe United Nations
every assistance in any action iltakes in order t6 maki the termination of the
Mandate effective". ORAL STATEMENT BY MR. VlALL 259
MI. President, 1have already submitted that for various reasons Article 24
of the Charter does not contain a reserve of powers and that it does not confer
upon the Council any powers beyond those contained in Chapters VI, VII,
VI11and XII of the Charter. However. even if it be assumed that Article 24
dors contain iireserve tifpoiicrs tihich </u<~jcnable ihe Council 10 iakc decisi<int
under ihat Article, the qucstion ariscs: nhat is the nature and cnèct of thesc
powers, are they mandatory in nature in the sense that they bind States, or
are they merely recommendatory, or may they be both, or are they neither?
It is this sort of dilemma, Mr. President, with which one is faced when one
-~~ds~~-~o ~ orovision of the Charter imnlied nowers which are not there.
But since we are assuming the existence of these powers in the case of Article
24. let us see what reasons are advanced for the contention that they are of a
biading character. As 1have already adumbrated, seven of the participants in
these proceedings maintain that proposition but, except in the case of the
Secretary-General, we look in vain, Mr. President, for the reasons-they are
simply not there. We find only a series, as 1 said just now, of bare and un-
supported statements.
As for the Secretary-General, wefind that the only ground whicb he advances
is that, and 1quote fromfootnote 160to paragraph 96of his written statement:
"The records of the San Francisco Conference show that Article 25
of thc Charter of the United Nations applics IO a11dczisions of ihc Se~urity
Council. [And thcn he quote,. he sayi] "lhe obligation of thc Memkn to
carn out the deciiions of the Securitr. Council annlics cauallr. IO dccisions
~~-, ~ ~ ~~ ..
made under Article 24 and to decisfons made under thégr& of specific
powers'; seestatement by the Secretary-General, Security Council, Second
Year, No. 3, 91st meeting, pp. 44-45 (with reference to the obligations
resulting from the acceptance by the Security Council of the responsibility
for ensuring the integrity and independence of the Free Territory of
Trieste, see Security Council, Second Year, 91st meeting, p. 60)."
This statement of the then Secretary-General is the one to which 1 referred
yesterday in the context of Article 24.The paragraph of the statement in which
the quoted passage appears reads as follows, and 1read from the sources just
indicated:
"The record of San Francisco also demonstrates that this paragraph
applies to nll the decisions of the Security Council. As indicated above
t~ ~ ~ ~s a nr.oos7~ in Committee IIIli to limit this obligation solely to
those drciçions of ihc Coiincil tinderiaken puruant to the>pccilic potiers
enurneratcd in Chapicrs VI. VLI,VI11 and XII of the Charter. This anicnrl-
r~ ~ ~ ~ ~~.t to a~\,oie in the Coniniittee and reicctcd (doc. 5971111111.0)...
.Therclection of this umcndmcnt 15clex evidcnce ihat 'the obligaiian for
Memkrj to carry oui the dcc~sionrof the Security Council applics equally
to decisions made under Article 24 and to the decisions made under the
grant of specificpowers."
The amendment to which the then Secretary-General referred in that state-
ment, is the Belgian amendment with which 1dealt yesterday in some detail.
Accordingly, 1 will merely quote my conclusion in this connection, and here 1
refer ta page 245, supra, where it is stated:
"We consequently submit that the discussions relating Io the Belgian
amendment do not afford anv suooort whatsoever for the contention that
it was intended that the Sec;"t;~ouncil should be able to take binding
decisions in terms of Article 24 of the Charter." If that submission is accepted, Mr. President, and wecontend that it should te,
it means thai the contention of the various States and organizations to which 1
have referred, the contention that decisions of the Council under Article 24
are binding by virtue of Article 25, stands completely and wholly unsubstan-
tiated.
On the other hand, there can, in our submission, be no doubt that even
upon the assumption that the Security Council can take decisions under Article
24, such decisions cannot be binding upon States. The whole scheme of the
Charter ne~U~es~ ~uch a conclusion. Article 24 deals onlv with the~ ~ ~~ .~~~.itv
of the Council for the maintenance of international peace and security, but the
same is true of Chamers VI and VU. In Chapter VI the powers of the Council
in rcprd to the spe~ific~eitleiiient of disputes arc sarcfully deliniited and cir-
cumicribed and in this Chapter rhe Council is rcquircd. after investigation of the
matter but before taking action, to determine whether the continuance of a
dispute or situation is likely to endanger the maintenance of international
peace and security.
Havine.-so determined. it can then take action of a recornmendatorv charac-
ter. Its powers in this connection are carefully set out.
In Chapier VI1the powers of the Council are again carefully delimited and
circumscrihed. but here with respect to threats Io the ueace. breaches of the
peace and acis of aggression. 9efore taking action under this Chapter the
Council is required to determine the existence of a threat to the peace, breach
of the Deaceor act of amression: once it does that, il may invoke its oowers
under Article 41 or 42, Gwers which are carefully, although not exhauitively,
enumsrated and, moreover, which are of a binding nature.
But in Article 24 there is nothing of the sort.The only reference to powers in
that Article is the general provision in paragraph 2 that the specific powers
granted to the Council for the discharge of its duties in relation to the main-
tenance of oeace and security are those laid down in Cha~ters VI. VII. VIIi
and XII. B;I inspite of dl Ïhis, if,as kas becn averred in these pniceedings,
the poiiers of the Council under Article 24 are binding. the result u,ould be
thai the carefullv delimited distinctions between Chapters VI and VI1 uould '
k swept away. Under that Article, and upon that assumption, the Council
could, for example, take binding measures, including enforcement measures,
in a situation which was merely likely to endanger peace. II would not be
limited to recommendation.
Again, it could take the same measures without even properly detemining
that there existed a threat to the Deace or a hreach of the Deace. or even a
dlspute or s~t~at~onlikcly to endanger peace and becurily And, once again.
il could take recommend~tory measures without any reül or proper invebti-
aation or determination that the situation was likely to endanaer the peace.
- So that, whenever in a vague and geperal sort of way a situation could he
said to involvethe maintenance of international peace and security, the Council,
acting under Article 24. could take anv of the measures laid down in Cha~ters
VI and VII, but without king suhj&t to the limitations imposed by ihose
Chapters. Thus, the conclusion is that the Council would never need to act
under Chapter VI and VII. Article 24 would render their provisions redundant
and, in fact, a mockery.
It may be argued against this, Mr. President, that the Council can only
take action under Article 24 in situations which are not covered hy the detailed
provisions of Chapters VI and VII. But analysis will show that there can
exist no such situations, for, in the field of international peace and security,
every situation must either be one which might possiblyendanger peace, in ORAL STATEMENT BY UR. VIALL 26 1
which case Article 34 in Chapter VI would corne into play, it being clear that
the Council cannot act until it has determined that this possibility amounts
to a likelihood: or it could be one that is likelv ro endamer oeace and securitv.
which is therefore covered by Chapter VI; or it could bea situation whiih
does, in fact, endanger peace and security, as where there is an actual threat
to the peace; or it could be one which acrually disturbs the peace, as in the
case of a breach of the peace or an act of aggression, and these latter situations
are therefore covered by Chapter VII.
It mav further he araued aaainst us that the meansof action laid down in
chapte& VI and VI1 are not ëxhaustiie and that, thereiore, undcr hnicle 24.
the C'ouncilcould take any masures conîistcnt with the Charter, any measurez
at al1 which are necessarv for the maintenance of wce and securitv. even
though Chapters VI and VII do not provide for them. But while, in t&s of
Chapter VI, the powers of the Council are, in general, restricted to the making
of recommendations, under Chapter VI1 thev are verv wide indeed. And if.
for chaniple. the ~uuncil h;is anypo.ricrs of territorial ctintrol 2nd administra:
tion at all, which, oicuursc, isconiested by us. il could conccivabl) hwe them
in tcrms of Article 41 of the Charter. Suhic~.ito the other orovisidns oi the
Charter, it could conceivably administer a territory with binding effect if it
decided that such a measure was in fact necessary to give effectIo its decisions
under Chapter VII-provided always that it had properly determined the
existence of a threat to the peace, breach of the peace or act of aggression.
The point here, MI. President, isthat under Article 24 there can be no
conceivable measures for the maintenance of peace and security which are
not already provided for in Chapters VI and VII, between them. And the
measures would be binding hy virtue of the provisions of Chapter VI1 read
with Article 25, not by virtue of Article 24, read with Article 25. In the result,
then, it is submitted that the whole scheme of the Charter, in regard to the
maintenance of peace and security, militates strongly against any suggestion
that the Council can have binding powers of decision under Article 24. And
the argument that I have adduced in this connection also goes to support
the contention 1 made yesterday that Article 24 was never in fact intended
to, and does not, confer powers upon the Council over and above those speci-
fically provided for in Chapters VI, Vil, ViII and XII.
Nevertheless, if, in spite of what I have said, we assume, for the sake of
argument, that the Council cal1 take binding decisions under Article 24, the
next question is whether, in adopting resolution 276, the Council infended
to take such decisions and, if so, to what extent? Some participants in these
proceedings, such as the Government of Nigeria, appear to have assumed
that the Co~ncil~ ~ ~~ ~ower.~ to take~-i~ ~ne decisio-s and ~~-ended to
do so. Other participants, such as the representative of the Secretary-General,
contended that the Security Council was legally empowered to take binding -
decisions, but rnerely assukcd that it intended to do so.
In what follows, 1 ask the Court to bear with me if 1 repeat some of the
more important contentions contained in Chapter V of out written statement
in this re-.rd. for thev are. we main~ ~~~ ,erv imnortant.
Every paragraph of a resolution of the ~ecuity Council may be regarded
as a separate decision of the Council which reflects and sums up the opinion
of a majority of its members on the particular matter which isdealt with therein.
And in this sense, every part of a resolution is a decision, in the wide sense
of that term. However, we have pointed out that a decision, in the ordinary
sense of the word, must be distinguished from a recommendation. Further-
more, in the wide sense of that word, d~isions may be essentially either262 NAMIBIA (SOUIH WEST AFRICA)
oreamhular statements. hinding d-cisions. declarations of attitude or exores-
siens of opinion, injunctions or requests.
Now, if the Council is, for example, authorized to make a definitive deter-
mination, it may, no doubt, do something less, such as express its opinion
or declare its attitude on a matter. For, in the words of Blaine Sloan, British
Year Book of Iitternarional Law, Volume XXV, page 3, "even where a body
may be competent ta make a binding decision it may voluntarily limit its
action ta something less".
If the Council intends to make a definitive determination, it may, inter
alia, "decide", or "determine", or "declare" something. On the other hand,
if it intends to do something less, it may "consider", or "regard", or "deem"
something. The choice of words will usually indicate the intention of the
Council. In the lieht of these considerations. 1will oroceed to examine brieflv
the nature and th; Icgal enài of the \ariaus parts of Security Council resolu..
tion 276. The preamhle consists of a serics of re~flirmations. These are only
statements. essentiallv exolanatorv in nature. which define the attitude of the
Council Thcy mdy &rvc'to clariiy the intentions of the Council as cxprcrsed
in the operative par~graphs, but theg do not estahlish, nor d~ ihey purport
to estahlish. anv leaal ohliaations.
~aragraph I -of ihe operative part of the resolution, in which the Council
"strongly condemns the refusal of the Government of South Africa ta comply
with General Assemhly and Security Council resolutions pertaining to
Namibia" is clearly no more than a mere condemnatory statement, a declara-
tion of attitude on the part of the Council. As such, it also imposes no legal
obligations.
oierative paragraphs 2, 3 and 4 of resolution 276 were analysed in para-
graph 49 of Chapter V of Our written statement. We pointed out that para-
graphs 2 and 3 are in the nature of definitive findings or determinations on
the part of the Council, namely a legal finding in paragraph 2 and a finding
of fact in paragraph 3. Operative paragraph 4 may have heen intended as
either a hindinn decision. a lecal or a factual findina. or a non-definitive
expression of oiinion or declaration of attitude. We a%o pointed out, how-
ever, that al1three of these paragraphs might have heen intended to he merely
declarations of attitudemade bv the Council in oursuance of oumorted defini-
tive findings of the General ~siembly, or even to represent mire iecommenda-
rions.
If the .araa-.ohs were intended to be definitive and bindina determinations
of la-, and Caci,ihey still do not achieve their abject, since alone and of irself
ï linding imposcs no legal obligations. in this case. particularly, upon South
Africd. For obliaations to flow. some further iict of the Council is necessary,
for example, a hinding injunction to States which is hased on a finding to take
measures in terms of Article 41. That would be an example.
In his oral address, the distinguished representative of Finland contended
that the first four paragraphs of the operative part of the resolution contain
findings which hind South Afnca legally. He then said that South Afnca is
therefore put under an obligation to modify its conduct in South West Africa
in confo&itg u,ith the deciiions of the ~&urit~ Council (supra, p. 73). Nou,.
if ilis assumed thiit South Africa's prcwnce in South West Africî is indeed
illegal. then as a niatter of law South Africü u,ould. no doubt, be required, in
the-words of the Finnish reoresentative. to modifv its conduct. ~his dutv.
however, would not he creaied hy the kere findi& of the Security couniil
asto the legal or the factual position. On theother hand. if the Security Council
were to mike a finding thac~outh Africa's presence is illegal, and, on the hasis ORAL STATEMENT BY MR. VIALL. 263
of this finding, acting in terms of specific powers conferred on the Council,
to enjoin or prescribe to South Africa and to other States the course of action
to be adopted by them, member States of the United Nations would, prima
facie, be obliged to giveeffect to such prescriptions by virtue of the provisions
of Article 25. For those prescriptions would be injunctions binding in their
effect.But this is preciselywhat the Security Council failed to do when adopting
the resolution under consideration: it failed to enjoin or to prescribe to States,
including South Africa, what steps they should take on the basis of its finding.
In operative paragraphs 6 and 9 of resolution 276, the Council decided,
resoectivelv. to establish an ad hoc sub-committee for certain nurooses and to
re&me coisideration of the question of South West ~frica aker receiving
the recommendations of the sub-committee. It is obvious that these are insti-
tutional decisions, decisions which relate to the functioning of the Council
itself, and that they can impose no legal obligations upon States.
Operative paragraph 8 is likewise irrelevant for present purposes, since it
merely requested the Secretary-General to give assistance to the Sub-Com-
mittee in the performance of its task.
Then wecome to operativeparagraph 5 of the resolution, where the Security
Council-
"... calls upo~ral1 States particularly those which have economic and
other interests in Namibia, to refrain from any dealings with the Govern-
ment of South Africa which are inconsistent with operative paragraph 2
of this resolution".
Then again, in operative paragraph 7, the Council-
". ..requests al1 States as well as the specialized agencies and other
relevant United Nations organs to give the sub-committee al1the informa-
tion and other assistance that it may require in pursuance of this Reso-
lution".
Mr. President, in paragraph 52 of Chapter V of our written statement we
submitted that the expressions "calls upon" and "requests" may have been
intended by the Council to introduce either an iniunction or a recommenda-
tion. SinceLe were dealing with the legaleffectof the resolution on the assump-
tion that it had been adopted under the provisions of Chapter VIof theCharter,
and since under the relevant articles of that Chanter the Council may clearly
only niake reconirnendations, itwds unneccswry for Our purporc to determini
the re~l intention of thc Council as it appears froin the wording af operative
paragraphs 5 and 7. However. we agree with the arguments advanced by the
Govemment of France in its hrittei statement in faveur of the view that in
the paragraphs under consideration the Council did not intend to make bind-
ing decisions. We also agree that this can be inferred from the wording of
the resolution itself as well as from the debates preceding its adoption and 1
would refer here, Mr. President, to the written statement of the Government
of France (written staternent, 1, p. 362). Thus. as stated by that Government,
in resolution 276 (1970) the C~- ~~---~~nloved the word "decides" solelv in
~ ,-~ , = ~, ~ ~ ~ ~ ~ ~ ~
connection with procedural measures concerning its own functioning and not
when addressing States. When it did address States, it used the language of
recommendatioi or of declaration. This should be contrasted with the language
ernployed by the Security Council when it decided on sanctions against Rho-
desia, as the Govemment of France points out. In that case the Council
prescribed the action to be adopted hy other States in unequivocal terms.
Wealso agree with the followingstaternent made hythe Government ofFrance:264 NAMIBIA (SOUTH WEST AFRICA)
"Moreover, the terms which resolution 276 (1970) employs in regard
to member States while within the normal range of expressions employed
in recommendations, are not even particularly fon'eîul compared with
other expressions concerning, for example, the cease-fire in the Middle
East, which although it had not been 'decided' either, wasnevertheless
made the subject ofmorecogent phraseology"(writtensta 1t,p.36n). ,
The distinguished representatives of Finland and the Netherlands appear
to agree at least partially with these views expounded by France. Thus the
former stated that paragraph 5 of the operative part of resolution 276 (1970)
amounted to no more than an invitation; in other words, it did not amount
to a binding decision (p. 73, supra). And the distinguished representative of
the Netherlands concluded that there exists no obligation for States to take
positive action designed to force South Africa to discontinue its administration
of South West Africa (D.130.supra).
For the rciisons giv& then; xir. Prcsidcnt, ue subiiiit that ctcn if, contrary
to Our conteniion, il ucre to bc hcld that the Security Council m3y take a
dccision bindina upon States in terms of Article 24 of the Chaner. it did nut
do so in the prësent case. An analysis of the wording of the resolution shows
that the relevant pans thereof were intended to be mere findings of fact or
law. or otherwise recommendations Io States other than South Africa. As 1
have said, a recommendatiun by \ery definition leaves to the pcrson or body
to u hom it is addressed a choicc of action. At the mort, therefurc, the adoption
by the Council of resolution 276 (1970) rcquircs that melnber States qhould
consider the recommendations coritained in oper3tive pürdgraphs 5 and 7
seriously and in good faith in orde10 decide for themselves u,hcthcr to implc-
ment them or not.
That, MI. President, we suhmit, could be the only consequence for States
of resolution 276 (1970).
Mr. President, that brings me to the end of our argument on the question
of the powers of the Security Council. ORAL STATEMENT BY MR. GROSSKOPF
REPRESENTATIVE OF THE GOVERNMENT OF SOUTH AFRICA
Mr. GROSSKOPF: Mr. President and honourable Members of the Court,
this morning 1 propose giving a general introduction ta Our contentions that
General Assemhlv resolution 2145is invalid. 1would commence bv considerina
on what legal hasis the Ceneral Assembly purported ta act and what bas&
have been suggested by others for itsaction.
In Chapter VI of our written statement we demonstrated, Mr. President,
that General Assembly resolution 2145 (XXI) was based squarely on powers
claimed to vest in the General Assembly as successor ta the supervisory func-
tions previously exercised by the Council of the League of Nations. We showed
we submit, that thosewere the powers which the General Assembly claimed to
exercisein passinp this resolution.
However, various other hases have heen suggested in the statements before
the Court as affordingthe necessary competence to the General Assembly. The
most comprehensive list of such bases was that of the distinguished represen-
tative of the Secretary-General. He stated at page 50,that the General Assem-
blyhad, in adopting resolution 2145(XXI), acted:
"in itscapacity asthe supervisory authority for the Mandate for South West
Africa ;
- as a psrty in the contr;iciual reliitionship 3rising froni ihs Mandate;
--- as the sule urgan of thc intcrn:itional cummunity responsihle for
ensuring the fulfilmeni of the ubligatiun< and sscrcd [ru51aiiuined in
respectof the pcoplednd Terriiory of S3niibia;
- as the organ primdrily concernïd uith Non-Srli-Guverning and Trut
Territories:
- as the tirgan auihori~ed, by Articlc 13of thc Charter, to make recom-
nien&~tionsfur the piirpose of assisting in the re3li~iition of humsn
rirhis and fundsmental frsedoms fur aII. wiihout distinction as Io race,
sei, language or religion;
- as the organ of the United Nations which is authorized, by Article 10
of the Charter, to make recommendations to the Members of the
United Nations, or to the Security Council, or to both, on any ques-
tions or any matters within the scope of the Charter, and
- as the oraan which mav make recommendations, under Article 11 of
the <'hart&, nith regsritù dny quesiion rclsting to thc miiintendncc uf
intern3tiansl pcdcc and securiiy IO ihc St~tcor Statc, ii)nserncd. orIO
the Security Council, or to both."
Now, Mr. President, the last three of these roles may, in my submission, be
disregarded for present purposes. These are those said to have been performed
under Articles 10, 11 and 13 of the Charter. In each of these cases the role
assigned to the Assembly by the representative of the Secretary-General was
that of makina recommendations. As we have shown in Chapter X of Our
uritlen siiitem~ni, rçsolution 2145 (XXI) cannor bc justificd on the hs,is of the
exeriise of a poucr to miikcreconimen&ütions.The resolut~on,in Ourrcspçctful266 NAMlBlA (SOUTH WEST AFRICA)
contention, clearly purports to go beyond a mcrc rrsommendation. This is,
however, s matter with which weshall deal ai a Iaier stage.
The role of the Generdl Asscmhlv as the orran ~r.mari.y concerned n,iih
non-self-governingand irusi territories nill also beconsidercd a1 iilaier stage.
Wc propose demonrtrating that the Generdl Assembly hiis no general poii,er io
make territorial settlements of the sort which it . .uorted to make in resolution
2145. This, in my submission, is quire clear 3s regards non-self-governine terri-
tories. Itis, in my submission, quiic clîdr, and will be aniplilicd laier, ihlit ille
General Assembly does no1 have the Dower, for instance, to declare that a
pariiculür ierriiori shlill no longer hll iindcr thc ro\.ereigiii) oisonic St;ite.
Rut wc \vil1proceed iita latcr stageto ?hi>\\that thcsnnie applies, in principlc
to the tmsteeship system.
1 then came, Mr. Presideni, to the role which the representative of the
Secretary-General suggested was played by the General Assemhly as the sole
organ res~onsible for ensuring the fulfilment of the obligations and sacred
trust assuked in respect of the people and territory of ~amibia. This suggested
role, 1 would respectfully contend, need not detain us for long either. The
Dowersof the General Assemblv derive from the Charter and. in Oursubmission,
from the Charter only.
Whatever role it has to play as the sole organ responsible for ensuring the
fulfilment of the sacred trust could therefore, in Our submission, only be per-
formed by making useof the powers granted under the Charter. This as 1 have
said will be dealt with later. The Court will recall that in the 1950Opinion of
the Court Article 10 wds identified as the provision of the Charter which is
relevant for the purposes of supervisory action hy the General Assembly.
It mus1 be accepted that the subjects which could be considered and upon
which recommendations could be made by the General Asxmbly are very
wide. To that extent it may have a role to play also in respect of mandated
territories and other similar territories. It is not clear whether the role which
the re~resentative of the Secretary-General assigns to the Assembly in this
respect is the same as that of supervisory organ in respect of mandsed terri-
tories, but be that as it may, it is Our submission that the General Assembly
could not. hv reason of anv succession from the Council of the League of
Nations have acquired any greater powers than those conferred upon i<in the
charter. The concept of United Nations succession to the supervisory powers
of the League has not. in Our submission, in the past been regarded by this
Court as agrant of greater powers. lndeed, as we propose demonstrating, the
Court's attitude was that the General Assembly could act only in terms of its
own constitution, hoth suhstantivelv and ~rocedurally. It could give attention
only ta auchsubjecis 3swere \r,iihin-its ~o~~eicncc in-terms of the Charter and
it\ids Iimited hy the pri~cedurclaid down for itin ihai insirumcnt.
The u hailesonceut of successionof funciions rehied basically to thc oblied-
tions of the mandatory rather than to the rights of the ~nited Nations. The
concept of succession involved that the mandatory, so it was held, became
oblized to submit reports and renerallv account to a different organ from that
to n:hich ittiad to subniit rep&ts and nccount prcviouily; and, <lr. Prccidcnt,
in 1950the Ci~urt held that the chient of this obligation \vasnot to beincreased,
that it was not to be greatcr [han ithad been undcr the Ledgue of Nations.
The conirpi thai the obligation of the miindatory shuuld rem3in the same
necessarily, in our submission, imposed a correçponding rssiriciion on the
powers of the General Assembly not to impose a more onerous form of super-
vision than had beenin force previously.
So it isOur submission that the role of the General Assembly in respect of ORAL STATEMENT BY MR. GROSSKOPF 267
mandateswas, according totheCourt,as follows: (a) inexaminingmandatories'
reports and recomniending upon them, it exercised its powers subject ta such
substantive and vrocedural limitations as were laid down in the Charter. ,and
(b) in addition, it was under a further restriction to ensure that the degree of
supervision should not exceed that which applied under the mandates system.
Therefore the role sought ta be assigned tothe General Assembly as the pro-
tector of the sacred trust could, in our submission, not serve tu extend the
powers of the General Assembly. It could rather serve to limit them to lessthan
mie-t othenvise have been available under theCharter.
On nniilysisthcrclorc, Mr. Prcsidcni, WC (ontend, \riihrespect, that rhc poucr
,ifthe Cicneral Assernhly ii)rcvoke the hlindate musr he found in the Chdricr
or else it does not exist. On the other hand, its alleged functions as supervisory
authority, on which it purported to rely, could have derived only by succession
from the League Council in the sense in which 1have used theexpression,in the
sense that there was imposed on the mandatory an obligation now to report
and accounttothe General Assembly.
These matters also wiiI be considered at a Iater staae: in varticular. we will
dm1 ai nIxer sidge wirh the quoiion tihcihcr the msnia;ory.did in FJL.;beconie
undcr an obl~gaiion IO report snd sccouni io the Gcner~l Asscrnbl! as suîcessor
to the Council of the League.
The main remaining question then is whether resolution 2145 (XXI) could
be justified by considering the General Assembly as a contractual party to a
mandate treaty which denounced the treaty by reason of a material breach by
the other. In other words. Mr. President. there is a sueeested distinction
between the General ~ssembly seen in a rile as acontract~~l partyas again;;
the General Assembly seen in therole as a supemisory organ. Its role as suggest-
ed supervisos. organ we will deal with later; 1 propose dealing this mo&ing
with the suggestion that it acted as a contractual party to a mandate, orat any
rate that its action could bejustified on such a basis.
The contention that the General Assemblv acted in this canacit. was.made ~ ~~~ ~
not only hy the diitinguishcd reprcscniaiive ;f ihc Secrctary-Gcncral but ir \\as
also made in the iiritien siaienieni of ilie Unircd Siaies of ,\mericn ai 1, pages
b56 io 857.iind 11iiar madein theordl oroccedinrs bvihcdiiiinruislicd rcorcscn-
tatives of Pakistan (p. 138, supra) and of ~inÏan2 (p. 82, s&ro). 1mLst add
however, that the last-mentioned statement was not very clear on this point.
The distinauished reoresentative of Finland ref~r~ ~. at the nac.~m-ntioned. -.-,
to our contention that the United Nations was not'a party to any mandate
treaty, but he then mentioned the 1950Opinionasauthority for the vrovosition
that "important functions" were transfërred to the ~nited ~ations and that
a legal relationship was thus instituted between the United Nations and the
mandatories (supra, p. 82).
It is accordin-l.. with res.ect..not auite clear to me whether the distineuishe~ ~~~
rcprescniaii\~eof Finland inicnded io conicsi Ourconicniion that rhere wds no
sonrrncru~l rïliiionship bei\veen the Genrral A~seniblyaiid South Africa or
whether he aareed with that but stated that there was adifferent lee-l relation-
ship which reiulted in the same consequences. But be that as it may, for present
purposes 1 shall assume that he supported the representative of the Secretary-
General in contending that resolution 2145could be justified on a contractual
basis.
Now, Mr. President, our submission on this topic was, firstly, that in adopting
resolution 2145the General Assembly purported to act as supemisory authority
in respect ofmandates, andnot as contractual party to any mandate agreement.
That wasinVolumeI1, ChapterVI, of ourwrittenstatement,at paragraphs2 to 5. WCdid this by analysing the resoluiion and shouing that IIdid noi purport IO
contain a revosîtinn of a contract un thc grounds O!'hrcach by the other party,
but that it ourported to be an act justified by its powers or authority as super-
visory organ. so whatever rights it might have had as party to a contraciual
arrangement, we submitted that the General Assembly did not purport to
exercisesuch rights.
But. Mr. President. we continued to contend that anv claim to have acted as
a ciniractual party to a mandate agreement would have been misconceived.
We submitted, in this regard, firstly that the League itself was never a con-
t~ ~ ~al oa.tv .o a mandate agree-ent for the simole reason tliat the mandate
uas, in Oursubmissiun, not n tresty but. on the conIrdry. oncd 11sIcgaI forcc
to sn administrüiive or quasi-legislsti\e act of the Council of the League acting
~ ~ ~~ ~ of Article 22. oaraaraoh 8. of the Covensnt. This wss an i\iuc u,hich
.. -. .
was extensively canvassed in the preliminary objections proceedings in the
contentious cases between Ethiopia and Liberia and South Africa. We dealt
with it in the I.C.J. Pleadings,SouthWesr Africcaases, 1966,Volume II, pages
.,-...
The argument, in very broad outline, was that Article 22,paragraph 8, of the
Covenant had provided the following:
"The degree of authority, control, or administration to be exercised by
the Mandatory shall, if not previously agreed upon by the Members of the
League, be explicitlydefined in each case by the ~ouncil."
We sought to show that in fact the degree of authority, control or adminis-
.-~~~~-~~a~~n~t be~n o~eviouslv aereed on bv the members of the Leaeue
. - -
(whatevermeaningthat expression might have been intended to bear), and that
it was accordingly subsequently defined by the Council in a resolution. The
result was, in oÜ;submission, that the Mandate was never a treaty and that,
therefore, no rights could have accrued to any person on a contractual basis.
Moreover, Mr. President, we contended that if the League had ken a
c~ ~rac~ual nartv to a mandate treatv it would in that caoacitv have had onlv
. . . .
such rights 3s the parties tu the treaiy had agreed upon. And, ue coniinucd IO
ray. il is hardly conceivable thal theauthors of the m~ndïtessyslem uc~uldha\,e
d~ff~ ~~~iatedbetween the riehts v-stine in th- Leaeue in ils-caoacitv as s.oer- .
visory authority and thosc vesting in it in its cirpacity as contractudl party. We
de31with ihis in our written statement, 1,Chapter VII. paragrÿph 70.
After all. Mr. President. the rule that a contract mav be cancelled bv reason
of the brekh of the other'party is only a rule which eists as long as, and to the
extent to wbich. the oarties wish it to obtain in their contractual relationship.
Wbere one wai dealkg with a new institution like the mandate, which had
many novel features, one would hardly attribute to its authon any intention
to separate the powers which the League might have as contractual party from
those it might have as supewisory authority. The parties would, in our sub-
mission, clearly have looked at the substance of the matter and would have
determined for themselves substantially which powers they wanted the League
to exercise. In our submission thev would not have distineuished betw-en Iwo
different bases upon which the ~eaguemight have acted.
As to the actual powers which we contend the League was intended to have,
t~ ~ ~~~ ~r~will be~d~alt with later
Then, Mr. President, as regards the contention that the United Nations
acted as a contractual party, wesubmitted that even if the Mandate had initially
been a treatv it ceased king such on the dissolution of the League. whatever
might have happened to ils rial or itsdispositiveaspect. ORAL STATEMENT BV MR. GROSSKOPF 269
Our contention was that if the Mandate was a treaty the only parties to such
a treaty, other than the mandatory itself, would have been the League, as an
Organization, or the members of the League in their capacities as such. So if it
were a treaty or a convention it would have been a treatv between on the one
hand the mindatom and on the other either the ~eaeué.as an oreanization.
or its members. the ~eagueand the capacityof iembership of the ~ea~ué
fell away on the dissolution of the Leaaue. Therefore we say that even if the
anda al had becn otreaty itceascd king such on the dissoluiion of the Lcaguc.
Thdt does not. of counc. exslude the possibility that the Mandate might have
continued in ils institutional aspect as providing a status for the ~ërritory.
This matter is dealt with more fully in the I.C.J. Pleadngs, South West Africa
cases, 1966,Volume II, pages 193ff.This was also a matter which was strongly
contested in the orelimina~ ohiections staae of the nrevious contentious
procecdings, and the proposiiionr;hat 1have idvanced, hoth thai the Mandate
ncvcr u,asa treaty and thatilceased king such on the dissolution of the League,
arc both inconsistent uxh the findinas ofthis Court in ils 1962Judamcni.
For thc reîsons which we give in LCJ .ie-adinfs.1966,~olumell. to which
1have rcferred, \re rcspcrtfully onten entdhat the msjority JuJgnient \\,asincorrect
in thatresoect
But,MF .>residcnt,ihe point I \\,ishto stress is thai cven ifuc10,assume
for thc sake of argument thal the 1962Judgment ivas correct in what itheld.
then it is still clear. according to the Court's Judment. ihat the Mandate wss.
tifter the dissolution of the &aguc. not a treaty<o which ihe United Satlons
was a party. The Court's finding u,as that the Mandate became. aftcr disso-
lution of theLeacue. nmultilateral treït, and. in ihc form in whichilis stated.
iiis cledr th31in the Court's viewthe unlied Nations asan organization was not
B party thcrcto. So out contention is that is not necessary for us to sho\,, that
the 1962Judgment was incorrect. because even if one were to accept that it was
correct then Ïhere would still have ken no bdsis for any purported~action of the
United Nationsas a contr~ctual pariy IOa mandate treaty.
The Court adjournedfrom11.20 a.m. fo 11.45 a.m.
Before the adiournment 1 was dealina with the contention that resolution
2145 could be jüstified on the bsis that TheGeneral Asxmbly \\,asacting as a
pdrty to a mandate treaty. 1referred to Ourarguments that the Mandate never
was a treatv and that it in anv event ceased beina such on the dissolution of
the hgue.0~ Nations. If the court mere to accede tu Our wntentions in that
regard that would man that it would have to depart from the 1962Judgment
on the preliminarv objections. But. Mr. President. even acceotance of the
correctness of that-~ud&ent u,ould, in Our subniissi'on.no1 suGort the argu-
ment that the General Assernbly resolution 2145could be justified on the basis
of action taken by a contractual party.
The Court's attitude in 1962 was that the Mandate had initially been an
agreement "between the Mandatory and the Council representing the League
and its Members" (I.C.J. Reports 1962, p. 331). The Court said further, at
nage 332. "the Mandate for South West Africa ...is an international instru-
ment of an institutional characier, to which the Luye of Nations, rcpresented
by the Council. \ras itself a Party". The initial agreement round by the Court
Io have existed was according~~~betweenthe m an da tor ynd the League and
the Members of the League.
From that initial ûnding the Court had been invited by the Applicants to
proceed to one of two alternative conclusions, namely firstly, that the United270 NAMlBlA (SOUTH WEST AFRICA)
Nations andits Members had succeeded as contractual parties to the Mandate
in the place of the League and its Members. That was the first contention ad-
vanced by the ~pplicants; but they also advanced an alternative one, namely
that the Mandate continued, on dissolution of the League, as a treaty or con-
vention between the States which were Members of the Lea~ue at the time of
its dissolution. These contentions on the part of the ~~plicants may be found
in the I.C.J.Pleadings,South WestAfrica cases, Volume 1,pages 443-449.
So those were the two alternative contentions that thev advanced: that the
treaty relationship continued, after dissolution of the L3gue. betueen the
Mandatory and the United Natii~nsand ils Members; or ;ilternatively, bctueen
the Mandatory and the hlembers of the Lemue 31 its dissolution.
In the result, the Court chose the secondaiternative. It based its findings
mainly on the final League resolution of 18April 1946,which the Court held
"was adopted urecisely with a view to continuina the Mandate as a treatv
between Che~andatoÏy and the members of the Lague of Nations" (I.c.~.
Reports 1962,p. 341 read with p. 334).
So, Mr. President. the Court. in its 1962Judement. identified the ~arties to
the mandate treaty after 1946as the ~andator; on the one hand and, onthi
other, the States which were Members of the League al the time of its disso-
lution. In the Court's view.accordinalv. firstlvthe treatv was a multilateral one.
There were not merely two parties Git, al1ihe ~embers of the League which
were such at the time of the League's dissolution were individually parties ta
such a treaty.
The second consequence of the Court's finding is that the Members of the
United Nations uere not as such parties Io any mandate treaty. They n~ighi be
parties thereto. according to the Court. individually. because they had been
hlembers ol the League a1 ils di,solution, but as Members of the United Na-
tions they uere not parties 10 any mandate trcaty. and. of coursc. hlembers of
the Cniied Nations \iho had noi been hlembers of the Learuc ït 11sdissolution
-
could. on that basis. not be narties to the treatv at all.
~he third cunscqu~nceof the tinding ofthe~court in 19h2ii3s tht the United
Nations as an organization u,as not a party to the nidndate traty. If, as the
Cuurt lound, an ïgreeinent u,as concluded in the fin31iiieeiing of the Lwgue
Assembly to continue the Mandütc as a treaty betu,een the Mandatory and the
States then Menibers of the Lwwue. then II follou,~cleïrlrt thït the United
Nations as an organization could iothave been included in ihat agreement-it
was not represented at that Assembly, apart from anything else. And in ad-
dition, of course, Mr. President, the whole basis upon which the Court dealt
with this matter in 1962 was on the alternative contention of the Applicants,
which 1 have mentioned. In other words, the Court expressly refrained from
holding, as invited to do by the Applicants, that the Mandate had been con-
tinued as a treatv between the United Nations. i~.~~~mbers a~d~~~e Mandat ~m.,~
That contention, the principal contention of the Applicants, was not aazpted
by the Couri. One must accordingly accept. in my suhmission. that if the cor-
rectness of the 1962 Judement be-ass~k~d.~ ~ ~ ~ .~~~~ted N~ ~o ~ ~ns~as~ an~ ~
organization was not a paity to any mandate treaty. The parties were the States
Membersat the dissolution of the League. 1might add that these aspects are
dealt with in more detail in our written statement.1. Chanter 6. na..erai-s .-11.
We also demonstrated, we submit, in our writien statement that resolution
2145 clearly could not have been and did not purport to be an act of the States
which were Members of the Leaeue at its dissolution. or even an act in which
they participated in any such cacacity. It clearly puriorted to be an act of the
United Nations General Assembly, an organ of an organization acting in272 NAMIBIA (SOUTH WEST AFRICA)
Secretary-General seeks in this passage ta evade the impossibility of equating
the Mandate with a bilateral treaty between the United Nations and South
Aftica. Il is my respectîul submission, however, that the pnnciple which he
seeks to invoke does no1assist him in doing sa.
Our submission is that in acontract, whether in international or municipal
law, where there is a mutuality of rights and obligations, there generally follow
two consequences. The first is that one party cannot demand performance by
the other where the former refuses to carrv out his own obliaations. The latter
may in such circumstances resist a claim for performance. ~ie Roman remedy
in such acase was that calledthe exce~tiononadimpleti contractus.The second
conxquenΠwhich. in our submissio", flous from this mutuality of rights and
obligations is that a fundamental brcsch by one pïrty would entitlc the other
to cancel.
The distinauished reoresentative of the Secretarv-General has ~ivenreferenŒ
to authorityTor both iheu: propositions. ~ouevir. MI. mid de he does not
sam to have üppreciated that neither of thesc rules is of automatic a~plication.
Both may be invoked hy the innocent party against the guilty one,but need
not be. 11follows that in neither of these two cases would a third party have
any say in the matter at all:"C" cannot claim that a contract between "A"
and "B has laosed bv reason of "A" 'snon-oerformance.
~heconsequénce ofihat islhat thcscprincipies do not assist the distinguished
representative of the Secretxry-General to present an argument on some basis
which is not that of a hilateral treatv. The? do not assist him in ~ettina awav
from the neŒssity of showing thatthere bas a hilateral treaty,-becaise thé
principles which he invokes are only applicable in circumstances where there
is a mutualitv of riahts and obliaations.
Thcy onlyéxist where tivo stand as against one ünother with recipro-
cal rights and obligations. In those circumstances, these two pnnciples follow.
butitis no1something that can bc invoked by an outsider.Il1ssoniething thüt
the party utho has a cornplaint agsinst the other may or may no1 invokc.
So, for instance. Lord McNair süys, in hiLuw of ïieatirs al page 553:
"One point is clear: a breach by one party (including an unlawful de-
nunciation) does not automatically terminale the treaty, for the other
party may prefer to maintain it in existence. Viewed from one angle, the
right of abrogation is a remedy which the party wronged may or may not
pursue."
And the International Law Commission in its 1966 Yearbook, Volume II,
at page 254, in paragraph 5, stated:
"The Commission was a~reedthat a breach of a treatv. however serious.
does notipsofacto put an &d to the treaty, and also thatit is no1opena10
State simply 10 allege a violation of the treaty and pronounce the treaty
at an end:"
The implications following from the last part of the sentence will he dealt
with later. The point 1wish to make now is merelythe one that the cancellation
of the treaty does not follow automatically. It has to be invoked by the party
who alleges that there has heen a breach.
Since. therefore. the riaht to refuse oerformance in the absence of counter-
perfo&înce and the righlto cancel for'non-perfurm<tna:obtain only in respect
ofsynsllagmatic contracts and vest only in the parties thereto by rmon of the
mutuality of their rights and obligations, if follows. in my submission, that ORAL STATEMENT BY MR. GROSSKOPF 273
these rules do not assist the distinguished representative of the Secretaiy-
General unless he goes so far as to contend that there was a synallagmatic
contract and that there was a mutuality of rights and obligations between
South Africa and the United Nations. This, for the reasons I have given, 1
respectfully suhmit, he cannot do. I might just add in passing, Mr. President,
that if the General Assemblv. or the United Nations as an oreanization. were
only one of a number of par-tiesto a mandate treaty and this \;hole numberof
parties were entitled to claim performance, then the General Assembly could
not, of course, by itself unilaterally terminate the whole contractual relation-
ship. The other parties would then also have had a say in the matter.
Now 1 will proceed to certain other examples given by the distinguished
representative of the Secretary-General, such as the removal of trustees and
guardians for hreach of trust. He dealt with that matter at page 55, supra.
'ïhese examples are, in my respectful submission, equally irrelevant for present
purposes. Here also one does not have a situation which happens automatically.
The trustee or guardian is not removed automatically once he commits a
breach of trust. Some organ-govemmental organ or judicial organ-must
act in order ta remove him and such organ must, of course, beduly empowered
so to act. So, if one were to apply situations in private law such as those to the
present one, the Secretary-General would, in my submission, have to show
that the General Assembly became empowered in some way to remove the
Mandatory from office. He does not, 1 submit, do sa merely by showing that
the Mandatory's rights were subject ta the performance of correlative duties
and oblieations. Itdoes not avail him merelv to show that the Mandatorv was
under c&tdin ublig~tions of .Itrust nature He niust go further and shoi; that
the Gencral Asembly n,as the orgnn which could du somethinc about it ifthe
Mandatom did not uerform his duties. .
MI. ~resident, thaï again brings us right back to the beginning.TheSecretary-
General must show in some way that there is some instrument or some authori-
tv vested in the General Assemblv to act as it has done. These analoeies with
Private law do not assist, in my submission, because in al1these ca&there is
some person or organ which has authority, by reason of some process of law.
to act
1 m3y just. in pdssing, oiTcrsome comnient on the statement made by the
Secretary-General's representative that the 1962 Judgment "is res judicara
iris-i-vis South Africa". Of course. the ~rincinle of rrs iudrcarao~erates onlv
betireen the parties Io a suit and their privies'û3 rnattérofgene;al law. ~hk
principle is also incorporated in Article 59 of the Stntutc.1 wuuld jus1 ask in
uassing, does the Secretarv-General claim to have heen a Party to the previous
proceedings'!If so, does hc contend that these are now subseqbent proceedings
to nhich he and ne are borh parties? If not, I nould ask on what basis does he
say that this Judgment is resjudicata vis-&vis us and apparently not in favour
of or vis-&visanybody else. Certainly he, himself, with respect, has not applied
it according to its terms.
1have already noted that the United States of America has also raised this
question ofconÏr3ctual bruch in ils witten sialement. 1would merelycomment
thar that Govemment also assumed that the Mandate uas a bilateral treaty
betuecn the United Nations and South Africa without onèring any argument
in support of that proposition or without considering the efféctof the 1962
Judgment on such a proposition.
So. Mr. President. for the reasons given, 1submit that therc isno substance
in law for the contention that the t on date iias a treaty \\,hich was cancelled
in resolution 2145 on the grounds of material breach. Hon,ever, beforc leavingthis topic there is one further implication of this contention which 1 think I
should draw to the Court's attention. If the Mandate were a treatv. who would
be authorized to determine whether there has been a material bre&h justifying
cancellation? The Secretary-General apparently considers that the General
Assembly has this competence; in other words, that the General Assembly,
although itself a party to the treaty, may also givea final decision on the ques-
tion whether the other party had committed a violation thereof. That is at
.ae-s 34 to 35. suura.
Now. hlr. l>resideni,I \wluld suggesrrhar this is quiteî startling propaisiti~~n.
Whate\,er niight be the position of the Gcncral Assembly as în iillcgcd super-
visory organ, which is something with which we will deal later, theÏe ca< in
our submission, clearly be no justification for any view that as a contractual
party the General Assembly can be judge in its own cause.
The usual r>ositionwould. in mv submission. have to obtain. Mr. President.
namely that ii'a party claims to have had justification for cancelling a contraci
and this is disputed hy the other party and the matter cornes to court, it be-
comes the task of the court to determine whether there was a breach which
justified cancellation. The court uould then. in my subrnission, have to deter-
mine XIIthe mîttcrs of fîcts and law necessaw for a dccision on this issue.
That is cleîrly so. .MI.President. in 311sbsterns of rnunicioîl Iîw-certainlv
of which 1 am aware-namely that if there is a contract &ween two
and one of them sues the other for performance and the other claims non-
~erformance hv the former. then the matter has to be thrashed out in court.
The court hacto deterrninc. did the pîrry bre~k his contract or did he nor.
w3s the oilier pîrty entitled to cancel or uas he not, did heexerçise his right to
cancel in a proper and tirnely manner or did he not? Those are questions which
the court has to determine; it is not open to one of the parties to Say"not only
have you broken your contract by doing thus and so, but 1 have now lïnally
determined that, and nobody else shall have any Say in the matter; no court
of law may now pronounce on that; 1 have said that you have broken your
contract and that is the end of the matter".
In my submission that principle must also obtain in international law. Of
course, in international law, recourse to adjudication is not as simple and as
automatic as it is in municipal systems. One might therefore well have the
position that a party to a treaty must make up its own mind whether it feels it
has a r-eht of cancellation, an~ mu~ ~then act uoon the attitude which ~t ado~~z: ~.
it might have to take the responsibility of saying "1no longer accept this treaty
as valid". But, MI. President, if there then does happen to be a compromissory
clause, or perhaps some process for adjudication, and the matter does come
hefore an international court, then, in my subrnission, the international court
would clearly have to determine whether the party cancelling was entitled
to do so, if it is in dispute. If that is the subject-matter of the dispute
between the parties, the court would have to determine it. not one of the
parties itself.
Conseouentlv. MI. President. if this is the leeal oosition. as we suhmit it is.
then the ~ou~~ould, in the pressnt case, haveto 6onside;whether these fun:
damental breaches of the Mandate were committed as alleged by -he S~cretary-
General, or not, as alleged by us. The Secretary-General's representative do&
not appear to have contested that, if that were so, the Court should not givean
opinion at all. That is at page 34, supra. The Court will recall that that was
in reply toOUI argument that the factual issuesraised in the present case should
lead the Court to decline to exercise its jurisdiction.
But, be that as it may, if the Court does not decline, then we would suggest ORAL STATEMENT BY MR. GROSSKOPF 275
that at least some practical arrangements would have to he madealong the lines
Droposed in our letter to the Court dated 14Januaw 1971'.
~r. President, in my suhmission, that disposes of the contention that reso-
lution 2145 (XXI) may be justified on some hasis of contractual hreach. Sn,
the onlv one of the various roles suanested hv the Se~reta~-General's reore-
sentatii;e in ivhich the General ~scmbly mie6 have acted in passing the réso.
lution is that ofsupervisory orgdn in respect of the hlandate for South \\'est
Africa.T now proceed to an introduction to our argument that it could not be
iustif--d--~ that basis.
Before going into any detail, it is, in my submission, expedient to define the
prohlem which anses in this resoect so asto avoid anv confusion. The nosition
Ean be stated very simply. ~uhng the lifetime of théLeague of ~ations, the
Union of South Africa was underan obligation as Mandatory to submit annual
reports to the Council of the League of~ations. assisted hvthePermanent Man-
da-tcsCommission. In 1946,thc ieÿguc of h'at;ons \vas d;ssolved. so that there
tiere no longer 3ny of the original supervisairyorgani in existence. What could
the consequences of this chsnged situaiion hnve been, conceivahly? Ftrstly. it is
concei\,able that the Mandate could h3ve continued as an institution without
iiny ohligation on thc pan of the Irlandatory to report and account to :iny
international organization. This was the view stated bv Judees Read and Mc-
Nair in their dissentina opinions in 1950. A second ~ossi6lity which might
conceivahly have existed, is that the Mandate could conceivably have continiied
as an institution but with a new obligation on the part of the Mandatorv to
report and account to some organ ofthe United ~ations. That was the ;iew
of the majority in 1950.
Then. a third possihilitv which minht conceivahlv have hap~ened on the
dissolution OCthe~eague i.3~that théMandate couid have lapsed conipletcly
as an institution, \\,hich \i.ould have eniailed the lapse of the uhole of it, in-
cludinn. inter alia,an extinction of the ohlination to report and account. The
contention that the Mandate had lapsed inroto was rejected unanimously hy
the Court in 1950.
Those are the three possible results which might have supervened on the dis-
solution of the Leazue.
The main conteniion of the South African Govemrnent in the present pro-
ceedings. as it was in the 1966contentious proceedinm. is that whether or not
the Irlandÿtc as LIuhole Ilipsed on dissolut;un of the-leaguc, there was. alter
the dissolution of the Lcïgue. naiobligation to report and account to a supcr-
visory auihority in respect of the Mandate. So thnt whether or not the Man-
date. as an instituiion. continued. there was no obligation to report to 3 super-
visory aulhority. This m3y be expressed in ierms of the \,iewsof the Members
of the Court in 1950as fulloiis: WCasrumc. for the purposes of this argument,
that the Court was rieht in its unanimous ~ ~din~ th& the an date ,a~-an
institution,survived the dissolution of the ~eagu; On that assumption, we
contend that Judges McNair and Read were correct in holding that there was
no transfer of supemisoiy functions to the General ~ssembl; of the United
Nations. We also, therefore, contend, respectfully, that the majority finding ta
the contrary was incorrect.
Mr. President. this attitude thus stated seems sim~leenounh. and. as 1have
said, also formed the hasis of the South African argument in the contentious
proceedings. This approach has repeatedly been emphasized. In the 1966 case,
' See Correspondence, No. 65. p.659, infra. 276 NAMIBIA (SOUTH WEST AFRICA)
our only argument on whether the Mandate lapsed was tied Io the question
whether, as a result of the lapse of accountability, the Mandate itself could
have survived. In other words, we contended that accountability lapsed and we
said that it was possible that that might have had the result of causing the
lapse of the Mandate as a whole. However, that was a further contention-the
prime contention was that accountability had lapsed.
For the rest, our argument assumed that the Mandate existed, bath for
legal purposes and, of course, for practical purposes. We have always accepted,
as a moral obligation, the substantive dutiesunder the Mandate.
However. Mr. President. althouah we thouaht we had made our oosition
quite cleîr,'i,~r atiitude hi* iftcn bcen stated;ncorrcxtls-~ uill norias mis-
reprcscntcd, but certainly srated incorrectly-as bang that, bcc~use the Irliin-
date has laosed. therefore the United Nations has no suoervisorv oowers.
In other uords, the argument u13sturned upside dotin-whereîsou;argunient
was that supenisor) poiierc hîd lapçed and thnt. JS 3consequence of th3t, the
Mandate might be said to have lapsed, people have represented us as saying the
opposite.
One is tempted to think, Mr. President, that the reason for this is that it
enables the matter to be disoosed of with a couole of vague aeneralities. and
ivithout examining hou and i,hen the General ~siembly ofthc-unircd ~slions
could hwe succeedcd to the functions which, in teriiis of the Mandate. wted in
the Council of the Leamie. or ta out it the other wav round. how the South
African Goternment could have incurrcd an obligation to report and îccount
Io the Gencral Assrmbly. That is rally the problem. Mr. President, and that
problem cannot be solved by representing our attitude as if it involved the
contention that accountability had fallen away because the Mandate, as a
whole, has lapsed.
In our submission. a tvoical examole of this attitude was seenin the dissenting
opinion of Judgc ~essupin 1966,3nd this nttiiude is nou again being adoptej
by the distingiiished represent3tive of the Secretnry-Genernl. In the contentious
proceedings in the South West Africa cases, we referred ta a number of facts
which were not before the Court in 1950, and which, we Say, negatived the
finding by the majority that the General Assembly of the United Nations had
' succeeded to the powers of the Council of the League. These facts were not
directlv relevant to the decision of the Court that the Mandate. as an institution.
had skived the dissolution of the League, and these facts dere not presented
as directly relevant to that issue. Nevertheless. Judae Jessuo, in his seoarate
opinion, dealt with them as if they had been presented as dir'ectlyrelevant ta
the question whether the Mandate as a whole had lapsed or not.
We pointed out in our written statement (1,Chap. IX, para. 66), with full
reference to the earlier proceedings, that Judge Jessup's statement of the
position was basically wrong, and that his comments on these aspects were
conseouentlv comol. .lv misdirected. We also emohasized aaain there what
should have been, we respectfully suggest, apparent to any person who has
read Ourwritten statement, namely that our attitude in the present proceedings
remains unchanged.
Nevertheless one finds the following statement by the representative of the
Secretary-General :
"Through more than 25 years the Government of South Africa has
continued to assert that, as a consequence of the dissolution of the League
of Nations, the South African Mandate for South West Africa, now Na-
mibia, has lapsed and that, as a result, South Africa is freed from any
international supervision .. ."(supra, p. 35). ORAL STATEMENTBY UR. GROSSKOPF 277
Our objection, of course, MI. President is to his representing our contention
as being that South Africa is freed from international supervision as a result
of the lapse of the Mandate.
He builds on this:
"In his dissenting opinion in 1966, Judge Jessup dealt in considerable
detail with these alleged 'new facts'and concluded that it was apparent
that there was nothing in this argument conceming 'new facts' to induce
the Court ta alter decisions about the international status of South West
Africa which it had reached after full argument and full deliberation
(Z.C.J. Reports 1966, p. 4,at pp. 339-351).I need only add that had these
'new facts' been such as to lead the Court, as South Africa contends, to
the conclusion that the Mandate did not survive the demise of the League
the result, for the reasons 1 have just given, would have been the Lossof
any right on the part of South Africa to remain in the territory." (Supra,
pp. 55-56).
There again, MI. President, an argument is attributed to us ta the effect
that these new facts should lead the Court to the conclusion that the Mandate
did not survive the demise of the League. Our submission is that these new
facts and, as a matter of fact the rest of our argument on this point, should
lead the Court ta the conclusion that there was no obligation of supervision,
no obligation ta report, after the demise of the League, and in this respect
we contend that these facts most pertinently fortify the conclusion reached by
Judges McNair and Read in 1950that, on the dissolution of the League, there
was no substitution of United Nations organs for the supervisory organs of
the League. In fact, MI. President, we contend that our arguments in this
respect have never been met squarely by anybody.
If the falling away of supervisory organs were ta be regarded by the Court
as sa important a change in the Mandate as to cause its total lapse, these
proceedings would, of course, come ta naught in a completely fundamental
way. The consequence would then he that resolution 2145 and al1subseauent
~'itcd Nstions<iL.~ionconcerning South West Afriia .rrouldhave been nuli and
void, and there n,ould bc no point in a question concerning South Africa's
continued iircscncc in South West Africa. notwithstandinr! Securitv Council
resolution %6. We dealt with this matter in Chapter 1, paragraph 16,1, of our
written statement.
We are not in these uroceedings. Mr. President. offering any argument on
the question tihcthcr the ~ündaÏe itself lapsed on dissoluÏionof ihc Lcliguc.
If itbe assurncd that the Mandate rurvived the dissolution of the Lcdguc un an
in\tiiutional b3sis.uhiih isthe hasison \ihtch u,cnr<iccedcdto deal u,ith iiin the
written statementand also now, we do contend that it could have done so only
in an incomplete manner, that is, without any supervision by an international
organization.
1proceed now, MI. President, ta give a short outline of our argument in this
regard.
In our written statement, we examined every legal principle which could,
in our submission. notionallv have led to a transfer of sunervisow functions
from ihr Council of the IX&C to the General Assciiibl) of ;hc unitid S~tions,
or 10 3 ~ubs1itution.fa)rthe purpvrcs of theobligation to rcpori, of the Gcncral
Aswnbly for the Coun~ilof the le~guc. In doingso iirJrnionjtrarcd, 1wbmir
respcctfully. that no ruch tr3nsfero;curred. I'hu\ uc>ho\rcd (O, thÿt theexpress
and iniplicd terins uf the hiandate niadc no pruvision for pocsiblc transfcr of
supemkory functions on the dissolution of the League-that was in Chapter278 NAMlBlA (SOUTH WEST AFRICA)
VI1of our written statement;and (6) that no objective rule of international law
existed which could, independently of consent of al1 interested parties, have
caused such a transfer (ibid., Char>.VIi).
The only rcniüining hasir upo" jrhiih 3 irdnsfer of supcr\'iiory obligations
aiid funciions niight soncsii,ahly ha\'c been ctti.<icdwas the subscqucnt conwni
of al1interested parties. In this regard the appropriate time when such consent,
if it existed, would have heen manifested was during the years 1945 ta 1946,
when the United Nations was estahlished and when the League was dissolved,
or Dossibivin the immediately su~ervening vears.
in C'hspter VIII of the !\ritien ;taicmcnÏ\ic exaniined ihcc\.cnisduring ihose
yeïrscarefully, and i\c whniii uc bhsiied ihai f~rfrom an).consent IO iltransfcr
of su~ervisov functions having been aiven. the record shows a clear and con-
skien tainteinplaiion thai mandaiorle; \\.c?uldnoi bc siibjcct to Uniicd Nations
supervision in respect ofm:ind.ttcd terriiories !\hich iicrc nui i.i)l~niaril) placed
under trusteeshio
.The concliisi"n\ nhich i\c ihus rcached ircrc. of cour,c, as 1 have already
indicaied, inconsisicnt niih ihc majcirity Opinion of 1950, \ihi~.hwe nnîlyicd
and criiicizcd in Chapier IX. [riiiddiiion, uc rcferrcd in ihar Cliapicr to a grcltt
mais of cornnieni, hoth judicial and icholarly, on ihc corrccincri of rhc 1950
niajuriry Opinion ionssming the tranrfcr of supervision.
As we demonstrated. the weieht of reasoned comment has heen almost
univenally critical of this aspect of the Opinion, save hy a few jurists who
advocate a teleological approach which has been shown to be unacceptable to
modem conceptions of international law. 1 would refer the Court to the pro-
ceedings at the Vienna Conference on the Law of Treaties which we discussed
the other day. The reason why the Court erred in 1950,as we respectfully suh-
mit it did. miaht well be that it was not fullv aware of the clear factual record as
WC have sit iÏoiii in Chapicr \'III. lndce~,~hlr. I1residcni.\ic suhniit ih'ii sonic
of ihe Couri's fiiiding, arc cxplicshlr only on ih~sassunipiii)n. Ho!ici'cr, Mr.
Prcsidcnt, IIi\nibtfor us 1s say irhy the Coiiri crrcd. in our respcctful \uhmis-
sion, iiis s~tli~ien10 show that ildid.
This wpeci \\il1be considered in more dctail laier. At prcscnr I u,ould only
auoie the nords of ('hicf Ju<ticc Hughes. uhich wcrc relicd uoon by Judge
.Îessup in his dissenting opinion in the%ouih WestAfrica cases 1966:
"A dissent in a court of last resort is an appeal to the brooding spirit of
the law. to the intelligence of a future dav. when a later decision may
possibl; correct the errir into which the dissenting judge helievesthe Court
to have ken betrayed." (I.C.J. Reports 1966, pp. 325-326.)
It is our suhiiiission ihai ihe di\sçntine.opinioni of Judges '\lcNüir and Ile~d
in 1950on ihis aspect have bccn vindicatcd In the ).cars ihar have el3psed rince
thev were delivered.
In oiir argunicni on thç qucbtion concerninc succession, WC propose folli)a.ing
the sanie course as bcforc. Firsr, i\c shall consider io \rlia1cxienr .tttenipis hx\r
been made in the written and oral statements hefore the Court to meet Our
arguments conccrning rhc naiiirc and conisnts of the >landais. For pniciic;il
con\,eniencc, WC sh'ill have regard hi [hi\ inaiter in both ii,aspcds. thai ti.Io
consider not only whether the Mandatory's obligation to report and account was
ab initio of such a content as ta have hecome owing, without more, ta the
General Assembly of the United Nations, but also whether the Mandate was
revocahle at theinstance of the Council of the League. The argument ispresented
in this manner because these aspects are only different facets of the compro-
mise worked out at the Paris Peace Conference. ORAL STATEMENT BY MR. GROSSKOPF 279
In conbidcring theni r~i~ethcrue thcrcfore woiJ s rcpetititin of refercncc io
thc sinie insiruinents and io the same cvents. This part of the .irgunieni will be
prerenicd by ms learnerl fricnd Mr. van Heerdcn. I'hcreaiier 1shall deal u,iih
the whether any agreement was concluded subsequent to the establish-
ment of the League for a transfer of supervision. At that stage 1propose also
discussing the earlier Dronouncement of the Court itself in-so far as such a~~ ~
di.cus\ion has hccsiiie neiess'in an \.ie\i of sinrenienrs by oihcr pariicip:inis.
Thar then c,>ncl~dc.ihis ~ntroduciory pari, hlr. Preiident. hlr. vsn Hçcrden
will, at a time which is convenient for the Court, resume the argument.
The PRESIDENT: The Court understands that it would be convenient for~~
the reprcscntativc of Suiith Africa rhat the Couri \hould nou, adjo~rn until
roniorrotv niorning, inrl that tomr>rr<lii,morning it should hear the repre-
rnrarive of Vici-Nam. and ih;ii nhçn Iiçtinishes 11 \roiildbc mnvenicnt for the
represeniative of South Africa to resume their argument.
Mr. GKOSSKOPT. Thcriis so Ur. Prcridcnr. 11is niutually convenieni for us
and the represent;iti~r of Vici-Sam todo irin ihar fa>h~(>ni,fthr Court ple3ses.
The Court roseat 12.45p.m ONZIÈME AUDIENCE PUBLIQUE (25 11 71, 10 h.)
Prése~trs [voir audience du 8II 71 .]
EXPOSC ORAL DE M. LE TAI TRIEN
REPRÉSENTANT DU GOUVERNEMENT VIETNAMIEN
hl. LF:TAI TRIEN: Monsieur le President, Messieurs dc IJ Cour, mon pre-
mier devoir est de vous prksenter mes plus profondes excuses pour n'avoir pu
me trouyer à l'audience de la Cour du 15courant. Mon retard étaitdit i des
circonstances matérielles tout d fait independantes de ma volonte ct je suis sGr
qu'a\,ec sa bienveillance coutumi6re la Cour me l'adqià pardonné.
Je vous remercie, Monstcur Ic Prcsidcnt, de m'avoir accorde la parole. Aks
remerciements chaleureux s'adressent aussi aux distingues deléguésde l'Afrique
du Sud qui, si aimablement, ont bien voulu me céderpour un moment cette
place cematin.
J'ai ainsi le trh grand honneur de m'adresser pour la première fois, en tant
que représentant de la République du Viet-Nam, à la plus haute juridiction
internationale qui soit.
J'aioour charge devant la Cour d'exnoser au nom de mon eouv-~n~ment son ~~
point de vue dan; cette affaireu~friquédü sud-~amibieu.
La Cour a dejà eu l'occasion, en d'autres circonstances. de se prononcer sur
certainsautres aspects de cette afïaire.
Cette fois vous êtes saisisd'une résolutiondu 29 juillet 1970 du Conseil de
sécuriik.
A ccttc date. aprks d'ultimes débatssur l'attitude adoptke par l'Afrique du
Sud en tant que Puissance mandataire en Namibie, le Conseil de sécurité,3
l'issue de ses debais, a décidéde solliciter l'avis de la Cour internationale de
Justice.
La question poséepour avis à la Cour estainsi fomulke:
cQuelles sont les conskquences juridiques pour les Etatsde la présence
continue de l'Afrique du Sud en Namibie, nonobstant la résolution 276
(1970) du Conseil de securité?~
La présencede 1'Afriquedu Sud en Namibie est une longue et vieille histoire.
Je ne vais pas abuser des instants de la Cour en refaisant entikrement I'histo-
rique des événements. Toutefois.la ouestion soumise à la Cour est susceotible
de- plusieurs intcrprctations; et, par'ailleurs, sa formulation mime devant le
Conseil de sécuritén'a pas satisf~it toutes les délégations.En conskquence,
~ ~our délimiter laportéede la question d'une nart et circonscrire le domaine de
l'avis à donner d'autre part, il'nous faudra, de temps à autre, faire un retour
en arrière pour rappeler brievernent les principaux évknementsayant donné
lieu àla présenteprocédure.
Et tout d'abord, qu'est-ce donc cette résolution 276 de 1970 du Conseil de
skcuritéà laquelle s'est rkféréela question du Conseil de securitk?Cette résolu-
tion fait suite à une série d'autres résolutions de l'Assembléegknkrale des
Nations Unies et du Conseil de sécurité lui-mêmes;on dispositif comporte huit paragraphes dont il faut, pour ce qui nous occupe,extraire deux idéesmai-
tresses.
Primo, le Conseil condamne le refus du Gouvernement sud-africain de se
conformer aux résolutions de l'Assembléegénéraleet du Conseil de sécurité
relativesà laNamibie.
En conséquence, le Conseil déclare que la présencecontinue des autorités
sud-africaines en Namibie est illégaleet qu'il s'ensuit que toutes les mesures
prises par le Gouvernement sud-africain aunom de la Namibie, ou en ce qui la
concerne, après la cessation du Mandat, sont illégales et invalides.Cette idée
a lavaleur d'unecondamnation de principe.
Secundo. le Conseil demande à tous les Etats. en oarticulier à ceux aui ont
des interëts6conomiques ci autres en Naniibic. des'absten dirtoutes reiations
awc le Gouvernement sud-africain, relations incumpatibles avec I'illegnlitL'rle
la orésencede celui-ci. Cette idéeéauivaut à une mesure or'se Darle Conseil de
séCurit~m. esurr prisedans lesenscourantde ce tcrme.
Nous allons succcssivcmrnt cxaminer IcsprohlCmessoulevéspar ces id6rs
I.Le maintien illégadl e I'Afriqiie dii Siid en Namibie
La auestion osée Darle Conseil de sécuritéaoour base cette idéeessentielle
que la présenceactuelle des autorités sud-africaines en Namibie est illégale.
Si, en effet, il est demandéà la Cour de tirer les conséauencesjuridiques de la
présencede l'Afrique du Sud en Namibie c'est que, aux yeux du conseil de
securité,cette presence constitue une violation du droit international.
Nous sommes ainsiamenés anous interroger sur lesraisons de cette illégalité,
et. oour le savoir. il nous faut nous reoorter à diverses résolutionsantérieures.
no~mmcnt cclle Portant le no269de 1~69du Conseil desc?curitéctcclle, fonda:
mentale. portant le n02145de la vingt CIuniemcréunionde I'Asscmhl&génCrïle
desNations Unies.
Par cette dernière résolution - celle qui porte le no 2145 -, après avoir
constatéque l'Afrique du Sud a failli à ses obligations de Mandataire et, de ce
fait, denonce le Mandat, l'Assembléegénérale decida
#[que le] hlandjit confie d S3 Miljcstébrltilnnique pour 6tre excrcc en son
nom par le Gouverncmcnt de l'union sud-africaine est donc termine, que
l'Afrique du Sud n'a aucun droit d'administrer le Territoire et aue
déso&ais le Sud-Ouest africain relkve directement de la responsabilite'de
l'organisation des Nations Uniesii.
Ccttc r6solution se trou\,e sanctionnk en premier lieu le 20 mars 1969par lc
Conseil de sécurité-c'est 1~resolution 264 - puis. en second lieu, le 12svril
1969: il s9aeit.cette fois. de la résolution 269 a;e nous avons viséeolus haut.
Par cette dernière le conseil de sécurité,prenant une mesure éneriique con-
crète, invita l'Afrique du Sud àretirer son administration de la Namibie avant
le4 octobre 1969.G Conseil aiouta au'en cas de refus tout~ ~~-s~ ~uresseraient
prises. L'Afriquedu Sud n'a pas obt;mpéré cettc injo!iction.
Pour la clart; Je cette histoire de Mandat. pour la clart; de ceaui vient d'étre
dit. il convient de raooeler ici oue la Namibie. alors sud-ouest-africain. était
une colonie allemande. Apres 1î prcmiCreguerk mond/il~e.e~~f eut pl3cCesous
lerégimedesMandats instaurepar l'article22du l'actede la SociétédcsSxtions:
et le Mandat. formalisé Dar un acc~~d du 17 décembre ~ - - ~ut confiéau
~ouvernemen't de Sa ~a'jestébritannique pour êtreexercéen son nom par
l'Afrique du Sud.
Au lendemain de la secondeguerre mondiale, on lesait, lerégimedesmandatsdisparait avec la Charte des Nations Unies qui, dans ses articles 75 et suivants,
établitun régimeinternational de tutelle.
Or, invitéeà passer un accord de tutelle dans les normes du nouveau système,
l'Afrique du Sud s'est toujours refusée à le faire et, au contraire, a proposé
l'incorporation pure et simple du territoire de Namibie dans son propre terri-
toire, proposition évidemment inacceptableque l'Assembléegénérale rejeta.
A cette résistancede I'Afriaue du Sud s'aioutaient. selon les Nations Unies.
de graves actesd'oppression à'l'égarddu peuple n~rnibien. not;ininient en ce quj
concerne la IibertCd'allcret de \.enIr, la lihertéde tr~vsil, lcirl'instruction,
le droit de ~articioation aux affaires oubliaues. etc. On consultera avec nrofit
à cet égard,'outreies documents offickls de; ~ations Unies, l'étudepubliéeen
juin 1967 par la Commission internationale des juristes sur l'apartheid en
Afrique du Sud et dans le Sud-Ouestafricain.
ravan ouvertement les Nations Unies, l'Afrique du Sud déclara en outre
qu'elle n'avait pas de comptesà rendre à l'organisation et en 1949elle informa
officiellementle Secrétair- généralu'elle n'enverrait olus aux Nations Unies de
rapports concernant la Namibie.
Tous ces faits constituent des violations graves et répetéesdes devoirs et
obligations imoosésà la Puissance mandataire investie Dar le Mandat et aux
teries mêmesdu Mandat d'une mission civilisatrice.
Tels sont les faits qui ont conduit l'Assembléegénéraleet le Conseil de
sécurité àorononcer la révocation du Mandat confié à l'Afriaue du Sud oour
placer la Namibie sous l'autoritédirecte des Nations Unies. L~S Nations unies
ont ainsi appréciéles faits en sorte que la question soumise actuellement à
l'avis de la Cour est une question de droit axéesur ces faits considérés comme
acquis.
Mais cette question comporte un autre problème qu'il nous faut préalable-
ment éclairciret cesera la deuxièmepartie denotre exposé.
II.Le droit des Nations Unies derévoquerle Mandat
Sous \,enans de voir ici appîraitre l'illég;iqui entache l'occupation pour-
suivie et actuelle d13 Namibie par l'Afrique du Sud. Cette illégalitéfait surgir
le deuxième oroblème aue nous avons à examiner. àsavoir le droit des Nations
Unies 3 ré%,oquelre ~kdat. Dans la qucstion poik 3 13Cour psr le Conrcil de
sCcuritCilsemble que cedroit n'est pai j.discuter: la formulation de la que\tion
laisseentendre aue leoroblèmen'est ~.usau. de tirer lesconséauencesiuridiaues
d'une situation illégale,situation illcpalc parce que se pri~longeant au mL:pris
d'une dccision cn rens contrüire des Nations L'nies, tandis que le droit de
révocationdesNations Unies est déjàunechoseacquise.
a) Les doutesquantaudroitderévocation
IIY a lieu cevendant de noter qu'au cours des débats devant le Conseil de
s4curité.certaines délégationsn'a;,aient pds \,u Ics choses de la nieme façon.
Les délégationsde la France, du I<oy3umc-Uni. notamment. penrsient qu'il
devrait êtreplus explicitement demandé à la Cour de se prononcer sur deux
autres points,àsavoir:
Primo, si les Nations Unies avaient le droit de révoquer le Mandat confié à
l'Afrique du Sud, étant donné que ce droit n'était pas originairement prévu
en cequiconcernait la Société desNations.
Secundo, si le Territoire de la Namibie pouvait êtrevalablement placésous
l'autorité directedesNations Unies.
Les deux points qui viennent d'êtrerelevés conditionnent en théorie le ~xeosé ORAL DE M. LE TAI TRIEN 283
problème poséàla Cour car iln'y aurait lieuà seprononcer sur lesconséquences
de la présencede l'Afrique du Sud en Namibie qu'autant que cette présence
serait illégale.
b)Le droit de révocations'induitdesprittcipesgénéraux
IIa~oartient à la Cour de décider si ellea à examiner cesdeux ooints. Pour
notre part, nous pensons que si elle le fait, ce serait, abstraction faite de toute
autre considération, unebonne occasion pourle droit international de s'enrichir
d'un nouvel élémentsurun important problèmejuridique.
Nous pensons d'ailleurs qu'en révoquant le Mandat confié à l'Afrique du
SudlesNationsUnies n'ont fait qu'user d'un droit légitime.
Ce droit. lesNations Unies le tiennent en effet du Mandat lui-même. IIn'est
certes pas question de transposer en droit international les règles du droit
privéconcernant le mandat. puisaue le mandat du droit international alavaleur
d'une institution. tandis au; ie mandat du droit nrivéestun simnle contrat
N'empêche quedans l'un et l'autre cas,qu'il s'agissede mandat international
ou de mandat privé, leur essenceest la même.c'est la confiance du mandant
dans la capacitc, 12 Ioyaut6. I'honnCtctédu mandataire. Os1 en considération
decesdiversesqualitis. aussinkcessltireslesunesquc lesautres, pour I'ext<ution
du mandat, que le mandant habilite le mandataire à agir pour son compte. II
s'ensuit oue si le mandataire trahit la confiance oui a étémiseen lui. si à I'exoé-
rience ilse montre incapable, déloyal, on doit nécessairementadmettre que le
mandant est en droit de retirer au mandataire les pouvoirs qui lui ont été
conférés.Dans cecas,en effet, rien nejustifie plus le mandat, son objet ne peut
plus êtreatteint. Et surtout, ily a là une question de moralite, indispensable
dans les relations privées et plus importante encore dans les relations inter-
nationales car, en dehors du droit international, au-dessus du droit inter-
national, ily a encore en plus une moralité internationale, qui est composee
d'un certain nombre de concepts unanimement admis.
Or. lesfaits démontrent nue I'Afriaue du Sud a failli à la mission civilisatrice
à elleconfiée par le c and aiin plis, par la pratique de l'apartheid,elle a fait
tout le contraire de ce qu'elle aurait dO.faire. Peut-on laisser se prolonger cet
état dechoses?La co&unauté internationale admet-elle un tel recul du droit
intcrnîiional et de la morale internationale? Si la reponsc Ù '6 questions doit
Cire negative, alors c'est que le droit de révocation des Nations Unies doit ëtre
admis.
c) Le droit de révocations'induitdesavis antécédents dela Cour
Nous venons de voir ainsi aue le droit de révocation desNations Uniesen ce
qui concernele Mandat confie'à 19~friquedu Suds'induit desprincipesgénéraux.
II y a mieux. Ce droit s'induit encore desavis antécédentsde la Cour. En droit,
selon l'avis exorimé par la Cour le 11 iuillet 1950. les obliaations du Mandat
subsistüicnr pour ~'~frique du Sud et*les fonctiom de su~eillancc dcvdient
Cire cxcrcees r>Jrles Nations Unies. Or, en SC refusdnt i déposerson rapport
annuel. l'~fr&ue du Sud a rendu inooérant le contrôle et oratiauement orivé
lesh'at;ons unies du droit dr siirveilla~cc. Des lors, que pou;niien't rire d'autre
les Nations Unles sinon revoquer le Mandai? 1.3 révoc~tionest Iiseule arme
i~ridiuiie etficüce dont disnosrnt les Nations Cnies ei c'est Ù bon droit au'elles
-~~o~t f~ ~ ~~-~~
Certes, il rez deux choses: ilreste que le Mandat de la catégone C, qui
s'a~~liaue au Sud-Ouest africain. veut aue ce Territoire soit administrécomme
partie intégrantede l'Afrique du Sud. II reste aussi queselon l'avis de Iï Cour du
II juillet 1950. l'Afrique du Sud n'&tait pas tenue de conclurc par application284 NAMIBIE (SUD-OUES AFRICAIN)
des articles 75 et suivants de la Charte un accord tutelle. Et on serait tentéde
s'appuyer sur ces deux faits pour dire que I'Afrique du Sud est autorisée à
continuer à exercer son administration en Namibie. Mais il ne faut point
jouer sur les mots. IIest faux de dire que leTerritoire, administrécomme partie
intégrante, est un territoire annexé;I'annexion est inadmissible comme étant
diamétralenient opposée à l'idéal,aux principes élevésdu Pacte de la Société
des Nations. Administrer un territoire comme partie intégrante, cela veut dire
plutôt qu'il faut l'administrer avec la même vigilance,le mêmeintérêt.les
mêmessoins que s'ils'agissait du sien propre. Et si la Cour disait que I'Afrique
du Sud n'était pas tenue de conclure un accord de tutelle, c'étaitparce que
l'Afrique du Sud n'y étaitpas juridiquement obligée. Accepter une tutelle est
un acte de volonté, obliger I'Afrique du Sud à le faire, alors que pour une
raison ou pour une autre elle ne le voulait pas, ce serait contraire au droit.
Mais cela ne veut pas dire que I'Afrique du Sud peut perpétuer sa présence en
Namibie et en dehors de tout titre. Si elle dénoncele Mandat et ne veut pas
davantage souscrire un accord de tutelle, alors elle n'a plus de titre pour
administrer la Namibie, elle doit s'en retirer et là, ce serait confoaue droit.
Telle est et telle doit être, croyons-nous, l'interprétation exacte de la pensée
de la Cour.
L'Assemblée zénéraledes Nations Unies. et le Conseil de sécuritéont donc
valablement révoquéle Mandat confié à C~frique du Sud. La décisionde placer
la Namibie sous l'autorité directe des Nations Unies est aussi juridiquement
correcte, car selon l'article 81 de la Charte, l'autorité chargée.de ~''dminis-
tratinn peut êtreconstituéeparl'organisation elle-même.
III. Les conséqiiencejusridiques delaprésence
illégolede I'Afiique dit Suden Namibie
Etant ainsi admis que 1'Afriquedu Sud, en se maintenant en Namibie, semet
dans une situation illégale, quelles sont donc les conséquences, et c'estlà le
troisième problème que nous abordons, quelles sont les conséquences, on
diraitpeut-êtremieux les incidences, les répercussionsjuridiques inter8tats de
cettesituation?
a) En cequiconcerne ['~fr-queduSltdelle-n~éme
Tout d'abord I'Airique du Sud, en se mettant elle-même endehors du droit
international, ne saurait tirer profit de sa propre turpitude. L'illégalité qu'elle
a délibérément commisene crée Dourelle aucun titre nouveau aui lui oermette
de se dégager desobligations sp&cialesnCesdu hlandat. Le fait mlitkriélmhe,
le fait de la prolongittion de l'occupation, voulu pïr elle. perpétpar cllc au
mepris du droit. urolonre 3 la charge de I'Afriaue du Sud I'nbli~ation de conti-
nuer Amurer le bicn-ctre, le dk?elopFmen; de la population namibienne,
dans l'esprit deI'iirticlc22 du P3cte de la SociCtédes Nations et sîlon Icstermes
de l'article 2 du hlandüt. L'action interne de I'Afriaue di1 Sud en Samibie
continue àêtredominée par la recherche de ces object'ifs.De par son maintien
sur place, l'Afrique du Sud, sans doute, est Amêmed'accomplir des actes qui
intéressent l'existence des Namibiens. mais cesactes ne sont valables au'autant
qu'ils sont conformes aux pouvoirs conféréspar le Mandat. ~utremént dit, la
survivance illégaledu pouvoir laisse survivre les obligations qui sont la raison
du pouvoir.
Par contrecoup, l'illégalitédans laquelle s'est mise I'Afrique du Sud ne
saurait faire naitreà son avantage une source de nouvelles prérogatives. En
révoquant le Mandat, les Nations Unies entendent prendre elles-mêmesen EXPOSÉ ORAL DE M. LE TAI TRIEN 285
main la responsabilité de la Namibie et non la vouer a l'arbitraire de l'Afrique
du Sud. Il suit de là qu'en exerçant son autorité de fait, l'Afrique du Sud doit
s'abstenir de tous actes de spoliation, de toute mainmise su; les ressources
économiques,financièresdela Namibie, au détrimentdecelle-ci.
b) Ence qui concernelesEtats Membres desNations Unies
Ceux-ci sont tenus d'accepter et d'appliquer les décisions du Conseil de
sécurité,ainsi que l'article 25 de la Charte leur en fait l'obligation. Mais si le
principe ne peut être ainsiaisement affirmé, lasituation pratique est plus com-
plexe.
Par sa résolution 283de 1970,le Conseil de sécuritéa demandéaux Etats de
s'abstenir vis-i-51s de I'Afrique du Sud de toutes reldtions qui puurrdirnt
impliquer une recunnaissdncc de I'autorit6 du Gouvïrnement sud-africain sur
leTerritoirede Naniibie. A côtCde cette ;ibstentidn. leConseil 3 aussi demandé
aux Etats une action pusiti\,e. celle dc dCclarer for'mellemcntqu'il9 ne rc;on-
nxisscnr pds l'autoritéde I'Afrique du Sud et de rappeler leurs reprcsentanrs en
fonction en Namibie s'il yen avait
Li ou le problcme se complique, c'csr loriqu'il s'agir dï l'application des
traites. lx Conseil a invitc les Etats a rkxaminer les traites conclus avec
I'Afriquedu Suddans lcsdispo~itions qui conccment la Naniiblc. IIsemble que
ces dispositi<in.;doihent cesser de rcce\,oir applicïtton, 3 nioins que I'intérCtde
la 'iamibie nc commande une solution iontraire CI que les Sxrions L'nies,en
considération de cet intérêm t ême,ne urennent toute autre décision jugéeplus
.- ~
adéquate.
II y a enoutre des traités multilatérauxdont l'objectifest un objectif d'intérêt
général,par exemple un traité sur le trafic des stupéfiants. II semble alors
que, en raison mêmedu but poursuivi, ces traités doivent rester en vigueur
etcontinuer à êtreappliquésenNamibie.
Nous nous contentons de ces principes pour ne pas aborder des détails qui
retiendraient trop longtemps l'attention delaCour.
c) En ce qui concerneles Efafs nonmembres des Nations Unies
Ceux-ci n'ont pas l'obligation juridique d'appliquer les décisionsdu Conseil
de sécurité.Mais ils ont quand mêmeune obligation morale, celle d'agir
conformément aux urinciues des Nations Unies dans la mesure nécessaireau
maintien de la paix el de ~ÿsecurit~:intern~tionales, sinsi qu'ilest dàtl'article 2,
paragraphe 6,de la Charte.
Or l'attitude de I'Afrique du Sud est un défi à I'éearddes Nation., Unies, une
violation des nrincines au'elles ont la ~ba~ ~ de-faire resnecter. En consé-
7~~ ~~ ~.. - ~
qucnie, les Etati non membres doivent, eu tgrrd dux rcsolritions adoptées par
I'Anseniblkgenéraleet par leConseil de \écuritk.coniid&rerque,juridiquenient.
le Mandat inirr~ ~~onal confi6 i I'~ ~ .~~~~i! ~ud en Tianiibie a Cie rcv~iu. .
qu'cllc n'a plus aucun tttrc pour s'ymaintenir et y exercer une autorité quel-
ioiiq~e, q-e le Territoire releve dc la resp1inrxbilit6dircite des Sations Unies.
Par suite. les Etats non membres doivent aussi. comme les Etats Membres.
s'absteni; de toutes relations avec la Namibie par le truchement de l'Afrique
du Sud, car cela équivaudrait a une reconnaissance indirecte de l'autoritéde
1'Afriaue du Sud sur la Namibie. Les Etats non membres se doivent égale- .
nient dc hre ce qui leur est possible pour cmpêcherleurs ressortissrnts d'cn-
trctenir Je\ relations cconomiqucç, c<immercislesou autres avecla Samibie.
Conclusions
De tout cequi précède,Monsieur le Président,voici lesconclusions quenous
soumettons àla haute appréciation de la Cour: I'rimo, le Mandat confitj.I'ACriqucdu Sud ayant Clércgulièrement révoque.
l'Afrique du Sud n'a plus aucun titre pour mainienir et exercer son auioritC en
Namihie; cc terriioireest place sous la responsabilitt directe des Nations Unies.
Secundo, tant qu'elle poursuit son occupation illigïle, l'Afrique Ju Sud est
tenue de remplir les anciennes obligations nCes du Mandai, de poursuii,re
l'amélioration dubien-iireet led6\~elo~~ernenide13Namibie,
Tertio, les Etats Membres des aii ion snies ont l'obligation juridique
d'appliquer les décisionsdu Conseil de sécurité,de s'abstenir de tout acte qui
im~liquerait la reconnaissance de I'autoritk de I'Afriaue du Sud en Namibie.
~uarto, les Etats non membres doivent se compo;ter de telle fa~on que leur
ligne de conduite soit en harmonie aveclesmesures prises par les Nations Unies
A l'encontre de l'Afrique du Sud.
J'en aiterminé.Je vous remercie, Monsieur lePrésident. ORAL STATEMENT BY MR. VAN HEERDEN
REPRESENTATI OVFETHE GOVERNMENT OF SOUTH AFRICA
Mr. VAN HEERDEN: Mr. President, as already indicated, we deal in this
section of our argument with the history and content of the Mandate for South
West Africa and the mandates systeni generally. This is done for the same
purposes as those set out in Chapter VI1of our written statement, namely in
order to determine whether. without fresh consent on the uart of a mandatorv.
the United Nations could have succeeded to the superviiory powers formeriy
exercised by the League of Nations and whether the League of Nations enjoyed
a uower of revocation of a mandate.
Now, although 1 have just spoken of a devolution of supervisory powers
and although, for reasons of convenience, 1 will again use expressions such as
a succession of supervisory powers, I wish to emphasize, as has already been
done by my colleague, that the real question concerns the obligations of a
mandatory and, more particularly, whether South Africa became obliged to
account to the United Nations.
In view of certain arguments advanced in the written statements and in the
oral addresses in these proceedings, it will also be necessary ta deal with Iwo
further topics. The first concerns the question whether the League was em-
powered ta prescribe rules, standards or policies by way of binding directives
which a mandatory was obliged to follow or adopt in the execution of ils
obligation to uromote the interests of the inhabitants of the mandated temtory.
~ssociattd with this iopic but not quiic identical is a fourth ti)pic, nmeiy
whether the Lcagueenjoyed the judicial or quasi-judicidl function ofunilaterally
determining whether a mandatory had actedin breach of ils obligations.
In this regard the Court will recall the argument of the representative of the
Secretary-General ta the effect that the factual issue whether South Africa
has acted in conflict with its obligations has alreadv been determined by the
hodie, ionipctent to do w, thai;$, the Gcneral fisscmbly and the ~ccuriiy
Council (r~iprrpp. 34-35).A5imillirargunienth3sbeen;id\'anced bytherepresen-
iative of the Or~~ni7ation tifAfriclin Cnity (.~r,prnpp. 100-101 J.Thïse iirgu-
menis will be Jeali wiih at a Iaier stiigc. For present purposes itsuffices to
consider a qucstiùn very relcviini, in oLr submiss~un. IO those arguments,
namely whether such a oower vested in oreans of the Leaeue of Nations. In
other Lords, whether thire vested in organs-of the League if Nations a power
to make factual findings binding on a mandatory.
The final portion of this section of our argument will consequently be
devoted to an examination of, inter dia, the fact-finding powers of those
organs.
At the outset, il is convenient Io summarize the main asoects of the uresenta-
lion in our writien 5iatenierit relative to the nature of the accountabiliti)fn
inandatory and the ponihility of rcvd;ariùn of a mandate.
As regards the former to~ic. that is the accountability of a mandatory, we
demonsÏriited in Chdpter vil of Our uriiten st:iienienililia nilindatory ulis
liccountahle io the Leligue of Nations and to the I.eague of Nation\ only and
that the supervisory powers of the League, and more particularly the Council
thereof, could not have devolved upon the United Nations or any other
organization without the consent of a mandatory. In other words, MI. Presi-288 NAMIBIA (SOUTH WEST AFRICA)
dent. our contention was that the accountability of a rnandatorv existed withn
the franiework of a specitic orgmizat,on. In th;s regardWC ga\e ionsideraiion
IO four baseswh~ch,in Oursubmission, would co\'ere\'cr).concrivable argument
to the elTccithît ihe L'nited Nîtions had succeeded to the supcrvisory pouers
of the League. First, the interpretation of the express provisions of the mündaie
doc~ments riith reference to both the nicaning of the iiords used and the
light thown thereon hy surrounding circumstances; second, the possibility
of implied terms or intentions in the mandate provisions; third, the possibility
of succession by virtue of an objective principle of international law; and,
fourth, the possibility ofan agreement, express or implied, in 1945-1946or
thereafter.
Now this last basis, the possibility of the conclusion of an agreement during
the imoortant transitional vears. was considered in ChaotersVIU and IX ofour
written statement and wiil be 'dealt with by my colléague, Mr. ~rosskopf.
1willconcentrate on the first three baseson the strength of which il can Possibly
be contended that a substitution of supervisory organs could have occurred
without the consent of a mandatory.
Now. Mr. President, what arguments have ken advanced by other partici-
pants in these proceedings regarding the legal basis for substitution of super-
visory powers? The answer is, virtually none. Such written statements as do
refer to the substitution of supervisory powers and supervisory organs merely
rely on the Court's 1950 Opinion, but without indicating the legal basis for
that Opinion.
In the oral proceedings only the representatives of the Netherlands and
Pakistan have put forward contentions relative to the basis on which the
United Nations could have succeeded to the supervisory powers of the bague
or to a justification of the 1950Opinion.
The reoresentative of the Netherlands has contended that a functional
approach'should be adopted in regard to the mandates system. On the baiis
of this functional approach, he argued that South Africa'sobligations to reDort
and account in respect of its administration of South est-~frica suwived
the dissolution of the bague and that the relevant supervisory powers vested
in the United Nations. consent on the art of South Africa a~parently not
king required. On the same bîsk he ariued that the conipeten~~c~to adûpt or
modify the modalities of the niandites çptem vested in the supervisory power.
formerly the Council of the Leïgue. This competence could be exercised iii
ordcr to scrve the final purpose of the vstem if an unforeseen factual situation
should make it necessary to do sa. Since this is a someuhat novel approach,
since it is diametricallv oo~osed to a number of contentions nut fonvard bv
other participants in the~eproceedin~s, and since, furtherrnore,;~ has a bearing
on both issues, Le., the succession of supewisory powers and the possibility
of a power of revocation vesting in the League, it will be convenient to deal
with the arguments of the representative of the Netherlands only after an
examination of al1 other submissions made in these proceedings, that is,
suhmissions made relative to the two issuesof succession of supervisory powers
and revocation of the Mandate which will be considered in the light of the
contentions advanced in our own written staternent.
The representative of Pakistan has based his argument that the United
Nations succeeded to the supervisory powers of the League on events which
took place during 1945and thereafter. Consequently his argument will be dealt
with by Mr. Grosskopf.
The representatives of the Secretary-General, the Netherlands and Pakistan
have, in various contexts, laid stress on the relationship between a mandatory ORAL STATEMENT BY MR. VAN HEERDEN 289
and the international community or, as it has also been termed, the organized
international community. Thus the representative of the Secretary-General has
referred to:
". .. the legal character of the relationship between South Africa and
Namibia and between South Africa and the international community, the
latter represented by the League of Nations and subsequently by the
United Nations" (supra, p. 53).
It will be observed, Mr. President, that the emphasis is on a relationship
between South Africa and not the League of Nations as such, but the inter-
national community as represented by the League and, in the words of the
Secretary-General, "later by its successor, the United Nations".
Now a contention such as this may serve as the basis of an argument that
the Mandate for South West Africa created a legal relationship between
South Africa, on the one hand, and, on the other hand, not the Leagne of
Nations as such, but the international community as represented by the League
of Nations or, of course, any successor of the League representing the inter-
national community. 1 will deal in due course with the feasibility of such an
argument which, for reasons of convenience, 1 will refer to as the organized
international community argument.
As regards the possibility of revocation of a mandate, we demonstrated
in Chanter VI1of our written statement that a nower on the nart of the Leaeue
to revoke a mandate could have been derived only from .the express teks
of the mandate instruments. read with Article 22of the Covenant, or an imnlied
term, or the application of some objective principle of international' law
(written statement, 1,Chap. VII, para. 67).
In some of the written statements in these proceedings, as well as during
the oral proceedings, attempts have been made to justify the thesis of revoca-
bility of a mandate on the basis of an implied term or an objective principle
of international law. Now, significantly, in our submission, no participant
attempted to meet our detailed argument in support of the contention that a
term conferring upon the League the power of revocation cannot be im~lied
in the mandate instruments and that there is no orincinle of international law
which, operatingaliunde the mandate instruments, could have conferred such
a power upon the League. In particular, no or very little reference has been
made to the events preceding the conferment of the mandates, especially the
proceedings at the Paris Peace Conference which, in our submission, clearly
show that it was the intention of the authors of the mandates system that
mandates should not be revocable. In fact, only the representatives of Finland
and Pakistan referred to these events and then only very briefly.
Furthermore, Mr. President, no representative referred to the passage from
the Court's 1966 Judnment auoted in Chaoter VII, paramaoh 83, of our
written statement and which wë contend is diametncally opposed to the notion
that the League was empowered ta revoke a mandate. If it were thought that
this passage~does not support our contention, one would have expected at
least some comment in tbis regard. Thus the failure of representatives who
contended in this Court, that the League was empowered to revoke a mandate
to refer ta this passage in the Court's 1966 Judgment is highly significant.
The only inference is that they agree that the passage cannot be reconciled
with the notion of a power vesting in the League ta revoke a mandate. If they
thought otherwise, they surely would have contended that the passage does not
mean what we say it does.290 NAMIBIA (SOUTH WEST AFRICA)
Mr. President, 1 turn now to a more detailed discussion of a possible legal
bais for a contention that a substitution of su~ervisorv nowers could have
occurrcd without ihc consent ola mandatory potiér. ~irs;oiall, 10ihe possible
exisienie of an ohjectivc principle of intern3tion31laiu hich operating <iliti,>dr
the mandate could have had this effect.
Now in their observations on the preliminary objections in the South West
Africa cases, the then Applicants, Ethiopia and Liberia, relied on a so-called
doctrine of automatic succession which they then said had formed the basis of
the majority Opinion in 1950.They said:
"90th the Majority and the Minority in the 1950 Advisory Opinion
held that the Mandate instrument did not lapse with the dissolution of
the League ... Having achieved this common 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 aree.
Alihough the Sfinoriiy held that the insrrumint or htandatc conrinuër in
existenie, in dcclining ioemploy the docirine of succc.;sion,Judge>hlcNiiir
and Rcad held ihai Ariicle 6could not hc cnforced onlv for ihc i~ieshanical
reason that there is no Council of the League to which Respondent could
report." (I.C.J. Pleadit~gs,1966,Vol. 1,p. 429.)
1 quote again:
"The Mandate is a creature of the organized international community,
as well as the subject of a legal interest of such community and its Mem-
bers . .The only question is, which renresentative of the ornanized inter-
national commüniiy does one look Co, the League of ~ations or the
United Nations, the organ in existence when the Mandate was conferred
or the organ now in existence? The Majority Opinion applied the doctrine
of succession and looked to the United Nations." (Ibid., pp. 442-443.)
The Applicants also said:
"The Court, in determining that the International Court of Justice
has replaced the Permanent Court and that the United 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 10 give effect to the purposes of the Mandate."
(Ibid., p. 445.)
Mr. President, it is apparent to what extent reliance was placed by the then
Applicants on this doctrine of principle of succession, which, according 10
them, had formed the basis of the Court's 1950 Opinion. This doctrine of
automatic succession was, in our submission, refuted by South Africa in the
pleadings and oral proceedings. It was also demonstrated that the majority
Opinion in 1950wasnot based upon any such doctrine. In the result, the doc-
trine of automatic succession receivedno support whatsoever from any Memkr
of the Court in 1962. The only discussion regarding this doctrine in 1962 is
to k found in the dissenting opinion of Judge van Wyk, who held that no
such principle exists. He said:
"There is no substantive rule of international law which provides that
where an international organization comes to an end, and another inter-
national organization performing similar functions exists at that lime,
that the powers and functions of the dissolved organization pass auto-
matically to the organs of the new organization, or that the rights of the ORAL STATEMENT BY MR. VAN HEERDEN
291
Members of the former oass to the Membecs of the latter. irresoective of
the intention of the pariies to the relevant instruments rilatin; to these
organizations." (I.C.J. Reports 1962, p. 603.)
Judgevan Wyk then quoted the following passage from the opinion of Judge
Levi Cameiro in the A~nbatieloscase (I.C.J. Reports 1952, p. 54):
"Even when the organ which wasfomierly competenthas beenabolished,
its powers cannot be regarded as automatically transferred to the new
organ which replaces it."
Judge van Wyk continued:
"No buch rule of üuiumaiic transfer 15 IO be found in iiny of the ,ourses
of internïtional law cnumerated in Article 38of the Siatuie of ihir Court.
There areno international conventions, general or particular, establishing
such a rule, there is no general international custom to this effect, nor is
such a rule to be found in the general principles of law recognized by
civilized nations." (I.C.J. Reports 1962, p. 603.)
In his separate opinion in 1962Judge Bustamante also, in passing, rejected
the notion of automatic succession of the United Nations 10 the League of
Nations. He said:
"The above findings do not in any way imply an intention to establish
orto regard asestablished the principle of automatic or ex officiasuccession
of the United Nations to the League of Nations. It has been suficiently
clearly shown, in the course of the written and oral proceedings in this
case, tbat the theory of automatic succession is inconsistent with the
historical background of the discussions and resolutions of the two great
bodies during the transitional period in 1945-1946."(Ibid., p. 364.)
Now, Mr. President, it was presumably statements such as these and also
the lack of support for their contention in the 1962 Judgment and other
opinions that caused the Applicants to discard their contention during the oral
proceedings on the merits in 1965. At that stage they expressed regret for
having used the expression "automatic succession" and stated explicitly that
they did no1 conceive "that the United Nations acquired title to the League's
supervisory power over mandates by virtue of some general international legal
principle of devolution or succession, aliundethe mandate". (I.C.J. Pleadings,
VOL vnI, p. 132.1
It was probably by reason of this concession that the possibility of succession
by virtue of an objective rule of international law was not dealt with at al1in
either the Judgment or the opinions in 1966.
As far as we are aware, no publicist of repute has ever seriously suggested
that there exists anv orinciole of succession which. overatine indeoendentlv
of the intention of the'partiés,could automatically have effectëd a substitution
of the United Nations, its organs and101members, for the League of Nations,
ils organs and/or members. We conrequently do not deem il nëcessary to say
anything more in this regard, save to make the submission that any contention
based on the existence of such a principle is clearly untenable.
However, before leavina this tooic. 1 wish to draw attention to a remark
made by the representativeof ~inlkdin his address before the Court. Having
referred to a statement in paragraph 44 of Chapter VU of our written statement
~ ~ ~
to the effect that there was no sueeestion bv anv Member of the Court in the
1950Opinions, or in the ~udgmeit and opinions in 1962,or in the Judgment ORAL STATEMENT BY MR. VAN HEERDEN 293
obligation to report and account ta the Council. In the absence of such an
obligation-in otber words, in the absence of an obligation to reoort and
account it ivould bcimpossible IO infcr thar the ~ea~uc~ouncil was'intended
ta evcrcisc a supcn.isory function or ti,speak, in thir rcgürd, ufïny oblig~tiori
to submit to such a provision.
The essence of the supervisory functions of the League was consequently the
mandatory's obligation ta report and account to the Council of the League.
The further obligation or function, the fonvarding of petitions, was subsidiary
and dependent on the fact that the Council was the supervisory organ.
In our submission, tbere can be no doubt that the clear wording of the
provisions relating to the mandatories' obligation ta reoort and account
impored an obligation to report and acciunt. "or tn some abstract undctined
cntity, but io 3.specific supervisory body, consiituted and funciioning under
the provisions of a particular convention.
Mr. President, we would again like ta stress, as was done in Chapter VII,
paragraph 49, of Ourwritten statement, that it was not an obligation ta submit
generally to international supervision or ta suoervision bv the international
community, or thefamily ofn3tions.or thccivili>ed nationsoftheuorld, or the
like. Ir uas an obligation to report and account to a specificorgan ofa spc;ific
organization, an organization embracing certain of the nations of the world,
the Council of the Learue of Nations.
In thi, regard itis important to bear in mind that rhc Lcïguc ,\as constituicd
by a covcnant, the provistons of \\hich ucrc knoun tn the mandatories and ta
which al1mdndütorics wcrcinitially si~natorics.lhccon~titution of theCouncil
requircd "tlic ïgrccmcnr of al1the Mcmbers of the Leagur represented 3.1 the
mccting" and Article 4 providcd for an in\,ilation to any Mcniber of the lewuc
no1represcnted on the Council to siras a mcmhcr of the Council ït any meezng
during the considcration of mattcrs >pccilicallyalfcaing the intcrests of such a
Member. 1 aiIl demonstrate ai a later stage that it is now scttlcd law that a
mandatory could thus in eifccr have vetocdÜnydccislon of the Council rehting
Io ils administration of thc particular mand3ted territor)..
It was Io super\,ision through machincw co\,crncd bs these provisions of the
Covenant. and tono otber. that. accordin; - ;O the exo.ess ~ ~ ~ ~ ~ ~e ~andate~ ~ ~
instruments, themindatori~sco~sented tosubniit. Asa müttcrof inrcrprctation.
hou can it possibly bccontcnded thït the m~ndüroricsal\o consentcd to subniir
to thesupervisionof a successor of the League should the Leaguecease to exist;
a successor, Mr. President, the nature and constitution of which would have
been completely unknown at the time? 1sit, for instance, conceivable that any
mandatory would bave consented to submit to the suoervision of an internation-
al organizition which could, by a bare majority, adopt decisions binding on a
mandatory? Surely it cannot seriously be contended that although a mandatory
was accountable to a soecificorean if a snecificoreanization. which,orean~ha~-
to take decisions una~imously,-that mandatories kertheless consented to be
accountable to the sa-called organized international community in whichever
form it minht exist in the future,
~tatemeits made by delegates at the Paris Peace Conferencealso show that
considerable practical importance was attached to the fact that the obligation
to account related to soecific suoervisorv machinerv. When the comoromise
agreement relating to the mandates syste& was arri&d at on 30 ~anuaiy 1919,
the South African Prime Minister, General Louis Botha, stated that although
be felt vew stronelv about the auestion of South West Africa. and thourh he
thought it differedentire~~from any other question which they'were discuising
at the time, he would be prepared ta say that he was a supporter of the draftresolution embodying the com~roniise. "because he knew that. if the idea
fructified, the Leidguéof ~ations would consist mostly of the same people
who were present there that day, who understood the position and who would
not,make it impossible for any mandatory ta govern the country". (Foreign
Relafionsof the u51itedStr~tes,T11eParis Pence Conferefrce, /9/9, Vol. III,
pp. 801-802.)
Two days earlier. that is on 28 Januarv 1919. Mr. Llovd George had said
ihat hc airecd irith~r. Clemenceau thalif the Leiigue o<~aiion;uere made
an executivc for purposes of poverning. and chargçd nith functions which ii
u,ould he unable io pcrform. 11aould be destro,ed from the besinninu. He
furihermore said that he had not so interpreied th;mandïtory s)siém uhén he
had accepted 11in principle. and President Wilson ihen stated thxt he algo had
not so interpreted il.
The idea of a mandatory king obliged Io submit ro the supervi5ion of some
undefined organ or organi7ûiion uïs cledrly unÿccept3ble to Mr. Clemeiiceÿu.
He expressedthe following misgivings:
"The Leaeue of Nations. he thoueht. was to be a Leaeue of Defence to
ensure the Gace of the woild. But ifappeared they had now gone beyond
that limit when they provosed ta create a bague of Nations with govern-
mental functions to intekfere in intemal atTaiÏs, with trustees in various
places sending reports t-he did not know whom .. .It had been said
that an International Legislature and some sort of executive power, about
which he knew nothina. -.uld have to k created. without anv Dowe. .o
admini%ier penalties, since ihis had ne!,e; ken raised. The ide;
of an unknown mandaiory acting ihrough an undetermined tribunal gavc
him someanxieiy"(1bid ,pp. 768-769.)
Mr. President. in Our submission it is accordina-. clear that the .rosp~ctive
mandatory powers required clsrity as IO the content of the mandates sysiem
before consenting thereto and that they were strongly iniluensed by the con-
templation that supervision bv the Leaauewould be exercised in a conservative
manner. As is pointed out inour writtén statement, 1,Chapter V11,paragraph
51, this contemplation became a reality upon the establishment of the League
of Nations; this is evidenced bv the Hvman's reDort and bv the expressed
endeavour of the I>ermanent an dat eos mission Io çxercisc iheir authority
"les< as judges from whom critical pronouncements are expected, ihsn LS
collaborators who are resolved to devote their experience and their energies to
a joint endeavour" (League of Nations, Oficial Joirrnal, 1921, Nos. 10-12,
p. 1125).
Itis consequently also clear that the wordingof the obligation to report and
account as relatine ta a soecific suoervisorv a;thoritv and-no other. was auite
. -~~~-~ e~ ~ ,~~
evidently not a matter of mere form or technicality but one of basic praciical
importance. We therefore submit that as a matter of interpretation tbere can
be~no doubt that the parties never intended nor contemplated any olher
supervisory authority than the Council of the League of Nations assisted by
the Permanent Mandates Commission.
The correctness of this conclusion can be demonstrated in a number of wavs.
The following question may be posed: 1sit possible to interpret the an daté in
such a manner that a mandatorv would havebeenobliged during the lifetime of
the League of Nations ta subkit to supervision by some other international
organization or another organ of the League itself? The answer must clearly be
in the negative.
Without fresh consent on their part the mandatories could no1 have been ORAL STATEMENT BK MR. VAN HEERDEN 295
obliged to suhmit to the supervision of, for instance, the International Labour
Organisation. Similarly, ifa group of Stateswhich did not ioin the Leaeue had
fornied an org.inilation of thcir own, m;inddiorics iiould~nhviously &t have
becnobliged to submit to international supervision hy botneorgan of the oiher
organization, for the simple reason that the mandatories had neveraareed to
iccept suchan obligation. .4iid, Ur. Prcsidcnt, it i!,ould havem3deno dGrercncc
if thts neii parallel or@niLarion evcntually u.3~ more reprcscntative of ihe
socïlled ii,orld community than the Lcague iiself, in the iense thit it had more
members than the Leaguc, and italso would have made no difierenie ifeven-
t~ally most ufthe original Members of the Lcague hadjoinsd this new parallel
organization.
The Court adjournedfrom 11.20 o.m. to 11.45am.
At the adiournment 1 was considerine the auestion whether if. durine the
~ ~ ~ .
Iifeiimc of the Lc~gur a parallei internaGonal 8rganizaiion hrid becn fornied,
a mandatory would haw bccn obligcd to suhmit to the supervision of this neu,
organization, and concluded that the answer must be cleaÏlv in the neeative
~here is another possibility that must be considered. & us assu& that the
Covenant was amended so as to transfer the suuervision of the Council of the
League to the Assemblv or to urovide that the Council could. in matters of
maidate supervision, airive at balid, binding decisions by a simple majority.
It is obvious that such alterations would seekto impose uDon the mandatories
obligations with a content different from those to which they had assented.The
Covenant did provide for amendments thereto, but it also provided that no
amendment would bind a Member signifying dissent therefrom, although it
would then ceaseto bea Member of the League. If a mandatoryhad refused to
agree to an alteration in supervisory machinery, it could therefore lose its
membership in the League, but the alteration, as such, would not be binding
uDon a mandatorv without its consent.
~fcour\e. the;; curisider.iiioris do noc unly opemte ro the henclit of manda-
tories in the senscthai wirhout iheir consent they tiould not have heenobliged
tu suhmit to other suvervision. t.ev a.so ooerate. in a sense.to the detrimint
of the mandatories. ~he Covenant and the mandate instruments were, as far as
supervision is concerned, obviously binding not only on the Council and the
Leaaue in aeneral. but also on the ÏnandatGies. A mandatorvwould therefore~ ~ ~
no1jiai,e hëen entitled during the Iifetime of the Leagueof ~atii>ns to claim a
right 10 perform ils ohligationr of dccountability bv ruhmitting reports to some
other international organization or to some other organ of the League of
Nations.
1havealready referred to statementsmadeduring the presentoral proceedings
to the effect that South Africa was obliged to account ta the Leaaue and toits
successor,the Cnitcd Nations, as rcprc~eniing the internaiional ~ommunity or
the organized internxti<inal iummuniiy. Siniilar statenicnts iicre made by the
Applicnnts in the South Ii'e,ct Africo cdses. Their "orgïni7ed internationdl
community" argument nia). be suniniarizcd 3sfollous.
tirstls,ihe Covenant of the Leïgue vested rcsponsihiliiy in the organizcd
international community to assure that mandatories would Dromote the well-
king and progress of inhabitants of mandated territories; secondly, any
referencein the mandatedocuments to theperformance of supervisory functions
by organs of the League must accordinaly be constmed as a referenceto such
organs in their capacities as constitutiigor representing the organized inter-
nationalcommunity; and thirdly, sincethedissolution of the Leagueof Nations,the obligations of the mandatory have been owed to the United Nations as the
new organized international community.
1 have alreadv oointed out. Mr. President. that the orovisions reeardine
supervision in resiect of mandates by organs'of the ~e&ue referred ;O suci
organs by name and without any qualifications whatsoever. In order to arrive
at the conclusion that such Ornansacted merelv in a soecial caoacitv. that is. as
constituting or representing the organized international comiunii;, it w&ld
consequently be necessary to read into the mandate instruments an unexpressed
intention: that thesuoervisorv. .wers would be exercised bv the Leaeue; not as
an orgïnizaiion. as'such. but as representing the orgaiized inrernitioniil
community. In oiher uords, thc lem uould hai,c to bc implied.
I will Jeal shonly with the question uhether such iitcrm or a similar ierm
can be implied in the Coizennnior mandate instmments. For present purposes
itsurrises to point out that an organized international community argument
cannot possibly be based on the express terms of the Covenant or the mandate
instmments.
As a matter of interpretation, we consequently submit that there cannot
be anv warrant for readina the mandatories' dutv to submit to sunervision bv
the ~Luncil of the ~eague of Nations as meaning supervision by any othei
intemational organization, or asking equivalent to a wider obligation of
international accountabilitv. or somethinx-similar. which could have survived
the dissolution of the Leag;;.
MI. President, 1 have now dealt with two of the possible three bases on the ,
strength of which it can be said that, without fresh consent on the part of the
mandatory, obligations relating to supervision suwived the dissolution of the
League.
The third and last possible basis is the existence of an implied term which
would have had this effect. We will demonstrate at a later stage that the Court
in its 1950 Opinion apparently did not rely on any such implied tenn. Io the
proceedings on the preliminary objections in the South West Africacases, only
Judge van Wyk dealt with the possibility of such an implied tem and he had
no difficultyin rejecting it, ascan be seen from I.C.J. Reports 1962,pages605 K.
In the proceedings on the merits Judge van Wyk came to the same conclusion,
and he was supported by Judge Tanaka, who delivered a dissenting opinion.
Judge Tanaka said:
"As the mechanism of implementation of international supervision,
the majority opinion of 1950 refers to the United Nations as its organ .. .
contrary to the views of Lord McNair ... and Judge Read ... This
conclusion cannot be derived from the express or tacit intent of the parties
to the mandate aereement and those concerned. because at the oeriod of
the inception of the Mandate an event such as thédissolution of tie Leaye
surely could not be foreseen by them, and because the intention of the
parties and those concemed, and the surrounding circumstances at the
period of the dissolution of the League are susceptible of diverse inter-
pretations." (I.C.J. Reports 1966,p. 275.)
It is clear therefore, Mr. President, that Judge Tanaka was of the view that a
succession of supewisory powers could not have taken place because of any
provision in the mandate instmments of the Covenant, whether expressed or
implied.
The arguments which have already been adduced in regard to the express
tems of the mandate documents also serve to refute any possible suggestion of
an implied term in conflict with the expressed terms. In the passage cited from ORAL STATEMENT BY MR. VAN HEERDEN 297
Judge Tanaka's dissenting opinion, there is reference to a further fundamental
obstacle to anv nossibilitv that the authors of the mandates system could have
intended to proGidefor tAeconsequences of a future dissolut~onof the League
of Nations. The question may be asked: what would have necessitated such a
orovision? The oilv answer isa contem~lalion of the possible future dissolution
of the League andior the creation of anbther body toiake its place.
Now, Mr. President, as pointed out by Judge Tanaka, at the period of the
inception of the mandates system an event such as the dissolution of the League
surely could not have ken foreseen by those concerned. Similar views have
been expressed by other judges of this Court. In his separate opinion on the
preliminary objections in the Sorrrh Wesr A/rica cases, Judge Bustamante
stated:
"Obviously the provisions of the Covenant which had instituted the
international Mandates System did not envisage the possibility of the
dissolution of the League of Nations and did not foresee its possible
effectson the Mandate agreements in force." (I.C.J. Reports 1962,p. 362.)
In their joint disseniing opinion in 1962Judges Sir Pcrcy Spcndcr and Sir
Gerald Fitzmaurice siaicd thai it1s". ..ei,idcnt that thùsc c<inccrneddid 1101
foresee. and would have refused to contemplat.. a ..ssible break-uo of the
league". (Ibid, p. 514.)
In 1966 the Court found that the circumstances of the League dissolution
were "neither foreseen nor foreseeable" bv the framers of the mandates svstem
(I.C.J. Reporrx1966,p. 49). Keferenîes toiurihcr rimilarexpressionsof opinion
are Io befound inOurwrittcn rtatemcnt. Chdpier V11, paragraph 57.
But. Mr. President. even if we assume that the authors of the mandates
system did contemplate the possibility of a future dissolution of the League,
it would still be impossible to impute to them an intent that after such a disso-
lution mandatories would be obliged to account to another international
organization. lnfhis regard it shouldbe stressed that several of the mandatories
could only with great difficulty be prevailed uoon to accept the mandates
system at al1 in substitution for contemplated annexation of the territories
concerned.
This was especially true of the Australian Prime Minister, Mr. Hughes, who
on 29January 1919,at a meeting of the Imperia1War Cabinet, still insisted on
outright annexation of New Guinea. By this time, the well-known compromise
draft resolution, which had been prepared by General Smuts, had already been
worked out, but it was only after Mr. Lloyd George, the British Prime Minister,
had assured Mr. Hughes that a Class "C" Mandate for New Guinea was the
equivalent "of a 999years' leaseas compared with a freehold", that Mr. Hughes
notified Mr. Lloyd George of his acceptance of the draft. The reference is ta
Slonim's paper in The Canadian Yearbook ofInternariono1Law, Volume VI,
page 135.
When the draft resolution was discussed in the.Council of Ten, President
Wilson initially indicated that he did not think that the Council could make a
final decision at that stage. At a later stage President Wilson said that he was
willing to accept the proposals contained in the draft resolution subject to
reconsideration when the full scheme of the League of Nalions had beeo drawn
up. (Foreign Relations o/lhe United Srares, TheParis Peace Conference, 1919,
Vol. III. o. 791.) Mr. Hughes was not satisfied with the purely orovisional
arrangement. ~é enquired' whether they should await theîcceptance of the
LeagueofNations bytheconferenceand bythe world whilst they were uaiting
for a decision. He asked, "Was no1 the de/acro Lcaguc of Nations already inexistence in that room?', and he expressed the opinion that this League should
Saywho wereto be the mandatories. (Ibid.,pp. 793-794.)
It is clear therefore that to Mr. Hughes the League of Nations, ta which
mandatories would be accountable, was not an undefined abstract entity, but,
on the cnntrary, something very real. It is therefore surely inconceivable that
he and other orooosed mandatories. who acceoted the comoromise with
reluctance and ber; strongly influencédby thecomposition andnature of the
supervisory organs, would have agreed in advance in 1920to suhmit at some
unknown date in the future to supervision to be exercised by an unknown
body, especially since the composition, procedure and attitude of such an
unknown body could obviously also not be known at that stage. Moreover,
Mr. President, the circumstances whereunder the League would be dissolved
could also not be known.
It is important ta have regard to the circumstances in which a term may be
imolied in an agreement. As has already ben oointed out. courts in al1leeal
sysienis guard tiemwl%,esagainsi assenring Io à proposed ;mplication on any
but the most cogcnt grounds. Wcdcalt with this in 1,Chapter II. pïrîgraph 10.
of our written statement. and my colleague Mr. Grosskoof has agai- deak with
the circumstances under khich a-termcai be implied.
Consequently the requirement is stressed that an implication of consensus
must arise necessarily or inevitably from relevant facts, in the sense that al1
other reasonable inferences are excluded. As was said by Judge Scrutton in his
famous formulation in the case of Reigate v. Union Manufaduring Company,
"a term can onlv be imolied if. .. it is such a term that it can confidentlv be
said that if at thétime the contract was being negotiated someone had sa;d ta
the parties, 'what will happen in such a case', they would bath have replied
'ofcoursesoand so will happen, we did not trouble to say that, it is too cleir'".
Surely, Mr. President, if one had asked the founders of the mandates system
what was to happen if the League-were to dissolve, their answer would have
been: it isinconceivahle that the Leaeue will be dissolved. but should it hanoen.
some new arrangement will have to be arrived at. ~he; certainly wouid'noi
have answered the question by saying: oh, it is so clear that mandatories will be
accountable ta a new international organization that wehave not even bothered
to state this in the Covenant or the mandate instruments.
1 revert now, Mr. President, to the organized international community
argument which. as 1 have said. can onlv he hased on an imolied term. The
firit question ivhicharisrs is. whït is the content of the pro\isio"s, soughIO bc
iinplied? This nobody h3s indicated as )et. But whate\.er this organizcd inter-
national communitv m.v be. the argume-ts alreadv advanced inreeard to the
untenabiliiy of an) suggcsted implication in ihe inandate docuinents of a
prui,ision rcgarding future cucces~ionof supcri'isory organs are. in ou siib-
mission. fully aoolicable Io the pîrtisular iniolication contained in the-orsanized
international community argument.
These arguments, and others contained in Chapter VI1 of our written state-
ment. may be briefiysummarized asfollows.
~iistly; since nibody in 1920 contemplated the possibility of a future
dissolution of the League of Nations, it would be unrealistic to impute to the
authors of the mandates system an intention to guard against the possible
conseou.nces~ ~ s~ch a~dis~ ~ ~~ ~ ~ ~
Secondly, even if it is assumed that the future dissolution of the League was,
in fact. contemolated at the relevant time. it must be borne in mind that certain
of the mandatories were reluctant ta accept the extension of the mandates
system to particular territories occupied by them, being influenced in their ORAL STATEMENT BY MR. VAN HEERDEN 299
acceptance by the nature of the supemisory machinery which rendered unlikely
any injurious, biased or unfair interference with the mandatory government,
and so as to contain a minimum of political element and a maximum of inde-
pendent expert approach.
It is therefore inconceivable that thev would have aareed in advance. in 1920.
to submit to supervision at some unknown date in Ïhe future by a body, thé
composition, procedures and attitude of which were ex hypothesi unknown to
them. and in circumstances which were unoredictable.
~hirdl~, the provisions regarding amendment in Article 7 of the Mandate
for South West Africa and similar provisions in other mandate instruments,
enabled the mandates to be amended to meet changing circumstances, and
indicate anattitude on the part of the authors of the mandates that such changes
should 1-edealt with as and when they arase. 1s it then likely, Mr. President,
that they would have attempted to make provision in advance, and not even
expressly, for something as uncertain in ifs nature and consequences as the
dissolution of the League of Nations?
Fourthly, no State alleged the existence of such an implied agreement,
despite discussions concerning the future of mandates by the founders of the
United Nations, including many founders of the League, in 1945to 1946, by
the Members of the Leaaue at its final session in 1946and bv the Members of
the United Nations in thëyears 1946to 1949.
Weconsequentlysubmit, Mr.President, that, as in the caseof the interpretation
of the exoress ~rovisions of the mandate instruments, there is notbina in the .
Alandate or 11ssurroiinding circumst~nces \\,hich uould by u~y of an iniplied
ierm provide a uïrrant for rejecting the prima fdcieconclusion that the mïnda-
torie? obligation to reoort and account laosed on the dissolution ofthe Leaaue.
'I.hisconcl~sion is furiified by the follouhg statement conlained in ï report of
rhc United NaiionsSpeciîl Conimiitee on Palestine:
"Following the Second World War, the establishment of the United
-~~~ons i~ 1945and the dissolution of the Leaaue ofNations the followina
year opened a new phase in the history of Ïhe mandatory régime.~be
mandatory Power, in the absence of the League and its Permanent Man-
dates Commission. had no international authoritr to which it miaht
submit reports andgenerally account for theexercisé of its reponsibiliGes
in accordance with the terms of the Mandate." (CA, OR, 2nd Sess. 1947,
Supp. 11,Vol. 1,p. 26.)
As 1have already indicated, the second part of this section of Our argument
is devoted to the question whether the League, and more particularly the Coun-
cil thereof, was legally empowered ta revoke a mandate. In our written state-
ment, 1, Chapter VIT,paragraph 65, we pointed out that a number of writers
--- nt- ~~~-~~e~tato~s on the m~~dates svstem have wsed the auestion
whether the League had the legalpower to revoke or terminale a mandate. We
furthermore pointed out that it is necessas. to obtain clarity as to the diiïerent
concepts involvedand appropnate phraseology ta describethem.
Now, MI. President, although lems are in themselves not of any overriding
imoortance. it is necessarv to distinguish between two different concepts,
naniely thriaking aiia). uf ihe title of iparticulïr mandatory and the bringing
10 an end of ihe mandatury status of a ierritory. In our writtcn <tatenient iie
rcferred to the first concept as revocation and tu the second concept,as termina-
t~~~- S~me confusion between these two conceots. that is betwëen revocation
and termination, are to be found in written stitements and oral addresses in
the present proceedings. So for instance, in the written statement of the United States, at 1,page 861, it is said that the early practice of the United Nations
supports the conclusion that it has the competence to terminate mandates.
Reference was then made to the so-called termination of the Mandates for
Palestine and the Japanese mandated islands.
At a later stage, and in another context, we will deal fully with the circum-
stances surrounding the adoption of the relevant resolutions by the United
Nations. For present purposes we merely wish to stress that, at least as far as
Palestine is concerned, there was no question of a mandate being revoked
because of breach of its obligations by the mandatory State. In fact, Great
Britain voluntarilv and unilaterallv announced its intention to relinauish the ~ ~ ~ ~ ~ ~
Msnddie. To put itin another niaincr, ihe intention w;icthat the Mandaic for
Pülcstinc as such, thar is, the mandatory status of P~lestine.should coine to an
end and not merelv Great Britain's riehts as mandatorv. 1will therefore use the
word "revocation" to connote the taiing away of a mandate from a particular
mandatory resulting in the mandatory being deprived of its rights, and as a
necessarv corollarv beina freed from its oblieations. under the mandate. but
the stat;s of the mandacd territory as such remainikg unaltered. This should
be contrasted with termination of a mandate whichcomoletely brinrs a mandate
to an end because it has sewed its ournose. in other words. because the inhabi-
tants of a particular mandated teintory have developed' to such an extent
that the need for administration bythe mandatory has fallen away.
As also stated in the naramanh -. our w~itt~ ~stat~~~~-~to wh~ch~1 hav~ ~ ~
referred, the League's riihts, if any, of termination in this sense are iot of any
relevance in the present proceedings. This is so since the General Assemhly did
not in resolution 2145 purport to terminate the Mandate in that sense, despite
the use of the word "terminated", but to revoke it because ofalleged breaches
by South Africa
It hss not been cuggeciedin the preseni proceedingc thai the League had the
fdr-rwching poucr ol revoking a iiiandate ai uill Ii is consequently not neces-
sary to Say anything more in this regard, but that it would be completely
.unrealistic to contend that the Leaeue was so emoowered. The auestion for
consideration is therefore whether Ge League couid have revoked a mandate
hy a reason of serious violations by a mandatory of its obli~ations under the
-
mandate.
In paragraph 67 of Chapter VI1of our written statement, 1, we pointed out
that a power of revocation on the part of the League could have been derived
only from the express terms of the mandate instruments, or an implied term,
or the application of some objective principle of international law. No other
basis has been advanced in the present proceedings. Moreover, nobody has
contended that the Leaaueenioved a nower ofrevocation bvvirtue of theexoress
terms of the Co\,cnant Ündthe mandite instruments.
It is consequently only neceisary to dedl with the possihility ihnt a mandate
could have bccn revoked by birtue of an implied terni or the application of
someohjertive principleofintemation31 Inw.
The coniention that a mandate was retocable by virtuc of the application
of such a principle of international law has ban advanced in these proceedings
by the United States, Finland, the Secretary-General and the Organization of
African Unity.
In the written statement of the United States, at 1, pages 856-857, reliance is
placed on a mle of treaty law codified in Article 60 of the Vienna Convention
on the Law of Treaties. Paragraph 3 of that Article-that is, Article 60-
provides that a treaty may be terminated, in the sense of revoked, in the case
.of a repudiation thereof or the violation of a provision essential to the accom- ORAL STATEMENT BK MR. VAN HEERDEN 301
plishment of an abject or purpose of a treaty. According ta the United States
written statement, the provisions of Article 60 summarize traditional inter-
nationallaw doctrine regarding breach of treaties. The statement continues:
"The fact that the Mandate is not a treaty betu2eenStates does not
affect the applicability to it of the treaty law contained in the Treaties
Convention. Article 3 of the Conventi~ ~ ~ovides that anv of the rules
, ~~ ~~~- ~
set forth in the Convention may be applied to treaties between States and
international organizations where such rules would be ap~licable 'under
international lai independently of the on vent ion'."
The submission is then made that the rule relating to material breach was
recognized before the adoption of a convention as applying to al1 treaties, not
only ta those betweenStates.
Now. Mr. President. save for one imnortant ooint..we h.ve no auarrel with
this exiosition of the'law by the ~nited States. It is undoubtedl; true that,
unless the parties othenvise provide, an ordinary treaty may ~e re~oked by the
innocent party in the caseof a material breach by the other party. I will return
shortly ta the important qualifications, i.e., the will of the parties and the
nature of the treaty.
In ils ivritten st~tement, Finland coninienied its discussion of the re!,ocabiliiy
ara niandïtc uith the followingchtra-lcgal siatenient:
"lt seemsnatural, as is ohviously the case of South Africa, that if the
mandatory continuously violates its obligations, the organization that
supervises the administration may declare the mandate forfeited."
Finland then referred ta the views of two publicists and also in a single
sentenceta the principle embodied in Article 60 of the Law of Treaties.
In his oral address, the representative of Finland relied bath on an implied
power to revoke a mandate and on a principle of international law conferring
such a power. As regards the existence of such principle, reliance was agaio
placed on Article 60 of the Law of Treaties, but in a context slightly different
from that ta be found in the written statement of the United States. a context
with whiih Iwillde<il in ducco~rse.
In his oral statement the reprcscntative of the Organizaiion of African Unit)
althouch rcfcrrinc Io Article 60 of the Con\cntion on the Lau of Treaties.
appeared to base-his contention that a mandate was revocable on an implied
term (supra, PP. 88-90).
ThercDrcscntative of the Secretarv-General. in his oral address,relicd heavilv
on the aiplicahility of the niaxini n~~nditir~lsiiconrrac~r,.~H . c said thatiihcthcr
the relatic?nsliip hetuccn South Airica .ind the sa-called intern3tional commu-
nitv is contractual. or the result of an obiective situation. or both. or whether
ifi; a relationship .~rii~t.,icriiiis neverthélessgovcrned hi certain fundamenial
principler, one of u,hich is the principle emhodicd in the said maxini (supro,
pp. 53-54). The rcpresentatire of the Secrerary-Gener~l u,cnt on to rcfcr to
certain authorities which hc claimed support his generîl proposition.
Now, &Ir. Prcsident. in the first place we uould like ta stress that. contrary
to the Secretarv-General's sugestion. the determination of the legal nature of
the rrlationship tetucen a m&itory and the Lc~gue of ~arions-15 in fact of
the utmost importance fur the purpose of establishing u,hich lcgal principlcs
a~..iedto his relationshi~.
Bath in municipal la& and international law there are but few principles
which apply to every relationship, irrespective of its nature. As Mr. Grosskopf
has pointed out, an essential pre-requisite for application of the maxim relied.upon by the representative of the Secretary-General is that the relationshipmust
b~~svnallamatic: that is. the riehts and oblieations of the oarties must be
reci&ocal Zr inte;-dependént, like-givingdelive; of the thing sold in retum for
payment of the purchase price. The maxim simply means that in such a relation-
;hip either party may refuse to perform his own obligations until the other
pariy has performed his obligations, or oiïered to do so. No loss of rights or
obligation is involved for either party unless the contract itself is lawfully
canŒlled or brouaht to an end insome other manner.
It is consequenily obvious that the maxim could find no application in the
relationship between a mandatory and the League of Nations-a relationship,
MI. President. which did not involve anythini in the nature of simultaneous
acts of and counter-perforniînce o?obligations.
Indeed, the reprewniarive of ihe Secrctary-Gcncral seeks to apply the niaxim
wronal-. He 53)s that "a oar.y w.ich does noi fullil the obliaati-)ns insumbcnt
upon it and arising from the relationship, cannot be rccogni7ed retaining the
rights uhich it claims to derive froni ihe relationship". As Mr. Grosshopf has
demonstrated, a loss of rights or obligations does not occur automati&lly. It
follows only on an act of cancellation or other form of termination of the
agreement.
This wrone aoolication of a maxim leads the Secretarv-General's reoresen-
- ..
tativc, in our respectful subniission. into polemies, irrelebant for prcsent pur-
poses. in uhich he altribures to South Africa an attitude of continuing to la).
Claimon the riehts obtained from the an date while reoudiatine the oblieations
which arose frk it (supro, pp. 54-55). Sufficeit to say; Mr. PrGident, tGt that
is not South Africa's attitude. On the basis that the Mandate came to an end
uoon dissolution of the Leaaue. South Africa acceots that it cannot base a
ciaim of rights to South West Africa onthe Mandate as such.
On the basis that the Mandate remained in existence as an institution-
which is the basis on which this araument is nresented-she acceots that her
obligîiions undcr the Mandate remained in force. exccpr ior thoce u,hich. in the
description of Judges McNair and Rcad in 1950.depcnded csscntially on the
existenceof theLeaeue for their fulfilment
However, MI. Prisident, this is beside the point in the present enquiry as to
the position in the time of the League. The question is not whether, in the event
of a~failureor delav in the verformance of its obligations by a mandatom. the
League could have withheid some benefit or oth& (rom the maodatory: .1tis
simply whether the League had the power to revoke a mandate in the event of
the mandatory acting in violation of its obligations. The princide of non
odrn~plrrico,rr~crud~es not help to ansu,er this iuestion.
The representative of the Secretary-Ccneral, in his oral addrcss. alro relicd
on the common law principles that an innocent party may revoke an agreement
should the other pariy substantially fail to fulfil his part of the bargain or
sbould he renounce his obligations under the agreement, and that a tmstee
may be removed for breach of trust, and a guardian for neglect of dulies or
violation of his obligations. The first principle is identical to that set out in
Article 60 of the Treaty on Conventions, and the second principle is closely
akin thereto. However. MI. President. even if one were to treat the League in .
relation to ils pou.ers in respect of niandates as an ordinary contracting party,
the cardinal question stilt rcmains uhcther such principlcs iiere intendcd Io bc
ao. .cable to the mandates svstem,
In par~graph h8,Chaptcr VII. ofour ir,rittcnstatcment. 1,uc pointcd out that
lcgal rulcs in international Iau operate bettiecn subjwts onl) i<hcn and to the
extent that the parties so desire. In other words, it is open to the parties to304 NAMlBlA (SOUTH WEST AFRICA)
that the rules of international law may be excluded by the intention of the
parties.
Let us assume that either Article 22 of the Covenant or a particular mandate
instrument provided in sa many words that the League would not have the
oower to revoke a mandate for anv reason whatsoever. It would clearlv then
have been the express intention of'the framers of the mandates systemihat a
mandate should not be revocahle. and that any rule of international law which
otherwise might have introduced aright of revocation on the part of the League
should be excluded. Surely such an expression of intention would have been
decisive, and it is hardly necessary.to say that in quality there is no difference
between an expressed intention and one that is implicit in or follows neces-
sarily from an agreement.
Inanoroaching the matter from the basis of the mandates system. it is im-
portantta bear mind that the League itself and the concept of supervisory
powers were innovations in the fieldof international law. It has repeatedly been
emphasized that the mandates system was suigeneris and that mandates could
not be equated with ordinary treaties. 1refer to Ourwritten statement, 1,Chap-
ter VII, paragraph 70.
As alreadr stated. the renresentative of the Secretarv-General in his oral
address statéd that it is imkaterial whether the relati;nship between South
Africa and the so-called international community, which during the life-time
of the League could only have been this or~lanization. was contractual. or the
result of the establishment of an objective slfuation,O; hoth, or whethe; it was
a relationship sui generis. Whatever was the precise legal relationship, he said,
it was nevertheless governed by certain fundamental ~rinci~les.
Mr. President, th&, in our respectful submission, iSa complete non sequitur.
If a relationship which is created is suigeneris, it can surely not he contended
that ~rinciples aoolyina to other relationshios would automaticallv be aonli-
cabl; to the new-relationship. The fact thai a relationship is newand excep-
tional must hy definition necessarily mean that it is governedby its own legal
rules. Whether principles which are ao~licahle to otherand recomized relation-
ships will also apply to this new relaiionship, must depend upon the intentions
of the creators of the new relationship. Therefore, even assuming that the
mandate was a treaty, it was at the time a treatv differinn from anv other treatv
known ta international law, and it would coniequentlybe absurd, in Our sub-
mission, to apply to the mandates principles applicable to ordinary treaties
unless it could be concluded from the intentions of the authors of the mandates
system that such principles were meant to be applicable to mandates.
What 1havejust said applies afortiori to a contention that the principles of
the orivate law institutions of mandate. trust and tutelaee eoverned the rela-
tionihip between a mandatory and the ~eague of ~atiois. This contention, of
course, goes further than the contention relating to the applicability of prin-
cioles of law relating to treaties. since it seeks to introduceinto the mandates
-
syxtcm, no1principle, i~f:ntern?tionsl lau \$hiche~i*tcrlit thc inccpiii~ni)f the
mand3re\ rysicni, but principlcr of tiiuni:ipal Iaw uhich uere it rhc time not
known to or recognized in international la&.
In our submission, the only possible basis on which reliance can be placed
on the use of the words "mandate", "trust" and "tutelage", would he by way
of inference that the authors of the mandates svstem intended the leaal inci-
dents of those institutions in municipal law to héapplicable to mandates. But,
since it was not expressly provided that the League would enjoy a power of
revocation, one would then have to fall back on an implied term, on an im-
plication derived from the use of those words in the Covenant, and the impli- ORAL STATEMENT BY MR. VAN HEERDEN 305
cation would not k justified in the face of contrary indications regarding the
intentions of the authors of the mandates system.
It therefore cannot he correct to say, as did the representative of the Organi-
zation of African Unity, that "the power ofrevocation isnecessarily implied in
the use of the terms 'trust', 'mandate' and 'tutelage"' (supra, p. 90). All rele-
vant indications of intent are to be considered befor~~an answer can he ar~ ~ ~ ~ ~~~~-
ai. lheic indicaiion>, pariiidlarly lis sci uui in Chdprcr VI1 01' our uritten
statenient, thc rcprcseni:iii\c of the Orglini7.1tionof African Unit,, did noi 31-
Mr. President, it was contended this morning by the distinguishédrepresen-
tative of Viet-Nam that althouah rules of munici~al law cannot without more
he iransposcd inio inicrnliiiunlil Iaw, nevertheles maiidares irerc rci~ocahlcfor
ihc ame rcasons ihai manrlxte\ or insiiiutions arc rcvuiiiblc in municipal Idsi..
that is, for instance, hecause of the dishonestsof themandato~.Nowof course
this is3 tiniildr argunieni as that advanccd by the repre~eiirüti~cof the Organi-
mti<~nof Afriidn Unity and i>ursuhniis~iiriiin tliis rcgard 1sihat onc clin unly
on the bas,, of an iinpliédterni contcnd thlit hriliuse the nord "mündlite" is
used in Article 22 of the Covenant and in the mandate instruments, a right of
revocation was introduced into the mandates system.
Here again we find that the distinguished representative of Viet-Nam did
not refer to any other indications of the intentions of the authors of the man-
dates system.
Now the first consideration to kar in mind is that if it had ken the intention
ta confer a power of revocation on the League, it would have been strangenot
to have incorporated it in the Covenant or in the mandates themselves, es-
pecialls since, as we will demonstrate, s~ecificorooosals for the inclusion of
su..h ïpoucr in ihr Covenani had in kcn made. Ap3ri froni this. a term
provtding for revocation iiould have hcen lipotentially Far-reaching prùvision
wiih a nhnikr i~fimplicaii~insiiiïesiing no1unly the population of ihc territory
conccrncd, but al\(>the Ledgue and iijnienibers, the m3nrlatory and an) nrw
mand3tory to which the tcrriiory might k entrusrcd.
Conseauentls, had it heen the intention to confer uoon the League the nower
under consideration, that is, the power to revoke &dates, one would have
expected express agreement concerning, inter aiia, the grounds which would
iustifs revocation, the manner in which it would have to be effected. the meth-
ods by u,hich the future ~rlminisiraiion of the tcrriiory u,ould have to k detcr-
mincd and the adjustnienis of the riphts, finiincial and oihcrwiic, of the various
interested ~arties. The failure to make exoress Drovisionin this regard hecomes
even moresignificant when one examines the conflicting points sf view which
were ultimately resolved in the compromise relating to the mandates system.
1will deal presently with these points of view.
The second consideration, Mr. President, is that, as we stated in 1,Chapter
VII, paragraph 38, of our written statement, the wording of Article 22 of the
Covenant as a whole, as well as its historical background suggests strongly
that the references to trust, tutelage and mandatories were not intended to
bear technical legal meanings, by exact or close analogy to municipal law in-
stitutions of trust. tutelage and mandatum.This is also borne out by the fact
that the English word "trust", which is capable of a technical legal meaning as
well as of a more general ordinary meaning, was rendered in the French version
hythe word"mission". meanina in this context task or undertaking. It is also
significani thlii in the aclual mandate instruments ihemscl\~cs,the uo~ds"irust"
and "iutclügc" did not appcar at all. Cvcn the words "münddtory" and "man-
date" which were retained in the mandate instruments themselves, are, in our306 NAMIBIA (SOUTH WEST AFRICA)
-~h~ission. not indicative of an intention to imnort into the mandate instru-
ments the rules governing the mandatum of private law. Were it otherwise, the
Council of the bague might have enjoyed the power to dismiss a mandatory
at will. and this has never seriouslv b&n contënded. It is therefore not sui-
prisin; that the majority of the court in the 1950Advisory Opinion expressed
the view that it was "not possible to draw any conclusion by analogy from the
notions o~ mandate in national law or from anv other leeal c-ncention of that
law." (I.C.J. Reports 1950, p. 132).
Now, Mr. President, if it is not permissible ta draw any conclusions hyanal-
-0, f~ ~ anv l.ea- conceotion of national law. it can surelv not be contended
ihai a tcrm empohcrinç ihc Laeue IO revokc miindsie in be iniplicd from
the nicrc use of the words "tru\t". "niandaic" and "tutel3ge" in r2rti;lc 22 of
the Ciivcnani. Yci this ii cxd~ilywhat ihc rcprereniaiives of the Orgünizaiion
of Afrisïn Unity and Vict-Xani appear to have donc.
In 1,Chnpter VII, paraçraph, 4 to 24, of our \iriiten siaieinent, !re sci out ihe
hisior) and origin of the mandates syjtcni. Thi, expos:rion, in our \ubniission,
cledrly shows that the auihors of the mïndaie\ systeni did not inrend in3nd3tes
to be revocable. Indications of intention are so important for present purposes,
and some relevant events have heen quoted so completely out of context in
these proceedings, that at the risk of repetition we deem it necessary ta refer
once more to the most important events preceding and surrounding the con-
ferment of the Mandate.
In the first instance it should he ohsemed that as early as March 1917 the
British Imperia1 War Cabinet decided that Australia, New Zealand and South
Africa should he allowed to annex the territories occupied hy their forces and
more or less adjacent to their own territories, namely German New Guinea,
German Samoa and German South West Africa respectively. The United
States was not a party to this decision, and at the termination of the war Presi-
dent WiIson strongly advocated a policy of no annexations. In October 1918,
Colonel House. who had been chosen by President Wilson as a member of the
United States delegaiion icithe Peacc C'onfcrcnce,iiiet u,iih the British Prime
Minirier. MI. Lloyd George, and gaincd British :i;ccptance, in principle, of a
rrusteejhip ryircm for a11encniy territories uith the exception of South West
Afriia and ihc Asiatic I4ünds. Axording tc~the Prime Miniiter, tlic Dominions
uerc iiot prcparcd IOgive up ;iny of the terriioriçs conqucred by ihcni during
the war and conti~uous to their own territories. However, in November 1918,
President Wilson course of a meeting on board ship, stated that the German
Colonies, that isal1German Colonies, should he declared the common property
of the League of Nations and that the resources of each Colony should be
availahle to al1members of the League.
In Decemher 1918, General Smuts puhlished the well-known pamphlet in
which he linked a ~ro~osed mandates svstem with a nronosed bague of Na-
. . . .
tions. Somc of hir prapo.rals nerc of primar) inipori~ncî Far prcscnt purposcs.
Gcncral Srnui\ \uggrsred in ihc firjt inqtiinceih;it the mandates jy>tem should
apply only ta territories formerly belonging to Russia, Austria-Hungary and
Turkey. He expressly excluded the German Colonies in the Pacific and Africa
from his proposals.
As far as the first-mentioned grouo of territories wereconcemed, he suggested
that the League of Nations shoild & considered as the revenionary in the most
general sense and as clothed with the right of ultimate disposa1in accordance
with certain nrincioles. Thus. anv authoritv. control or administration which
niight be nccesary'in re\pcctof the icrritori& io irhich he intendcd the <ystem
10 3pply should be iheexcluîivc funciion ofsnd vcsted in the kdguc of Wïtions. ORAL STATEMENT BV MR. VAN HEERDEN 307
It should be lawful for the League to delegateits authority to some other State
and the degree of authority to be exercised by the mandatory State should in
eachcase be laid down by the League in a special act or charter, which, and this
is important, should reserve ta the League complete power of ultimate controf
and sunervision as well as the rieht of anneal to it from the territom or Deo~l-.
affected against any gross breacK of a mandate by the mandatory tat te.
In terms of these provisions, MI. President, administration of the territories
concerned would vest in the Leaeue which could entrust such administration
IO iiState. If this occurred, the ;\ci or charter appointing such Stüte had to
re5cn.e io the Leïgue complete pouer i~fuliimdie control as n,ell lis d right of
appe~l ru ii ïgliinit bruches of its obligations hy the hlandaiiwy. Thcre rdn
thui be Iitrledoubi. in our subniissiun. ihdi Gencral Smuts had in mind ih.ii ihc
Lcliguerho.ild hiivethe poi\,er to reifokea niandiitory'saurhority and Io appoint
another mandatorv in its nlace. In his oral address, the reoresentative of the
Organization of ~krican ~iity makes reference to ~eneral Smuts' monograph
in which, according to this representative, "he expressed the following opinion
regarding modificaiion of mandates" and he then proceeded to quote the follow-
ing extract from the monograph:
"In case of any flagrant and prolonged abuse of this trust, the popu-
lation concemed should he able to a~peal f.. redress to the League who
should, in a proper case, üs\crt ils 'iuihority to the fullcven io the extent of
renioving the niandaie and entrusting Irro sanie other Staie ifnecess:iry."
(Supra, p. 89.)
1would like to stress these words, MI. President-the League should "assert
~ ~ ~uthoritv to the full even to the extent of removinz the mandate".
Ni>wthe conteYi~ iiiuhich refcrcn;e u;is müdc to Generïl Smuii' nionograph
is of some signifi~.snce.1he rcprcicntarive of the Orgiini7üriun of Africiin
Unitv started off hv referrine t- an alleeed ohiection that since there is no ex-
press power of rcvostiii~n provided for under the LedgueCnvenünt, there could
therefore benoiniplied uo\ier, whish he nütiirally disniisscdas sornething uhich
cinnot be seriouily iaintained. This, of course, has certainly never been
South Africa's argument. We rely on the fact that there was no express pro-
vision regarding revocation in the Covenant or the mandate instruments, but
coupled with the evidence that the authors of the system did not intend such a
power to he implied; 'this included the fact that suggestions that the League
should he expressly so empowered were not adopted.
The reoresentative of the Oreani-ation of African Unitv nrocee. . to state
that the question whether the League had a power of revocation was not settled
during the lifetime of the League and he then referred to the writings of certain
iurist; which. he said. would~aooea.xto indicate that the Leaeue was-reearded -
as possessing such a power.
Reference was then made to the views of Quincey Wright and immediately
thereafter tn~Ci-n~-~ ~Smuts' monogr~-~~-In shis context and because of the
statement that General Smuts expressed the opinion contained in the quoted
statement regarding modification of mandates, the impression is created that
General Smuts was commenting on the mandates system as eventually adopted.
Now this is, of course, not the case. As already stated, General Smuts' pamphlet
merely contained proposais relating to an envisaged mandates system, a
mandatessystem,at that, which was not to be applicable to al1former enemy
territories, but was to exclude from its operation South West Africa and the
Asiatic islands to which Australia and New Zealand laid claim. This the rep-
resentative of the Organization of African Unity also failed to point out; inother words, that General Smuts did not intend the system to apply to al1
ex-enemy territories.
Itis, therefore, of primary significance that whilst the compromise which
was eventuallv reached included these three territories. or..ose. urovisions
relüiing tu thérevocation of a m3ndate and the appointnient of 3 new nian-
datory were rx~ludrd from the conipronti~e arrangement and also Iater froni
the Covenant and the mandate instruments. ~hisiignificance was also over-
looked by the representative of Pakistan, who also alluded to General Smuts'
pamphlet in support of a contention that the prospective mandatory States
were aware tliat the mandates were to be tevocable.
Mr. President, 1 rcvert nou 10 rhc cvents indiiûtive of the intention, uf the
authors of the mandates sjstem. Duringa discussion in London in Deiember
1918 hctiieen I'rcstdcnt Wilson and Mr. Lli~vdGeorce. the latter ~ointed out
that it would be quite impossible to separace southWest Africa from South
Africa because the former was essentially part of South Africa. The President
did not seem oreoared to contest this contention. but he exuressed the view
that the position of Australia with regard to the ~acific colonies was not quite
the same. Hereafter President Wilson proceeded to Paris where he drew up
a draft covenant in which he incorporated much of the thought and language
of General Smuts. In this draft, known as Wilson's First Paris Draft, it was
suggested that the mandates systemshould apply to al1 German colonies. The
President also orooosed that al1 authoritv. control or administration which
might be neces& in respect of the said territories should be the exclusive
function of the League. A right of appeal to the League for the redress and cor-
rections of any hreach of the mandate by the mandatory State was reserved to
the people of any such territory, and provision was also made for the confer-
ment of mandates on organized agencies, other than States, and for the sub-
stitution of mandatories bv the Leaeue of Nations.
Itis apparent, Mr. ~reiident, that the proposais of President Wilson and
those of General Smuts were almost identical. The onlv basic difference was
that General Smuts intended the mandates svstem not to aoolv to South West
Africa and the Asiatic islands whilst President Wilson inteidid his system tb
apply to al1 German colonies and that he also made orovision for organized
akncies to be mandatories.
The future of the German colonies was discussed as from 24 January 1919
in the so-called Council of Ten at the Paris Peace Conference. Prior to this,
President Wilson had nre~xr~X ~is Second Paris Draft which. as far as the
mandatessystem wasconcerned, didnot differ materially from hi; first draft Save
that it urovided that any exuenses of the administration of amandated territory
which could nor bc borne hy the rcsoiircss of the people or ierriiory iindcr ihc
chargc of 3 mïnddtory should he hornc hy the sci,eral 3ignatow poacrr. unles
the mandatow State or agenc-.was willing itself to bear the excess cost. This
propos31 \i.a,,~ofcourse, in kccping with hiinaiion ihat thc Ledguc wuuld cnjoy
the c~implctcpoiver of ultiniate control and hupcrvisiun of mandared territories.
Itis hardis necess3ry to say, Mr. Pre,idcnt, that these priipoials of President
Wilson wcrc no1 acceptable ta ihe other States concerned. Mr. Lloyd George
and the Doniinion Prime hlinisters conttnued to press for the annevation of
South West Africa and thc Pacifi; islands and Mr. Sinion. the Frcn~.hhlinister
for Colonies, for the ÿnncxation of the Camcroons and fogoland by France.
Ir wüs in the course of devcloping his argument ayainst the acceptdnce of I'resi-
dent Wilson's mandatorv svstem that MI. simon ~ointed out that every man-
date would be revocabléand that there would, thérefore, he no guarantee for
itscontinuance. Thus, he said, there would be little inducement for the invest- ORAL STATEMENT BY MR. VAN HEERDEN 309
ment of capital and for colonization in a country, the future of which was un-
known.
In his oral address, the representative of Finland made the following refer-
ence to the speech of Mr. Simon:
"It is intercstingICInute thdi Mr. Simon, Frcnch \lin~stcr for Colonies.
cmphasircd ai a nicetins of the Paris I'edceCunfercnce on 28Janudry 1919
that every mandate would be revocable and that there could be no guaran-
tee of its continuance" (supra, p. 75).
In this manner the imoression was created that Mr. Simonwasof theooinion
th31 niandiltes ivo(~ldhe rcvaxûble. The sdnic iinprcsii<in \r3s crcsted h) the
diitingut,hed representativc of Pdkisian who. in sJpport of hi.;cnntciition thlt
the prospective mandatories were aware that mandates would be revocahle,
also referred to the misgivingsexpressed hy Mr. Simon. It should consequently
be emphasized, Mr. President, that Mr. Simon's opinion was expressed relative
to President Wilson's orooosals. as contained in his First and Second Paris
. .
Drdfts, and in ille course an iirguinrnt iiitendcd to dcnionstrütc u.hy I'rebi-
dent Wilson'sproposdl, wcre ~ii3cceptable tu the Frcnch <;overnnient. In othcr
words. it was ~reciselv hecause in terms of President Wilson's orooosals man-
dates kould, ior one ihing, be revocable that Mr. Simon was not Prepared to
accept these proposais.
The Court rose ar 12.59 p.m. TWELFTH PUBLIC SITïING (26 1171,lO am.)
Present: [SeeSitting of 8 II 71.1
MI. VAN HEERDEN: MI. President, at the adjournment yesterday 1was
dealine with the events orecedine the conferment of the mandates with a view
to ascertaining ihc inteniions ofyhc authurs of the niandarc., bysrïm. 1rïfcrrcd
toaspccchm3dc by Mr. Sinion oi France, at the I'aris I'caccConfercnce, sihen
in develooine his areument aeainst the acceotance of President Wilson's oro-
posals, héstàted thG mandates would be re;ocable. 1showed how this siate-
ment has been quoted out of context by certain participants in these proceed-
ings, andIconcluded that it was precisely because President Wilson's proposals
relative to mandates would, for one thing, entail the element of revocability,
that Mr. Simon was not prepared to accept the same.
Similarsentiment were exoressed bv MI. Balfour of Great Britain. He oointed
out thar iiihe tenurc of thc rkindïton were mcrïly icmporary ilifficulriciiiuuld
arise, and he statcd thüt in hi\ opinion thc mündaies systeni could only uork
if a mandatorv was secure in his~termof office.
1have already referred to the meeting of the Imperia1War Cabinet, when the
compromise resolution, which was worked out by General Smuts, was consid-
ered: It is worth re~eatine that it was onlv after MI. Llovd Georee had con-
vinced the ~ustralian prime Minister, ~r~~u~hes, that a~lass ''& mandate
for New Guinea would be tantamount to Australian ownership of the island,
subject of course to certain conditions on behalf of the inhabitants, that MI.
Hughes notified MI. Lloyd George of his acceptance of the draft resolution.
The Smuts draft resolution was considered at the next meeting of the Council
of Ten. MI. Lloyd George then said that the document embodying the draft
resolution did not represent the real views of the Dominions, but that they had
accepted it as an attempt at a compromise. Consequently three classes of man-
dates would have to be recognized, the third category king described by MI.
Lloyd George as follows:
"Mandates applicable to countries which formed almost a part of the
organisation of an adjoining power, who would have to be appointed the
mandatory."
MI. Lloyd George consequently made it clear that as regards the Pacific
Islands andSouth West Africa,Australia, New Zealand and SouthAfrica would
have to be a~oointed as mandatories.
In the event, Mr. President, the draft resolution was provisionally accepted
and, with certain alterations and modifications which are not of any relevance
fororesent ourooses. eventuallv became Article 22 (6) of the Covenant
liis also ielêvantto refer to-a discussion between colonel House and Lord
Robert Cecil on 27 January 1919. In his diary Colonel House recorded that
there were some strone ooints of differencebetween the American draftsand the
drafi of Lord ~obcrÏCccil rïgarding, i,mr uliii,the leaguc of Natiuns, for
exiimple, upon the question whethcr or not ihc miindatory priniiple should be
aoolied to ihe Gcrman colonies. Culi~nclHou5c conrçnded ihdi the mandïiory
principle ihould apply to thesc coloiiics and Lord Kobert Cccil i\.iprcpiired 10
aciçpt ir, bu1he ohjcctcd IO the clause in Prc5idcnr Wilrùn'r propowls in tcrrnr ORAL STATEMENT BV MR. VAN HEERDEN 311
of which a territory could, by applying tu the League of Nations, ask for a
substitution of mandatories. Lord Robert Cecil thought that the Dominions
would not be prepared to accept such a proposal. The reference is Seymour,
The Iirtimate Papers of ColonelHoitse, Volume IV, page 307.
It was onlv three days later. on 30 Januaw 1919.that the Smuts resolution
-3s Pro~~~io~:i~laY doscd. This resolution ~"nstiiuted the corner-stonc of ihe
compromise bciween ihe conflicting points ofvicu,. Internisof ihiscompromise
I'residcni Wilson had io abandon certain of the exireme aspect>of his proposais
conccrning, for instanie. Leaguc suprcrnücy. The mandates iierc to beallocated
by the I'rinsipal Allied and Associiied Po\iers, no1 rhr. Leaguc and, 3s Faras
"C" mandates were concerned, the allocation would have to k to the adjacent
claimant States. But, Mr. ~resident, most important for present purposes,
President Wilson's provisions relating to revocation of mandates and suhsti-
tution of mandatories did not appear in the Smutsdraft and consequently also
found no place in Article 22 of the Covenant. It is hardly necessary to Saythat
this omission could not have ken accidental or fortuitous.
It is sianificant that onlv the remesentaives of Finland and Pakistan, in
thcir oral~ddrcsses. have sein Iii io kfcr ït a11io ihc events preceding the con-
ferment of the mandates, uhich evenis arc set out at lengih in Chïpier VI1of
our written statement. Thev did so verv briefl..and. .s 1have shown by quoting
not only out of context but also dirictly contrary to context. 1 have already
stated that the representative of Finland conceded that the intention of the
framers of the mandates svstem is an im~ortant factor in seeking to determine
whethcr man&aicsuere rc;,ocable or noi.1 have ilio iaid rhdr th: qualification
thar such intention is nui decisi\e is in dlrcci conflici uiih his cuncciiion thal
thea~~lieabiI1t~0~rul~5ofinicrnationaIlar~~rule~ raIxtionshipsmu5i bcdepen-
dent'ipon thejntention of the parties. In regard to the evenis relied upon by
South Africa the representative of Finland said:
"In my view, neither the travaux préparatoires concerning Article 22 of
the Covenant of the Leaaue of Nations nor those relatina to the Mandate
for South West Africa prove that ilwas intended to exclude thisimportant
power of revocation from the mandates system. In these travaux pripara-
&es there are quite contradictory indications to te found, as 1have al-
ready shown, and as emerges from paragraph 77 of Chapter VI1 of the
South African Government's written statement." (Supra, p. 82.)
This, Mr. President, is the sum total of the comment of the representative of
Finland on the travaux oréoaratoires. It will be observed that according to him
contradiciury indisaiions arc Io be found in the traruai pr~par~ro~rrs. as al-
ready shown by him, and lis enierges from the said paragraph of our ii,riiten
siaiemcni. If he really nieani "cunrrsdictor)" rhcrr.would of course be no basis
for implging a righi of rr.\ocation. He ihcrefore probably meant "cunrrary"
tu oiir contentions. tlur, hlr. Presidcni. tic <irelefi in the dark a\ io u,hat ihese
contriry indications are nhich are, in the uords of the rcprcïentaiiveoiFinland,
IO bc found in our \\,ritien siaiement. Presumsblg hc had in mind the propo>als
of Presideni Wilson rclating to the revocation of mandaies and the rubsti-
rution ofmandaiories, since ai the Paris Peace Conferencc nobody elsc indicat-
ed that in his vicw mandates sho~ld bc rcvoîdble. On ihç contrïry, dclegntes in
opposing I'resideni Wilson's proposdls pariicularly objecied to the idea of
re\.ocability and sisted thai in iheir ODinionthe icnure tira man&atcshould no1
b~~emnorarv. .f ~he~ ~ore.~ntative 8f~-~~~and~in fact intended to refer to the
disagreement bc1wn.n President Wilson and the reprcsentatives ofoiher States.
then, in Our respectful submission. he appears IO have missed the wholc point,312 .NAMIBIA (SOUTH WEST'AFRICA)
namelv the sirnificance of the fact that the exoress orooosa.s i. President ~ ~~ ~ ~ ~
Wilson's drafts rcgarding thc points iIre:idy meniionerl iiçrc poinicdly omiitcd
in the Sniuis re<uluiiun and in Ariiclc 22 of the Cuvcnant.
In the oassare uuoted from theoral statement of therenresentativeof Finland.
he also Said thache had already shown that there were contradictory indical
tions to be found in the travarrxprépratoires. We have read the verbatim record
of his statement verv carefullv. and the onlv other reference to the travaux
prc;p<irolntrc,\rhizh \cecould tind uas one io Ac spcezh of Ir. Siinginand wiih
\\hich 1ha\,e dlrîads dcïli. It 1scon\equcnily only nccessary to rcpcnt ihai Mr.
Simon, farfromexoressine his conceotion that mandates would be revocable.
explained that ~reiident ils son' sdeas were unacceptable to him precisel;
because in terms thereof mandates would be revocable.
As alreadv stated. the reoresentative of Pakistan stated that the .rosne.tive
nidnd~iory Stüies were s\rare rhdi manddics iio~ld bc revo-able. Hc s~id rhdt
the pri>ieJing> ot'the I'sris Pe:ice Confcrcnce fully rctlccicd ihis 2nd rcfcrrcrl
to remarks made by Messieurs Clemenceau, Lloyd George, Massey and Simon,
not al1of which appear to be relevant. It is true that MessieursLloyd George and
Simon stated that mandates would be revocable, but, Mr. President, which
mandates?
It cannot be over-emphasized that these remarks were made with reference to
President Wilson's proposals and not to the mandates system as eventually
adonted. It was oreciselv because of the fundamental obiections to his oro-
posals that a compromise was eventually agreed upon, a compromise in which
the elements involving revocability were deliberately deleted. How can it then
oossiblv be said. as did the reoresentative of inl land o aee 75....ora. that this
idci cïnnoi be inicrpretcd inf;v<iuroiihc vicu ihai iiidndstcs are not revozablc,
ihai ifwns prc~hahlyoiii <ifract iouards the nianddiury poircr, thïi [lie possi-
bilitv of revocation was not dealt with in the Covenant or the mandate instru-
ments, and that the power of revocation was tacitly understood?
Mr. President, this must çurely be one of the few, if any, occasions in legal
historv that it has been contended that a term must be imolied in a leaal rela-
t~oriship iihcn that \ers rcrni \r3sexprcsily propused, statc~noi Io bcacFcptablc
Io intcresied partlcs, and thcreîfier Jiscardcd in the finnlarrnngcment. Yet ihis
is precisely what the contention means. And why was tact necessary if it was
understood that mandates would be revocable? No tact was shown at the
earlier stage when revocability was Proposed and strongly opposed. And who
were the authors of the Covenant and the mandate instruments who had to
cxcriic tact towards the mandator) pouer,! Three of the [iveprincipal powcrs
wcrc in Fdctrnandaiorics, and one of iheni. Great Rritîin. ailcd un bchîlf of the
three Dominions. Thus. Mr. President. accordine to the reoresentative of
Finland, the mandatories were in effect iactful tow&ds themseives.
It is of obvious significance, as we pointed out in our written statement, that
there was ultimatelv a failure of the number of interrelated orooosals. oarticu-
larly those concerning powers of direct administration of mmdated te;ritories
by the League, or an organized agency, and powers of the League of substitu-
tion of mandatories-th& is. the.oower of revokine a mandate from a oarticular
nianJïiory and of üppoiniing ü neu mdndaiory.
IJlt11ii3ielythe Ieaguedid no1evcn haveconinil uvçr ihc iniiial appointnient
of niandiiiorier. As stüied in 1. ~3ra~rünh 23 of Chanter VI1 of our \\rirtcn
statement, "in ternis of a compromise that cornpetence was granted to the
Principal Allied and Associated Powers".
With reference to Ourstatement that the power of revocation would have been
of no avail without the power to appoint a new mandatory, the representative ORAL STATEMENT BV MR. VAN HEERDEN 313
of Finland did not endeavour to show that Our argument was not Sound, but
merely said:
"If it is considered that the League of Nations really lacked the power to
siihstituic anoiher Siate or itsclf in the performance of the functiom iftlie
rntndaiory. therc siill rcmdined the possibility of leiiving the appointment
ofnsiiccessorto thc I'rincioalAllicdand A\\oc~iitedPowcr\." .Su.ru,... 82..
Surely, Mr. President, this is just a vague speculation about a possibility
unrelated to any indications that such a possihility was ever contemplated, let
alone aereed uoon. at the Paris Peace Conference. One mav wellask if this is the
kind ofnrgum>nt ;n \!,hi<lithe Coiirr is asked to ni.ikc an implic~tiùn. Indccd.
the very ftci that the conipromi~cagreement provided for the nnndatorie> ICIbe
initially appointed by the Principal ~owers,~agroup for which no permanent
role was envisaged in the mandates system, without making any provision for
suhsequent appointments is, in Our submission, one of the consistent indica-
tions that the idea of substitutions or revocation was, in the end, firmly
excluded.
In the total framework, a most important feature emerges from the provi-
sions of the Covenant wherebv anv decision of the Council oertainina to a
. . -
parricular n~;ndatc rcquircd the agrcenicnt of. r,i/crolior.thc rcpre,entaiivz of
t mündatory Statc. Fùr itfolInn> th31 a dcc~s~onto revoke the mandde sould
not have been taken had the mandatorv onoosed such a course. Now. had it
ken the intention th31 ilmandate rhci;ld '& rcv<icahle 11 the insiance of the
Leapuc, itis indeed inconicivahle ihai the founders sf the 1-edguewould have
made it mechanicallv imnossiblefor this comoetence to be exercised in oractice.
In his oral addresi, t6e representative of Finland referred to Ouriontention
that a decision to revoke a mandate could not have been tdken against the will
of the mandatorv concerned. His onlv comment in this regard was:-"The wri-
teri, ho\iei,cr, are dividcd as IO the eniiicnie of such cipumer of veio. and ei,en
if itexisrcd. its abuw sùuld no1 bc ac~.epted." (Slipru,p. 83 J
Now. in a note to oaraeraoh 83. Chanter VII.~~ our written statement. we
submit;cd that in vie; ol';he jiidgnienis"1'this court and thc opinion. oi'indi-
vidual iudpcs in hùih 1962and 1966, IIcdn now he rcgiirdcd as scitleù Iiiithat
a decisionto revoke a mandate could not have been taken anainst t-e will ofthe
miindatory cuncerncd. It is ~onsequcnily difi;~It to undcrsidnd why the repre-
icntaiivc of tinland shuiild choose IO rcfcr IO the dividcd viciis of nriterh and
not to the pronouncements of this Court. ln its 1962Judgment, the Court, with
reference to the consideration of the annual reports by mandatories in the
Council of the League, said:
"If some Member of the Council had doubts on some point or points in
the report, explanations would he asked from the representative of the
Mandatory present. If the explanations were considered satisfactory,
a.nroval of the annual reoort would follow. Io either case the aooroval ..
meant the unanimous agreémentof al1the representatives including that of
the Mandatory who, under Article 4. oaragra.h 5,-~f the Covenant, was
entitled to send a reoresentative to such a meetine to take oart in the
discussion and to VOL.But if some measure propored to the Mandatory
on the recornmendation of the Permanent Mandates Commission in the
interest of the inhahitants of the mandated territorv and within the terms
of thc~iindatc and of Article 22 of the Covcn3nt sh;)uld bcoppai\r.db) the
Mandaiury. ircould not bc adoptcù by the Çounîil.. ..Lnder ihc unûni-
mity rule (~rticles 4 and 5 of the ~oveiant), the Council could not impose
its own view on the Mandatory." (I.C.J. Reports 1962, pp. 336-337.) The Council's ultimate lack of effectiveness would, of course, also have
rendered it impossible for the Council to revoke a mandate against the wishes
o~-~~-~~~~~~~v. The onlv loeical conclusion to be drawn fromthis is that it was
not the intention of the authors ofthe mandates system that the Council of the
League would be entitled to impose its will on a mandatory, be it in order to
~ ~o~ ~~ mandate or for anv other ouro. . whatsoever.
In irs 1966Judgmeni, ihc Ctiurt again cmphliiiïr.d thc rcquircmcnt of unani-
miry. On rhis ocia$ion, Mr. l'rcïidcnt, rhe Judgmrnr wds suppi~rrcd by scven
dilfercnt .Menibcrsfroni rhcsir uhojoined in or supporied the 1962Judàmcnr,
and nciihcr in 1962,nor in 1966.did iiny judgc indicarc disligrcement an rhc
point under considrraiion. In ils 1966Jurlpmeni, rhe Couri said.
"ln the Council, which themandatory wasentitled to attend as amember
for the ourooses of anv mandate entrusted to it. if not otherwisea member
.. .the;o& of the maidatory, if present at the'meeting, was necessary for
any actual 'decision' of the Council, since unanimity of those attending
wasthe basic votinz rule on matters of substancein themain Leagueorgans
... Thus there courd never be any forma1clash between the mandatoryand
the Council as such." (I.C.J. Reports 1966,p. 44.)
The Court went further and made it clear that the Council would have been
legally powerless if a mandatory had acted in conflict with the mandate itself.
In other words, the Council would have heen legally powerless not only if a
mandatory had acted in contlict with the views of the Council, but also if it
had acted contrary to the terms of the mandate itself. The Court said:
"The plain fact is that, in relation to the 'conduct' provisions of the
mandates, it was never the intention that the Council should be able to
impose its views on the various mandatories-the system adopted was
one which deliberately rendered this impossible. . .As regards the
possibility that a mandatory might he acting contrary not only to the
views of the rest of the Council but to the mandate itself, the risk of this
was evidently taken with open eyes; and that the risk was remote, the
event proved." (Ibid p.46.)
So, MI. President, what the Court said was that the authors of the mandates
system took the risk with their eyeswide oDenthat the mandatory could act not
o"ly contiary to the wishes of the ~ouncij, but contrary to the mandate itself,
and that the League and the Council would then be powerless. Obviously, if
the Council waslegallyempowered to revoke a mandate, it would not be power-
less. There can thus he no doubt that the Court in 1966was of the opinion that
the Council of the League did not enjoy the power to revoke a mandate and Was
never intended to enjoy such a power.
This. MI. President. renders the more astonishine the contention of the
repres&tative of palcisian to the effect that the prospective mandatories "with
eyes ouen" accepted that mandates would be revocable. This is to he found at
page 136,supra.-
The fact that the League did not enjoy the power to impose its will upon a
mandatory was also stressed by Judge Mbanefo. In his dissenting opinion in
1966, he posed the question how a dispute between South Africa and the
majority of the memhers of the Council as to whether South African policies
were in breach of the mandate provisions could be resolved. He gave the
following answer:
"The Judgment says that the Mandate provides no remedy for such a
situation and that it was a risk the League members took with their eyes ORAL STATEMEN~ BV MR. VAN HEERDEN 315
wide open. It seems to me that it was to meet such a situation that Article
7 (2) was introduced." (I.C.J. Reports 1966, P. 505.)
MI. President, it will be observed that Judge Sir Louis Mbanefo did not
question the Court's statement that the League as such would have been
powerless had a mandatory acted contrary to the wishes of the Council, or in
conflict with its obligations. However, he thought that the Members of the
League acting in terms of Article 7, paragraph 2, of the Mandate, as distinct
from the Leaeue itself. would have hdd a remedv in invokina the iurisdiction
of the l1rrn~a~cnt~i>u'rt.Dut. since he concedcd that the l.e~gtie 'iself would
hsve been powcrless, IIfolliius ihni he aas also of the opinion that the League
coiild nor have revokcd a mîndaie. I renedt. Mr. Presidenr. thüt if ihc Council
could have revoked a mandate, it would noi have been powerless.
1have already pointed out that no participant in these proceedings hasmade
any reference ta the passages in the Judgment of the Court in 1966and in the
dissenting opinion of Judge Sir Louis Mbanefo which 1have just quoted. It is
worth repeating that the only inference which can possibly be drawn is that
they agree that these passages cannot be reconciled with the notion that the
League enjoyed the power to revoke a mandate.
In view of the fact that the Court decided in 1962and again in 1966that the
Mandatorv could. in effect. have vetoed a decision of the Council relatina to its
administration of the mandated Territory, and that we drew attention chereto
in our written statement, stating that this resolved the difference of opinion on
this ooint between Judees Klaestad and Lauteroacht in the 1955Ooinion, one
wouid hardly have expected a participant in theie proceedings to rely upo" the
views of Judge Lauterpacht without dealing at al1with the Court's 1962 and
1966Judements. Yet. this is exactlv what the reoresentative of Pakistan did.
Apart faim relyinr on the vieus of Judgc ~aute;~azht, hc also sîid thai the
notion ihai a manddtory iùuld hai,e,so ta spcîk, i,ctoes dezision of the Coun-
cil is in conliici uiih the decision of the Permanent Courin the blo~rrlclise.Ko
reference was made by him ta the Judgments of this Court in 1962and 1966.
This is to be found at page 138,supro.
We wish to repeat OUI statement that it can now be accepted as settled law
that a mandatory could, in the words of the representative of Pakistan, "have
frustrated a decision of the Council of the League". However, it may be as well
to ooint out that the relevant views ofthisCourt in 1962and 1966do not in fact
ru" counier to the Advi,ory Opinion of the Permanent Court in the Afosulcase.
Inthi~ case the Perniïnent Court was not concerncd u,iih an inlerpretation
of the Covenant but with the intemretation of the Treatv of Lausanne. It was
because of the special competence of a judicial characier, which the Treaty
bestowed upon the Council, that the Court eventually decided that the States
concerned could not exercise a vote in the Council of the League. (P.C.I.J.,
Series B. No. 12, p. 32.)
Judge Klaestad referred ta this fact in his separate opinion in 1955 when,
after concludinrr that bv virtue of the oravisions of the Covenant South Africa
as rnandaiory \\.tsenti~led io be represented trith voting potier when theCoun-
cil considercd matter, rclating to South West Africa, he said, with reierence Io
the Mosul case:
"The orin~~7le enunciated in that Advisorv Oninion. namelv. that 'no
one can he judge in his own suit', was found tobe'appliiible in ;,iewof the
special competencc which was conferred upon the Council of the Leiigue
bv the Trcaiv of Lausanne of 1923-a comoetence of a iudicial charncter
tg give a définite binding decision in a particular dispute between two316 NAMlBlA (SOUTH WEST AFRICA)
States with regard to the final determination of a frontier." (I.C.J. Reports
1955,p. 86.)
Mr. President, it must surely be obvious that the principle that nohody may
be a judge in his own suit cannot be of application if it was not intended to
a..ly..and that this was the intention of the framers ofthe Covenant isaooarent
from the provisions of the Covenant in terms of which a non-membei.0~ the
Council was entitled ta participate in the vote on a decision affecting the in-
terests of such non-member.
1come now ta another argument ta which there has been no response what-
soever in these proceedings. In paragraph 85 01 Chapter VI1 of our written
statement we point out that as far as "C" Mandates were concemed there is
an additional reason for concluding that the Council did not have the power
ta revoke the mandates falling in that category. During the discussion of the
Council of Ten stress was laid on the contiguity of the Pacific Islands to Aus-
tralia and New Zealand and especially of South West Africa to South Africa.
Thus, on 24 January 1919, the British Prime Minister, MI. Lloyd George,
pointed out that South West Africa was contiguous to the territories of South
Africa and went on to say that there was no real natural boundary. On 28
January 1919,he again stressed the contiguity of the Pacific Islands and South
West Africa to the territories of the Dominions which laid claim to those
colonies. This contiguity, according to MI. Lloyd George, suggested that the
territories in question "should form an integral part of those countries".
In addition, the decisions of the Imuerial War Cabinet that the Dominions
might annex the territories concerned,and the fact that they felt very strongly
about it, were further points to overcome in order to reach the compromise
solution.
When discussing the Smuts' resolution, Mr. Lloyd George said that three
classes of mandate would have to be recognized, the third category being
described as "mandates applicable to countries which formed almost a part of
the organisation of an adjoining power, who would have to be appointed the
mandatory".
When regard is had ta the formulation of the Smuts' resolution and ta
what MI. Lloyd George had said, there can be no doubt that the Pacific Islands
and South West Africa would be territones ta which the third category of
mandates would apply, and that South Africa, New Zealand and Australia
would have ta be appointed mandatories. I wish to repeat the words "who
would have to be appointed the mandatory". Surely, Mr. President, these
words are inconsistent with any notion that at a future date some other State
might be the mandatorv of .h~ ~~rrit~ries~-~~~~rned.
The conception that the Dominions would have to he the mandatories was
expressly fomulated in paraaraph 6 of Article 22 of the Covenant which reads
"There are territories, such as South West Africa and certain of the
South Pacific Islands. which. owine to the soarseness of their oooulation.
. .
or thcir srna11sue, $1;thcir ranoieiew from the ccntrcs oici\ilisaiion, O;
thcir geogriphical conti$uiiy to the territory of the \lïnd<itors, and oiher
cirr.umsrïnces. ian bc bcst ûdn~inisiere-iundcr the laus of ihe Manditory
3s intcgr~l portions of ititcrritory, suhject 111the safcguards ah<i\e iiirn-
tioned in the intcrests <ifthe indigcnous population."
In tieu, of ;il1thisit is inconceiv~hle that the franiers of the Covsnani ci)uld
have inicnded that the niand;itoricc in respect of the territories concerncd coiild ORAL STATEMENT BY MR. VAN HEERDEN 317
ever beany other Statethan the three Dominions. Therefore evenifitisassumed
for thepurposes of argument that the Council did enjoy the power to revoke
an "A or "B mandate, we submit that there can be no doubt whatsoever
that it was not intended that the Council should have the uower to revoke a
"C" mandate and to substitute a new mandatory. 1 repeat, ~r. President, not
a single one of the participants inthese proceedings has even attempted to
meet this argument.
Reference should also be made to paragraph 8 of Article22 of the Covenant
which reads as follows:
"The degreeof authority, control, or administration ta be exercised by
the Mandatory shall, if not previously agreed upon by the Members of
the League, be explicitly defined in each caseby the Council."
Thc dcgrn: or cxtent of authority, control or administratioIO be exercised
by a mandatory necessarily had to bc difirent depending on u,hethcr or not
the League had the power to revoke a mandate, and the difference would bea
rather substantial one. Since such authority, control or administration had to
be explicitly, and 1emphasize the word "explicitly"defined by the Council of
the Leaaue in the mandate instruments. there can. in the absenceof exnress
pro\,isioi in the mandate instruments for revoc~ti;n <if mandates, hardi). be
room ior an implicd term conferring such potier upon the League. The very
notton of an chplicil delinition milit3tcs ïgainst the possibility of introducing
an implied terni. The rensonuhy the uord 'e~plicitly\vasuscd in paragraph 8
of Article22 of the Covenlint seems obviaus: the frïmers of the Co\engnt
wished to leave no room for doubt regarding the degree of a mandatory's
authority, controlor administration and, as aecessarycorrollary, the powers
of the League.
Various oarticinants in these uroceedines have referred to the views of
publicists aiid juhsts regarding the revocability of mandates. We dealt with
such views in paragraphs 89 to 95 of ChapterVI1 of our written statement and
pointed out that conflicting views were held by writers and commentaton.
We divided these writers and commentators into three groups, namely those
who held the view that the League had a power of revocation, those who ex-
pressed the oninion that if the Permanent Court had ruled that a mandatow
had acted in breach of its obligations the Council of the League could havé
revoked the mandate, and those who held the view that the League enjoyed
no power of revocation.
As regards the wnters who fall into the first group, we pointed out that by
far the majority of them gave no grounds for their expression of opinion and
that they made no reference whatsoever to the relevant historical eventspre-
ceding the conferment of the mandates. Furthermore, not one of the writers
falling into the first group madeany distinction betwe"A" and "B mandates
on the one hand. and "C" mandates on the other. Nor did thev attemut to
explain how, if the Leaguecould havc revokcd the mandate. a ne; manditory
could havc beenappotnted, ur huw the provisions of Article 22 of the Covcnant
relating to the special circumstances of territories und"C mandates could
have been appl&ble to such a new mandatory-for instance, geographical
contiguity and attendant factors.
Here again, Mr. President, we find that participants in theseproceedingshave
made no atternpt to question the correctnessof Our exposition. With the excep-
tion of the representative of Finland, the participants who referred to the views
of authors and commentators mentioned only those whose views support con-
tentions advanced by them or theirgovemments in their written statements and318 NAMlBlA (SOUTH WEST AFRICA)
oral addresses, and they made no attempt to deal with puhlicists and others
who advanced different views.
Reliance was placed on the views of Quincy Wright in Mandares Underthe
League of Nafions hy Nigeria in its wntten statement (written statement, 1,
pp. 892-893).and by the representative of the Organization of African Unity
in his oral address(supra.PD. 88-89).In the oassane relied ..on. Wri-ht merelv
stated thüt ihc pouer of the ie,,gu10 appoint a new inandatory, and dismi&
3 mandaiory, may be implied from the Covenani iisscrtion thal ihc mandatorie,
act on behalf of the League. He made no attemnt to analvze the relationshios
between a mandatory and the League or to determine the intentions of the
authors of the mandates system from the events preceding and surrounding
the conferment of a mandate
It should be pointed out, however, that in a later paragraph of his book he
appears to have introduced a qualification to his former expression of opinion.
At page 521 he said:
"The members of the Permanent Mandates Commission have generally
assumed that a power of revocation exists in case the mandatory violates
his agreement but recomize that the eeneral orocedure of thé Leaeue
would have to be resorted to. Articles 1: and 14of the Covenant, in &n-
nection with the cornpromissory article in each of the mandates. would
require decision by the Permanent Court of International ~usticébefore
action could be taken. If the Court decided that the mandatory had
violated the mandate, and its decision were not ohserved, then the final
' paragraph of article 13 of the Covenant would become applicable. 'The
members of the League agree that they will carry out in full good faith
any award or decision that may berendered and that they will not resort
to war against a member of the League which complies therewith. In
the event of any failure to carry out any such award or decision, the
council shall propose what steps should he taken to give effect thereto'.
The Council under this article and under its specific supervisory powers
over mandatories would seem competent to transfer the mandate."
It seems, therefore, that Wright was of the opinion that hefore the Council
could revoke a mandate and appoint a new mandatory, it would have been
necessary for the Permanent Court to decide that the mandatory had in fact
violated ils obligations.
1might point-out, MI. President, that Wright was one of those writers who
expressed the opinion that a mandatory would not have heen entitled to exer-
cise a vote when the Council was about to take a decision relative to its ad-
ministration of the territory concemed-this is at page 522. In view of what
has already been stated, Wright's expressions of ooinions can hardly he ac-
corded much weight.
In the written statement of the United States, at,page860,relianceisplaced
on the views of Professor Verzijl and Dugard, to which reference is made in
our written statement. Chaoter VII. resnectivelv in n.razr-.hs 69 and 90.
WCreferreil tu ccrt~in relevafii remarl\s of ~rofessor Verzijiiliyp1~31example
of the fiicileiipprodch uf hy Farthe in3juritof uriters u,ho have ehpressed the
opinion that the League was legally empowered to revoke the mandate. It will
be recalled that Professor Verzijl did no more than to asseri that:
". ..it was reasonahle to hold that the Leanue should have a Dower to
revoke the mandate should the mandatory fail to discharge its duties or
should it act against the fundamental principleî of the League". ORAL STATEMENT BY MR. VAN HEERDEN 319
We furthermore oointed out. Mr. President. that a concenti~n~ ~ what is
rcasondhle and as io \\ha1 should k, çannot seme as n subsiirute for historical
and legiil;inalysi, and ae referred Io the Court's rejcction. in ils 1966Judgment,
of an argument introducine necessitv as a factor in ascertainine what the-riehts
of the Gague Members wire. It ishardly necessary to say that if a power to
revoke the mandate cannot be implied because of the necessity that the League
should be so empowered, it follows afortiorithat the power cannot be impfied
on a basis of what is or is not reasonable.
In his oral address, the representative of Finland conceded that the views
of writers with regard ta the revocability of mandates were divided. He then
said:
"1 confine myself to noting that in its list of those in favour of the re-
vocabilitv argument theSouth African Govemment has omitted to mention
une of thc &sr knoun urircrs, Paul Faushille, circd by niy Giivemnient
in ils arirten sintenicnt, alihough his naine is includcd in ïnaiiher passïge
in the South African Govemment's written statement rather as an op-
panent of revocability." (Supra, p. 83.)
Now, Mr. President, in the first place, we never suggested that Fauchille
was, in the words of the representative of Finland, an opponent of revocability.
Our only reference to the viewsof Fauchille was in ~aragra~h66of Cha~ter VIT
of our \,ritien stlitemcnr, where ue siatcd that hc.p<iiniei out the rcason uhy
Gernian uriierï rcadily accepied a potier of the Leaguc to rcvokc a manddte
iittiill, th31IS,~rreipc~tiv~of \iheiher a ni3ndïti)ry had acied in brcach of ils
obligations. This reason was because Germany-oÏ certain German writers-
intended that Germany should be appointed mandatory in respect of former
German colonies.
In the second place, and more important, it is not correct that Fauchille
was of the opinion that the Council had a unilateral power of revocation of
mandates. As we understand the passage referred to in Finland's written state-
ment. Fauchille reearded as necessarv the consent of the Princioal Allied and
Associated ~o\ier;and hc fiirthcrm~rc considered that ihc m.indïtor) Poiicr
uould ha\e a right of rccour\c IO the Permanent Court of Intern3tiondl Jusiice
to test the revocation
Siipgcstions ha\e kecn niadc hy certain participants thai discussions in rhc
Pcrmsneni Mandates Commi>iion support the propuiitii~n thal ira niandïti~ry
breached its oblieations. the Leaaue would be emÜoweredto revoke the man-
date. 1refer to the written statement of the ~nitèd States, 1,page 858,and the
oral addresses of the representatives of the Organization of African Unity
and Pakistan, supra, page 88 and page 138.
Now, Mr. President, it is certainly not true that this was at any stage the
unanimous or even general view of members of the Permanent Mandates
Commission. We dealt with this topic in paragraph 94 of Chapter VI1 of our
written statement where we referred to a memorandum presented by Lord
Lugard to the Commission in which he concluded that, although a mandate
could be revoked in the event of a eross violation thereof. such a revocation
might, for practical purposes, be regarded as inconceivable. However, in the
ensuing discussion, Mr. van Rees stated that the possibility of unilateral
revocation "did not reallv exist either in law or in fact". With reference to
these siaicnienrs, ticpointed out thni roo muçh imporiance shi)uld not be ar-
tached 10 ihcni rince thcy did noi proless to be hased on a lefal analysir of the
mandates systemand itsorigins, but wereinessencemerelyspeculations directed
ta the ahstract hypothesis of the revocability of a mandate.320 NAMIBIA (SOUTH WEST AFRICA)
The representative of Pakistan also pointed out that certain publicists fa-
voured the view that a mandate could be revoked by the Leaaue. He then went
on to rely on two decisions of municipal courts, R. v. ~l~ristia~ ,South African
case, and In Re Tamn~assee , New Zealand case (supra. p. 138). In the latter
case, the Court in a cryptic passage stated that if New Zealand were to fail in
its obligations to the Samoan peoples, the League would take steps ta take away
the Mandate. This was said after it was stated that New Zealand acted as a
trustee for the League. We have already given reasons why, in our submission,
rules of municipal law relating ta, inter alia, tmsts do not govern the mandates
system. Indeed, as was pointed out, this Court so held in its 1950 Opinion.
It is also important to note that the New Zealand court does not appear to
have made anv attemnt to ascertain the intentions of the authors of the man-
dates system in this Point.
As regards the South African case,'R. v. Cllristian, the representative of
Pakistan merelv said that two iudees raised the issue of the rieht of revocation
~ ~ ~ ~ ~ ~ ~
and thar neither denied its cxi\.tcncc. It1sdillic~lt to understand trhy rsfercnu:
UJS made bs hini to this case. The tiiiiudres concerned stated that it \vas no1
necessarv to-decide the issue and conseauentlv e,nresr ~ ~ - ~inion either wav: . ,
in olherkords, Mr. President, they neiiher denied nor affirmédthe rivocability
of a mandate. If anythina, this implicitly recomi-ed that research was necessarv
in order to answerthe question.
In the written statement of the United States, at 1, pages 858-860, heavy
reliance is ~laced on the work of the Institute of International Law. and
pdrticularly on 3 resolution on mandates adopted by the Institute. -,hich. in
the words of the Anieriwn Statement. "alfords %,aluable and persuasive evidençe
that in the \,iew of the leîdina jurisls of the dav the Leaaue hïd the nouer Io
modify a mandate when thé-mandatory ~on,er breached its intemational
obligations under the mandate agreement" (written statement of the United
States, 1, p. 858.)
Now, Mr. President, the exposition in the statement of the United States
of proceedings at the Institute's Cambridge Session in 1931, and events pre-
ceding it, may be summarized as follows:
Firstly, in 1928, Professor Rolin, who served as rapporteur on mandates,
submitted a report in which he stated, inter alia, that a mandatory's rights
could be revoked in a case in which a mandatory had gravely violated his
obligations.
Secondly, in 1931,the Institute debated a revised proposal which referred to
the discharge of a mandatory.
Thirdly, in the ensuing debates, Professors Rolin and Verdross justified the
revocability of mandates on an implied term and on the application of the
ordinary rules of international law governing treaty relationships.
Fourthly, in a separate vote to decide whether the word "revocation" should
be retained in the proposed text, the Institute decided by a substantial rnajority
to retain Professor Rolin's text.
Fifthly, in a subsequent roll-cal1vote on the resolution as a whole, no member
of the Institute cast a negative vote.
Now, Mr. President, althoughthe exposition of the United States is, generally
speaking, a true version of relevant events, it is, in Our submission, necessary
to have regard 10 the nature of the work done by the tnstitute, and of its pro-
ceedings generally, in order ta evaluate the proceedings at the Cambridge
Session and the decisions there taken. One must look, in the first instance, at
theobjectives and theusual modusoperandi of the Institute. In this regard we
may refer to Article I of its Statute as it existed at the time of the Cambridge ORAL STATEMENT BV MR. VAN HEERDEN 321
Session in 1931.This article, inter alia,expressly provided that the purpose of
the Institute was to stimulate the nr.ereu~ of international ~~ ~~ ~ ~indeed. -.--
Mr. I'resident. ihc ~\CI-r..iing dspeci of the irork olthe Inriiiiiie \vas dircctcd
tu deinonsir:iiinp ho\\ international law should or oughi IO develop in the
fuiure. In short. the Insriiute nurmally did nur express ilseli</r /<,gr/ara b~rde
legeferenda.
Professor Paul Guggenheim, a memher of the Institute, has emphasized this
strongly:
"Some scientificassociations which occupy themselveswith international
law do not have the purpose of studying the positive law; they interest
themselves in the first place in questions de legefererrda. Their resolutions
have often served as a basis for new collective conventions. Here is to be
mentioned in the first place the Institute of International Law, founded in
1873and the Yearhooks of which have a great value in that field." (Traité
deDroit InternationalPublic, 2nd ed. Vol. 1,p. 320.)
Here is evidence, MI. President, that the lnstitute of International Law was
not so much concerned with the existing rules of international law at any
particular time; it concentrated on the future development of international law
through conventions and the like.
Now, of course, in considering how the law should develop, regard was also
had to existina vrincides. but. Mr. President. and this is imoortant. when one
has regard to the work of the~nstitute and th viewsexpressid, the brobahility
always is that members of the Institute, whether in taking part in the debates
or whether in voting for a suecificresolution. intended to exnressthemselvesas a
matter of delegeferenda raiher than deIegelata.
In his opening address at the Cambridge Session of 1931the President of the
Institute, Professor Alex Pearce Higgins, made the following observation in
regard to the work of the Institute:
"As scientific jurists we examine the old rules in the light of modem
conditions in order to realize for ourselves the necessary reforms to assure
a legalsystemwhichwould facilitateagreement hetween nations" (Annuaire
1931(translation), Vol.2, p. 24).
It is in the light of the considerations already mentioned and of further
considerations to which 1will refer that one has to approach the discussions at
the Cambridae Session relative to the issue of revocahilitv. A studv of the
Kolin reportun.l the Cümhridge debates rcveïls ihat ~rofc;\i>r ~oli" hiniself
and pïriicip~nt memhcnofihe Insiitutccmbarkcd on 3ver? icniaiive discusiun
of mandate termination and also deliberately evaded crucial issuesin the expres-
sion ofrather divergent views.
The statement of the United States focuses attention only on the debate
between Professors Rolin. Verdross. Borel and Politis. It is. however. necessarv
to have regard to the general tenor'of discussions and viebpoints O" mandace
termination in order to obtain a clear picture of the divergent attitude of
members of the Institute.
At the outset of thediscussionsregarding the revocation of mandates, Pro-
fesser Wehberg stated that the League Council had the power to revoke a
mandate whether or not a mandatory had committed a grave breach of its
obligations. Inother words, MI. President, the League had thepower, according
to Professor Wehberg, to revoke a mandate at will.
Professor Verdross did not agree although he conceded that, according to
general principles of international law, the League might have the power to322 NAMlBlA (SOUTH WEST AFRICA)
revoke a mandate in cases of breaches of obligations on the part of the manda-
tory (ibid.,p. 64).
Yet another point of view was put forward by Sir Fisher Williams who
declared that de lege lata it was impossible for him to admit that the Council
of the Leaaue could extend the dearee of its suoervisorv oowers to the ooint
of pronouGing arevocation of a mandate withoui theconsent of the manditory.
By referring ta the fact that in the subsequent roll-cal1 vote on the Rolin
resolution as a whole, no member of the ~nstitute cast a negative vote, the
United States apparently seeks to create the impression of an overwhelming
consensus amongst the members of the Institute. A consensus, moreover,
relatine to the existina law of the time.
~owever, Mr. ~reiident, when regard is had to the extreme viewsexpressed
by, for example, Professor Wehkrg, it seemsclearthat amongthe members who
voted in favour of the resolution. in total 38. there was a marked difference of
opinion as to the basis on whLh a mandate could or should be revocable.
Furthermore, among the members who abstained. 18 in all, some were in
cuinpletc disagreeme~t i%,iththe majoriiy i9ic!i,The faci that aniongst membcrs
of the Institute an abstention vcr).often amounred to a complcre d,siigrecnicnt
with the prupowd resolution, niay be illustrared by the fact that Prufcssor
Dienciret'usedto \,ale for the Rolin drafi sincIIc<int<iincdthe fi~llo\iingphr<i\c:
"The cullecti\~iticsIthat is the poiples] under riiandnte are subjeit, of intcrna-
tional Iiiw" (tr~iislütion). Thii [)i)rtiun of the re>dlution \\as a, a militer of de
lege lata indeed untenable, and-serves ta emphasize the academic nature of the
Rolin proposais.
Dunng the course of the debate, Professor Borel stated that a decision by
the Council revoking a mandate, in order ta beeffective, would have to he
taken unanimously. Since it would be impossible to obtain the mandatory's
concurring vote, the proposed sanction would, according ta him, remain
without effect. Thereafter, Professor Seferiades proposed that any decision by
the Council of the League relating to the revocation of a mandate should be
taken with the exclusion of the mandatory State concerned (ibid., p. 58).
However, Mr. President, Professor Rolin was hesitant to go into this matter
and, after a discussion between Professors Seferiades and Politis, the former
decided to drou the proposal which he had made. It seems reasonably clear
that thispropoial didnot relate to the existing law, but was rather mekt to be
an expression of opinion as to how the League should function which would,
of course. have entailed an amendment of the Covenant
Mr. President, it shoiild be rmphasi7cd that the Yearhookrof the Instiiute
do not contain a i9crb<irimrecord of the Jehate$. In fact they contain only very
short summaries of what was said hv different memkrs of the Institute. It is
therefore, not possible to ascertain irom these very short summaries whether
any specific member of the Institute, when he expressed an opinion, intended
to ex~ress himself de leae lata or de lepe ferendor However. ~r. President. in
vieu ;if ths gcneral nît"re and icope of the urork undertakrn by thc Institute,
and to jvhich 1 hait alrcady referrcd, the probabil.ty ii thai alsu Juring the
Cambridge Se5sion tihcn the Icolin propiisal \%asdchated and the resolution
u,as eveniually adoptcd. the niemhcr; of the Inrtitutc. hoth uhen dcbating the
issues and when vsting fdr the resolution. intended to cxprcsç themsslves as a
matter of de leae ferenda rather than de leae lata. We do not sav that some
mcnibcrs of thclnstitute niight not have expkssed an opinion as toihe position
drlt~~r/ois. We do conrend, houevcr, that ihe relcvünt dehates 3re inconclu~ive
asto whether the majority was of the opinion that as a matter of the existing
law of their time, the League enjoyed a power of revocation. This conclusion ORAL STATEMENT BY MR. VAN HEERDEN 323
is fortified by the further consideration that it does not appearthat the members
of the Institute made any examination of relevant expressions of intention by
the authors ofthemandates system.
A notable feature, Mr. President, is the attempt during the Cambridge
Session to focus attention on the aspect of the unanimitv rule and to whichI
have alresdy reierrcd. 1hsr,e nientiùned thai thc poini uas rdixd by Pr,ifessor
Borel and thst e\rni.tally ihe pruposdl \vas drdpped. One coiild h3rdly bar a
better indication that the eminent iurists were not seriouslv direct i-^their
effortsst rtaiing \vh~i the existing Iaw ua,. bui :ilrchpeciivc refurrns.
1 tiaiyalrii point out, Mr. Prerident, thit to\i>rds the end of the Ctimhridge
debates, Professur Kolin suggested thar his Iasr and ail-:nipuriant dr:iit article
rclativc tu the queitiim of s<i\,ereignryover the ierritories under nisndiite
shoulJ itut be JiscusseJ bccauie oirhr rinie-factor. '1his wr,,es10 slior*rhat the
discussions of the Institute. althouah obviouslv of high scientific.uali.r. did not
purptiri tobf a thoroughc'.;aminaÏiti<inby juriiis ofihe po\iiii,e Irw of the time.
.\IrPresidr,nt,it isofsomesignifi~~3nceihai nup3riicipant inihçscprucccdinçs
has made reference to the serhus studv aiven to the mandates svstem bv the
Inter-Parliamentary Union as from its >Ofhsession in 1922.It ishardly neces-
sary to say that this Inter-Parliamentary Union consisted mainly of members of
varliament from France and Great Britain.
We pointed out in paragraph 95, Chapter VII, of our written statement that
during its 22nd Conference in 1924,the Union adopted a resolution recommend-
ine that the Assemblv of the Leaaue be emoowered to modifv and revoke
mandates. This recomrnendation was obviousiy based on the asiumption that
no organ of the League did have the legal power to revoke a mandate.
MrlPresident. in our resvectful submission. nothina ha- been said in these
proceedings, either in the written statements or the oral addresses, which in
any way impairs the following conclusion set out in Chapter VII, paragraph 97,
of our &ritien statement. that is. that neither Article 22 of the Covenant nor
the niandate insirutiicnt\cont;iin any pri)\,isit>n.exprers or itiiplied,emponering
the Ledsue IOrevokc a riiandate anJ ciiher to .issunie pouers ufadniinistration
itself orio aovoint anothermandatorv: that there isnoobiective leaal orincide,
the applicat&n of which could have Gnferred such poweis on the Leigue; that
the weight of scholarly opinion favours the view that the League did not enjoy
those powers, and th& dicta in the relevant Judgments of the Court and in
opinions of individualjudges strengthened theseconclusions.
In conclusion on this part of my agreement, it is necessary to correct a
wrong and misleading statement made by the representative of the OAU in his
oralstatement :
"Another objection has been raised, that although this Court ruled in
1950 that the uowers of control and suvenrision of the Council of the
Lcague had pdscd tù the Gcncral ~sscmbl? of the United N.iiions. the
Gcner:il As\ernbly did nin adopt resolution 2145 hy the unrriimity rule
\<hich the LecicucCouncil u,ould have hcid to follou in order for such a
resolution to bevalid." (Supra, p. 90.)
MI. President, such objection has never been raised by South Africa. We
never contended that resolution 2145 was not validly adopted because it was
not unanimously adopted.
Presumablv the reoresentative of the OAU intended to refer to the written
strienient ofkrüncc.'lf so, ihe quotrd srarenient is ba\ed on a niisinterpreiation
of ihc French argument. Frsncc concludcd in itc wriiien siaienient ihai the
Gcnrral A\sernhly iiasnoi leg3IIycnipowered IO re\i)ke the Manddte fairSouth324 NAMIBIA (SOUTH WEST AFRICA)
West Africa. One of the reasons assimed for this conclusion was that the
Covcnant dld not confcr on the ~uuncil of ihs League the potier tu retokc a
mand~te, aiid ihdt such a puwer cünnot bc implied since ilwuulil have ken
necessarv, if such a Dowerwere to haveanv oractical effect.forexoress orovision
io bc niübe furderiiS:ition irom the uiiani&i;y rule <$,hipievailci in th.~oiincil
and in the Asseiiibly(\vrittcn statr'iiie1,p. 366).
It is conseauentlv clear that France did not contend that resolution 2145 was
invalid becaüse the General Assembly did not unanimously adopt it, on the
contrary, the argument was that the General Assembly had no power whatso-
ever to revoke the Mandate since the Covenant did not confer on the Council
of the League, either expressly or impliedly, a power to terminate a mandate.
Reference was made by France to the unanimity rule merely to counter any
argument that such a power could have been implied.
1turn now to a consideration of the argument advanced by the representative
of the Netherlands relative to the two issues under consideration. that is. the
questions whether the United Nations could have succeeded to thesupervkory
powers of the League of Nations without fresh consent on the part of a manda-
tory and whether the League enjoyed a Dowerof revocation. The reasons whv
his;rgumznt un buth issues isca>~~idcrcdcepariitc hlavcalread!. bcen indicaied,
the main rcswn king that hisno\.elapprolich forrni rhc hasis for hisconicniions
in regard to bath issues.
The argument of the representative of the Netherlands may, we think fairly,
be summarized as follows:
Firstly, the introduction of the mandates system necessarily implied a depar-
ture from the classical rules of international law~beca-~-~~~~--~ ~oostulated the
independent status of two sorts ofpotesfates then not recognized ininternational
law, that is, on the one hand the individual human heing. in particular in the
exercise of his right of collective self-expression, and Onthe other hand, the
international organization, in particular as expressing the collective will of the
world community. Consequently the rights and obligations in respect of
mandated territories are no; govirned by;ules applicabïe to treaties. -
Secondly, the rulesto be applied to the mandates system cannot bederived
from either a teleological interpretation of a treatv or an interoretation in
accordance with the will of the parties, but only on the hasis of considering the
legal character of the decisions taken by States in the light of legal premises on
which those decisions were based.
IhirJly. u,hcrcas in ihc case ofan ordinary irediy any gap Içfi by the te31of a
tredt). and ils interpretation is ncccssrily iillçhy the sovcrcigiity uf the States
concerned, in the case of the mandates system such procesi is excluded and
solutions must imply some form of powers to be exercised by the organized
international community.
Fourthly, the essential characteristic of the functional aooroach to the
mandatcs;sstrmlics Iniisadapiahilit). tochangiiigsircumstance~:~ionscqucnce
of which i.that the potrers of the organircd comrnunity of Siaie,, a1anv iinic,
must be exercised through such international organizations as at that time
represent thecommunity of States.
And lastly, a further consequence is that an adaptation of the modalities of a
mandates system is not a matter of applying a sanction to a violation of obli-
gations but rather a measure taken in order to serve the final purpose of the
system in view of an unforeseen development in the factual situation.
This then isa summary of the contentions of the representative of the
Netherlands.
The Court adjournedfrom 11.20a.m. fo 11.40 am. ORAL STATEMENT BY MR. VAN HEERDEN 325
With regard to the fint point made by the representative of the Netherlands,
it is indeed welcome to find that in these oroceedine- there is a .~~nt o~~wh-~~-~
another representative appears to agree with Ourown views. In considering the
argument that the principle that an innocent oarty may revoke a treaty in the
case of a material breach bv the other oari. . . .~licable to man~ ~~ ~ ~ ~ ~ . - ~ ~
stressed that the mandates system was anovel institution, a suigeneris institution
in international law, and that there could conseauentlv beno iustification for
automatically importing into the system principlès applicable (O other institu-
tions of international law.
1 furthermore stressed that such principles could be applicable only if the
authors of the mandates system intended them to be applicable and that it was
therefore necessary to ascertain what their intention was. Now, the represen-
tative of the Netherlands also contended that the mandates svstem. beina a
novel institutiun. could noi k govcrncrl hs ardiiiliry riilcs ïpplicahritrcliiiçs.
In faci, according t~ihiin û.ni~ndaie c3nnot bc regdrdcd a, a irçliiy. He niid:
"Now surely no State can be charged with the task of acting as the
mandatorv State without its consent and that is clearlv ex~ressed in Article
. .~~~~~
22 of the League of Nations Covenant. But this consent, once given,
together with the decision of the organized community of States to entrust
this task to the mandatorv State dinot toeether constitute a treatv lavine
down the rules and procédures accordingUto which the objective; of th;
mandates system shall berealized." (Supra, p. 126.)
1repeat the words "do not together constitute a treaty".
It is a pity, Mr. President, that the representative of the Netherlands could
not have taken part in the proceedings on the preliminary objections in the
South West Africa cases in 1962. It will be recalled thÿt South Africa then
argued that the Mandate for South West Africa was not a treaty in force
within the meaning of Article 7 of the Mandate, but the majority of the Court
held otherwise.
However. this is where the common rround seems to end. Accordina to the
rcprescntative of the Kctherl;tnds, if néunderrtand hiin corrcitly. no (;rdiniiry
principles of la!\'acre lipplicable tu the nxindaies iyqtcmita';iin fiicig<iverned
bv a com~letelv new set of rules. This is the ooint of de~arture. We contend
lhat ordi"ary r;lcs coiild n<ita.lth<>utmore he 3pplicabl~and thni onc hx, 11)
have regard to the inteniion$ of ihr.author< of the mandates 5)stcni in urJer IO
determine the aoolicability of such rules. Thus. since the mandate was in the
nliturci>i .in >grc-cnienf,2nd ihcrr, is noihing wh>tsoei,cr 10 inJic;iie lh31 the
authors of ihc systcni did not intcnd tirdinary rules of interpretation to apply
to the mandate instruments, there appears to be no reason why such rules
shouldnot be held to be applicable.
The representative of the Netherlands submitted that his approach did not
involve the making of a choice between a teleological interpretation of a treaty
and an interpretation in accordance with what is called the "will of the parties"
to a treaty. He said:
"It is rather a matter of considering the legal character of the individual
and collective decisions taken by States in the light of legal premises on
which those decisions are based and of not applying to the adoption,
interpretation and effect ofthose decisions such rules as are clearly based
on different legal premises." (Supra,p. 124.)
But, Mr. President, if al1rules of international law existing at the inception
of themandates system are to becompletely discarded, how does one deteminethe legal character of the decisions relating ta the system, or the legal premises
on which they were based?
One looks in vain to the statement made bv the reoresentative of the Nether-
lands in order to hd an answer to this queilion. 1;is true that he stated th&
these decisions should be construed with due regard to the particular character
of a mandates svstem. But the cardinal auestion which. in Our suhmission~~~~-~
remains, is how that particular character isio be determinid. We submit that i;
should be determined in the ordinary manner, that is by ascertaining the
intentions, expressed or implied, of the authors of the mandates systemTThe
representative of the Netherlands, on the other hand, appears to base his
functional approach on the objectives of the mandates system and primarily
the socalled permanent right of self-determination of peoples, ta which he
assigns an overriding importance instead of having regard thereto merely as
one of the aspects ta be taken into account in determining the intention of the
authors of the mandates system. Mr. President, with the best will in the world,
we cannot see that his approach is based on anything else but an extreme
teleological interpretation of the mandates system and instruments.
The particular kind of distinction which he seeks to draw between a treaty
between sovereign States and a mandate agreement leads the representative of
the Netherlands, in Our submission, to untenable conclusions-in particular,
the conclusions 1 have mentioned about the filling of gaps left by the tex1of a
treaty and its interpretation in good faith. intreaties between sovereign States,
he says, these gaps are "necessarily filled by the sovereignty of the States con-
cerner. On the other hand, in the type of instrument establishing the mandates
system, he says that:
". ..such process is excluded and another process is required with equal
necessity, that is the construction of solutions which are compatible with
the basic premises of the instrument itself, that is the self-determination of
the peoples and the non-annexation of the territories.
Since onecannot, sa ta speak, fall back on the sovereignty of an existing
State over those peoples and territories, such solutions must imply some
form of powers ta be exercised by the organized community of States."
(Supra, p. 124.)
Mr. President, it will he amarent that bv this staae one's feetare far off the
ground already. ln the first in&ance,it is difficultto sie how, upon the tradition-
al approach of international law as we know it, a gap left by the text of a
treaty. and its interoretation can ever he said ta be filled bv the sovereiantv of
the States concerned. 1 assume that by a gap the represenktive of the Setier-
lands has in mind that situation where a treaty properly interpreted, makes no
provision for an occurrence which was either not foreseen bv the oarties or
deliberately Icfi unprovidcd for by them. This iisometimcs alsocallei a lacuna
in ihc ireaty. But \urcly in such a case the lacuna is no! fillcd by the so\,ereignty
of thc States concerned 'he tmth 1sthai itis iust not fillediit311.One c3n 31
most say in that respect that the sovereignty of the States concerned has been
left unaffected by the treaty.
But, Mr. President. even assuming that one can oroperly say that the lacuna
is fillcd by thc so\,crcignty of ihc SÏaies concerned. what ,usi;fication 1sthere
for the conclusion that a laruna in a mandate instrument musr be solved by the
exercise of powers hy the organized world community. Why not the mandatory,
or the mandaton, and the socalled oreanized communitv of States actine to-
gether? Surely, ii it was in fact the inrention of the authors of the mandates
system that the Council of the League would not have the power ta impose its ORAL STATEMENT BY MR. VAN HEERDEN 327
willon a mandatory-and itwas so held by this Court in 1966-there cannot
be anv room for concludinn that a lacuna in a mandate instrument is to ~ ~-~~ be
filled by the exercising of p6wers by the organized community irrespective of
the consent of the mandatory, and even against its will. Such a conclusion,
in our submission. would bea cornolete inversion of one of the fundamentals of
the nundates system, by \$,ha[leyal jusiificïtion u,edo noi know.
1Iiüvc.xlrclidy dealt uith ihc organiled communil, of Stütcsareunisni and do
not intend doine so aaain. Suffice itto reoeat Our basic submisiion that there
-
is ni, justilicali~in whatsocver f,?r concluding th21 the niandaie insirunients
creatcd a legal relation\hip betuecn limandaior) and the orgiini~cd conimunity
of States as reoresented bv the Leaeue or its success~~. On the contrarv. it is
abundantly clcïr ihai the rnandÿtorks conscnicd tosubmit tos~~ervisio~~o be
cxcrcised hy ihe Council of the Lcaguc and not by anothcr orgÿn or i~rg~ni-
zation
Mr. Presideni. the rcprcscniaiive of the Netherlands lays stress on the t\ro
principles on which, according to him, the niandates svtcm us founded, name-
ly the so-called permanent right of self-determinationof peoplesandsecondly,
the non-annexation of the territories concerned. This leads him to the con-
clusion that the functional powers of the organized community of States as
well as those of the mandatorv States are essentiallv limited in time. that thev
cease automatically at the moment this right of sélf-determination' has been
duly exercised, and that the powers of the organized community of States are
at any time during the period ofapplicability of the mandatessystemexercised
through such organized internationalcommunity asat that time representsthe
community of States (pp. 123 and 124, supra). It is on this basis that the re-
presentative of the Netherlands justifies the Court's 1950Opinion.
Now, if it is assumed, for purposes of argument, that the basic principle on
which the mandates system was founded was in fact the promotion of self-
determination and. as a corollarv. the non-annexarion of the territories con-
ierncd. il is siill a far cry from concludiny th~t the mandaiory's ohligïtiuns Io
accouni wcrc intended io remain in exisiencc cwn should the speciiic machincry
created relative to suoervision of those obligat-ons disaooea. .
In aiursubmi~siun, such a conilu5ion can hc rcdchc(l only by appl)ing to the
mandate insirLrnentc, asduesthe rcpreientaiivç ofihc ïiciherllinds, ïn cirireme
form of teleoiogical interpretation.
The representative of the Netherlands doesnot contend that the League was
empowered to revoke a mandate. In fact, he appears to shy away from the
notion of revocation. He states that an adaptation of the modalities of the
mandates system:
". .. is not a matter of applying a sanction to a violation of obligations
but rather a measuretaken in order to servethe final purpose of thesystem
in view of an unforeseen development of the factual situation" (supra,
pp. 126-127).
In Our suhmission, Mr. President, the representative of the Netherlands ap-
pears to confuse the effect and the purpose of the exercising ofa right of revo-
cation. In the case of an ordinary treaty. the ouroose of an innocent Party in
exercisine such a rieht mav well be to Drotect-hiiown~ ~ int~re~ ~ ratherthan to
~~, ~ ~ ~ ~
penlilize the oihrr part). but clcarly. the eltsct of rcvoidtion is the sanction ilfa
vii~lation ofoblisaiions. Thercforc. ifihenioJaliiirs ofamanrl~tessystcmshi~uld
be adapted because a breach of obligations by a mandatory State would render
it impossible Io serve the purpose of the system, such adaptation in effect dws
constitute a sanction of the mandatory's violations of its obligations.328 NAMlBlA (SOUTH WEST AFRIcA)
But, Mr. President, the important point is not whetherone calls the action a
sanction or a purpose-serving measure: the important point is that the action is
one of asserted authority vis-à-vis the mandatory, one by which the mandatory
is said to he legally hound without its consent and against its will. And the
question remains: from what legally recognized hasis can such authority be
said to he derived?
Although -the representative of the Netherlands does not say so in so many
words, his thesis must mean either that the League of Nations enjoyed the
power to revoke a mandate or, to use his own words, to adapt its modalities,
against the consent of the mandatory, or that such a power has, through mere
change of circumstances, come to he vested in the United Nations organs vis-à-
vis South Africa. This conclusion is also based on his functional aooroach
which, as 1 have already stated repeatedly, can only be justified on thebasis of
an extreme teleological interpretation of the mandate instruments.
It may be oointed out that the arguments advanced bv the reoresentative of
ihc ~cthcrlands a.oiild ha\e to iippÏ,,u/orriori io the ir"sieerliip s)srcni ol'ihe
Unircd Nxti<>ntsince the cilnccpi ui xlf-dctcrniinat~on is \pcllcd oui miich
niorc cxpliciily in the Cliartcr thsn in the Cu\.cnani (ifthe Le~giieof Naiioni.
Hc~llcgcs thüi in the rcle\,ani prxtise of Sraies the question bihethcr or noi the
conbent ai the mandator) Staic and or ihc organizcd inicrnitionsl <ummuniry
was legally reauired for a termination of the oowers of the mandatorv has not
been put <O the test. But, Mr. President, in ou; view it is relevant to reier to the
practice of States in regard to the termination of trusteeship agreements. We
will deal at a later stage fully with the circumstances under which a trusteeshio
agrccmcni iias cdn.4iidcd in respect of the iornlcr J.,piinesc niandaicd isldnds.
Micraincsia. For prcwnt piirposci ii sulliccsIO point oiii thït ihc drafi agrcc-
ment ~ro~osed by the United States ~rovided that its terms could not be
aitered, aiendedm terminated withoui the consent of the administering au-
thority, that is, the United States.
The Russian representative in the Securitv Council orooosed that the rele-
\an[ iri~~.Icof thcdrdfi should bc rcdralted;~ rsad .is folioiis: -The tcrmï of
the pressnt agreement mi). hc altcrsd. supplcnicntcd or icrniinaicd hy decision
of the Security Council."
This proposal was unacceptable to the representative of the United States.
Having referred to Articles 79 and 83 of the Charter he continued:
"In other words, obviously it is not the Security Council which origi-
nates the amendment: certainlv it cannot authorize the termination: the
most it can do, under ihe char&, is approve or disapprove. ~oreover', the
Charter is the guide and the law regarding the powers of the Security
Council. We cannot sit here and chanee them hvameement between the
United States and the Security ~ounciï. We canioigrant to the Security
Council powers that the Charter does not grant. The only way in which the
Security Council could be granted the power ta alter, amend and terminate
this contract would be by amending the Charter; no lesser authority
than that would be necessary." (SC, OR, 2nd Year, 116th Meeting.)
In the event only the Soviet Union voted for the proposed amendment of
Article 15 of the draft agreement. It would therefore appear, MI. President,
that the other members of the Security Council shared the views of the United
States' representative that the Council is not empowered hy the Charter uni-
laterally to terminate a trusteeship agreement.
It would be interesting to hear whether the representative of the Nether-
lands would contend that this State practice is in accordance with the so-called ORAL STATEMENT BV MR. VAN HEERDEN 329
functional approach, which, for the reasons already givcn, should, in our sub-
mission, be rejected by the Court.
Mr. President, 1 turn now to the last part of this section of Our argument
concerning the question whether the Council of the League could have dic-
tated to a mandatory the policies which the latter had to adopt in fulfilline its
suh\iantivc obligati~iis. and uhcrher rhc Council enjoyed thc,udiciil iunciion
of deierniining nhether s ni3nddior). h~rlacted in ioni1i;i iiith 11s0blig:itions
to thc extent that, if iimade an ;iilirmat~vcJccision. the I'crni3neni Court 3s
well as al1States would have been bound by such 4 decision. For reasons of
convenience, we will deal with the question only on the basis of the provisions
of the Mandate for South West Africa.
Article 2 of the Mandate reads as follows:
"The Mandatory shall have full power of administration and legislation
over the territory subject to the present Mandate as an integral portion of
the Union of South Africa. and mav . .. .v the laws of the Union of Sout--
Africa to theterritory, subject to such localmodifications as circumstances
may require.
The Mandatory shall promote to the utmost the material and moral
well-being and the social progress of the inhabitants of the territory sub-
ject to the present Mandate."
' In Articles 3 to 5 of the Mandate, provision was made for the safeguards
referred to in Article 22,paragraphs 5and 6, of the Covenant. These safeguards,
consisting mainly of the prohibition of abuses, placed certain limitations on the
governmental powers of the mandatory and were in effect merely specific im-
plementations, in certain defined spheres, of the over-riding objective of the
mandates system. However, beyond making such specific provisions for the
safeguards, it was in the nature of things impossible, and certainly not con-
sidered feasible, to reduce the objective of promoting the well-being and
progress of the inhabitants of South West Africa to a series of specific in-
junctions or prohibitions.
In the nature of thinas. Mr. President. no comvrehensive set of rules can be
devised, the app~icatioiof which in the sphere of government would inevitably
and in infinity have a beneficial effect on the people governed. The authors of
the mandate conseauentlv couoled the ar-nt to the mindatory of full leaislative
and iidministratii,e potiers u,ith a pri~~iiionwhich rcquircd the mïnd;itory iu
prumote to the utmost the material and nioral iicll-king and the ,o:ial progres,
of the inhabitants of the territorv. These words in effect merelv constitUte a
p;ir;lphr;lstng of ihc niain objecii!'~of the niïnd:ites s)siein 3s expresscd in the
Cuvew~nr-th~r i,, "the principle ihat the wcll-king and dei.clopmcnt of such
veoples form a sacred trust ofcivilizationn-and in their context thev conse-
quenily indicatc the objccti\,e io bc pursurd by the nimdatory, or the spirit
nith which hc should bc imbucd. in cxercising the poner of administration and
le-islation
Reading Article 2 as a irholc, 2nd in ihc light oi ihe provisions of Ariisle 22
of the <:o\rnant, thcre ciin be no doubr, in i>ursubmi5sion. regarding the inirn-
lion of the authors of the mandate, s,stcm, and the 3landïte for Soutli West
Africa n.rti~ ~ ~lv. Save for Artic~~ ~ 3 to 5 containi~ ~-~ .~~ic iniunctions~---
limits in respect of subject-matter were placed on the full power of adminis-
tration and leaislation aranted bv the Article: but the Mandatorv was never-
theless obliped IO promi)tc ti)the utmusi the well-being 2nd incercsts of the
inhahitanti .>fthe Territor).. Consequently, the hland~tory ii,u required Io
exercise thcse full potiers for this p.irpose. Ir follous Iugiclillythat theparticu-330 NAM181A (SOUTH WEST AFRICA)
lar methods wherehy this purpose was sought to be attained, were left to the
discretion of the Mandatory. As the Permanent Court said:
"... any grant of legislative powers generally implies the grant of a dis-
cretionary right to judge how far their exercise may be necessary or ur-
gent;. ..It is a question of appreciating political considerations and con-
ditions of fact. a task which the Government. as the bodv oossessina the
requisite knowledge of a political situation, is alone qualifiédto undertaken
(Liphthouses case hetween France and Greece, Judgment, 1934,P.C.I.J.,
series AIE, No. 62, p. 22).
More specifically with reference to "C" mandates, the Chief Justice of Aus-
tralia said:
"I~ ~~~~case of ~ ~ ~ ~~~ ~ ~ .the mandatorv o. .r . ..has full oo-
wers of 'administration and Icgisllitii~novcr the tcrritory subje~r IO the
mandxte 31 an intcgrïl portion of its tcrritory' (Arti:lc 2 of the Msndate).
l'his provision is in mcordüncc with the ternis of Article 21 [of the Cote-
nsnt]. In the original drïft of the covcnant the relcv;tnt provision of Article
22 orovidcd that the tcrritorics in respect of ivhat arc now known ai "C"
mandate. were grïntcd .cari bs best administcred under the Iaws of the
mrndstory ur ifintegral portions of its tcrritory'. But on the wggestion of
the Jarunex delccatc the mord 'if'uas omittcd . . .Ir is cleiir thrt it \ras
intended that in &e case of C mandates, the fullest power of government
should be conferred upon the mandatory power." (Frost v. Stevenson,
58 C.L.R., p. 550.)
And in 1946Lord H~iley,\$ho hïd him\elf becri a mcmbcr oithc Permanent
Mandates Conini15sion. h3ving rcferrcd to the >pccilicncgativs prejcripttonr
in the Mandate for South est Africa re~-rdina -he oolicv to be ohserved in
respect of native affairs, said:
".. .in other respects it left the Mandatory Govemment to interpret the
methods hy which it should promote the well-heing of the Natives of the
Territorv. Thus it remained for it to frame its own oolicy, within the aeneral
objective, in respect of matters such asthe controlof théland, the syitem of
justice, the procedure of taxation, the extent ta which regard should be
had to nati;e law and custom, the provisions to be made for the social
services of health and education, and the part to be taken by the Native
population in the political institutions of the country." (Lord Hailey,
Survey of Native Affairsin South West Africa, pp. 51-52.)
It follows, MI. President, that the only qualification imposed by Article 2,
oaraeraoh 2. of the Mandate for South West Africa on South Africa's full
. -.
pouCr, of lesislaiion and administration in respect of the Tcrritory was thai
South Afriia \vas rcquircd to urc such porcrs for the purpose of promottng Io
the utmost the material and moral well-beina an-social progre.s o- the inhabi-
tants of South West Africa.
The discretion to decide as to the most appropriate means of attaining such
ouroose vested in South Africa. ln exercisina this discretion. South Africa
cou'ldbe influcnccd by, but not dictated IO by, the supcrvisory orgnns of the
kïgue. Thcrcfore, in order to cstïblish iibrach by South Airiia of the provi-
sionsofArticle2 of thc Mandate, itivould bc nccc\rsry to priive thii a particu-
larexerciseofSouth Africü's Izgislati\,eor administrative power, wiisnot direcr-
ed tow;irds the objcctivc purpose of promoting to the utmo\t the matcrial and ORAL STATEMENT BY MR. VAN HEERDEN 331
moral well-king and the social progress of the inhabitants of South West
Africa.
If a court of law were to decide whether South Africa had acted in conflict
with its obliaations under Article 2 of the Mandate. it would follow that the
poliiical and technical meriis or otherwise ofparriculûr legislariveand adniinis-
trative measurcs, praciiccs and policies could bc of rclei,ance only in so Idr lis
they might tend to prove that South Africa is or is not pursuing the authorized
purpose. Whatever the Court might think of themerits of a particular legislative
or administrative act, practice or policy, if it was devised and performed or
practised in the exercise of the mandatory's discretion, seriously and honestly
applied, as king in its view the best means of pursuing the objective of pro-
moting the well-king and progress of the inhabitants of South West Africa, it
could not constitute a violation of Article 2.
This situation, Mr. President, is logically inherent in al1cases where courts
have to decide on the legality or otherwise of the exercise of a discretionary
power, whether conferred by treaty or by statute. In the latter instance, munici-
pal courts "have repeatedly affirmed the incapacity to substitute their own dis-
cretion for that of the authority in which the discretion has been confided"
(de Smith, JirdiciolReviewof Administrative Action, D.167).
There are, of course, various special grounds uponwhich courts in municipal
legalsystemsmay set aside an exercise, or a purported exercise, of a discretion-
ary power: grounds such as excess of limits in regard to time, place, subject-
matter, the person who is required to act, etc. In dealing with this same subject
in this Court in 1965, my colleague, Mr. de Villiers, gave a list of these, and
indicatedat thesame timewhy theycould hardly findpractical application to the
situation under the Mandate for South West Africa. 1 refer the Court to the
South West Africa cases,Pleodings, Volume IX, pages 494-495.
So, Mr. President, for practical purposes-ruling out those special cases-
one is left with the general test, upon which al1legal systems which we know
seemto be agreed, for deciding whether a discretionary power has been abused.
That test is whether the purpose of the holder of the power, that is, the sub-
jective purpose with which he acts or with which he inspires his action, is in
conformity with the prescribed purpose, that is, the purpose for which the
nower was conferred. This means that Iwo thines have to be comoared: the
purpose of the insirunieni confcrring ihc poucr and the purpose ii,irh.whichthe
holder of the potier acied in a given case. Thus inFrench Iliwthe gcneral [est is
applied under the process known as détournemend tepouvoir, of which 1 quote
the following brief description:
"This case of invalidatingadministrative acts differsprofoundly from al1
others. in that it does not concern an, lon-er an obiective a..reciation of
conforrnity or non-conformity of an act to a legal but the making
of a double research inio subjcctii~eintention: ii has to he ascertaincd
whether the incentives or motives which have insnired the author of an
administrative act aresuch as, according to the intintion of the legislator,
should have inspired il." (Waline, Droit administrari/, 7th ed., p. 417.)
The necessity of enquiring into the mindof the holder of a discretionary
power is also emphasized by Rohkam and Pratt:
"But the question of détournemend t e porrvoipresupposes an inquiry
into the mind of the agent, into his secret intentions which he has probably
made every effort to conceal. Each case thus resolves itself into a Iwo-fold
inquiry into: (1) the purpose for which the law vested this particular power 332 NAMIBIA (SOUTH WEST AFRICA)
in the agent; (2) the purpose for which the agent astually exercised it.
If the motive fiils to measure up to the purpoqe for which the pouter u,as
conferred.the act isnullificd.(Studiesin FrenchAdm~~ristraritL,uw. p.37.)
Mr. President, the same position obtains in other legal systems. Reference
may be made, as far as Dutch law is concerned ta Kranenburg, Het Neder-
landschAdministratiefRecht, pages 50 to 52; as regards Belgian law to Mast,
Overzichtvanhet BelgischAdministrafiefRecht, pages 388 ta 390; as regards
Italian lawto Galeotti,JudicialControlo/Public AurhoritiesinEnglandandIraly,
pages 109to 115; and as regards English law to GriffithandStreet,Principleso/
AdministrativeLaw, pages 215 to 217.
Mr. President. to summarize: Oursubmission is that the Mandate conferred
upon South Africii a diwretion ai to which policies and practices to adopt in
order ri,promote the well-king and progress of the inhibitanis of South West
Afrisa, and conscquently Si~uthAfrica cuuld only act in breach of ilsobligations
through policies or measurcs adopted with a purpose other than thst of pro-
motinp progress and aell-being.
The vewnp of a discretionary poucr in South Africa is obviously incompa-
tible with a notion that the Council of the League hÿd the pouer to prescribe
which policies and practices should be appl~ed by South Africa in the Tcrri-
tory. There is nothing whitsuever to indicite thst such -,as the intention of the
authors of the mandates system; on the contrary, as 1 have shown, an inter-
pretation of the mandate instruments read in the light of the provisions of
the Covenant leads to a directly opposite conclusion. This was also plainly
and emphatically stated by the Court in ils 1966 Judgment, after exhaustive
enquiry :
"The olain fact is that. in relation to the 'conduct' orovisions of the
mandates, it was never the intention that the Council ihould be able to
impose its viewson the various mandatories-the system adopted was one
which deliberately rendered this impossible." (I.C.JReports 1966,p. 46.)
Mr. President, in Oursubmission it is consequently clear that the Council of
the Leaeue of Nations did not eniov the comnetence which. accordine to the
~ecreta&-General's written statement at 1, page 85, the organs of the-~nited
Nationsenjoy. that is, "the cornpetence to interpret and apply to Narnibia the
international-obligations which are owing to the latter under th... mandates
system".
The final question is whether, assuming that the Council of the League was
em~owered to revoke a mandate. a decision to this effect. based on alleaed
brekhes by a mandatory of its obligations, would have beek final and conclu-
sive and not open to review, by the Permanent Court, on its merits. In Oursub-
mission there is certainlv nothina in the mandate instmments. the Covenant or
in the events leading up to the conferment of the mandates which affords the
slightest indication that such was the intention of rheauthors of the mandates
svstem: nor are we aware of anv Dublicist or commentator who has ever made
&ch ~uggestion. On the con~rary, as1 have already pointed out, Fauchillc,
who u,as of the opinion thal a mandate could be revoked by the Council of the
Leanue with the consent of the ~rincioal allied and associated oowers. reserved
for Ïhe mandatory a right of r60u~e.to the Peminent court: And Sir Frede-
rick Lugard u ho stated thar in theory a mandate might be revoked. proceeded
tosay that "therecan beno doubt that in this almost inconceivablecontingency
the International Court of Justice would be the agency employed" (Permanent
Mandates Commission,Minutes, Vol. 3, p. 286). ORAL STATEMENTBV MR. VAN HEERDEN 333
The basic absurdity of any suggestion that the Council would have been the
only.ora.n comoetent to decide whether a mandatorv had acted in conflict with
its obligations may be illustrated by the follùwing example. Suppose ihlit thcrc
\vas a conflict of opinion hetween a niandatory and the Council regarding the
quesiion uheiher the mandatory h~d fulfilled ils obligations under its miindaic
and the Council thereupon asked the Pernianeni Court of Intcrnationa1 Justice
for an aJvisors opinion and thiii the Court f~iundin fsvour uf the m:indatory-.
in other words. the Court found that the mandatorv had in fact not acted in
connici with its obligations. Suppose furthrr ihat thcriafier theCouncil rejccied
the opinion and purported Io revoke the mïndatc. Suppose still rurthrr that
uoon the mandatory failina or refusine to aive uo its administration.of the
territory concerned,-the coincil requesÏed anotheiadvisory opinion from the
Court on the question of legal consequences for States as a result of such a
refusal. Mr. President. it could surely not be contended that in such a case the
Permanent Court u,ould have becn bound, noiwithstanding its ealier opinion,
111conclude thai the question whethcr the mandatory had acted in conflict with
its oblications had heen conclusively settled by the Council and that the validitv
of a revocation of the mandate had to beaisumed hv the Cou.*.~-~- -e.. .~~.. ~.
exactly what the contention of the Secretary-General entails.
Mr. President, it follows that there is not the slightest foundation in law for
the r.i)nientiùn to the elfeci that the Council of the Lcîgueenjoyed an unrevicw-
able and linîl judici31 function of deierniining uhcther limandatory had ~cted
contrary to its obligations under its mandate.
In conclusion, our submissions relating to this part of our argument may be
summarized as follows:
Fint. the Leaaue's suoewisorv oowers in resoect of mandates could not have
devolvédupon the ~nited ~atio~s or, for thaïmatter, any other organization,
without fresh consent on the part of a mandatory.
Second, the League was not legally empowered to revoke a mandate; alter-
natively, it was not so empowered in respect of "C" mandates.
Third, the League did not enjoy the competence to impose its views on a
mandatory and therefore could not dictate to a mandatory the policies and
practices to be adopted in a mandated territory.
Fourth, even assuming that the League was empowered to revoke a mandate,
it clearly did not enjoy an unreviewable judicial function of determining con-
clusively whether a mandatory had acted in conflict with its obligations. ORAL STATEMENT BY MR. GROSSKOPF
REPRESENTATIVE OF THE GOVERNMENT OF SOUTH AFRICA
Mr. GROSSKOPF: Mr. President. honourable Members of the Court.
- ~- ~~--
my learned friend, MI. van Heerden, has just expressed the conclusion that the
Mandate could not, without more, have adapted to the change effected bv the
dissolution of the League so as to imnose on the mandatorv a ne~ ob~ ~ -~~~~~-~
ta report and account ;O organs of the-~nited Nations.
It follows, in Our submission, that such an obligation could notionally have
been established only by the subsequent agreement of the parties con&rned,
to which agreement the mandatoiy would necessarily have had ta be a Party.
Now, if one accepts the conclusion which he has just stated, which we submit
one must, then the appro~riate time when such agreement would have been
maniieried u,ould ha&been the tinle when the kîgÜe of Naiions uas dissolvcd
and when the United Nations \\,aseiiablishcd. Ir rvould have been the appri~.
priatc time for considerina the future <if ihe mandates \!hich de~cnded. for
their full performance, on certain organs of the League.
In Chapter VI11 of Our written statement we discussed the events in the
transitional years 1945-1946,and the years immediately superveninp. with the
abject of dimunstrdting that no obligation iras assumed -during Gose yexs
wherehy ihe mandatories in general, or Sodth Africa in pxticular, undertook to
report and account under the mandate to the United Nations. Our demonstra-
tion of this contention in Chapter VI11led up to a discussion in Chapter IX of
the 1950majorityOpinion whicb,as weinterpret it, was based upon a findingof
tacit agreement concluded during those vears.
ln the prerrnt proccedings ccryain p:ir.ticipants haie dgain sought to rely on
cvcntr during thejears 1945-1946in support of theirconicntiuii thai thcCieneral
Assembly of the United Nations ha& succeeded to the suoervisorv oowers
formerl~cxercised by the Council of the Ledgue. Othen habe ;<lied only'on the
1950Opinion fur this proposiiion, uhereas srill others hî\e sought IO su- -rt
the 1950Opinion on bases not advanced before.
Al1this renders, in my submission, it necessaw for me ta traverse again the
historical events relevant to the issues before the Court and to analyse the
legal reasoning of the 1950Opinion in the liaht thereof.
Sincc the argumenis on thchistorisal record io which I rcply arc hased on the
presentïtion, lie submit, <)fa feii isolatcd events out of their proper coniext, it
will be necessary for me to repeat to some extent material which is already
contained or cited in our written s~ ~ement~ ~hat is necessarv. in o~-,v~.~ -~- ~ ~
because the full picture has to be presented so that these events on which Othe;
participants have relied may be viewed in their proper context and in their
prope; perspective. . -
The first series of events which may be relevant are those relating ta the
establishment of the United Nations. In Chapter VIII, paragraphs 2 to 20, we
gave a detailed resumk of the events during the years of the establishment of the
United Nations, and the first year or so of its existence. In what follows 1
propose onlysummarizingthis briefly.
The United Nations Oreanization arose out of war-time CO-onerationand as
we know, the Charter came into force on 24 October 1945.The ;mportant point
to bear in mind is that the League of Nations was then still in existence. There ORAL STATEMENTBV MR. CROSSKOPF
335
was no suggestion that the United Nations was to be the League under a new
name, or an automatic successor in law to the assets, obligations, functions or
activities of the League. Two of the major powers which were instrumental in
establishing the United Nations were opposed to any such notion. They were
the USSR and the United States of America. 1nrooose s.owi.e how this hasic ~~~~.
ohjeaion is ihe idea of succcsiii)n wÿsirnpleniented in the rclevant aspects.
Disciission <ifthe mandates in the course of the drafiinp of the Charter and
thereafter. arose mainlv in the context of the estab~ishme~tof the new trust-
ship ssstc~i. It\vas th;est3blishnicnt of this systcm u,hich naturally led p&ple
to Ji,suss the future of the mandaiçs. In thai context various expressions of
viewwereexoressed inter alios also bv the South African reoresentatives. I~-w~ ~ ~ ~ ~
be necessÿry in my suhmission io have p~rticuldr regard to su~.hcapreisiun~ of
attitude, sincean argumcnr 1,\i)ught IO be based ihercon by somc disiinguished
representatives who have appeared here, particularly that of Pakistan (pp. 138
to 140, supra) and that of Finland (pp. 76 to 77, supra).
The Ikst statement made in connection with this topic which may be of
relevance for oresent ou.ose.. wasmadeat San Francisco bv the South African ~~~ ~ ~ ~ ~ ~ ~
represenintive ihere. His statcmcnt is quite 3 long one and ir quotcd in full in 1,
Chdpicr VIII, paragraph 4, ofour writien statement. It istherefore noi neccssary
for me to repeat the whole of it, but 1 would quote the most pertinent para-
graphs. It commences asfollows:
"1 wish to point out that there are territories already under mandate
where the mandatory principle cannot be achieved.
As an illustration, 1would refer to the former German territory of South
West Africa held hy South Africa under a 'C'Mandate."
Then there follows quite a long passage in which the representative discusses
the nature of the Mandate and what had happened in the territory in the
preceding years. He then concluded his statement as follows:
"There is no prospect of the territory ever existing as a separate State,
and theultimateobjectiveof themandatoryprinciple istherefore impossible
of achievement.
The deleaation of the Union of South Africa therefore claims that the
Mandate should he terminated and that the territory should be incorpo-
rated as part of the Union of SouthAfnca.
As territorial questions are however reserved for handling at the later
Peace Conference where the Union of South Africa intends to raise this
matter, it is here only mentioned for the information of the Conference in
connection with the mandates question."
The important point which 1wish to stress, Mr. President, is that as early as
the San Francisco Conference. the deleeation of the Union of South Africa
made it quite clear that in its viéwSouth mest Africa had gone beyond the stage
of the mandates system and should be incorporated within the Republic. That
is also. of course. in mv suhmission. a clear indication that as far as South
~fricauas concemed there !$asno intention or desire IO cuniinue any system
of international supervision of the tcrritory, and clearly no intention to incur
new reporting obligations.
1may just advert at this stage to a possible additional paragraph in respect
of which there is some evidence that it was added at the end of this statement.
This matter is referred to in a footnote to Chapter VIII, paragraph 4, of Ourwritten statement. There is some evidence that Dr. Smit, the South African
representative at San Francisco, added the following additional paragraph:
"As stated in the memorandum, this is not a matter that can be decided
here, but 1am directed to mention itfor the information of the Conference
so that South Africa mav not afterwards be held to have acauiesced in the
continuance of the c aida t oer the inclusion of the territoh in any form
of trusteeship under the new international organization."
In the footnote to Chapter VIII, paragraph 4, we refer to a discussion in the
dissenting ouinion of Judpe JessuDin 1966of the question whether this addition-
al paragraph was, in €as, delivered by Dr. ~mit or not. There appears to be
evidence both ways, but whatever the position might be, it seemsto be generally
accepted also by Judge Jessup that this extra paragraph does not really add
anything to what is already implied in the rest of the statement, namely that
South Africa indicated a clear intention not to be bound to further supervisory
obligations.
Towards the end of the San Francisco Conference, tbere was established a
Preparatory Commission of the United Nations consisting ofone representative
of each signatory State. The duties of this Commission were in general to
prepare for the efficient functioning of the United Nations, particularly at its
commencement.Amongst these duties were those of formulating recommenda-
tions conceming the possible transfer of activities, assets and functions of the
League ofNations.
There was also established an executive committee, which consisted of
re~resentatives of 14States. to orierate when the Preoaratow Commission was
no1 in session. So thdt. MI: ~re&ent, rherc \\lis ejt~blished ihis machinety Io
provide for the transition from the Lcague oi Ndiions tu the Unitcd Yations,
the transfer of assets. functions. activities and so on. amongst others. and also
Io probide for the proper functionlng OCthe L'niicdkitions bhen itcommenced
ils oun licti\,itiesunder the Chürter.
Two of the subconiniitiees of the ehccuti\e conimiiiee are of pdriiculïr
importanec for present purposes. The first suh-commitiee to uh~ch 1uill refer
nus Comniiitee 9, u hich was entrustcd u,iih the task to-
". .. formulate recommendations conceming the possible transfer of
certain functions, activities and assets of the League of Nations which
it may he considered desirable for the United Nations to take over on
terms to be arranger.
Thissub-committeerecommended,withcertain exceptions and qualifications,
the transfer of the functions. activities and assets of the Leapue. However. and
this is important, in my submissioh, it expressly excluded-mandates for the
following reason, namely "since the questions arisine from the winding up of
the mandates system" weredealt within the report Ghich emanated from the
other committeewith which 1 wish to deal, namely Committee 4. . .
So, Committee 9 which dealt in general with the transfer of functions,
activities and assets of the Leaiue to the United Nations. did not consider that
it was called upon to deal witcthe question of mandates. That was specifically
ent~sted to Committee 4. which had as its tems of reference, inter aliat, he
following:
"It should study the questions arising if the mandates system were to
be wound UD and examine the feasibility of Drovidine for such interim
arrangements as may bepossible, pending-theestablishment of the Tmstee-
ship Council." . , . . ORAL STATEMEN BTY UR. GROSSKOPF 337
This committee was thus specifically entrusted with the problems arising
from the winding up of the mandates system and it dealt in itsrecommendations
with this tooic.-11s main recommendation was that a temnorarv r ~ ~ ~ ~~~-d~~-~~~
committee bé established, since under Article 86 of the Charter the ~~~~t~~hiP
Council could not be formed until a number of territories were first olaced
under trusteeship.
Amongst the functions recommended for the temporary trusteeship commit-
tee was the following:
"To advise the General Assemhlv on anv matters that mieht anse with
regard to the transfer to the~nited~ation; of any functionsand responsi-
bilities hitherto exercised under the mandates system."
Now, Mr. President, when this recommendation of Committee 4 was
discussed, there were two proposals made hy the United States of America on
two separate occasions which, in our submission, are of some importance in
this case.On hoth occasions the United States submitted proposals that the
following further function should he conferred on the temporary trusteeship
committee:
"To undertake. followinc the dissolution of the Leaeue of Nations and
of the Permanent ~dndÿtcs Commission. the fuiciions previously
performed by the Manddtes Commission in conneclion with receivinc and
examinine rioorts submitted hv rnandatom Powers with res-1 ~ ~~- to-such
territririe;un'der mandate as hîve no1 been placed under the trusteeship
ssstem hy means of tmiteeship agreements. and until such tirne as the
truste es hi^Council is established. u,hereunon the Council *,il1~erform
a similar f"nction."
1 must just add for complete accuracy, MI. President, that this was the first
of the two United States orooosals. the subse~uent one was to the same effect.
although there were some shght changes in the wording. Thcy are, however;
boihquoted inour u,ritten st:itement inthe pdriigrdphs mentioned and they are
therc ii\,iiilablcro the Memhcrs of the Couri -ho might wirh to cumpare their
ipsissi~riawrba. The imporiant point here, Mr. President, is that this proposal
specificallyndvericd to the problems that u,ould arise heiween theceüsing of the
mandates system under the hgue of Nations and the commencement of the
United Nations tmsteeshin svstem.
It specificallyadverted ioihe fact that the supemisory authorities would fall
away on the dissolution of the hgue and that they would not automatically be
re-estahlished under the tmsteeship system. And the proposal which was made
Io cope with that situation was that the Temporary Tmsteeship Committee
should in the interim period perform the function previously performed by the
Mandates Commission and that the Trusteeship Council would, upon its
establishment, perform that function.
The second United States proposal to this effect was accompanied by a
memorandum which weauote in oaraeranh 11of Chanter VI11in full and which
I therefore do not have 1;)read iafulïhke today. 1wbuld, howe\,er, quote Iwo
of the paragraphs thereof They read as follows.
'In order to provide a degreeof continuity betweenthe mandatessystem
and the trusteeshipsystem, topermit themandatorypowersto dischargetheir
obligations.andto further the transfer ofmandatedterritories totrusteeshio.
the~empo;ary ~r&teeship ~ommiffee (or sucha committeeasisestablish~d
10 perform ils functions) and, later, the Trusteeship Council should be prcifically enipourrt,dro rcr~i,~crhi,rcporrswliirli rhr niandoror)pu"
are noivohlifar<,dromakerorlicPrrtrratienr.%l<i,rdar~ C~'s,>iinission.
.................................
To bridgeanypossiblegap whichmight exist betweenthe terminationof
the mandatessvstemand the esroblishmentof the trusreeshiosvstem.i. .
wouldapp..oropprijpriuicihur rhe supivri>ory/oilcr!orrs O/ rhr Pt,r,»u;i<v>r
A.la~idare<s'o!tin!i.~.~isioiildhc rnrried011 r~,niporarilyh)'rhcorpmio/rhe
Ut~ired.\'urionsii/iii.li is ru hundlerriisrrohio f~rrrrr<.Writtcn statenient.
1,Chapter VIii, p. 597.)
But, Mr. President, one finds the very significant feature that althounh both
of the& proposdls uere suhmiited, neither<;f them was apparenily ever Grmally
moved and the whole idea of aTemporary Trusiceship Committee which would
have these functions ultimately came to naught. as we indicate in more detail
in Chapter VIII. So that although these makers were pertinently raised at that
stage nothing in fact was done ta cape with this situation, of which everybody
was made fully aware.
Durittg ihc-debates of ihc Preparatory (.i>mniission certain stiitcnicnti ticrc
made on behalfof South Africa to \\hich reference might he made here sinse ir
bears on arnuments which have been oresented to the Court.
The firii ;txtemeni to tihich I wi,uid refer is one inadç hy the So~th Airican
represcntûtiic in hvuur, or insupport, of thecstnbl.shmcnt of an interim body
"... as the Mandates Commission was now in abeyance and countries holding
mandates should have a hody to which they could report". 1 refer to this
statement, Mr. President, not because 1think it is of any significance or impor-
tance, but becauseit has, in the past, been relied upon as suggesting an acknow-
ledgment of some responsibility or obligation on the part of South Africa.
1would merely, in order to anticipate any such possible thought, wish to refer
to the treatment of this statement in the I.C.J. Reoorts 1966at oages 100-101bv
Judge adhdc \,na Wbk and nt page 315,tootnotc 1, b!Jodgc'Jc~iiip. Itswmi
apparent, in our submiriion, that this statement ri~uldnot ha\.=nny <ifthe sort
ofeileit whish has. in the oast. beenaiiributed IO ilifitisread inihelight ofthe
earlier and later statements b; the South African iepresentatives and-regard is
also had to the actual content of the statement, which did not suggest that
South Africa itself was now undertaking ta report ta any other hody than the
Permanent Mandates Commission.
That South Africa had no such intention was, in Our submission, rendered
abundantly clear by further statements made in the course of the debate on the
A .oosal. which was ultimatelv acceoted bv the Preoaratorv Commission.
namely ihe proposa1 that the ~eneral ~ssembly shoild ad&t a resolution
calling on Statesadministenng territories under mandate to undertake uractical
steps ?or submitting trusteeship agreements. That was the resolution which was
ultimately adopted and, in the course of the discussion preceding its adoption,
the South African representative said that he:
"... reserved theposition of his delegation until the meeting of the General
Assembly. because his country found itself in an unusual oosition. The
mandated temtorv of South West Africa was alreadv a self-eo,erni-e
country, and last year its legislature had passed a resolution &king f&
admission into the Union. His Govemment had replied that acceutance of
this orooosal was imnossible owine to their oblieations under the mandate.
The Position remained open, and his delegation could not record its
vote on the present occasion if hy so doing it would imply that South West ORAL STATEMENT BY MR. GROSSKOPF
339
Africa was not free to detennine its own destiny. His Government would,
however, do everything in its power to implement the Charter."
niree days later, he said again:
"... the South African delegation associated itself wholly with the desire
of Committee 4 to apply the principles laid down in the Charter and that
its efforts had been dirëcted towards that end. In view. however. of the
special position of the Union of South Africa, which heid a mandate over
South West Africa, it reserved its position with regard to the document at
oresent under review. and esoeciaov hecause South Africa considered that
it had fully dischar&d the 061igations laid upon it by the Allies, under the
Covenant of the Leaaue of Nations. on the advancement towards self-
eovernment of territoies under mandate. and that the tim~ h~d~ ~ ~ ~ ~ ~ ~ ~
Tor the position to be examined asa whole. For that reason, the South
African delegation reserved its attitude until the Assembly met."
Now. Mr. President. a clearer indication onecannot eet of the South African
attitude that there wa; no intention of concluding a tnisteeship agreement and
that, in its view, the mandates system had outlived its usefulness as far as
South West Africa was concerned.
On 17 January 1946, when addressing a plenary meeting of the General
Assembly during the discussion of the recommendation of the Preparatory
Commission, to which 1 have already alluded, the South African representative
stated:
"Under these circumstances. the Union Government considers that it is
incumkni upon il. LSindced ;pan nll orher niandatory Poirers, ioconsult
the people of the mandaicd territory rcgarding the form which their ou,n
future novernment should take. since they are the ~eoolechieflvconcerned.
~rrangernentsare nowin trainror suchconsultatio~s ri tokeplice and,until
they have been concludedt,he SourhAfrican Governnientnrustreserveifs
position concernintghefiriire of the mandate,rogetherwithits right of fi111
libertyofaction, as provided for in paragraph 1of Article 80of the Charter.
From what 1have said 1 hope it will be clear that South West Africa
occupies a specialposition in relation to the Union which differentiates that
territory from any other under a C mandate. Thisspecialposition shouldbe
givenfull consideration in determining th feture statirsof the territory.
South Africa is, nevertheless, properly conscious of her obligations under
the Charter. Ican giveevery assurance that any decision taken in regard to
the future of the mandate will be characterized by a full sense of our
responsibility. as a signatorv of the Charter. to imoleinent its ~rovisions.
in consultation with and wiih the approval of the iocal inhabitants in the
manner best suited to the promotion of their material and moral well-
being" (italics added).
This aeain. Mr. President. .emoh.sizes the ooint reoeatedlv made that the
South ~i;isa" Governmeni ït that stage was nht underiaking iny newresponsi-
bility towards the Uniied Nation5, as kas betn suggested, nor was il making any
statements that mieht estoo it from later denvine the authoritv of the United
Nations, as was contended before this Court. 1;sartitude was a ciear and explicit
one, that it was not prepared to enter into a tmsteeship agreement, but that it
was n- -r!ahead with consultations with the oeo.le .owards an ultimate ohiect
of incorporaiton. This was again the thcmc of ü \taienient on 22 January, in
the Fuurih Commiitce, uhere the Saiuih Afric~n representative said: "Referring ta the text of Article 77, he said thatunder the Charter the
rransfer of the mandates régimero rhe rrusreeshipsysremwasnof obligarory.
Accordine-.o ~araer-.h 1 of Article 18.no ri-hts would be altered until
individual trusteebhip iigreementh uere concluded. Irwas wrong to assume
thai paragraph 2 of this Article invalidnted paragraph1. Thrpuirio,~ ifrhe
Union olSourh Ahica aus >Icofilurn~irv i>,irhrliir It,rul inr<,ror<,rurion.
He eiplained &e special relat;onshii between thi~nionand the territory
under its mandate, referring to the advanced stage of self-government
enjoyed by South West Africa, and commenting on the resolution of the
Legislature of South West Africa calling for amalgamation with the Union.
Therewould beno attempt Io draw up an agreementunril thefieely expressed
will of borh the Eurooeanand narive oooulations had beenascertained.When
that had been done; the decision oi'the Union would be submitted to the
General Assemhly for judgment." '
TheCourt roseat 1 p.m. THlRTEENTH PUBLIC SITTING (1 II171, 3 p.m.)
Present:[Seesitting of 8II 71.1
Mr. GROSSKOPF: Mr. President, honourable Memlxrs of the Court, on
Friday 1commenced our consideration of the events that we consider relevant
which occurred during the transitional years, 1945 to 1946, which were the
years during which the United Nations was established and the kaeue of
Nations wasdissolved. 1showed that the United Nations was not regardld as a
universal successor to the assets, powers and functions of the ieague. On the
contrarv. as from the end of the sin Francisco Conference. detaileddiscussions
uerc hcfdabout the msnner in whichand theextent to whichthe United Nations
should take o\er iheïsrct>, poiicrsand functiuns i)fthe Lcaguc. The Leïeu\ru
still then in existence but its dissolution was clearlv ine6table and contem-
plated.
The discussionsconcerning transfer of functions, activities and assets of the
ieague wereinitiated in Committee 9 of the ExecutiveCommittee of the Prepa-
ratory Commission. This Committee did not, however, deal with questions
arising from the winding up of the mandates system. As 1 showed, the latter
question fell under the tasks entrusted to Committee 4.
Cornmittee4 dealtgenerally with the introduction of the trusteeship system.
Amongst its recommendations was that a Temporary Trusteeship Committee
he established which would. interalia.advise the General Assemblv on matters
arising with regard to the tiansfer toihe United Nations of any finctions and
responsihilities which were, UD to that stage, exercised under the mandates
system. That was one of the functions ;hich the Temporary Trusteeship
Committee was recommended to have.
During the debates on the recommendation conceming a Temporary
Trusteeship Committee, proposals were submitted on two occasions that the
Temporary Trusteeship Committee, and later the Trusteeship Council itself,
should undertake the functions previously petîormed by the Permanent
Mandates Commission in respect of such mandated territories as were not
placed under trusteeship.
As 1 showed on Friday, neither of these proposals was apparently moved.
Ultimately, as 1 pointed out, the whole idea of a Temporary Trusteeship
Committee came to nothing, without any provision whatsoever having been
made for interim supervision of mandates, that is, for the supervision of man-
dated territories until thev came under the trusteeshio svstem or for mandated
territories that did not coke under the trusteeship sysiem at all.
1also showed that during the debates as from the time of the San Francisco
Conference the South frica aepresentatives repeatedly stated that the South
African Government reserved its position concerning South West Africa whicb
it considered should lx incorporated in the Union after the wishes of the
inhabitants had been ascertained.
The last statement in this regard to which 1 referred was that made on 22
January 1946in the Fourth Committee.
Now, Mr. President. continuine from there 1would wish to ooint out that
oihcr mandûtories, pï;ticulîrly t;c United Kingdom and ~ranCe. alio made
statenienis at ihït session in \!hich thcy indicated that thcy i\ould not, or might342 NAMlBlA (SOUTH WEST AFRICA)
not, place certain mandated territories under trusteeship. We deal with this
in Chaoter Vlii. paramaph 16.of our written statement.
~hu; hoth these Coiernments indicntcd that thcir wiliingncss to place
ccnain territories under trustr~ship would depend on the terms of the relevant
agreements and in any event the United Kingdom pointed out the unique
position occupied hy Palestine.
Ultimately the work of the Preparatory Commission concerning mandates
led up to a resolution-resolution II, which read as follows:
"With respect IO Chapters XII and XII1 of the Charter, tl~eGeneral
Assembly:
Welcomesthe declarations. made bv certain States administerine -
territories now held under mandate, of an intention ta negotiatetrusteeship
agreements in respect of some of those territories and. in respect of
~iansi.~dan. to esiahlish ils indeoendence.
Invites the States administering territories now held under mandate ta
undertake practical steps, in conccrt with the other States directly concern-
ed. for the imolementation of Article 79 of the Charter lwhich orovides
foi the concl;sion of agreements on the terms of trusteeship ior each
territory to be placed tinder the trusteeship systeml, in order to suhmit
these agreements for approval, preferahly not later than during the second
part of thefirst session of the General Assembly."
So that ultimately, Mr. President, the whole discussion on the future of
mandates was resolved by an invitation to the States administenng mandated
territories toundertake practical steps for the implementation of Article 79 of
the Charter.
No other obligation was imposed upon them and no other solution was
decided upon for the matter of interim accounting or interim supervision.
1 would also point out that resolution 1I itself clearly indicates that its
authors realized that al1mandated territories would not end up as trusteeships.
It is, in my submission, significant that reference is made tothe declarations
made by "certainStates" administering mandated territories of an intention to
negotiate ameements "in respect of some of these territories", whereas the
inztation contained in the reiolution isdirected at "the States" administering
mandated territones. So, the General Assembly seems to have been perfectly
aware, as indeed it could, in my submission, not be otherwise, that certain of
the States administering mandated territories had no present contemplation of
placing them under tmsteeship.
The conclusions Io be drawn from the history of the establishment of the
United Nation~ ~il~ ~ ~ ~ ~ ~with later. after comoarison has been madebetween
the tirniment nccordcd to mandates Qnd thni accordcd to other Leasuc func-
[ions and to Lcacuc acscts. At this stagc. Mr. Prcs~denl, itis. in ms submission,
necessary ta emphasize only one aspect and that is the repeated reservations
of the South African repre~entativeconcerningany possible commitment to the
United Nations in respect of South West Africa-resewations which were
made because, in the view of his government at the time, the Mandate had
outlived its usefulness and should, if the inhabitants so wished, be terminated
by incorporation intothe Union.
As shown. in resoect of mandates no soecific arrangement was ultimately
made savethécreatihn of machinery for the'voluntary c&clusion of trusteeship
agreements, and a resolution inviting mandatories to make use thereof. This
should, in our view, be compared wGh the arrangiments which were made in ORAL STATEMENT BY MR. GROSSKOPF 343
respect of other League functions and powers, and in respect of the assets of the
League.
As 1 have alreadv stated. Committee 9 of the Executive Committee of ~ ~ ~ ~ ~~.
Prcpiirstury Cùnimission recomnicndcd, !rith certain exceptions and qualilicii-
tions, the tramfer of ihc functioni, sciiviiic>and asets of the Lcague. Expressly
excepied houevcr ircrc the quc5tions arising from the winding up of thc nian-
dates iystcni. Thcse quebtion,, as1havejus1 poinicd OUI, wcrc separatclg dealt
with in the rnanner 1 have mentioned. commencina with the recommendations
of Committee 4 and concludine with General ~siemblv resolution ~ ~ ~ 1~~. wh~ ~ ~ ~ ~ ~
invitcd the concl.i~ionortrustccship agrccnicnts. Al~i excepted (rom the general
resomniendatioo of a trsnsfcr of kaeue funcrions to the United Satioiis ircrc
the political functions of the ~eague. These were also not included in the
general recommendation that League assets, functions and activities should be
transferred.
The Executive Committee accepted in general the Sub-Cornmittee's recom-
rnendation. Concerning the exception of political questions, which 1have just
mentioned, it stated categorically:
"The Committee recommends that no nolitical auestions should he
included in the transfer. It makes no recommendaLion ta transfer the
activities concerning refugees, mandates or international bureaux."
However, Mr. President, this form of wording was not explicit enough for al1
the delegates. There was some concern amonast them that the word "transfer"
in the recommendations concerning functionsand activities of the League could
imply a legal continuity which would not in fart exist, with the result that the
resolution, as ultimately adopted by the General Assembly, used instead of
"transfer" the expression "the assumption of responsibility for certain functions
and powers".
Mr. President, that is a point, in Our view, of some significance; that the
initial Members of the United Nations were so concerned that there should he
~ ~ .~~ ~ ~
no iinprcsiiun of A ioiitin~it) heiueeii the Ledguc of 'l3tti)ns and thc United
Narions ihdi thcy objccicd iù thc \tord "trünsfcr" a> relating to funcrion; and
activiiicsand in f~ctinsisrcd thüt it bc rcplaced hy "as\umption". "Assiimpliun'*
ofcodr.;e does nut iinply tnat therc is any gi)inguver froni the one Io the other,
il is 3 mcrely unil3tcr31 proces whereb,. in ihcir. .civ. the United Nations
would then aiquire these functions.
The resolution which provided for this assurnption was resolution 14 of 12
February 1946 which we quote in full in Cha~ter VIII. oaraaraph 20. It is . ..
cùnrcquently not nesesrtry for nie io quoic thc Ghaileofit. but 1n,ould \umnia-
rize il shorily and quoic ihc niost pertinent part. Briefly, th15re\oluiion cni-
hodied the agreement of Mcmheri of the United Nations to the assuniption, on
the dissolution of the Leîgue, by the Ciiiicd Nations of funciion.. or p<i\iersprc-
\'iously c~crciscd by thc I.eïguc. The reri~luiioneniphasi7cd. houever, thar the
L'nitcd Sariun, resen,ed the risht t,idccline IO asjiinie any p;ini:uliir fun~iion
or power. So that, in respect cf al1functions and powers;t-he United Nations
stated quite explicitly that it reserved to itself the right ta decline to assume any
particular one of them. In regard ta functions and powers of a technical and
non-oolitical character there was. nevert~~~es-~~i~ the resol,t~-~.~ ~~eneral , -~
expréssion of willingness on the part of the United Nations to assume those
functionsand powers. However. Mr. President, this expression of willinaness
Io assume, in principlc, funçtiunr and potiers, did nui ipply to funciionFand
poaer, undcr ireatie,, intcrnxtii>nalcon\.eniions, agreements and other instru-
ment5 hawng a pi)litical charücicr. It uii, Iimited io nisttcrs of a iechnical dndnon-political nature. In respect of functions of a political character, the General
Assembly merely said:
"TlzeGeneral Assemblv will itself examine. or will submit to the annro-
priate organ of the ~niced Nations, any request from the parties thicthe
United Nations should assume the exerciseof functions or powers entrust-
ed to the League of Nations by treaties, international conventions, agree-
ments and other instruments having a political character .. ."
In respect of such functions and powers, therefore, the General Assembly did
not declare a general willingness to assume them but merely expressed a will-
ingness to examine or submit for examination a request of the parties that it
should assume the exercise of such functions or powers.
Ultimately. Mr. President, the only Dart of the Leapue's le~acvwhich. in the
contemplation of the united~ations, bas transferredlas distinct from assum-
ed-was its assets, in respect of which a common plan of transfer was drawn up
by agreement between a committee of the United Nations and the Supervisa-/
Commission of the League.
1 come now, Mr. President, to the conclusions which, 1 submit, the Court
should draw from the events during the establishment and first session of the
United Nations. The purpose of the survey of.these events was to determine
whether any agreement was concluded whereby South Africa, either on its
own, or toeether withother mandatories. consented to thetransfer to or assumn-
Ilon by théUnited Nations of \upervisor). functions in respect of ni.indate5, ;r
whrthcr, as stated in thesc oral proceedingç by the di,tinguished rcpreu.nt~tive
of Pakistan, South Africÿ ,ad or did anything uhich \r<)ulJ eitop her from
denyin~ such consent. The clleci of thc event, during the cstahlishnicnt of the
United Nation\ is\tricd in some detail in Chapter VIII, pnrng~aphs~- 50-59, of
Ourwritten statement, and it is accordingly necëssary only to summarize them
briefly here.
Now, Mr. President, the first point which, we submit, is significant, is that the
Charter itself made no provision for any function to be exercised by the United
Nations in respect of mandates as mandates. As stated by the Court in 1950:
". . the Charter h~rcontemplated and rcgulated only a ingle $)steni, the
Interniitioniil Tru\tee.,hip Sysrem. II didnet contcriiplate or regiilrte r co-
c~i,ting Mandates System." (I.C.J. K~,porr~1950,p. 140.)
And, Mr. President, the pl-ing of mandated territories under trusteeship
was to be voluntary, as was also held, in my respectful submission correctly, by
the Court in 195CLthat was, of course, hy the majority of the Court.
It has in the past sometimes been suggested that Article 80, paragraph 1, of
the Charter served in some wav to effect a substitution of sunervisorv oreans in
respect of mandates. ~owever;since the majority of the CO& in 19i0, in-decid-
ing on the transfer of supenisory functions, appeared to attach considerable
weieht to this Article in its reasonine. 1 nrooose dealine with it later when
anaiysing and considering the 1950opinion ofihe CoUrt. Ïwould, at this stage,
merely submit that Article 80, paragraph 1,could not have had any such effect.
1 shall. however. later nresent more ireument-in si~oort of this submission.
Secondly, the United'Nations resolu~ons re1ating.t; assumption of League
functions and the establishment of the trusteeship system, show:
(a) that the United Nations, by clear design, was not a universal or an auto-
matic successor to the League functions and activities; before the United
Nations would take over or assume any such functions or activities, some ORAL STATEMENT BY MR. GROSSKOPF 345
active arrangement would have been necessam. It was not rerarded as a
procers that\\,ar to take place auiomatically; jonicthing addirional would
hax had 10be done in order to invcst the United Nations uith thew pou,.
ers and functions.
(b) This applied piirticularly in respcci of political functioni i\here the United
Naiions hüd not expressed any gcneral willingness to assume such func-
tions, but had merely undertaken to examine, or have examined, any
request from the parties that the United Nations should assume the func-
lion in question.
(cl Even this rather grudging attitude was not designed for mandates as such.
It was not designcd f& funciions periïining to mandates. As \\c atrcmplcd
Io show, mandates uere driili wiih scpdratcly 311alony, and, although thcre
had been suggestions that supervisory organs should be established in
respect of mandated territories, in their capacity as mandated territories
so to speak, these suggestions came to nothing. in the end, the only reso-
lution conceming mandated territories invited the mandatories to conclude
trusieestup agreemen expeditiously (resolut~on II).
(tf,Ir u,asr~iadeclearth31a11niandarcs would nor or might not beplaced undcr
truste es hi^.his was auite amarent to evervbodv concemed. A number of
the manditories had ciearly pointed out thüi the; u,ould not, or might not,
place certain territoriesunder irustccship. This u,as so, particularly, in the
statcmcnts mdde on beh~lf of the Souih African Governnieni ai from the
lime of the San Francisco Conference onwards, in which it wüs clearly
intimated thar rhc South Afriwn Government desired incorporation of the
tenitory with the Union in accordance with the wishes:of the inhabitants.
II is accordingly clcar, wr.submit, thai no arrangement ii,a in fact made for
continued supervision of m3nddtes, afier the contemplated dissolution of the
küguc. other thün by iheir voluntnry Dlacinc undcr trusteeshio. Thar. Mr.
k'reSident,we submit. ,vas the only arrangemeni which u,as in hci made hy the
authors of the United Nations for the continued supenrision of mandates after
the League \%asdissolved. Of course, itmight have been posiiblc to came Io
sonie arrangement with the United Nations under resolution 14. But that reso-
lution, as 1have noted, u,as not designed for niandates and. in an). eveni, thcn
that also would have had to be a matter of active arrangements.
Furthermore, we submit that in view of the pertinent manner in which the
question of supe~ision of mandated territories was adverted to, it seems clear
that the failure to make anv s~ecificarrangement was bv deliberate design. It
was no1 somethiny which hadbecn overlooked, or somethiog which had-becn
forgoiten, but by delikrate design the authors or the Cliïrrcr made no spccific
provision for the further su~ervision of mandates.
Now, of course, iiis notnccessary for Our purposes to show that it wüs hy
deliberütc design, it is sufficicnt to show that no arrangements uere made-
whether intentionïll~ or unintentionallv docs not reallv. 1 subniit. matier for
Our purposcs. Hut, on the uthcr hand, ire do subniit tht; u,hen one look.; a1the
facts one can only came ro ihc conclusion thüt there wasan intentional decirion
not to make provision for thesupervision of mandatesas such, that is, otherwise
than by placing them under tmsteeship.
1 tum now to the events during the dissolution of the League. After the
establishment of the United Nations, the dissolution of the League obviously
had to follow quite soon and the League Assembly held its final session in April
1949.
AS 1have said, at that stage the United Nations had already made provision346 NAMlBrA (SOUCH WEST AFRLCA)
for the method of transfer of Leaeue assets and for the manner in which it mieht
assume functions or powers whi& had been exercised by the League up to that
stage. It must therefore,MI. President, in our submission, be emphasized that
the-~eague or its members could not transfer any functions or iowers to the
United Nations without the active CO-operationof the United Nations, which it
had not undertaken to give automatically.
So, at its final meeting, the League Assembly could not pass over any func-
tions to the United Nations by itself. It would have had to have some form of
CO-operation with the United Nations and the United Nations had clearly
indicated that it would not necessarily assume al1the functions of the League.
1 have already adverted to the difference in its attitude as between technical
and political functions.
The object of the final session of the League Assembly was accordingly to put
the League's affairs in order so as to enable the transfer of assets and the
assumption of non-political functions and powers. In addition, of course, the
object was to provide for the final liquidation of the Organization. The manner
in which this final Assembly performed its functions is detailed in Chapter VIII,
paragraphs 21-30,of our written statement and 1 do not propose to traverse it
again in detail here. 1would only mention a few main aspects, particularly those
relating to mandates. These are set out mainly in paragraph 26 of Chapter VIU
of Our written statement. MI. President, as will appear from our written state-
ment, the process which was applied was that the various mandatory powers
made statements about their intentions in regard to the territories under their
control of which the Assembly, in its final resolution, took note. do not want
to read al1the statements made by the mandatories, they are there for the Court
to see, but 1must again emphasize that there was clearly no contemplationthat
al1 mandates would end up under the trusteeship system. So, for instance, the
British statement quoted in paragraph 26 (6) (i) of Chapter VI11of our written
statement mentioned Palestine, it mentioned also the necessity of satisfactory
terms before it would be prepared to place any of the other territoriesnder the
trusteeship system. The same feature appears, in my submission, from the
French statement which is quoted in paragraph 26 (6) (iii) of the same Chapter.
The South African statement, MI. President, 1would with the Court's leave
read in full in view of the arguments which have been advanced here in the oral
proceedings. It reads as follows:
"Since the last League meeting, new circumstances have arisen obliging
the mandatorv Powers to takeinto review the existine.arranEements for the
administration of their mandates. As was fully e;p~ained at the recent
United Nations General Assembly in London, the Union Govemment have
deemed it incumbent uoon them to consult the ~eooles of South-West
Africa, European and n&~-~uro~eanalike, regardkg Cheform which their
own future Govemment should take. On the basis of those consultations,
and havine reeard to the uniaue circumstances which so sianallv differen-
tiatesouth- est Africa-a territory contiguous with the ~iion-from al1
other mandates, it is the intentionofthe UnionGovernment,attheforthcom-
ing sessionof the United ~ations General Assembly in New York, to
formulate irs casefor accordhgSouth-WestA/rica a statusunderwhichit
wouldbe internationailyrecognizedosan integralpart of rhe Union. As the
Assemblv will know. it is alreadv administered under the terms of the
mandate-as an integral part of théunion. In the meantime the Union will
continue to administer the territory scrupulously in accordance with the
obligations of the mandate, for the advancement and promotion of the ORAL STATEMENT BY MR. GROSSKOPF 347
interests of the inhabitants, as she has done during the past six years when
meetings of the Mandates Commission could not he held" (italics added)
(written statenient, 1, Chap. ViU, para. 26, pp. 608-609).
Interrupting the quotation there, Mr. President, 1 would suggest that these
last words are not witbout significance. The intention expressed by the South
African reoresentative was to administer the Territorv in a manner as she had
done during the six )cars whcn meeiing,of thc Mand~ics Commi\sion coiild not
he held and when, in faci. no reports uere suhiiiiitcd. HUI the reprcscntativr of
South Africa went on in another pertinent passage as follows:
"The disappearanceof thoseorgansof the Leagueconcernedwith the
suoervision of mandates.orimarilvtheMandatesCommission andtheLeapue
Cui,,icil. wilII<~<.<~S)L~pr~~c/u<c lrut~zpli~rru?iiplidrtct~rhth<,/erreroj III<,
,>ratrJi,r'.hc Cnion Go\rrnmcnt 1i.11n1ei,crihclrc r%;~rd the Jissolution
of the Lean-e as in no wav diminishinr! i-s oblinations under the mandate.
which ii \vil1continue to disihxrgc uith the full and pruper npprccilition
of itr rcsp~iniibilitiiintilruch iiiiiür other arranrcn1enrh lire agrccd upon
conierning thc future SI~IUSO~ the territor)." (Italics .iddcd.(11>i<l.. 609.)
It is our submission. .~adine the statement as a whole. that it is auite clear
thnt the atritudc of ihc rcprcscntative iras mcrely ihai ihc suhbianii\r prt~visions
of the Mandate nould bc perioriiicd. narnely thosc inipo,cd in ihc inirresis uf
the inhlibiiants. but iIi.iiherc i\,[iuldlxrio furthcr rcpùriins. Thai seciiis clear
noi only froin the pasjacc I\ireised iiniomcnt ligo, but alsaifroni ihc vcw poinr-
rd rcferençe to the dir~ppedran:~ of the .upcrvisor) orgiins of the League.
On 9 April 1941,Jter the SouthAfriian and ihc United Kingdoin stlitcmcnts
had been nindc, the rcpre,ent:~tivcof Chmï proposeJ thc folloiving drafi rcw-
lution:
"The Assemhly,
Considering that the Trusteeship Council has not yet been constituted
and that al1 mandated territories under the League have not been trans-
ferred into territories under trusteeship;
Considering that the League's function of supervising mandated terri-
tories should be transferred to the United Nations, in order to avoid a
period of interregnum in the supervision of the mandatory rkgime in these
territories.
Recommends that the mandatory powers as well as those administering
exenemy mandated territories shall continue to suhmit annual reports to
the United Nations and to submit to inspection by the same untilrthe
Trusteeship Council shall have been constituted" (ibid.,p. 611).
Now, Mr. President, as 1have already stated, this was after the South African
statement in which, I submitted, it was madeclear that pendingfurther arrange-
ments there would be no reporting.
1 will shortly point out that the same follows from the United Kingdom
statement. So after these two statements, which both indicated an intention
on the oart of the mandatories not to report ~ending trusteeship or some other
arrangc:mcnt, the Chincse rcpresentntivu pr.oposcd this draf; resolution. In
faci the drafi rcwlution \%asnoi dis~.us,eJ hesausc the Ch.iirii1an ruled ihat il
ivïs no1 rclcisint IO the toorc that aai ihcn beinc dcbliicd. Hc ruled ihlii this
draft resolution could be discussed later, it couid be raised and moved later
when the appropriate time arrived.
However, Mr. President, when the representative of Chinaspoke again on 12April he had an entirely new draft which differed completely from the one
which he wanted to propose earlier. This new draft was described by the secon-
der as one which "had been settled in consultation and agreement by al1coun-
tries interested in mandates" (ibid.para. 26 (d)).
This new draft ?ad been agreed upon since the last one had been proposed
and, inmoving the new one, the Chinese representative said:
"@el recalled that he had already drawn the attention of the Committee
ta the complicated problems arising in regard ta mandates from the
transfer of functionsfrom the Leazue to the United Nations. The United
Nations Charter in Chapter XII and Xlll ejtüblished a rystem of trustee-
ship hassd largely upon the principles of the mandates system. but the
functions of the League in that respect were nottransferredauto~naticaliy
to the United Nations" (italics added) (ibid.).
1 pause there for a moment, Mr. President-he is still dealing with this
concept that these functions were not transferred automatically to the United
Nations, something had to be done before the tmsteeship system comes into
operation. He thencontinued:
".. .The Assembly should therefore take steps to secure the continued
application of the principles of the mandates system. As Professor Bailey
had vointed out to the Assemblv on the ~revious dav, the Lea~ue woirld
wish-to be assured as to the future of mandated territaries. ~he matter
had also been referred to by Lord Cecil and other delegates.
It was gr al fi into the Chinese delegation as representing a country
irhich hüd always stood for the prinriplc of trusteeshipthdtal1the Manda-
101')Powers /rad an,rorrncedtheir Nuenlii>n ta administer the territories
under their contra1 in accordancewiththeir obligations under the mandates
system until otherarrangementswereagreed uponI.f wasfo be hoped that
the future arrangements Io be made with regard to these territorieswould
apply, in fultheprinripieo/trusreeship underlying the mandates system.
The Chinese delegation had pleasure in presenting the draft resolution
now kfore the Conmittee, so that the question could k discussed by the
Assemblv in a concrete form and the vosition of the Leaaue clarifier
(italics added)(ibid.).
The resolution moved by the Chinese representative and adopted read as
follows (i quote only the two last operative paragraphs which are the only
directly relevant ones for present purposes):
'The Assembly :
..........................
3. Recognizes that, on the termination of the League's existence, its
functions with respect ta the mandated territories will came to an end,
but notes that Chapters XI, XII, and XII1 of the Charter of the United
Nations embody principles corresponding ta those declared in Article
22of the Covenant of the Leaeue:
4. Takes note of the expressed intentions of the members of the League
now administering territories under mandate to continue to administer
them for the well-beinz and develonment of the veooles concerned in
mordance with the oblGations contiined in the reskctke mündates until
other arrangements have been agreed ktu.ecn the United Nations and the
respective mandatory powers" (written statement, 1,Chap. VIII,p. 613). ORALSTATEMEN T YMU. GROSSKOPF 349
Mr. President, that was then the contrast between the first draft proposal
which the representative of China wanted to move and the one which was
ultimately agreed upon by al1concerned. The first one in expressterms stated
that ihc ~ssëmbly should consider ihat the League's funciion of supervising
mandatesshould hetransfcrred to the United Nations. and the recommendation
in the first resolution was that the mandatory Dowersshouldcontinue to submit
annual reports to thc Uniicd Nations and t"submit to inspection by the same
"until theTrusteeship Council shall hairebecnconstituted".
'Thar, Mr. President, was î speciiic proposa) thal a spccific form of super-
\,;sion should be instituted in respectof mandated ierritories not placed undcr
trusiccship. Houever. Mr. President, aficr discussions uiih the otherp interestcd
in ntand~tei. the ultim~tc resolution hûd an entirely ditïcrent content. The main
features of the resolution that was ultimately passed are the following. The
resolution, firstly, merely takes note of what has occurred. It does not adopt
anv attitude thereanent. nor 'does il Duruort to perform any act or to create
an; obligation. All that the resolution~do& is to take note; ifdoes not approve
or disapprove, it does not recommend, it does not make any decision which
would bind anybody, it merely records that something has occurred. And,
secondly, when one looks at what is thus recorded, al1one finds are expressed
intentions.
Now, Mr. President, an intention is, of course, a subjective state of mind
which by itself, even when expressed,creates no obligation. So il is clear that
the resolution as ultimately adopted did not even purport to take note of
agreementsor undertakings or promises, but just of expressedintentions. The
third --~~~~.which 1 would submit is sienificant. Mr. President. is that the
intentions of which the ~ssembly took note were to continue to odminisrerthe
territories for the well-king and develoument of the ueoules concerned. The
word "administer" is usedand that is the only exteni to-which there was an
express intention. The resolution did not suggestthat the expressedintentions
went any further, so, for instance, as to include an intention to submit reports
or to do somethingof that sort.
And the fourth point which 1would suggestemergesfrom the resolution and
is of some importance is that the resolution contemplated that other arrange-
ments would be aereed uoon between the United Nations and the mandatorv
~oweis. The resol;tion did not itself purport to speak the final word on whit
was to hamen to the mandated territories. It contemplated that the final
arrangeme& would still have to be a matter of agreement betweenthe manda-
tory Powersand the United Nations.
In the light of the debates, the past events, these other arrangements could
have covered ouite a number of different institutions. They .ight.have ken
trusteeship agreements, they mipht havc ken incorporation, or they might
hiive been somethingentirely suiprncris. But something else was sttllconlem-
olated which shouldbe doneto determine the final oosition of the mandatories.
. Now, Mr. President, when referring to the expresied intentions of the manda-
tories 1 made the point that nothing in the resolution indicated that these
intentions covered anv reoortinn to the United Nations. In my submission that
B~SO îppcars slearly f;o& the s~temcnts made by the mandaiorics thcmrclvcs.
In view of the wholc background to this marrer a1 the Unitcd Nations, which
had haooened shortlv oreviouslv. and also in view of the Chinese urooosal. it is
in itscl~;ignificant thîi thcre wïsno expressrcfcrence to reporting in 3ny of the
statenicnts, in my submission. Cenainly, that urould apply to al1the siaicments,
made after the Chineseproposal. As 1 have already said, the two made prior to
the firstChinese proposal had in any event clearly indicated a contemplation ORAL STATEMENTRY MR. GROSSKOPF 351
suggestion that there should be a supervisory function transferred to the United
Nations.
The reoresentatives of other mandatories were not eauallv e...icit. but th.
United ~in~domand~ew Zealand bothconfined theirexpressions of intentions
to the administration of the territories. They also limited themselves to an
intention of administerinr the territories for the well-beinrof the inhabitants.
Thus the rcprcscnt.itii~e 07 the United Kingdom rtatcd ". r. ir is the intcniion
of His Majesiy's Gi~vcrnnienrin the United Kingdoni ti~continue II)xdminisier
these territories in accordance with the general principles of the existing
mandates" (written statements, 1,Chapter VIII,p. 608).
It is of some importance to note how these statements were understood at
the time because 1 will later submit that a rreat deal of ex ~ostfacto rationali-
zation has gone into certain arguments concerned with thésouth West Africa
issue. For that purpose it is useful to see how these various statements were
interoreted at the $me. This British statement. for instance. was commented
upon by the United Nations Special ~ommittkon Palestine in its report which
we quote in Chapter VIII, paragraph 44 (c), of the written statement. 1 may
iust read thenertinent nassaee tothecourt to show how this Committee under-
stood the stitement. i might add that the Committee consisted of representa-
tivesofAustralia, Canada, Czechoslovakia, Guatemala,India,Iran, Netherlands,
Peru, Sweden, Uruguay and Yugoslavia. In its report the Committee said the
following:
"Following the Second World War, the establishment of the United
Nations in 1945and the dissolution of the League of Nations the following
vear on.~~~~~~new ohase in the~--~ ~ ~ ~ the mandatom 16rime. The. -
mandatory Power, in theabsenceof theLeague and its Permanent Mandates
Commission, had no international authority to which it might suhmit
reports and generally account for the exercise of its responsihilities in
accordance with the terms of the Mandate."
1 would repeat that, Mr. President-"the mandatory power .. .had no
international authority to which it might submit reports and generally account".
The quotation then continues:
"Havinr this in mind, at the final session of the League ~ssembly, the
United ma dom representative declared that PalestGe would be ad-
ministered 'in accordance with the general principles' of the existing
Mandate until 'fresh arrangements had heen reached'."
So, Mr. President, in 1947 when these events were, of course, very recent,
the United Kingdom statement was clearly interpreted as one which had been
insoired bv .h~ ~ ~~ ~hat there was no loneer anv it~~ernational authoritv to
which ilmiglii subniit reports and th31thcreyorc thcrc lias this rtîted intcniion
on its pxt toïdminister the tcrriiorv in terms of the h1;ind~te.
~hesame annears. in mv submisiion. from the statement made on behalf of
Nciv Zealînd and which ÿppeÿrr in p~r&raph 20 lh, (iv), Chaptcr VIII, of our
nritten siaiement. I aould just direct the Court's attention ttithe fact th31 the
Ne\\ Zeîlînd starcmcnt îlso spcciiiciill) refers to the di.;soliiti~?ioi f the Lcîsue
and of the Permanent Mand~tesCommirs~on. 11is Io thscKcs1 ihat thescei.cnts
lvould nul lesxen the Ncu Zralînd Government's inlent of adminisicring the
territom for the henefit of the inhabitants. So the New Zealand statement
specific~llyadverted to these farts, but once again there was the very significant
lack of any stated intention to submit reports. The representatives of France and Belgium merely intimatcd an intention of
placing their territorics under trustwship.
As iindicated a while azo.-.nro.se .t this stace briefiv to summarize the
differences hetween the reporting requirements under thé mandate and the
provisions of Article 73 of the Charter. The purpose is the one 1 have already
indicated. namelv to show that the submission of information under Article ~ ~ ~~
could noihave &en regarded as the equivalent of reporting under the Mandate
and that in any event the two of them could not have co-existed.
Mr. President, under Article 6 of the Mandate for South West Africa and
the corresponding provisions of other mandates, the Mandatory was required
ta make to the Council of the League an annual report to the satisfaction of the
Council containinc full information in regard to the Territow and indicatine
the mearures taken to carry out the obligations assumcd und& AAnicles2, 3.4
and S. So it u,as tobe an unnuol report to the ~urisJârrionof the Council and it
was to contain full information on al1 asoects of the administration of the
territories. It was then intended that the reiort be discussed by the Permanent
Mandates Commission and by the Council. That is, of course, how it also
worked in nractice. These reoorts were submitted. thev were discussed bv the
~crmanent'~andaies ~omiission and ultim~tel'yuent to the ~ouncii. As
agÿinst thi5 Article 73 Ir, nicrely containcd 3 "dcclarafion rcgarding non-self-
governing territorics" wherrby Mcmhers of the Unitcd Nations iidniini5tering
such territories. ~nreroliu, accepted as a sacred iriisi the obligaiion to promote
to the utmost the well-king of these territorics. and, to thiscnd:
"(c) To transmit regularly to the Secretary-General for information
purposes, subject to such limitation as security and constitutional consi-
derations may require, statistical and other information of a technical
nature relating ta economic, social and educational conditions in the
territories.. ."
In my submission, it is apparent that there were a number of important
differences between Article 73 le).as it was framed and as it was read when the
Charter came into force, on the one hînd, and on the other, reporiingunder the
mandate The tuo methad? of providing inform~tion iierc, in niy ~ubmission.
entirely different.
Article73only required the regular transmission, whereas under the mandate
it had ta he annual. That is perhaps not of any great significance, but what is
more important is that under Article 73 the information is to be transmitted
only for information purposes. Under the mandate, of course, as we know,
reporting was an important feature in an active system of supervision. There
was under the mandate, certainly, no conception that the reports were to be
onlv for information ournoses.
~hen thirdly, undei Àrticle 73, the governing authority is entitled to refuse
to transmit information if requiredhysecurity and constitutional considerations.
These considerations could lead to information not heine s-noli... There was
no corresponding limitation under the mandate.
Then, fourthly, under Article 73 the obligation relates only to statistical and
other information of a technical nature. The Article does not in terms reauire
any staternent of policy or anything of that sort; only statistical and other infor-
mation.
And. fifthlv and finallv. the information reauired to be transmitted under
Article73u,asonl) that concemingeconomic,socialandeducationalconditions.
Political information iras. in accordance wiih the original coniemplation of ORAL STATEMENT BY MR. GROSSKOPF 353
the authors of the Charter, no1included in the type of information which had
to be transmitted.
As a matter of Tact, Mr. President, when one has regard to the drafting
history of the Article, one finds that political matters were intentionally
excluded. The reference to the drafting history may be found in Russell, A
History of theUnitedNationsCharter, pages 8131824.
Of course, Mr. President, 1realize that in recent years the Article has ken
extended quite considerably beyond what was accepted in earlier years. For a
description of this process 1 could refer the Court ta Goodrich, Harnbro &
Simons, Charterof the UnitedNations, 3rdedition, pages453-458.
1 do not want to go into any debate as to whether it has heen extended
further than its language will bear, or 10consider the merits of the extensions,
but the only point 1would make is that any later interpretations or any later
extensions which have been grafted on to the Article or ta which the Article
has been subjected are no1 of any relevance for present purposes. 1 am here
concerned only with the contemplation of the representatives of States in 1946
and thereabouts. when the Charter had been newly framed: and certainly in
1946,when the ~ustralian represeniative refcrred IO Article 73 (e), he would
have contemplüted a \,ery Iimited obligniion contnined in or imposed by thüt
Article. He would certainly not in that year have given the Article the wide
interpretation which has sometimes been advancedin recent years.
So, 1 would repeat, Mr. President, that when the Australian representative
in 1946 stated that Chaoter XI would be aoolicable, he had in mind. in my
submission, a very iimitédobligation to submit statistical and other informa-
tion for the information of the United Nations, and such a contemplation on
his oart would clearlv. 1 submit. have excluded any intention of oerforming
the Auch more oner&s obligation of submitting reports under 1hëmandate.-
That then was the history of the final session of the bague Assembly. Our
submission is that the events at that final session clearly show that there was no
contemplation of any rcporting under ihe mîndaie to any organi;?ÿtionpending
the possible conclusion of tmsteeship agreements or other arrangements. This.
in Our submission. is fortified by the events which occurred immediately there-
after.
The Court adjournedfrom4.20 p.m. to 4.45p.m.
After the conclusion of the final session of the League Assembly. a Board of
liquidation, which had been appointed during the session, performed the tasks
necessary Io give effectIO the resolutions passed by the League Assembly. In
Chaoter ~111.oaraaranh 27. or Ourwritten statement, we discussed the report
of the Board oi ~i~iidàtion ;n which weshowed the detailed arrangements that
wcre made for the liquidation of the Lesgue. for the transfer of 11sasseis to ihc
United Nations and ihe possible assumpGon of its powers and functions by the
United Nations.
In the report of the Board of Liquidation the subject of mandates was dealt
with in a chapter entitled "Disposal of Non-Transferable Activities, Funds and
Services". 1 would suggest that the word "non-transferable" is not without
significance in the context. The report itself said only the following about the
mandates system:
"On the . .oosal of the First Cornmittee. the 1946Assembly adopted a
resolution whereby it'recognizes thüt. on the termination of the bague's
existence. irs functions wiih respect to the mandated tcrritorics will come354 NAMlBtA (SOUTHWEST AFRICA)
to an end, but notes that Chapters XI, XII and XllI of the Charter of the
United Nations embody principles corresponding to those declared in
Article 22 of the Covenant'.
The mandatessysteminaugurated by the League has thus been brought
to a close, but the Board is glad to be able to record that the exoerience
gained by rhcSecrctîriai in thg m3tter hasnot bccnlost. the ~niied'~arions
having taken over, uith ihc smdll remïining staff, the Mandïtes Section's
archives, which should afford valuable guidance to those concerned with
the administration of the trusteeship system set up by the Charter of that
organization."
I would emphasizethe uurds "the niandatessysicm . . hüsthus beenbroupht
IO a closc". Ccriîinly the Board of Liquidation did not considcr thaithcrc \\,as
anythingremainingunder the mandatessystem to be transferred to, or assumed
by, the United Nations with the one exception, which they mentioned, namely
that there were still the small remaining staff and the Mandates Section's
archives.
Those were the only matters in the contemplation of the Board of Liquida-
tion which could be of assistanceto the United Nations and which could be
taken over or assumedby it.
Mr. President, these various arrangements which were made at the time of
the dissolution of the League for transfer to, or assumption of assetsand func-
tions by the United Nations, were duly registered in the UnifedNatiotrsTreaty
Series.So one finds that al1 these arrangements were properly recorded and
were properly registered. We deal with this matter in Chapter VIII, paragraph
28, of Our written statement, where we point out that the definition of the ex-
pression "treaty" adopted hy the Secretariat for the purposes of treaty regis-
tration, was quite a wide one, and would include unilateral engagements ac-
cepted by some othcrjuristic person. But. alihough al1the mîiiers in respectof
uhich ïrrangcments hîd been made for transfer IO. or assumpiion hy, the.
United Nations uere dealt uiih in the Treoiy Serics.there aDwars no rsference
to any transfer of functions relating to mandates
That is, of course, what one would expect if one has regard to the events that
occurred previously but, we submit, itfortifies Ourconclusion that no arrange-
ment was in fact arrived at concemine. mandates as such
In Chapter VIII. paragraph hO,and;hc fullowing paragrnphs. of our i\,riiren
siaiement. ue preseniedan appraisrnicnt of the evenisai the finïl sessionof the
League Assembly. which 1 have iust summarized. There. Mr. President. we
point out that the League confined itself to functions, powers and activitiés of
a non-political character, which the United Nations had expresseda general
willingness 10assume.No urovision was made bv the ~eaeuejo- functions and
po\icrs ari3ing out of int;rnationdl agreement;of a political shîracter. The
reason for thai ivïs clearly ihît they kneiv rherc uas no poini in doing so in-
asmuch &$ the Cniicd Nations hïd alreadv indicîicd thïiihev uould onlv con-
sider taking over suchfunctions and poweis on an adhocbasi; if requestedtodo
so by the parties. That appears from General Assembly resolution XIV, Part
1, 3, C.
~egarding mandates in particular we contend that the Assembly deliberately
refrained from making any provision for transfer of the Leaaue's functions.
The proposal which had been raised bv the Chinese reoresenÏative. to make
provision for such a transfer, was not iroceeded with. listead of making pro-
vision forreporting under the mandate until the Trusteeshiu Council was estab-
lished, the Assembly ultimatelv contented itself with takine note of "exoressed
intentions" to coniinue to administer the mandated terhtories "untii other ORAL STATEMENT BY MR. GROSSKOPF
355
arrangements have heen agreed upon between the United Nations and the
respective mandatory powers".
So wecan say, that in the result, the provision made for this interim wriod
bctween the dissoliirion OC the Ledsue 2nd ihc cstahlishnicnt uf the iruskeship
systcm or the making oi sornc ùiher ïrrdngemcnt. ivdr entirel) ditTcrent frum
thdt envisdsed in ihc firït Chinese drdft prouosiil. WCalso contcnd. Mr. I'rcsi-
dent, in Chapter VIII, paragraph 64, that the Chinese representati've was well
aware of this difference, as appears from a comparison of his own words on
the two occasions. One can see by ~utting his words in iuxta~osition how he
clcarly .ippreciaicd ihït un the scco~d <ic!3sion hc \\as .;d\.sncins quitea dif-
fcrent prop,i>al.This is,atfcuuns, 3lwquiteclelir friim the ferrn5~f the proposlil.
WCcainicnd further thar ihc reason l'orthe change in the attiiiidc of the As-
scmhly is nul Far io rcck. Theniandaforics did nui intend IO maintain in a
changed furm the repurting requiremcnt\ of ihc niandaie. II is, in other uords,
the same ~icture as emerned fromthe events durinn the draftinn of the Charter
and ihercaficr. The mindaiùries did nail propose coniinu:ng the niandiics a$
mandates. The). ;IIIcxpccted io haie a chanacd situation in one uny or anothcr.
Thev intended to dace them under truste es hi^.if thev could net satisfacto~
teAs; they intended possihly to make some Gecial, as yet undetermined a;-
rangements, as in the case of Palestine, with which 1 propose dealing shortly;
or in the case of South West Africa. the intention of the mandatorv was to
incorporïie IIaftcr con\ultaiion withthe inhïhitnnts.
We suhmii fh3t fhis dcliherate inicnr of fhs ni;indati?riesand i~flhcAs.,cnihl?
in general not to make any ~rovision for su~ervision of mandates. as such. is
also evident from the pointcd way in which ihe statements by the mandatones
indicated that there would be no reporting pending the conclusion of other
arrangements.
In brief, we submit that these events demonstrate that there was no agree-
ment at the final session of the League Assembly whereby the United Nations
might have acquired rights of supervision in respect of mandates, or wherehy
the mandatories might have become ohliged to submit reports under the Man-
date to the United Nations. Indeed, we submit, the parties deliberately re-
frained from doina anything of the sort. Of course. Mr. President, any aeree-
ment that might have been corne toat the final session of the ~ssemhl; would
not per se have granted any rights to the United Nations. The United Nations
was not, as such, re~resented there. so that somethina further would have had
to happeri to grnnt 3ny funciions or rights to the ~iiied rations, 2nd it\vas
indeed en\,isïgcd, that sonicthing iurihcr tvould hlippen; il\vas envisaged no1
only inthe final l.capue rcsoluiion on mandaici, hui nlso in Gencral r\ssenihly
rcsolution XI, u,liich ini,ited ihe conclusion of rriistccship 2grcemcnt\. and XIV,
trhich pruvided ihc machiner), at Icïit, \ihcrcby politicil functi~in.,could he
assumed by the United Nations.
~ccordinçly, Mr. I>res~deni.tic coniend thai if an" righis werc tu hn\c nc-
crued io the United Ziionï or if ïny oblig~iions iierc10 hdve ken inipi>ied
un the niünd~iories. one iiould exDesi io find thai nro\ islon \vas nisde thcrcior
during the events subsequent to ihe dissolution of the League. However, an
examination of the record Shows, in our submission, that no arrangement as
contemplated in the final League resolution concerning mandates was ever
made with resoect to South West Africa. South ~frica. as she had consistentlv
indicated since the days of the-San Fiancisco conferince, held consultations
with the inhabitants of South West Africa, who were ovenvhelmingly in favour
of incorporation. In Novemher 1946,this matter was raised before the United
Nations hy 'the then Prime Minister of South Africa, Field-Marshal Smuts.We discussed this matter in Chapter VIII, paragraphs 30-31, and here again, 1
do not orooose beinn exhaustive in mv araument in these oral oroceedinas.
1 do, howecer, propore quoting one ortwoBf the relevant Now the
first 1 would quote was a statement made on 13 November 1946 by General
Smuts; 1 stress the date hecause of certain incorrect statements made hefore
this Court in these proceedings. At that stage he said the following:
"Ir uould not he possible for the Union Government as a furmer man-
d3tory 10 suhniit a trusteeship 3grwniçnt in contiict wiih the clearly ex-
pressed wishes oi the inhabitanis. The Assembly should recognizc that the
implementstion of the uishr~ of the population \%,as the course prescribed
by the Charter and dict:ited by the interesis of the inh~bitaiitr themsel\,cs.
If, however, the Assembly did not agree that the clear wishes of the in-
habitants should be implemented, the Union Govemment could take no
other course than to abide by the declaration it had made to the last As-
semblv of the League of Nations to the effect that it would continue to
admiiister the terrsory as hçretofore as 3n integriil part of the Union. and
to do sa in the spirit of the principle$ laid down in the ni.indate."
Pausing here, 1would particularly emphasize the words immediately follow-
ing:
"ln oarticular the Union would. in accordance with Article 73. oara-
graph ie) of the Charter, transmit regularly to the ~ecretary-Genkral of
the United Nations 'for information purposes, subject to such limitations
as security and constitutional regulations might require, statistical and
other information of a technical nature relating to economic, social and
educational conditions' in South West Africa. There was nothing in the
relevant clausesof the Charter. nor was it in the minds of those who drafted
thcw clauses, to support the contr.ntion thiit the Union Cinvîrnment could
be compelled Io enter inIo a trusteeship agreenient evcn IigJinst 11so\i,n
view or those of the people concerned."
That is the end of the auotation. 1 have alreadv stressed. Mr. President. that
the infilrination which heneral Smuts said tvuuld be triin;~itted, \vas in &cor-
dance with Article 73, pardgraph [e,, of thc Charter and 1would agiiin dr~w
the Court's attention to the fact that th15\%as 3% earlv as 13November 1946.
However, despite the results of the consultations hith the inhabitants, the
General Assembly in resolution 65 (1) rejected the incorporation proposal on
the around "that the African inhabitants of South West Africa have not vet
secuied political autonomy or reached a stage of political development enahling
them to express a considered opinion which the Assembly could recognize on
such an imoortant auestion as incor~oraX~~n o~ ~h~ir t~ ~i~orv". The ~ssemblv
consequenily reco-ended that South West Africa be placed;nder trusteeship.
In response to this recommendation, the South African Government wrote:
"The Union Govemment desire to reiterate their view that it is implicit
in themandatessystemand in the mandate for South West Africa that due
regard shall be had to the wishes of the inhabitants in the administration
ofthe Territory. The wish clearly expressed by the ovenvhelming majority
of al1the native races in.South West Africa and by unanimous vote on the
part of the European representatives of the Territory that South West
Africa be incorporated in the Union therefore debars the Union Govern-
ment from acting in accordance with the resolution of the General As-
sembly, and thereby flouting the wishes of those who under the Mandate ORAL STATEMENT BY MR. GROSSKOPF 327
have been committed to their charge. In the circumstances the Union
Government have no alternative but to maintain the srofus quo and to
continue to administer the territory in the spirit of the existing Mandate."
In this lcttcr reference iras made ta a resolution of the Home of Assemhly
of the South African Parliament, which rcsolution read as follou,s:
"Whcrcas in tcrms of the Treaty of Versailles full powcr of Ikgislation
and administration masconferred on the Union <iSouth Afric~ in respect
of the Territors of South West Africa..subi-ct onlv to the rcnderinr-of -
reports to the ~eague of Nations; and
Whereas the League of Nations has since ceased to exist and was not
emoowered bv the orovisions of the Treatv of Versaillesor of the Covenant
to iransfer it; rights and powers in regard ta South West Africa ta thé
United Nations Organization, or to any other international organ.zation
or body, and did not in fact do sa; and
Whereas the Union of South Africa has not by international agreement
consented ta surrender the rights and powers so acquired, and has not
surrendered these by signing the Charter of the United Nations Organi-
zation and remains in full possession and exercise thereof; and
Whereas the ove~helming majority of both the European and non-
European inhabitants of South West Africa have expressed themselves
in favour of the incorporation of South West Africa with the Union of
South Africa;
Therefore this Houseisofopinion that theTenitory should be represen-
ted in the Parliament of the Union as an integral portion thereof, and
requests the Government ta introduce legislation, after consultation with
the inhabitants of the Territory, providing for its representation in the
Union Parliament, and that the Government should continue to render
reports ta the United Nations Organization as it has done heretofore
under the Mandate."
This resolution of the House of Assemhly of Parliament was quoted in the
letter sent in response to Resolution65 (1).The letter also continued to refer to
the fact that "the Union Government have already undertaken ta submit re-
ports on their administration for the information of the United Nations".
This last reference was clearly oneta the statement by Field-Marshal Smuts, to
which 1referred shortly before.
MI. President, 1havequotedat length from this letter, and 1have also quoted
this resolution of the House of Assemblv because of certain references made
thcreto in these proceedings. in plirticula; by the Uniicd Sraics of Amcrica in
ils ivritlcn stüicmïn1, al pages845.846 So, bccausc ronie significanceseems ta
have been attached to thii resolution. and narticularlv that nart of it where it
expresses the opinion that the ~ove~ment'should continueio render reports,
it has been necessary ta quote it, and 1 wonld also wish ta make one or two
observationsabout it.
Now, firstly, it was a resolution hy one of the Houses of Parliament. South
Africa has a bicameral legislative system, sa this was not a resolution by the
South African Parliament, as is sometimes incorrectly stated-for instance, in
the 1950 Opinion, and also in the written statement of the United States of
America at 1,page 846. It isonlyone of thesonstituent houses of Parliament and
not Parliament itself. As a resolution.of the Honse of Assembly. it has no
lcgislütirr orexecuti\rcff.c uharsoe\,cr. It merclyisan expression of the point
of view of thc Assembly. It is only a recommendation to the Cabinet as thc ORAL STATEMENT BY MU. GROSSKOPF 359
So,Mr. President, in that statement on 25September 1947,the South African
representative explained more fully what type of information it was contem-
plated would be submitted, and he also emphasized that the South African
Government did not accept that there was any right of control or supervision
with regard to South West Africa.
On I November 1947,the South African representative again adverted to the
recommendation that South West Africa be placed under trusteeship, and he
gave the reasons why his Government could not accede thereto.
He then added:
"The Union of South Africa has exoress.d ~ ~ ~ ~~in~ss to suhmit ~ ~~ ~~~ ~ ~ ~
rcports Torthe inTormaiion of ihc Unitcd Nations. Thai undertaking stands.
Although thcsc rcports, if iicccpted, uill be rcndcrcd un rhebas!.;rhar rhe
United ~ations has no suoervisorviurisdiction in resoecrof this territorv
they will serve to keep the'united~ations informed in much the same way
as they will be kept informed in relation to Non-Self-Governing Territories
under Article 73 le) of the Charter" (italics added) (written statements,
1, p. 620.)
So, Mr. Prcsidcni, sumrn~ri7inghrieliy, al1thesc stdtcriients urre ro theetrscr
ihüi inform3iion u,ould be prcscnted in accorddncc u,iih Article 73. or ihat the
same tyDeof information as is ~rovided for in Article 73would be transmitted.
and that it will keep the ~nited Nations informed in much the same way as ii
will be kept informed under Article 73 of the Charter. In none of them was
there any contemplation of reporting under the Mandate.
As shown in Chapter VIII, paragraphs 38-40, of the written statement, the
South African Government did submit a report in September 1947which was
later amolified in resDonse to a reauest for further information.
Ii was'then again cmphasiled that the transmission of information was "on a
vuluntary b.uis and 1sfor purpo\cs of information only" and ihni ihe South
African Government had "on several occasions made it clear that thev recoanize
no obligation io transmit ihis information iu the United ~aiions".~hlore~ver,
the submission of information "should not k consirucd as a commitmcnt as to
future policy or as implying anymeasure of accountability totheUnitedNations
on the part of the Union Government".
As appears from the written statement, no further reports were sent. In the
view of the South African Government. the United Nations Oreanization did
not observethe conditions upon which the first report,and the addendum, were
sent and the United Nations, for its part, continued to press for the conclusion
of a truste es hianreement.
So. sunimini itail up. Ourcontention is that the record of evenis subbequent
to ihe dissolution of the Lerigueshous th31no agreement wdsconcluded ivhcrc-
by South Africa became obliced t- rcDon and arcouni IO the United Ndiions
under the Mandate.
This may be a convenient stage, Mr. President, to consider to what extent
the exposition which 1have iust summarized was controverted in the written or
the oral siaicmenis of nih~r~~arriri~antsin thçse proceedings.
Now, Mr. Pres~dent, the distinguishcd rcprcsentntive III the Neihcrlands
did not deal wiih ihis hisiorical record at XII.hut he contcnded that a succession
of supervisory functions had taken place as= result of the inherent adaptability
of the mandates system. 1 do not need to deal with that argument here. All 1
need say is that this was clearly not the understanding of States during the
period in question.
Not only did the States during the relevant period make no reference to suchan automatic succession, but the extent and the nature of the discussions con-
~~rnine the establishment of the tmsteeshio s. .em and the future of the man-
dates s)stem exclude, in my submission, any contemplation thüt the mdndates
svstem could, by reason of lis inhercnt adaptahiliiy, so to s;iy. look aftcr itsçlf.
There was; in my submission, clearly no contemplation that arrangements
wereunnecessary in respect of themandates systern. Like al1the other functions
and activities of the League there were discussions, proposais and sa on, but,
as 1 have shown, they came to nothing in the end, and the reason for that is
clearly not that there was some inherent adaptability in the Mandate itself
which would enable it to overcome anything that might happen to any of the
~ns~itutions to which it was attached.
Mr. Presideni. this pîri of the record \\,as also considered hefore this Court
bs the Government of Pakisiîn. In ils written statement ît 1,page 356. nara-
g;aph 5. ilstaied thît in the beginning. after 1946.South ~fricî conccdch the
existcncc of the Mandate and hcr obligations thereunder, including thît of
renderinc rcDoris to the United Nations (u,riitcn siatemcnt, 1,o. 3561.
No rcferenccs ucre hou,e\rergiven as to uhcn and whcre and how thesc con-
cessiuns uere allegedly mÿde by South Africa. In the oral siatemcnt (supru.
pp. 138-1391the distinguished reprçsentativc of Pakisian amplificd his written
statcment by taking 3 fctr sentences oui of t\vo siïtements. in my respccrful
subniissinn, out of context. The one sentence ii,as froni the srarenieni on 22
January 1946in u,hich the South Africîti represcniative announccd his Ciovern-
nient's intention of subrnitiing. afier ascertaining the aishes of the inhabitanis
of South West Africü, its decision on thc proposal to incorporate the Territor).
tu rhe Generül risscmbl\ "fiir iudrmcnt". Thç Court will resall thc srarement
made hy the South ~frkan répreientative-1 read it out the other day and 1
do not have to do so again. It concludes hy stating that after the wishes of the
inhahitants had been ascertained, the decision of the South African Govern-
ment would be submitted to the United Nations for judgment.
Now this certainly indicates that the South African Governrnent did not
. .oose incorooratine theTemitom without theaoorovalofthe UnitedNations.
It is quitc clcir thatihc South ~fricîn Governient was not proposing any
unilateral action. It was proposing to subrnit ihis issue to the United Nations.
Obviouslv ~ractical and oolitical considerations militated aaainst any uni-
lateral action by the ~outh'~friçan Guvernment. But, Mr. Prcs~dent.I pose the
question: could any person reasonably have thought thdt thc South Africîn
Government. which was hooinz to incornorate the Territory. was, bv makinc
this statement, acknowledgingiupe~iso j powers on the part of the ~nited
Nations, whereas its obligations towards the League were in terrns about ta
lavse? In rnv submission the answer must clearlv he in the neaative. Quite
clbarly. in ;y vicu,, the South Africîn Governrnent ans not su~gcstingihai
becîuse it wanied to submit this isue of incorporation to the United Nation<
it was therefore acknowledging an obligation to submit reports under the
Mandate to the United Nations.
The two things, in my submission, are not related at all. Certainly nobody
contended at the lime that in this way South Africa had acknowledged an
obligation to report and account under the Mandate to the United Nations.
The second passage relied on by the distinguished representative of Pakistan
is from the South African statement during the final session of the League
Assemhly.
Now, Mr. President, in my submission, the distinguished representative
seems to have overlooked the first sentence of the passage quoted by him at
page 139,supra, where the South Afican rep~sentative pointedly said that the ORAL STATEMENT BY MR. GROSSKOPF 361
disdppearance of those organs or the Lcague conccrned with the supervision of
manddtcs. primarily the Mandates Commission and the League Council, uould
necessaril. .reclude comolete cornpliance with the letter of the Mandate. Those
very pointcd and. in mysubmission, veryspecific uords \isrr, it seems, nor fully
apprcciatcd by the distlngu~shed representative. But the distinguished repre-
sentative also refrained from readinx an earlier oassaae in which the south
Afriian Goi*crnmcnre.ipressed the inÏcntion of adhinisÏering the Territory for
the advanccmcnt and promotion of the intcrcsts of thc inhabitants "as she hds
done durinn the Dast six years when meetings of the Mandates Commission
could not be held". The fÜllpassage is quoleiin Ourwritten statement, Chap-
ter VIII, paragraph 26.1 stressed these words earlier today, Mr. President, when
dealina with this statement bv the South African reoresentative at the final
session of the Iraguc: becauîe thcy arc, in my suhmission. important He was
clearly enitisaging a continuaiion of the situation which had prevailed during
the period when there was no supervision by the League, when the Permanent
Mandates Commission did not sit and when reports were, in fact, not sub-
mitted. So that, reading the statement as a whole, there can, in my submission,
be no doubt that the South African Government was not accepting any obli-
gation to report to the United Nations but, on the contrary, was clearly as-
serting that there was no such obligation.
At nace 139.suora. the distincuished reoresentative of Pakistan continued to
state ihat south Âfrica announced, after dismissal of itsincorporation proposal
"... that it would continue to submit reports on its administration of the
Territor, as it had done vis-&vis the Leaaue".
Now here again no reference is given for this proposition. 1 have this after-
noon read the various statements made by the South African representatives
and none of them aoes bevond a contemolation of the transmission of infor-
mation. such as rs requiredby Article 73.;\t no stage usastherc an undertaking
to submit reports lis had been done vis-&vis the Irague. Itwds always con-
templated thdt there would be a voluntarv transmission of a limitcd ty~e of
~~~-~~~~~~~~-~
Mr. President, on the basis of these statements, the distinguished represen-
tative of Pakistan contended that South Africa is estoo~ed from challenaing
theauthority of the United h'3tions. Estoppcl ininternatiunal Iaw,Mr. ~resi&n<
in my submission, has certain fairly clex rcquircments. In my submission, in
order to invoke an estoppel against a party the other party must show (a) an
attitude clearly adopted previously by the party sought to be precluded, (b)
the bringing about, as a result of the adoption of such attitude, of a change in
the relative positions of the parties, worsening that of the one, or improving
that of the other, or both, and (cia present claim which is manifestly contrary
to the attitude adopted previously.
As authority for these propositions 1would quote the TempleofPreah Vihear
case, I.C.J. Reports 1962, page 6, particularly the separate opinions of Judges
Alfaro, Sir Percy Spender and Sir Gerald Fitzmaurice, and Bowett, D. W.
"Estoppel before International Tribunals and its Relation to Acquiescence",
inBritish Year Book of InfernationalLaw, Volume XXXIII, 1957,pages 176-202.
Mr. President, in the authorities 1 have just quoted, it is emphasized that
estooml is essentiallv a means of excluding a denial that might becorrect and
preienting the asserhon of what might in ïact be irue. The previous statement
of attitude on which reliance 1splaced musi accordingly, in my submission,
have been a comoletely clear and unambiauous one.
In the prcscnt case ;he South African siatemcnis during the relevant period
consistzntly Jenied. in my submission. any supxvisory powers on ihe part of362 NAMIBIA (SOUTH WEST AFRICA)
the United Nations. The undertaking, as 1 have already said, was purely in
regard to information of the sort covered by Article 73. Moreover prior to the
1950 Opinion it was not the attitude of the United Nations that it had super-
visory powers under the Mandate, nor did the United Nations rely on any
alleged representation on the part of South Africa to accept the supervisory
authority of the United Nations. That is as far as the United Nations as an
organization isconcerned-the attitude of United Nations Members at the time
will be considered shortly.
Imight just, at this stage, notethat as late as 1961a UnitedNations committee
considered these same statements to which reference was made by the dis-
tinguished representative of Pakistan and came to a diametrically opposite
conclusion. This was in the report of the Committee on South West Africa
concerning the implementation of General Assemhly resolutions 1568(XV) and
1596 (XV) which is in United Nations General Assembly Oficial Records,
Sixteenth Session, Supplement 12A (A14926). 1 read from paragraph 157,
as follows:
"157. Consequently, the Committee is more than ever convinced that
no peaceful solution to this question of South West Africa is likely tbe
acceptable to the South African Government except on the basis of its
outrieht or virtual annexation of the Mandated Territorv in whole or in
part.-south Africa's reservations to the last resolutiin on Mandates
adopted by the League of Nations before its dissolution in 1946and to the
applicabil~ty of thecharter provisions on international trusteeship over
mandates upon the adoption of the Charter in San Francisco in 1945;
itsproposal to annex the Mandated Territory at the second part of the
first session of the General Assembly in 1946;. . ."
and then 1delete a number of further acts committed, or alleged to have been
committed by the South African Govemment, to reach the Committee's
conclusion which is that ". ..al1these are eloquent proof of its resolve at al1
costs to annex and appropriate, for its own use and benefit the object of its
sacred trust".
So, MI. President, whereas the distinguished representative of Pakistan saw
these statements as being representations which would estop South Africa
from challeneine the authoritv of the United Nations. the United Nations
itself hasseen itin quite the hpposite light as an indication of intention on
South Africa's part altogether to exclude the United Nations. In some way
they are seen bydifferent people to be to exactly the oppositeeffect.
And, MI. President, 1 might add that this paragraph amongst others was
singled out hy the representative of Pakistan in the Fourth Committee as
deserving the fullest consideration. (Vide GA, OR,Fourth Comm., 1225th
Meeting, 27 November 1961, p. 490, para. 33.)The report itself was noted
with approval by the General Assembly in resolution 1702. So in 1961 these
statements were given quite a different interpretation. But, MI. President,
perhaps one should go back even further and see how the representative of
Pakistan or the Govemment of Pakistan saw the matter shortly after these
statements were made. And that one finds from a statement bv a re~resentativc
of Paki5tan in 1947. It ir quord in the seccind part of the ~nncx'to Chlipier
VIII of our wriiicn sraiement. There Mr. Pir~adaof Pakisran\a!dthe following:
"A simple cornparison of the relevant Articles in Ch~pters XI and XI1 of
thc Charter \\,il1shoiv clcïrly the advaniage, of one systcni o\,er the other.
Thc first advüntagc ihar I would slrcss is that under the presenr nimdates ORAL STATEMENT BY MR. GROSSKOPF 363
system only one country is responsible for the proper administration and
the development of political and other institutions within the Territory.
It is the conscience of one State which will be guiding it al1the time to
follow the orovisions laid down in Chaoter XI of the Charter.On the other
hand. ifitcornes under the lntcrnatio&l Trustceship Sy,teni, itwill bc the
conscience of al1 thc United Nations, as represented in the Trusteeship
Council. u,hich \\,il1he auidinc the ûdministriition of the Territorv and
which, therefore, has a greate;chance of being directed in the inierests
of thepeopleof that Territory.
The second advantaee which the Trusteeshio Svstem h. .over the
ordinar). ddniinistrütion~under Chiiprcr XI i\ thüt inierniirional supervision
is prowded under the Internationîl Trusteeship System, according to
Article 75 of the Charter. As agüinst that, under Chûpter XI of the Chiirtrr
which relate, to the administration of Non-Self-CioverningTerriiories-to
which clais this Territon of South West Africa u,ill ha\,e IO bclona if it
is not brought under thé Trusteeship System-there is no provision for
international supervision, and the only supervision that exists takes the
form of supplying information on non-political matters for the considera-
tion of the United Nations: in other words, economic social, and other
matters.
There are two systems under the Charter of the United Nations, namely,
the administration of Non-Self-Governine Terntories. and the adminis-
tration of territoriesunder the ~rusteeshii~ystem. This would be a third
system-administering in the spirit of the mandate-which the Charter
does not recognize and which the Charter seems to abolish altogether.
Therefore, by refusing Io place this Territory under the Trusteeship
System, the Union of South Africa is going back on both principles
recognized by the Covenant of the League of Nations: first, trusteeship
of an international body; second, supervisory control of an international
body."
That was on 1 Novemkr 1947,Mr. President, and certainly at that stage the
Government of Pakistan was a~~arentlv not under anv im~ression that South
Africa hiideithcr accçpted an obligation IO recognix united Nation5 iiuthority
as supervi~or).organ, or even thlit South Africiihüd beenestopped froni denying
anythina of that sort. At that staae the contemnlation of the Government of
~akistai was apparently that if south Africa f'iled to conclude a trusteeship
agreement then Article 73 would be applicable, and only Article 73. That, in
the view of the Government of Pakistan. was not a desirahle situation because
the reporting requirenients under Article 73could not k rcgîrded asequivalent
to international supervision. The eRéctuould thereforc, in 18sview, have been
that in the absence of a trusteeship agreement there would have been no inter-
national sunervision.
But the point 1really wish to make isthat there was no contemplation in 1947
by the representative of Pakistan that there was any commitment by South
Africa towards the United Nations other than that apbearing from the charter.
So one might pose the question, Mr. President, if estoppel does operate who is
estopped-South Africa or Pakistan?
1corne now to a further oarticioa.t. n.melv the United States of America.
It referred in its written siatement 1,at page 846 to the resolution of the
South African "Parliament", whichI have already mentioned. For the reasons
1have alreadv eiven. that resolution of the Hou~e~of ~ssemblv. .. mvsu,mission
takes the niaitir no further. Imight evrn sity itis of positive advantîge to us
inîsmuch as itsh0u.s a clex contemplation that the House of Aswnibly did not ORAL STATEMENT BV MR. GROSSKOPF 365
I would merely say, Mr. President, that the resuméof events that 1 have
given would show that that is an incorrect statement on the part of the distin-
guished representative of India.
1 turn now to the practice of States on this question of mandates. As I said
earlier, much of the argument one hears in support of the proposition that
South Africa had undertaken an obliaation towards the United Nations to
-
report undcr ihe mandate ii.in m). respectful submission, ha%edon an er post
focto type uf rliiionali7üiiun.heinuse supcnening cvcnis rcndcred it drsirrible
?rom the ooint of view of certain neoole or States that there should be suner-
vision. ~h'erefore 1submit that miny People have looked for pegsto hangihis
supervision on. However, if one has regard to what wassaid andwhat was done
inthe vears immediatelv after the establishment of the United Nations and the
disso1;iion of the ~en&e, ihen one find~ thai the ~tiitudcs cuprcs,cd b) State,
were quiic different One does not then find thai thc samc interprctdiion\ were
-iven to statements as were sometimes eiven later. on this sort of ex oosr facto
rationalization basis. One finds that thégeneral attitude of States wkeniirely
different, words were accepted in the ordinary meaning and in their context.
In general one finds, in mv submission, that the practice of Statesin those years
sh&cd a gcneral understanding that the Lcague'~s supervi9ory pou,ersin respect
of mandates hdd not bcen tr~nsferred ta, or assumed by, the United Nations
and that the mandatories. i. .articular South Africa, had not undertaken an
obligation to report and account to the United ~ations as any successorto the
League.
Wediscussedthis in Ourwritten statement, Chapter VIII, paragraphs 42 to 46,
and 72 to 77 and also in the Annexes from which 1havejust read the statement
by the representative of Pakistan in 1947.
South Africa expressed its attitude at that time very clearly before the
various organs of the United Nations to the effect that the South African
Government was not obliged to conclude a trusteeship agreement for South
West Africa and wasnot prepared to do so, and that in the absenceof a trustee-
ship agreement the United Nations had no right of control or supervision or
supervisory jurisdiction in respect of South West Africa. That attitude was
stated veN clearlv bv the South African renresentative. If other Members of the
United ~ations did-not agreewith theseontentions one would have expected
them to say so. For instance, the contention advanced by South Africa that it
was not oblie-d to conclude a trusteeshin.ag-eement was indeed contested bv a
number ofrcpreieniaiivcr. ïhcre werc quiie a number ofSrnies who adoptcd the
attitude thîi ihere u,a\ an obligation Io conclude a tmstceship agreement.
However. Mr. President. we show in the vassagesto which 1 have referred
that although representati;es of 41 States addressëd the various organs of the
United Nations on thequestion of South West Africa during 1947,andalthough
the auestion of reuortinr was a verv actual one. not one of these 41 States
averred that the sipervisory functions of the League had passedta the United
Nations. On the contrary, at least 14 of these States acknowledged either
expressly or by clear iinplication that in the absenceof a trusteeship agreement
the United Nations would have no supervisory powers in respect of South
West Africa.
During 1948 and 1949 four additional Statesassociatedthemselveswith this
view.
When 1 refer to supervisory powers 1, of course, mean supervisory powers
under the Mandate as such. Some of them did contend that South Africa was
under an obligation under Article 73, but that is something else again. There
was no contention that the functions of the League concerning mandates had366 NAMlBlA (SOUTH WEST AFRICA)
been transferred to the United Nations. As 1 say, at least 14 of these States
acknowledged a contrary contemplation.
As we show in the passages quoted, MI. President, it was only in 1948and
1949 that five States averred that there was an oblieation under the mandate
to the United Nations. However, as we note in ~hapter VIII, paragraph 45,
there was considerable inconsistency in the contentions advanced by these
Also in rcspcct of othcr mandûted ierriiorie3, the pr~cti$ifSr:itesup10 1948
shows a clcdr undersiandine thïi the Uniicd Nations uould h3t.r nosupcrvisory
powers over the administration of a mandated territory which was not placed
under trusteeship. This understanding appears from quite a number of
instances which, for the most part, we have detailed in our written statement.
There is firstly the case of Nauru where the Trusteeship Agreement was
entered into as late as Novemher 1947, and where there was no reporting prior
to such conclusion of the truste es hagreement. We mentioned that in para-
grüph46oiChaptcr VI11ofour writténGatenieni.
As rcgïrd.; Wcbtcrn S~mii~,iiappear5 ihai on 22Novcmbcr 1946.ihercprcsen-
tuive of New Ze~land cxprcsscd a clear undçrsrïnding 1hJtthe Cnitcd Nïtions
would have no supervisory functions in respect of western 'Samoa unless a
trusteeship agreement were entered into. We deal with that in paragraph 44 (a)
of Chapter VIII.
The Cour! roseat 6p.m. FOURTEENTH PUBLIC SITTING (2 LU71, 10am.)
Present:[SeeSittingof 8ïi71.1
Mr. CiKOSSKOPF: Mr. President, honourable Mcmbers of the Court,
yestcrdiiy Idealt with the cvcntr during the period of the establishment of the
United Nations and the dissolution of the League \rith the obleci of showing
that no agreement wasconcluded and no represëntation was made which would
have had the result in lawthat South Africa becamebound to report and account
to the United Nations under the Mandate.
1 also contended that the United Nations itself did no1 claim that such an
obligation existed. 1referred to certain statements to the effectthat the decisions
taken at the first sessions of the General Assembly concerning the Mandate for
South West Africa showed chat the United Nations had undertaken the
responsibilities concerning the territories. It might be convenient for the Court
if 1were to aive the references to the relevant resolutions and a brief summary
ofthem.
in 1946there was resolution 65, to which reference has already ken made,
and which stated in its operative paragraphs, as the Court will recall. that the
Gener31Assembly u,as unable IO îccc& Ïo the propowl for incorpordtion and
thatitrecommendcd the placing of South West Africa under trusieeship.
Ln 1947 the resolution <tas 141ND. 'Thisresolution. in ils owrativc Dara-
graphs, look note of the intention on the part of the sofrica aGnoverkent
not to proceed with ifs proposals for incorporation and again urged the
conclusion of a trusteeship agreement. It also authorized the truste es hi^
Council to examine the report Ïhat had ken submitted. The Court will recail
the circumstanccs undcr which thai report was submiticd.
in 1948there was resolution 227 ml) which again urgcd that the Terriiory
be olaced under trusteeshin and recommended that the submission of informa-
tion be continued and be examined by the Trusteeship Council.
Then, Mr. President. the last resolutio1wish to refer to is the one in 1949,
which was of course the ,ea~ ~mmediatelv. .ecedine the 1950Ooinion. There
the relevant resolution uas 337(IV)and, aith the Court's leave.'~would read
the operative ppîragrdphs.After setting out the hisiory and in particular the
undertakine to submii the information bv South Africa and the fact ihni the
undertaking was subsequently withdrawn,ihe General Assemblycontinued:
"The General Assembly
1.Expressesregret that the Government of the Union of South Africa
haswithdrawn its nrevious undertakincr.referred to in resolution O41 of
I November 1947: IO submit reports on its administration of the Teni1'ory
of South West Africa for the information of the Unitcd Nations;
2. R~ireroierin iheir entiretv Gcncral Asseniblv resoluttons 6m of
14December 1946, 141 of.1 November 1947and 227 0 of 26 NO-
vember 1948;
3.Invitesthe Govemment 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 Assembly contained in the resolutions enu-
merated in the preceding paragraph." 1 would emphasize that the language of this resolution is clearly not that
which would be used by a body which has, or considers that it has, supervisory
functions as against a State which refused to submit to such functions. The
General ~ssembly merely expressed regret that the reports were discontinued.
There was no element of reproach or condemnationand the type of reports to
which it refers in its operative paragraphs are the type of reports to which 1
referred yesterday, namely reports for the information of the United Nations.
The General Assembly clearly realized that these reports were merely of the
nature of information supplied for the use of the United Nations. for the
information of the ~lnitcd~ations ;inù not a iorni of subniitiing io rupervi\it>n.
The third iiperativc paragraph uses the word "invitcj". There again, had thc
Uniied Nations General Assemhly ken <ifthe vie\\,thai iihsd iiricht todeninnd
reports, it would hardly have used the word "invites" in this contëxt.
When regard is further had to the preamble setting out the history of the
matter, it is, in my suhmission, quite clear that the General Assembly was
merely urging the Government of the Union of South Africa to do two things
which the General Assembly wellrealized that the Union was not obliged to do,
namely firstly,to submit a trusteeship agreement which was, by its nature, a
voluntarv act and. secondlv. to submit this tvo..of information in resoect.~f ~
which th; Union <i fouth ~frica had givcn this voluntary undcrtsking. More-
ovcr, 11appciirs quitc clearly, in niy suhmirsion, thai the Gcnrral A~semhlsdid
not consider thatit had anyrights going beyond the receipt of such information
of the type which the Union Government had intimated that it would submit.
So there is no contemplation of any general right of supewision or anything of
that sort. itis merelv a matter that it wished South Africa to continue trans-
~ ~~ ~ ~ ~ ~
mitting.informationof the type which it had transmitted and which it said it
would transmit, that is, information of the t. .to which reference is made in
Article 73 oftheCharter.
This contemplation, Mr. President, 1 submitted yesterday, also appears
clearly from the debates at the time. These are set out in full in our written
statement and 1 do not wish to repeat them here, but my submission is that a
reading of the relevant parts of the written statement will show that there was
no contem~lation amoncst Members of the United Nations that the United
Nations had su:cecdcd a;sup.rvisory auihoriiy in the place of the Le~guc.
I alço conin1c1iccd in)drgunicni yeaerdiiy Io >ho\\ thit the une comtcnipld-
tion existed with respect to other mandates-it was not confined to South
West Africa: Also in respect of other mandates there was no contemplation
that the United Nations had succeeded to the powers of the League Council
in respect of mandates and no contemplation that there would henceforth be
an obli-ation on mandatories to submit renorts to the United Nations.
1referrcd IOthe ïpecific instances oi Ns.iru and Western Sdnioa.
A third exaniple 1s thdt of the Jiip4nr.s~mdndsied islands. On ? April 1947
Mr. Cirom)koofthc USSR expressed the rirni vieu ihat therc \\as nocontinuity,
legïl oroth~nii~e, heiiiecn thc niandates jyiteni and the trurrccïhip ry.riem2nd
that the Security Council i\ss not.c<iinpctcni to Jecide IO \rhat eAtent Jiip~n
mav have violated the conditions of the mandates svstem. We refer to th2 in
patagraph 44 (6) of Chapter VlII of our written statément.
The whole historyof these Japanese mandated islands supports the argument,
in mysubmission, that 1 haveadvanced up to the presenti that there was no
contemplation of a succes,sionof powers between the United Nations and the
, +pue. However, this history will be related by one of us at a later stage and
therefore 1 do not want to deal with it now. 1 would merely ask the Court to
bear this featurealso in mind when thehistory isdealt with at a later stage. ORAL STATEMENB TV MR. GROSSKOPF 369
A further matter 1would refer to is that of Palestine which has, from time to
time, been suggestedas an example of the taking-over of the League's super-
visory functions by the United Nations. See, for instance, in this connection
the written statement of the United States of America (written statement, 1,
p. 861).
In Our submission, the history of Palestineshowsthe very converse.This issue
is also of some importance in resoect of the oowers of the United Nations
under the Charter ÿnd IIhas beenquoted in ihat regaid. 1 ïni no1 concerneri
\rith thst sspeii ai the moment. bui becauseof ils u,ider significance it niighibL.
convenient to give some attention to the whole history of events concërning
Palestine.
Mr. President, the difficulties with Palestine of course, as we al1 know,
commenced a long time ago.
In 1937a commission was appointed hy the United Kingdom Government,
the PeelCommission, which stated that the Mandate for Palestinecould not be
fully imolemented unless by some means or another the national antaaonism
. .
beitiecn the Arabs and the Jeu,scould be composed. The Commission iccord-
ingly proposed ihat appropriate sieps he taken for the terminaiion of the
Mandate on the basis of oartition. MY reference there is from the work hv
J. Marlowe. TheSeorof~;lure. ai papes~14?-143T . his is a work thai is aviiilabi
in the Court's Libraw. Thts recommendaiion uas, however. no1acceptedby ihe
United Kingdoni Guvernment \\,hich issued a White Paper in 1939 in which
\\a\ sisied that wiihin ien )cars the Mandate would betcrminated and Palestine
kcsnie an independent State. This propos:il was strongly condenined by
Jewish oublic ooinion and was also officiallv reiected bv the reoresentatives of
the ~alistine rab parties (CA, OR, Secondse%., supplément li, Vol. 1,p. 26).
Towards the end of the Second World War Palestine erupted into violence
aaainst the British occuoation. with increasine hostilitv between Jews and
A-rabs Eventually the unitcd Kingdorn ~overnmcni ubiïined the coilperation
of the United Siïies of America for a jo~nt Anglo-American Cornmittee of
Enquiry. The report uflhis Coniniittee \vaspublished on I May 1946.11smajor
proposal.. \rere thai Palestine should be neirher a Jewish State nor an Arab
Staiç hui ihat ii\hi)iild ultiiii~iely becumea State wlilch would guard the righis
dnd interccts of Moslcnis. Jewsand Chrisiiïns al~ke,and ihai uniil Arab-Jeivi5h
ho5tility disappeared ihe Government of I'aleriine bç coniinued under mïndaie
pending the exccuiion of 3 trustccship xgreenienr under rhr United Nations
(ibid.,p. 27).
Followine an examination of the Anelo-American Committee's reoort. the
United ~iGdom Government announcéda new plan as a basis for discussion
with Arab and Jewish representativesand those of the Arab Statesat a confer-
ence held in London in 1946. The olan orovided. inter nlio. for division of
~alestinrinto fox senii-autonomous'nre& bui it;as unrcservedly rejected by
the Jewihhïgcncy and by the Arab delegrtes to the London conference (;l>;iL,.
Thereafier. on 7 Februarv 1947. the I3rit1shdeleeïrion a1 the Anelo.Arab
- -
conference submitted a new proposal for a five-year British trusteeship over
Palestine as a oreparation for indeoendence.The trusteeship agreement was to
nrovide f~ ~a~&dé measure of a~ ~~ ~~ ~ ~ ~ah and ~ewkh areas: after f~.r ~~
yearsan assembly was to beelected and if agreementcould be reached between
a majority of Arah and Jewish representatives, an independent State would be
established immediately.
There had been a number of diiïerent proposais which were to a greater or
lesser extent unacceptable to the various parties; and this proposal was also
unacceptable to both the parties. The leaders of the Arab delegations statedthat no proposal which involved any fonn of partition would be acceptable to
them, and the Jewish agency's statement declared that the proposais were
incompatible with, inter alia, Jewish rights to ultimate statehood (ibid.). This
caused the conference to come to an abruot end on 14 Febmaw with the
announcement that the United Kingdom Government had decided io refer the
whole problem to the United Nations (Marlowe, op. cil.,p. 218).
It has been necessarv in mv submission to set out this-backeround in some
detail in order to be able to undsr,tand i\hy the mattcr -,as ulthatcly brought
io the United Nations. Il should, in my subniission, be siressed that ai no stage
prior to 14 Fcbrudry 1947iias therï an). suggestion that Grcït Britdin should
subniit reports on PalesIlne Io the United Nations or should, in other u.üy5,
submit to supervision by the United Naiions. There uas, 3s far as \ie are aaarc,
no suagestion inside or outside the United Nations that this was a matter which
reallypertained to them.
It is, accordingly, in my submission, abundantly clear that the British
decision was motivated by the recognition that it was impossible to work out a
compromise which would be acceptable to Arabs and Jews alike, and by a
reluctance to enforce on its own a plan which was against the will of both
parties. Thus, speaking in the First Committee, the United Kingdom represen-
tative said:
"We 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 will be accepted by bath parties if could hardly beexpected that we
should not welcome such a solution. All we say ... is that we should not
have ihe sole responsihility for enforcing a sol;tion which innot accepted
by both parties and which u.ecannot rcconcile with our conscience." (CA,
OR, Second Sers.. Supplemeni II. Vol. 1, p. 2.)
And, at a later stage, the United Kingdom rcpresentative said in the General
Assembly:
"It was on the initiative of His Majesty's Government in the United
Kingdom that the General Assembly placed the problem of Palestine's
future government on its agenda. .. In accepting the mandate for Palestine
after the First World War. His Maiestv's Government i~ ~ ~~ ~ited
Kingdoiii undcriook IO work for the e;tat;llshnicnt of a natiun~l honie for
the Jei%,ispeople <inthc under\tsnding th:itnoihing shoiild be done iihich
might prejudice the civil and religious rights if existing non-Jewish
communities in Palestine. It was assumed at that time that the objects of
the mandate could be carried out with the consent and CO-operation of
both neovles. Time has shown that this assumotion was incorrect. After
years'of Strenuous but unavailing effort, His ~ajesty's Government ha
reached the conclusion that it is not able to bring about a settlement in
Palestine based uoon the consent of both Arabs and Jews. and that the
mandate is no longer workable. It is for this reason that it has brought the
problem before the United Nations, hoping that the General Assembly
would be more successful in the search for an acceptable settlement."
(Ibid.,Plenary Meeting, Second Sess., Vol. II, p. 1323.)
The imporiant point hcre is ihai the United Kingdom uas not moti\atcd by
any contemplation thÿtit u,a under an obligation to accept supcwision by thc
United Sations. II u,as in a difficult situation. il had tried for years 10 rol\'e
this problem, al1 its efforts had proved unavailing and it was-searching for ORAL STATEMENI BY MU. GROSSKOPF 371
assistance from the Or~anization in order to reach some solution which would
be acccptablc. At riny rate, ilno soluiion would be acceptable to both parÏjes.
ihc Unitcd Kingdom would ai lcast have the support of the Members of the
United Nations for such solution as mizht be recommended.
By letter dated 2 April 1947, the united Kingdom delegation requested the
Secretary-General of the United Nations to place the question of Palestine on
the agenda of the General Assemblv at its next regular~amual session. It was
stated that the United Kingdom would submit to-the Assembly an account of
ils administration of the Mandate and ask the Assembly to make recommen-
dations, under Article 10of the Charter, conceming the future government of
Palestine (ibid.,Second Sess., Supplement IL, Vol. II, p. 1).
I note at this stage that the General Assembly was merely asked to make
recommendations, but that is an asDectwith which we will deal later.
At its First Spe~.i<iSlcrsion in 194j.the Cienerïl Assembly rcsolrt-d to appoint
a speci31coniniiitee consisiing of represent3tivcs of Austr~lia, Canada, Czeiho-
slovakid, Ciidtciiiala, Indi~. 1r.tr1,Sctlir.rlrinds, Pcru, Surden, Uruguay and
Yueùsla\'iï. 1rcfcrrcd to this spcciïl committec yesterday and its function ivas.
as the Court ivilrccdll, ouir olia, to prepare a report IO the Gcncriil Assembly
and to submit such uro~osals as it mizht consider aD~rooriate for the solution
of the problem of ~ilestine (ibid.,~irsï~~ecial ~ess.,~iesoiution106(S. 1)).
In the Committee's report there was also, we submit, a clear contemplation
that there was no dutv of accountability towards the United Nations under the
Mandate in respect of Palestine. I have already quoted the following paragraph,
but because it also appears in context here 1hope the Court will excuse me if
1quote il again. There are certain further paragraphs wbich follow on that and
which 1 have not yet quoted. So as not to break the context, 1will, with the
Court's leave, regeat it.It reads as follows:
"Followine the Second World War. the establishment -~~~~e U~ ~e~
Nations in 1945and the dissolution of the League of Nations the following
year opened a new phase in the histow of the mandatory rkime. The . .
mandatom Power. in the absence of the Leaeue and i-s P~ ~anent M -a~-~
dates commission, had no international authority to which il might
submit reports and generally accouot for the exerciseof its responsibilities
in accordance with the terms of the Mandate. Havine this in mind. at the
final session of the League Assembly, the United ~ingdom representative
declared that Palestine would he administered 'in accordance with the
general principles' of the existing Mandate until 'fresh arrangements had
been reached'."
Then, after recommending unanimously that the Mandate for Palestine shall
be terminated at the earliest practicable date, the Committee commented as
follows:
"(d) It may be seriously questioned whether, in any event, the Mandate
would now be possible of execution. The essential feature of the mandates
system was that it gave an intemational status to the mandated territories.
This involved a positive element of international responsibility for the
mandated territories and an international accountability to the Council
of the League of Nations on the part of each mandatory for the well-king
and development of the oeooles of those territories. The Permanent
Mandates commission wa; created for the specific purpose of assisting
the Council of the League in this function. But the League of Nations and
the Mandates Commission have been dissolved, and theTeis now no means372 NAMlBlA (SOUTH WEST AFRICA)
of discbrging fully the internation~l ohlig~iion uith regard ta iiniiiiddied
ierriiory other ihan by placing thc territory under the Inrernatiun-il Truitce-
ship Sysieni ofthc United Nation$."
1 would stress those last words. Mr. President. the conceotion that because
the League and the Mandates Commission had been dissolved, there was then
no means of discharging the international obligation other than by placinp the
territory under tmsteeship. Thequotation then continues:
"(e) The International Trusteeship System, however, has not auto-
maticallv taken over the functions of the mandates svstem with regard to
mandated territories. Territories can be placed unde; Trusteeship only by
means of individual Tmsteeship Agreements approved by a two-thirds
maiority of the General Assembly.
.,. ~he most the mandatorv could now do. therefor~~-~n~~.e ~v~ ~~~f~the
coniinuatitin of the Mandate. \iould bs io cnrr) oui iis ;idministrari<~n.in
the spirit of the hlandaie. aithoui kin~ able lu dijcharpc ils inierri~iir?n~l
obligations in accordani< wiih thc intcnr of the manJatc\ sysiem. At the
lime of ihc terminütion of thc Pcrniancnt \landares Coinmis$iùn in April,
1946. the m3ndiitory I'oiier did. in faci. Jecltire ils intention Io carr(ln the
administration of Palestine, pending a new arrangement, in accordance
with the general principles of the Mandate. The mandatory Power has
itself now referred the matter to the United Nations."
Takine the auotation as a whole. there was a clear cont~ - - ~ e~~n ~he nart
of this &mm;ttee that the superv;sory functions had fallen away and thai the
mandatory could then only continue administering the territory in the spirit of
the mandate without any international supervision or, alternatively, place it
under the trusteeship system.Those werethe only two alternatives envisaged by
the Committee.
The report also contained a special note by the representative of India, in
which the following passage occurred:
"Moreover. the international machinerv in the form of the Permanent
Mandiitcs ~ommission, which had ken :;calcd for thc piirpose ai. scruti-
ni/ing the a:tions of the hlandnior) I'otiers, and IO jahich thcy uere bound
to suhmit annual reports, has, along with the League of Nations, ceased
ta exist. There are no means by which the international obligations in
regard to mandates can be discharged by the United Nations.
The Mandate has in any case become infructuous. and must, in my
opinion, go. Whether it codd be superseded by any other system within
the present Charter is a different matter, and will be dealt with when 1
consider the solution of the present problem."
So there again, Mr. President, was a specific recognition that there were no
means hy which the international obligation in regard ta mandates could be
discharged by the United Nations.
The next stage in this matter was that the report of the Special Committee
wasdiscussed by the General Assembly and referred to an AdHoc Comniittee on
the Palestine question.
At its 19th meeting the Ad Hoc Committee decided ta set up Iwo sub-
committees, the tasks of which would be to draw up detailed plans for the
future government of Palestine in accordance with certain principles. The
members of Sub-Committee 2 were Afghanistan, Colombia, Egypt, Iraq,
iebanon, Pakistan, Saudi Arabia, Syria and Yemen. The Sub-Committee ORAL STATEMENT BY MR. GROSSKOPF 373
elected the representative of Colombia, Mr. Gonzales Fernandes, as Chairman,
but he suhsequently resigned and, as you willrecall MI. President, you yourself,
as representative of Pakistan, were then elected Chairman in his place. Chapter1
of the Suh-Committee's report dealt with legal issues connected with the
Palestine prohlem. The following extracts from this chapter are, in our sub-
mission, significant:
.'A siudy iifChlpier XI1of ihc United Sations Charter 1é;ivcs no room
fordouht thdt ~nlçss and until the hlanil~ti~ryI'dwer negoii;itcs a irustce-
shio agreement in accordance with Article 79and oresents it to the General
~sseibly for approval, neither the General Âssembly nor any other
organ of the United Nations is competent to entertain, still less to recom-
mend or enforce. anv solution with Ïeeard to a mandated territorv.
This view is furiher confirmed by resolution 9 (I), adopted hy the
General Assembly on 9 Fehruary 1946,and by the fact tbat the General
Assembly is not able to take anfaction or give any directions with regard
to the Mandate for South West Africa unless and until the Government
of the Union of South Africa submits a trusteeship agreement for that
territory." (GA, OR, 2nd Sess., Summary Records of Meetings of the
AdHoc Committee on the Palestinian Question, p. 276.)
So, Mr. President, this Suh-Committee of the Ad Hoc Committee stated
explicitly that as regards mandates generally, and as regards the Mandate for
South West Africa in particular, the General Assembly was not able to take
any action or giveany directions unless a trusteeship agreement wereconcluded.
1now continue with a further paragraph in the report of the Suh-Committee:
"In the case of Palestine, the Mandatory Power has not negotiated or
presented a trusteeship agreement for the approval of the General Assem-
blv. The auestion, therefore, of re~lacing the Mandate hv trusteeship does
nit artse, q~iici1p3rti'roiiithe obv;,rus 6ct ~illud10abovc that the people
of P.ilcstine are ripe for \clf-gt>vcrnmeniniid ihaithïs ken agrsed on al1
han& ih:ii ihes should hi niadr indenendeni a1 the c.irliest nossihlc ilatc.
It also follows; from what has been said above, that the ~eneral Assemhly
is not competent to recommend, still less to enforce, any solution other
than the recognition of the independence of Palestine .. ." (Ibid., pp.
276-277.)
Tncic variuui reports. in my ~uhmisjioii, underline ivhai I said ycstcrday,
!idnicl!.thïi the vicws thïi have bccn cxprcïsed in recent )edn IO the elTeclthat
South Airica had undertakcn 311obliaiition to!i.ardc the (!nitcd Niitions tihich
the United Nations had accepted, are of very recent origin. At the time when
these things happened, nobody saw the position that way. At that stage every-
body accepted that there would be no reporting under the mandates, whether
for Palestine or for South West Africa, unless and until a trusteeship agreement
were concluded.
That, in my suhmission, appears very strongly from the reports of both these
Committees; as a matter of fact, as 1have pninted out, the Suh-Committee of
the Ad Hoc Committee referred in express ternis to South West Africa. And,
Mr. President, these aspects also appear from debates on the Palestinian
Question. There also. as weshow in Chaoter VIII.oarazraoh 44.of our written
siatement, there wasa general contempfation that'the United Nations did not
succeed to the supervisory functions of the League. Thus, for instance, the
United States said, in a passage quoted in paragraph 44,that "the record seemsto us entirely clear that the United Nations did not take over the League of
Nations mandates system".
Havine. re-ard to al1 the subseauent events. the whole ~ractice of States.
I u.ould whniit tliîtiii\ appareni'thîi thcre exiiied in the-years between the
dissolution of the 1.eagueand the IV50Opinion, :inalmust untversül contempla-
tion that the United Nations would have no suoervisorv authoritv in respect of
mandated territories not plsced under trusiwship. 'lhis contemplaiion i,, in my
submisiion, relevant for t\io purporcs; firstly, to rhou ihat no agreement aÿs
in facr concliidcd \\,herthv the Uniicd Nations. or irr hfeniherr. or the Lcdeuc
and ils Mcmberj, providid fur 3 succession of supen.i\ory functioni. If tiere
h3d beensuch an agreement thcn ohviously the parties to the ngreenieni would
have known aboutit and they would have mentioned it at the time when these
matters were actual and when they were regularly debated. But these events
secondly show, MT.President, in my submission, that therecould not have heen
anv estopoel. as has been contended here bv the renresentative of Pakistan.
Ït sho& that in two ways,firstly by negativing any suggestion that the South
African representatives made a representation to the effectthat they recognized
the authontv of the United Nations and. secondlv.in ..at it shows that other
persons ueré not intluenced or actuaied to ici on any such representatioii as
might have ken made. If oihcr people did not undersiand the South African
representatives to make a representation to that effect, then ohviously, in my
submission, estoppel could not have operated.
The only pertinent attention given to the aspect of State practice in these
oroceedinns was bv the distineuished reoresentative of Finland. who stated at
page 77,supra, thar "opinions exprcssed in the United Saiions on rhis question
uSeresome\ihai unclex", and ihst "statements hy certain dclegnies might
implv ihat the oblicaiions of the Cnion ofSuuth Africa :isni3ndaton had been
m6d;fied or diminGhed .. .following the dissolution of the League of ~ations
... But if they are examined more closely it becomes apparent that they are
often subject to qualifications, and their relevance was contested in the state-
ments of other delegates."
It is very difficult to reply to a general statement like this, which contains no
references and nives no details. So 1 am nerforce oblieed to renlv to it also in
a completely gcneral way. 1can only coAtend that if one reads the statements
which we have set out in Chapter VlII of our written statement, it appears
that they were not "somewhat unclearm-for the most part they werevery
explicit indeed.
Secondly, 1 do not know what qualifications are referred to, or what the
distinguished representative meant when he said that their relevance was some-
times contested. 1 cannot really reply to that, al11 could ask the Court is to
read these statements and to decide for itself what significance they have.
In my submission, the significance they do have is that the ovenvhelming
weight of these statements is in only one direction. These statements al1go one
way, with the one or two isolated exceptions which wementioned, and al1are to
the effectthat in the absence of a trusteeshin aereement. South Africa would be
under no obligation of supervision to the'ulited Nations. And 1 might say,
MI. President, that Our argument on this aspect has never been met by any
Derson; it has never. in our submission. been shown to he incorrect in any way.
1 came now to the 1950 Opinion. MI. President, most of the participants
who appeared before the Court relied in one way or another on the Court's
Ooinion in 1950. For the most nart no argument was offered in suopon.
~herc argument $vasoffcred in ~"~~ortof tic conclusii>n of the iiiîjo;i;y of
ihc Court in 1950 on this aspect ii frcquenily procecdcd on a hasii difrcrcni ORAL STATEMEN BT MR. GROSSKOPF 375
from that advanced in the Opinion itself, or it confined itself to some only
of the grounds mentioned in the Opinion while conceding the possible irrele-
vancy of others. This is in accordance with the general picture which has, in
our submission, emerged since 1950and particularly during the course of the
contentious vroceedines between 1960and 1966.
The 1950opinion Cas repeatedly been relied npon but, on the other hand,
nobody has, in OUI submission, controverted our contentions to the effect that
the mai-.itv decision was wrona and that the minoritv decision was correct
in the respect in question. For the most part people merélysay this was decided
in 1950and that is the end of the matter. On the other hand. somejudzes have
considered the correctness of the Opinion and, with one exception~wi~hwhich
1 shall deal later, they have one and al1stated expressly that this Opinion in
this aspect thereof could not be justified according to accepted rules of law.
This was stated by judges who upheld as well as judges who rejected the
decision.
Those who upheld the decision and gave reasons did sa, with one exception,
on an avowedteleological basis.Those who rejected theOpinion did so because
they did not accept the validity of the teleological approach and did not think
that the Judgment could be justified on any other ground. There is one excep-
tion to this proposition that 1have stated and that was the dissenting opinion
of Judge Wellington Koo in 1966. He did, indeed, go into the facts and seek
to show that the 1950Opinion was correctly decided according to traditional
conceots of international law. We have. however. 1submit. demonstrated that
his opinion is not logically stiund and propose dealin%w/ih itiigïin.
'l'h3tihthe posiiion as 13rai the judgej arc cunszrned. I niust irnrnediîiely
add, as 1 stated at the beginning, that~there were, of course, a number who
merely relied on the Opinion without offering any argument in support of it,
without considering in detail or at al1 the arguments advanced against its
correctness.
The same picture emerges when one has regard to the publicists, to the
writers on international law. There are, indeed, a number who merely refer
to the Ovinion but those who examine its correctness. those who consider the
basis onwhich it was decided, either reject it as being incorrect or elsejustify
it on a teleological basis. These various aspects will, Mr. President, be con-
sidered later.
This argument immediately raises the question: what weight should be
attached to advisory opinions? Mr. President, no participant in these proceed-
ings adverted specifically to this point but there is an apparent suggestion
mnning through many of the statements that the 1950majority Opinion must
be regarded as decisive. 1 would refer the Court to the following examples.
There was the oral statement by the representative of Finland at page 74,
supra-it appears twice on that page-pages 75, 76 and 77-78, andthewritten
staternent of the United States of America at page 860(written statements, 1).
These are merely examvles. there are also others. The references to the dis-
iinguished rcpresentati\,è of Finland arc perhdps m<i,tsigniliclint, becaure hc
repeÿtj so often th31the Court kas found thlit a succession iook place as if
thai i\ the be-dl and cnd-dl of rhc matier. In my resocctful submission. ho\%-
ever, that, MI. President, is not so. We have dealt-with this matter in our
written statement, Chapter IX, paragraphs 1 fo 4.
The 1950 Opinion could in theory be binding on this Court in one of two
ways, it seemsta us. It could firstlybe so because of the principle of resjudicata.
That obviously has no application to advisory opinions where there are no
parties and no decision which could he binding on them. Alternatively, it376 NAMIBIA (SOUTH WEST AFRICA)
could notionally be final and conclusive on some orinci~le of bindina Drece-
dent. There also, Mr. President, my submission is-that ihat clearly is-not so.
This Court has never accepted the proposition that it is bound by a previous
decision of its own
1have referred already to the passage from the dissenting opinion of Judge
Jessup in 1966,where he pointed to the purpose served by a dissent in a court
of fiial instance. Therebv he. of course. recoanizes th2 a subseauent court
might well come to a different conclusion on the same point.
1would also refer to a passage by Hambro quoted in Chapter lx, paragraph
2, of our written statement and which reads as follows:
"Advisory Opinions, even more than the judgments of the Court, will
be judged on their intrinsic merits. A judgment of the Court, even if it
is not perfect and even if the reasoningcan be criticised, can serve a useful
purpose because it will put an end to a dispute between two or more
States. An Advisory Opinion, on the other hand, does not serve this
purpose. It stands or falls with the legal arguments that can be deduced
from the reasoning of the majority .. ."
1would ask at the outset. does not this attitude of reeardina-the Ooinion as
decisive, regarding it as unimpaired and so on, really arise from a wishful
approach on the part of the people who adopt it, and a realization of the
difficulties which arise for anvone who attemots to out forward acceotable
legi çrounds in suppori ihcrc;,~.!Is ihis 3iiiiudr: noi one uhi~h peiiplc'adopt
hecausc ihcy \i,oiild Iike to sec the rcsult of the 1950Opinion bcing niainisincd
without really heina able to iustify it on leaa- ar-unds? In mv submission.
uhiih 1vil1develoi thcrc 3re;ndeed no Icgnlgro.inds, hlr. l>rs\i&nr. on \rhi:h
iimiglii hc jusiified. sîve for Ic.g«lyr<iuridssuasiilie (clc~logicab~sis Ih~ch
has been rejected in modern international law.
1turn first to the interpretation of the Opinion, to an ascertainment of the
basis upon which it was decided. In Chapter IX, paragraphs 5 to 14, we sum-
marized the 1950 maiori. .Ooinion and we concluded that the Court was
apparently arguing from whai it considered to be probabilities inherent in
the objective situation that there was an alleged necessity for supervision in
the mandates system, that the supervisory organs of the League had ceased
to exist and that the United Nations had another international organ per-
forming çimilar, though not identical, supervisory functions.
These general considerations were mentioned by the Court, and as we read
the Opinion they really form the background from which there was deduced
a general probability that those who were concerned with the matter would
do something to avoid the falling away of supervision, and would provide
for the substitution of the United Nations. We did not interpret these general
considerations as having been intended to serve by themselves as full justifi-
cation for the Court's finding. Indeed, Mr. President, we submit that they
could not have been full justification for the Court's finding. In themselves
they are purely considerations of what one might cal1 a legislative nature,
considerations which show that there is a desirabilitv that something should
hîppen riiiher than consideriiiions u,hich show, tha~something ha,,-in faci.
happrnerl. Thcy nierely indicaie ih~t rhcre niight have been î dcsire or a u,ish
or a need for certain action. They do not show that that action was in fact
taken.
We therefore accepted that the Court relied on these general considerations,
as they were called, only as indicating a general likelihood that those dealing
with the situation whenthe League was dissolved would have wanted to make ORAL STATEMENT BY MR. GROSSKOPF 317
some arrangement about transfer of supervisory functions to the United
Nations. ~nd, indeed, Mr. President, the court did no1 stop at these general
considerations, it continued to refer to further elements which one must assume
were also relevant in its reasoning
The first additional element ta which it referred was Article 80, paragraph 1,
of the Charter, which the Court said could not effectively safeguard the rights
of the peoples of mandated territories without international supervision or a
duty tO render reports to a supervisory organ.
The Court thereafter said that in its resolution of18 April 1946the Assembly
of the League of Nations gave expression Io a "corresponding view". The
Court stated that "this resolution presupposes that the supervisory functions
exercised by the League would be taken over by the United Nations".
Then, finally, what was apparently the las1element in the Court's reasoning
was the Court's statement that the General Assembly of the United Nations
was competent to exercise such supervision and Io receive and examine such
reports hy virtue of Article 10 of the Charter.
The ldst feature mentioned-the comoetence of the General Assemhlv-
could not, as we read the Opinion, have krved by itself asjustification for'the
Court's finding. That the General Assembly is competent under Article 10 to
discuss and make recommendations on a wide variety of things is of course
no1 disputed. On the other hand, if the Court were relying only on Article 10,
then there would have been really no point in mentioning anything else. As
we read the Opinion, the competence of the General Assemhly was apparently
mentioned only Io indicate which organ of the United Nations would be
authorized to undertake the suoervision. In other words. in the previous
reasoning the Court had, in ils biew, shown that the ~nited ~ations as an
organization had succeeded to the supervisory functions previously exercised
by the League, and in this final sentence il mentioned the particular organ
within the organization which would perform the functions. The reference to
Article IO, therefore, does not, in Our submission, assist in showing that
there is any duty on the part of mandatories Io submit reoorts. All il shows
is that ifrchortsare submitted, thcn the Generÿl Asïemhly i~uld hethe organ
\rhich uould examine thcm and which uould rnake reconimeiid~tions on thern.
So th3t. Mr. Presidcni, il follous that a dut) to submit reports must be
sought in the rsrlier reasoning of ihç Court. AI we interpreted the Opinion.
therefore, the general likelihood, to sihich 1havenlread) relerred, that arrange-
ments would be made for transfer. which likelihood aooeared from the general
sonsider;itions. forrncd the background ti>a finding tl;ita taot agreenicnt was
in ldct conrluded betueen thc founders of thc United Nations and ihc Members
of the League at ils dissolution.
The inference of actual agreement evidenced by conduct was apparently
made from two presuppositions. The first presupposition was implied by the
Court from Article 80 (1) of the Charter. ta the eiïect that the rights of States
and peoples regarding mandates would no1 lapse automatically on dissolution
of the League. The second presupposition related Io the final League resolution
conceming mandates, and there the presupposition on which the Court relied
was said to be that the supervisory functions exercised by the League would
be taken over hy the United Nations.
On the whole we interpreted the Opinion as holding that a general tacit
ameement had beenconcluded between~ ~e ~ ~tes~oresent at the establishment
of the United Nations and those present al the dissolution of the League to
the eiïect that mandatories would undertake the new obligation of reporting
ta the General Assembly of the United Nations. If this interpretation were ORAL STATEMENt BY MR. GROSSKOPF 379
the parties. And the facts and data which have ken added to since 1950are
by no means conhed to the practice of States between 1946 and 1949, as
was stated, we submit, incorrectly. by the distinguished representative of
Finland at page 77, supra. He was also, in passing 1 may say, incorrect
when he said that al1the documents were in 1950 deposited in the Court's
Libraw in the Peace Palace. In the ~revious contentious ~roceedinas, we had
io ohinin 3nunlber dthese documents froni Ncw York iind subrnirthem to
the Court-but that is in passing and not of any grcÿi imporiancc.
The point is that in the vcars since 1950there hûs becn made avüilable. in
an easiiy accessible form, a-mass of information which was not put before the
Court in 1950.These facts which were not put before the Court then include
imoortant asoects of the events concemina the Preoaratory Commission and
its-proceedings; they include important as6ects of Cheproceedings during the
final session of the League Assembly, and in particular, the content of the
first Chinese draft proposal which was not proceeded with; the report of the
Board of Liquidation; the manner in which the transition between the League
and the United Nations was dealt with in the United Nalions Treary Series;
and then, of course, also the aspect adverted to hy the representative of Finland,
that is, the practice of States. To this latter aspect, we have again added, in
these oral proceedings, various comments, including those 1 read this moming
by the Ad Hoc Sub-Committee on the Palestinian matter, which showed a
further contemplation at the time that there was no obligation of reporting to
the United Nations, under the Mandate, on South Africa.
Mr. President, as the debate on this issue has proceeded over the years,
more and more evidence has become availahle, sometimes quite by chance-
when one is looking for something else, one cornes upon something which is
relevant-but more and more data. more and more information. more and
mure ducumcnic have become av~ildble, and the signili~mntaspect is that aII
thesc point the sanie uay. They al1show thai there u,as no agreement during
the transitional vears bv which South Africa became obliaed to reDort to the
United ~ationsf they a11sliow that there was also no c<ntempla~ion on the
part of others that South Africa had assumed such an obligation.
Indeed. 1 submit. with resoect. that the evidence which1 have briefly sum-
marized here during the lasi twi days shows a contrary contemplation. The
evidence shows that no agreement was concluded, that it was by deliberale
design that there was no agreement, and that everybody accepted that there
was no agreement.
As 1said, MI. President, the record is now, in these proceedings, fuller than
it has ever beeu before-fuller even than in 1962 or 1966. However, in both
those ).cars. the Court had ai9ailablcmuch more infurmïtion thïn uîs placed
beforc it in 1950.Ii is thcrefore of interest and, 1\vould submit. of iniportance,
Io examine the factunl findinas uhich ucrc niadc in 1961and 1966concemior
the question whcihrr the maidatories in gencral or South Aîrica in particulai
underlook an obligation 10report to the United Nations. Let us have a look at
what the judges who adverted to this aswt did say in those years.
1proposedeï~ing fimt wiih those u,ho adverted~~~ecifica~to the question
of reporting undcr the Mandate. and ihercaftcr 1 propose dealing wiih those
ivho did not dedl s~ecificallvwith this asneci. hui urhodid discuss these evenis
and whose findink and ~&~lIsions mai thireforehave some bearjngon die
argument which 1 am presenting.
1 start with the Judgment and opinions in 1962. There the Court did not
itself deal expressly with the question of the reporting requirements of the
Mandate, as 1propose showing shortly, but the matter was dealt with by someof the judges who gave dissenting or separate opinions. 1 deal first with the
senarate ooinion of Judze Bustamante-this we considered in Cha~ter IX.
paragraph'32, of Our written statement. Judge Bustamante held ihat the
cornpromissory clause had suMved the dissolution of the League. That was,
of course. the issue which was kfore the Court in those nroceediias-to
ulhat estent thecompromisîury claur*:usstill applicable despi& the diss~'lution
of the Lcague. Hou.evcr. after holding that there had becn 3 zun~ivalof the
clause, he added:
"The above findings do not in any way imply an intention to establish
orto renard asestablished the orinci~leof automatic or exofficiosuccession
of the United Nations to th; ~eague of Nations. It has beensufficiently
clearly shown, in the course of the written and oral proceedings in this
case. that the theorv of automatic succession is inionsistent with the
histhrical background of the discussions and resolutions of the two great
bodies during the transitional period in 1945-1946."(I.C.J. Reports 1962,
p. 364.)
Then, dealing specifically with the mandatory's obligations to report and
account, he stated that these obligations should k given effect to by the
conclusion of a trusteeship agreement. He gave several reasons for this view,
but one of his reasons was that, in the absence of such an agreement. the
mandated territories would have ken left to the "unfettered discretion of the
mandatory alone" (I.C.J. Reports 1962, p. 365).
So there,MI. President, in a judgment which did not support South Africa,
thelearned iudge clearly came to the conclusion. on the evidence of what had
happened in rhese )ea;s, that there hîd ken no succession in gencral. or as
regard5supervisory pou,ers inprirticulîr. and that in the absencof a trustceship
agreement there would be no supervision by the United Nations.
The Court adjoiwnedfrom 11.20 o.in. to)1.40 o.,>i.
Before the adjournrnent I was dealing with the pronouncements of judges
in the proceedings since 1960 who adverted specifically ta the question of
succession of supervisory powers hy the United Nations. 1 dealt first with
Judge Bustamante and 1 was proposing to continue with the joint dissenting
opinion of Judges Sir Percy Spender and Sir Gerald Fitzmaurice in 1962.
As the Court is aware, in their dissentipg opinion these two Judges gave a
detailed consideration of this aspect of the case. We deal with it in Chapter IX,
paragraph 33, of Our written statement.
In the course of the joint dissenting opinion they said, inter alia, 1nquote
first from a footnote at page 532 of the I.C.J. Reports 1962:
"... we think that the view exoressed bv the Court in its 1950Oninion,
to the effect that the supervisoj functioks of the former League ~ouncil
passed to the Assembly of the United Nations which was entitled to
exercise them, was dehitely wrong".
To similar effectwas a footnote at page 535, where the learned judges stated:
"The contrast between the original Chinese draft [that isof course in
the ha1 League Assembly] and the one eventually adopted constitutes an
additional reason why we find it impossible to accept the view taken by
the Court in 1950, that the functions of the League Council in respect of
Mandates had passed to theUnited Nations; for this was the vew thing
which the original Chinese draft proposed but which was not adopted." ORAL STATEMENI BV MR. GROSSKOPF 381
1may say in passing that the facts conceming the first Chinese draft were not
placed before the Court in 1950.certainly hy any of the participants.
Then, in a later passage thetwo leamed judges summarizëd the relevant
events in a rather long passage:
"They [that is hoth the United Nations and the League Assemblies]
refrained e.uall, from anv attemot ta adaot the Mandates to the situation
arisinç froiii the terniinat;on of the lxagur and of l.eagtie memhcrihip.
Thcy no1 unlv 'rcfrained', but at lei,t tu,iie (propi~salof the E.xecuti\~e
Committee of the Preoaratorv ~,mmission oc th; United Nations ...
2nd original Chinese resolution ai Geneva) thcy rrjrctrdproposils for a
transfer of Lrigue funciions rçspcctinç Mandates to the Cnitcd Y.i1tions...
..lhe t\\,o As\cmhlies aere .~x~~rt for Article 73 of the Charter) unwilli-e
to provide in any specific way for the consequences of the termination
of the Leaaue and its membershi~, or for a possible eventual failure to
brins a mandated territory into iiusteeship. -Inthis lies the key to the
whole matter.
It is the key to the whole matter because it isstrikingly evidenl that the
IwoAssemblies ... relied. and.referred to relvon the hone or exoectation
thal thc m;indaied territories !roiiid ei.entuall; he brough; into tr"sreeship.
\Vhether this ivs,a reasonable assiinipii<>nin the case of South Wehi
Africa, considering the declarations that were made on behalf of the
Union Govemment, 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 fairly clear as a matter of reasonable inference, that an
important part of the reason for this attitude was the desire ta 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 Leaeue had in the meantime been dissolved)
to appear to bec~untenancin~ ruch. ..grounds on the basis of which an;
Mandatory could contend that. express provision having been made for
continuing the Mandates as an da tesn,o further action was required.
In short, given the view that they took of the whole matter, those
concerned thought it unnecessary to provide for this situation and better
oolicv not to. Thiscourse havine been chosen. and the oossible conseouen-
ces iientailed accepted, there isno legal principle which would enable a
Court of law to put the clock back and, byjudicial action, make provision
for a case which those conceroed elected not to deal witb, for reasons
which appeared ta them good and sufficientat the time." (I.C.J. Reports
1962, pp. 539-540.)
Mr. -President, 1 would only add that further facts which we have brought
Io the attention of the Court, particularly also those concerning the proceedings
of the Preoaratorv ~ommission. have onlv served to fortifi the conclusions
thus reachédin 1962.The furthe; facts sho; even more strongly that there was
in the result a deliberate decision, in our contention. not to make provision
for the continuation of mandates as mandates and for the supervision of
mandates by the United Nations.
In the 1962 proceedings this aspect was alw dealt with by Judge ad hoc
van Wyk. We refer to that in Chapter IX, paragraph 35, of Our written state-
ment and it is not necessary for me to read thequotations which we set out
there fully. Those were then, Mr. President, the judges who adverted to this issue
specifically in 1962 and, in our submission, they go only one way-they al1
negative the idea that any transfer of supervisory functions was effected.
1 now corne to the 1966Judgment and opinions. Firstly, again, 1 shall deal
with those iudges who considered this asoect s~ecificallv.
First 1u,oulj mention Judye Tanaka. iihose'opinion uc de31wiih in Chapicr
LX, paragraph 63. ofour u,rittcn siaiemeni. Nou, Judgc Tanxka gave û disreni-
ing opinion in ivhich hc came to the conilu~ion that ihc Cnited Nations hnd
succccded ii,the supervisory functions which had previuu4y been cxcrcised
by the Lcnguc of Nations. He consequenily gïvc an opinion unfavourahle tu
South Africa, in the conclusions which he arrived at.
However, it is important to consider on what basis he decided. 1 would
quote the followingpassages which weset out in OUI written statement in which
he describes the process whereby he came to his conclusion as follows:
"This cunclusion wnnot he dcrtved from the exprrrr or tncii inicnr of
the piiriicIO the man&irc agrcemcnt and ihosc consemeil, bcc~use ;ithe
pcriod of ihc inceution of the Mandate :in evcnr such 3$ thc dissolution
of the League suiely could not be foreseen by them, and because the
intention of the parties and those concerned, and the surrounding cir-
cumstances at the period of the dissolution of the League are susceptible
of diverse interpretations. There was a lacuna in the mandate agreement
which should be filled by the theoretical or logical interpretation by the
Court." (South West Africo, SecondPhase, Judgment, I.C.J. Reports 1966,
p. 275.)
At a later stage he said: "In this case, we cannot deny that the necessity
created the law independently of the will of the parties and those concerned."
(Sourh West Africa, SecondPhase, Judgment, I.C.J. Reports 1966, p. 277.)
MI. President, we rely on this strongly for the finding that there was no
intent, either express or tacit, on the part of the parties at the time of the
dissolution of the League to provide for further supervision by the United
Nations in respect of the Mandate.
Judge ana k considered these events and came to the conclusion that no
tacit or express intent could be deduced from them,and he said so. His ultimate
lïnding was based on a ou.ely .eleoloa.cal a~~r.ach. which. as we have sub-
niiitcd hcfore, is not üsiept;iblc in prcseni-dïy intcrnliiional iau as a niatier
of la\\. 'fie iiiiportani point for my purposes, howc\'cr. is his appraisement of
the factsduring that period.
1 would again also refer to the opinion of Judge van Wyk in 1966, with
which we deal in Chapter IX, paragraph 60, of our written statement, and
which aaain 1 do not have to reDeat here.
As I &id 31 thc inicption, thc onl) jiiilgc u,ho conridcred the fiicis and
camc to a concIusion on ihc f:icis adverw tu Ourcontenrii~n \\.YJudgc Wcll~ng-
ton Koo in 1966. WCdcal uiih his ouinion in Chaoier LX, pararra~hs 61-62,
In our submission, his reasoning may be summed up as foll~ws: the first
proposition stated by him was that in terms of the Mandate, South Africa
was, as Mandatory, subject to an "obligation of intemational accountability".
This basic oremise on which Judee Wellineton Koo's oninion rests was
dealt with by Ay leamed friend, Dr. van ~eerdèn, and 1do not wish to repeat
what he said. However, 1contend that even if one accepts that basic remise,
the rest of the ooinion is not suooortable on the facts.
Hissecond proposition uas thaithe obligation of international üccountabiliiy
becamc latcnt aficr the disappcarÿnce of the Council of the Leiigue and the ORAL STATEMENT BY MR. GROSSKOPF 383
Permanent Mandates Commission. In other words, as we read it, there was
still this obligation, a general, theoretical obligation, but it was latentcause
there was no organ which could exercise the supervisory functions. And he
also then said that to revive the obligation there was required "an arrangement
as envisaged in the resolution on mandates unanimously adopted by the
Assembly of the League of Nations at its last meeting on 18 April 1946, in-
cluding the concurrence of the Respondent"-that is, South Africa (I.C.J.
Reports 1966,p. 235).
In his view there was a latent obligation of international accountability for
which further arrangements had to bemade, andfor which further arrangement
the consent of South Africa was necessary. In his opinion, Judge Wellington
Koo sought the concurrence of South Africa to such an arrangement in the
reaction by South Africa after ifs incorporation proposals had been rejected
in the United Nations. In this regard he said, and 1quote the whole passage:
"When ihk proposdl \\as rcjccted, it [i.e.,South Afri.'a],n,hileexprcssing
regret and disappointnient. ïnnounced thxi it \i,ould zi>ntinue tu submir
reDurts on ils administration of the mandated territors of South West
krica as it had done before vis-à-vis the League of ~ations.
Although the Respondent, in submitting the reports, stated that the
action was voluntary on its part and for information only such as provided
for by Article 73 (t) of the Charter of the United Nations regarding
non-self-governihg terrilories, the legal effect of ifs declaration and act
acknowledaing the General Assembly as the competent international
organ in the nktter of the Mandate fur South West ifrica. in vicw of II,
obligation of internaiii)nnl ac~ouniability under Arti~le 6 of the hl3ndate.
obviuuslv cannot he rletcrmined unil3terallv bs 11 nlone (Article 7 (1)).
just as &e content and scope of its oblig&ioÜs under that instrument
cannot be governed by its own interpretation of Article 7 (2) of the Man-
date." (I.C.J.Reports 1966, p. 236.)
Mr. President, 1 would submit that this passage shows one or the other of
two misapprehensions. Either, MI. President, Judge Wellington Koo mis-
conceived the original undertaking given by South Africa. That tbis might be
a possible misconception on his part appears from the words which 1 have
read. that South Africa had amounced that it would continue to suhmit
repokts on itr ïdministration of the rndnd;itcd territun. of Souih West Airica
"as ir h~ddone before VI\-ù-visihc Lenguc of Natiuns". N~x.that, Mr. Presi-
dent, a,iih rrspzci, \i.rsiibnlit isnot a iorrcct aiaicmentfdit The iindertaking
which South Africa had givcn h~\'ede311!\.th in some dctdil. It wns aiways
lirnited to informaiion of the sort provided in Article 73 or in accordance
nith Article 73.and \vaswid io be un 3 voluntary basis-ii uis always q~dliticd
in some way by the statement that South ~frica did not incur any obligations
or did not intend to incur any obligations by giving this undertaking and it
was also lirnited by the ambit of the information which was said would be
transmitted.
If Judge Wellington Koo read a wider significance into the statement made
by the South African representative on that occasion, then, in my submission,
that amounted ta a misapprehension as to what the factual position was, and
that would then in my submission invalidate the rest of his reasoning, because
the basic premise would then have been wrong-he would then have assumed
that South Africa had undertaken to report to the United Nations as it had
previously done vis-à-vis the League, whereas that was in fact not so. So itmight he that this was the misapprehension upon which Judge Wellington
Koo's reasoning rested.
But. on an alternative reading of this Dassage one can read into it what 1
suhmit to k 3 lupicdlerror, iindihai i, a Con:eption on ihe pdrr of the learned
judge ihst South Africa sould k t~kcn as havtng acknoulcdycd an obligation
of accouniabilii, io the United Saions alihourh eh-.cül\~ dis~\~o\iineanv -.
intention of doi---so.
This is a possible construction of the passage that 1have read where Judge
Wellington Koo states inexmess termsthat althouch South Africa in suhmittin~
the reports stated that the action was voluntary on-its part, and for information
only, such as provided for hy Article 73 (e) of the Charter, the legal effect
of South Africa's declaration and act acknowledging the General Assemhly,
could not be determined unilaterally by it alone. If by that the learned judge
meant to suggest that as soon as South Africa performed any act vis-à-vis the
United Nations South Africa would thereu~on automaticallv hecome subiect
IO the entire reportingohlig~iion. rhen that uould, in my s~hr~isrion,have &en
an incorrect rilttcnieni.
Ob\'ioiiily, \\.ih respectMr. Pre>idcni. if onc assumes. ai the leiirncd Judrr.
does, that some consent on the part of South Africa would be necessary for
the new arrangement contemplated, then one must have regard to what exactly
it was that South Africa had consented to. One cannot say that hecause South
Africa had consented to a limited obligation or limited undertaking of providing
information of the sort mentioned in Article 73, that thereby South Africa
hecame ohliged to a much more onerous obligation of reporting under the
Mandate. In determining the effects of South Africa's consent, one would have
to have regard to what the content of that consent was; one would have to have
regard to what exactly South Africa consented to.
o.a Iray.ehher ~udgeWellington Koodid no1realizethat thi\qualificdtion
uf vdlunixy action for informarion ,ml). nccording ro Article 73, \i3r thcre
from the beginning, or else he thought that, although it was there from the
beginning, it could somehow have a wider effect than in terms it purported to
have. But, in whichever way one reads this passage, in my submission it is
unconvincing for one or other of these two reasons, depending on what inter-
pretation one places on it.
Nevertheless,1would remark at this stage that Judge Wellington Koo was the
only person of whom we are aware inside or outside the Court who has even
tried to meet the areumentthat we ~Xut u. onthe ~~cts of th~t~-~~itional .~~iod~~
and who has triedio meet the reasoning which Judges Sir Percy Spender and
Sir Gerald Fitzmaurice incor~orated in their o~inion in 1962.
Mr. President, there was ample opportunit; for judges who had heard our
arguments in this Court to have done so. For instance, in the 1966proceedings
there were long dissenting opinions, but on this point-apart from Judge
Wellington Koo, as 1 have stated-not one of the dissenting judges attempted
to controvert Our argument. One may for instance take as an example the
dissenting opinion of Judge Jessup, which was a very long one and went into
a ereat numher of the issues. hoth the main iss~~s and some~co~lateral ones.
Ilo\vever. conccrninp ihis aspect. he conicnied himrclf \\,ith purel) le~ÿlisiis
conclusion>, WC submir respecifully. aboui the faci thai the 1950Opinion hüd
no1 hccn iormiillv overrulcd h\. thr.Court in 1966 Aoart from that. he did dedl
with the so-callédnew facts 6ut as 1 have already eointed out, he dealt with
them in a context in which they were not advanced.
To state merely that the 1950Opinion had not been formally over-mled by
the 1966Judgment, in my suhmission, takes the matter no further. It is indeed386 NAMIBIA (SOUTH WEST AFRICA)
any possibility that, at the same time, an agreement would have been come to
whereby supervisory functions were transferred to the United Nations.
~ook atit this wav...T.President: these States were there toeether at the
dissolurion of ihe I.e3guc, thcy hïd to ninke pr,>viïion,on the one hdnd, for the
continuarion of rhc jiirisdiction of thc Couri: on the othcr h;ind, the) hdd tu
make orovision. if thev wished to do so. for the continuation of suoervision
of the'~.indato;s. the jurisdicrinn of the Court, 3siiasfound in'ihc 1962
Judgmcnt \\as, in itielf,lilsi~ï medsureoijudicial protcciion ofthc Mandïic. So,
in Cacr,on the Couri's argument In 1962,ihcïe t\i,o ihings uerc only diffcrcni
ïspe;is oithe same mattcr, nïniely internari~inalsupervision. The <:uurt rcg~rd-
cd the compr<imiisory claux and Article 6, dealing with sii~crvision, as csscn-
tially heing designed to serve the same purpose,-namely -supervision of the
Mandate.
What earthly reason could there have been for the Statestogether at the final
Assemblv of the League to make a different nrovision for the one than for the
other, to.provide thalthe judicial protection would in future be exercised by the
States wbich were Members of the League at its dissolution-a comparatively
small number of States-whereas. on the other hand. the administrative suner-
vision would be carried out hy the United ~ations? Surely, MI. ~resident,
no Assembly could come to such a conclusion: no Assembly would split the
function of supervision between two quite different entities, having no relation
to one another at all.
So, we submit there is a logical inconsistency between any finding of the type
of aereement which the Court found in 1962and an aeree-ent at the same time
pro\.;ding ior United Nations suc~esïiun.
1mighr ju5t staic in pasringth31 rhe rcprc~entlitivcof Finldnd docs noi dgrec
that thire is a loeical incon$stenc-. that is at oaee 79.su<.o. but he eives no
reasons and therifore 1cannot reply to it specifically.
That, therefore, is as far as the finding of the Court is concerned. Also. in
irs rclisoning, Sierubmii, the Court made findings on facis or dccisions on P~cts
which 5uppori our contentions. Thu. the ('ourr relied I.irgr.ly.if not solcly, on
the rgrccmeni limi)ngst Menibcrs of the I.cacue of Nations in April 1946. In
this oortion of its ~udernent the Court oointed out that the Memkrs of the
~ ~ ~
~eague had full knowledge in 1946'ofthe contents of the Charter, as also
of the fact that the United Nations had already begun to operate. The purpose
of the agreement that was concluded was therefore, in the words of the Court:
". ..to provide for the continuation of the mandates and the mandates
system until other arrangements had been agreed between the United
Nations and the respective mandatory powers".
The Durposeof theagreement was to Drovidefor continuationof themandates
system-until other arrangements had b&enmade. When defining the ambit of the
agreement held to have ken concluded in April 1946, the Court, we submit,
rendered it clear that such agreement did not com~rehend any obligation to
report and account to the ~nited Nations. Tbus, the following langüage was
used:
"Obviously an agreement was reached among al1the Members of the
League at the Assembly session in April 1946 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
rightsofthe Members of the League notwithstanding the dissolution of the
League itself." ORAL STATEMENT BV MR. OROSSKOPF 387
The Judgment proceeded to state that discussions were held "... to find
ways and means of meeting the difficulties and making uo for the imperfections
as far aswas practicablef Later, the agreement wassaid "... to maintain the
status quo as far as possible in regard to the mandates".
And then, at page 341,the agreement was stated to be as follows:
"It is clear from the forepoing account that there was a unanimous
agreement among al1thc ~cmber-~tatcr present at the Asscrnhly meeting
that thc mlindïies should bc coniinued to becrcrciscd in accordïncc ivith
the obligations thcrcin dcfincd although the dissoluiion of the Leaguc, in
the wurdi of ihc representïtii~c of Soulh Africa at the meeting '\vil1 ncccs-
narily prccludc coniplcic compli;incc iviih ihc lctter of thc mandate', i.e.,
notwiih>ianding ihc fasi ihat siime organs uf ihc Lcagiie likc the Council
and the I'errnïnent Mandaics Commission u,ould tw missing. In oiher
wurds, the rwmnion undcrstanding of thc Mcmbrr Staics in the Asscntbly.
including the Mandatorv Powers. in.oas.ing the said resolution. was to
continué the mandates,-however imperfectthe whole system would be
after the League's dissolution, and as such as it would be operahle. until
other arrangements were agreed upon by the Mandatory Powers with the
United Nations concerning their respective mandates."
So, in seeingwhat sort of an agreement the Court heldin 1962 wasconcluded,
it becomes clear that the interim arrangement would enable the Mandate to
operate only in an imperfect manner, by which the Court meant, iqter alia,
incomplete. It used the expression "as much as it would be operahle". This
element of incompleteness or imperfection was related directly to the disappear-
ance of the organs exercising administrative suoervision.
We subrnitihai this couid only have bccn'the vira of the Couri if iihlid
thoughi ihat thcre \r.oulJ no longer hc ïny adniini%trûtii~csupervi*iun. If there
would slill hîvc hwn adniinistrdlive supcrvirion ihrouch ihe Cniicd Salions,
then one mieht well ask whv is the an dat eow incomolete. whv is it imoer-
fect, why is% no longer fuliy operable? ...
The distinguished re~rcsentative of Finland hassuggestedat page 79. supra,
that theseex~ressions of view of the Court onlv relatedto a chak- in the suoer-
visorymachinery and not to a falling away thereof. But surely, Mr. President, if
it was the view of the Court that there had only ken a change in the organs
exercisina suoervision it would hardlv have usedlanauaee such asthis. 'ointin-
io ï lackof ~pcriihilit). dnd imperfection in the s)s;m;and so on
I mighi ïlso here refcr io3 furihcr argument mentioned by the Ci~urt, and
that was the necessitv for the iudicial orotection of the Mandate. Whv would
this ncccssit). have continucd ;f indeçd othciarrangeme ortadniiri;strïtivc
supervision haJ ken mîdc?Thequcsiion ofnccessity forjudicial protection and
also certain other subsidiary contentions are discussedin paragraphs 40-41 of
Chapter IX of our written statement and 1 do not need to refer to thern at
greater length here, save to Say that they also show that the language of the
Court indicates that there would no longer be administrative supervision.
Moreover, a second consequenceflowing from the reasoning of the Court-
conceming this agreement said to have ken entered into, was that theagree-
ment wassaid to have beenin order to maintain the status quo,asfar aspossible.
The Court did not conceive that an agreement was concluded, whereby addi-
tional obligations were imposed, further obligations of any sort; it was purely
an interim arraneement to maintain the statrrs ouwherebv the existine States
which were Memiers of the Leaguewould retain.their rightS to invoke 4;ticle 7,
paragraph 2, and things generally would carry on on the same basis with the ORAL STA~ENT BY UR. OROSSKOPF 389
Secondly, that supemisory functions in respect of mandates were vested
only in the specificLeague organs to which reference was made in the relevant
instruments-that is at.para.raoh 56.This findina-would. in Oursubmission. be
contrÿry to the conception i)r the contention thiiiihere was somc ohligliti<in
IOthe organizcd iniernxtional community as an cntiiy separate from the League
1tself.
Then number ihree, the Court held thai ai the time of the dissoluiion of the
League ilwds considered preferîble in rely on the xniicip~tiun ihai mandaicd
territories uould bï hrought uithin the United Nations s\stcni-thst is 21
paragraph 57 of Chapter ÏX. In that paragraph we contend that the word
"preferable" in the context means preferable to making any specific arrange-
ment that would have ensured continued supervision of mandates as mandates.
Fourthly, the Court held that the Court was not entitled to fiIlthe gap which
was thus caused-that is in paragraph 58 of Chapter lx.
It is Our contention that the same view of the facts and a~olicable legal
principles would inevitably leiid io ihc conclusion rhai supervision fell auïy;n
the dissolution of the Lcîguz, in olher words. that on the dissolution of the
Leaaue there was no obliaation on the mandatories to reDort and account to
any;rgan of any organiz&on. This appean, in Our subniission, to have been
implicitly accepted by the Court in a passage which we quote in Chapter K,
paragraph 59,of Our written statement, as follows:
:
-
"Another argument which requires consideration is that in so far as the
Court's view leads to the conclusion that there is now no entitv entitled to
claim the due performance of the Mandate, it mtist be unacceptable.
Without attempting in any way to pronounce on thevarious implications
involved in this arnument. the court thinks the inference so&ht to be
drawn from it is inadmissible. If, on a correct legal reading of a given
situation, certain alleged rights are found ta be non-existent, the conse-
auences of this must be acceoted. The Court cannot or.oer. ..ostulate the
cxirlcncc of such righis in ordcr io üvert those consequcnces. This \i.~iulrl
be to engage in an csseniirrllylegislati\,c tüsk, in the service of poliiic~lends
the nroniotion of which. hoaei,cr desirahle in itself. liesouiside the fun:tit~n
of a court-of-law."
The onlv reference to the Judgment and the interoretation we olaced on it
was by the distinguished representative of Finland ;ho conceded'at page 79,
supra, that there are certain passages in the reasoning of the Court's Judgment
which would seem to suooo; the contention advanced bv us. He added.how-
ever, that in those the Court confined itself to studying the situaiion at
the time of the League of Nations, when the question of transfer of supervisory
functionshad not aiisen. But. from what 1havesaid it will. 1submit. .eaoo..ent
that that isnot strictly correct. Indeed, paragraph 57.0O& written statement, to
which the distinguished representative refers in express terms relates, as 1have
noted, ta the period of dissolution of the League and to the intentions of the
parties at that stage.
By reason of the foregoing, we contend ;hat.the ovenvhelming weight of
judicial opinion since 1950supports the proposition thatthe Opinion of that
year cdnnot besupported on the basis that the mandatories in general or South
Africa in particular consented to an obligation to report underthe mandate ta
the United Nations. The question then arises on what other bases has the
Opinion been defended. 1 propose dealing first with bases suggested in the
present proceedings. .. The distinguished representative of the Netherlands stated that the 1950
Advisory Opinion-
".. . could not be justified on the strength of a construction according to
which the ohliaations of South Africa related to the exercise of its sover-
ei~nty and werë sontractcd hy II toitard5 the League of Niitlonc. In oiher
words, itcould not bejustified on the strength of the normal application of
the rules of international law concernina the effect of treaties between
sovereign States." (Supra, p. 126.)
The distinguished representative of the Netherlands accordingly also agrees
that the record is so clear that one cannot suooort the 1950 Ooinion on the
oidinary basis of treaty law. He continued hy saiing that the ophion, "rightly
approaches the question as one relating to the modalities of exercise of the
r~wer~ ~ ~ ~e oreanized communitv of States. modalities of which the riehts -
and obligation, of the niandati~ry Statr are an integral part".
Mr. I'rçsidcnt. this approaih is, 1subniii, the same basically as thai \\hich had
k----~- ~ ~ - ~ ~u.ees B-stamante and Tanaka. The merits of the areument
have been dealt with and 1 do not want to do so again. Whatever oncmight
think of the teleological theory, we have already suhmitted that it does not
represent prevailing-lsw aiid ihat the Ci)urr shotild therefore not apply it.
It ts, hi)ii,evsr, significantth31 the representatite of the Nethsrlïnds did noi
fsel il onen io him to suo. .t the 1950Ooinion on the basis of an actual acree- .
ment.
The distinguished representative of Finland was, in my suhmission, to much
the same effect where he stated (supra, p. 78) that the Court adduced several
reasons as the legal hasis for its opinion, but in his view the kst was decisive.
In this regard he quoted the Court as follows:
"It cannot he admitted that the obligation ta submit to supervision has
disappeared merely because the supervisory organ has ceased to exist,
when the United Nations has another international organ performing
similar, though not identical, supervisory functions."
If 1 undentood the distinguished representative of Finland correctly, he
suagested or he contended that this by itself could serve as justification for the
1950Ooinion and he conceded that oossiblv some of the further reasonina of
the was not entirely relevant.'But, ai 1 have already submitted, this is
a purely legislative or teleological argument. It points to a general need for a
certain situation rather than to the actual establishment of such a situation.
It amounts really to the proposition that since the object and purpose of the
mandate required supervision and there haomned to be an organ which could
exercise supervision; therefore the Court ihould place the kw and existing
organ in the place of the one that had fallen away. That, in Our suhmission,
is contrarv to the aenerally acceoted princioles of international law as accepted
~ ~nresent. -
= - ~ ~ ~ - ~ ~ ~
1 may just also mention a small point in passing. 1 do not understand what
thelearned reoresentative meant when he stated that our summaw of the Court's
rcasont was incon~~lete(.vupra.p. 78). A sumniary is, of course. by definition
aluays incompleie and uith respect ue submit thnt \ve did no1 leave out any
relevant nart of thc Ci)urt's reaionina. Mr. Presidcnt, thai ihen isüs far as the
represeniative of Finland is concerne>.
1 have already referred to the argument presented by the distinguished
representative of Pakistan, to the effectthat South Africa had become estopped ORAL STATEMENTBY MR. GROSSKOPF 391
from challenging the authority of the United Nations (supra, p. 139).1do not
propose repeating that argument.
1 turn now to a hasis which has ken suggested in the past, although not in
these proceedings, as king that upon which the 1950 Opinion rested, namely
Article 80. oaraa--oh 1, .f the Charter. The Court will recall that when 1 dealt
with the obinion earlier today 1said that 1would discuss this Article at a later
stage. As 1then pointed out, we regard the Article as not having been invoked
as such. but merelvas showinaacertain oresuo~osi..on. If onereadstheCourt's
Opinion. the court docs ni,[ <as in so mïny ii,ords ihüt Article 80, paragraph 1,
indkes any particul3r proviston, it says ihiitihc Article presupposes thdl rights
would not laose. So we inter~reted it merelv as showin; a ae--~.l orohabilitv
that provision would be made for sucsesiion of supervisor).functions. Hon'ever,
greatcr wcight hi5 been îit~chcd to ihis Ariicle in ihe SoitrhWest AJrico cdses,
for instance. at a certain staae. We refer to it in our written statemeit. Cha~ter
VIX, paragraph 51. certain authors have also suggested that the irue Gis
of the 1950 Opinion is to be found in Article 80, paragraph 1. 1would refer
the Court. for instance. to Hudson whom weouotein ch&& . -~-,na~~nrao.-~~-
~rticle80, paragraph 1,reads as follows: '
"Except as may be agreed upon in individual trusteeship agreements,
made under Articles 77, 79and 81, placingeach territory under the tmstee-
ship system, and until such agreements have been concluded, nothing in
this Chapter shall be construed in or of itself to alter in any manner the
rights whatsoever of any States or any peoples or the terms of existing
international instruments to which Members of the United Nations may
respectively be parties."
Mr. President, just reading the Article one finds difficultyin imagining how
it could be contended that this Article might have the effect of altering the
obligation of the mandatories so as ta impose on them an obligation to submit
reports in future to the United Nations. The Article is, in its terms, purely
negative in that it seeks to prevent anything in the chapter in which it appears
beine construed in. or of itself. to alter riehts then existine- I-~~ ~~-~~e merelv
to provide that the'chapter should not change by itself any rights.
Nevertheless. in the oral oroceedinas on the oreliminaw obiections the then
Aoolicants relied auite heavilv on this ~rticle-in suooo~t oftheir ~-~-~--~on
.. ..
argument,and they apparently regarded it as an essential link in the reasoning
of the Court's 1950 Opinion. The reference is to the I.C.J. Pleadinas, . South
West Africa. Volume k. oaees 304 to 308.
Not only did the ~ppli&G rely on 11.but they contended that iiformcd an
important Dari of the Court's reasoninp in 1950, in sumort .. its conclusion
that there had been a transfer of supeGsory functions.
However, in ils 1962Judgment, the Court placed no reliance on this Article,
and one must therefore assume that the Court did not acceot the argument
ad\.iinced by the Applicants. In kt. ofcoursc. the wholc succ;ssion argument,
as 1have poinied out, wiisnot accepted. Moreover il uas clearly dcmonstrated
hy Judgcs Sir Percy Spender and Sir Gerald Fitzniiiur~cein a footnoie to their
ioint dissentine o~inion. which we nuote in Chaoter ViII. naraeranh 51. of
,C ~ ~ ~ 7
Our written stzement, that this ~rticie could not [n law have the effect so"ght
to be attrihuted toit bythe Aoolicants. Thereafter in the oral oroceedinas onthe
merits. the ~onlicants exnresdv associated themselveswith the view~if~ ~~aes
Sir ~ei'cySpinder and Sir ~eiald Fitzmaurice, but they still attributed a dif-
ferent viewto the Court in its 1950Opinion. We deal with that in Chaoter VIII,
paragraph 51, of Ourwritten statement. Although they conceded thatthe inter-pretation and effect placed upon the Article by Judges Sir Percy Spender and
Sir Gerald Fitmaurice was the correct one, they still stated that the Court
apparently had thoughi differently in 1950.
1would jus1 say that if the then Applicants, Ethiopia and Liberia, and if the
commentators, whom 1have mentioned, are correct in their viewthat Article 80
(1) was regarded by the Court in 1950 as directlv relevant and important for
ihc question beforr il, then that u,ould, in my s;hmissiun, hy iiscif rcquire a
reconsider'iionde nutu of the suundness of the Court'sconclusion. .Ihc position
uould thcn bethît ihere 1sthisessential link in 1heCouri'sreîsaninc. -.ich hai
suhsequently been shown to be untenable.
1come now, Mr. President, 10 the views of publicists, which is the second
last tooic 1have to deal with this mornina. In Chaoter IX. paramaph 4, of Our
uriitcn stateiiienr,WC \taled thliithe ~ouih ~îririn Cii>vîrnmcnt -. iino1 \\;tre
of any acadeniic uriting which contains a reasoncd support of, or concurrence
u,iih. the 1950iiia.nri.v iindina othera'ise ihan . ...olvin- a tcleoloaical orin-
ciple'of filling the gap. 1 wouli point out that no participant has att&ptéd 10
draw Our attention 10 a single such source, so that we are still not aware of
anv academic writina which has that effect.
~he only commenlon this statement which was made in the present proceed-
ings before the Court was from the distinguished representative of Finland as
foilows:
"The South African Government quotes, in paragraphs 20 to 27 of
Chapter iX of ils written statement, the opinions of eight writers who
have criticized the conclusion arrived at bv the Court in ils Advisory
Opinion of 1950concerning the transfer of Ïhe supervisory powers. HOW-
ever, it concedes (in paragraph 4) that there are other well-known jurists
who have approved that conclusion. althouah on nounds ivhich the South
African ~Gernment does not accept. It may be thought that if not al1
scholars, at least the great majority of [hem who have kept silent on this
question, share the view of the Court." (Siipra, p. 78.)
1would only make the following observations. Firstly, the teleological prin-
ciole of fillina the aao on which these authors relv is not unacceotable onlv to
ihc South ~fÏiiani;,vcrnnienl. as the disiinguis~ed reprcscntat;ve of ~iniand
seems tu suggesi, but is contrary to the ovenvhelminc iveighi of authoriiy in
modem international law, as we have shown in chaptër II ofour written state-
ment, with which 1dealt lasi week.
Secondly, the distinguished representative of Finland does not himself quote
a sinale authoritv in suooort of the 1950Ooinion. He relies onlv on Our own
statemenr for théprop&ition that other weil-known jurists have-approved the
conclusion. In fact, we cited only one well-known jurist and that was Dahm.
He stated. in the .assae- to which we referred. mekelvthat the 1950Ooinion
amounted "to an extension of the mandate la; of théLeague of ~ations by
medns of filling the gaps, and at the same lime affords an interesting example
of the notion that a succession of functions is, in certain circumstances, also
applicable in international law"-that isour own translation.
Mr. President, 1would submit that il is not even quite clear to me from this
-passage that Dahm himself supported this principle of fillingthe gaps, but if he
did, then, eminent scholar that we accept he is; we do submit his viewsdo no1
accord with that generally accepted today.
Mv third observation on this comment hv the reoresentative of Finland
conccrnr his siarement as to the probable tvcu; of the hajorit) of sch<ildrs&%ho
hsve remaincd silent. 1 u,ould merely say, Mc. Presideni. ihai speculaiion un ORAL STATEMEN BV MR. OROSSKOPF 393
this subject appear.;, in my respciiful submissionIObe singularly unrcuarding.
If the ni.joriiof5choldrs indced supporied the 1950Opinion. one uould h3vc
thou-ht that it least some of themhould have takcn UD. th~.~~ and written
aonietliing Vorsonie legs1ji~urnal in oppii\itio1,)ihc number of scliol3rs uh'o
h3ve criricized the 1950Opinion.
In contrast to thesilent ma.ori.~ relied on bv the dist-~~ui~~e~ ~~~.esentative
of Finllnd, WC have quoierl cight rcnsoned criticismb of the Opinion, thai iiin
Chaptsr IX. psrÿgravhs 20 Io 27. '1.0ihat 1could add a ninth. uhich has come
to mv notice more recentlv: that is Professor Leo Cross writi~~ ~~-"-he inter-
nati;nal Court of Justice and the United ~ations"; ReciieildesCours, 1967 0,
Volume 120 at page 3313.At pages 413to 414 he States,concerning the 1950
Opinion:
"However right the Court may havebeenin implementing certain values.
the juridical basis on which the Court proceedcd was open to question.
There were gapsin the transition from the League to the United Nations,
and those gapswere filled by the Court's making the most out of the legal
materials available to il.Among these materials, however, the consent of
South Africa was conspicuous by its absence."
It is often stated that the 1950 Opinion was confirmed or fortified by the
1955and 1956Oninions-see for instancethe U~ite~ State~ ~r~t~~ ~statement.
1, p3gc 848; the oral siaremeni by the representdtivc.of Finland. pdgc78, supra,
and of l'akiiian. ;ipage 140. rupru. In oiir suhmissiiin. thai is not so. Thc 1955
Opmion iids rcq~estcd hy the General Assentbly iii rcsoluiion Y01 (W. This
rcsoliition decldrerliiithe pre;imhlc. thxr ihc Gencral Assemhly hnd ac~cpicd
the 1950Opinion .rnd had takcn certain mcasures in implenicniing il. Ilcon-
iinued Io siatc that '.conçidrring [kat sonie eluiiJaiion of the advisor) opinion
is desirdblc.itrcquested a furthcr opinion on the quesiion whether ils rule on
the voiing proçcdurc u3s a "COITCCI ~ntcr~rclal~on"ofthc 1950Oninion. and if
that "interpretation" were not correct, what procedure should betfollowed.
The same picture emerges from the events preceding the 1956 Opinion.
There the Court was asked, in General Assembly resolution 942A (X), whether
the oral hearing'of petitioners was "consistent" with the 1950Opinion.
So, Mr. President, we submit that in neither casewas the Couri asked to re-
exdmine the correctness of the 1950O~inion. in fact we sav that a reading of
the Opinions shows that the Court didnot purport to do so: The Court merely
purported to interpret the 1950 Opinion. Indeed, it is noticeable that Judge
Read, who had dissented in 1950,took riart in the subseauentattemuts to inter-
pret the views of the rnajority.
But, we contend that, not only did these Opinions not confirm the 1950
Opinion, they in fact underlined the unsatisfactool nature of its reasoning.
We de;il \iiih ihis in Our svrittcn siaicnieni, ~hspteIX, paragraph 28 to 30.
Afier :III. a ciipniwrll-reauincd opinion would h3rJly requirc.iivo eliisidat-
ing opinions uithin si years. Moreover. ihc diflisuliy encountcred in 1956Io
dcicrminc the iriie legal Iiasis of the 1950 Opinion mus1 surcly hc, I suhmii,
without precerlrnt. Evcn the rcmliining judgcç. who in 1950had koted in the
inxjorii?. \ierc in 1956di\,iJcrltg ilic bÿsis upon \iIiich iheir r>re\,iousOpinion
rested. And, as we show in Our written statëment, we submit the two bases
which were suggestedin 1956were not only poles apart, they were both, in Our
view, equally untenable, either in fact or in law.
So. Mr. President. in conclusion. if one has reeard to the weieht of reasoned
comment on the 19~0Opinion, if one has regardto the massojevidence, data
and comment now available, the judicial pronouncements since 1950and also,394 NAMlBIA (SOUTH WEST ARUCA)
with respect, to the intrinsic weaknesses of the reasoning of the Court in 1950,
there is, in my respectful submission, a strong element of unreality, almost of
make-believe, in the blind acceptance which many people profess with regard
t6 the majority Opinion of that year.
In our submission, that Opinion bas been shown in the passage of years since
then to have been incorrectly decided and the time has now arrived, in our sub-
mission, for the Court to state that categorically and to make pronouncement
to thateffect.
The Corrrtrose at 1.01p.m. FIFTEENTH PUBLIC SITTING (3 II1 71, 10am.)
Present: [See Sitting of 8 11 71.1
REPLY BY MR. CASTRGN TO THE QUESTION BY
SIR GERALD FITZMAURICE
The PRESIDENT: It will berecalled that Sir Gerald Fitzmaurice had out a
questionLto therepresentative of Finland, the reply to which has been received,
and 1will request the Registrar to read out the question and the reply.
~ ~
The REGISTRAR: ~his isa letter addressed by~r. Castrén 10 the Registrar:
((Helsinki, ~ ~-~ ~ ~r~ ~19~1
Monsieur le Greffier,
Lors de l'audience tenue le II février1971dans I'aiTairerelative à l'avis
consultatif demande par le Conseil de sécurité desNations Unies sur les
conséquencesjuridiques pour les Etats de la présencecontinue de ('Afrique
du Sud en Namibie nonobstant la résolution 276 (1970) du .onse.l de
sécurité,le distingué Membre de la Cour internationale de Justice, Sir
Gerald Fitzmaurice m'a posé la questionsuivante:
<t.MonsieurCasirr'n. dans i,utrc intervention Je l'autre joiir. vous avez
wutcnu (CR. 71 2 p. 56) que la rGsoliition 21.15(XXI) de I',\sscniblte
-énéralen'a Das directenient mis fin au Mandat. Selon votre thèse. ce
que l'Assembléea fait en réalité,c'est déclarerque, par son comporte-
ment condamnable, le Mandataire avait lui-même misfin au Mandat.
Elle s'est bornée à constater ce fait ... Etant donné aue le Mandataire
n'ajamais admis qu'il avait violéle Mandat, ne pensez-vous pas qu'une
déclaration par laquelle l'Assembléeproclame que le Mandataire a lui-
mêmemis fin au Mandat par les violations qu'il a commises, équivaut
de la part de l'Assemblée à constater ou à juger que ces infractions ont
eu lieu?»
Je me permets de vous ~rier de bien vouloir oorter ma réponse à ladite
questiona la connaissance'de Sir Gerald ~itzmairice et des akres éminents
Membres de la Cour.
Ré~onre:Dans mon exoose oral i'ai bien dit. aorès avoir cité le Para-
graphe 3de ladite résolutionde l'~ss&blée où elle déclareentre autresque
l'Afrique du Sud «a, en fait, dénoncéle Mandat», que prise d la lettre, il
découlede cette disoosition aue I'Afriaue du Sud. Dar son comportement
condniiinablc. a terniine elle-niéinele Mandai. II ressort de I'exposr:écrit
du <;iiui'crncment sud-africain qu'il préfer<:lui-iii2me une intcrpretation
litterdle. 1.adisposition en questlon signifiedonc que I'AssembleeconsiJ~re,
en elTet.que l'Afrique Jii Sud a dénoncéle .Mandat et que 1'Assemblr:e
s'cst bornr'e3constater cefntt et les infract~onsconinlises par l'Afrique du
Sud qui ont produit cet effet. J'ai aussi soutenu dans mon exposéoral que
l'Assembléeest compétente à faire une telle constatation. Or, j'ai souligné
' See p. 121, supra.en m@metemps que les constatations contenues d~ns ladite resolution de
I'Assernblkene \,)ntpas obligatoires au ,ens strict, en ce qu'elles ne con-
tiennent oasde sanctions oré&es au chaoitrc VI1de la Charte. Par ailleurs.
il y a lku de remarquer, que l'~ssembl6e généraledes Nations unies
possède la compétence indisputable de constater la terminaison d'un
Mandat qui a étémaintenu contrairement j.la lettre et l'esprit de l'Accord
sur le Mandat, et que tous les Etats Membres doivent respecter la decision
se fondant sur cette conclusion.
Veuillez agréer, Monsieur le Greffier, l'expression de mes sentiments les
plus distingués.
(Signé) Erik CASTRÉN,
Reprisentant de la Finlande.» ORAL STATEMENT BY MR. DE VILLIERS
REPRESENTATlVE OF THE GOVERNMENT OF SOUTH AFRICA
Mr. de VILLIERS: Mr. President, honourable Members of the Court, we
came now to the s~ecificauestion whether the General Assemhlv had the vower
~ -~ ~ , ~ ~ ~
io make a dccision uith 1;indingelTccias irpurporied IO do in opçriitiv~para-
graph 4 i~frcsolulion 2145of 1966.Keferencc mav be niade io our schcme of the
presentation of the argument as set out in the record, in this instance at page
172, supra-the particular item is introduced by the word "Fourthly". Then
also, reference may be made to the brief statement of the main contentions of
the South African Government, which is an annex to that record, and the
reference is page 610, infra.
As we indicate in those sources, the matter is dealt with in Ourwritten state-
ment, in the whole of Chapter X.
Now, Mr. President, in our submission, this question is in its essence a very
simple one. and the answer indicated br the orovisions of the Charter is an
clenicniüry one. li i\ the kind of quesiion uhish one ivoulJ dcdl iviih.shltll we
53). in a lirst-yçiir~.l..;ituniversity. Ii ira niürier offirsi principlç. The Ccnçrdl
Assernbly. aoart from svecificallv exce~ted cases vertaining to Dro-.durai and
budpcidr). nrûfirrs. aaï delibrr.itcl), inthc Ch~rte;. gi$.enpouer5 of dixuscion
and reconiniçndiition only. II(vasg~vcnthosepouers inAriiclc 10of iheCharicr,
generally, and in certain other Articles, ta which my leained colleagues have
referred, in regard ta certain other specific matters. But the important point is
that they were powers only of discussion and recommendation.
The relevant provisions of the Charter, and the clear language in which they
are couched, are dealt with in our written statemeni, and no participant in
these proceedings has in any way attempted ta contradict wbat we have said.
And, what ismore important, no one has suggested that this isone of the excep-
tional cases dealt with in the Charter. On the contrary, everyone accepts,
either explicitly or tacitly, that this is not so; this is not one of the excepted
c:isrs.
Apari from the clcar proi'is.ons of the Chsrrer on ihis poini. the coniiiieni of
hoth Slaics \<.hi)\icre involvcd in the ir;irning i>fihc Chïrier ;ind aiiihorii;itive
cornmentators and ~ublicists is eauall...m~hatic. We refer in Ourwritten state-
inrnt Io iiIürgc nuniber. 1do not iiani to quoic theni a11again-l reiçr ta 3 feir
now by wdyof cxainplc. Thcre i, ihc I<ii\sian;iuih<)riiy.Profcssor Tunkin. uho
ray,, "Rcsoluii<ins of ihe L'niiçd Naiions General A~scmhlyarc. a>a m3ticr of
principle, recornmendations" (Tunkin, Soviet Laiv and ~overn;neirt, Vol. IV,
No. 4 (19661,p. 5). Ross, in his Corlstitutionof the UnitedNarions, 1950,page 60,
says, "The Assembly can never legislate, never order or command, but only
submit, recommend, propose". Goodrich and Hambro say the Assembly is
only a body Io "discuss, to consider, Io recommend, but not to take action"
(Goodrich and Hambro, Charter of the United Notions, 2nd ed., p. 150).
Dolivet. in his work on TlieUtziledNations. 1946 at .~~.-28.State.."It isclearlv
the intcnlioii of ihc Charicr IO makc ihe Assenibly the grcïi moral and poliiical
plalform i~fthe \ii)rld. bu1 no1 i<iIci itt:ike direct ;isi.on".
On a previoiis occasion 1 gave the Court a reference to the report on the San Francisco Conference by the representative of the United Statesto the President
of the United States, much Io the same effect.
Now, Mr. President, in the face of this absolutely clear, elementarily clear,
position under the Charter, we find that operative paragraph 4 of General
Assembly resolution 2145 States:
"The General Assembly . ..
Decides that the Mandate conferred uoon His Britannic Maiestv to be
c~crcised on hi< hchulf hy the Goi.crnment of the Ilnion of ~outh-~\fricù
is rhcrcforc termin3red. thlit South Africri hs, no right to adniinisicr thc
Territory and that hcnccforrh S<iuth West Africa coiiics undcr thc direct
responsibility of the United Nations."
There can surely be no question about it, no argument can be required to
demonstrate that this is not recommendation, it goes well beyond the scope of
recommendation.
The apparent conflict between this action of the Assembly and the clear pro-
vision under the Charter is so manifest that it would, in the circumstances, have
been quite ap~ropriate for the Court to have beenaskedfor an advisory opinion
on the quesiion:-what are the legal consequencesfor States of operaiivi para-
graph4 of General Assembly resolution 2145 notwithstanding the provisions of
the Charter of the United Nations?
Mr. President, no clearer case can surely be imagined of an organ which
attempts or purports to do something which lies beyond ils constitutional
powers. The decision of the General Assembly purports to be bindingnot only
on South Africa, without South Africa's consent, and notwithstanding South
Africa's strong protests; it purports to be binding also upon other States
Members of the United Nations. aaoarentlv includina those which s~ecifically
reserved th~ ~ ~ 7~~ion and indicaté-~~hei~-do~ ~ ~ ~ ~~~~about the "aliditv if .
the decision or about other aspectsof it-l say apparently, becausethe specific
questions asked in that regard by Judae Gros have not yet been replied to. But
it would se~~. followine loeicafiv onrhe conte~t~o~ ~which eaverise to th-se
questions, th31 the anwcrs uould hakc IO be in the ~iflirmsti\e, that ihc contcn-
lion on behîlf of the Seiretdry-Gcneral is th31 thii dccisloii 1shindine no1unly
on South Africa in its leeal conseauencesb.t~al~ ~ ~on these other States.
Nou, this dccicion. n(z, 111131 point out. th;it th; Sl;ind;itc ha, tcrniinxted,
but th31the Mandiieis terrninstcd, ilpur~orts to rendcr unlliiiful South Africd's
continued oresenceand administration in~Sout~ ~ ~t Africa. and it nuroorts . .
to bring about a new régime, a new administrative authority for South West
Africa. Yet. Mr. President, the decision is made in a spherein which the Charter
saysclearly and unequivocally that the General Assembly may do no more than
Io discussand to recommend.
Now, South Africa says the effect is plain and elementary. We contend the
decision is invalid. and inasmuch as ~he decision is the central core of the whole
resolution-cverything in the resolution coming before or following on the
decision turns around it-the whole of the resolution mus1 be invalid. That for
themoment isof no importance, theimportant question iswhether that decision
was a valid one or not. It is not surprising ta find, as weindicate in Our written
statement, that of the few writers and publicists who deal with this specific
question, asfar aswe know there is not a singleone who hasexpressedthe view
that the decision was legally valid, whereds several have specifically either
indicated doubts about ils legal validity or stated outright that in their view it
could not beregarded aslegally valid-1 refer Io Our written statement, Chapter
X, paragraph 10. ORAL STATEMENIBY MR. DE VILLIERS 399
We see now, after al1the other written statements have came in and after al1
the oral presentations we have had from. 1believe, seven ~vartici~anlsbeforethe
Court, chat there has been a suggestion that one publ'icist has indicated the
contrary, Castafieda. We have looked at what he says and 1willdeal with it later.
For the moment it sufices to sav that it seems oerfectly clear that he tentativelv
suggests justification for the binding nature ofthis decision on a philosophica~l
and not a legal basis; at any rate, not on a conventional legal basis such as has
ever been reconnized in the .uris.rudence of this Court.
So, Mr. ~reiident, that is how elementary the position really is. Yet we find
in these proceedings, from the Secretary-General, from the Organization of
African Unitv and from the maioritv .f t.e States who are oartici~atine in
thesc pruccc&ngi, the mosi arduoui aitenipts at arpuing and ~"ntending i~>-thc
contrary One miçhi \3)1the siluati~>nis siinila10 wh3t one tinds inthe ticld of
medicine. One knows that for certain maladies there are well-established
remedies. For malaria it is quinine, or preparations based on quinine. For a
common cold we find there are hundreds, if not thousands, of medicarnents on
the market;each one issaid Io bejust the thing, but weknowthat in truth that is
just a symptom of the fact that there is no real cure. We have something similar
in these proceedings. There isno shortage of suggestions and attitudes which are
being put up for the Court's consideration. Rather significantly, some of these
serve the sole purpose of trying ta put blinkers on the Court. They say the
Court should accept or take for granted the validity and the binding effect of
what has been done and a varietv of reasons is ri.en for this contention. One
is ihc ruggcsiii>nthai the qucsiian has heen so franied as iu cxcludc ihir i~nds.
iiicntïl aspect of the isçue froni the Ci~urt'icun\ideration. Anoiher suggestion
isin eKecr that rcs~ilutioni of oreans of the Uniied Naiions arc something likc
the legisl~tive aci of a sovercign legislaturc. in the senie ihat oncc thcy are
oflisially publishcd their \,alidiiy must hc a\\umed aiid cannoi be quc~iioncd.
A third sueeestion is that United Nations orzans have Dowers of iudicial
deicrminaiion-;f questions of Iact and Iïw, and that thc ~encral ~sscnyblyhas
exercised thosc pou,ers inthis c;isc with bind~ngeITecicvcn on this Court.
A fourth suggestion seems ta be simply and bluntly that the Court would do
well to confirm the validity and binding effect of what has been done and thus
show the Court's solidarity with the political organs of the United Nations.
That, more or less, iswhat I have referred to as the attempt at putting blinkers
on the Court. When we get beyond that stage, when we do find substantive
suggestions as ta why the decision could nevertheless be regarded as valid and
bindine. we find no decrease in the varietv of what is beine out forward.
It i<;ariously suggested that the ~enéral Assembly a%d as a party ta a
treaty which has been violated. Secondly, that it acted as the organ of the inter-
national communitv resoonsible for the fulfilment of the sacÏed trust to the
population of south wes.1Africa.
Thirdly, that it acted as theorgan primarily responsible for a non-self-govern-
inn and a trust territorv. Fourthlv. that itacted as the suoervisorv authority for
the Mandate for ~011thWest ~f;ica. In this last-mentioied capicity, as s"per-
visory authority, it issuggested, or rather contended, that theGeneral Assembly
inherited a power which had previously vested in the Council of the League of
Nations. Then various theories are propounded as to the origin of that alleged
power on the part of the Council of the League of Nations. They have been
dealt with hy my learned friend, Dr. van Heerden, and 1 do no! want to dwell
upon them again. It suffices ta say that in some cases it is suggested that the
origin has an implication in the Covenant, in other caser the suggestion is that
itarises automatically, that it is a consequenceautomatically tobeimported by‘loo NAMlBlA (SOUTH WEST AFRICA)
reason of the analogy of the institutions of trust, tutelage and mandate in
municipal law.
Then there is the suggestion, which applies apparently both to the Council
of the League and to the General Assembly of the United Nations, that a
power of cancellation must necessarily exist, otherwise there would be no
sanctions axainst a delinauent mandatorv. And then. Mr. President. when the
propoundeÏs of these vahous theories really come t'othe end of their tether,
when they haveexhausted their ingenuity, they add something to the effect that
ifsome doubt were stillto remain about the competence of the~eneral Assembly
to do this, surely the strong arm of the Security Council has been added and
that must be regarded as having cured everything.
We find simificantlv. too. that there is one oarticioant who franklv admitted
that the deciiion undir'disc;ssion of the ~enèrîl ~ssembl~ could n; bc lcgally
justificd on the b3sisofconventional principles or classical rules of internïtiondl
law. He contended. he admitted in fact, that the decision could only bejustified
on the basis of a completely novel approach-an approach which somehow
permits of the construction of new solutions when circumstances change; a
construction, it would seem, in the sense of fabrication or making things, by a
legislative act on the part of a political organ, or on the part of a court. This
novel approach, incidentally, appears to be one which has either escaped this
Court completely or which in any case runs directly counter to al1 its basic
premises which it has applied in the attention which it has given in successive
stages to the South WestAfrica case since 1950.
There isin al1this variety one common element, one element common to this
welter of legal ingenuity and that is that not a single one of the suggested
solutions is based on a provision of the Charter of the United Nations.
We have now had written statements from 12narticinants. . .rt from South
Africa. Of those. II soughr to support the actions of the United Nations organ.
WChave hiid oral prçrentations from 7 pîrticipants, if 1am not mistaken. We
have not heard a singlesuggestion from iny one of them that there isa provision
in the Charter which would support the validity or binding effect of this resolu-
lion of theGeneral Assembly.
Now, surely, Mr. President, we came to a stage where a tale or a story is
beginning to unfold. We are beginning ta see signs that perhaps the 1966
decision of the General Assembly was taken on an overall basis of "the law be
damned" and that now, in the aftermath, when the accounts have to be settled
there is al1this scurrying and al1these desperate attempts at covering up in a
legal way what has heen done by a political organ in the heat of an emotional
oolitical moment. If we re~er~t~ ~h~ records of the events ~n~th~ ~reans and
cornmittees of the United Nations we find that this is exactly whathappened.
1want to stress in this respect that I used the words "overall a~proach" with
reference to the lime when the decision was taken. 1 used thai deliberately
because there were responsible Members of the United Nations, as one would
expect, who were concerned about the legal and the constitutional implications
of what was beinc done. But thev were in the minoritv in the General Assemblv
and they were up-against a star4 of emotion which had arisen following on the
1966Judgment of the Court. The result was, I regret to Say,that most of them
did not stand their ground on this aspect very fiÏmly, at any rate in the open
debates, as far as one can see, whatever their attitudes may have been in the pri-
vate consultations-and there were many and prolonged private consultations.
What does emeree from the records of the debate is that amongst the reore-
sentatives of someof these more responsible States there developed a more or
less compromise line, not very well thought out in al1ils consequences, as one ORAL STATEMENT BY MR. DE VILLIERS 401
might expect hecnuse,after all, it had to be evolved in these circumstances of
stressand oressure. and not verv consistent in al1resoects. but it seemsto have
. ,
amountedapproximately to théconcept which was presented to this court by
the distinguished representative of Finland. namely one whereby the General
~ssemblv-itself does not take the steo of terminating or revokine~theM-ndate.
but of mirely recognizing that South~frica itself, b; its own actions, by viola:
tions and by so-called disavowal, has already terminated the Mandate. or
South ~frica's rights under the Mandate, which was the formulation which
\vasapparently favoured by some of the representatives.
So that was, as 1say. a more or less compromise line which was suggested.
as appears frok the record. 1 am not, for the moment, conceding thatëven if
that line had ken adopted it would have succeededin solving the legal diffi-
culty, but it was, nt least, an attempt at coming closer to solvingit.
What is important, as emerges from the record, is that even this suggestion
was very firmly rejected, and even trampled upon, by the rampant majority.
That appears very clearly from the events which immediately preceded the
adoption of resolution 2145. i will come to that later, 1 merely want to quote
for the moment what was very pertincntly said on this point by the eloquent
representative of Tanzania, Mr. Malecela. This was while he was rejecting a
last-minute attempt by the representative of the United States to introduce a
sub-amendment to what wasbeingconsidered. Hestated:
"Our contention is that we want the Mandate that has been exercised
br South Africa in South West Africa. inwhatever form. to be terminated
.1. We want to terminate the Mandaie." (A/PV 1453, bp. 3 and 8.)
Now that. Mr. President. is exactlv what the decision in resolution 2145
purported to do. One finds ihat someuof the objecting States in thesecircum-
stances maintained their objections. They indicated them in explanations of
their vote, in abstentions or-in resewatiom. Many of the others, perhaps the
majority of those who had sounded the words of caution before, seemto have
gone along with the Stream.
If is in the~~ circumstances that iwou-~~~ ~e. and 1 must ask the Court to
bear with me, to look in some measureof detail into proceedings in the United
Nations. with a view to seeing what kind of attention \vas aiven to this leml
aspect of rhe maticr. I si, do p~rtisularly in the light of the coiteniion. u hichis
befare the Court. that thc action of thc Cienîrsl Assembly is to he seen 2s ihai
of s kind of court of II\\.one thai hus gonc inro this legal queriion and has
gi\,en .idecision \\,hich is io bc rcg~rdcd as hinding by ihir Court ilself.
Sou,, ;is;ist3ri.WC hd\c iugo b:ick tu the ycir 1961,shorily iftcr the Dcclara-
tion on the Graniing of Inde~cndencc iciCo1aiii.il Co~ntrie. and I'eoplcr. Thai
declaration. the court will rkcall. was con~ ~~~ ~ ~ General ~ssemblv resolu-
tion I5I4(~~)rl~rcil 14~eicmhe; 1960.
The :iirnorphere ai the iimc iolloivin~ ihs rcsul~iion, ihit 1sthc end of 1960
running into~l961, was oiie of speeding iip independence for al1theremaiiiing
so-called colonial situations and South West Africa was, in this context,
identified as being one of tliose. This led to the establishment of a cornmittee
which first consisted of 17niembers, asdecided in 1961,andlater of 24members,
as decided in 1962,which was charged with this special task of decolonization.
In 1960 the General Assembly had also adopted a resolution specifically
with reference to South West Africa-resolution 1568. In that resolution it
requested the Committee on South West Africa 10 go to South West Africa
and subsequently to report to the GeneralAssembly on various things. Amongst
others, to report on extending to the indigenous inhabitants "... a wide mea-402 NAMLELA(SOUTH WEST AFRICA)
sureof interna1self-eovernment desi-ned to lead them to comolete indeoendence
as soon as possible".
The history iswellknown. This was theCommittee rcferred toasthe Fabregat
Committee. after the name of its Chairman. The South African Government
refused to (et the Committee into South West Africa and there followed resolu-
tion 1596of 7 April 1961 which condemned the attitude of the South African
G--er~ ~ ~~~nd which reouested the Committee to carrv on ureentlv with its
tasks with the CO-operationof the South African Governkent, iFthaicould be
obtained,and withoutit, ifit could not beobtained.
Now, the Committee then proceeded to travel through various parts of
Africa and to hear evidence and representations from various people, including
a number of petitioners whose testiniony and the weight one could attach ta it,
we dealt with rather exhaustively in the 1965 proceedings before this Court.
They then brought forth a report, which is undated, but it seems that it must
have been in the earlv oart of the second half of 1961in time for the sixteenth
session of the Generai ~ssembly. 1should like to read to the Court three rather
significant paragraphs from that report (CA, OR, Sixteenth Sess., Supplement
NO. 12A(~/4926), p. 18):
"128. Reo~.s~~~ ~ives of the South West Africa Peooles Oreanization
(SWAPO), and the South West Africa National Union (SWANÜ), as well
as the representatives ofal1other African organizations appearing before
the Committee in Accra. Dar es Salaam and Cairo ao~ealed for immediate
intervention by the ~niied Nations to remove the South Mrican Govern-
ment from South West Africa and to protect the lives of South West
Africans, without awaiting the outcome of the case pending hefore the
International Court of Justice.
129. They considered the South African Government the instrument
of the suppression and oppression of the indigenous population of the
Territory and the principal hindrance to its development. They could
foresee no possibility of a change of policy on the part of the South
African Government.
130. The removal of the South African Government was therefore an
essential orereauisite to the restoration of a climate of peace and security
and to th&initiation of any measure of self-determination."
One finds later in the reoort. under ils conclusions and recommendation.
that the Committee adopted insubstance these contentions by the represen-
tatives of SWAPO. SWANU and others and, on that basis, they came up with
certain recommendations. 1 quote two of them:
"(2) The immediate institution of a United Nations presence in South
West Africa;
(3) Removal of the present Administration froni the Territoryof South
West Africa, with effective and simultaneous transfer of power to the
United Nations or to the indigenous inhabitants of the Territory" (ibid.,
p. 22).
That, Mr. President, was the beginning of the story. The matter went from
this Committee to the Fourth Committee where it was extensively debated
durine its sixteenthsession in 1961
~e-haveprepared a document, Mr. President, and we have marked it "A"'
with nothing more than these two recommendations which 1 have just read ORAL STATEMENT BY MR. DE VILLIERS 403
out and verbatim extracts from the records of the Fourth Committee debates.
1 would not like to weary the Court with reading al1 this into the record-it
runs into some 12 pages. 1 would like to comment on it and, in passing, to
quote brief passages from if here and there. 1 would suggest, subject to your
approval Mr. President, that we hand this in so that il can become part of the
record. So as not to make it too arduous for the Registrar and his personnel
with translation and duolication. it would no1 be necessarv to have il as a~ ~ ~ ~ ~
dnncx ti)ioday's record oeccsrari:y. ilcould folls<r in the course of tinte as an
iiddendum to todiiy's recaird. Would thai nicer with yiur .~ppr<i\.sl?We have
cooies which wecould makeavailable to the other reoresentatives.
NOW the first contribution to that debate, to whiih 1 wish to refer, was that
of Mr. Castafieda, the representative of Mexico, and 1 want to read the first
paragraph of the extract in full, because that issignificant. He said:
"In general his delegation endorsed the conclusions and recommenda-
tions in the Committee's report. The Committee's basic recommendation
was that the Mandate entrusted by the League of Nations ta the Union
of South Africa should be terminated, so tbat the administration of the
Territory could be assumed directly by the United Nations for a period of
time with a view to eventual independence. As the Comn~irreehad nor
examinedinderailtheoroble,nofrhe leeal~-oii"dsforrevokin~rheMa-datp. . ..,
andas that wasnodoirbra quesrionwhichwouldgiverisetosomedebare, he
wished 10 give his country's views on that subject." (Italics added.)
So here we have it pertinently from the representative of Mexico-that the
leaal grounds had not been considered: the leeal basis for this kind of action.
atanfrate not in detail. As a matter offact, lioking through the deliberalions
of the Committee, it would be hard to Say that it was examined at all. He
said the Committee itself had not examined the legal grounds. 1 gave the
Court the antecedents, the political background to the recommendations of
the Committee, so we know under what circumstances they were made. So
now. Mr.Castaiiedasars. in thesecircumstances. he wished to eivehiscountrv's
\.icus on ihai subjecl. Ani Mr. Castiiheda proceeded to dclivcr\ wrll-reasonedl
uell-prcpdred, iiell-thought-oui siaiement <inthc subject a stiitement of high
quality. The first portion of the next part of the extract is again significant
and 1 would like to read this to the Court:
"lt was frequently thought in the United Nations that any solution
which represented a real advance in dealing with a particular problem
was of a oolitical nature. It was said that lawvers were basica.lv techni~ns
whose principal mission was to elaborate legal arguments ta justify already
existing political positions, and that law was fundamentally consemative
inasmuch as it tended to maintain the srarusauo and to orevent a radic al~ ~ ~
change in the existing situation. For that reason most of the progress
made in the protection of dependent peoples had been achieved throuah
ooiiticai action. In manv cases the ~~ssibilities of leral action to chanëe
the existing situation had not been fully explored. ~et;t was often possibïe
to use legal machinery to alter situations which had become unsatisfactory,
and il would certainlv be worthwhile to exolore the oossibilities offered bv
international law to deal with the situation in souih West Africa." (GA,
OR, Sixteenth Sess., 4th Comm., 1226th Meeting, p. 436.)
MI. President, he makes it so clear that he is operating in a general atmo-
sphere where the urge ir "let us do if by oolitical action whether the law allows
if or not and let theiaw follow", but he says it might yet beworthwhile to look404 NAMIBIA (SOUTH WEST AFRICA)
at the existing law in this instance. And then he proceeds to do so. He refers
particularly to the principle which is king dealt with in this Court too, and
which has ken dealt with by some of my learned colleagues, i.e., the principle
applicable to a case where a party to a synallagmatic contract, a bilateral
agreement, violates or fails to fulfil ils obligations. He puts the position, in my
submission, very correctly:
"When one party to a treaty did not comply with its obligations, the
other party had two alternative courses: to demand the fulfilment of the
obligation, or to demand the abrogation of the agreement on the basis
of that non-fulfilment." (Ibid.)
In other words, he does not indicate that the non-fulfilment of violation
automatically results in bringing the agreement to an end. He correctly says
the other party has an election to make, and that election is a matter of deci-
sion. On that basis, he argues that there is now a possibility for the United
Nations, as representing the organized international community, to bring
about an end to the Mandate in South West Africa.
He skates thinly over certain difficulties, about, for instance, where the
League of Nations would have got a power of this kind. He simply puts it
on the basis that: "11 would be absurd to claim that the Leaaue of Nations
. . had renounced the normal right of a party to a treaty to demand its revo-
cation if the other party did not fulfil ils obligation." He did not go into the
constitutional difficulties in the case of the Leaeue Covenant in that resoect.
What is of the utmost importance is that he niver considered the difficulty
of the position of the General Assembly as the suggested supervisory organ,
the difficult10 which 1 referred at the outset. that under the Charter itmav.
in this sphere, at any rate, make no more than recornmendations. That ;S
left wholly unconsidered in this othenvise very meritorious statement. We find
that the other-or most of the other-participants in the debate are highly
delighted. They congratulate the representative of Mexico on a brilliant ana-
lysis, and they seem to think that the path for legal action has now been
indicated.
There were certain warning notes, too. But before 1 come to those, let me
give the Court one or two instances of typical statements of the other kind-
going the other way. Mr. Achkar of Guinea said:
"The juridical arguments adduced by the Pretoria Government were
acceptable only to ils avowed accomplices, because that Governnient was
completely indifferent to the findings of the Court when those findings
werecontrary to its own desires. The fact that the Governments of Liberia
and Ethiopia had brought the question before the International Court
of Justice could no1 be an obstacle to the liberation of the peoples con-
cerned, since General Assembly resolution 1514 (XV) on the granting of
independence to colonial countries and peoples must apply to them as
well as to al1others." (Ibid., p. 456.)
Mr. Zikria of Afghanistan carried this line of thought a step further-much
further. He said:
"His delegation was not opposed to the idea of revoking the Mandate,
but it considered that the United Nations, in adoufine. the Declaration
on the granting of independence, had ipso foc10 ievoked the Mandate
under which South Africa was occupying the Territory in question."
(Ibid., 1229th Meeting, p. 458.) ORAL STATEMENTBY MR. DE VILLIERS ‘us
Then we find that Mr. Taylhardat of Venezuela also dealt with it responsibly
-but no1 in full. He raised certain aueries. He said that the,r~~-~~~~~~-~..of
Mexico had advanced cogent legal a;guments, but al the same lime he said in
the existing state of affairs. however, the General Assembly should carefullv
examine the leeal..oolitical and other conseauencesof revokine the ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
This evoked rather strong protest from othér participants in the dehate. We
find that Mr. Perris of Ceylon quoted out of context a statement of Field-
Marshal Smuts, the samekind of quotation aswe havehad in theseproceedings,
and we find that Mr. Stoian of Romania very emphatically stated:
"lt was not a question of embarking now upon a study of the present
situation in and the future of theerritory... The United Nations had to
put an end to the South African Government's administration.. ."
(Ibid 1233rd Meeting, p. 492.)
And so wefind aswe go along that various of the speakers stressthe desira-
bility,even the socalled necessity of taking this drastic step on the basis of
decolonization or on the hasis of orotectine the oeoole of South West Africa-
even on the basisofprotecting théprestigeof théunited Nations. But the legal
aspect received very scant further attention,except from two speakers. Mr.
Santiso Galvez of Guatemala also dealt al some lene-h with the le-al .~-~~~~~~.
agreeing 10 a large extent with the exposition of the representative of Mexico,
but with exactly the same Iiiatus in il-no reference whatsoever to the con-
stitutional problem of the powers of thc General Assembly. A typical statement
of attitude came from the rcpresentative of the United Arah Republic, Mr.
Abdel Wahab, who said:
"Under resolution 1514 (XV). the General Assemblv had oroclaimed
the immediate abolition of c~lon'&lism, and hencethe reiommendations of
the Committee on South West Africa mus1he given effect." (Ibid 1234th
Meeting, p. 502.)
Finally, a warning note came from Mr. Edmonds of New Zealand. 1would
like to quote a portion of that:
"The 1950 advisory opinion did not make it clear vhether the United
Nations was itself competent unilaterally to alter that status. That was a
most delicate question. Suggestions had been made that the General
Assemhly or the Security Council should revoke, suspend or transfer the
Mandate. or even declare the Territory indeoendent. The New Zealand
Jelcgsiion cndorsed thc <ihjecii\e of wlf-deicrminliiio;ind the eventudl
asriiniptloiofscp;irate n;ition;il sovercignty by the people of South West
Africÿ ifthai should he iheir wish. buticould no1sechou it\rould heln
for the Assembly simply 10 revoke or suspend the Mandate, even if th&
proved legally possible, which was extremely doubtful." (Ibid .,26th
Meeting, p. 439.)
The distincuished re~resentative oroceeded 10 state his ..oroach of,noli,,.
basically theidea that lince the lntknationaCourt was seisedwith the matter,
il would, as a matter of law and a matter of policv. be better to await the out-
come of their decision.
Then he closed off on this basis:
"The matter hristled with both legal and practical problems. He felt sure
that the re~resentative of Mexico. whose valuahle contribution to the
debate WOU-ldhe hoped, be circulated in full, would readily admit that ORAL STATEMEM BY MR. DE VILLIERS 407
'.In approaching the problem of how to secure rapid termination of the
Mandate, however, care should be taken not to repulse those whose
suo. .t was necessarv. The General Assembly would of course be com-
pçtent toi~ncel the ~.and~:e iithcclaim that ~ituth Africa was violating il
%vas v;rlidsted. The questiun had, ho\\.e\,er, ken brought before the
Intern:ttion;il Court <ifJusticeb, Ethiopia and Liheria, anJ it would he
contrary to the gcncral principles of law for a political organ like the
General Assembly to take a decision pending the Court's judgement,
which was expected before the convening of the twenty-first session of the
General Assembly." (Ibid.,Twenty-first Sess., doc. A/6300/Rev. 1,
p. 273.)
1should make it clear that this discussion,although it took place in 1966,was
before the Court's Judgment, as would appear from this very quotation.
And.now we find strone reactions. 1am not eoin- to -ead them all-1 will
give a few as typical examples.
Iran:
"ln accordance with the Declaration on the Grantina of Independence to
C<iIonialCi~untrresand Pr.ople>.the United Nations ihoiild du its utmost
10 revoke the Mandate and thiis secure thc independence and freedoni of
the nçonle of South We.1 Africa." tCiA.. . OR. T\rentv-first Srss.,dot.
~l6300;~ev. 1,p. 274.)
Venezuela:
"Again, it had often been claimed that the prohlem was one of law.
That was a pretext used by the administering Power to gain time and hold
up such measures as the United Nations might take." (Ibid.,pp. 276-277.)
India, Poland and others stated that the Committee should not bedeterred
from its aim. The lvory Coast came up with a very typical statement:
"Despite the fact that one aspect of the question was beingexamined by
the International Court of Justice. he considered that General Assembly
resolution 1514 (XV) should be applied to that Territory without dela;.
He agreed with the representatives of Denmark, Venezuela and Mali that
the Mandate shouldbe withdrawn from South Africa as soon as the
International Court of Justice had handed down its judgment." (Ibid.,
p. 280.)
So now, Mr. President, we find a combination of the two ideas. Some had
been in a hurry-"Let's do it even before the Court nives its decision". Now we
find this combination: "Let us be prepared so that me can do it as soon as the
Court has given its decision", and so we find that on 9 lune 1966a sub-com-
mittee was appointed with the special task of investigating certain matters-
amongst others to make a thorough study of the situation and to recommend
an early date for independence of the Territory. That was the charge to the
sub-committee.
And 1 wish to refer very briefly to the document "Addendum to Agenda
Item 23 of the Twenty-first Session of the General Assembly" (Al6300, Rev. 1).
From that record, at page 297, it appeared that the first meeting of the sub-
committee was on 21 July 196Lthree days after this Court had delivered its
decision in the then Sorrrh West Africa cases.
The Acting Chairman was MI. Malecela of Tanzania, and he is reported
to have-408 NAMIBLA (SOUTH WT AFRICA)
"... stressed the determination of the African States to rid South West
Africa of colonialism and apartheid. The failure of their efforts to solve
the prohlem of South West Africa in a peaceful manner through recourse
to the International Court of Justice conhed not only that the problem
was a political rather than a judicial one, but also that the composition
of many organs of the United Nations needed reappraisal in the light of
changed conditions. The prohlem of South West Africa, notwithstanding
its complexities which were due in large measure to the support given Io
South Africa by colonial Powers having vested interests in the area,
was in essence a simple one; it was a question of decolonizing the Terri-
tory.99
So, not strangely, one finds that that is the atmosphere in which the matter
isdiscussedand considered by the sub-committee, as appears from the following
pages of this report. If is stated at the same page, paragraph 8, that members
of the sub~ommittee expressed the opinion that the Court's ludgment of
18July 1966hy ruling out the possibility of solving the problem of South West
Africa by judicial means had placed upon the General Assembly a serious
responsibility to achieve a solution through political action.
So, after further discussion cornesthe recommendations of the sub-committee
at pages 298 to 299 of this report.
The first two paragraphs of the recommendations are to the effect that there
should he reaffinnation of the declaration in resolution 1514of 1960and others
which had followed upon it. In other words, the de-colonization resolutions,
if 1may cal1them that. And then paragraph (c) proceeds:
"The people of the territory should be given the opportunity to exercise
their right to self-determination as early as possible, since only thus can
their leeitimate riehts and interests b. vrotected. For this o.roos. lthat is
1'0,theiurpo~e 2 giving thcni the opportunity of ielf-de~crminütionl the
follo\ring stcps are reconiiiiendcd:
1. The United Nations should recall thït ii hüs iiiÿd311 oocsibleetl'orts
to solve the problem by negotiations with South Africa.
2. The United Nations should again record the fact that South Africa
has consistently refused to comply with the resolutions of the Generai
Assemhly in respect of South West Africa.
3. The United Nations should decide to exercise the right of reversion
of the Mandate Io itself.
4. The rights and responsibilities of South Africa as a mandatory
Power in respect of South West Africa should be terminated, along with
the assumption of responsibility hy the United Nations for the direct
administration of the territory, as well as the creation of appropriate
machinery for the purpose."
MI. President, at page 296 of the same report it appears that these recom-
mendations were accepted by the Special Committee. They were, if you will
recall. recommendations hy a sub-committee reporting to the Committee of
Twenty-four. The Committee of Twenty-four, byconsensus, adopted the report.
On 15 Septemkr 1966, which was a few days kfore the opening of the
Twenty-first Session of the General Assemhly itself, the matter went from it
directly into Plenary. It did not go to the Fourth Committee at al1that time.
and it is ahundantly clear that no consideration was given at this stagein
these committee stages-to the legal question under discussion. The fact that
that is so is underlined by a resewation made at the time of the adoption of410 NAMIBIA (SOUTH WEST AFRICA)
the part of the League devolving on the United Nations by way of succession-
no attention being paid to the problem of the General Assembly's power being
confined to the making of recommendations.
The Court adjourned from 11.20a.m. fo11.40a.m.
I was referring at the adjournment to the reaction of numerous States, hy
far the majority, in the debates in the plenary session of the General Assembly
in 1966to the warning notes about the legal position which had heen sounded
by France, Brazil, the United Kingdom and by certain other States. 1 would
like to givereferences ta the record and as examples 1wish to quote only a few:
SierraLeone(AIPV. 1419, p. 12):
"The Court has thus left us with no alternative but to pursue political
solutions in the proper forum, which cannot he the International Court,
but the General Assembly. At this session Our Assembly should not fail
to take such a political action. It should clearly and unmistakably pro-
nounce itself on the Mandate. Too much time has heen wasted by vacilla-
tion."
Algeria (AIPV. 1429, p. 13):
"The issue at hand clearly transcends its legal aspects to reveal its true
political dimensions, which fall exclusively within the province of the
General Assembly."
(AIPV. 1453, p. 6):
"... the United Nations has chosen to deal with the problem of South
West Africa on the political level alone".
Syria (AIPV. 1431, p. 12):
"The prohlcrn hxr,<>fc<iurie.itr legal ïipecis. biii3% in ihecd\e,if rnost
other prohlcms, itis ni;~inl) and h,îsiciill) poliii<<iland ira,ss.ich that
itcün and niuri hectTecii\ely ;ind \~igorotrsl)t;ickled hy ihii ,\~ieiiihly."
And linally, the stnteiiient on Lxhalf of Isr.ic(,\ PV. 1439, p. IO), ushich is
ver). signiticnnr and rler~riptivc of the prcvniling attitude:
"In our view, the real effect of the Judgment of 1966 is that the political
aspect of the question of South West Africa outweighs possible legal
prohlems and that even the most scrupulous concern for legal niceties,
may at this juncture cede its place to the political wisdom of the majority
of the General Assembly."
That was the stance taken.
1 can give the Court a list of further States which made statements to a
similar effect: Pakistan (AIPV. 1414, pp. 37, 47, 48-50); India (A/PV. 1417,
p. 15); Philippines (ibid., p. 21); Sierra Leone (AIPV. 1419, pp. 11-12); Ghana
(ibid., p. 14); Zambia (A/PV. 1425, pp. 2 and 4); Libya (ibid., pp. 7 and 8);
Czechoslovakia (ibid., p. 9); Poland (AIPV. 1427, p. 11); Mali (AIPV. 1433,
p. 26); Yugoslavia (AIPV. 1439, p. 9); Israel (ibid., pp. 9 and II); Bulgaria
(AIPV. 1449, pp. 4 and 5); Indonesia (ibid., p. 14).
Now, Mr. President, 1 should like to revert to the aspect which 1 mentioned
at the opening of this excursion into the records and annals of the United
Nations, namely the suggestion that this matter was to be dealt with on a
basis, not that the General Assembly itself takes revoking action, but that itble-take the attitude, or the position, that the General Assembly itself does
not perform an act of revocation, that it takes note of something which has
been done by South Africa already.
As 1have said. this was still before it came to the stage of formallv nro~osinz
amendments and so forth. Some support for this possible way of dealini with
the matter was given by certain States, although not very consistently. An
example of an attitude in this regard was the following statement of Denmark:
"In the second place, we are of the firm opinion that South Africa has
lost evew right which it had in respect to South West Africa because of
thecouniless-and flagrant violationsbf its sacred trust under the Mandate."
(AjPV. 1451, p. 6.)
1can refer also to statements by Finland (ibid., p. L),and Guinea (ibid., p. 7).
Sweden (ibid., p. 4) made a statement which was less consistent:
"As far as the Swedish Government is concerned, our starting point
has been that South Afnca is in continued breach of its obligations under
the Mandate and that it has forfeited by its deeds every right to continue
to administer the territory."
That issupporting the American line, in other words. But then the distinguished
representative proceeded:
"This situation should be formally and solernnly recognized and stated
hy the General Assernbly. We feel that the General Assemhly could
and should go further and decide that the Mandate, as a consequence, is
terminated ..."
Thus Swedenjumped to the other approach in this part of the statement.
The Latin-American amendments which eventually resulted in the present
~.erative .araeu .hs 3 and 4 of resolution 2145 wereintroduced at the 1451st
meeting. Now, the significance is, of course, that, with respect, operative
paragrapb 4 in this wordina contains the formulation tbat theGeneral Assemhly
decides ihat the Mandate% therefore terminated.
At the 1453rd meeting, immediately after the informal consultations had
terminated, the United States came with a proposed sub-amendment, the
important wording of which read:
"The General Assemhly .. .decides that South Africa's mandate with
a small 'm', ... under the Mandate ... has therefore terminated ..."
After opposition to this formulation "under the Mandate", which was a
continuation of the earlier idea, of course, of rights under the Mandate, the
distinguished representative of the United States subsequently deleied the
words "mandate under the", so that he still had the formula "decides that
South Africa's Mandate has therefore terminated".
In his explanation, the distinguished representative stated:
"Without going into legal technicalities, 1helieve it is the ovenvhelming
desire of the Assemhly to decide clearly that because of South Africa's
continuing material breaches of its mandatory obligations and because
of its disavowal of the mandate which South Africa has-and 1 emphasize
thirt; the mandate uhich South Afriid ha, rrhi~h is dilkrent fr&i tlie
hlandirte, uirh a capital .hl'. \\,hicII1san obligation of the intcrnarional
conilnuniiy IO pre\er\,e until Sotith West Al'ricaruches ,r.lf-dcreriiiination ORAL STATEMENTBY MR. DE VILLIERS 413
and independence-has teminated; that South Africa has forfeited ils
mandate to administer South West Africa; and that its rights in the matter
have come to an end." (A/PV. 1453, p. 1.)
Later, at page 9of that document, the distinguished representative explained
that the sub-amendment:
". . was designed to state that South Africa's Mandate was terminated,
but that, ashds been the overwhelming desire expressed in al1 texts that
have been submitted, the international status of the Territory was pre-
sewed".
At this same meeting the distinguished representative of Norway stated some
support for this approach, at page 4:
"After twenty years of futile discussion about the South African
administration over South West Africa, the consensus has arisen in this
session of the General Assembly that South Africa has lost ils nght 10
administer the Territory and that ils Mandate is terminated."
Then there is also a similar staternent bv Austria in the same record. at
page 5.
On ttie otherhand, therecame to the rostruni Mr. Malecela, thedistinguished
representative of Tanzania, with strong objection and repudiation of this line
of approach and il became clear in due course that he was speaking on behalf
of the overwhelrning majority of rnembers. 1 quote him al pages 2-3 of the
General Assembly. Oficia Rlecords, Twenty-first Session, AIPV. 1453:
"The only change has been a change in a few words which are indeed
designed to deceive the Assembly. Instead of saying that South Africa
has disavowed the Mandate, we are now being told today of a small m
and a capital M. 1do not think that ilis really our business to come here
and say whether the Mandate in South West Africa takes a small m or a
capital M. Our confention is that we want the Mandate that has been
exercised by South Africa in South West Africa, in whatever form, to be
terminated."
And then at pages 7-8of the record he explains that they have even had
difficulties about accepting this formulation in the previous paragraph of
disavowal of the Mandate at all, in addition to the statement that South Africa
violated its obligation. He said:
". .. in Our original text what we really wanted to Say was that because
South Africa has fdiled-to do what? to administer the Mandate-we
want to terminale the Mandate. The addition of the words 'and has, in
fact, disavowed the Mandate', in our view, has certain connotations which
my delegation does not accept. We do not accept the situation that because
South Africa has disavowed the Mandate there is, therefore, no Mandate.
What we have said is that, although South Africa says there was no
Mandate, as far as we are concerned the Mandate was there, and that is
why, in fact, we want to terminate it."
The matter became clearer still in the suhsequent developments al the 1454th
Plenarv Meetine on 27 October 1966. Deleeates had before them the original
~fro-~jidn dr.$ resolurion, the amcnrlmen;~ proposed by ihc Lntin ~meiican
couniries and the sub-itmendmcnts proposcd h) the Uniicd States
A numher of delegationsexplained their vote before the vote was taken. Atthis stage almost the only statement indicating some support for the United
States oro~osal came from the distinnuished reoresentative of the United
-
~ingdom: '
"Secondly, it has throughout been Our contention that the Assembly
should not at this stage do more than state ihat the rights of the South
African Government under the Mandate have terminated." (A/PV. 1454,
P. 7.)
On the other hand, the expression of opposition to this concept by other
States became more pointed and more clear and \vas reflected in the eventual
voting. 1quote the representative for Mali:
"... we believe that the Mandate over South West Africa exercised by
South Africa on behalf of the international community should be revoked
and that efforts should be made during the current session to devise
practical means to attain this goal" (ibid.,p. 4).
1quote the representative for Mauritania:
".. . the essentiiil objc;ti\c is the Iibcr~tion of ihc frdierii~l pcoplr' of
South M'csi Africd-ln oiher uordi-ihe rev~ication of the Mandsie noir
exeriiwd by the up<irrhe,ilregime over that nrc~" (il>UI.,p. 4-51.
The representative for Ghana made a very significant statement:
"ln particular, we would have liked to see the United States sub-
amendments formulated in such a war that the Mandate is terminated.
and not iiicrcly comes to an end. We klic\,c ihni. in this projcct. ihe United
Nations mus! iÿke positive action. The United Siarc>sub-aniendmcnts as
they stand, merely describe a situation which is presumed to exist; we
believe that the United Nations must take a positive step and that the
Mandate must be terminated." (Ibid.,p. II.)
1 quote from the speech of the representative of Yugoslavia, and this is
perhapsthe rnost telling statement of all:
"The first amendment [talking here of the Latin American amendment]
oroDoses an addition which amounts to savine. that the Mandate has
ilrcidy becn terniinnted, that South ~fric3.ha;. in iact. terminated 11.
That h~st\\,o implicîiions. One is thai the Assenibly isjuit takiiig note ofü
decision alreadv taken bs South Afriid. Riii the plcd of the representative
of South ~frica here that we should not take such an action~proves that
South Africa believes it has not so decided. South Africa even claims
that it acts in South West Africa in accordance with the obligations of the
Mandate." (Ibid.,p. 14.)
That is the basis given for saying that the United Nations must take positive
action here. Ttmust not rest on this fictional kind of sup~estion that something
hasalready happenedof which it should merely take no&:
Statements to a similar effect were made in the same record by Tunisia,
page 5; Sierra Leone, page 10; India, page 11; Kenya, page 12; Burundi, page
15; and Congo (Brazzaville), page 20.
In the event, the proposed sub-amendment of the United States to operative
oaraera~h 4 was reiected bv 52 votes to 18 with 49 abstentions. After the vote
ihc <oviet Union. ~zechos.lovnkia and Poland al1 ind~caicd iheir support for
the need for the United Naiions clexly 2nd un;imhiyuously io declare that 11
revoked the Mandate (ibid.,pp. 28,29 and 31) ORAL STATEMENI BY MR. DE VILLIERS 415
Mr. President, it becomes abundantlv clear that. desoite the warninss. the
intention of the majority in the Geneial ~ssemhi; wis to take the Gs'itive
action of itself purporting to revoke the Mandate. That that is so, is further
confirmed by the subseauent references in resolutions of the General Assemblv
itselfio \r.h~Ïilhdd don; in rcsoliitii~n2145. 1refer tlie Cuuri tirs! IO rcsolutiun
2248 (S-V). '1herc one finds this fi~rm~la inprelimbiilar pdrdgrnph 3:
"Reafirmi~~g ifs resolution 2145 (XXI) of 27 October 1966, by which
it terminated the Mandateconferred upon His Britannic Majesty . .."
One finds the same thing in resolution 2324 of the Twenty-second Session,
first preambular paragraph:
"Tl~eGe~ieroA l ssen~bly,
Recallit~g its resolution 2145 (XXI) of 27 October 1966, by which it
terminated the Mandatc for South West Africa .. ."
Likewisein the third preambular paragraph of resolution 2325of theTwenty-
second Session:
"The GeneralAssembIj~,
.............. ..................
Reafirmiiig its resolution 2145 (XXI) of 27 Octoher 1966, by which it
terminated the Mandate for South West Africa ..."
Soin thc Gcncr21Asscmbly'r own viow iherc wlisno doubi t\h;iiiocicr ;i,to
uhsi IIconsidcred ithad donc, sr purparicd tu do. or intrndcd io do inthe
decision contained in onerative oaraeraoh 4 of resolution 2145
In oiher words. the ciintcntion hy ~hc>istinguisherl represrn1;iiivr. tifFinland
in this Coun really arnounis io an 3trempi IO resurrecr sonieihing ivhich ivas
buried in New York in 1966.and the other feature which emeraes verv clearlv
is that the powers, who had Warnedabout the legal implications, realized the;
very clearly what France today is still saying in its written statement to this
Court. namelv that the General Assemblv in this resDect manifestly exceeded
its legal powers.
So, Mr. President, against this background we can now look at the nature
and the contents of the arguments that have been presented to this Court
in attempted support of the validity and binding eflèct of General Assembly
resolution 2145.
1 have referred to the general feature that not one of those arguments is
based on the provisions of the Charter. One finds that the suggested source
outside the Charter which is mostly relied upon is succession of powers from
the Council of the Leacue and. more varticularly, succession in general of
supervisory powers in respect of the mandate, which is said to include a power
of unilateral termination. And itis then contended that by this process there
was, as it werc, an enlargement of the powers which the General Assembly
obtained under the Charter.
The reasoning is more or less spelt out in this way in certain statements, in
other cases it is more bv.wav o. suggestion that one infers that that is what is
mî;tnr. 1refer raithe u,rittcn st.~ir.n~&tby India 31 1.pligcs839-840; the L'niied
Stdtr.s\vritten sraienieni, pdgc 677; tlic Pxhisi;in or~l statenicnt. pgcs 139-140.
supra; and, by suggestion, the same line of argument seems to emerge from the
oral statement on behalf of the Secretary-General, page 50, supra, and the
written statement of Nigeriaat 1,page 893.
Now, Mr. President, it will be obviousthat this wholelineof reasoning would
fall to the ground ifthe Court should uphold our contention that the supervisory416 NAMIBIA (SOUTH WEST AFRICA)
powers of the League Council did not pass to the General Assembly of the
United Nations, and that the majority Opinion of the Court in this respect in
1950 must be considered to have been wrong. It therefore remains for us to
consider the line of argument now under discussion on the assumption, which 1
make purely for purposes of argument, that the 1950 majority Opinion was
correct in this respect, and that wehave to argue theatter on that legalbasis.
Now, that 1950 Opinion itself indicated the very well-known limitation:
".. .that the degree of supervision to beexercised by the General Assembly
shouldnot ... exceed that which applied under the mandates system".
So, it follows that if the Court should uphold Ourcontention that the Council
of the League itself did not have a power of unilateral revocation of a mandate,
that also would be an insuperable obstacle to the line of argument now under
consideration. Consequently, again for purposes of this argument, 1 make an
assumntion on that ooint aeainst ourselves. 1 assume. for ournoses of this
argument, that that contention is decided against us. '&se were ihe same two
assumptions on which we discussed that point in Chapter X of Our written
statement. And then it becomes necessary on this basis toexamine more closely
the notion that by a process of succession the General Assembly ohtained
powers in addition to those conferred upon it by the Charter of the United
Nations.
My learned friend, Mr. Grosskopf, has already dealt hriefly with this notion
at pages 266, supra, and he has in my suhmission demonstrated that it is a
fundamentally unsound notion. He indicated then that the matter would be
dealt with further, and 1propose to do so now.
Let us look at it in principle first. The obligation to report and account was
imposed upon each mandatory directly in its mandate instrument, although
those provisions of the mandate instrument respectively referred back to the
provision inparagraph 7 of Article 22 of the League Covenant.
In the case of the Mandate for South West Africa, Article 6 provided:
"The Mandatory shall make to the Council of the League of Nations an
annual report tothe satisfaction of the Council,containing fullinformation
with regard to the territory, and indicating the measures taken to carry out
the obligations assumed under Articles 2, 3,4 and 5."
So that. Mr. President. is the leeal oriein of an obligation to reoort and
account, and that is the basis upon ;hich itys said then th; the ~eaguéCouncil
obtained supervisory powers in respect of the Mandate. If one were to answer
the auestions what are the nowers~of the Leasue Council in resoonse to this
obligation to report andacckunt, what powershay he exercised b; the Council
inorder to satisfy itself about the report and to do anything which may arise
from the reoorts and the discussion of them in the Permanent Mandates
Cornrnis\ii>nand in ihc Council, one does nonfind an nnswr io thore que\tions
in the rn~ndaic instrument. Thcy are no1desli with thcrc. The). xrc dîali \ilth
in the Covenant, and one has tolook at the provisions of the Covenant in order
to seewhat powers could be exercised by the Council in this respect.
Now we may come to the notion of succession as expounded by the Court in
1950.and the two exnlanatorvOoinionsof 1955 and 1956.It reallv amounted to
this<that the basic ohligatiin if the mandatory to report and account to the
Council of the League has now by some legal process or other become, or is to
be seen as, an obligation to report and account to the General Assembly of the
United Nations. This is stilly reason of the origin of this obligation imposed
in Article 6 of the Mandate and whatever other legal basis one adds to it in ORAL STATEMENTBK MR. DE VILLIERS 417
order to arrive at the conclusion of succession. But then it follows that in order
to see what powers in respect of supervision, correlate to the reporting and
accounting, this new supervisory organ, the General Assembly, would be able
to exercise. one aeain has to look at its Constitution. There is no other olace
where one'can look for it. The Covenant of the League was notintendid to
aoply to the General Assembly. Nowhere is any intention manifested to import
&(O-the oo.session of the General Assemblvanv of. .e oowers. anv of the
proi'i*ions of the Covenant applii;iblc to the Council of the Lague, so thüt
the Charter is thc cinly ~liic whcre itis poipiblc io see shat kind of powcrr
could be exercised by the General Assembly, assuming it to be the new~super-
visory organ. And what 1 have just stated finds emphatic recognition, strong
em~hasis. in the very advisory opinions upon which reliance is placed for the
pr&sition that theie has b& asuccessjon.
We begin with the 1950majority Opinion:
"The competence of the General Assembly of the United Nations to
exercise such supervision and to rcceive and examine reports is derived
from the provisions of Article 10 of the Charter, which authorizes the
General Assembly to discuss any questions or any malters within the
scope of the Charter and to make recommendations on these questions
or matters to the Members of the United Nations." (I.C.J. Reports 1950,
p. 137.)
This passage ifquoted in the 1955Opinion, which then proceeds to state:
"Thus the authoritv o, the General Assemblv to exercise suoervision
over the ûdmlnistrütion of South West Africn a; a mandüted ~crriiory is
hased oii the provisions of the Charter. Whilein exercising that supervision.
the General ~ssemblv should not deviate from the Mandate. its authoritv
to make decisions in order to effect such supervision is de;ived from iis
own Constitution.
Such being the case, if follows that the General Assembly, in adopting a
method of reaching decisions in respect of the annual reports and petitions
concerning South-West Africa should base itself exclusively on the
Charter." (I.C.J. Reports 1955, p. 76.)
Nothing could, in my suhmission, be clearer than that, or more emphatic
Again, later at the same page:
"Ir is from the Charter that the General Assembly derives ils competence
to exercise itssuoervisom functions: and it is within the framework of the
Charter that thé Generh ~ssemb& mus1 find the rules governing the
making of ilsdecisions in connection with those functions."
So, amin the oosition could no1 have been stated more clearly. Those
obse~ations by ihe Court, those pronouncements, wereapplied in that parti-
cular Opinion, as the Court will recall, to the question whether in exercising
supervisory functions the General Assembly was obliged to apply the unanimity
rule which~wasapplied in the League orcould proceid under~theprovisions of
the Charter, which would in this case, according ta its view, mean a two-thirds
majority decision.
It was on the basis of~ ~e~e~ ~onouncements ~ ~~~-he Court said that the
General Assembly had no option in that regard. It had 10 act on the basis of
its own Constitution, and no1 in accordance with a notion of unanimity rule
which was entirely foreign to it. It said: "11would be legally impossible for the General Assembly, on the one
hand, to rely on the Charter in receiving and examining reports and
petitions concerning South-West Africa, and on the other hand, to reach
decisions relating to these reports and petitions in accordance with a
voting system enlirely alien to that prescribed by the Charter." (Ihi~l.)
One might then ask, Mr. President, applying those same pronouncements to
the question under consideration. would it not be just as legallv imoossible for
the Genera~Assembly to ascribeto ils resolutioni under ~rtiile IOa binding
force which is entirely alien to that prescribed by the Charter. 1 said "its
resolutions under Article 10"-1 mcant any resolutions which it could take
u?ih refercncc tu the exersising of 11ssupervisor) funciioiii, wh~h tliirCourt
it~elfsatd in 1950.and aflirnicd in 1955,aerc to bc iaken iinder Article 10.
The fact that this must follow is clear from the verv lanruace emoloved bv
. --
ihr Court, p3rticularly in 1955 The Couri ~~id:'.The i,uting s)stem'is iciaied
Io thc composition und funi~onsof the orgali. 11Sornisone of the chiractcristics
of the con,titution of ihe orrïn." 1I.C.J. Xrporrs 1955. D. 75.)Soit musi follow.
Isubmii, hlr ~rcsidcnt. thaïthe non-bindink nature ofdecision~ïnd resolutions
mu\t dlso be one oSthc ch<iracterisiicsof the organ, or of the Con~titution ofihe
oraan. and that has indeed often been said bv commentators with reference to
thè~éneral Assembly. In the 1955advisory Goceedings, this aspect became an
important matter for the purposes of the reasoning of at least two of the iudges.
Judre Klaestad soecificalh stated and emohasized that one had thésetwo
counter-balancing features in the ~onstitu~ion of the General ~ssirnbl~,
namely on the one hand, that it could reach resolutions by an ordinary or a
two-thirds maioritv. as oooosed to the unanimitv rule in the Council. but that.
on the other Landiits rcsolutions, with immaterial exceptions, had no binding
efict but u2ereonly recommendatory. He stated. at page 88 of his separate
opinion: "Recommendations adopted by virtue of Article 10 concerning
reports and petitions relating to the Territory of South West Africa. .. are not
legally binding on the Union of South Africa in its capacity as mandatory
piluer.
And itiras on ihis basis. Mr. Presideni. that he ilien siitisfied hinisclf that he
could conie to the conclusion uhich he staied on ihc sanie page:
"By the operation of the rules on voting procedure in the General
Assembly, the Union Government cannot therefore become subjected
against ifs will to other or more onerous legal obligations than it hÿd under
the supervision of the League."
Had it not ken for this feature, also a characteristic of the constitution of the
orean. then it seems that Judee Klaestad could not have concurred in the ~ ~ ~~
0iinibn of the court.
Judge Lauterpacht, the Court will recall, was to the same efict. He had a
aualification to the non-bindinr effect of General Assemblv resolutions when a
number of them were taken on the same subject and ascribed to a situation~~~- ~
which under certain circumstnnces could rive rise to some legal bindinr! ef-ect,
which is not relevant to the ooint under dkcussion at the moment.
What isimportant isthat judge Lauterpacht, Loo,regarded these two features:
the facility to come to resolutions by an ordinary or a two-thirds majority and
the feature of a leral effect which was certainlv not as bindinr as those of the
decisions of the Council of the League. He axribed to the; two features a
counter-balancing effect.
So MI. President, the Advisory Opinions of this Court itself, explaining the ORAL STATEMENT BV MR. DE VILLIERS 419
conceotions of the successionin regard to supervisorv functions. entirelv refute
thisi&a ihrii such succession coiildji:tve rcsuiied in conferrinx upon ihc &ncral
Asscmbly an? consiitution;il po\ier nui providcrl for in the Charter. This
aoplies. Dar excellence. to the sueeested power of makine. a bindinc decision.
where the Court itself kas indicated that the supervisory Gwers are Ïo be exer:
cised by the General Assembly under the competence conferred upon it by
Article 10of the Charter. relatine onlv to the makine of recommenda~ions.
-.
So, with respect and 'submission, my learned fr:end, Mr. Grosskopf, was
perfectly right in contending that the General Assernbly, in acting as successor
to the suoehisorv functions of the Council of the Leaeue.-.ould be subiect to
additional limitaiions upon its powers-additional, that is, to those imposed
under the Charter-by reason of what the Court said in 1950,that it could not
exceedthe degreeof supervision which had operated in the timcs of the League,
but it could not, in acting assucha successor,beclothed with powers additional
to thoseconferred by the Charter.
It is interesting and very significant to note that if this were otherwise there
would be this strangeanomaly, that theGenerd1 Assembly,in exercising powers
of supervision in respect of a mandate, which is a situation not provided for in
the Charter, would have greater powers vis-à-vis the administering authority
than it would have in exercising supervision under a trusteeship agreement,
which is specifically provided for in the Charter. The Court will recall that one
of the issues strenuously contested in the United Nations circles over a long
period of years, and in this Court in 1950 in connection with its advisory
opinion, was the question whether South Africa was under a legal obligation
10 enter into a trusteeship agreement. The Court decided by a majority inthe
negative.
The anomaly would result if this contention, if this line of argument with
which I am dealing, were to be upheld. The anomaly would be that if the Court
had decided the other way around, if the Court had decided that South Africa
was under an obligation to enter into a trusteeship agreement and South Africa
had then complied, then the powers of the General Assemhly over it would
have been less than they are now.
In order to substantiate what 1 have just said, 1 would like to refer to the
record on this ouestion of what the intentions were rceardine -.wers relative to
trusteeship agreements. In Our submission, that record is entircly clear: that
there was astrong philosophy about the voluntary basisof thewholetrusteeship
svstem. and thatuhilosooh~ militated too stronclv aeainst anv contemolation
or any îrnngcrnint whfrcby î puwrr would bè iokrrcd upon supckisory
organs 10 iüke a hindina decision againri the \riIl of the îdniinisicring authoriiy
on anvthine. and in oarticular a unilateral decision in reeard to revocation.
As ihc c;urt knoirs. Ariiclc 77 <if rhc Charicr m:~kr.s-~ri,visionfor thc icrri-
iorics io uhich ihe tri~sieeship>)stem rhlll appl!. and itsiipuldier ih~i ii \riII bc
a matter for subseauent agr.ement as to which territories in the caterories set
out irillIr hrought under the iru~rresliip sysicni and on i\h:ii icriiis. Arti~le 79
ihcn priwidr's ihai the icrnis of trusieïship for cdih territor) Io bc placcd undcr
the trusteeshio svstem-and this is imoortant-including . an~ alteration or
îrnendmcnt orihise ternis, ihdll be :igrecd upun by ihc Sraici dirccily concerncd
includin~: the niandatory pouers in ihc caseof tcrriioric, held undcr mandate
bs a Mcniberofthc Uniicd Naiions.and ihcn thry slidll hsîpprovcdas provided
for in Articles 83 and 85. Well, one of coursë, applies io approval by the
Security Council in the case of strategic areas, and the other approval by the
General Assembly in the other cases; so the basic arrangement was one of
terms being agreed upon, including the addition or alteration or amendment of those terms, primarily by the States concerned, including the mandatory
Dower,if there besuch, and the function of the supervisory organ, be it Security
~ouncil or General Assemblv. beina one of a~oroval.
Toussaint. The~rustees~ hisile; of the ~niteN dations at,pages 92 to 93
points out, in Oursubmission correctly, that the main role ofthe United Nations
in the brineing of a territorv under truste es hiis its a~oroval of the terms of the
trusteeship-agreement drakn up by the tat tediricily concerned-whatever
that might mean.
The Organization cannot take the initiative in the conclusion of an agreement,
he says, other than to make recommendations in this regard to the States
directly concerned. And in regard to the alteration of trusteeship agreements,
hestatesat page 133:
"Chaoter XII of the Charter indicatesthat theinitiativefor the alteration
of a& agreement musr conic from the 'States directly concerned' since
Article 79givesthe Ciencra1Asscmbly powcr onlv toto~row thealteration.
It is relevant to take note of the report approved by the~eneral Assenibly's
Fourth Committee, to the effect that the General Assembly should instruct
the Trusteeship Council ..."
Now this is the suggested instruction to the Trusteeship Council:
". . .if it is of the opinion that, in the light of changing circumstances and
~ractical exoerience. some alteration or amendment of anv such Trustee-
, ~ ~ ~ ~ .
ship ~greenknt wo~lclpromote the niore rapid ashievernent of the basic
obiectivcs of the Trustccship Sysrem,to submit such ~ropused ~tltcrationor
amendment to the ~dministering Authority so thai,-if Greed on pursuant
to Article 79, such alteration or amendment may then be submitted to the
General Assembly for approval"
TheCourt would note the very far cry from the suggestions here made toit to
the effect that the supervisory authorities have powers of issuing binding
directives to the administering tat te.
The Charter is completely silent as regards termination or revocation of a
trusteeship agreement, excepting the provisions which 1 have just mentioned:
that in the ordinary course where this provision is made for how an amendment
or alteration can be brought about, that would then normally apply in the
absence of specific qualifications to that provision-that would be the oper-
ative rule applicable to any alteration, including that of a revocation or a
termination, in the absence of stipulation to the contrary. If is, of course,
feasible, possible,legally-it would have been possible practically-for truslee-
ship agreements to provide in their turn for particular modes of termination or
revocation, and it ispossible that qualified or limited wide or narrow powers of
unilateral action mav have been conferred upon a suoervisorv authority, but
if that was done ~he-~oweror the right of the supervisory auihority toact in
that way would flow on an ordinary treaty basis from the consent of the States
directlv concerned. includinr the administering authoritv, in conferring upon
tlie\u~ervisor) :iuthority thi;spe<ial right. It would then flou froni tli~tspecific
5tlpul;itiun confcrrin~ the ci>n,cnt of thc parties con~~ernud.if thcrc arc no such
exDresssti~iilations, there is nothing in tlie Charter which authorizes either the
G~~ ~~ ~ ~ ~mblv or the Securitv Council. as the case mieht be. unilaterallv to
terminate or revike :ln agreuniç~. And when one has reciurre to the histor; of
the drawinc-UDof the Chartcr it becomes abund:intly clcar that this ivas delib-
erately done in this way. It was, in fact, the intention that the United Nations ORAL STATEMENT BY MR. DE VILLIERS 421
organs would not have the power of unilateral termination or revocation of a
trusteeship agreement.
Within the United States there were at an early stage draft proposals rela-
tive to provisions of the Charter concerning the trusteeship system, and some
of these made provision for a power on the part of the General Assembly
unilaterally to revoke or terminate a trusteeshipagreement.One findsa proposa1
by the post-war Programmes Committee:
"The General Assembly should be empowered .. .words:
(b) To take action upon the recommendations of the Trusteeship
Council conceminath- initial territorial charters. alterations insuch
chïrrcrs, designation of adininirtcrinl: authortties. rcmdviil of such
tiurhor~ticsfor cduse. and the conditisiis oi tcrniinïiion and the acr
of termination of trusteeship in any territory." (Russell,TheHisrory
of the UnitedNations Charter, p. 346.)
But such proposals ran into very strong objections within the United States,
particularly from the representatives of the War and the Navy Departments,
who felt that such proposals would not adequately protect United States
security interests in the Pacific-that is stated in the same source at page 577.
In the final event, the official United States vlan re~-rdina -rusteeshio...s
propowd ;II San Franci\>i>. coniaincrl no prd\.irions uhatioevcr rcgardiiig
rcviication or içrniin;ition of the trustccship agrecnicnt. That one linds alss in
the sanic source. iitDages 589 anil 1030-1031 In ihe Five-Potier ionsultatii~e
group, China alone~p~oposed to provide for action against violation of a
trust agreement. Such violation, China argued, would be a matter of interna-
tional concemand should be brought before the Assemblv or the Securitv Coun-
cil 3sthe case might be.The implicationsof thissuggcstion aereçlearly unaccept-
able to thc Unitcd States, and no rcfcrcnce tu the pixsibility of violation ofa
tmsteeship agreement was included in the worki& papeÏ discussed by the
United Nations Conference in San Francisco. This is again the same source at
pages 836-837.
At that Conference. durine the aeneral discussions in Committee 2IIV.
Ecuador suggested that the ~Cneral issernbly should be empowered to declare
a trust territory independent upon specified conditions. However. the workine
.aw. was also silent on the aÜestioÏnof criteria or methods for ierniinatine - a
trust or transferring it from one administering authority to another. With
reference to the lack of such provisions, Russell comments:
"The general provision that states directly concerned would have to
agree, not only to the original trust arrangements, but also to 'any altera-
tion or amendment' in them, meant of course that neither termination nor
transfer could occur without the consent of the original administering
authority. This situation was not overlooked in the committee discussions,
where questions wereraised about amendment and termination procedures.
The United States exolained that the sta~e~ ori-.nallv conc~ ~e~ would
have to agrec to any suhscqucnt changcs. which ivould ihcn be subniitted
for approval bythe Organi~arion as in the cïsr i>rthe earljer îcrccment.
Termination of a trust or a change in the administrator would constitute
'alterations' in this respect. ~he-only compulsory transfer might be in
consequence of a breach of the peace by an administering authority,
when force would be reauired and the eeneral oowers of the Securitv
Council could be invoked'.To the questi& whether the Assembly could
take action againsl an administering state that failed to carry out its obli-
gation, only the weak ansyer was made that, in cases of negligence not reaching the point of a breach of the peace, the peoples of the territory
(if non strategic) would have the right of petition." (Russell, A History of
rhe United Natioiis Cl~nrter,p. 837.)
1 niay point out in passing that according to the same source, in the Five-
Power consultative group, the United States adopted a similar point of view
with reeard to mandat es. .^affirmed its understandine -ha~ ~ ~ ~ ~te~could
be altGd only with the viluntary consent of the midatory. It was probably
because of these explanations by the United States that the delegate of Egypt
was prompted to niake a formal proposal at San Francisco regarding the
termination of the trusteeship. He moved that provisions embodyingthe follow-
ing principles should be included in the chapter on trusteeship:
"In al1 trust territories, within its competence, the General Assembly
shall have the power to terminate the status of trusteeship and declare the
territorv tobe fit for full indenendence. either at t~e i~st~nce of the Admin-
istering Authority, or upon the recommendation of any member of the
Assembly. That whenever there is any violation of the terms of the trustee-
shin arraneements bv the Administerine Authoritv. or when the adminis-
tering powir has cedied to be a member-of the unitid Nations, or has ken
suspended from membership, the Organization shdll take the necessary
steis for the transfer of the ~erritorv and the trusteeshio to anotheradmin-
istéringauthority, subject to the Provisions of ~rticlés 2 and 6 above."
(UNCIO docs., Vol. X, p. 547.)
In favour of this niotion. it was ar~ued that it was intended to fiIla -.o in the
Charter on trusteeship, which contaked no provisions relating to the termina-
tion of trusteeship. The Egyptian delegate stated further that the Committee
should draw concÏusions fGm the experience of the League of Nations relative
to the withdrawal of Japan from the League. He said that although Japan
disregarded the obligations in respect of the Mandate which it had assumed, the
League had taken no action because the Mandate had been allocated, not hy the
League but by the Allied and Associated Powers.
Mr. President, against this motion, hoth the United States and the United
Kingdom argued that provisions for termination or transfer of the trusts
without the consent of the administering authority would be contrary to the
voluntary basis of the system (Russell. ou.cir.. o.838). It was also arnued that in
some cases details with regard to termination-thro&h independence might be
included in the trusteeship agreement, and that with regard to the question
of the transfer of the territorv to another administerinn authority, as a penalty
for maladniinistration, ihe ~ccurit) Council iras enipowered t" go into >ni,
dispute or siidaiion brought IO II$ arienilon hy 3ny Siair'. 1 rr'ieragain IO an
UNCIO document, \'olume X. iiaaes 547.548.The rssuli rr.;ithat the E.. .tiïn
delegate withdrew his proposal; ai appears from page 548.
Sa, it is clear, Mr. President, in Oursubmission, that provisions empowering
the General Assembly unilaterally to terminate or revoke the trusteeship agree-
ment, were deliberately not included in the Charter. In other words, by the
deliberate intent of the authors of the Charter, the General Assembly does not
enjoy the power unilaterally to revoke or terminate the trusteeship agreement,
whether on the basis of violation of oblieations or at all. And even in reeard 10
the position in the Security Council, the attitude adopted by States thcre, my
learned friend, Dr. van Hecrden, has already referred the Court 10 the attitude
which was taken by the United States representative concerning the draft
agreement in respect of Micronesia and the support which he received from the
Council in that respect (sttpra,p. 328). ORAL STATEMENT BY MR. DE VILLIERS 423
Sa, Mr. President, in concluding in respect of this line of argument to the
effectthat the General Assemblv. bv succession to sunervis. . no.~.,. nhtained
powers of binding decision whGh iere denied to it by the Charter, Ourconten-
tions are, in theirst place, that the whole line of argument rests on a miscon-
ception of the concept of succession as explained in jhe very advisory opinions
of the Court which are relied upon for contending for such a succession, and
secondly. it results in the anornaly that in resr>ectof a rnandated territorv not
placcd under irusieeship. [lie ~eneral ~ssembl~ \iould have greaier po\r;rs in
this rc\pcci than concerning mïndiited terriIorie\ rhat iwre placed undcr irus-
teeship.
The Court rosear 1p.m. SIXTEENTH PUBLIC SITTING (4 II1 71, 10 am.)
Present: [Seesitting of 8 1171.1
QUESTIONS BY THE PRESIDENTAND
JUDGE JIMONEZ DE ARPCHAGA
The PRESIDENT: 1would like to address a question to the representative
of South Africa, which, of course, as is the case with any questions put to the
parties appearing More the Court, can be answered al their convenience.
The question is this. Kindly see page 16 of the South WestAfiica cases
Judgment 1966, where il is submitted on behalfof the Government of South
Africa:
"1. That the whole Mandate for South West Africa ia~sed on the disso-
lution of the League of Nations and that Respondent is, in consequence
thereof, no longer suhject to anylegalobligations thereunder."
In view of this submission, 1would wish to lx clear on the question: under
what title does the Government of South Africa claim Io carry on the adminis-
tration of Namihia?
Judge Jiménezde Aréchagaalso has two questions which hewishestoaddress
Io the representative of South Africa.
Judge JIMÉNEZ Ut ARECHAGA: lhe fir\t question is this.
In vieu of the importance aiqigned Io Article 80, parapraph 1.of the United
Sationi Charicr in thc 1950Advisory Oninion. I regret ihii the rcprcient~ivcs
of South Africa, in their thorough pÏesentation of the case, have not examined
the legislative history of this Article at the San Francisco Conference, in the
same way as they have dealt with the proceedings of the 1919 Paris Peace
Conference.
~~~-.
As the context of the Charter might also he helpful in determining the ohject
and DurDoseof the above-referred nrovision, 1would like to ask the represen-
tativ~of~outh Africa these two queitions:
(a) What would be the meaning and efect. in the view of the Government of
South Africa, of the proviso at theend of Article 76of theCharter ("suhject
to the ~rovisions of Article 80") if Article 80. Paraara~h 1. were to be
intcrprcied ai having the etleci c;,ntendcd for bySouÏh ~frica?
fb, Whai wi~uldbc the meliiing and purpuse. accoriling IO th2 s31iieinier-
pretation. of Ariicle 80. paraaraph 2. of the Charter?
The second question: In the South West Africa cases, Judge Jessup asked
the parties:
"ln the interpretation and application of Article 73 of the Charter of
th~ U~ited~ ~ ~ons. ~.~ ~~~h West Africa to be considered one of those
'territories whose peoples have not yet attained a full measure of self-
novernment' as this phrase is used in that article?" (I.C.J.Pleadings 1966,
vol. Vli1,pp. 16-18..) QUESTIONS BY MEMBERSOF THE COURT 425
The applicant States answered, interalia, that:
"The standards of administration of non-self-governing territories
stipulated in the fint four paragraphs of Article 73, that is paragraphs (a)-
(dl, apply to South West Africa in the sense of providing a floor below
which the treatment of theinhabitants of theTerritory cannot bepermitted
to faIl.
The procedure of international accountabilitystipulated in paragraph (e)
ofArticle73does not, however ... apply to South West Africa . .." (I.C.J.
Pleadings 1966,Vol. lx, pp. 124.125.)
The Government of South Africa stated, inreralia:
"The Applicants have not asked the Court to determine that Article 73
is applicable to the Territos: and in view of the provisions of Article 7,
paragraph 2, of the Mandate, which are relied upon as the sole source of
the jurisdiction of the Court in respect of this ca$e, the Court would, in
our resoectful submission. .o.sess no iur.sdic~ ~n to make such -~~ ~ ~eter-
minatiin if it were formally asked to do so in these proceedings .. .In
view of al1these circumstances. we mus1regretfully. and with the greatest
respect, decline to express a definite point of view-on the question-put by
the honourable Judge Jessup." (I.C.J. Pleadings 1966,Vol. D<, p. 471.)
The question 19: Sincc in ~idvisoryprocedure the Court is no1 subjecr to the
rame limitations of 3jurisdictional nature. 1 wish to 3sk the representativesof
the Ciovernnient of South Afrisa if thev would be oreoared Io nrovide infor-
mation as to whether, in the opinion of the ~o;ekment of 'South Africa,
paragraphs (a) to (d) of Article 73 of the Charter of the United Nations apply,
or have applied at any lime, since the entry into force of the Charter, to the
Territos. and people of Namibia (South West Africa)? ORAL STATEMENT BY MR. DE VILLIERS (cont.)
REPRESENTATIV OF THE GOVERNMEN TF SOUTH AFRICA
Mr. de VILLIERS: We shall be pleased to reply to the questions in due
course. 1 could indicate Our attitudes about them now, but 1 think we could
be more helpful to the Court if we take some time in giving a fully reasoned
reply.
Mr. President, at the conclusion yesterday 1 had just finished Our reply to
the line of argument which attributed to the General Assembly, on a basis of
succession, powers which were not granted to it under the Charter. And 1
submitted that theline ofargument waswithout any substance.
It is no1surprising, inour submission, 10find that the distinguished represen-
tatives of Finland and the Netherlands did not find it possible to associate
themselveswith that line of argument, and eachof them sought an independent
way out of the predicament. I propose 10deal now with their contentions. first
with those of the distinguished representative of Finland.
As 1 indicated yesterday in 3.review of proceedinas in the United Nations
prior IOand durini 1966,chisIine ofargurneni as presentcd hy the disiingdished
rcpresentaiive could bc descrtbed as an alrenrpt not in a derogaiory \ense,
but nevertheless as an attemut-to sidestep the problem rather than 10 meet il
head on. 1 referred broadl; yesterday, 10 whai that argument was. I shotild
like to quote hisown words today beforedealing with hiscontention.The distin-
guished representative commences by admitting that, in general, resolutions of
the GeneralAssembly are no1binding (supra,p. 85).
Now, the gist of the contention with which 1 wish to deal is to be found at
uaae86. srrura.In realitv ara ara o4hdoesnot constitutea decision-paragra-h ~
4, Ïhai 1,of rcs~~lution~2i45.~h; resolutiim in fsct cont;iins oiily one dcaji.~n
and thii ispnragraph 6, concerniny ihz e\iahli>hmcni oCaii u</huc coniniitiee
All the other provisions consist of determinations, declarations, requests and
similar expressions. Taken literally paragraph 4,read with paragraph 3, merely
means that "South Africa itself ended the Mandate throiigh ils blameworthy
conduct". Consequently, this was "no more than a fact determined by the
Assembly".
One page earlier, at page 85, srrpra, the distinguished representative had
indicated the following about suchadetermination:
"Here it mav be contended that al1the Members. includina those which
voted against or abstained on the resolution, ought(Oaccept Gis authorita-
tive determination by the principal organ of the universal organization
and act and adjust their conduct to accord with it. It may thus te claimed
that such determinations haveacertain binding force."
At ihe sdmc page, houever, he proceed$ to niaie: "Hoaever. at the wme
lime 1re-ognire thiii al1the Genernl Asscnibly's resolutions Iÿck s3nciioni."
Ni~a..Mr. President. how are uc IO understand this ~rcunicni?The hasisis
apparently that paragraph 4 of the resolution does not constitute a decision,
but is a determination of fact. The so-called fact il that South Africa itself
ended the Mandate through ils blameworthy conduct, and, thirdly, the result
which follows is, in his words, "a certain binding force", no1 an unqualifiedly
binding effect but "a certain binding force", but one without sanctions. ORAL STATEMENT BY MR. DE VILLIERS 427
Now, certain answers and comments on this line of reasoning offerthemselves
immediately. The first isthe consideration with which 1dealt yesterday, at some
length, 1 am afraid, with reference to the proceedings in the United Nations,
namely that this idea of approaching the matter in this particular way was
svecificallv oro~osed in the General Assemblv and reiected bv the maioritv. . .
~his is in&&ited by al1 the factors ihat 1 nic~tioned &iisrday--the u,ording.
the hiitory in dcaling with the amendmenis and the sub-amendmcnti, the voiing
on them, the comment in the debate, the subsequent description in laier resolu-
tions of the General Assembly, of what was done in resolution 2145-and to
that 1 may add the same kind of description which one finds in the various
resolutions of the Security Council, with which we deal in our oral statement
(supra, pp. 230-231)and in our written statement, Part B of Chapter V, para-
graphs 6-15, where the wording on this aspect is quoted of the various Security
Council resolutions, referring to resolution 2145 of the General Assembly as
having itself terminated the Mandate.
But 1would not like to leaveit with that comment which, initself, in my sub-
mission, is really sufficient. The following asvect of comment which offers
itsclf is thai, as ic have indiiated bcforc,:onduci violatingobligations undcr
an agreenient or a trcaty, orsome othcr Icgslrelationship, does not auiomatisally
brina that treaty or relationshiv to an end. What arises-if it is. of course.
conduct of a fundamentally viokting nature-is a right of election for, usually;
the other party Io the contractual arrangement. And that election has to be
exercised: the varty has an ovtion whether either to insist uvon verformance
or to treat ihcnon~perf~~rmanccor rhc \iulaiion as 3 groutid fur'ciiniell.ttion
or retocation of ihe agreeriicni or lcgal relaiionship. >ly Ik~rncdfricnd. Mr.
Cirosskonf. dcali ivith ihis maitcr in his oral staicmcnt (rupro. D. 265). and
~ ~ ~r~d ihicourt to ~uthorities -~
It seenis, Mr. Prçsident, thai the rcpresentative of Finland is in agrccmcnt
with thcregcneral principles. wlth thi, basic position thüt violating conduct does
noi itsclf remlinaie a coniraci or relaiionship. bccausc ifwe rcfcr IO his oral
stateniçnr ai pdgc 82. siipro,\ie uill sec ihat he rcfers back u,iih spproval to the
writicn \tatement of t'inland. waracrruh 5. which dcals \iiih thc siibicci. I wish
to quote to the Court two extracts fromparagraph 5, indicating ihe way in
whichthese principles are dealt with there.
"It seenis naiurdl, 3s ISohi,ioutly the case of South Africa. thiii if the
mandatory continuoii4y violaics II.;obligations, ihc organization that
supervises ihc adniinistration ma). dcclarc the hlandaie forfcitcd."
"May declare"-it is a right; it is not an obligation or an absolute situation.
Later, in referring to the distinguished author, Castefieda, the written
statement says:
"He refers to general principles of law, according to which treaty
relations im~l. .hat if eit~er o~.tv d.es not ~ ~ ~~ ~ ~ ~ ~obliration-. the
otherparty niay consider the treaty terrninated. Consequently, the General
Assembly had the right to cancel the South West Africa Mandate. This
principle-is also upheld by Article 60 of the Convention on the Law of
Treaties, adopted in Viennaon 22May 1969."
So much for the auotation from the written statement with which. as 1have
said, the distinguished representative identified himself in his oral statement.
So that hasis seems to be common cause and that, 1 submit Mr. President,428 NAMIBIA(SOUTH WEST ARICA)
r-~-~~~~-a~ ~~~u~eAable difficultv for the line of arau-ent nresented bv the.
distinguished representative.
1will deal with that further, but firs1want to point out with reference to his
use of the word "fact", a determination of "fact", that the question whether
conduct has occurred which may on these principles justify a revocation or
cancellation of an agreement or legal relationship, is not necessarily confined
to fact, it could also include important questions about interpretation of the law
and application of the law to the fact. So that is an over-simplification too.
Then finally, Mr. President, to speak of the result of the General Assembly's
action as king "a certain binding force" and "without sanctions" again, 1
submit, particularly in the context of international law, is rather vague and
unsatisfactory, with the greatest respect. In international law par excellence
we know of so many situations in which there may be binding obligations but
where sanctions,in the ordinary sense in which they are available in a municipal
system may be lacking. The question with which we are dealing here is not
wh~ ~~ ~ ~ ~e are sanctions. When the distinauished -eoresentative savs
"sanctions" he does so. apparently, in the same senw in u,hich I havejust been
using the word, because hc speaks of prospective action by the Security Council
aonarentlv under Chanter VII of the charter. So it is reallv of no assistance. to
/orne to a conclusion'about the problem of the hinding Lffector otherwiséof
resolutions of the General Assembly, to use these terms about them.
The distineuished reoresentative~wasasked bv Sir Gerald Fitzmaurice. in the
question~to Ghich he ieplied yesterday, to indicate more specifically what he
meant hy the actions of the General Assembly in this respect, particularly if it
was contended that the General Assembly was acting as a kind of court of law
in making determinations of fact and of law. The Court has seen the answer
and, in my submission, the answer has left the matter just as ambiguous as
before. Exactlv the same exoressions are used and nothina isstated. with resnect
in the answer hhich directsitself to the specificquestionkhich ha; been put.
But, Mr. President, 1 do not wish to leave the matter on this more or less
dialectical basis. There are much more fundamental objections to the line of
argument presented by the distinguished representative, even if one disregards
the fact that the basis for it was already rejected in what the General Assembly
maioritv did in 1966-even assumine that that has not haooened and that it is
stili opin to present this argument the Court. Let us examine what are the
possible alternatives, the possible variants, in the extent of powers which could
theoreticallv. if so inteded. be eiven to a suoewisorv oraan in reaard to
revocation of a mandate or a trusteeship agreement onihe ;round ofalleged
fundamental violation of obligations by the mandatory or administering
authoritv.
In other words. 1 mi not postulîting the case of a grant of absolute legislative
sovcreign-type of powcrs in this respect-ihai is one of the contention?, ton,
which has to be dealt with on its merits. but that is not the contention of the
distinguished representative of Finland.
If we accept that this is a matter of suggested power to act on the basis of a
fundamental violation of obligations, let us seewhat arethe possible, theoretical
variations in the scope of power which could be bestowed upon an organ in
that respect.
In mv resoectful submission. there are only two basic patterns which offer
themseives iogically. There cot~ld of course-be variations, minor details by
stipulation which could introduce qualifications and variations, but basically
the two patterns would be as follows.
The first one would be for the organ ta be clothed with full power to efiect ORAL STATEMENT BY MR. DE VILLIERS 429
a revocation with final and binding effect. If one analyses that it would
really mean a combination of two powers: the iüst Dower would be a auasi-
judicial one-it would be a power-to determine thh a violation justif$ng a
revocation hasoccurred, andit would have to be a power, then, to do that on an
arbitrational or quasi-judicial basis soasto have binding effect on the interested
parties; and the second would be the power of m3kingïhe elcction. as a niatter
of policy. whether IO act with ï view to obtainingfulfilment of theobligations
or to use the rights of terminating, or revoking, the relationhip. So th2 is the
one type of authority which could, if so intended, be bestowed upon a super-
visoryauthority.
The other basic pattern would be to put the organ more or less in the same
position as would apply to an ordinary party to a contractual relationship in
this respect.
According to our conce~tion of the law. the oosition of the oartv in the
. .
reciprocal contractual relaconship would bé this:.that ifconduct occurs which
to him appears to be a violation of obligation, he has to form an opinion and
to make up his own mind whether he considers that to be a violation. in the
first plîce,and in the second place one urhich is substantial enough 10'justify
rcvosation or canccllation. In ihe second place, he must ihen dccide, as ï matter
of policy, what election he is going to make-again. the election of claimine.
performance, (insisting on peiforiance) or ca&elling. There is a difference
between his case and the first one with which 1have dealt because, in making
up his mind whether he considers that there has been such a violation. he is not
përfonning a judicial, or a quasi-judicial or an arbitrational function, he is
merely deciding now how he should act responsibly within the exercise of his
rights, and if he errs in his conception of the situation he can be corrected on
ordinary merit by a court of law.
The other party may say "1 do not agree with you, 1 do not agree that there
has been such a violation. 1do not agree that there has been a violation at all.
you have misconceived the fïcts or ).ou h3ve misconsirued the Iau ïnd I slaim
th31 Our contr.~ctuaI reliitionship or whaterer other relationship itis. is still in
existence in law." And that may be a dispute upon which the may go to
court, and then when it comes to court the court does not sit as a court of
review or appeal, the court goes into the merits of the dispute and the court
decides it on fact and on law. When a court of comoetent iurisdiction has
decided, then the effect of the decision is, in a certain sense;declaratory. It
really declares whether, as from the moment when the election was made, this
contract must be considered to have been terminated. or whether that was an
ineffectual,purported act of revocation so that the contract is still in effect.
That, as we conceive it, is the ordinary position as between parties to a
contractual relationship, including a treaty, and 1am postulating for themoment
the possibility that it may have been theroretically intended to bestow upon a
supervisow organ the power to act as if it were a party to a contract in this
sense.
So the difference in essence between these two alternative patterns would
be this. In the first case the decision taken by the organ in which it determines
that there has ben a violation justifying revocation would be binding in law,
at anv rate in a orima facie sense. It would not~~~-~o-~ to take tha~ ~e~ ~~ ~ ~
~7
Io a court (assuniing competent jurisdiction) on thc hiisis of asking thai court
Io reconsider the merits of the deciston and set itaside if itdid not aeree with
the merits. There would be, depending on the particular stipulations and so
forth, only a possibility of limited powers of review on the part of the court,
review to the extent of acting on grounds such as no proper exercise of the430 NAMlBIA (SOUTH WESTAFRICA)
-is~ ~ ~ ~ ~ . .er. no oro. . aoolic..ion of the mind to the oroblem bv the
organ, improper niolives, ninla~;d~~rdïsa sorlforth.
As 1 have said. depcnding on particul~r sti~ulations, ihe ~ariicular arounds
avüilahle for a reviei;of 1hiCkindni3~ be uide; or narro\\er,-but al1th; ~ould
dependon what isstipulated in a p~rtiiular rase.
in the caseof the second possibility 1 have mentioned, there the matter can
go to court as an open one in which the court decides on merit whether it
agrees or disagreeswith the decision arrived at, or the opinion formed by, the
orean in auestion. But what is common to both casesis the second step-the
stFpof iii.iking a decision of policy whether ta go in the direction of a revocation
ur in the direction of kceping the legal relationship ;ilii,e and insisiing on 11s
performance.
Now, Mr. President, when we come back to the contention of the distin-
guished representative of Finland, it seems that he contends for something
more or less alona the lines of the second alternative 1 have mentioned, that
the General ~ssembly is Io be secnas having this powcr to niake up 11smind.
subject io correction, as to irheihcr a violation ha5 occurred which might
justify revocütion and, then, Io exercisethe right of eleciion. Consistently uith
thir intcrpreiiiion of hi* conlention, one secsthst in hisconclusisn Na. 5(sapra.
p. 87) he truri his qdestion ai thc purporierl justiti.'~l.an ol'lhe re\oiation as
a matter upon which this Court is asked and resuired to pronounce on merit;
in other wirds, hcdoesno1clsim an) specialprotectii,n for-il. hemakes ihût one
of his subniissions to the Court. as iiiiere, saimeihing 011 \hich the Court niust
pronounce itself: was this a justified or an unjustified act of revocation?
That appears,as 1have said, from this submission No. 5. Italsoappearsfrom
the attention which he gives in his oral address at pages 79 to 80,srrpra,and the
following pages in the record (ibid.) to the question which he words in this
way: "... whether the Ceneral Assembly had suflicient reason on a basisof
fact to terminate the Mandate, a point which has also been disputed by the
South African Government on several occasions, and latterly in Chapter XI
of its written statement".
The merit of what he says about this question is something with which we
shall deal at a later staEe.but the fact is that he treats this asbeinc a question on
uhish this Court is required IO pronounce for the piirpnses of 0;s aditisory
opinion. and he plxces his argument on ihis question hefore the Court.
So th31 seenis IO be u,hai the distinguished representaiiïc is contending fur,
a power s~nic\\hst along the lines of the wiond of the alicrnatives 1ha\'e nien-
tioncd. I'he fasior of o\rrriding import;in;e. and ihe one un trhich hls argu-
ment breaks down is exaclv this: that whether one contends for something
along the Iines i>f the first pJtiern Ihave mentioned. or the iecond pattern, in
each casethere 1srequired a power fur the particular orgûn to act in a p~riicular
way whtch will lx binding. Itis so undoubiedly ihat if the fint tif the tu'o pos-
tulaies is the one u.eare dealing u,ith, ihen the scopeor the are3 over which the
decision will be of binding quslity uill be niuch \vider ihan in the r~se of the
second. But even in the caseof the second, there is an area in which it is then
postulated that there is a power for a majority to bind a minority by decision
in this organ, and that is at least on the question of the election which has to he
made-assuming . the justification for the moment, for the purp~ses~of argu-
ment-of the election iihereby thi\ organ now dctermines a coune which \\,III
bc pursued. the course of ireaiin8 the relationship as haïing beencancelled ur
revukcd in future and taking al1 ihe coniequences ihst conle from il.There
ma). bea possibledispute from theothrr party. posrihle Iitig~tion about it-hut
apxri from that faci. assuming thal itis found to bea valid act, then itkas con- ORAL STATEMENTBY UR. DE VILLIERS 431
sequences not only for the State directly affected, for the mandatory or ad-
ministering State, it has consequences for al1the other States members of that
organization, and those consequences extend to the plane outside this organ
and ils proceedings, they extend to the realm of direct interatate relationships
outside the organization. So, no matter how it is phrased or put by the dis-
tinguished representative of Finland, what he is suggesting Io the Court is
something which still implies or connotes a power which has been bestowed
upon an organ to do this thing with binding effect. That is a power which has
to be found somewhere. It cannot just be taken from the air. It must be found
within the Charter, either expressly or by necessary iinplication, and the dis-
tinguished representative of Finland makes no effort at demonstrating any
basls for sucha power. As a matter of fact, the whole way in which he pre&nted
his argument was such as to attempt to evade the necessity of demonstrating
such a bestowal of power.
The practical importance of what 1 have said is further illustrated by refer-
ence to the survey which 1gaveyesterday about the position under the Charter
concemina the trusteeship system. The history dealt with yesterdav makes it
pcrfcctly clex that the intention of the authors of thc charter u,is that the
supcrvisory orgüns werc no1 t<i have an). power of unilateral tcrn,ination or
revocation of trusteeship agreements. either in the first sense or the second
sense with which 1have dean with that concept this morning.
Itwill further be apparent, Mr. President, from this discussion of the subject
and. I submit. its inescapable conclusion. that if there is a conceotion on the
p3rt of iramers of a constitution that such a pouer is to be besto\ied upon an
organ, thcn surcly they would consider very careiully: Exactly how far do WC
no''How do ue outline that oawer? Hou do uc deliniitûte it? How f3r docs it
go? Is it one of the first kind'~bave mentioned or is it one of the second?
If it isasically one or the other, are there qualifications which we want to
attach? 1s it-aoin- to be comoletelv bindinn? What kind of discretion are we
going to con~.edeto thcsc organs'!\Vil1ihc Court bc able to intcrfcrc on a review
hasi,, merely beiausc polit~calconsidcratiuns have cunic into it, or iiould we
sav itis oerfectlv in order for the orzan to take into account the oolitical con-
sider~tions but ihcrc arc still other criteria uhich itmusi obey in good fîith,
and ifitdoes not. thecourt could rct asidc itsd~tcrminîtione\~cn il'adiscretion
has been bestowed upon it.
Those are matters which would, Mr. President, have to be very carefully con-
sidered by the framers of any constitution, and it is inconceivable, in my sub-
mission, that such an important matter would he left to implication. If it had
been intended to bestow a power of this kind, then the natural expectation
would be that it would be expressly provided for.
So, to summarize: in our submission, the contention on behalf of Finland
breaks down on several grounds: in the first place, it is based on an interpre-
tation of the 1966 decision of the General Assembly which is clearly wrong,
which suggests something which was in fact deliberately rejected in 1966.
Secondlv.,e~en~ ~~ ~at interoretation had ken correct. it would still mean that
the General Assembly majority purported to bind al1United Nations Members
to a new legal situation, beinn at least one in which an election of revocation
had been made. And, thirdly,the General Assembly would therefore require a
grant of power for that purpose, and there isno express grant, nor can any be
implied.
The significance of the Finnish contention is really that it constitutes, in
effect, an admission that the General Assembly exceeded its powers. That brings me, Mr. President, to the contentions by the distinguished
representative of the Netherlands, Mr. Riphagen.
My learned friend, Dr. van Heerden, has very adequately analysed and
answered this line of argument. He did that at pages 324-329, supra. There he
dealt with MI. Rivhagen's arguments mostly in the context of his own areu-
ment conccrning the &ague if Nations and-its pouers. His reply to Mr. ~7~-
hagen serves vcry much the same purpose u,ith regard to the pouers of the
General Assemblv. 1 therefore want to associate mvself with the argument al-
ready presented by Dr. van Hecrden, and 1 only u,ant to add to % in somc
measurc for the purposes of the prcscnt argument, specifiwlly urith reference
to the vosition in the General Assemblv
NOW, if one reads the argument by ~r. Riphagen-I did not have the priv-
ilege of listening to it-but reading it certainly is a very interesting and a
pleasant experience; it isa highly intelligent composition, it makes very good
reading. But, Mr. President, the question is, is it law? In my submission it
clearly is not-at least on the crucial aspects which really matter. One finds
that the distinguished representative of the Netherlands makes the significant
admission that his contentions cannot be iustified on the basis of "the classical
mles of international law" (supra,p. 125). Then, secondly, he admits that the
contentionscannot bejustified on the basis of "the mles of general international
law" (ibid.); and, thirdly, nor on "the normal applicaGon of the rules of
international law concerning the effect of treaties between sovereign States"
(ibid., p. 126).
The Court will see that there is still some aualificatinn attached tn the a--
missions, and for that reason they, in my submission, do not go far enough.
In tmth, in ourcontention, the thesisof the learned representative of theNether-
lands cannot be justified at al1on principles of international law in force at this
present lime. That is as plain and simple and unqualified as it sounds.
In essence, his thesis amounts to this: he savs one should attach varamount
importance to the object and purpose of the mandates system, u,hcchhe callr
the self-determination of pcoplcs and the principle of no-anne.v~tion.And thcn
he savs these ohiects and vumoses are to be aiven effect to b. a r-gorous func-
tiond approach; and thai functional approach requires al1 of us-apparently
including us lawyers-to do certain thiigs of necessity when circumstances
change. Those things which are to be done are threefold: the first is the con-
strucÏion of solutions; the second is, 1quote hi31 page 124,supra: "sornc forni
of pou,ers tobe enercised in this respect by the organized community of States",
the third is "an adaptation of the relationshiv between the vowers of the or-
ganized community-of States and those of ihe mandator; State .. .to give
effectta the common purpose of these respective powers" (supra,p. 125)-that
too is to be implied, or to be considered to be present with a view ta giving
effect to the basic purposes by the rigorous functional approach.
Now, Mr. President, surely if one is allowed to make one's own rules, it
becomes very easy to arrive at the result at which one wants to arrive, and this
must apply when we read these rules which are suggested to us. This applies
both to the pleader-the man who is arguing this to the Court-and to the so-
called organized community of States, because when we then start applying
these niles, or when Mr. Riphagen starts applying these rules, he cornes to the
conclusion that there is a very happy ending for both-for his argument and
for the organized international community.
For the organized international community, the end result is that the
General Assembly sits very firmly in the saddle as the organ of the organized
community. He admits (supra,p. 126)that on the basis of normal treaty law ORAL STATEMENT BY MR. DE VILLIERS 433
and its application he could not construe an obligation on the part of South
Africa as a mandatorv to reoort and account to the Genera~-Asse~blv: but he .. ~~ ~~~-
süys. on his functional approach, sertainly iherc is sush 3n oblisatiun. He ad-
niiis that on ihat b~sisof the n<rrinalapplication oftreaty Iaw relationships, the
majority Opinion of the Court in 1950could not bcjustilied hr says that in so
mîny words-but he rîys. on his function~l approach that Opinion is correct;
and. of course. that is the basis upon which I have indicated kfore thai 1am
oreoared to areue this oarticular Üart of the matter. But the matter. accor.ine~ ~ ~~ ~ ~
io him, does not end with an obligation on the part of the mandatory to repog
and account to the General Assembly. We find that a startling revolution has
come about as a result of the aoolication of this functional aooroach. The
mandates iybtemstarted oii a baii; &hich Liasvery fully deali with by myIcarn-
cd friend. Dr. van Hecrdcn and vcry f~llyand auihoriiaiively and clearly dealt
\\ith hv thi.,Court in its 1966Judamcni. It is oerfectlv clear thîi thai basis was
one biwhich mandates were to b-held by ~t~tes,notby the League itself or by
organized agencies. There had ken earlier ideas of that kind in discussions
leading up to the eventual establishment of the mandates system-that the
League itself, or organized agencies, might possibly hold mandates-but in the
final settlement those were rejected, and the system is one whereby the man-
dates would be exercised by States, and the primary responsibility would rest
on the mandatory State to achieve the objectives of the mandates system, to
pursue the sacred trust of civilization. But the mandatory State did bind itself
to the League organization, and particularly bound itself to report and account
to the Council-it did so on the hasis of its own consent.
However, in that system. as fully and authoritativelv exolained by the Court.
the Council exercisëd and was ibtended to exercise.supewision in effect b;
persuasion. There was to be no imposition of the will of the Council on the
mandatory, the system deliberately rendered that imoossible
And. Mr. ~resident. co.ine to the trust~ es ~ ~svst. ,-~.at too rested on a ~ ~~ ~ ~ ~
i901unt;r).basis. I dealt with ;hi history ycsterday-the ernphmis ahich was
placed on this nul only in ihc wording of the Charter. but alsa bv the authors
of the Charter during their deliberatrons prior 10 coming to their agreement
about the trusteeship system, and there too the whole system was to operate on
the hasis that the supervisory organs could recommend, not dictate.
However, now flowing from this functional approach suggested by my
learned friend, Mr. Riphagen-on the basis of the new rules which flow from
this approach, he cornes to the conclusion that the primary responsibility is
now that of the oreanized communitv. no longer of the administering State.
The organized community in this instance is-represented by the CiGeral As-
sembly, and the administering authority is a mere agent or a hireling of the
General Assemblv. If there develoos even a seriousdifference of ouinion. a
difference of app;oach or conception regarding the attainment of &If-deter-
mination or methods or modalities or time aspects involved and so forth, then
the General Assemblv mav chanee the aeent as -t likes. whether the aeent likes
it or not. And hesayithis isnot amatter of applying a sanction for the>iolation
of obligations, it is merely a matter of serving the basic oumoses of this whole
system; and it isan inte&, domestic kind o?adjustment which is king made,
like changing from one subsommittee to another. He says in this respect:
"A comparison with the General Assembly's powen of decision under
the Charter with respect to specific organizational matters would seem to
be more legally appropriate."
In other words, the supervisory function in regard to mandates and trustee-434 NAMlBlA (SOUTH WEST ARUCA)
ships is now to be classified in the same category as budgets, rules of procedure
and the appointment of committees. And so the wheel has, according to this
contention, made a full turn-but hy what process of law, 1,with respect and
with submission, certainly do not know.
Yet the distinguished representative says that his approach is not ateleologi-
cal one. Perhaos we have to concede the ooint and cal1it unabashed l-e--~-~~~~~---.
because 1do iot, with respect, see any &sis for this approach in principles of
law as they are established, and as they have ken recognized and vronounced
uoon and enunciated in the iu. .omdence of this cour!.
Mr. President, quite ohviouslyin al1these respects this power of, if1may use
the expression, "hiring and firing" is not related to anything which issaid in the
Charter. exceot in this indirectiav-f savine that it should now be re-arded
as king coipared more approp;iately withthese organizational matters to
which 1 have referred. But there is no suggestion that on any ordinary, normal
interpretation of what the text of the Charter means, that is the conclusion at
which one is to arrive.
Together with these arguments of the representative of the Netherlands 1may
UOUD certain others which are based on similar conceDts of so-called "neces-
-.
slty". hlost of theni have been applied equally ex corhedru.or shall 1rather say,
announced I..curh(~~lr u.ithout any attcnipt at justification on estïblished lepal
foundations. 1 refer to the contention of the secretam-General-oerhao; r~ e 1
should say a "propositionw-that:
". ..in the absence of any intewening sovereign jurisdiction between the
General Assembly and the people and territory of Namibia, no govern-
mental authority exists other than the General Assembly, and the Security
Council, having the competence to interpret and apply to Namibia the
international obligations which are owing to the lattei under the Charter
of the United Nationsand the formermandates system" (siiprapp. 50-51).
The next quotation:
"The fact that, broadly speaking, the General Assembly's activities are
mainly of a recommendatory character, does not mean that ... in regard
to a Territory which is an international resnonsibilitv and in regard to
which no siaie sovcreignty inten.enes betwee" the ~eieritl ~s\emibl~and
the Territors. the Generül Assenibly should not be able to actas itdid by
re~olution 2145 (XXI)." (S~ipro,p. 51.)
In the written statement of India, we find this:
"How can the General Assemblv. the successor to the Council of the
League, discharge this task withoit having the competence to take de-
cisions binding on the Mandatory?' (Written statement, 1,p. 839.)
uurds, agïin the type of argument: this is what itshould necessitr~ly
In other
have ln order IIIdischarge the task according to our conception of whït that
task is.
Now, this line of argument in the fom in which 1have now quoted it, that is,
the form in which India raises it, is not new, nor is it in the form in which it has
been raised in certain of the otheroassaees. As 1have said. no attemDt is made
at justiliration on any estahlished legi basis. The forn;ulütion if the dis-
tinguished representalive of the Netherl~nds is new in the \wy in tihich hc hïr
broueht it alltoeether. and that nromnted the remark 1made~vesterdav.that it
issu~gestcd aphrentk thai thi; is soniething \ih.ch eirher e\;aped [hi; Court
ever %ince itsrartcd giving attention to theSourh IVr.srAfricu sûses in 1950,or ORAL STATEMENT BY MR. nE VILLIERS 435
which in any case runs counter to the whole basis of the Court's jurisprudence
and the principles which it has applied to the situation.
The fact is that many of these so-called arguments of necessity and associated
arguments were pressed upon the Court in the South West Africa cases, in-
cludina-arg-ments very similar to those of Mr. Rioh.gen-.in which it was said
that a particular concept or a pïrtiiular humïniiariîn con\idcrütion, the sacred
trust in it\elu,rü to serve 3s the source oflegül righis and obligations, and that
one took that as one's sourceand one built on that when new situations arose.
TheCourt in ils 1966Judgrnent wcnt very lully into these variouscontentions
and suggcriions and the Court dealt wiih itauihoritatively in extensive p3ssdgcs
in its Judment. formina essential narts of its reasonina. 1 wish to refer to
certain pokons'of the ~Üdgmentand commence with page 34,paragraph 49:
"The Court must now turn to certain questions of a wider character.
Throuahout this case it has been suaaested. directly or indirectly. that
huniaiitarian considerations are sufi&nt inthemsekes to generate legnl
righis and oblig;iiions, andthüt the Court cünand should prosccd accord-
inaly. The Court does not think so. It isa court of law.and can takeaccount
ormoral principles only in so fdr as these are given sufficientexpression
inlegd forrii. Laupexizts.itis süid. to serve a social nced; but precisely for
that reason it can do so only through and within the limits of its own
discipline. Otherwise, it is not a legal service that would berendered."
(1.C.J. Reports 1966.)
Again:
"The sacred trust, it is said, is a 'sacred trust of civilization'. Hence al1
civilized nations have an interest in seeina that it is carried out. An interest.
no doubt,-but in order Tharthis intete: ma). take on .Ispccific~llylegal
chîracter. the sîcred trust itself mus1be or become something more than a
moral or humanitarian ideal. In order to aenerate leaal riahts and obli-
gations, itniusi be givenjuridic31 expression and bechhedin legal form.
One such forni niigliibe the Uniicd Kations trusiccçhip sysiem.-another,
as contained in Chapter XI of the Charter concernina n.n-se.f-governina
terrirories. whicli niiikcs express rîlerînce to 'a sacrcd trust'. In cach iü5e
the legal rightb and obligations 3rc those, and only those, provided for by
the relevant texts, whatever these may be." (Ibid para. 51.)
And, 1 may Say, the pronouncement in this last sentence is one which is so
obviously ignored in the lines of argument with which 1have ben dealing this
moming.
Then, again:
"To sum up, the principle of the sacred trust has no residual juridical
content which could. so far as anv narticu-~r mandate is concerned.
operateperse to give rise to legal rights and obligations outside the system
as a whole; and. within the svstem eaually, such rights and obligations
exist only in sofar as there & act~a1~~ro;hion focthem. Once the ex-
pression tobe given to an ideahas heen accepted in theform of a particular
régimeor system. its legal incidents are those of the régimeor system. It is
not permissible to import new ones hy a process ofapgal to the originating
idea-a process that would, ex hypothesi, have no natural limit." (Ibid.,
p. 35,para. 54.)
Thisis exactly, Mr. President, the process which is suggested in the lines of
argument to which I have referred.436 NAMIBIA (SOUTH WEST AFRICA)
ïhen a further reference:
"If, on a correct legal reading ofa given situation, certain alleged rights
are found to be nonexistent, the consequences of this must be accepted.
The Court cannot or. .rlv o..tulate the existence of such riehts in order
to avert those consequences. This would be to engage in ai essentially
legislative task, in the service of political ends the promotion of which,
however desirable in itself, lies outside the function of a court-of-law."
(Ibid., p. 36, para. 57.)
1 would, Mr. President, like ta refer to one further aspect of the Judgment-
that which deals with the so-called necessity argument:
"The aist of the argument is that since the Council had no means of
imposing its views onthe mandatory, and since no advisory opinion it
might obtain from the Court would be binding on the latter, the mandate
could have been flouted at will. Hence. so the contention eoe- .it was
csseniial, as an ulrimate saleguird or securiiy for the perform~nîc <ifthe
sacred trust, tharcxch rnemkr of the Lrague should be deemed to ha\e a
legal nght or interest in that matter and, in the last resort, be able ta take
direct action relativeto it.
It is evident on the face of it how misconceived such an argument must
he in the context of a system which was expressly designed ta include al1
those elementswhich, according to the 'necessity'argument, it wasessential
to guard or provide securities against." (Ibid., p. 46, paras. 85 and 86.)
1 refer now ta the beginning of paragraph 87:
"As regards the possihility that a mandatory might be acting contrary
not only to the views of the rest of the Council but to the mandate itself,
the risk of this was evidently taken with open eyes; and that the risk u,as
remote, the event proved."
This referred to the circumstances at the time of the League, Mr. President.
Now it may be said: Yes, but completely new circumstances have arisen-a
kind of deadlock in views. oolicies. aooroaches. as between a mandatorv
Power and a supervisory ~ouér.The ~o&i dcali 4th that aspect, too. aq frui
page 47, paragraph 89. onivards, and 1 should likc to read this in conclusion:
"The Court feels obliged in conclusion to point out that the whole
'necessity' argument appears, in the final analysis, to be based on con-
siderations of an extra-legal character, the product of a process of after-
knowledee. Such a theorv was never officiallv advanced durine the neriod
of the ~Gguc, and prohahly nçver uould haGebeen bui for the-di\,(;lution
of that organi~ai~onand ihe fact thùt iiuas ihen considered preferable to
relv on the anticioation that mandated ~er~ ~or~ ~ ~ ~ would~be broueht
wiihin the United Nations trusteeship system. It is these subsequent evits
alone, not anything inherent in the mandates system as itwas originally
conceived. and is correctlv tobe intemreted. that eive rise to the alleeed
"necessit;". But that neceisity, if it exi'sts,lies in th; political field. It d&s
not constitute necessity in the eyesof the law. If theCourt, in order to parry
the conseauences of these events. w.re ~ ~ ~o~read into the mandates
system, by way of, so to speak, remedial action. an element wholly foreign
to its real character and structure as originally contemplated when the
system was instituted, it would be engaging in an ex posr facto process,
exceeding its functions as a court of law. As is implied by the opening ORAL STATEMENT BY MR. DE VILLIERS 437
phrase of Article 38,paragraph 1,of its Statute, the Court isnot a legislative
body. Its duty is to apply the law as it finds it, not to make it.
It is always open to parties to a dispute, if they wish the Court to give a
decision on a basis of ex aeauo et bono. and are so anreed. to invoke the
pou'er which, in ihose circumstances, pJrdgr3ph 2 of Ïhis same Article 38
confers on the Couri io give n decision on that basis, noiuiihsianding the
provisions of parïgrliph 1. Failing that, the duty of the Court is plain."
It may be urged that the Court is entitled to engage in a process of filling in
the eaos-constnictine solutions. Mr. President-filline in the saos in the
applTc&ion of a teleoïogical principle of interpretation: accordi&'to which
instruments must begiven their maximum effect in order to ensure the achieve-
ment of their undeÏlying purposes. This is exactly the argument we are
dealing with here. The answer is, the Court need not here enquire into the
scope of a principle, the exact bearing of which is highlycontrovenial, for it is
clear that it can have no application in circumstances in which the Court would
have to go beyond what can reasonably be regarded as being a process of
interpretationand would have to engage in a process of rectification or revision.
Rights cannot be presumed to exist merely because it might seem desirable that
they sbould. On a previous occasion which had certain afinities with the
present one the Court declined to find an intended three-member commission
could orooerlv be constituted with two members onlv. desoite. asthe Court had
held, iilegal réfusalof one of the parties to the juris&tionalClause to appoint
its arbitrator, and although the whole Durpose of this jurisdictional clause was
therebv frustrated. In so doin-. the courtsaid that itwas its dutv to interoret
the treaties, not to revise them. It continued:
"The principle of interpretation expressed in the maxim: Ut res magis
valeorquamperear, often referred to as the rule of eflectiveness, cannot
justify the Court in attributing to the provisions for the settlement of
disputes in the Peace Treaties a meaning which, as stated above, would be
contrary to their letter and spirit.(I.C.J. Reports 1950, p.229.)
In other words, the Court cannot remedy a deficiencyif, in order to do so, it has
to exceed the bounds of normal judicial action.
That is exactly what 1 contend it is being asked to do by these contentions.
The Corrrfadiorrrnedfrom 11.20a.m. ro 11.45a.m. QUESTIONS BY JUDGES ONYEAMA AND DILLARD
questions to the representative of South Africa.rd wish to address some
Judge ONYEAMA: These questions are designed to probe the essential
nature of the Mandate for South West Africa (Namibia) as opposed to what it
mav be called. Thev are also intended to seek euidance on the alternative
inipiication of your approacIOSouth Africa's re~ponsibilitics.
YOUpethere state that vour nositionwith resnect to the laose oan datehas.
been misunderstood-in th'at you do not "ow claim thé Mandate lapsed with
the dissolution of the League of Nations. What you claim, in keeping with the
opinions of JudgescNair and Read in 1950, isthat the lapse of thesupervisory
and accountability provisions of the Mandate (Article) possibly entailed a
lapse of the Mandate itself. This appears to carry the natural implication that
this orovision is of the verv essence of the Mandate. and that. while this
provision might be temporanly suspended, as during the Second ~orld War,
it iset (to repeat) so essential that its disappearance carries with it the possible
itnpÏication that the Mandate itself has terminated. In light of this implication
will you assist the Court by elaborating more fully on the following questions:
1. 1sit your position that no legal restraints of any kind were imposed on
South Africa subsequent to the dissolution of the League of Nations?
2. If your answer is that there remained legal restraints, will you specify
their nature and areas of application?
3. If your answer is that there remained only a political or moral obligation
to live up to the requirements of Article 22 of the Covenant, then is it your
position that there are noegally operative provisions anywhere which would
orevent South Africafrom annexinz South West Africa (Namibia)?
The thsee questions ahove may bisupplemented by th; followin~ additional
question, based on your statement at page314, supra.You there state as an
inference to be drawn from a oassaee in the 1966Judement that "the mandatow
could act not only contrary io thewishes of the ~Guncil, but contrary to thé
mandate itself, and that the League and the Council woulden be powerless".
Cast asainst this backeround! 1
IsIIyoir pù$ition th~<had South Africa during the existence of the Lexgue
îi.uly refused to render ûny annual report, no legal remedies of iiny kind could 1
be imposed on South ~frica?
I ORAL STATEMENT BY MR. DE VILLIERS (eont.)
MI. de VILLIERS: Mr. President, 1have quoted from the 1966Judgment at
length-some Members of the Court may think at excessivelength. You might
have told me, with respect, that you can read yourselves; but, kindly, you did
not do so. The fact is that 1auoted at leneth for a ouroose: to demonstrate how
the kind of arguments whicL are now being preknted to this court are met,
considered, rejected in detail, pointb. .point in this essential reasoning in the
Judgment of 1966.
~he Judgment needs no boosting: its quality, its authority speak for them-
selves, but the important question is this: do these uarticipants who have put
these lines of argument to~the Court contend that this court should overiule
the 1966Judgment? And if they do not, why do they come withcontentions that
are so directly conflicting with the conclusions arrived at in that Judgment,
this emohatic reasonineand these findines to which 1have referred? And.on the
other hand, if it is their contention that the Court should depart frbm the
Judgment, which is a clear statement of the basic jurisprudential principles
which have alwavs been a~olied bv this Court and its oredecessor-if thev do
want the Court io depart'6om th& and overrule the i966 Judgment, wh; do
they not say so? Do we have to accept that we have the position of an aggressor
who uretends not to make an attack but sends in his men anvwav under cover
ofnight to try to poison the water supplies? I do not know, 1skouid like to have
clarity about it, and 1 submit, with the greatest respect, that it is important
for this Court to have claritv about the auestion whether it is beine asked to
overrule 11s 1966 ~udgrnen; and the j;ri~prudcntial principleb <nunsiaicd
therein; because that docsappeür tu bea veryimportani cross-road a1whichone
must come on the basis of the contentions beine oresented in this Court
My subrnission isihüt the arguments on behalj<;f the Neiherlands. which are.
in truih, teleological ugumcnis, uhethcr iheir author iülls ihem thai or noi,and
similar oncs u,hich I have rcfcrred 10,have IO in!rcjccted. Their sole purpose is
really to underccore the fact thai therc is an absence of3 irue legdland judicial
bais for ascribing validity and binding erTectto rcsoluiion 2145.
These considerations also disoose ofiueeestions which wefind in some of the
statements, for instance the wriiten statemint of Finland, which 1want to read
to the Court:
". ..the pssibility to dismiss a mandatory and revoke a mandate is a
necessary part of the supervision, since otbenvise the necessary sanctions
would be lacking. In case there is no such possihility, the provisions in the
Covenant of the League of Nations and in the Mandate Agreement itself,
dealing with theprotection of theinterests and development of theTerritory
and its population, lose their significance." (Written statement, 1,p. 373.)
It isexactly the kind of necessity argument considered and rejected in the 1966
Judgment.
India, in its written statement:
"To argue that, while the Council could take a binding decision with
regard to the revocation of the Mandate, the General Assembly is em-
powered only to make a recommendation, not binding to the same extent as a decision of the Council of the League, mns counter ta what the Court
itself has stated in its Advisory Opinions. Besides,this argument leads one
to the conclusion that theri is no international oreanization which ip
competent ever ta take a binding decision revoking the~andate. This &S
against the basic philosophy of the Mandate. . ."(Ibid., 1,pp. 838-839.)
That of course, MI. President, with submission, is question begging. The
auestion is exactlv: what was the basic ohilosonhv o. .he Mandate in this ~~~~-
respect? In Our submission, that philosophy is stated as clearly as it possibly
could bein the 1966Judgment, and it is certainly not that of enforcing solutions
or ooints of view in the event of differences of ouinion.
At this stage 1wish ta refer again to the situation in regard ta publicists of
repute who have commented on this very question with which 1am dealingnow,
the validitv and hindine effect of resolution 2145. We refer to them in .arae-a~~~
10of chabter X of ou; uritrcn statenient. It u,ilk observed. hlr. I>resident.
that somc of them are of very high repute. Roussciiu, Madame Rüstid. There
isî referrncc to Rosalind Higgins, to 1u.oInd~ünjurists, Rîhmiitullah Khan and
Sdtpltl Kaur and to Professor Dugard. u,ho is8 South At'ricûn. but Imus! say
politiiîlly no friend of the present Governmcnt, ïs is indicalcd in his \,ariaus
writines.~~ a matter of fact. the re~resentative of Pakistan referred (sitora.
p. 141) ta the article by Professor ~ugard on the point where he 'stated
something which was favourable ta the Pakistan argument, i.e., where he made
the ooint that in his view the General Assemblv did not act imorooerlv in
dete;mining that South Africa had failcd in ils obliiiitions.butthe diti;gui;hed
rcpresent3tive fiiiled to refcr to the further portion of uhai I'rofessor Duaîrd
wÏote. to the effect that it was trite law that the General Assemblv could-not
take a binding decision, and that in that respect ils action was-not legally
effective.
So it is significantMI. President, that nobody could dispute what has been
said about the publicists or could, in their presentations to this Court, written
or oral, refer to any publicist which took the opposite point of view, except
Castafieda. 1dealt yesterday with the presentation of this very learned author
ta the United Nations in 1961,I think it was to the Fourth Cornmittee; and we
have referred to his work, in which occurs a passagerelied upon in the written
statement of Finland, paragraph 5, and again in the oral statement. At page 85,
supra, the distinguished representative of Finland stated:
"Members, including those which voted against or abstained on the
resolution, ought toaccept thisauthoritativedetemination by the principal
organ of the universal organization and act and adjust their conduct ta
accord with it."
He then went on ta refer ta Castafieda, Legol Effecfs of Unired Nations
Resoli~tions,page 128.1would like ta readthe relevant passageta the Court:
"The determination by the General Assembly that South Africa has not
complied with the obligations of the Mandate estahlishes the condition or
hypothesis of a legal rule, which has the character of a 'general principle of
law recognized by civilized nations': if one of the parties ta a bilateral
treaty does not comply with its obligations, the Party that does observe its
own obligations ceasesto be bound by them and may consider the treaty
terminated. Bv virtue o~ ~ ~s r~ ~. the General Assemblv could. on the
basis of its determination, revoke the Mandate; moreover, as the present
representarive or agent of the organized international community that ORAL STATEMENT BY MR. DE VILLIERS 441
granted the Mandate, it could re-assume the titles, rights, and powers
enjoyed over the Territory when the Mandate was conferred, and could
thus proceed to achieve the objective of the Covenant as well as of the
Charter-the self-government or independence of the people of the
Territory."
There are various asoects of this statement which reauire consideration.
Ruicülly, itcomcr io th& thüt the learned auihor Statesthéihesis of the possi-
bility fur the Gcnerdl Assembly to determine certain hjpotheses or conditions
precëdent to the application of a legal rule or principle in a particular instance.
In other words, if the law says, as the Charter does, that in the case of a
procedural matter the Assembly may make a binding decision, then the Assem-
blv itself must decide whether the ~articular matter comina before it then is
p~ocedural or not. It does so eitheiexplicitly or by implication. When it is a
question of whether it is a budgetary matter, and so forth, the same kind of
auestion mav arise. But what is missed in this oarticular .assac-. MI. President.
is this: what circumsranccs could the determination ofthis condition precedeni
be reaarded as legally binding. particulsrly legally binding upon non-consenring
~embe~-? It mav well be that for the ou. .ses of its intemal or~an-zatinn. and
in nrder to go ahead from one stage to another procedurally, these determina-
tions have to be acted won; and if it isdecided that this is a budgetary matter,
or a financial matter. ihen the actual oroceedincs in the General Assemblv
would proceed accordingly. It does no; follow that if there is a real dispuce
about obligations following from, or said to follnwfrom,suchadetermination,
it would be binding upon the disputing parties. If that were so, if the General
Assembly could decide, so as In exclude any other consideration of the matter,
that a particular matter is budgetary and therefore it can make a binding
decision upon that, then one does not know why the Expenses advisory pro-
ceedings were not simply decided upon that basis, and no other basis at al].
It is in each case, in our submission, a matter of determining what is the
power, even if, for practical and procedural purposes, some determination has
to be made in order to proceed. The question still is, in what circumstances
would that determination, whether it relates to a condition or a hypothesis or
something precedential or not, be binding or not. And that, with respect, is a
point which is not met by the leamed author in regard to resolution 2145. And
that is really the crux of our comment upon this thesis by Professor Castaiieda.
In his nwn comment on the case of the General Assemblv resolutions
concerning P<ilcsiinehofessor ~astaiiedi mentionssomenfthexc~nsiderations
which I havc jus1 mentioned. and u,hich, in their application io resolution 2145
mus! necessarily lead to the conclusionthat it cannot be valid or binding. He
said in regard to the resolution on the partition Plan:
"... resolutions of this type ... may not legally create additional obliga-
tions or abolish e~is~in- -~chts.
Kesolution IR1cxceedcd these liniiiarions. Thc rî,olution could no1 be
jusiified by sîying, as w~rmainrained, that itfillcdapolitico-lcgalvacu.in1."
(Jorge Castaiieds, Le~olEflecrsulUnired .\'orin~rs R<~rolitriu» s,. 132-133.)
Whether he is righi or wrong in his application to Palestinedocs noi concern
me. What is im~oriant is thai if one ii~nlied these cunsidcrations thal ilmdy
not legally create additional obligations or abolish existing rights, that is
exactly what the General Assembly purported to do, even if it is said to be a
determination of a condition or a hyoothesis for a further resolution which it
purported to take. In essence, this inie of argument does not meet the legal
prnblem conceming the provisions of the Charter at all. Another interesting and significant feature of the statements before the Court
has been the inability of their authors to find any satisfactory legal basis for the
assumption of direct administrative powers in respect of South West Africa by
the General Assembly.
The arguments in this respect have again been either question-begging or of
the teleological, so-called "necessity" type, or a combination of these. 1 wish to
quote certain examples.
The Secretary-General really evades the point. He merely says:
". .. the United Nations did not decide upon any unilateral action in
Namibia until South Africa's former right to be present in the Territory
had been legally forfeited, and the Mandate had beeii terminated" (supro,
p. 52).
1 do not think there was anv other submissi~n f~ ~ him which bore uno~ ~ ~ ~ ~ ~....
question of what power the General Assembly could have had to assumedirect
vowers of administration in regard to South West Africa.
1 refer to this hecause it is important not only in itself, but also because it
bears in a very important sense upon the question whether it was possible to
revoke the Mandate unilaterally, as 1will demonstrate in a moment.
The representative of Finland also really evaded this matter:
"Once it was established that South Africa no longer had the right ta
administer the Territorv. it was necessarv for some other entitv to under-
take this important task'untii such timeas the Territory be ready to diit
for itself. It could not be left without the necessary assistance at this critical
iuncture. What entititv could be more caoable of re~lacine the Territorv's
iormer master than tiie United ~ation; which, in accoFdance with ;hi
Charter, also has specific functions and obligations in respect of non-self-
governing territories, and which has for long exercised supervisory and
control functions in respect of theTerritory in question?" (Supra, p. 87.)
There is no indication, Mr. President, how any of these observations could
bear upon the taking of a decision which is not only not consented to but
ohjected to by the authority in control of South West Africa.
The United States said:
"Thedecision hythe Assenibly ihai the Cilitcd Nations should adniinister
Nïmibia is consistent irith ihc hdsic struclure of the hlandtites Systcm and
the International Trusteeshio Svs. . and the oractice of the United -
Nations. The Mandates System presupposes an administering authority."
(Written statements, 1,pp. 872-873.)
Now with oractice 1will deal subseauentlv. As far as the other considerations
are cunccrned, they do noi grapplc'~i.ith~thc problcm u,hat consiitutional
poucr urasthere to take 3 hinding decision In this sphere.
Mr. President. thït brinas nie io the voint Jforeshadou.ed. namelv thdt ihe
absence of a leial basis for providing for a successor to ~o;th ~frica as ad-
ministering authority in South West Africa is really a very strong further
indication that there can be no oower of unilaterallv revokinaa mandate.
Let us look ai the matter briifly on the basis of the manda& systcm and thcn
of the trusteeship sysiem. Undcr the mandates system, as 1 poinied out, the
idea that the Leaaue itself could be a mandatorv was drooved before it came to
- ..
the linal stages of agreeing on the Co\,enant. Nor ivsr the Lcaguc given a pouer
to appoint mandïtorics. The apoointmeni uas. ilwill be recallcd, madc by the ORAL STATEMENT BK MR. DE VILLIERS 443
Principal Allied and Associated Powers, and there is nothing in the Covenant
which sneaks about the aooointment of a mandatorv bv the Leaaue.
und& thecharter again-the Charter is silent on ihe-mandates system-there
is no reference whatsoever to a oower on the oart of the General Assembly to
appoint a mandatory or to bë a mandator; itself. Under the trusteeship
system there is a possibility that the General Assembly could be an administer-
ing authority under a trust agreement, if one reads Article 81 together with
A--icle 85 of the Charter. but then that is onlv if a trusteeshio agreement
specifically so provides. And there is no provision anywhere in'thècharter
for the General Assembly or for any organ ofthe United Nations to appoint an
~ ~ ~iste~~e authoritv: The Court will remember we dealt with that ooint
yesterday. TKeemphasis is so strongly on the initiative coming from the bther
side. The initiative cornes frorn the side of the parties directly affected, being in
most cases the mandatorv alone. or ~rosoectivelv the administerina authoritv.
-~~~- - ~ ... - . .
which makes a proposal on a voluntary basis for placing a territory under a
trusteeship agreement,which agreement tben has to be approved ofor confirmed
by the suggeited supervisory organ, be it either the General Assernbly or the
Security Council.
So this idea of the General Assembly itself being an administering authority
without any agreement providing for it is something foreign to the whole
structure of both of the systerns, the mandates system and the trusteeship
system under the Charter. And that being so, it emphasises what we have been
maintaining-that there was no contemplation, no intention that there could
be a unilateral revocation of either a mandate or a trusteeship agreement by a
supervisory authority.
This brings me to a further contention of the Secretary-General, one to
which 1 referred in my opening statement on khalf of the South African
Government :
".. .the General Assembly is the competent organ of the United Nations
to act in the name of the latter in a wide range of matters, and in these
instances it isthe United Nations itself which is acting. This isespecially so
concerning econornic, social and trusteeship matters, non-self-governing
territories, administration and finance, and action required under the
United Nations Charter not coming within the special cornpetence of the
Security Council." (Si~pra,pp. 51-52.)
1 indicated then what the enormous implications of this slatement could be if
accepted in this form and without qualification, and if applied in the sphere in
which the Secretary-General apparently suggested if was to be applied, namely
in the sphere of even enforcing the will of an organ upon a non-consenting
State.
Now, apart from suggested precedent which 1 will deal with in due course,
one finds that the Secretary-General offers no legal argument whatsoever in
support of thisstatement. It is sirnplyput to the Court as a proposition, nothing
is offered in support of it. No reference to provisions of the Charter which
lead to this conclusion-again, as 1 say, and 1 emphasize, in the context of
takina a bindina decision aaainst the will ofa non-consentinc!State. But nothing
whiitpveris ot~ciedin suppirt . the stiitemeni is sirnplyniadAs ifilu,eregospel
And the que*tion is îgliin: is il a ieleologic~l argument or IS il jus1 a non-
sequiiur? I do no1know. The Secrctary-General may nidkc his elcction betueen
ihoçe iiio It 15, in essence, reîlly lisuggestion IO the Court-this suggesied
kasi>in T~vo~io rfa binding qualit? for rcsolurion 2145-10 act on<ilegislitive
basis itself. Now. we come to another arnument renardina this ooint. which is reallv in
cssencc'an extra-judicial one bu;which iniome \ïays tncs tn scck support fiuni
the 1966Jud.wcnt of the Court. Itis this kind ofs~~gestion, that the Judgnient
of the Court in 1966 made it necessary that there should be political action to
solve the impasse. One finds, forinstance, that the Secretary-General States:
"... inasmuch as the latest Judgment of the Court had indicated that the
non-performance of these obligations would now be a matter for ~olitical
rathér than iu.ici~ ~ ~ocess.- the resnonsibilitv for remedial- action
thereupon devolved uion thé General 'Assembl;, and suhsequently the
Security Council." (Written statements, 1, para.76, p.95.)
The distinguished representative of Pakistan, in his oral statement (supra,
pp. 138-139), was to much the same eîïect. As the Court will recall, 1 read a
statement by the representative of lsrael in the General Assembly yesterday
which seemed to indicate much the same thing.
Mr. President, on analvsis, what vortion of the Judgment of 1966 could these
statements have in mind? ~robabiy the basic finding and reasoning that in
respect of the conduct clauses in the mandates, individual States had no direct
rights or legal interests vis-à-vis the mandatory powers, and that the obligations
owed in respect of those conduct clauses would have to find such measure of
supervision or of sanction or of enforcement as might exist in the political
supewisory organs of the League. 1say sanction or enforcement, of course, in a
qualified sense, because theJudgment made it perfectly clear that therecould be
no such thing as the forcing of its will by the supewisory organ upon the
mandatory. That was the realm in which these obligations were to find their
counterpart, if the counterpart be seen as rights.
Now, if that proposition were to be accepted by those who rely upon the
1966 Judment in this resoect. and if it were acceoted in its entiretv. then. of
course, the full inlplicatiork are tbe acceptcd: this ts ccrtainly a mattcr uhich
calls for propcr consideration in the political organs, but those political organs
must observe the legal limits which are imoosed uDontheir Power, and they are
not intended to enforce their will on the mindator;, they areintended to ex&cise
a persuasive kind of authority over it. That is in effect what the Court said and
itprovides no basis whatsoever for this kind of armment
Nigeria (Wntten statements, 1, p. 891) argues inTavour ofrevocabilityon the
lines of "an idea of delegation of powers by the United Nations to an admin-
istering authority". Again, 1think we have said enough, my learned colleagues
and 1,to show, and the Court has stated it so plainly in 1966, that the boot was
really on the other foot. It is not a matter of a delegation of powers from an
international authoritv to a State. it is ratheromething cominafrom the other
side, hoth in the mandates syste'mand in the trusteeihip sysïem. Under the
trusteeship system, it was the voluntary basis from the side of the administering
authority, bringing the territory into the trusteeship system. In the case of
mandates, tao, it was a question of a voluntary undertaking by the mandatory
powers of the obligations imposed by the mandates system; the position was
accepted that themandatories were primarily responsible for the administration
of the territory, for the promotion of the sacred trust, but they voluntarily
undertook, on a consent basis, obligations lowards the supervisory authorities.
So, that basis for arriving at a consequence of unilateral revocability cannot
oossiblvsucceed.
' ~hisbrings me tothereliancewhich isking placed bysome of theparticipants,
panicularly the Secrerary-General and the United States in its written state-
ment, upon precedents, both in regard to the question of a power of unilateral ORAL STATEMENT BY MR. DE VILLIERS 445
revocation and in regard to the question of direct administrative oowers.
Mï) I say, righi di the start.itis not pcrfectly clcar un what legal bks these
preccdentsare s:iid tikorlercd; ïfrer 311,\\carc no1dealing uith iuiambiguous
or an obscure text which has to be interpreted so that practice could tip the
scales one way or the other in preferring one construction above the other.
Nevertheless, whatever the legal basis may be-some suggested legal bases are
indicated in the various statements and 1will refer to them-our contention is
thït if one looks at what astually happened in thcse various cascs, thcy pro\,ide
ïuthority or s~pport for the contrüry points of vie\!,,for the point ofvieiv thdi
indeed there is an absence of a unilateral oower of revocation and of a oower to
tskc direct adrnini,trati\,c rcspon,ibiliiy.
Werefer,firsi.iothewrittén siatemînt ofthc United States (1.p. 860,T .hcrcit is
contended that the United Nations succeeded to the suoervisorv authoritv of
the League rcgsrdinç South We,t Africa, including the pouscrtotcrminatéthc
Mündaie for thc Territory. At the follouing page, ihc illeg~tion is niade that
"the early practice of the United Nationssupports theconclusion that it has the
competence to terminate mandates estahlished hy the League of Nations".
This is then followed by references to the role of United Nations organs in
reaard to the termination of the Mandates for Palestine and theformerJaoanese
m;ndïted islands (whish iould convenicnil) he referrcd ta1 L, ~icr~lnes13j.
Imrncdiaicly hefore ihis second referenie-the refcrciice to Micronesia-therr
aooears this sentence: "A second orecedent suooorts the authoritv of the
appropriate orgdn oi the Ilnitcd ali ion r, rermiriïtc ii,irhout the consent <if
the mandatory potier a mandite granted by the Lcsguc of Nation,."
So. hlr. Prestdcnt. thosc itord, "a second nresedent" and the nords "o,ithi>ut
the consent of the mandatory power" ind'icate rather clearly what is being
contended for here. What is king contended for is that the practice of the
United Nations in reaard to the termination of both these mandates suooorts
the conclusion that the United Nations has the competence to terminate
mandates unilaterally. And this is the exact context in which reliance is placed
in the Statement uoon these orecedents,
I nish to deül firit witli thc'cïsc of P.ilesrine,and ihcrefcire1ivint tu referalso
to \\han thc Sccrsiary-Gcncral snysabout itat paçe 52, rupr~~. e müdcrefercncc
to the terniinaiion i)fthis hlïndate in ordcr to sho\i.that the adoption ofresolu-
lion 2145 wü\ not thc tirrt insiance uhcre the Generdl Assembly had taken
'iciion to decl3rc the terminîtion of the Mandate. He niadc the allcgütiun that
there was unanimitv amona the members of the General Assemblv: that it was
\r.iihin the ~ssembi~'s pou-ers not only IOdccide that the ~3nd;te should bc
terniiiiatcd, but ï1soIO rect>mmend ü sulution \\hich \\,a not acceptable tn the
mandatory power. He then pointed out that South Africa was amongthe Mem-
bers of the United Nations which voted on 24 November 1947for the plan of
partition of Palestine with economic union.
Mr. President, weshall demonstrate that therecord makes clear the opposite:
that the action taken by the United Nations in regard to Palestine and Micro-
nesia was not considered by anybody concerne* to be hased on a power of
unilateral revocation of a mandate. Dealingfirst with Palestine, there the Court
will recall that my learned friend, Mr. Grosskopf, dealt in some detail witb the
background to the subrnission of the Palestine question-the question of the
prospective termination of the Mandate-to the General Assembly of the
United Nations hv the mandatorv oower. The reference is to oaees 369-373.
supra. And what appeared from Lisispresentation,and what 1wanf to stressin
particular in further reference to the events, are twoaspects: firstlythevoluntary
nature of the submission of the matter to the General Assembly by the United446 NAMIBIA (SOUTH WST AFRICA)
Kinedom.That was stressed bv the United Kinedom itself on several occasions
andsi accepted by al1 conceined. The background made it clear why it was
that the United Kingdom was prompted to take this action eventually.
And. secondlv. that suhmission in itself made it clear that the matter was
bcing refcrred th'the ticnerd Aswnibly for purposcs ai disi~\~iun and rczoni-
mcndarii)n only. tlie hliindator) Puu'crmaking itclear thxt ilrcscrvcJ to it\cli
the rieht to acceot or not to acceot oarticulaÏ recommendations. That aeain
was Latter whkh was abundanfiy clear, sa understood and so acted upon.
My learned friend, MI. Grosskopf, referred to the appointment of a Special
Committee and to the report which it presented. He referred to aspects of the
report which were important for the purposes of his argument, indicating the
contemplation that there was no succession in regard to supemisory organs as
far as the Mandate was wncerned. 1want to refer to the same documents. or
the same discussions, with a view to the context which 1 have just indicaied.
This Special Committee reported to the General Assembly and its report was
referred subseauentlv to an Ad Hoc Committee on the Palestinian auestion.
In this Ad HO; cornmittee the representative of the United ~ingdoh stated
that his aovernmentendorsed the view thatthe Mandate should be terminated.
One of the rusons given hy him !vas thït the situation in Palestine ncccssitated
juch tcrniin3tion. Ar the ilme tinic he made it clear thüt hir governnicnr ivnr
not willing to give effect ta any plan on which agreement was not reached by
the Arabs and the Jews. He stated that if the General Assembly were to recom-
mend a policy which was not sa acceptable, the United Kingdom Government
would not feel able to imolement it. This was, as 1 have said, already at the
stage where there had been a report from the committee.
On the aspect of making it clear that the submission was voluntary there are
certain passages from the debates which were quoted by my learned friend,
Mr. Gr~s~koof..i. the oo.tion of the record to which 1 have~re~erred. earlier in
sequcnceand to which 1\ii>htu rcfer the Coiirt, but 1do not think I necd rcad
them out ncain. tle rc;id ihern tu the Cnurt the day bcforc scstcrday.
During the debates in the Ad Hoc Committee it-was repeatedly emphasized
that the General Assembly could merely recommend a solution. No suggestion
was made that it could take a decision which was bindina on the mandatow.
As the represcniati\,e of the Cniied Kingdoni iircportcd taha\.e \tdted(GA, OR,
Second Sess., Suninisr!. Records of hlcctinçs of the Ad Iloc Conimittec on the
Palestinian question, p. 3):
"ln thc judgrncnt of the United Kingdoni, a niandïiory potier mi~ht
vi)luntarily rclinquish thc adniinistration of the mandate; gcneriil opin~on
in the committce had cndorsed th31i.ic\v."
The representativc oi the United Statcr vaid iiithis sanie dcbatc in the A</
Hoc Cornmittee 11131the iirgenry of the problcrn \\a\ that the Gener.11A\$eiiihly
had to recommend a solution durine. Ss -urrent session (D.63). Then certain
stdtenient\ were made by Mr. I'ruszynski, the disringui~hcd repre\entiitivc of
Poland, regarding the General As\crnbly's compctencc tu chaniine the Palestin-
ian question.
"The United Kinadom. when it had aooroached the Assembly, had
considered that that body could make reco&endations on the future go-
vemment of Palestine under Article 10of the Charter according to which
the Assemblv could discuss anv auestion within the scoDeof the Charter
and make re~ommendations to-~embers of the United ~ations or to the
Security Council." ORAL STATEMENT BY MR. DE VILLIERS 447
And then, later, at page 161-both of these quotations are at page 161-he
stated:
"To suni up. the problem of the future of Pile\tine uas a question uhich
came withn the scope of the Charter; consequenily the Gcneriil Assenibly,
iinder Articlei 10 and 14 of the Charter. could discusi thai auestion and
make such recommendations as it deemed suitable."
Now. the renresentative of the United States aeain made a relevant statement
uiih referenceto an carlier stateiiient hy ihe ~nyted Kingdom's represenidii\,c
that Briiain uould u.ithdrau il? forcer froin Pdle5iineat an rxly dite and also
uith reference to objection? ihat ihe General Aassmbly vas not legally coni-
petent e!'cv~io discuis the Pîlestininn question. On these matiers the represen-
rative of the United States said (ihd, p. 169):
"The inandatory power hnd rcquesled the United Naiions to make re-
conimendations for the future governmeni of Palc\tine and had unilaieral-
ly declared that it was relinqUishing its responsibility. Hence any legal
objections to the action of the General Assembly must be formal in char-
acter."
So it is, ironically, the representative of the United States at that stage which
made it so perfectly clear that the contention now being advanced on behalf
of the United States in this respect cannot be correct.
There is a reference, too, Mr. President, to what you said in this respect in
your other capacity. That was also according ta the summary record of the
debates in the Ad Hoc Committee. The record indicates that Sir Zafrullah
Khan. as a re~resentative of Pakistan. stated that the General Assembly was
not empowered to impose a solution, and that since the United ~ingdom had
expressed ifs desire to relinquish the mandate and had suhmitted the question
to the General Assembly, this organ could merely make a recommendatinn to
the United Kingdom (ibid., p. 189).
As Mr. Grosskopf has already indicated, the Ad Hoc Committee at its 19th
meeting decided to set UD two subsommittees. the tasks of which would be to
draw ui deiiiilcd phns ior ihe future g~\~ern;ent of Yaleriine in accordance
with certain princ!ples. He has alreîdy referred to the composiiion of subcom-
mittee 2 and to extkcts from ils reoort. 1do not want to read those again excevt
to emphasize the aspect that "neither theGeneral Assemblynorany other or&
of the United Nations is competent to entertain, still less to recommend or
enforce, any solution with regard to a mandated territory".
Then the paragraph in the report that stated that "this view is further con-
firmed by resolution 9, paragraph 1, adopted by the General Assembly on 9
Februarr 1946, and bv the fact the General Assemblv is not able to take any
action or give any directions wiih regard 10 the Mandite for South West ~fricï
unless and uniil the Go\.erniiienr of the Cnion of South Africi iubmits a [rus-
teeship agreement for that territory".
An important portion of the report for my purposes is the portion which
states (ibid., p.277):
"The Palestine question was brought on the agenda of the General
Assembly as a result of a reference from the Mandatory Power asking the
Assembly to make recommendations, under Article 10 of the Charter,
concemine the future eovernment- - ~ ~ ~~~ -~ ~ ~ ~~~ . ~Mandated territories
are withinthe scope ofthe Charter, but as explained above, the United
Nations can assume jurisdiction with regard to them only when the pro-448 NAMIBIA (SOUTH WEST AFKICA)
visions of Chader Xi'i of the Charter are a~olicable and the formalities
laid down theÏein have been observed. ~h&e limitations apply to the
powers of the Security Council as wellas those of the General Assembly."
So it was quite clear that the whole basis of the discussion was that the
General Assembly was not empowered to make any binding decision but that
it was being voluntarily requested to make recommendations.
In viewof a further contention in the United States written statement Iwould
like to refer to the recommendations actually made by the General Assembly
in its resolution 181 (m .he first operative paragraph of this resolution read
as follows:
"Recommends to the United Kinndom, as the mandatory Dower for
Piilcstinc, and Io al1 other ineniberb ;f the Cnited Naiionj Ïheaduptton
and iniplcnieniaiion, with regard IO ihc future governmcnt of Piilesiinc, of
a plan of partition with economic union set out below."
In other words, the operative paragraph 1is a recommendationthat a certain
oartition olan with economic union be adonted and imolemented. The reso-
iution furiher requested the Security couniil to take the necessary measures
as provided for in the plan for its implementation and also to determine as a
threat to the peace, a breach of the peace or an act of aggression, any attempt
to alter by force the settlement envisaged by the resolution.
When one tums to the plan of partition with economic union, one fmds
oaranra~h A (1) in it reads as follows: ". .. the mandate for Palestine shall
terminate as soin as possible but in any case not later fhan I August 1948".
It is to this that the United States written statement refers (written statement,
1, p. 861) where it is said:
". ..the General Assembly ... adopted resolution 181 (II w hich included
the language: 'TheMandate for Palestine shall terminate as soon as pos-
sible but in any case,not.later than 1August 1948'."
The impression created by this, of course, MI. President, is an erroneous one.
The imoression created is that bv the use of this laneuaee the General Assemblv
had puiported to make a binding decision regardingthe termination. rom
what 1havejust said it will beclear that that is not so. This was the ~lan which
was beine recommended for consi~~ ~ ~-~. adon.i~ ~7~d~i~ ~ementation in
opcrative paragraph I of the reiolut,on.
And thcn theother inicrcstinc feiiiurcof ilis that in ihee\,ent, in ~rii~iicc,the
recommendationscontained inthe dan of nartition wit~~ ~onomic union were
~,
eithcr no1acccpted at 311or mit fully iic~.eptedhy the niandators and by 3nuni-
ber of oihçr Siaies. Imniediately aftcr the rejoluiion iiar adoptcd, thc rcprc-
scntati\~eof Saudi Ardhia stavd that hi.; <;ovcrnmcnt d~dno%consider itxlf
bound by the resolution (GA, OR, Second Sess., Plenary Meetings, Vol. II,
p. 1425).Therepresentative of Pakistan saidhiscountry desired to wash itshands
of al1 resoonsibilitv for the decision that had been taken (ibid o..1426). and
the repre&ntativeiof rraq, Syria and Yemen stated that their cb;ntries would
not consider themselves bound hy the decision of the General Assembly and
that they would reserve their freëdom of action towards its implementation
(ibid p. 1427).
The British reaction was significant too. On 11December 1947the Colonial
Secretarv announced in the House of Commons that the Mandate would end
on IS May 1948.that the cvacu<it~onof British forces iiould k compleied b!
1Aueust and thai ihe Cniied Nations Conimission prm'idcd for in the General ORAL STATEMENT BY MR. DE VILLIERS 449
Assembly's resolution would not be admitted to Palestine until 14days before
the termination of the Mandate (Marlowe, J., TheSear of Pilare, p. 242).
These announcements of intent of the British Government were not in con-
formitv with the details of the vlan of ~artition with economic union which had
provided that the administratron of Palestine should, as the mandatory power
withdrew its armed forces. be ~rogressively turned over to a United Nations
Commission and that the manda6oiy power should not take any action to
prevent, obstruct or delay the implementation by the Commission of the mea-
sures recommended by the General Assembly.
The British Government duly explained ils attitude through ils represen-
tative in the Security Council at the beginning of 1948 when the matter was
discussed there. He said:
"It is essentially because of the difficulties of security and the danaers of
divided responsi6ility in Palestine in present conditionsthat m an da tory
Power, faced with specific threats by the Arabs, could not agree Io open a
port ta Jewish immigration, ta the progressive transfer of areas to the
Commission's administration, or to the formation of a militia under the
control of the Provisional Government of the future Jewish State. Nor
could my Government safely extend the period of overlap during which
the United Nations Commission would be present in Palestine while the
responsibility for security and administrationstill rested with the Manda-
tory Power." (SC, OR, Third Sess., 253rd Meeting, p. 270.)
With reference to the implementation of the plan the same representative
stated as follows:
"Particioation bv the United Kinedom Government with others in the
task of implementation would dep&d on its conception of the inherent
justice of the plan adopted for Palestine by the General Assembly, and the
deeree of force reauired to =iveeffect to it.
As ta enforceme&, the ~iited Kingdom delegation made it clear, long
before the General Assembly's decision was taken or could even be ac-
curatelv foreseen. thatmv Government was not oreoa.ed.to acceot anv
responiibiliis under the.~eneral Asxmbly's reconin,endati<ins 'which
irould involve ihe use of United Kingdom troops as the nieîns of çnforcing
a de~.isionIikely Io be resisied by Jcws orhy Arribs."(Ihid.. p.271.)
In regard to the recommendation that it should withdraw from Palestine,
the United Kingdom representative said:
"We had hoped by Our withdrawal and relinquishment of authority
that the naked realities of the situation woulde better appreciated by al1
concerned, particularly the two communities in Palestine, and that some
new attempt at conciliation might be made." (Ibid ..272.)
Now my learned friend, Mr. Viall, has dealt, in passages of his argument in
his oral statement with respect to the powers of the Security Council, with the
statement and the attitude taken by the representative of the United States in
these debates about the suggestion in the recommendation in the General
Assemblv's resolution that the Securitv Council was to take enforcement action.
distingukhing in that regard between-enforcement action for the purposes of
dealing with a breach of the Deaceor an act of aggression or a similar occur-
rence,on the one hand, and on the other hand, w&husing force with a view Io
implementing or enforcing the partition. In this latter respect he considered
that there was no such power on the part of the Security Council. So 1 do not want to deal with that again and 1 merely want to refer to the
fact that representatives of other States in this debate also drew attention to the
recommendatory nature of the General Assembly's resolution. The represen-
tative of the Lebanon said: "The General Assemhly's resolution of 28 Novem-
ber is a mere recommendaiion" (SC. OR. ..ird Sess.. 267th Meetine. o. 801. -. . .
The Cansdisn rcprcscniaiive said thdt iiwÿrclear ihat the co-opcrlirion of the
United Kingdoni in ihcexecution of the partition plu of the Cicneral Asscmbly
coiild not hc cxpesicd "io go beyond ac~rpting thc rcconinienddt~on that the
niandaie ii\elf be laid J0u.n" (ihitl.,274th Mceiing, p. 234).
At ~3~~861ol'ihe siatemeni of ihc UniieJ Siatcs iu,ritrcn siatcmcnts. IJ ref-
erence iS made to a statement bv the renresentative of the United ~inadom
~ ~ -. ~ ~- ~ ~ ~
in the ~ecuriti Council on 24 ~ebruar~ 1648 to the effect that his Gover&ent
was brinaina to an end the discharge of its resuonsibilities under the mandate
and wasieaiine the future of that countrv ~~ ~ -d- ~ ~o~a~ ~ut~ ~ ~ ~ ~ ~ ~ fur-
thermore itated in this written statement of the United States that a few days
later the same representative "recognized that it was for the United Nations to
decide what procedure to adopt 'with a view ta assumiog responsibility for the
government of Palestine on 15May' " (1, pp 861-862).
MI. President that could also, in our submission, create a sornewhat wrong
impression. The words used by the representativé of the United Kingdom
Govemment were these, on this second occasion:
"1must point out that, whatever the procedure the United Nations may
decide to adopt with a view to assuming responsibility for the government
of Palestine on 15May, that country is likely to become disorganized,
disintegrated and even more violently disrupted by that date." (SC, OR,
Third Sess, 260th Meeting, p. 402.)
In other words, there was no recognition that it wasfor the United Nations to
decide upon proceduresregarding aisumption of responsibilities. It wasaphrase
used in passing "whatever the procedure the United Nations may decide to
adopt" after the withdrawal (ibid.).
The statements were made by the representative of the United Kingdom
when his Govemment had already announced its decision to voluntarily re-
linquish the Mandate. They were made in the course of debates in the Security
Council regarding the question whether the Security Council should accede
to the request of the General Assembly to implement the plan in certain re-
spects. The representative of the United States had already made it clear that it,
was not emoowered to imolement the nolitical nart of the settlement and it
~~- r--~ ~ e ~ ~
therefore, seems clear, Mr. President, that in the context there is nothing rele-
vant in the statements of the representative of the United Kingdom to the
assumption of an). :iuthority aga& the will of a m~nùaiory.
One furiher fcïiure in this respect. u,hich isver) iniportant. 1sthat the notion
that the United Nations could after tcrminiitii)ii of thc niandatc assunie re-
Spon~ibiliiyl'orthe ïdiiiinisir;iiion of P;ilestine \\as noi ïc;epted by ihc Sccurii),
Council. The rcprcseniaiive of the Lniied States \sas vers eniphaitc abi>uiihis.
"The assumption of administrative or govemmental responsibility by
the United Nations is another matter. If the United Nations is to act as a
aovernment. a large administrative task is involved. The Organization
itself becomis dir&tly responsible for al1phases of the life of the people
over whom such powers are exercised. It is a formidable responsibility,
and a heavy financial commitment is incurred by al1fifty-seven Members
of the Organization. ORAL STATEMENT BY MR. DE VILLIERS 451
The United Nations does not automatically fall heir to the responsibili-
ties either of the League of Nations or of the Mandatory Power in respect
of the Palestine Mandate. The record seems to us entirely clear that the
United Nations did not take over the League of Nations Mandate system."
(Ibid.,71st Meeting, p. 164.)
Then there is a reference to the United Nations Charter, the voluntarv basis
of the trusteeship system and so forth, al1of which 1do not wish to read, but
the general attitude was very strong. It was also stated by Syria, thereafter, that
there was to he no assumvtion of direct administrative authority by the Securitv
Council and that such aitep was considered by it to be outside ihe powers of
the Council (ibid., 260th Meeting, p. 397).
Then. Mr. President,at vage862of the United States written statement (writ-
ten stat'ements, 1) relianci ;as placed on a statement by Judge Jessup in his
dissenting opinion in 1966.inthe written statement it is said:
"Judge Jessup pointed out that in submitting the future of Palestine
to the General Assembly, the United Kingdom 'recognized the authority
of the United Nations to bring about a change in the status of a mandate'."
Judge Jessup's statement actually read like this:
"It [that is the British Govemment] agreed to account to the United
Nationsfor its administration ofthe Mandateand, bv submittingthe future
of Palestine to the General Assembly, recognized the authoÏity of the
United Nations to bring about a change in the status of a mandate."
(I.C.J. Reports 1966, p. 351.)
It will be seen, Mr. President, that there was nothing relevant here to any
concept of doing something against the will, or without the consent of, a man-
datory authority.
The Court roseor 1p.m. SEVENTEENTH PUBLIC SITTING (5 11171, 10.05am.)
Presenr: [Seesitting of 8 Il 71.1
QUESïïONS BY JUDCE LACHS
The PRESIDENT: Judge Lachs has some questions he wishes to address to
the representative of South Africa.
Judge LACHS: In your written statement you discussed the travaux pré-
paratoires relative to the elaboration of the mandates system. They were also
referred to at length in the oral statement. 1wish to put to you the following
question:
You will recall that in their reply to the observations of the German
delegation on the conditions of peace the Allied and Associated Powers stated,
inter alia:
"ln requiring to renounce al1 her rights and claims to her overseas
possession, the Allied and Associated Powers placed before every other
consideration the interests of the native populationsadvocated by President
Wilson.. ."
Moreover, on the question of the German debt the reply of the Allied and
Associated Powers stated:
". ..that itwould be unjust to burden the natives with expenditure which
appeanto have been incurred in Gemany's own interest, and that it would
be no less unjust to make this respnnsibility upon the Mandatory Powers
which [and here is an important part of the statement] in so far as they
may be appointed trustees by the League of Nations, will denve no benefit
from such trusteeship." (Pp. 19and 20 of the Reply published by HMSO,
Misc. No. 4 (1919) Cornmand258.)
Furthermore Article 257 of the Versailles Treaty stated:
"ln the case of the former German territories, including colonies,
protectorates or dependencies, administered by a mandatory under
Article 22 of Part 1 (League of Nations) of the present treaty, neither the
territory nnr the Mandatory Power shall be charged with any portion of
the debt of the German empire or State."
These Articles stand in contrast to Articles 254and 256 of the treatv. Articl255
dealing u,ith some excepiion;. 'oiv the question 1sasfollous: in the Iight of the
conclusions you arrihed at on the trarar<.rpr&ororoire.~.how do you interprît
these statements and these provisions of the Versailles Treaty?
The second question is the following. 1wish to refer to the interpretation of
Article 80, paragraph 1, of the Charter presented at the sitting of the Court on
2 March. The question arises out of what prnbably is an inadequate under-
standing on iily part of the views presented. And here it is:
What would vou consider~to~c~~~~-~~~~- within the meanine of Article 80.
-
paragraph 1, an alteration in respect of a territory which has not been placed
under the trusteeshiu system of the rights of a State or ~eo~le,or the terms of an
existing internationalfnstrument to which a Member of the United Nations is a
party? ORAL STATEMENT BY MR. DE VILLIERS (cont.)
REPRESENTATIVE OF THE OOVERNMENT OF SOUTH AFRICA
Mr. de VILLIERS: At the adjournment yesterday 1 had concluded the
presentation to the Court of information and references concerning the termi-
nation of the Mandate for Palestin+in the context of discussing that history
with reference to the question whether the General Assembly, or for that
matter the United Nations, has powen to terminale a mandate unilaterally. It
remains only, Mr. President, for me to statevery briefly,and hywayof summary,
the relevant conclusions which flow from these data.
Fintly, it is clear that the United Kingdom voluntarily referred the problem
of Palestine to the United Nations in order that the General Assembly might
make recommendations reaarding the future of that country.
Secondly, the General ~ijembïy al no stage purportcd tnrnake more than a
recommendation. and it uas understood by al1concerned that resolution 181
(II) hd merely recùnimenJ3tory effect. At no stage u,as itnlleged that ihis
resolution in itsclf could elleztively terminale the Mandate.
Pursuant to the rccoiiiniendaiions of the General As5enibly. the United
Kinndom. althounh not accentinn al1 of the recommendations. voluntarily
decided to relinquysh the ~andatc-~hat decision uas interpreted and regarded
as a unilaieral termination of ihc Mandate hy the United Kingdorn.
And finall.. the .redominant view in the Securitv Council. when the rnatter
wcnt to it,was that it was not constitutionally eniitled tu implernent the re-
cornmcndationî of theGeneral Assembly by force, inso far as they related to the
ooliiical asoect of the arrancemeni. and that the United Naiions could not
assume powers of administration in Palestine in the absence of a trusteeship
agreement.
It istherefore clear. in our suhmission, that the practice of the United Nations
wiih regard tu the P;ilestine problem, lends no ;upport whatsocver to a son-
tention that the General Aisembly ha3 a power of unilateral tcrniination of 3
mandate. On the contrary, itshnus th31 Mcmbers of the United Xations fully
understood and eniphasized that the General Assembly could only make
recomrnendaiions and that they could noi take binding decisions as to the
future of Palestine
'rhat brings me to the sucalled termination of the Mandïte for blicronesia.
lt willbc nored rhat the United States in its written staternenris,in this respect,
relying upon ïctions in the Security Council and not in the General Assembly.
Rut sgain, in so far as the ei,ents there are relevant to the quesiion of United
Nations poiiçrs generally. ihe precedent. in Our suhniission. upon analysis,
ooerate\aeainst the Lnited Statescontention and not in 11sfïvour. At page 862
of its wctten statement, 1, the United States refers to the fact ~that the
Security Council unanimously approved a trusteeship agreement with the
United States for the former Japanese mandated islands.
It is then stated that the right of the United Nations to take this action was
based on its succession to the League. Reference is made to a speech of the
representative of the United States at the 116thmeeting of the Security Council
explaining that it was the view of the United States that Japan never did have
sovereignty over these islands and that the interest of the League of Nations in
the Mandate had devolved upon the United Nations as the successor to the
League.454 NAMIBIA (SOUTH WEST AFRICA)
-, dealine with the matter in this manner. Mr. President. the written.state-
ment creates the impression that it was the unanimous opinion of the members
of the Security Council not only that such an automatic succession had taken
place but alsothat on that basis the Security Council was entitled to teminate
the Mandate for Micronesia. By reference to the records 1 will endeavour
to demonstrate that that is definitely no1 so, and that the very contrary
appears.
When the discussion opened concerning the draft trusteeship agreement for
Micronesia the representative of the United States in the Security Council
stated:
"As a result of the war, Japan has ceased to exercise, or to be entitled to
exercise, any authority in these islands. These islands were entrusted to
Japan under mandate of the League of Nations after the First World War.
In utter disregard of the mandate, Japan, contrary tu the law of nations,
used the territories for aggressive warfare against the United States and
other members of the United Nations. Japan, by her criminal acts of
aeere~ ~ ~~ .orfeited the rieht and caoacitv to be the Mandatorv Power of
the islands. ~he terniinlition ofl3pan:s siaius as the Mandatory ilo\ier over
the islands has been frequently atiiriiied; in the Cairo Jecllirïtion of 1943.
suh<equently reaffirnicd in the I'i)isdam Jeclar;ilion and in the instrument
of surrender acccpied by the potiers responsible for Jspdn's defeai.
AI1auihoritv in these isl:indr is no\< excrcised hs the Cniied States."
(SC, OR, second Sess., 113th Meeting, p. 413.)
Now, it will be observed that reliance was placed by the representative of the
United States on a number of factors.
Firstly, on a loss of authority on the part of Japan, and even of a right to
exercise authority, as a result of the war. Secondly, on a forfeiture of the
Mandate by Japan by virtue of acts of aggression, apparently offered as vio-
lation~ of-~he ~~nd~te. Thirdlv. the re.f.innation of the forfeiture in the
instrument of surrender which was accepted by Japan, and fourthly the de facto
exercise of authority in the islands by the United States. There is no suggestion
that the islands came into the authoritv of the United Nations. it is that "al1
~ - - ~ ~ ~~-~~~~~~
authority [was]now exercised by the United States".
This was the basis offered by the representative of the United States why the
Securitv~,o-~~il n~ed n~ ~be concerned about the title of Jaoan in this matter.
uhere ii\vas coming along no\\ 10 otkr a dr;ift trusteeship agrceiiieni. irith the
United Sistes as adniini\tering aiiilioril). Riir the oiher reprcsentatiic~ nere
~om~~-at~ ~d t~ o~ea~eron these factors. Thev did not sharethis interoretation
<>f the situation on the part oi the rcpresenilitive of ihe Cniicd States.
The representïtive of ihe United Kinydoni said:
"It is true chat the Japanese Government is at present under the control
of the Allies. and oarticularlv of the United States. But althoueh this means
that the Uniied tat t carne; out the functions ofgovernment ;n the islands,
the fact remains that the mandatory power is dejure Japan and that this
situation cannot, strictly speaking,~be changed excePt by means of pro-
visions in the final peace treaty.
.................................
.. .there is no provision in the Charter whereby the Security Council is
empowered to deprive even an enemy State of its mandate or to detach
territories from enemy States." (Ibid., 116th Meeting. p. 464.) ORAL STATEMENT BY MR. DE VILLIERS 455
Then with reference to Article 79 of the Charter the representative of the
United Kingdom continued:
"Itis true that this Article states only that the agreement of a mandatory
Power is required in the case of territories held under mandate by a
Member of the United Nations. The Article. therefore. does not in itself
proi,ide, ciihcr uay. for the position oï territory heli under mand;itc hy
a St3tc whtch Irno1 a hlcnihcr of the Cnitcd Salions. Honcvcr, ir does
no1 ncceiv~rily folluu thai ihc consent of Japlin as a niandaton Poucr
or the relinquishment by Japan of her mandate, in this case, ii not re-
quired." (Ibid.)
The representative of the United Kingdom went on to indicate that if the
majority of his colleagues wished to proceed in the sense requested by the
United States representative, then, in deference to their views and to the desire
of the United States Government to have at once what al1 concemed agreed
upon it should have eventually, he would not oppose the adoption of such a
course (ibid., p. 465).
The French representative stated that he considered it normal for reasons
closely akin to those expressed by the United Kingdom representative that
the fate of the former Japanese mandated territory should be settled by the
working out of a peace treaty. However, he also indicated that the French
delegation would raise no objection to the procedure submitted to the Security
Council by the United States delegation (ibid., p. 468).
At the same meeting of the Security Council the representative of the United
States spoke again and he then made the statement relied upon in the United
States written statement in these proceedings, which I read earlier, and he
went on to Say:
"We do not need to dwell upon the question of title, that is to say, the
underlying title to these islands. This question can he taken up and dis-
posed of in a diiïerent tribunal, if the occasion should ever arise. For my
part, 1 cannot foresee what condition of affairs would ever raise the ques-
tion of whethcr there is such a residual title to be discussed and disposed
of." (Ibid., p. 472.)
He then again contended that as a result of Japan's disregard of the Mandate
in using the islands for aggressive warfare, Japan had forfeited the right and
capacity to be the mandatory of the islands and that such forfeiture had been
recognized (ibid., p. 472). In other words, Mr. President, it was clear that the
representative of the United States himself relied not on a revocation or a
suggested revocation of the Mandate by the Security Council but on what
he contended for as a prior termination of that Mandate, outside of the
United Nations.
But his colleagues were not yet satisfied. In reply, the Australian represen-
tative suggested that the representative of the United States had tended to
over-simplify the whole question. He said:
".. .these islands did not come within the disposition of the United
Nations because Japan committed a breach of the obligations under the
League inandates system. These islands came into our disposition as the
result of four of the bloodiest years of war that were ever fought any-
where on this globe. These islands came to us by conquest. These were
islands wrested from Japan. Japan committed breaches of her obligations,
it is true; Japan forfeited the islands; Japan should have lost al1 title to the islands; but what look the title of the islands of Japan was the war .. ."
(Ibid., p. 478.)
Statements such as these were apparently the cause of some shift in the
attitude then taken by the representative of the United States in regard to the
legal aspect. At the 116th Meeting of the Security Council the Polisb repre-
sentative orooosed an amendment to the nreamble of the draft trusteeshin
agreement. The originxl draft, in its point 4 of the preïmhle, had red: "whercis
Jnpan. as 3 resull of the Second World War, ha5ceased IO enerciscnny nuthority
inthese islands".
Now the proposal was that the following phrase should beadded: "whereas
Japan has violated the terms of the above Mandate of the League of Nations
and has thus forfeited the Mandate". This proposal was referred to by the
representative of the United States al the 119thMeeting of the Security Council,
when he said:
"Let us consider for a moment the oosition of Jaoan in this matter
... first of al1Japan has already been déprivedboth in fact and formally
of al1her rights as mandatory in these islands, by forfeiture. That is the
subiect of the amendment offered bv Poland and alreadv acceoted bv
theUnited States. Il is now a part of the instrument offered io the ~ecurit;
Council for consideration. Secondly, Japan has ken deprived of her
rights as mandatory, by reason of the United States occupation during
the war. Thirdly, by reason of the surrender terms." (Ibid., p. 526.)
Aeain. the whole accent on what bas haooened alreadv.
~{e répresentatives of other States remgned unpersiaded. The New Zea-
land re~resentative, who had been invited Io take part in the discussions of
the ~ecurity Council, said that in the view of his Government any arrange-
ments made with respect IoMicronesia could not become finaluntil the formal
completion of a peace treaty in which Japan renounced her rights in those
islands iibid.. 122nd Meetine. o. 630). wh..st the Canadian reoresentative
sraied thrit as; consequence oilhe war Japan no longer exercised il;mandatop
authority and referred 10 the United States as the de facro ndniinistcring power
in the islands (ibid.. o. 632)
Thc proposal by 'the rrpresrntati\e of Poldnd also nici uith oppo\iiion
The representatives of Austral~a and the Netherlands poinicd out ihat legally
there cannot be an automatic forfeiture of an agreement unless the agreement
specifically so provides (ibid., 124th Meeting, pp. 645-650). Such criticisms
then caused the representative of Poland to change his legal stand in putting
forth the following argument:
"Japan, through her action of leaving the League of Nations, of starting
a war of aggression against China, which in reality meant hreaking the
Covenant of the League, of which she was a Member, forfeited al1rights
as a Member of the League." (Ibid., p. 647.)
In the end Poland withdrew its proposed amendment, as appears from page
656 (ibid.).
Prior Io the withdrawal of the Polish amendment, the representative of the
Soviet Union stated:
"11 seems to me that there is no need for such an amendment. There
is no continuity, either legal or otherwise, between the mandatory system
of the League of Nations and the Trusteeship System laid down in the
United Nations Charter. There is therefore nothing which might entitle ORAL STATEMENT BV MR. DE VlLLlERS 457
the Security Council to discuss this question. let alone take anv decisions
on it. The "iand3tor). syrteni ufthe le~gue "f Nxiions ibdisiincl from the
Trusteeship Systcm whiih the United Nations is now trying io cttablish
... For the reasons \\hich I hsvc iust st3ted. the Sccuritv Council is not
competent to decide to what extént Japan kay have violated the con-
ditions of the mandate system and the duties involved in the administra-
tion of mandated territories." (Ibid., p.648.)
The representative of Syria advanced yet another ground why the rights of
Japan, if any, could not be considered. He emphasized the fact that Japan
was nota member of the United Nations:
"The Syrian delegation had occasion, at the early meetings of this
Council on the subject, to state clearly that inasmuch as Japan is not a
Member either of the League of Nations or of the United Nations, no
right may be mentioned or discussed and no reservation can be made
conceming Japan pending ils consent to the matter." (Ibid., p. 652.)
Eventually. Mr. President. the United States re~resentative sub~i~ ~d an
amendment-to the effect that the preambular ph;ase proposed by Poland
should be deleted and that the following phrase should be substituted: "whereas
the mandate held bv JaDan for these islinds has come to an end" (ibid.. o.6561.
This amendment <as put to the vote and it was rejected on th= basis'that it
did not obtain the requested number of votes. In the end therefore the original
preamble was adopted which made no mention of a termination of the man-
date but merely stated that "Japan, as a result of the second world war, has
ceased to exercise any authority in these islandsn-a mere statement of the
factual vosition. In Our submission. the record leaves no room for doubt that
there wàs a wide divergence of vie& in the Security Council as to the legal
basis of this whole matter of the title of Japan and the powers of the Security
Council. if anv. The ~eneral consensus s&ms to have ken that the SecuriG
Council iiself could c~rtainly no1 iake action (regarùin~ ciicrniinationif iitl;)
and iherc is noihing to indic3tc thcilthe nidjority of mcmhers was of the opinion
eithcr thatthe L'nitcd Nation- wïs the succesor tifthe Leûeue of N3tioni in
respect of mandates, or that the United Nations or any Ggan thereof was
legally empowered to terminate the mandate. On the contrary, the opposite
view emerges on both of these ~oints.
In fact no representative look up the attitude that the Security Council itself
could legally terminate the mandate. The contentions that Japan's title could
be regarded as dis~osed of. rested on what was said to have ha~oened..re-
viousk; and even ihese, as 1 have demonstrated, were not accepted. So'the
Security Council's approval of the trusteeship agreement again affords no
support at al1 for the contention of a unilateral power of termination on the
part of any organ of the United Nations. As was stated by the representative
of the United Kingdom in the Security Council:
". ..there is no provision in the Charter whereby the Security Council
isempowered to deprive even an enemy Stateof its mandate" (ibid., D.464).
Mr. President, these two precedents, Palestine and Micronesia, concern
terminations of mandates.
There were two cases relied upon concerning the assumption of administra-
tive powers: West Irian by the United Nations General Assembly and the
Saar hy the League of Nations.
In this regard the United States says that "Article 81 of the Charter speci-
fically provides that the United Nations may be an administering authority458 NAWBIA (SOUTH WEST ARICA)
ofa trust territory"(written statement, 1,p. 873). Having pointed out that the
United Nations for a lime administered the territorv of West New Guinea on
the b3s1sof an agreemenl ktiieen the Republic of lndonesiî and the Kingdom
of the Netherl3ndi. the United States st3tcment concludes: "Ry analogy. the
United Nations may assume responsibility for administering a territory under
~ ~andate"~ ,ibid.,.
Mr. President, in our submission, the conclusion misses the whole point.
West New Guinea was administered by the United Nations ~recisely on the
basis of an agreement hy the States directly concerned. ~hethe; one looks upon
it formally as an agreement under the trusteeship system or not-Memkrs of
the Court will recall that it was a fairlv brief matter of transition-it was
based on an agreement between the tat t eisectly concerned and it therefore
bean no relevance to a contention about a power of unilateral action in this
resoect without the consent and aaainst the will of States directlv concerned.
The history in this case is briefly that the General Assembly discussed the
agreement between the Republic of Indonesia and the Netherlands concerning
West New Guinea, now known as West Irian, during its Seventeenth session
in 1962. Up to that stage the territory had fallen under the sovereignty of the
Netherlands, but for a decade or more lndonesia had contended that West
Irian was an integral ~ortion of its own territorv. That was the disnute. There
-.
u,as a sharp conflici tifopinion resulting in deterioratioii oi rcldiions betueen
the tvo couniries and trhat seenied io be the conimencenient oi open conllict.
At this point the United States made a proposal for secret preliminary dis-
cussions between the parties in the presence of a third Party, who was the
United States Ambassador Ellsworth Bunker. As a result of these discussions
the eventual agreement was reached.
The agreement was made subject to its acceptance by the General Assembly
of the United Nations. It provided for the transfer via a United Nations
temooraw executive authority of the administration of West Irian from the
~ethcrlands io Indonesla and-for the exercising of ï si,-called ait of free choice
of the peoplc of West Irian six yexi nfter the adminisiration had been irans-
ferred to Indonesia. So there was to be an act of transfer via the temDorarv
authorityand then six sears 13teran act of free chocre. Irfurthermore pr<;vidçd.
and this isuhere the United Nations calne into the picture furiher,that ;il the
tinie of the transfcr of full aùniinisirative reroonsibilits to InJunesiainumher
of United Nations experts would be designated ta remain wherever their
duties required their presence. Their duties, as was clearly defined, would be
limited to advising on and assisting in preparations for canying out the pro-
visions for self-determination, except that they could be extended, in so far
as lndonesia and the Secretary-General might agree, ta the performance of
other exuert functions.
At the proper time, preparatory ta the exercise of the right of self-deter-
mination, the Secretary-General would appoint a United Nations represen-
tative in order that he and his staff miaht assume duties in the territorv one
year prior to the date of self-determination.
Indonesia had to make arrangements, with the assistance and participation
of such representative, and his staff to give the people of the territory the
on..rtunitv to exercise freedom of choice.
Now théagreement was discussed in the General Assembly Plenary Meetings
on 21 September 1962.After the representatives of Indonesia and the Nether-
lands had addressed the Assembly,~the draft resolution presented by the two
countries was adopted by 89 votes to nil, with 14 abstentions. No other repre- ORAL STATEMENT BY MR. DE VILLIERS 459
sentative spoke before the adoption of the resolution. Thereafter the acting
Secretary-General made a statement in which he said:
"1 feel that this Agreement sets an epoch-making precedent. Under it,
for the ht time in its history, the United Nations will have temporary
executive authority-established by and under the jurisdiction of the
Secretary-General-over a vas1territory.
The Agreement is unique in another respect: although the United
Nations has a vital role ta play in implementing the Agreement, the
general memkrship of the Organization will not be required to meet
additional financial burdens, as the entire cost of the United Nations
operation will be borne by lndonesia and the Netherlands in equal pro-
portions.
This novel settlemenl may well be a step in the gradua1 evolution of
the United Nations as an increasingly effective instrument for carrvina
out policies agreed upon between ~emher Governments for the pea&fui
resolution of their differences, in line with the Charter. On this basis. and
at the reauest of the Iwo Governments. 1 have had ta authorize certain
steps in connexion with the implemenlation of the Agreement, in antici-
pation of its approval by the Assembly." (CA, OR, Seventeenth Sess.,
1127th Meeting, p. 53.)
So the basis of specificconsent was made absolutely perfectly clear, together
with this further important factor. that when parties have consented to some-
thing being done by an organ acting under a constitution, there might still
be questions under the constitution pertaining Io the question whether, even
with consent, such an organ was intended to perform such functions. Those
questions could, in particular, pertain ta financial implications, costs, time
involved and cost to the nlembers of that organization. That is why this factor
in the agreement-the agreement by the two parties concerned to defray al1
the costs of the United Nations operation and participation in the matter-
played such an important part.
initsreport on the implementation ofthe agreement,the Indonesian Govern-
ment emphasized these very factors which 1 have just mentioned; that was in
1966:
"The Agreement was clearlv a bilateral agreement between Indonesia
and thc ~~:rhi~rlands .li<usniiir.311r.~.ip<inhiii rer,~lutidnofthcVucstioii
or hv any <iilierni:ind2te ol'ihc L'niied Nations Gencral Asjcmhly. \?hich
hdd :iI\<iiysCiilcdIo produce any resolution for thesolution of thcdispute.
Thc rolc <inicrlidtion or interiiicd!lti~fthe Cnited Salions Scsrctary-
Generiil. II 'Ihÿni. \i,iiscalled fhyrpressing iniern2iional circum\tances.
and ihe iurthcr role of the Unlied Naii,>n.;Sccretarv.Gcncr;ll in the agree-
ment itself, as in the creation of the United~ation; Temporary Executive
Authority in West Irian and the dispatch of the Ortiz-Sanz Mission, was
called for bv the Agreement itself. that is to say bv the Iwo parties Io the
Aereeme~--~
This may explain why the United Nations General Assembly, on 21
September 1962,confincd itself to only taking note of the Agreement and
tocongratulating the parties on their iuccess in finding a peaceful solution
to the long-standing dispiite.
With regard to the role or function of the United Nations Secretary-
General tooe performed as requested by the Agreement ktween two meni-
bers of the United Nations, the United Nations General Assembly had, of460 NAMIBLA (SOUTH WEST AFRICA)
course. to nermit and to authorize the Secretarv-General to wrform an
e~tr3neou~'function. as not belonging IO his ro~iine instiiutio~l function.
asSecrctary-Gencral of the United Ndiions Thar 1swhy 11uas also iirovid-
ed in this Agreement that al1 financial expenses defiayed by ~eiretary-
General U Thant, in complying with the dulies called for bythe Agreement,
were to be borne by the Iwo contractina narties themselves. by the Indo-
nesian and the ~etherlands ~overnmentsin equal shares. ~othing was to
be paid by the United Nations." (GA, OR, doc. A/7723, pp. 9-10.)
The text of the resolution of the General Assembly relating to the initial
agreement (resolution 1752 (XVIQ) read as follows:
"The GencralAssentbly,
Conrideru18 ihai the Governmcnt of Indonesid and the Netherldnds have
resohed their dispute concrming We,i \cw Guinea (\Ve,t Iridn),
Norina wirh auureciarion the successful efforts of the Actine-Secretarv-
~eneial to bring about ihis peaccful seitlcment.
Hau~ngrakencogn;runci of the Agreenient between the Republic of Lndo-
nesia and the Kinc-om of the Netherlands conccrnine W-st Neiv Guinïa
(West Irian),
1. Takesnote of the Agreement;
2. Acknowledges the role conferred upon the Secretary-General in the
Agreement;
3. Aurhorizes the Secretary-General to carry out the tasks entrusted ta
him in the Agreement." (1127th Plenary Meeting, 21 September 1962.)
When the implementation of the Agreement was considered in 1969 in the
General Assembly, Mr. Mohamed of Malaysia reiterated many of the points
made in the Government's report of 1966which 1have iust read out. so 1do not
intend ta read again what he-said. But 1would emphasize these aspects: that it
was a bilateral agreement-not originating from a United Nations source,
the United Nations beinaonly brought in bv theaereement for alimited roleand
-.
the parties paying al1the expenses, n~thingbein~paid by the United Nations it-
self (A/PV. 1812,pp. 32-33).
The representative of lndia found it necessary, for some reason, to emphasize
that the General Assembly was merely being called upon to take note of the
report of the Secretary-General in regard to the act of free choice which had
been undertaken in West Irian, and he emphasized that that was al1that was
meant-it did not rcally mean the direct or indirect approval of the document
(A/PV. 1813,p. 16).We have set out the text of resolution 2504 of the Twenty-
fourth Session (19 November 1969)in a document which can be handed in-
1 do not want to read it, Mr. President. The important point is that after a
preamhle taking account of and recalling various things, the main operative
paragraph simply Statesthis:"Takesnote of the report of the Secretary-General
and acknowledges with appreciation the fulfilment by the Secretary-General and
his representative of the tasks entnisted Io ihem under the Agreement of 15
August 1962 between the Renublic of Indonesia and the Kinadom of the
~efherlandsconcerning West New Guinea (West Irian)." For purioses of full
context the document is available to be handed in.
So that makes it perfectly clear that this is no precedent at al1for the assump-
tion of administrative powers, otherwise than by the specific agreement of the
particular parties directly involved. And then, even ta guard against the possi-
bility of there heing a more technical infringement or, shall 1say, transcending
of the bounds of constitutional powers, and involving the organization in ex- ORAL STATEMENTBY MR. DE VILLIERS 461
penditure which could not be said to be authorized by the constitution, there
was the special arrangement about defraying of expenditure.
When welook at the nosition concemine the Saar in the time of the Leaeue of
Nations, wefind, as a matter of basic principle, exactly the same thing. ~&e the
contention of the United States reads:
"The decision hy the Arsembly that the United Nations should adminis-
ter Naniibia is consistent uith the basic structure of the hlsndates System
and the International Trusteeshin Svstem and the ~ractice of the United
Nations. The Mandates System iresupposes an a&inistering authority.
The League of Nations performed analogous functions in the case of the
Saar through a Commission established pursuant to the Annex to Article
50 of the Treaty of Versailles." (Written statement, 1, p. 872.)
The term used in this contention is "analogous functions" and in the context
itseerns as if the suggesiioii may be that th& serves as an indication that the
Lsague could have perfornied direct administration ofa rnandatcd territory too.
Ifthat isthe suggestion. then ourcontention isthat it isclearlvnot well-founded.
It is not well-fGnded for other reasons which we have given already, but what
we are concemed with at the moment is that it is not even supported hy this
The position in regard to the Saar was, as Members of the Court would know,
that Germany, in the Peace Treaty of Versailles, renounced in favour of the
Leaaue of Nations. in its caoacitv of trustee. the eovemment of the Saar
(~rGcle 49 of the ~exe ~reaty'of s sa il les8,June 1519).It was added, in the
same Article, that "at the end of fifteen years from the coming into force of the
Dresent Treaty the inhabitants of the said territorv shall be called unon to
indicaie the sovereignty iindcr which the).desireIOb; placed". ,içcordingly, the
Saar plebiscite took place in 1934.
In terms of Articlc 50of the PeaceTreatv. the Annex reuardins the Sax was
declared to be an integral part of the ~reaty and Germany ackiowledged her
adherence to the Annex. Chapter il of the Annex contained provisions relating
to the govemment of the Saar which was to be carried out by a goveming com-
mission appointed by the Council of the League.
An important aspect here, too, is that, according to the provisions of the
Annex. it was clear this would not cost the leaeu- or its Members a Dennv. .
There \ras a specificchapfer on linsncial arrangements and itwa\ clex that the
corts of adniinistrati<~nuould be covered by the tax revenues derived from the
Saar itself
So here again: specificagreement by the States directly concemed and this
arrangement in connection with the financial aspect. Commentators have drawn
attention to the difference between this instance of direct eovemment and that
which, under Article 22 of the Covenant, was performedlby rnandatories. For
instance, Duncan Hall, in his Mandates, Depetzdencies and Trusfeeship, 1948,
in comparing the provisions of the Charter and of the Covenant, said at page
133:
"Direct international administration, expressly provided for in the
Charter, [that is prohablyunder a trusteeship agreement] was perhaps not
possible under Article 22 of the Covenant, though it existed in the Saar by
virtue of another provision of the Treaty of Versailles. When the great
powers offeredthe Council of the League a mandate for Armenia in 1920,
the offer was rejected-in part because the legality of a direct League
mandate was questioned."462 NAMIRlA (SOUTH WEST AFRICA)
And then, as regards this history of the suggested Armenian Mandate,
Walters, in his Hisrory ofthe Leogue o/Norio,ts (Vol. 1,1952, p. 109), has some
comment. According Io the author the existence of Armenia was threatened
by Russia and Turkey:
"The Allies werefar away: they could not protect Armenia without making
a niilitary effort which was far heyondtheir will; yet they couldnot openly
abandonher to her fate. In this dilemma the Supreme Council hit on the
idea of treating her as a mandated territory and asking the League to act
astrustee. But the Council was far too prudent to fa11into such a trap. In a
replydrafted by Balfour himself, it answered(April Ilth, 1920) that under
the mandate system the responsibility of trusteeship was accepted by
individual States,notby the Leaaue assuch; and that a direct Leaaue trus-
teeship could not be considered until the Allies had announced what
military and financial resources they would provide for the purpose, since
of itself the League possessedneither."
Again, the obvious emphasis of the distinction between a caselike that of the
Saar and a caseof suaaesteddirect assum~tion of administrative functions bv
either the League or the United Nations in regard to a mandated or truste;-
ship territory. Soagain, this is a precedent which tends to operate against rather
than in ïavour of the contention which invoked it.
That brings usIo the endof those precedents which were specifically invoked
in this way. 1would like Io referas an example to one of the list of casesgiven
by the Secretary-General of actions bv the General Assemblv as if it were
rcpresenting the-unitcd Nations, and which hc in \orne tray or other regards as
precedents. In iiiy subiiiis\ionitis not clear ai a11on u,hat baiis hc aitempts tu
do this. The leaal basis isnot clear becauseafter all. as 1 have said before. we
are not concerned with a difficulty of resolving an ahbiguity or ~ornethin~else
which needsto becleared up, and ifwe look at theseexamples they are certainly
not unambiguously clear andpointing to one course of action adopted, or one
view taken of a situation, on the part of the interested members of the United
Nations.
The SuezCanal caseis an excellent exainole of this. That wasdealt with bv the
Gencral A\semhly in tito reiol.itionr ;ila Special Selsicin (tSO in 1956: rciolu-
tion 997 and resolution 1000. SJW rererrrng iint ro re~olution ILKK).ihat Pr<>-
nded for the establishment of a United Salions Coiniii~nd for ;in eniergenc).
intern~iion31 force to secureand siipervise cessÿtiun <ifhortilitiei In a~cordance
u,iih the ternis of resolution 397 of 2 November 1956 The rcsolurion further-
more a~rioinicd the Chier of StarTor the United Saiion, rruce Su~ervision
~rganization asChief of Command, and authorized himto recruit a nimber of
officers.
In resolution 997 the General Assemblv noted that armed forces of France
and the United Kingdom were conductingmilitary operations against Egyptian
territory, and that the armed forces of Israel had penetrated deeply into Egyp-
tian territory. and il ur-.d (in this resolution 997) that al1 parties involved in
hostilities agrce Ioan iiiiiiiedistc ~.ci,c-lire. tk~t the p;trtle10 the arniistice
agreement pioniprly nithdriiv :ilL>r;cs hehind the arnii,tice liiiei.
Ilestilutii)n loi10nis adonrcd hy 65 votes IO I irith Ili ihitcntion(GA. OH.
1st Emergency Special ~ess.ion,567th Meeting. p. 127). The representative of
the Soviet Union, in explaining his abstaining vote, objected that in the view
of the Soviet delegation this force was king "created in violation of the United
Nations Charter". ORAL STATEME~ BY MR. DE VILLIERS 463
Hisargument proceeded along the lines that this was an encroachment by the
General Assembly on the domain of the Security Council. But he concluded:
"However, in view of the fact that in this instance the victim of aggres-
sion has been compelled to agree to the introduction of the international
force,in the hope that may prevent any further extension of the aggression,
the Soviet delegation did not vote against the draft resolution, but ab-
stained." (Ibid.,p. 128).
This is significant, Mr. President: in regard IO the actual physical act of
placing this emergency force in Egypt, there was,as appearsfrom thisstatement,
the consent of the State concerned; and although the representative of the
Soviet Union did not like the methods by which the consent had heen obtained,
he said that on that basis he would not vote against the resolution, he merely
ahstained. However, when it came to the financial implications the matter was
not sosimo.e..and one findsthat in 1963when the financial es~~mate of the Secre-
tars.Cienrra1 for the United Nation5 Eniçrgency Force di<cusxd in the
Fifth Co~iiiiiittee.thc re~rcscntitivc ofthe Soviet Union recalled ir.hxthad taken
place in 1956, and he-recalled the attitude taken by his delegation then and
reiterated the reasons why it was contended that this action was ultra viresand
outside of the powers conferred by the Charter. The conclusion was stated
consequently, that "the expenditures deriving from that illegal decision of 1956
were themselves illegal" (GA, OR, Eighteenth Sess., 5th Comm., 1052ndMeet-
ing, p. 263).
1 am not absolutelv certain about this-no doubt Judee-Morozov could
correct me if 1am wrong, Mr. President-but Our impression is that up to this
date the Soviet Union kas resolutely refused to contribute to the finances of the
1956operation.
On the occasion in 1963to which 1have referred, the attitude of the Soviet
Union was supported by the representative of the Ukraine and of Bulgaria
(GA, OR,EighteenthSess., 5th Cornmittee, 1053rd Meeting, pp. 267 and 269
respectively).
So, Mr. President, 1am not suggesting that itis now for the Court to deter-
mine who was rieht or who was wrone in the araument on that oarticular ooint.
What Iam poincngout isthat there ;as in fact ~controversy, and a very ihpor-
tant one, which had important repercussions at a later stage. Soin principle, the
reliance uoon this kind of orecedent brines-us nowher-it is no orecedent for
anything except to indicate that when it comes to questionableaction, when an
organ of the United Nations tries to assume to itself auestionahle powers,
where it even eoes further and it takes action in the face ofverv strone warnine
- -
of reponsihle Members, that it is acting rtlti-avirethen there is no basis upon
which one can say that by precedent or by any other process that is to be re-
earded as lawful and bindine
- Still under the heading of irecedent and practice, 1want to revert very briefly
to certain arguments with which 1have dealt in another way-the various con-
tentions to the elïect that in reeard to a mandatorv Statel Le.. a mandatorv
authority, or an administrative aithority under trusteeship, ihe Genera~~ssei-
bly, as supervisory authority, is ernpowered to make binding interpretations,
bindine.directives. which then become an obliea-ion on the oart of the adminis-
tering authority to comply with-by way of processes of interpretation of
obligations and so forth. We have pointed out in otherparts of our presentation
that there is no leeal basis whatsoever for these contentions and that thev run
counter to the cleir jurisprudence of this Court in various of its decisioni, and464 NAMIBIA (SOUTH WEST AR<ICA)
also to the clear and manifest intent of the authors of the mandates system and
of the trusteeship system, in the caseof the United Nations.
1 merely want to add one historical reference in that regard, which is, in Our
suhmission, a significant one, and that is the attempt which was made at San
Francisco to include in the Charter provisions concerning authoritative inter-
pretation of ils provisions. There was a discussion on that matter and the out-
come was that it was deliherately decided to have nothing of the kind in the
Charter-the reference is to UNCIO document. Volume XIII. oaaes 709-710.
The matter iias discussed iiconsiderable length and a significani'~t~tement uas
included in the linal report of Committee IV Th15srarement was quoted to th13
Court in the proceedings preceding the Opinion regarding Certain Expensesof
the United Nariom. and it is 10 be found in the Pleodings,Oral Argumentsand
Documentsof those proceedings, at page 221, in a footnote to the written
statement of Canada:
"If two member States are at variance concerning the correct inter-
pretation of the Charter, they are of course free to suhmit the dispute to
the International Court of Justice ai in the caseof any other treaty.
It is to be understood, of course, that if an interpretation made by any
oraan of the Oraanization or bv a committee of iurists is not renerallv
acceptable ilwilï be withoui bi"ding force. In ruih circumstan~s. or in
caseswhere ir 1sdesired Io cstahlish an authoritative interpretation 3s a
precedent for the future, il may be necessaryto embody theinterpretation
in an amendment to the Charter. This may always be accomplished by
recourse to the procedureprovided for amendment."
So that was the intention of the authors of the Charter. There was comment
on this matter in the British YearBook of InlernotionolLaw for 1946, in an
article, "The Interpretation of the Charter", the author writing under the pseu-
donym of Pollux. He made it clear that, in his view, a State would not be legally
hound by an interpretation of the Charter by other States-an interpretation
with which il did not aaree. The author stated: "No State can reasonably he
expected meekly ta accept an interpretation of the Charter uhich it considers
completely u,rong. ho\iever large the majority In fïvour of such an interpreta-
tion may be." In aiootn~~ieto this passagethe author added: "This remark does
no1 apply IO an rnrerpretarion givcn by th2 Intçrnati<inal Court of Justice or
other bodies *,hich niay be authorized to give a binding interpretation" (p. 57);
in other words, stressing the need for authorization in order to do sucha thing.
We have beenemphasizing in Ourpresentation to the Court the ahsolute absence
of any such authorization or grant of power.
In the seoarate o~inion of Sir Percv Soender in the Certain Expensesof the
Unirrd .~arionccase-he deïlt uith th;suggeseltion thdian interpretation of the
Charter by a mïjority of States IS tu be acrepted as the correct interpret;ition
and he stated in this regard:
"... il is not evident on what ground a practiceconsistently followed hy a
majority of Member States not in fact acce~ted by other Member States
could Ürovide anv criterion of interoretation wbich the Court could oroo-
erly taie into consideration in thedischarge of its judicial funclion.. ~he
conduct of the majority in followina the oractice may be evidence against
them and aeainst those who in faccac~e~t~.he oractice as correc1lv;nter-
preting a ~iarter provision. but could not, itieems to me, afiord.aiiy in
their fd\,our to suppurt an interpretation u,hich by majority they have heen
able ta assert." (I.C.J. ~eports~l962,p. 191.) ORAL STATEMENT BY MR. DE VILLIERS 465
Now, MI. President, there is one final aspect of practice and precedent that
may interest the Court.That appears from the 1968Report of the Committee of
Twenty-four (CA, OR. Twenty-third Sess., Dac. A17200,Part 1, 5 Dec. 1968).
Paragraph 11 of that report refers to the fact that at its 22nd Session, the
General Assembly adopted resolution 2326 (XXII), of which operative para-
graph 16reads as follows:
"Requesrs the Special Committee to examine the compliance of Member
States with the Declaration on the Grantine of lndeoend.nc~ ~~ ~ ~ ~ ~l
Countries and Peoples and other relevant resolutions on the question of
decolonization, particularly those relating to the Territories under Portu-
guese domination, Southem Rhodesia and South West Africa, and to
report thereon to the General Assembly as its twenty-third session."
1wish to repeat, MI. President, this was December 1967.At the same session,
the report indicates that the General Assembly, in addition to this resolution,
adopted a number of other resolutions on speciiic items relating to the question
of decolonization which contain various requests addressed to al1Statesandlor
member States.
So circula notes were sent out and reolies were received. 1wish to refer onlv
to two replies: one was by the United ~ingdom and one by the United States O-f
America. We have the documents in full, and they could be handed in. 1wish to
refer to a brief paragraph in each.
"The United Kingdom Government attaches weight to the resolutions
of the General Assemhly but these have, of course, the force of recommen-
dations only and it is open to member States to detemine their action in
accordance with their own viewof the merits of each case.'' (10July 1968.)
The United States reply was dated 16 August 1968.The passage 1want to
read is this:
"At the outset, the United States Government would like to take this
opportunityto reaffirmitsdedication to the principle ofself-determination.
At the same lime the United States Government wishes to ooint out that.
in accordance with the Charter of the United Nations, General ~ssembl;
resolutions of the type referred to are recommendatorv onlv and not
~~
mandatory."
On that happy note 1think wecould leave the subject of practice and prece-
dent.
The PKESIDCNT. Mr. de Villiers, bcforc ihe Couri iîkîs lis uwal reces,
1regret 10 have io obscne thai Juring ihe last fcw minutes of your preseniaiion
you let slip an invitation to a Member of the Court to correit vou if vou were
wrong in making a factual statement. 1 am sure a moment'; refleltion will
convince you that, to put it at its mildest, such an invitation was most inept.
No Memher of the Court represents any Government, any State, or any
Member of the United Nations or any other organization.
The Court adjorrrnedfrom 11.20 a.m. ro 11.45 a.m.QUESTIONS DU VICE-PRESIDENT ET DE M. IGNACIO-PINTO,
ET DE M. FORSTER
QUESTIONS BY JUDGE MOROZOV
The PRESIDENT: The Vice-President and Judge Ignacio-Pinto have ajoint
question to put to the representative of South Africa. Judge Forster has some
questions to put to the representative of South Africa. Judge Morozov has a
question to put to the representative of South Africa.
Le VICE-PRÉSIDENT: Vous avez discutéles circonstances dans lesquelles
les Mandats sur la 13alçstinçet les iles du Pacifique Nord aint pris fin, elce en
vue de dimontrer qu'il n'a pas Clémis liàces hlandatr de faqon unilalCrale ou
sans le consentement ré ai ables Puissances mandataires. Seriez-vous disposé
à discuter égalementdes circonstances dans lesquelles les Mandats sur la Syrie
et le Liban ont été terminés,à l'effet de savoir s'ils l'ont été avecou salis le
consentement réala abde la Puissance mandataire?
M. FORSTER: Maitre, je vous prie de vous référer aux pages313 et 314,
supra.
Le représentant de l'Afrique du Suda dità la page 313,supra:
"Dans l'ensemble du système, un élémenttrès important ressort des
dispositions du Pacte: c'estcelui qui prévoitquetoute décision du Conseil
relativeà un mandat donné exige l'accord du représentant de I'Etat
mandataire entre autres. II s'ensuit que la décisionde révoquer unmandat
n'aurait ou êtrerise si le mandataire s'v étaitoooosé. Or. si I'on avait eu
l'intention de donneràla Sociétédes Nations ia'possibiiité de révoquer
les mandats,il est inconcevable que les fondateurs de la SociétédesNations
aient rendu l'exercice de cette compétence mécaniquement
impossible."
II a dità la mêmeDaXe:
. ..
". .on peut maintenant considérer.~mme ét4blicn droit qii'iinï dCci,ion
de révocïtioii du mandat n';turspiiétrcprise contre1.voli~ntkdu nianda-
taire".
On lit aussà la page 314:
".. .en d'autres termes. le Conseil n'aurait eu iuridiauement aucun
pouvoir, non seulement si un mindalaire avait a81 contrairçii~entà ses
avi.;,niais encore s'ilavait agi contrairement aux terme>du mandat".
II est reconnu que, si ces déclarations étaient bien fondées, elles présen-
teraient de la pertinence dans le contexte de l'argument que I'on cherche en
tirer.
II est égalementadmis quela confiance dans la bonne volonté et la bonne foi
du Conseil de la Société desNations et des Puissances mandataires était à
l'origine eà la source de la conception même desmandats. En pratique, donc,
ainsi quela Cour l'afait observer en sonarrêtrendudanslesaffairesduSud-Oftest
africairzen 1966:
". .ilétait fréquent queI'onn'insiste passur larèglede l'unanimité ouque
I'onen atténueleseffetsau moyen de com~romis et d'artifices de procédure
auxquels le Conseil et le Mandataire se prêtaient.A la connaisknce de la QUESTIONS BY MEMBERS OF THE COURT 467
Cour, aucun Mandataire n'a jamais opposéson veto à une décision éven-
tuelle du Conseil. On a par ailleurs pris grand soin d'éviterde mettre les
Mandataires dans l'obligation d'avoir àchoisir entre I'adovtion du voint
de vue des autres membres du Conseil et un vote contraire. Ên s'absténant
volontairement de siéger à telle ou telle séance,le Mandataire permettait
au Conseil de prendre des décisionscontre lesquelles il aurait cru devoir
voter s'il avait étéprésent. Cela faisait partie des moyens d'aboutirà des
conclusions généralement acceptables, qui viennentd'êtrementionnés."
Pour au'il soit oossible d'aoorécier la valeur iuridiaue des déclaration~ ~
ci-dessus; faites au'nom de l'~ir.ique du Sud, le représeniant de l'Afrique du
Sud est invitéà bien vouloir répondre aux questions suivantes:
Première auestion: ~onnait-on des cas où une or. .sition du Conseil de la
Suc~étédes salions, îppu)ée par tous les Membres du Conseil de Iï Sociiiédes
S~t~ons,a11Cierepou\sL:cen raison du voie nbgatifd'un Mandaiaire?
Deuxième auesfion: Ouelle conclusion est-iÏléeitime de tirer du fait aue le
Mandataire &ait parfois absent d'une séance di Conseil de la ~ociétkdes
Nations dont I'objetétait l'adoptionde décisionscontre lesquellesle Mandataire
aurait veut-êtredUvoter s'il avait étéorésent?
~rokième question: Dans le cas dun conflit entre l'opinion unanime et
persistante du Conseil de la Société desNations sur une certaine proposition,
visant à mettre en Œuvreune disposition du Pacte de la Sociétédes Nations et
l'opinion opposée et persistante du Mandataire à cet égard, y avait-il une
disposition du Pacte que l'on pin faire jouer finalement et en dernier ressort
pour résoudre le conflit? Ou bien l'Afrique du Sud soutientclle qu'il n'y avait
aucun moyen possible de surmonter l'opposition du Mandataire dans un cas
de ce genre?
Quatrième question: Si la réponse à la première partie de la question précé-
dente était négative eta réponseà la deuxieme partie positive, le représentant
de l'Afrique du Sud voudrait-il diresil'application de l'articleparagraphe 4,
du Pacte ne résoudrait pas le genre de conflit mentionné dans la question
précédenteet n'est-ce pas parce que l'on songeait à cette disposition que l'on
a recouru à la pratique indiquéeau paragraphe 82 (p. 44 et 45) de l'arrêtde la
Cour (citéplus haut) pour remédier à un conflit entre le Conseil de la Société des
Nations et un Mandataire sur des questions essentielles?Je vous remercie.
Judge MOROZOV: With your permission, Mr. President, 1 should like to
pur Io the representative of the Government of South Africa the following two
questions:
1. Has the Government of South Africa at anv time asked the Security
Council of the United Nations to permit its representative to participate in thé
discussions of the Security Council on the question of Namibia, and particularly
to participate in the discussions of the Security Council leading to the adoption
of resolution 276(1970)and resolution 284 (1~,0)?
If so, what was'the result of such request?
If not, can the South African representative be so kind as to explain why it
did not do so,taking into account the fact that theagenda for allmeetingsof the
Security Council are distributed in advance to al1Permanent Representatives
in New York?
2. Do the submissions made to the Court by the representatives of South
Africa, ifcorrectly understood, mean that it does not consider decisionsof the
Security Council taken in accordance with Article 24 of the Charter to be
binding on al1 Members of the United Nations in accordance with Article 25
of the Charter of the United Nations? ORAL STATEMENT OF MR. DE ViLLIERS (cont.)
Mr. de VILLIERS: Mr. President, with reference to your observations
immediately before the adjournment, 1hasten at this ht opportunityto assure
the Court, and oarticularly Judae Morozov. that 1 intended no reflection or
discouricsy in whai i s~id.1mer.& had in mind thst 1rias rcfcrring to a propn-
sition of faci. u,hich u,ss to a considerüble extcni a maiter of public knouledgc.
and that 1was statina to the Court that 1was not absolutelv sure of the correct-
ness of one aspect ofthe proposition 1was making. 1had 'Lnmind, further that
Members of the Court, and in particular Judge Morozov, may. as a result of
their knowledae and exoerience. have areater knowledee on the subiect than 1.
I ccrtainly didoot suggést,or intend to-supgesi, thai anj judge is to b, regürded
as rcprcseniing the government of his country. If my rcmürkj creîtcd any other
impression 1 hasten to assure the Court, and particularly Judge ~orozov, of
my sincere apologies.
The PRESIDENT: MI. de Villiers, your observations are noted. 1thank you
for making them. You could certainly have put your remarks in the form, if
YOU had so wished. that if 1 am not correct in this resoect 1s~eak subiect to
comction, uithuut reference IO any pariisular hlentbçr of the Court, because,
apdrt from the aspect thal 1duelt upon in my obscrvütion before the recess. on
any question. whether of fact or of law. a Member of the Court cannot be
sought to he converted into a witness, asit were. That also was the point. but
thank you for the observations that you have suhmitted.
Mr. de VILLIERS: MI. President, 1have dealt, 1hope adequately, with al1
the various lines of araument which have ben advanced bv. or on behalf of.
~~~ ~. . ~
various participants, Gith a view to establishing validity and binding effect foi
operative paragraph 4 of resolution 2145. Without necessarily reading out
each one verbatim, 1 think the substance of al1 those contentions has-been
answered.
My submission inconclusion isthat, in whatever way welook at if, the answer
remains tbat that decision cannot be valid or bindina. The contentions to the
contrary cannot be supported in law on any of the numerous and the varied
bases raised and considered, namely the meaning of the wording of that para-
praoh, its history in United Nations oroceedinas. the areument about succession
of power fromihe ieaguc of ~atio"s. action;akcn oathe hasir of violation of
obligütions hy thc Mandatory, funciiondl and telcological approachcs, the
jurispmdence of this Court. the comment of oublicists and~oractice and
Ürecedent.
So, Mr. President, for this reason alone, wesuhmit that the whole foundation
on which the actions in the United Nations concernina South West Africa have
been taken since 1966falls to the ground, and those actions afford no ground
for stating that South Africa's continued presence in South West Africa is
illegal.
MYsubmission is. with resDect. that an advisorv ooinion which States this
need-not he a basis for further.confrontation and strife. The task of the General
Assembly remains that of discussion and recommendation. The duty of the
South African Government remainsthat of eivin- serious consid~ - ~ ~~ ~ ~~ch
recommendations. The Security Council, as we, with submission, interpret its
actions in the matter, has consistently treated South West Africanaffairsunder
the heading of peaceful settlement. collaborating in the administration of any of the others. These tribal en-
tities live, in many instances, hundreds of miles apart; there is no intimacy
and little affection amona them: none. one susoects. would res~ond favor-
ably to the appearance iiits midst, aswould-be administrators, of officiais
of another tribal affiliation. The United Nations would, in other words,
haveto create a newadministration. lareelv foreien to takethe lace of the
South African one. It is easy to believethat suchan administration would
follow more liberal policies with respect to the status of the native than
does the existing one. It is not easy t6 believe that it would be as efficient,
or as well provided with funds; and it would almost certainly be years
before it couldexpect to restore to this vast territory even a semblance of
such good order and prosperity as it has now achieved.
One can understand the desire in UN circles to remove from South
African control at least this one area which was once, and can still be
construed to be,an international responsibility. But one wonders whether
thepractical consequences of such astep havebeen really thought through."
Mr. President. this is relevant even in this conclusion in regard to the leaal
argument whichis being presented to the Court, because thëlegal argument
has largely been concerned with these two approaches: the approach of accept-
ing what was obviously the intention of the authors of the Iwo systems, the
approach of dialogue and persuasion, on the one hand, and as against that, the
suggestion that come what may, and even though it is not there in the text, one
should somehow, either by implication in the text or in some way dehors the
text,come to a conclusion that there are powers of coercion which ought to be
used in some way against South Africa in these circumstances.
In our submission, the general requirement placed by the Charter on al1
United Nations activities is that they must further peace, friendly relations,
and co-operation between nations, and especially between member States.
South Africa. as a member State. is under a dutv to contribute towards those
ends; and she'desiresto do so, althouph she has no intention ofabdicating what
she regards as her responsibilities on the sub-continent of southern Africa.
If there are to be genuine effortsat achieving a peaceful solution, they will
have to satisfy certain criteria. They will have to respect the will of theelf-
determining peoples of South West Africa. They will have to take into account
the facts of geography, of economics, of budgetary requirements, of the ethnic
conditions and of the state of development.
If this Court, even in an opinion on legal questions, could indicate the road
towards a peaceful and constructive solution along these lines, then the Court
would have made a great contribution, in our respectful submission, !O the
cause of international peace and security and, more, to the cause of friendly
relations amongst not only the nations but amongst al1men.
That concludes our presentation in regard to the scheme of the argument on
the legal questions, as it was explained before to the Court by my learnedcol-
leaeue. MI. Viall. It remains for us to deal with various other matters. There
arc sumber of questions which have been put by Members of the Court with
which we should like to deal as soon as we are in a postition to do so, which
should not take us anv inordinate amount of time.
Then the prospect may arise of a reply on legal argument or other argument
still to be presented, particularly by the United States, and on answers to
auestions bv the Court bv other oarticioants. and on the reaction. which is still
& be forthioming, to ou; ~lebisiite priposai, not only from the United States,
but also from the Secretary-General himself. ORAL STATEMENT BV MR. DE VILLIERS 471
'1hen there is the vas1field in regard to issues of fdct and related que\tions of
liia. These issues. Mr Presidcni, he~rin p3rt upon the grounds on which the
General Assembly purported to sst in ndopting resolution 2145in 1966.Inother
\\ord\. they heiir particul.irly on the allegsd violation hy South Aïrtca. through
its policier and ~dniinistriiti~in. of its triist obligiltions ~nder the Mandate.
They are also relevant in another context, the context of the contention of the
Secretary-General about the legal consequences of the continued presence of
South Africa in South West Africa, of alleged continuing violations of inter-
national oblinations. and of international liabilities beinn incurred bv South
Africain thacrespect. The Court will recall that a considkble portion of the
written presentation of the Secretary-General is directed to contentions of
that nature.
The attitude of the South African Government and its representatives has
consistently ken, and it still is, that a factual enquiry is a basic and an integral
Dortion of the task which has been assianed to the Court bv reouest of the
~ecurity Council. unless. of roune, the Court should dispose nf the m3trer on
somc lep31question, the ansuer to uh~h makes ilunnecessary to ri)inro the
Pictual issues. WCarc in the positton, iitthr nioment, that the Cuurt ha\ indi-
catcd to us, and th21the proceedings have thus far proceedcd on thc hasis, that
thcre is the no separaiton 3s 11pilr~icularp~rts of the miirter 2nd other piiris
of it-in other words. ~reliminarv issues on the one hand and merits issues on
the other hand, or leg'aiissues on ihe onehand and factual issues on the other-
as far as the Court's procedure is concemed. That is how the matter has pro-
ceeded uo to this stare.
That ireares considerable practical dificulties at this particular stage in
connection with the canvassing, or even preparation for the canvassing, of the
issues of fact.1 say at the oresent stane. meaninr bv that until we know what
the Court's reaction is or-may be in-respect ofoir plebiscite proposal. The
difficultiesweexperience do not relate to ourselves only; they relate in paIticular
to the Court, to its convenience and also the convenience of other participants
in the proceedings.
The main reason why we say this, Mr. President, is that the Court's decision
on the olebiscite ~rooosal could have a fundamental bearinn both on thenature
and onthe ambii or-scope of the presentation on mixed f&t and law that may
be found necessary in respect of the field 1have just been referring to. If the
Court were to acceDtthe oro~osal. the outcome of the olebiscite mav well he a
very important feahre of thiipresentation; and many & the factual allegations,
as well as the need for controverting tbem-for instance the allegations of
denial of self-determination, the allegations of oppression and repression,
and so forth-could either fall away or be very substantially reduced in
scope.
1 sar thev "could": I mav be able to out it hiaher. 1 do not think 1have to
for purposis of what I am siating to the court at fhe moment. Any presentation
additional to that concerning the result of the plebiscite, may well be of an
explanatory or a supplementary nature only, and that, of course, would neces-
sarily have to be made after completion of the pebiscite.
On the other hand, Mr. President, if the plebiscite proposal were refused,
then naturally we would wish to canvass the issues of fact in a much more
detailed manner by means of argument, or evidence, or hoth. The ambit of
such an enquiry would be a vast one, as 1propose ta show shortly. And there
is the further com~lication that if the Court were to sav to us that the Court
declines to give an; ruling on this aspect prior to the co"clusion of our case on
the facts,then we would have no option but to proceed in the meantime on the472 NAMIBlA (SOUTH WEST AFRICA)
basis as if the proposal were refused. In other words, we would have to make
the more extensive presentation to the Court because we could not take it for
erauted that the need for that would fall awav. That is the reason whv we
considered it fair and proper to raise this matter pertinently at this sta& for
the consideration of the Court as a whole.
We oointed out in our letter of 14Januarv 1971 ' what a vast and undefi~ ~ - ~ ~
field i;covered by the allegations in this regard in the written statements.
As regards the element of lack of definition, it arises, 1 suppose, in part.
necessarily from the fact that these are, in form at least, advis& proceedings
and not contentious ones-there are no rules which require participants to
state particularly what their submissions of fact and of law are, nor are there
formal parties to the proceedings. So the situation arises from the fact that we
have a decision of the General Assembly which purports to be founded on
violations by South Africa of its trust obligations to the inhabitants of South
WestAfrica. put broadlv and roundlv as a ~rooosition likethat. without soeci-
..
fication of the rçspcits;n uhich thoie i9iolatio& arc .illeged IO h~vî occu;reil.
1üm talhing purely about the resolutiun ;ilthe momçni.
On thdi bah. trkinr: ii2.rr round and 2 hro~d oroiii)sitton tlini South Afriid
has not promoted tothe utmost the material aid moral well-being and the
social progress of the inhabitants, South Africa has dealt with the matter in
its factual oresentation in its written statement. But South Africa could not.
at that stage, partly for reasons of time and partly because of this aspect of the
undefined nature of the issues, deal with specific allegations of fact.
If one refers to the United Nations records orecedine General Assemblv
resolution 2145,one finds a vast field of assertions, quacfications, contradic-
tions, inconsistencies and so forth, in this area. One finds a particular allegation
beinz-verv..o~.lar at a oarticular staee and then disaooearine from the records
and minutes of the unith Nations p&ceedings for &;te a wiile, only to come
up again at a later stage. Sornetimesa particular allegation isspecificallyrefuted
by a presentation of fact which appears to be accepted by all, and then it comes
up again at some later stage.
1could give the Court many examples. One that comes to mind is the allega-
tion. which was a verv oooular one at the United Nations about the vears
1961-1962or 1hereîbu;t'th~t South Africa uîs çmhltrked on II courw ;f dc-
Iiherare genocide of the indigenuus populdtion of South Wçrt Africa. This \rus
coupled with allegations made at that time about a complete absence ofhos-
pitals, medical facilities, and so forth.
Then one finds that that disappears, or becomes subdued: save for a very
few exceotions here and there. it disaooears for some vears. One even finds
that thc United Nltiiom in ihese very \anic docuniéntspuhliihcr stütistics and
c<irrcsirtdtisiics obtained frim South African so~rces-aboui the é~ccllcnccof
standards in the hosoitdlizntion and medlcal fields in South West Aïricd. [il-
dicÿting hu\v incumparûhly betier ihey are thîn one iindj in virtiirlly an) uthcr
part of the continent of Afrizn.
In direct contradiction to the earlier alleeations one finds acceotance of
populaiton ligures shoiiing growth in popuiation which makcs an' absoluie
farce of the rlleg~ttons of grnoclde. And thsn ruddenly itcornes up dgüin ome-
where. Do we seriously have to meet in this Court an allegation of genocide?
That 1mention merely as one example.
Another one which was very popular at that time was one concerning mili-
' SeeCorrespondence,No. 65, p. 659, infra.474 NAMIBIA (SOUTH WEST AFRICA)
referred to by the Secretary-General in footnote 116 of his written statement
(written statement, 1,p. 961,which is the documentation relied upon by him in
rnaking allegations of fact in paragraphs 58, 63 and 78 of his written statement
and, apparently, also in paragraph 80. Then he further relies upon that
documentation explicitly in paragraph 103,in his footnote 165and, apparently,
also in paragraph 109. I do not want to dwell on what the Secretary-General
says in his statement, but the area, if it is referred to, will be seen to be an
enormous one.
If one refers to that documentation-if one were to put it al1 together, one
would find a vile of documents as hinh as this table next to me.
Then one &ds in looking al them the elements of contradiction and incon-
sistency to wbich 1have referred. One finds further that those are not, by any
means, al1the documents to which one would have to refer. because thev. in
turn, refer to other documents not specifically mentioned by the ~ecreiary-
General. A committee report, or a statement in a debate, may be based upon
another cornmittee's reoort which he does not soecificallv mention-for
example, a sub-committee's report or other documen~ation which extends way
beyond that which is directly referred to. Likewise, one finds much the same
thing in the documentation which is referred to by the United States Govern-
ment in its written statement (written statement1, pp. 843-888).
Just to give the Court one illustration of the problem, the Uriited States
written statement at page 866 quotes from a study by the International
Commission of Jurists and that quotation contains the following:
"Africdn, [thai 1%nun inSoi.iIi Weil AiricaJO no1po<scssci'cnthcniusi
rudiiiientary politiciil p<iaer, and hsnoc pdrtisipdti~iai il1in thciiixking
of the laws which aovern their lives comoletelv. and which carrv riaid
sanctions. All independent attempts at pol;tical~~rganization are forcib~y
suppressed, as are those involving trade union activities. No intention to
change this situation has ever been manifested by the South African
Government."
Now, Mr. President, from the South African point of view, these statements
are not only slanted and warped, they are in most instances downright false and
untrue. In order to meet them in an adequate presentation to this Court, let us
see what would beinvolved-how one would like to do this (hy way of illustra-
tiononlv). One would first have to examine al1the laws concernine the oolitical
stnictur~of south est Africa and the way in which they are applied. ~hen, one
would have to have a factual account about political organization in South
West Africa, because it does exist notwithstanding what the statement says. It
exists to a considerable extent and an account would have to be given about
political parties and their activities.
In reaard to the trade union auestion. one would have to eo into the rclevant
circums?ances pertaining to soith est Africa and coinpare the way in which
theprohlem is accommodated there with the way in which it is accommodated
in certain other African countries. One would have first to demonstrate what
the peculiar problem is, for there is one. And then one would have to mdke
comparisons with conditions in other Africancountriesconcerning theeffective
en. .ment of oolitical riehts eenerallv.
Seeing that'these statimen'is emanate from the International Commission of
Jurists, there is a rather extensive field which could profitably be canvassed
about the motives of this bodv and the ourooses of this oarticular study vis-&-vis
South Africa, as well as the itanding khiih it enjoys and its relationship with ORAL STATEMENI BY MR. DE VILLIERS 475
certain other countries and the reaction of those countries to similar investiga-
tions by thisCommission.
MI. President, let us take another example at page 867 of the United States
written statement:
"The General Assembly in resolution 2439 (XXICI) endorsed the
recommendations of the Special Rapporteur that South Africa he required
to repeal, aniend or replace laws cited in paragraph 1547 of the Report
(E/CN,4/949/Add. 4)." (Written statement, 1,p. 867.)
If one refers to that report and analyses what it is, the outcome of it would
appear to be that sonie 80different laws of South Africa and South West Africa
are brought into issue. Their merits and their demerits would have to be con-
sidered and debated, if one wants Io do this thoroughly.
So that eives an indication of the tvoe..f field one would have to eo into-if
this ir tobe Jonc indct.~iI.And it undcru.orcr Oursubmi\sion to ihe Couri ihat
ii niay he of vital iniportance tu ionsidcr ai [hi\ stage wh~t the rcacti\in of the
Court is. or oueht 10 be. in reeard to the olebiscite .roo.sal and that the Court
msy posjihly b;. ablc iaigive 17san indic;iiion one way or the other, even ifII 1s
provisionlilly ihat iti\preparcd 1ido soiiicthini:ahout itor isnot prcparcd IO do
something about il, before we take the next step in regard to bur factual
presentation.
We realire that the Court would probahly not wish to decide on the plebiscite
.roo.sal before havine heard the reactions of the reoresentatives of the Secre-
tary-General and of the United States in that regard.-0ur respectful suggestion
is that these representatives could he heard next and that, after an opportunity
has been eivenfor us to reDlv.if necessarv. to whaf thev have said inreeard to
thcplebisciic proposal.thcC;);rt firstgii9r.~.t\deîisionin;cgdrJ t<ithii proposal.
1.h31tr,ould put LS in a posiiion ti~ioriniil~te our cunientiuns conccrning the
manner in which the factual issues are to be approached in a way which, we
hope, may be of some assistance to the Court.
We considered it appropriate to make this proposal to the Court at this
staee immediatelv after the conclusion of Our leeal areument and before the
ad&umment for the weekend, therehy giving trie court an opportunity Io
reflectupon the matter and Io notiiy us in due course.
TheCoivr rose or 12.43p.»z. EIGHTEENTH PUBLIC SITTING (8 1i171, 3 p.m.)
Presenr: [Seesitring of 8II 7.]
ORAL STATEMENT BY MR. VICKERS
REPRESENTATIVE OF THE SECRETARY-GENERAL OF THE UNITED NATIONS
The PRESIDENT: 1 cal1 uoon the distinzuished reoresentative of the
Secrev~ry-Generslof the United Nations IO reid&i hi5ansiers 10 thequesiions
put and lu rnake any coninienis he u,ishes.
Mr. VICKERS: Mr. President and honourable Members of the Court,
1.When Mr. Constantin A. Stavropoulos, the representative of the Secretary-
General of the United Nations, appeared before this Court on 8 February 1971,
he undertook at the conclusion of his staternent to convey to the Court in due
course the Secretary-General's replies to certain important questions put by
two Members of the Court. He also rnentioned that the Secretary-General
might wish ta present some observations on points raised in the letter of
6 Februarv 1971' to the Reeistrar of the Court from the Agent of the South
African ~;n'emrnent, in u,hich a propoaal for a plebiscite ua; niade.
2. Mr. St3vropouIos ha hsked nie 10 e.\prrss his deepesi regretiithe Court
ihat his oihcr responsibilities have precluded hini frorn returiiing io The Hague
31 this stage personally 10prcseni the replies and observations jus1 nicniionrd.
In his absence, 1ha\c the privilege ofconveying ihe Sccretav-General's replies
to the auestions oosed firsi bv the Honourable ~udeeGros and subseauentlv bv
the ~onourîble judge sir Girald Fit~.maurice,as uîll as the ~ecretar~.-'~enc;al'<
observaii~ns on ihe South Africîn prooosal for a plehisctte niade in the leitcr
of 6 February 1971
QuesrionsPosedby JudgeGros
(a) Firsr quesfion
3.Judge Gros put sixquestions to the representative of the Secretary-General.
The first question was as follows:
"In its two written staternents filedwith the Court on 7and 24 Decernber
1970, the Secretariat advances an interpretation of the Charter with
regard ta the powers of the General Assernbly and the Security Council.
1s this intervretation ils own. or does it. accordine to the Secretariat.
represent the Genera~~ssembl~;s interpreta~ion of itsown powers and the
Security Council's interpretation of its powers? If the latter, can the
Secretariat indicate when and how this interpretation was adopted by
these organs of the United Nations?
If the former is the case, what is the legal basis of the Secretariat's
competence to interpret the Charter? See in this connection the document
annexed to a letter of 26July 1968from the Secretary-General."
-
'See Correspondence, No. 92, p.673, Ntfra. ORAL STATEMEN BY MR. VICKERS 477
4. Mr. President, in response ta this question, il is of course correct that in
the two written statements submitted by the Secretary-General, as wellas in the
oral statement made on his behalf on 8 February 1971, certain views were
expressed concerningthe effectof resolutions adopted by the General Assernbty
and by the Security Council. These views were based on the respective General
Assembly and Security Council decisions themselves. By the very act of
adopting the resolutions concerned, the two organs have indicated that they
were of the opinion that they had the necessary powers so to do. It has rarely
been the practice of either the General Assembly or the Security Council to
inake exoress inter~retations of their oowers. but their views mav be discerned
from théwording and content of the resolutions adopted in particular cases.
The interpretation set out in the Secretary-General's statements therefore
reoresents what in his o~inion is the understandina -f the General Assemblv
and of the Security Council canserninl: ihcir pou,crs. as well as his iiwn vieus.
5. Examplesof~nitancesconvcyingborhthevie\isofthcprincipit1deli~r~tive
organs concerned and of the Secretaw-General. are the observations made in
ihéoral siaienient on such questions ris the cnèct of voluntary ithitcniions by
permanent nicmkrs of the Security Council in decisions on non-proccdural
matters; the numerous precedents of the General Assembly or ils subsidiary
organs taking executive action; and the powers of the Security Council under
the Charter and, more particularly, under Article 24 thereof.
6. To elaborate briefly in the present context on the las! of these examples
regarding the pnwers of the Security Council, the Secretary-General would
first recall those portions of his oral statement which dealt with the question of
the Free Territorv of Trieste (su.ra....45-47). When this case was before the
Security ~ouncilin 1947,the ~ecretary-~eneral. on his own initiative, gave his
interpretation of the powers of the Security Council under Article 24 of the
Charter. Statements o~fmembers of the ~o;ncil indicated that most members
of the Council held a similar view of the Security Council's powers, and the
decision of the Council, taken by ten votes to none with one abstention, to
acceot the resnonsibilities devolvine uoon it under annex~s ~f the draft Peace
Trciity iiiih Italy. liiiio~ntICIa t3cit aisepiancc of ihi5 inierprctittion.
7.So Par a% ihc Se~reiary-Gcncrsl'\ coinpetencc to inierpret the Charter is
concerned. reference should also be made ti the statement on interoretation of
the charter included in the report of Committee IV12 of the ai Francisco
Conference, in which it was indicated that each organ of the Organization in the
course of dav-ta-dav ooerations would interoretSuch oarts of the Charter as
are applicabk to its~ariicular functions (UNCIO docs.;~ol. Xïiï, p. 709). The
Secrctariat, being a principal organ with the Secretary-General as its head, is
covered bv this statement on interoretation. In accordance with this statement.
il is of course primarily for the ~ecurit~ Council and the General ~ssembly;
respectively, to interpret their own powers. The Secretary-General, however,
himself offcrs inter~retations of the~Dowersof these oreans when il becomes
necessary to do so in the dirîhargç oi his oivn funciions gther as Chief Admin-
istrati\c Oficer of the Orgiiniwtion. or as Secrctliry-General of rhc Security
Council and of the General ~ssembly. Furthermore healso offersinterpretations
for the assistance of the organ concerned, either on his own initiative or at the
request of that organ.
8. Thenote verbale dated 26July 1968from the Secretary-General addressed
Io the Permanent Representative of the USSR, to which Judge Gros has
referred,and which appears in document A/7146, is an example of an interpre-
tation given by the Secretary-General in the discharge of his functions as the
Sccretary-General of the General Assembly. The opinion given by the Secre-478 NAMIBIA (SOUTH WEST AFRICA)
taw-General in the Trieste case. to which reference was made a moment aeo. u.
is one volunteered for the assistance of an organ. Examples of opinions given
hy the Secretary-General at the request of an oraan, which contained inter-
pietations of the Charter, were theopinion given ta the Second Committee
of the General Assembly at its Twenty-Third Session in December 1968 in
document A/C.2/L.1030, on South Africa's right ta membership in the United
Nations Conference on Trade and Development, and also the opinion given ta
the General Assembly at its Twenty-fifth Session, in document A/8160, on the
credentials of South Africa. In his presentations to the Court in the present
proceedings, the Secretary-General does not primarily interpret the Charter
provisions relating to his own functions, but makes availahle to the Court
materialsemanating from principal organs of theUnited Nations other than the
Secretariat and attempts to assist the Court in its evaluation of these materials.
In this connection, the Secretariat has submitted its views on the various
resolutions in the light of Article 65, paragraph 2, of the Statute of the Court,
and in the spirit of Article 98 of the Charter under which the Secretary-General
shall perform such functions as are entrusted to him hy the General Assembly
or by one of the Councils.
(b) Second quesrion
9. The second question put by Judge Gros was as follows:
"In the exercise of this capacity to interpret the relevant provisions of
the Charter, how does the Secretariat reconcile the interoretation which it
appears to uphold with what was said by the Court in its Opinion on
Reparation for Injuries Suffered (I.C.J. Reporrs1949, p. 179): 'Still less is it
the same thing as saying that it [the Organization] is "a super-State",
whatever that expression may mean'?"
10. At the outset, the Secretam-General wishes to confirm that he fully
agrees with the statement in the Advisory Opinion just mentioned that the
United Nations is not a "super-State". He does not consider, however, that
this statement is in anv wav inconsistent with the oractice of the General
Assembly and the ~ecuiity Eounci~ in the present case. Nor is it inconsistent
with the interpretation which the Secretary-General has put fonvard in this
renard. The fact that the Ornansof the United Nations can take decisions under
the Charter which are binding on States, or othenvise have dispositive effect,
does not make the Organization a "super-State". It is heyond dispute, for
examnle. that the Securitv Council can take hindinz decisions under Chanter
VI1of the Charter. This <as been expressly recognizei by this Court in the case
concerning Certain Expenses of the UniredNarions where the Court said:
"To this end, it is the Security Council which is aiven a oower to imoose
an explicit obligation of compliance if for example it isiues an order or
command ta an aggressor under Chapter VII" (I.C.J. Reports1962, p. 151
at p. 163).
The Court mus1therefore have concluded that such a power did not conflict
with its ooinion that the Orzanization was not a "suoer-State".
Ir1sfiirthcrniure bçyi)nddispute, froni the tiording .~fArticle 2. p<ir&gr.i7,
of ihe Charter, thiitei'enthc principlc of non-iniervciiiion in niaiters e\seniiaIl)
within the domestic iurisdiction of a State does not oreiudice the anolication
of enforcement action. If the fact that the Security C'ouicil can take'coercive
action even affecting the domestic jurisdiction of a State does not make the ORAL STATEMEN BVT MR. VICKERS 479
Organization a "super-StateW-even less would the fact that the Organization
takes action reaardinn a territow havina an international status make it a
"super-State". the iresent case;none of the decisions of the General Assem-
bly and of the Security Council which are now under consideration by the
Court seek to intewene in matters which are essentiallv within the domestic
j~risd.;tion of any Statc. Nxniibid ir not, and iiei,er has bcen, under the .mer-
eigniy ofSouth Afric~. It ijin faci a ierritory haiing sn iniernationdl status.
II. The Secrctar,-Gcncrdl belicics thal his noorolich to Charter internreta-
tion, expounded in his statements to the ~oukt-in the prescnt case, follows
closely the practice of the General Assembly and the Security Council, as well
as the iuris~rudence of this Court. That aooroach is based uoon the exoress
. . . .
tcxt of the Charter and upain the pciwersarising by necessaryimpliçatii~n thcre-
from. In the sanie cse in \\hich the Court noted that the United N:itions \VJS
not a "super-Stare" it also enunciated the principle that:
"Under international law, the Organization mus1 be deemed to have
those powers which, though not expressly provided in the Charter, are
conferred upon it by necessaryimplication as being essential ta the per-
formance of its duties." (I.C.J.Reports 1949, p. 182.)
12. 1 corne now to the third question, which was as follows:
"If this statement of the Court's views is no longer considered to be
correct by the Secretariat [namely that the Organization is not a 'super-
State'l. what are the leeal u~o~nds for the ooi.ion which it now holds of
thcexÏcni of thc poisers of the Gcncral Asscmbly and the Sccuriiy Coukil?
What then. in the light of this ncu approach. is the eifect of the rcberva-
tions made bv manv~~tates in reswct of General Assemblv resolution
2145; for eran.~ple,ihe rescrvations made by the United ~ingd;ini, France,
the USSI<(on a particular point in the rcsolution). and Canada, iiicntioncd
in ~ardrranhj 120.233. 30 and 50of the Secrciarv-tienerdl's i\ritten riate-
m'nt or24 ~ecekber 1970?What is, in particul& for al1the States which
expressly reserved their position, the effect of this resolution; does it,
despite those reservations, have binding force for them, and on what
grounds?"
13. As indicated in the reply just given to the second question, the Secretary-
General does not disagree with the statement of the Court in the Repararion
case that the United Nations is not a "super-State".
14. As regards the legal grounds for the Secretary-Ceneral's review of the
powers of the General Assembly and the Security Council, which he believes
is consistent with the views of the Court not only in the Repararion case but
in the other casesin which it has interpreted the Charter, he would recall that
these were set out in those parts of his oral statement dealing with the scope
of those powers (sripra, pp. 44-49).
15. The Secretary-General doesnot believe that the statements of representa-
tii9es-\\hich hdvc hecn rcfcrred IO as "rejcr\ations"-atTect thc oblisartoni
arising frum General Ascmbly re,olution 2145(XXI) and suhwqiient Sc~uriiy
Coiincil rerol~tions. In the lirst r>l.ice.the "rcrerviitions" thcmxlve% for the
most part were not directed at thebasicfindings of fact and of law in resolution
2145 (XXI) and were essentially in the nature of explanations of vote.or of the
position of the delegations involved. 16. So far as two of the States mentioned were concerned, namely Canada
and the USSR. thev both voted for the resolution and made clear their amee-
nient that thet an dat e as term~nated They cannot thereTorehave considered
that the obsrrv~tions uhich they advanced affectcd the fundamental pr<iifisions.
or the validity, of the resolution.
17. The United Kingdom, while abstaining in the vote, agreed that South
Africa had violated its obligations and forfeited the right ta administer the
Mandate. It further agreed that the General Assembly should state that the
rights of South Africa under the Mandate had terminated. Commenting on
the last paragraph of the preamble by which the General Assembly affirmed
"its right to take appropriate action in the matter, including the right to revert
to itself the administration of the Mandated Territory", the representative of
the United Kingdom considered it unwise, at least at that stage, to reach the
conclusion that the United Nations should reven to itself the administration
of the Territory. (Review of Proceedings, paragraph 71, dossier item 146,
1454th meeting, para. 72.) He also believed (that is the United Kingdom
representative) that the terms of reference of the AdHoc Committee set up to
consider the implementation of resolution 2145 (XXI) should not havc heen
as restricted as they were. Again, these observations, to the extent that they
exoressed disaereement with the General Assemblv's action. did not affect the
fundamenial provisions, or the validity. or the rrsolutioii.
18. The representativc of France. uhile nlso nbstaining in the vote, cïpre$sly
stated. durinn his exolanation of vote. the anreement of his Government with
paragiaphs ?:3 and 7 of the resolution. He [herefore concurred in the conclu-
sion of thcGenerlt1 Assemblyihni South Africi hîd fniledIo fuliilirsoblin.itions
with respect to the administration of the mandated territory and to ensÜre the
moral and material well-being and security of the indigenous inhabitants of
South West Africa, and had, in fact, disavowed the Mandate. It may be noted
that, during discussion of the same item at a previous meeting, the representa-
tive of France had stated that if, as South Africa claimed, the Mandate had
ceased to exist, South Africa would be deprived of al1 legal foundation for
exercising its authority, for it would have no justification for keeping its rights
arising out of the Mandate while at the same time repudiating obligations de-
riving from the same source.
19. On the other hand. the reoresentative of France stated in the General
Assenibly, ai the iinie ihnircsolui~on 21(XXI) \ras adoptcd. thdt the question
as tu uh~ch United Nations hod~esu,ould havc cornpetence to effsct the rcvoca-
lion of the Mandütc had not kn suflicientlv considcred. His delccation did
noi see the justification for the United ~ations itsclf assurning the administra-
tion of the Territory Although the French delegaiion had stated thïtitdid no1
exclude the withdrawal of the Mandate, it could not agree with the manner in
which the withdrawal had been decided. It also recalled its disagreement with
General Assembly resolution 1514 (XV) and considered that the very special
case of South West Africa had nothinn to be gained from king linked with
this text. Speaking subsequently in theSecurity-Council, at its l&klth meeting
on 20 March 1969, the representative of France was doubtful whether the
Leaaue of Nations could have unilaterallv deorived South Africa of its Mandate
ove;~outh West Africa. (Dossier documeni31 at p. 51.)
20. From the point of view of content, it will be seen that the remarks char-
acterized as "reservations", with the possible exception of those of the repre-
sentative of France, were not directed at the most basic points in resolution
2145 (XXI). namely (1) that South Africa had violated its obligations and
disavowed the Mandate, and (2) that the Mandate was therefore terminated. ORAL STATEME~T BY MR. VICKERS 481
They could not, therefore, be considered as even intending ta limit the erect
of the resolution on these basic points. So far as the first point is concerned,
it is~~.u~~~,~cle~r that it was full; acceoted bv France. On ihe second ooint-
the-temination of the ~andat-whiie certain doubts were expressed there
was no clearly formulated reservation by France at the time of the adoption
of the resolution.
21. Leaving aside the question of content, however, it is the Secretary-
General's viewthat the statements which have been referred toas "reservations"
have no bearing on the legal effect of resolution 2145 (XXI), for the following
reasons. The term "reservation" has legal meaning when it relates ta the ac-
ceptance by a party of new legal obligations, as in the case of a treaty. The form
and conte-~~of the~-~reservatio~s-are carefullv circumscribed. In the Secretarv-
Generiil's submission. houever, the icm "rcscrvaiion" is ni11relcvanr ro a
resoluiion the ckt of which was to cstablish a neu fdciual and legal situation
from which certain obligations flow automatically, as a matter bath of law and
of logic.
22. The termination of the Mandate by the General Assembly is a fact, in
the same way as, for example, the cession of a territory by tat te^ta tat tBe
is a fact which may affect, and therefore may have legal consequences,for third
States. Such a territorial change may have an innocent characterand be entirely
legal so that,generally speaGng, no problem for third States will arise. ~he
cession may, on the other hand, be tainted by,illegality because it was brought
about as a consequence of the threat or use of force. The problem of how third
States should react to facts of this type is by no means a new one. It arase in
the time of the League of Nations in connection with what became known as
the "Stimson doctrine". On II March 1932,the Special Assembly of the League
of Nations adopted a resolution in which it declared that:
". .. it is incumbent upon the members of the League of Nations not to
recognize any situation, treaty or agreement which may be brought about
by means contrary to the Covenant of the League of Nations or ta the
Pact of Paris" (Oficial JorrrnolSpecial Supplement No. 101, p. 8; Docu-
ments 1932, p. 284).
Members of the League of Nations wereexpected not ta recognize any situation
brought about by means contrary to the Covenant of the League or ta the
Briand-Kellogg Pact. Similarly, Members of the United Nations are expected
to recognize that the Mandate for Namibia has come to an end, and not to
recognize the legality of the continued presence of South Africa in Namibia
after the Mandate has ken teminated.
(d) Fourrhquestion
23. To turn now ta the fourth question put by Judge Gros, this question
read as follows:
"Does the Secretariat consider that a State which made an express
reservation ta resolution 1514,cited as the basis for resolution 2145, and
which renewed its reservation during the debate on resolution 2145, is
bound by it despite thi$ double reservation? What is the Secretariat's
opinion with regard ta the Opinion of the Court of 28 May 1948 on
Conditionsof Admissionof o State 10 Membership;n the United Nations
(Article4 of the Charter):482 NAMfBlA (SOUTH WEST AFRICA)
'The political character of an organ cannot release it from the obser-
vance of the treaty provisions established by the Charter when they
constitute limitations on ils powers or criteria for its judgment."'
(I.C.J. Reports 1948, p. 64.)
24. The Secretary-General replies as follows. For the reasons stated in the
reply to the third question, the Secretdry-General believes that this "double
reservation", like the other "reservations", has no bearing on the legal etïect
of resolution 2145 (XXI) and on the obligations flowing therefrom.
25. It should be added that resolution 1514(XV) is onlv one of manv bases
for rr.,olution 2145 (XXII. The represcnt~tivc of ~iance, ilthe ?Ir1 ses;iun of
ihc Gcneril ,\s.einhly In rec.illing his dirligrecmciit niih rcrsluri<in 1514(X\'),
recoenized that Namibia was a verv soecial case.
26TIt might be of interest to recall ;kat when, at the Fifteenth Session of the
General Assembly, the draft of what became resolution 1514 (XV) was heing
considered bv the Assemblv. the reoresentative of France said that his delerd1
tion particukly welcomed several' of the paragraphs in the preamhle of yhe
draft Declaration and supported the right of every people to free determination.
He observed that certainof the passages in thedocument merely reiteraied
commitments which are contained in the Charter. He added, however, that
the draft contained certain contradictions and that he could not support it
in the form in which ifhad ken laid before the General Assembly. (CA, OR,
Fifteenth Sess., Part 1, Plenary.Meetings, Vol. 1, 945th Meeting, paras. 141
and 142, p. 1259.)
27. The French reservation to resolution 1514 (XV) cannot have related to
linyihing in il uhich ii rele\,ini Io ihc prssent proccedings. The Far-resching
statcments of the prcümhle to the I>eil.iratii>non the Griiniing of Indcpcndcncc
to Colonial Countries and Peo~les were. as alreadv stated. exoresslv endorsed
by thcreprcseiiiiiii,c~f~ran:e~t the ~ift~cntli~essi~~?nofthe~~ncrni~ssembly.
The princip~l opcritiie püragraph of thc Dccl3rution. paragraph ?, according
id \r,hi;hliIpeople\ ha\.e ihc rtght to self-detcrminstii~n and b) \,irrue of \,Iiich
the? frecly dstcrniinc ilicir politicdl silitus 2nd frerly purjiic their eccinomic,
socijl and suliurdl deicli~pnicnt. \%as idken \,erhliiiiii froni ihe texi uf the idçn-
tical Articles 1 of the Iwo draft International Covenants on Human Rishts.
At the Twenty-first Session-the same session at which the Mandate for south
West Africa was declared terminated-the General Assembly adopted the Iwo
Human Riehts Covenants. includina theself-determination articles. unanimous-
ly. wiih ltlyand lu6 \oics'rcspçcliv~ly. France voiing for hoih drliii Co\cnlints.
(GA resoluiion 2200(XXI). 1496th Mccting of the General A\>cmbly, 16 Dei.
28,'with regard to the final portion of the present question, the Court in its
Advisory Opinion of 28 May 1948 on Conditioirsof Admissionof a SIale Io
~emher~hi~iii the UnitedNatioiis. was interorefina a orovision of the Charter
(Article 4) bhich contains express Criteria laid down in'that Article as qualifica-
tions for admission of a State to membership in the United Nations. The
Secretary-General is not aware of any comparable limitations laid down in the
Charter which might be relevant to the General Assembly's or the Security
Council's action in the present case. On the contrary, the Secretary-General
believes that the General Assembly and the Security Council have applied
Charter criteria in reaching their decisions with respect to Namihia. ORAL STATEMENI BY MR. VICKERS
(e) Fqlh question
29. The fifth question of Judge Gros was to the following effect:
"ln paragraph 116of its first written statement the Secretariat, in a few
lines, considers that 'any relation purporting to be with or to involve
Namibia, which has been entered into or maintained through the Govern-
ment of South Africa or the illegal South African administration in
Namibia since the termination of the Mandate, is void and without legal
effect'.
What would be the legal basis for this opinion in respect of a State
which has, in the General Assembly and the Security Council, expressed
explicit doubts as to the legal significance of resolution 2145 with regard
to the ending of the Mandate?
Considering for example the remarks made by the representative of the
United States (S/PV. 1465of 20 March 1969,pp. 8-10, and S/PV. 1496of
1 1 August 1969, pp. 11-15)and the reservations made by the representa-
tive of France (S/PV. 1387 of 25January 1968,p. 116, and S/PV. 1464 of
20 March 1969. DD. 51 and 52). what can be the effect for those two States
of the doctrine -of absolute nullity expounded in paragraph 116 of the
Secretariat's written statement? On what rule of international law is the
doctrine of absolute nullity based?"
30. For the reasons previously stated, it is the Secretary-General's view that
the "reservations" mentioned have no bearing on the question. In this connec-
tion he would recall that the reservations of France have already been referred
to in the answer to the third question. The statements of the United States
representative, referred to in the present question, made it clear that his Govern-
ment had no doubts concernine the leeal effect of resolution 2145 (XXI) in
ierrninaiing the Mxndare Ilc e~phasiz~d ihsi Soiiih Afri:ï had no lcirl riglii
in Namibia, and lh3l at w.i$:in ~'iilcg~loccupying aiiihoriiy in viol.iiion of
the Charter. of Generül Asseniblv resoluiion 2145(XXI) ~nd the oiher rele\,ant
resolutionsof the United ~ations". He further itated that there should be
unswerving insistence on the application to Namibia of the standards of the
Charter concernina the rieht of indenendent territories to self-determination
and independence.-~e added that al1governments, moreover, are free to take
whatever action is permitted by their constitutional processes tu express their
coanizance of the illeaitimacv of the South African oresence in Namibia and
hence of the i1legalit;of al1actions and transaction; carried out in Namibia
under the authority, the laws and the regulations of South Africa. Although
expressing a preference for voluntary steps by member States, he in no wny
indicated reservations as to the effect of resolution 2145 (XXI) (S/PV. 1465
and S/PV. 1496).
31. It is clear, moreover, that irrespective of any doubts which may have
been expressed by certain States as to the procedure followed in the termination
of the Mandate, there was virtually unanimous agreement that South Africa
had forfeited her right to administer and be present in the Territory of Namibia
by reason of her violations of the obligations she was under in this respect. It
follows, therefore, that the illegality of the South African presence was, in any
event, established by reason of this forfeiture.
32. Turnine to other asoects of the nresent auestion. the Secretarv-General
had not considered that hewas enunLiating a~'d&trinéof "absoluié nullity".
In paragraph 146of his written statement, he pointed out that: 484 NAMLBIA (SOUTH WEST AFRICA)
"It will be the prerogative of the future Legislative Assemhly of Namibia
(elected by the inhahitants of the Territory on the basis of universal adult
suffrage) to decide whether, and to what extent, to recognize or validate
any act undertaken under void laws during the illegal South African
presence, or to grant retroactive validation to any such law having an
othenvise acceptable content."
33. On the other hand, the Secretary-Generil's contention uds based on the
fîcr that thcre prescntly exists no 1:iuful governnient within thc Territors of
Namibia. It seems axiomatic to him that a eov-rnment cannot take valid act~on~ ~ ~ ~~ ~
ina territory in u,hiih iths, no right. South Africli. fi>llo\rin8 the forfeiture oi
il\right 10 precencc in the Territors and the terminsiion of the Mandate. hlis
no rsht to be in Namibia as sovereign, mandatory, administrator or occubier.
In the Secretary-General's submission, there is no basis on which it can take
valid action in any of these capacities.
(f) Sixth question
34. The sixth and final question posed by Judge Gros reads as follows:
"In a general way, is the Secretariat in disagreement with the first
paragraph on page 157 of the Court's Opinion of 20 July 1962on Certain
Expensesof the United Nations(Article 17, paragraph2, of the Charter),
and in particular with the following passage:
'The Court must have full liberty to consider al1relevant data available
to it in forming an opinion on a question posed ta it for an advisory
opinion'?"
35. As was indicated at the outset of the oral statement delivered on behalf~ ~
of the Secretary-Gcneral on 8 Fcbruag 1971 (rapru, p. 31).the Secretar).-Cienc-
rai is not in disaarecnieni nith the ~:iss:i~cauoted ironi the Court's Oninion in
the case concemine Cerrain~x~ensisof& Ünited~ations. Havine ~-ai DaX~aee
in mind, the representative of the ~ecretary-General dealt in his oral statement
with certain questions and fact which, viewed strictly, he considered mieh. go -
beyond the siope of the question which the ~ecurit;Council intended to put
to the Court.
36. The Secretary-General felt that it was his dutv. in his written statement,
ta inform the couri of the scope of the question on which the Security Council
wished clarification. It is clear that the Security Council, as well as the over-
whelming maiority of member States. have no doubts concerning the validitv of
the rcle\.int Geneiai As\emhly and SectirityCouncil dccisions iik thercfairc.did
no1fcclthe need ofs1;irifiçation on this aspect. Since, hoiiei'cr. the isue h3s ken
raised. it must be recomized that it is foÏ the Court to decide to what extent it
may wish to examinethe relevance of these points ta the question actually
hefore it.
QuesfionsPosedby JudgeSir GeraldFifrmaurice
1corne now, Mr. President, to the questions put by Judge Sir Gerald Fitz-
maurice, of which there were four.
(a) First question
37. Judge Sir Gerald Fitzmaurice posed four questions to the representative
of the Secretary-General at the Court sitting held on 9 February 1971.The first
of these questions was as follows: ORAL STATEMENT BY MR. VICKERS 485
"What actual limits does the Secretary-General place on the powers of
the General Assembly and the Security Council of the United Nations,
respectively?"
The Secretary-General understands this question ta elicit his viewsconcerning
limits of the powers of the General Assembly and the Security Council as they
might relate to the present case. He would no1 wish, however, to take it upon
himself ta descrik the ultimate limits of the powers of the General Assembly
and the Security Council otherwise than in the terms of the Charter itself, by
which these principal organs were established and their functions and powers
defined.
38. As was indicated in the oral statement of the Secretary-General (supra
o. 44). the Charter-like other constitutionsdoes not set out soecific and
detailed provisions dealing with each and eiery type of contingency'mhich may
arise. It i\also subject Io coniinuing inierprelaiion Thît the powers of the
Oraanization and of ils orincioal oraans are no1 limited 10 those exoresslv
de&ribed in particular a;ticlesmofthe-Charter, is borne out not only by the
practice of the United Nations but also, in the Secretary-General's submission,
by the pronouncements of this Court.
As already noted in the reply to the second question put by Judge Gros, the
Court, in the Repararion case, stated that:
"Under international law, the Organization mus1 be deemed 10 have
those powen which, though not expressly provided in the Charter, are
conferred upon il by necessary implication as being essential ta the per-
formance of ils dulies." (I.C.J. Reports 1947, p. 182.)
In the Effec of Awards of Compensarion case the Court found "that the
nower 10establish a tribunal. .. was essential to ensure the efficient workina
;f the Sccrctariat. . Capacity IO do this arises by neccssary intendment oui 07
the Charter" (I.C.J.Reporls 1954.p. 57).Thesc pronouncernents related to Iwo
comol.telv.diiferent situations andare cited no1for a oarticular relevance10 the
present case, but for the general proposition that the iowers of the Organization
and ils organs must be considered in the light of the Charter as a whole. They
mus1also be~ ~~~~~-red in the li-ht ~f th~.~irticular circumstances o~~achcase.
Specificand express bdsesfor the powersenercised bythe Gcneral Asseniblyand
ihc Security Council in the present cliw have alreïdy ken elaborated in the
written andoral staternents submitted on behalf of the Secretarv-General
39. 'Ihe Secrctary-General ohviously does no1espouse 3 doctrine of unlirnii-
ed pouers such as thore attributed to hini by South Afriçd in its orûl siatcniçni.
and he must therefore olace on record thai he has manifestlv been misunder-
stood by South Africa jn this context. The ~ecretar~-Generaimerel~ made the
point that in the interpretation of the Charter, one should no1 go to extremes
either in attributina oowers or limitations. Likewise. one should not ao 10
extremes in postulatiig theoretical examples of what kight happen if a parti-
cular power existed, or a particular limitation did not exist. Thisholds true both
for national constitutions-where the conceot of the absolute sovereimtv of a
legislaiure may çhist-and for the constiiucni inrirunientsofintcr-governnientïl
organi?ations. Alihough asserting ihai ihey havecarefully exaniined the Sccre-
tarv-General'scont "in theornsntext". theillustrations aiven in theSouth
~fhcan oral staternent are in fact widely iemoved from t<e context of the
Secretary-General's statement, and bear no relation to the examples of the
types of action to which the Secretary-General referred, and which appear on
pages 50-51 and 52, supra. 486 NAMIBlA (SOUTH WEST AFRICA)
40. The limits of the powers of the General Assembly and of the Security
Coucil, like the powers themselves, are those provided in the Charter, either
expressly or by necessary implications, and must also beconsidered in the light
of the circumstances in each case. First and foremost of these limitations is the
requirement that organs in discharging their duties must act in accordance with
the Purposes and Principles of the United Nations as set forth in Chapter 1of
the Charter. This is expressly provided with respect to the Security Council in
Article 24, paragraph 2, of the Charter, and applies hy necessary implication
ta al1other organs of the United Nations, including the General Assembly.
41. With respect to the General Assembly, its powers are normally of a
recommendatory character. This is hy no means, however, an ahsolute limi-
tation. As this Court stated in the Certain Expenses case:
"Thus while it is the Security Council which, exclusively, may order
coercive action, the functions and powers conferred hy the Charter on the
General Assemblv are not conhed to discussion.,~~ns~ ~ ~t~~~-~.h~~-n~--~
tiation of studies and the making of recommendations; they are not merely
hortatory. Article 18 deals with 'decisions' of the General Assembly 'on
important questions'. These 'decisions' do indeed include certain rëcom-
mendations, but others have dispositive force and effect." (I.C.J. Reports
1962, p. 163.)
42. Turntngiocert~in specilicIiiiiiixiti>nssetout 111theCharteron the poaerb
ul'rhe Gçnîral Aisenibls .ind ihç Securit? Council. ihcSc~reiar~-Gencral uould
refer by way of example to paragraph 7-of Article 2, the last sintence of para-
graph 2 of Article 11, and paragraphs 1 and 2 of Article 24, and would briefly
examine each of these urovisions in relation to the auestion before the Court.
43. Paragraph 7 ol'i\rticlç 2 pruvirle.,ih~i nitihing cunriincd in ihc Chürier
slidll a~ihorile rhc Lniied N.iiions IO intcrvenc in inaticri uhich ürc c~~cnriülly
wiihin ihc doiiic~iicjur.sdi:iion of ;in) Siaie, hut ihnt [hi\ prinuiple \hall nui
prcjuJicc the ;ippliu.iiien ut'cnforienieni iiieiisurci under Chapter \'II. A\ the
Seirciiirs-Gener~l has alrcdy pi~intcdoit1 in hi8 reply 15 ihe second question
piil to hiin hy Judpe (;ru\. nunc of ihcdc: siunsuf ihe C;encr.ilAsienibly and oi
the Seciirit) Council rclat~rigtu Nlimiblii have intcrvcncd in niiiicri \ihich .ire
essenriaIl!. iriiliin the d,iniesiic ~iiriidisiioii oi an) State. l'corthe iiiiiple reason
that Namibia is not andhas never been under the sovereientv of south Africa.
-.
and is in fact a territory having an international status.
44. It might he added that while a situation, dispute, threat or breach of the
peace ishardly conceivable in which the Securitv ~ouncil would be in a oosition
1s ~~1u1 pon n \uvercign Si;iie tu ri.iihJr~\i iiriJmini\trdioii frorii part of its
icrriion. ine Security Council diclh.i\e the poocr io aiIl iipon the tiovcrnnicni
ofSouih Africa io iviihdrisr its:idniiniitraiion froni K.iniibis. hc:iii,e Nxniihi~
is not, and never has heen a part of the territory of the sovereign State of South
Africa, but has been a territory which, even before the termination of the
Mandate in 1966, was, in its relation to South Africa, res oliena.
45. According to the last sentence of paragraph 2 of Article II of the Charter,
any question relating to the maintenance of international peace and security
brought hefore the General Assemblv on which "action" is necessarv shall be
rcferred 10 rlic Sçcuriiy Council h) the CieneralA,senibl) ciihcr hcr<i;eor after
Jiw.uirion 'lhis Ilniiiaiion on ihc potrcr <>t'the <;cncr~lAssenibly. vis-ii-v~\that
of ihc Securil). Councll. ais e\aiiiiiied bv ilic Court in ihc C~,C <)fC~rttlttl .Y-
penses of the Ünited Nations. The word 'action", in the opinion of the Court,
must mean such action as is solely within the province of the Security Council,
namely that which is indicated hy the title of Chapter VI1 of the Charter; it ORAL STATEMENT BY MR. VICKERS 487
could no1mean that the General Assemhly could make recommendations only
of a general character affecting peace and security in the abstract, and no1 in
relation to specificcases. The Court therefore concluded that "the last sentence
of Article I1.oaraeraoh 2. has no aonlication where the necessarv action is no1
enforceiiient ;ict~un" (I.c.J. ~cpurrj'i962. p. ISI at p. 165).It fol;oas froni ihis
Opinion of ihc Court-uhich is alsu burnc (>ut hy the oriictiie of the United
Nations-that the decisions relatine to Namibia have been-~~~~~~hv~ ~ ,Gen~ra-~ ~---~~
Assembly in discharge of its functions, and do not run counter to the limitation
imposed in paragraph 2 of Article 11.
46. Article 24. o.raar-oh 1. of the Charter contains a limitation on those ~ ~ ~
powers of the Security ~i~uncildcriving froni that Article. by derining ihose
poucr, in tcriiis of its "priniary respunsibiliiy for the rnaintcn~ncc(~finternatio-
na1 puCe and sc:uriiy". Whilc the Securiry Cuuncil is giwn certain specific
fiinctti~nïsnJ p<ii\err.-forcxainple. those in Art~clcs4, 6 and 94 of the Ch3rter
-no1 Jirestly rclatcd IO ihis priiiiiry respi>n*ihilit).the chercise oi ils gcncral
powers deriving from Article 24 must he exercised in the context of the mainte-
nance of international peace and security. The provisions of Security Council
resolutions on Namibia, as well as the discussions in the Council, make it
evident that the Security Council was acting within this context. Moreover, a
large majority of the Members of the United Nations in voting for General
Assembly resolution 2678 (XXV) have made it clear that they consider the
deterioratine situation in Namibia. due to the continued illeral oresence of
South ~fricain the Territory, threaténsinternational peace and&cuAty. ~ndeed,
such illegal occupation of territory . .versecomes within the ambit of the Security
Council's primary responsihility.
47. Article 24, paragraph 2 of the Charter, as noted earlier, prescribes a
further limitation on the powers of the Security Council. It states that in dis-
chargin': itsdutics the~eiurity Counsil<hallact inacci,rdanceuiththc Purpuse<
and I'rinciple, of tlic Uiiited Nations Ti>jhuw that the dtiisions of the Sccuriiy
Council relat!ng ti)Namibia are in conforinity wiih this nrovi\ion. it suiliccs to
refer to those parts of the secretary-General's anroiraltstatémentswhich
deal with the bases for those decisions.
48. Mr. President, the Charter of the United Nations is a treaty. It is also a
constitution, Like al1constitutions, itis interpreted from day to day by practice,
and in the light of current norms and events. The Principles of the United
NationsCharter, as such, may contain limitations on the powers of the Organi-
zation. but it is the dutv of the Oreanization Io seek within those limitations
to give practical effect to the ~ur~oies of the Charter, including one which has
particular relevance in the present context, namely the orinciole of equal rights
and self-determination of peoples.
(b) Secondqrtesrioir
49. 1 corne now, Mr. President, to the second question put by Judge Sir
Gerald Fitzmaurice, which was to the following effect:
"1s it his [the Secretary-General's] view that provisions of the Charter
apparently, or ostensibly (whether directly or by necessary implication),
involving limitations on those powers, can, if the occasion arises, legiti-
niately be disregarded? If so, what would, in his view, be the, so to speak,
applicable 'principles of disregard', or confines within which such disregard
could be considered acceptable?"
50. It is not the Secretary-General's view that limitations provided in the
United Nations Charter can legitimately be disregarded. He is not, therefore ina position IO formulate "principlcs of disrcgard". There rnxy, however, bc
circumstances in which certain limitations arc not applicable ta a given faciuïl
situation. In reply to the first question posed by Judgc Sir Gerald Fitzmaurice, a
numbcr of limiiîtions on the pouers of the Gcncral Assenibly and the Securiiy
Council hate beenex~mined in the context of the orejeni caseand the reîsons
whv thev were not aoolicable have beenexolained: For examole. as oreviouslv
noied, the limitationof domestic jurisdictiin has no applicatikn ;O tce
of South Africa inthe Territory, in view of the international status of the latter
and the consequent rights of the inhabitants and of the United Nations as the
supervisory authority.
51. Furthermore, the Secretary-General does not believe that constitutional
bractices of the Oreanization. such as the one relatine 10the eKect of voluntarv
abstentio byn scrhanenl membcrs of the ~ecurit~?ouncil, arc in any sensé
"principlcsofdisregdrd" ofcharter provisions. As stated in the Secrewry.Gcner-
ai's oral statement. this is now a rule of customarv law and a bindine inter-
pretation of the ~kner. It therefore cannot be a disregard of a charter limi-
tation. Similarly, a determination by the Security Council whether a particular
matter is a "situation" or a "disoute". with theconseauences that flow there-
from, in no senseinvolves a "principle of disregard". it is merely a finding by
the Council of the proper characterization OFthe matter beFore itunder the
Charter
52. Accordingly, although the medning and scopc and application <if such
Iimiiations may involve difficulties or dilTcrenccsof interpretaiion, the question
of "acceotable orincinlcs of disreeard" doesnoi. in the oninion of the Secretarv-
General, arise.
(c) Third question
53. The third question with respect ta which Judge Sir Gerald Fitzmaurice
has requested the views of the Secretary-General reads as follows:
"in particular what limits, if nny. does the Secretary-General set on thc
type of caseor subject-mattcr with rcference IO which the Sccurity Council
can eniit a resolution bindine. un all ,Vembcri of ihc United Nations ln
terms of Article 25 of the ~h;îrter?"
54. It is provided in Article 25 of the Charter that "The Members of the
United Nations agree to accept and carry out the decisions of the Security
Council in accordance with the oresent Charter." The wordina of this Article
makes no reference~to~anv oart. .ar t.r~ o~ ~a~ ~ ~ - ~ieccmatter for the
dccisions u,hich mcmbcr Siaies are thereby obligated to cary out, but rcquircs
only thdt thes betakcn "in accordance with the riresentCharter". As rcxxrds the
limits within-which decisions may be taken under reievant Charter pr~visions,
the applicable limits are those set out in the Charter either expressly or by
intendment. For the mas1part, however, the aggregateof theselimitations can-
not in Our submission be defined in advance excen~ i~ t~ ~broadest ternis and
subject tu the nJiure ofthe actions required for the m3intcnxncc of internxlionil
ocace and ,ccurity and ihc fulfilnicnt of the Purposes and Principles of lhc
Ünited Nations ch~ ~-r. in the~e~broad t~rm~ Ïhe~ ~ ~ ~..case or subiect-
iiiatter niusi, with ihe exccpiion of decinions under Article 94. conie iiilhin lhe
Sccurily Council's primary rcjponsibility for the mainten.incr. i~finternational
peïce and sccurity. As was Iikc\r,ise indicaicd in the reply tciJudge Sir Gcrald
Fit7mauricc's first question, dccisions of the Security Council can be taken only
in accordancc with the Purposcs and Principles of the United Nations. The type ORAL STATEME~T BY MR. VICKERS
489
of caseor subject-matter must, therefore, come within these Purposesand Prin-
ciples.
55. Subject to these limitations, any resolution adopted by the Security
Council as a decision either under Article 24, or under specific powers, comes
within the terms of Article 25Inthis connection referenceis madeto the oninion
giten hy 1heSe:retary-General in 1947tothc Sccurit) Council in the ~rirrrrcasc.
Nataiihst~ndiiig ihc commcnis of the Ji\iinguished reprcscntati\'e of South
Africa, which the Secretarv-General finds lackine in-.ersuasion. this case
stands asa Iandniark for thc~in~cr~rcilitii~nof the powers of ihc Sccuriiy Coun-
c~l.The Opinion Jealt uith tu,o IiSLer, the tirsr-the"Authoriiy i>fthe Sccuriiy
Couniil" kirs bcen referred 10exlier. The scci~ndci~nccrnedthe "Obligations
of the Meiiibers io acccpt and carry out decirions of the Security Council"-
ivhich .ri% deïlt with in pïrûgrïph 96 of the Secrctary-Ccncral's ivritten state-
ment. With respect 10 this issue the opinion stated:
"The question has beenraised as to 'what countries will be bound by the
obligation to ensure the integrity and independence of the Free Territory'.
The answer to this is clear. Article 24 provides that in carrying out its
duties, the Security Council acts on behalf of Members of the United
Nations. Moreover, Article 25 exoresslv orovides that 'the Members of the
United Nations agree to accept and cakj out the decisions of the Security
Council in accordance with the present Charter'.
The record at San Francisco also demonstrates that this ~araeraoh
applies to al1thedecisions of theSecurity Council. As indicated above,-thire
was a proposal in Committee llI/Ito limit this obligation solely to those
decisions of the Council undertaken pursuant to the specificpowersenumer-
ated in Chapters VI, VII, ViII and XII of the Charter. This amendment
wasput to a vote in the Comrnittee and rejected (document 597, U1/1/30).
The rejection of this amendment isclear evidence that the obligation of the
Members to carry out the decisions of the Security Council applies equally
to decisions made under Article 24 and to the decisions made under the
grant of specific powers." (SC, OR, Second Year, No. 3, 91st Meeting,
10January 1947.)
56. The Secretary-General realizes that the question still remains as to what
resolution~ arc '.dc~isions" \rithin thc meaning of Article 25.On ihis hc mus1
ïgrcc iviih the lc3dinç conimentdtors on the Charter ihlit the terni as uscd in
the variour ïrticlcs rïlaiine to the Security Council is not 3ltogcthcr frre from
ambiguity and may well ieave something to be desired in clarity. It seems
perfectly clear, however, from an analysis of the various articles of the Charter,
from the San Francisco records and from the vractice of the Securitv Council.
thai ihc binding chanictcr of dcci5ions. in accordancc \r,ith ~rticlc25 of the
Chmer, is not coniined IOthe coercive mcasures providcd in Articles 41 and
42. For relisons stated in some derail in the written or oral statements nre5ented
on behalf of the Secretary-General, there can be no doubt that in the special
circumstances of the Namibia case the Council bas the authority to adopt
decisions which are, in effect, binding, and has in fact done so.
(dl Foirrrh question
57. 1 come now, Mr. President, to the fourth and final question put by
Judge Sir Gerald Fitzmaurice, which was as follows:
"Assemhly resolution 2145 appears to be based upon, and to embody,
what is in effect a jirdgmenr of law, namely that fundamental breaches of490 NAMIBIA (SOUTH WEST AFRICA)
the Mandate for South West Africa have occurred. legallv iustifving.-ts
revocation or termination. 1s it the Secretary-General's view that the
Assembly has the power ta make legal determinations of this kind-that
is of a kind that would normallv fall within the orovince of a court of
law, such as this Court? If sa, where, in his view,iould the line of distinc-
tion come between the judicial functions of the Assembly, if it had such
functions, and those of this Court which is eqtially a main organ of the
United Nations, and its principal judicial organ?"
58. With respect ta the first part of thisquestion, namelywhether the General
Assembly has the power ta make legal determinations of the kind which it
made in resolution 2145 (XXI), it is first necessary to examine the provisions
of the Charter, with a view to ascertaining whether such a power has ken
entrusted to the General Assembly. To take but one example, Article 6 of the
Charter provides that a Member of the United Nations which has persistently
violated the Principles contained in the Charter may k expelled from the
Organization by the General Assembly upon the recomrnendation of the
Security Council. This provision, while recognizing the concurrent role of
the SecurityCouncil, empowers the General Assembly to make a legal evalua-
tion regarding compliance with Principles contained in the Charter. The
Secretary-General would observe that the power conferred by Article 6 on
the General Assemblv .s ~.rticularlv aooosite in the oresent context. in that
it is not dissimilar in nature to the légaideterminationmade by the ~ssembly
in its resolution 2145 (XXI).
59. A basis for the legal determination made bv the General Assemblv in
resolution 2145 (XXI) <ay be found in its severai distinct roles in regard ta
Namibia, under its express and im~lied powers, as explained in the Secretary-
General's oral statement appearing on page 50, supro. In one of these roles,
that is as a party to the contractual relationship arising from the Mandate,
the General Assembly first found the facts, namely that material breaches of
the Mandate had occurred. From these facts it drew one of the le-al conse-
quences open to the wronged party in such a relationship, that is, to declare
that the contract was terminated. In many national jurisdictions, particularly
the common law countries, contracts can be so terminated without the matter
having been referred ta a court of law, unless the other party chooses to bring
the rnatter before a court. Similarly, in international law, the right has been
recognized of a State to determine that a treaty relationship with another
State is terminated by virtue of the latter's material breach of the obligations
under the relationship. Whether or not this is subject to judicial review is a
matter determined by the terms of the treaty relationship-namely, whether
it provides for such a review-or by other undertakings between the States
in question, which may or may not exist, for submitting their disputes ta
arbitration or to the court. It is, therefore, the view of the Secretary-General
that in this case the General Assembly had the right ta make the finding of
fact which it made, and to draw therefrom one of the possible legal conse-
quences.
60. In a second role, that of the supervisory authority of the Mandate for
South West Africa, the General Assembly must clearly have had the right ta
make determinations bath of fact and of law, as the absence of such a right
would have rendered its authority nugatory.
61. It will be recalled that, in the past, the Assembly has sought guidance
from this Court on the discharge of its responsibilities towards South West
Africa through its various requests for advisory opinions. The Assembly also ORAL STATEMENT BY MR. VICKERS 491
drew the attention of member States ta the possibility of their taking legal
action under Article 7 of the Mandate, and it commended an endeavour to
bring before the Court, in contentious proceedings, the question whether South
Africa had committed fundamental breaches of the Mandate.
In that particular case, the Court found that the Applicants could not be
considered ta have established any legal right or interest appertaining to them
.~~ .~~~-~ie.t-mat~ ~ ~ ~~~ ~ ~ ~aims. Onlv after this endeavour to have the
question decided in contentious judicial proceedings proved to be unsuccess-
ful did the General Assembly assert its own authority-which, as indicated
above, it is submitted that it possesses-and proceed to adopt resolution
2145 (XXI).
The causal nexus between the lack of success of the attempt at having the
question decided judicially in contentious proceedings on the one hand, and
the General Assembly making the decision on the other, was repeatedly
expressed in the debate which led to the adoption of resolution 2145 (XXI).
Reference may be made, in particular, to the statements by the representatives
of Austria, Nonvay, Sweden, Canada, Jsrael, New Zealand, Japan, Tunisia,
and the United Kingdom, which appear in the Secretary-General's Review
of Proceedings in paragraphs 39,46,48,50,51,54,57,58,69 and 70 respectively.
62. The Secretary-General wishes to refer in the present connection to the
joint dissenting opinion of two Members of the Court in 1962 (I.C.J. Reports
1962, pp. 466 et seq.), without necessarily accepting the view expressed therein
as his own. The authors of this opinion stated that what the Court would
principally be asked to decide on the merits of the South West Africu cases
was whether, in a number of different respects, South Africa, as a mandatory,
was in breach of its obligation under Article 2 of the Mandate Io promote to
its utmost the material and moral well-being and the social progress of the
..~~~~~-~~s ~~~~~~ ~ ~r~ ~ ~ ~
They said that the proper forum for the appreciation and application of a
orovision of this kind was unquestionably a technical or a political one. They
concluded that the fact that, inpresent circumstances, such technical or political
control cannot in practice be exercised in respect of the Mandate for South
West Africa was not a ground for asking a cotirt of law to discharge a task
which, in the final analysis, hardly appears ta be a judicial one (I.C.J. Reports
1962, pp. 466-467).
63. In response to the present question, the Secretary-General has sought
~ ~de~onstrate that the General Assemblv does have the oower. in certain
cases, to make decisions on points of law-a power derived from the Charter
directly or by necessary implication and also from other relevant legal texts.
. ~
64. AS regards the question of where ta draw the line of distinction between
the competence of the Assembly and that of the Court in making legal evalua-
tions, the Secretary-General does no1 believe that a categorical answer can be
given at this stage of the development of international law which would be
applicable to al1 cases or situations. In his opinion, this line of demarcation
has to emerge in practice from the Charter, the Statute of the Court, as well
as the respective proceedings and jurisprudence of the General Assembly and
of the Court. The line of distinction can be, and often is, a matter of great
complexity, involving not only questions of interpretation of relevant legal
texts but also consideration of oarticular circumstances of individual cases.
65. It very often happens in iniernational afairs that for action on a certain
question both a oolitical organ and an international tribunal may be com-
petent. To use an example unconnected with the present case, reference may
be made ta the arrangements under the European Convention on Human492 NAMlBlA (SOUTH WEST A~RICA)
Rights of 1950,where the final decision on whether or not a violation of the
Convention has occurred is made by the European Court of Human Rights,
if it has jurisdiction and the matter is referred to it. If the qualificationsjust
referred to are not met, jurisdiction to make a final decision is vested in a
political organ-the Committee of Ministers of the Council of Europe. Simi-
larly, under the International Convention on the Elimindtion of All Forms
of Racial Discrimination, adopted in 1965, disputes about its interpretation
and application are to be referred to the International Court of Justice. How-
ever. in reeard to States which have made a resewation to the iurisdiction
clauie of the Convention, only technical bodies, the Committee on the Elimi-
nation of Racial Discrimination and an ad hoc Conciliation Commission, can
be seised of a complaint.
66. In the present case, the several distinct roles of the General Assembly
relating to Namibia, and the failure of recourse to judicial proceedings of the
Court to obtain a decision on the substantivemeritsin contentious proceedings,
mus! be taken into account in any evaluation of the actions of the General
Assembly. The Secretary-General tmsts, however, that in the light of the
present response, it will be seen that the General Assembly was not seeking
in any way to usurp a judicial function, but had found it necessary to act
pursuant to itsown authority after it had proved impossible to obtain ajudicial
determination in contentious nroceedines.
Mr. President, that concludes the iesies to the ten questions addressed to
the Secretary-General. We have some further observations to add.
The Coidrradjournedfrom 4.15p.m. ro 4.40 p.m
Commentson rheSouthAfrican Proposaifor a PlebisciIein Nomibia
67. Mr President. honourable Membe~s o~ ~he Court. 1 come now to the
letter dated 6 ~ebruary 1971 ', from the Agent of the ~Ath African Govern-
ment to the Registrar of the Court, concerning the so-called plebisciteproposal.
Comments on this nronosal were renuested from oarticioants in these oral
proceedings and M;. ~tavro~oulos, it the close if his oral statemenc pre-
sented on behalf of the Secretary-General, on 8 February, mentioned that the
Secretary-General might wish to present some ohse~ations at a later stage
in these proceedings.
68. The South African proposal as stated in their letter of 6 February is as
follows:
"(a] That a plebiscite of the inhahitants of South West Africa bc held
to deieminc wheiher itis their \ii\h ihat the Tcrritory should continue
to he administered bv the South Afr~cnnGovernmcnt or should hense-
forth be administeredby the United Nations.
(6) That the plebiscite be jointly supervised hy the International Court
of Justice and the South African Government. It is suggested that the
Court could appropriately act in this respect through a committee of
independent experts appointed in accordance with its Statute.
(c) That the detailed arrangements for the plebiscite, including the
membership and terms of reference of any committee appointed by the
Court, be agreed upon by the Court and the South African Government."
' See Correspondence, No. 92, p.673,infra. ORAL STATEMENT BY MR. VICKERS 493
69. This proposai, it is claimed by South Africa, could have decisive sig-
nificance for the solution of this case. The South African Government has
suggested that there exists a relationship between the sosalled "plebiscite
proposai" and what are referred to as "factual allegations". It has been further
suggested that the outcome of the proposed plebiscite would in some way
be relevant to the question now beforethe Court.
70. In the submission of the Secretary-General, this proposal is not one
which would be capable of establishing either the facts of the situation in
Namibia or the genuine wishes of the inhabitants of the Territory. Moreover,
althoueh related in a number of reswcts. it would not amear that these two
elements (namely the facts of the situation in Narnibii and the wishes of the
inhabitants), would, or even necessarily could be ascertained in the same
manner.
71. For the present proceedings, namely for the question of the legal con-
sequences for States of the continued presence of South Africa in Namibia
notwithstanding Security Council resolution 276 (1970). the proposal for a
plebiscite is manifestly irrelevant. A plebiscite conducted in 1971 or 1972,
whatever its result, could not affect the legal consequences for States of the
presence of South Africa in Namibia in the years since 1966. And even if
the Court were to advise on the legal and factual basesof theGeneral Assembly
and Security Council resolutions on Namibia, and even if it were to enter,
in the course of these advisory proceedings, into a review of the facts as found
by the General Assembly, the plebiscite would not assis1 the Court in this
pursuit.
72. The suggested plebiscite, whatever its result, could not refute the reaf-
firmation in paragraph 2 of resolution 2145 (XXI) "that South West Africa
is a territory having international status"; the plebiscite could not rebut the
declaration in paragraph 3 of resolution 2145 (XXI) that South Africa has
failed to fulfil ils obligations in respect of the administration of the mandated
territory and to ensure the moral and material well-being and security of the
indieenous inhabitants: nor could the result of a olebiscite undo the undeni-
able-fact set forth in r&olution 2145 (XXI) that South Africa, since 1946 at
least, has consistently disavowed the Mandate. It must be said that, under the
circumstances of this case, a plebiscite is not, and cannot be, relevant evidence
to be placed before the Court.
73. The proposal is no1 one which would be capable of establishing the
facts of the situation in Namibia at the present time, andtill lessin the relevant
lime in 1966.Indeed, even aplebiscite in which the majority of the population
would vote for the reinstatement of the South African administration of the
Territory might be interpreted, in the light of the lack of political develop-
ment of the population. not as evidence that South Africa had complied with
ils obligations under the Mandate but, on the contrary, as an indication of
the fact that the Mandatory did not nromote to the utmost the material and
moral well-being and sociai progress of the inhabitants of the Territory.
74. As stated, a plebiscite could not rebut the evidence of South Africa's
nonsompliance which included, interalia, prohibitions and requirements con-
tained in published and undisputed South African legislalion, as well as in
the admitted practice of racial discrimination in the policies applied by South
Africa in Namibia. For these established facts. therefore. no further investiga-
tion is required, and neither would a plebisciie be relevant in this regard.-
75. It has been pointed out by previous speakers before this Court that, even
regardless of any merit which this plebiscite proposal might othenvise have
had, the Government of South Africa has no right or authority to undertake494 NAMIBIA (SOUTH WEST AFRICA)
or supervise any plebiscite or other activity in Namibia, by reason of the
illegality of South Africa's presence in the Territory. The termination of the
Mandate by General Assembly resolution 2145 (XXI) and the subsequent
resolutions of the General Assembly and of the Security Council have brought
about fundamental changes in the situation. These resolutions, which are in
elïect binding upon al1 concerned, including the Secretary-General, have
established that the Mandate has terminated, that the presence of South
Africa in Namibia is illegal and that the United Nations Council for Namibia
is to administer Naniibia until independence. General Assembly resolution
2248 (S-V) provides, inter alia, for the establishment in the Territory of a
constituent assembly to draw up a constitution and for a legislative assembly
following elections conducted on the basis of universal adult suffrage.
76. The proposal as formulated is incompatible with Security Council reso-
lutions 269, paragraph 7; 276, paragraph 5; and 283, paragraph 1, in which
the Council called un~.~Sta~ ~ ~- r~frain from anv dealines with the Govern-
ment of South Africa which would imply recognition of the authority of
South Africa over the Territory. In the Secretary-General's o~inion, an arrange-
ment is not accentable unde; which the nlebiscite wouldbe conducted and
rupervis~d by thecourt jointly wiih Suuth frica wa ih is in illegal occupation
of thc Territury. and withoui the pariicipütion of ihc other parties in interest.
including the Unitcd Nations iiself, which sincc the icrminüiion of the Manhtc
i.ithe Iau,fiiI authority for Naniibia.In particular, princip~l responsibiliiy for
the conduci uf 3 plebisc~ie should rest ulith ihe Ilnitcd Nlitioiis Council Tor
Namibia.
77. While the proposal, for al1these reasons, is neither admissible nor rele-
vant, 1 would now propose to make a few comments on the modalities and
procedures which South Africa has suggested, in order that the nature of the
proposal may be more clearly understood. The questions which South Africa
proposes to put before the inhabitants of Namibia are misleading and inap-
propriate. In particular, the alternative, whether the inhabitants wish that the
Territory "should henceforth be administered by the United Nations" does
not correspond to the decisions taken by the General Assembly. By General
Assembly resolutions 2145 (XXI) and 2248 (S-V), it is laid down that Namibia
will be administered by the United Nations for an interim period until in-
dependence, and that it shall become independent on a date to be fixed in
ac~o~d~ ~ ~with the w~she~-~~---~ ~~~.le. and that the Council for Namibia
shall do al1in its power to enable indebidence to be attained by June 1968.
78. If a leb bis c itere held-a develoument which can take place only out-
side the prisent proceedings before this court-the alternative to a return of
the Territory to South African rule, to be presented to the people of Namibia.
should not be administration bv the United Nations. but independence after
a short traniitional period. No piehisciiccould bcof any value ifthc inhabitants
urre invited Io choose bctueen altern~tiveï iihich do nui exist.
79. There 8sno aucsiion of the Tcrriiory being "a,lni~ni<tcrcd by ihe Lniicd
Nations" except foi the express purpose of brin& about the self-determind-
lion and independence of the Territory at the earliest possible date, and trans-
ferring al1 powers to the people of the Territory upon the declaration of in-
dependence.Thus, the political future for the Territory envisaged by the United
Nations is that the people of Namibia should decide their own future, and it
was for this purpose that the General Assembly, in its resolution 2248 (S-V),
directed the United Nations Council for Namibia, inter alia, to-
". .. take ... al1 necessary measures, in consultation with the people of
the Territory, for the establishment of a constituent assembly to draw up ORALSTATEMEN T Y MR. VICKERS 495
a constitution on the basisof which elections will be held for the establish-
ment of a legislative assembly and responsible government"
and ". . .to transfer al1powers to the people of the Territory upon the declara-
tion of independence". As already indicated, independence was originally con-
templated to be reached in June 1968.
80. To suggest therefore that the people of Namibia have an option to be
administered by the UnitedNations is to misrepresentthe available alternatives,
more particularly when juxtaposed with an option to continue to be adminis-
tered by the South African Government. For the United Nations doesno1 seek
to maintain any administration of its own over Namibia, but only to enable
the people of the Territory to exercise their right to self-determination and
independence. Ltmust logically follow therefore that the South African proposal
wouid ofïer the inhabitants the alternative of not e~er~i~ ~ ~this rieht:
XI. ~ny plebisciiegenuinclydesigned toiisccriiiinthe wishesofthe~nhabitants
trould have IO bc hcld under conditions which uould ensure iiiip~rtiiiliiy and
-~~~dom of~ ~ ~c~.~Such conditi~ns ~o not exist at oresent becauseof the denial
of freedom of movement, organization or political expression to the vast
majority of the population. To achieve the necessary conditions for a free
plehiscite, South Africa would first bave to withdraw from the Territory Io be
replaced by an impartial authority, the United Nations Council for Namibia
or some other organ-agreed-upon bv the General Assembly or the Security
Council; frccdom of movemeni and poliiicïl chpression uould have to be
resiored. political exiles \tould have to bcpcrmiiied IO reiurn. politicitl priiiinçrs
released, a register of voters would have to be establishedand necessaryguar-
antees would have to be provided to remove al1 possibilities of intimidation
or pressure, overt or covert, and to ensure that there would be no reprisais
after the conclusion of the olebiscite.
82. The ~ecretary-Generil has noted a statement made by the representative
for South Africa at the sitting of this Court held on 16 February 1971, in reply
to a auestion bv the reoresentative of the Ornani-ation of African Unitv con-
cerning ihc report of the c<imiiiitiee of experts Io which Souih Africï proposes
the supen9isionof the plcbiscitc should be cntru~ted. joinrly uirh Sour11Alria.
He said that the-
"... report will be made to this Court. And the Court.. .will then decide
what significance il should attach to this report on the plebiscite, for the
purposes of the Court's opinion in these broceedings and for no other
purpose whatsoever" (supra, p. 168).
This clearlv means that South Africa does no1 even Drooose to bind herself to
3cccpi thc'result of the plchiscite if rhc 5hould noi llke fi,or 10accept the xd-
\.iu~ry opinion ofihis Couri ifit wcre hasedon thc rcsult of the proposed pleb-
iciie unfavourahle io South Africa This stiitcment reinforces Souih Afrtcii's
emphasis, in paragraph 2 of Chapter 1 of her written statement, that she will
not be bound by the advisory opinion.
83. Mr. President. the Secretarv-General has hesitated to make such ob-
servations on the substance of a proposa1 which is irrelevant to the question
before the Court and is legally and practically incapable of implementation.
However. in view of the rnisconceotions inherent in these ~roposals. and the
mistaken'conclusions which tend io ensue therefrom, the-Seiretaj-General
thought it useful to draw attention, through these observations, to the inherent
inconsistencies betweenthe proposal which wasmadeand the purposesto which
il purports Io relate.496 NAMlElA (SOUTHWEST AFRICA)
84. In particular, we have endeavoured to show why the South African
proposal,apart from being excluded by factors of illegdity, competence and
relevance previously referred to, would in any event not give expression ta the
wishes of the inhabitants concemine their future, nor would it place any rele-
vani evidencc beforethe Couri, nor r\uuld ilhavc an). rele\,üncetbthc \~ioÏations
by South Africa of hcr obligation^ ln respect of ihr people and terriiory of
Namihia.
85. Elesiions and plebiscites, su(ierviseby Uniicd Nations Commissionçr~,
have in the pst led 10 the attainmeni of independence by a number of trust
ierritories. and the a~plication ofa similar ~rocedurr to Namibia minhi have
soived the problem of Namibia u,hich has heen before United ~atio~s bodies
for so many ycdrs. Thus, even with the manifest defect in the prop<i.d plebi-
scite. it is regrettable that it has come so late-only after the termination of the
t an date .Jhile it would have been manifestly impossible to accept the terms
of a plebiscite as set out in the present South African proposal, such a proposal
minht have formed a hasis for nenotiation had it been made to the General
~siembly during the lime thst ~ouih Africa \\a\ still the lawful Mandîtory.
Segotiiition of the modalities and procedures for the chercise of self-deter-
mination uould have been an excclleni method bv uhich the question of Nami-
bia might have been resolved had a genuine pipovl for an intemation3lly
supervised plcbiscite been forthcoming from Sourh Africn prior io the iermina-
tion of the Mandate.
The Court rose a1 5 p.m NINETEENTH PUBLIC SITTING (9 III 71, 10am.)
Presenr:[SeeSitting of 811 71.1
ORAL STATEMENT BY MR. STEVENSON
REPRESENTATIVE OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA
Mr. STEVENSON: MI. President, Members of the Court. It is a high per-
sonal privilege and honour for me to make this oral statement before you on
behalf of my Government. 1 am pleased to have with me as counsel Louis
B. Sohn, Bemis Professor of International Law at Harvard Law School, who
is this year serving as State Department Counselor on International Law, and
Robert E. Dalton of the Office of the Lee-l Adviser. Mv Government av-
preciates the opporlunity of participating in the oral phase of this case.
The written statements suhmitted by various governments and the remarks
of the distinguished representatives who have preceded me in this case have
strengthened Our opinion as to the importance of the question before the
Court.
In accordance with the wishes of the Court. Mr. President. 1shall not reneat
al1the arguments made in the written statement submitted bithe United tat tes,
or reiterate those made by the distinguished representatives who sooke before
me. 1shall concentrate ona limited nimber of auestions which have been raised
in the written and oral statenients, and with res10cwhich, inour vieu,.certain
additional considerations should be tdken 1ntoacrount
The first of these issues is the challenee to the iurisdiction of the Court to
render an advisory opinion, based on ïhe allegei invalidity of the Security
Council request for an advisory opinion. My Government believes that the
Court has iurisdiction and that the Securitv Council reauest wasvalid.
The second issue is whether the couri should ex'rcise its discretion to
accede to or to decline the request of the Security Council for an advisory
ooinion. MYGovernment believes that the Court should render an ooinion.
-~he third topic which I shall address is the validity of General Âssembly
resolution 2145 (XXI). My Government believes that that resolution is valid
and that it effectively terrninated the administrative authority of South Africa
under the Mandate of 17 December 1920.
1shall then discuss the Security Council resolutions in the case and the effects
of those resolutions for States.
Next, 1 shall comment briefly on the proposal made by the representative
of South Africa to furnish additional information as to conditions in Namibia.
My Government would not favour a de novo examination of the facts.
Thereafter, 1 shall discuss the South African Govemment's proposal that a
plebiscite be held in Namibia.
Finally, 1 shall sum up the conclusions which my Government submits for
the consideration of the Court.
1
The first issue with which my Government wishes to deal is whether the
question is properly before the Court. 1 do not consider it necessary to dealwith al1 the arguments raised by the distinguished counsel for South Africa
against jurisdiction. Theyhave been ably dealt with by the Legal Counsel of the
United Nations.
1 should like, however, Io discuss an argument which South Africa has
stressed-that Security Council resolution 284, which requests the advisory
opinion, was not adopted in accordance with Article 27, paragraph 3, of the
Charter. This paragraph, as amended, States that decisions of the Security
Council on other than procedural matters "Shall be made by an affirmative
vote of nine members including the concurring voies of the iermsneni niçni-
bers". South Afris3 urges the Court 10rule ihat since tiio permanent members
of the Security Council, the USSK and the United Kingdoiii. 3hstained froni
voting on the resolution requesting the advisory opinion, the resolution is
invalid.
There is an unvarying practice followed by the Security Council ofadopting
resolutions receiving the required number of affirmative votes despite the
abstention of one or more permanent members from voting. That practice
began almost immediately after the entry inIo force of the Charter. On 29 April
1946 the Council adopted resolution 4, despite the abstention of the USSR.
The Security Council followed that practice in 37 other cases without any chal-
lenge. Thereafter, on4 Mach 1949,when a challenge was made to that practice
in connection with resolution 69, the President of the Council ruled that
"abstention by apermanent member oftheCouncil does not render the Council's
decision invalid". Later. on 4 May 1949. the oractice of the Council was ex-
plained in the ~ssembl; and was &cePtid by 'it (Oficial Recordsof the Third
Sessionoffhe Cei~eralAsse~nblyP ,arr IlAd Hoc Polirical Commirree, pp. 200-
201).
On 17 December 1963 the General Assembly adopted the amendments to
Articles 23 and 27 that eniarged the Security Council and specificallychanged
the number in the phrase under consideration from "seven" to "nine" so that
the relevant part of Article 27 now reads "shall be made by an affirmative vote
of nine members including the concurring votes of the permanent members".
BYthat time there had been 71 instances in which the Securitv Council had
3dupte.i resoluti<ini, despite ihe ah,tention of one or marc of ihe perni3neni
nienibers. \Vhilc the anicndiiicnts irerr beforég<i\,crnnientsfor apprdval thcre
were nine additional instances in which this practice was followed;
The fact that the Security Council has for 25 years functioned on the basis
that resolutions adopted despite the abstention of one or more permanent
members of the Council are binding and valid is conclusive evidence of the
generally accepted understanding of the words "shall be made by an affirmative
vote of nine members including the concurring votes of the permanent mem-
bers". This conclusion is buttressed by the general acquiescence of the States
Members of the organization, including, in particular, the clear agreement
with this interpretation by the States most directly affected, namely the per-
manent mcmbers of the Securitv Council.
Article 31, paragraph 3, of the Vienna Convention on the Law of Treaties
sets forth the generally accepted rule that "subsequent practice in the applica-
tion of a treatv which establishes the aareement of the oarties reeardina its
interpretation" mus1 be taken into account in determining the meanin; of
that treaty. A thoroughly consistent practice of the United Nations regarding
a matter peculiarly within its competence, the proper voting procedure Io be
followed in one of its principal organs, which has been accepted almost unani-
mously by the member States, is to be given the greatest weight in interpreting
the pertinent Charter provision. ORAL STATEMENI BY MR. STEVENSON 499
This rule in the Convention on the Law of Treaties, which of course is not
yet in forcebut reflects in many respects generally accepted law, regarding the
relation ktween practice and interpretation had ken developed by the Court
itself in previous opinions. Thus, in its Advisory Opinion relating to the Inter-
?rationalSlalus of Soiith West Africn (I.C.J. Reports 1950, p. 135), the Court
stated:
"Interpretations placed upon legal instruments by the parties to them,
though not conclusive as to their meaning, have considerahle probative
value when they contain recognition by a party of its own obligations under
an instrument."
In 3 seric, of its ad\.isory opinionr, espccially in ihc Advisory Opinion rclating
IOCt~rtiiiirE.rpe~rst~osf rhe Unircdh'arions.ihe Court accepied the interpretative
\,duc of a consisteni. generally accepied praciicc of ihe cornpicnt organs of
the üniicd Naiions (C'err<iirL ripen~zs ofthe Utiircd,\'f~rionr(Arricle 17, puru-
grilph 2, ofihr Charrer). Adrisory Opin~o~iI,.<'.J. Rt>ports1962.p. l51,;it 157 8.;
<;~o~pc~i<'» orihe Grnerol A>sr>?ih!f,or rhe A<l,>iisr;on u/u Stntr 10 rhr U»ired
.\'ariu~zs, ilii,ory Op~niun,I.C.J. Hrpur1.y IYSO. p.4. at 8-91.
!4orcover. the intcrpreidiion of Arlicle 27. parngraph 3, a\ rciïcctcd in the
pr;iclice i~fStates and of the Securiiy Cuuncil. 0, consistent \iith an inicrpreia-
lion haied on the objesi and purpose of rhiitparagraph. Thc purpose of Article
27...arama-. 3. was to ensuie that substantive decisioni of the Securitv
Council uould no1 he idopted over the objection of a pernianeni niemhe;.
As a praciiial matter. nieiiiber>can indicritethcir I3ckofohjeciion to a proposi-
tion by abstainina on it. The adootion of a resolution with the abstention of
permanent members of the ~ouncil is thus consistent with the object and pur-
pose of Article 27.
There is an additional and vital piece of evidence that supports the interpre-
tation adopted hy the United Nations. At the time the amendment to Article
27 was adopted, the practice in the Security Council had already been followed
for 17years. We have looked at the information suriolied hy the deoositary in
order 10 dctcnnine iihcihîr ihere wds an). ei~idencethat siaies und;rstoodthe
phrase "<hall bc made hy an aliirn~~iive%,oieofseven mcmbcrs including the
concurring votes of the permanent members" to have a meaning different from
that which was generally accepted in the 1963-1965 period and previously.
No ratifying State informed the Secretary-General that it interpreted the tex1
in any wav difierina from the oractice followed in the Securitv Council. In liaht
of th15 hi;tors it is;easonabl~ to hold thît ihc spccial mean;ng of ihese iroÏds
\vas incorporatcd in the Cliarier amendmeni.
In summarv. the United Siaics believe. the Court should rcicct the South
African interpietation and hold that the Security Council validliadopted reso-
lution 284 requesting the advisory opinion in this case. It follows, as well, that
the validitv of the other Securitv council resolutions involved in the case cannot
be challe&ed on this ground.. ,
II
Let me turn now to the second question 1 wish ta address. Article 65, para-
araph 1, of the Statute of the Court makes it clear that the Court has discretion
Ïo iecline IO ansucr a legal question rcfcrrcd io iifor an ad\,isory opinion in
3ccorJdncc uith the Chartcr Thequr.,tion ofdiscreiion uas nut addrcssed in the
prior advisory proceedings relating to Namibia. It was, however, raised in the
Peace Treoties case (1950), the Reserrafions case (19511,the Judgmenfs of theAdministrarive Tribunal case (19561and the most recent advisorv oroceedine.
the Cerrain Expenser ofth? ~nirrd'~~arionscase (19621.Thesc caseçestablish3
pattern of accepiing requests for advisory opinions. In the Peucr Trraries case
the Court stated th31 "the rcply of the Court, itself an 'org;in of the United
Kntions'. represents ils participation in the activities of the orgnniz;ition, and,
in principle, should not hereftised" (I~lterprclulionof l'rare Trrali&.c.Advie~r?
Opitlio~r,I.C.J. Rrports 1950, p. 65 at 71 J In 11smost recent advisory opinion
in the Erpr~z~rrcase, it repcated an carlier pronouncenient to the etTect[hot
"only 'compclline reasons' should lead itto refuse to give a requertcd advisory
opinion". In that case it was argued by some participating States that the deter-
mination of whether certain expenses of the United Nations in the Middle East
and the Congo constituted 'expenses of the organization" in the sense of Ar-
ticle 17(2) of the Charter was a matter intenwined with political questions. In
its opinion the Court adverted to the fact that most interpretations of the
Charter have political significance. It neverthelessrendered an advisory opinion
(Certain Expenses of rhe United Nations, AdvisoryOpinion, I.C.J. Reports 1962,
p. 151, at 155).
South Africa argues, however. that the oresent case involves a "disoute"
betueen States 2nd is, therefore, not prtipcrly a subject for an advisory opinion.
The simple ansaer to rhis argument is that the Security Coun2il is cmpoiiered
under Article Y6 of the Charter io reauest an ad\,isors opinion "on any leeal
question", and obviously such a legal question may invblvë differencesofviews.
Indeed, most oftenthe reason an organ of the United Nations requests an advi-
sory opinion is precisely because there are differences among member States on
the legal aspects of matters pending before that organ.In connection with some
of the previous advisory opinions, the records show that these differences were
both substantial and sharp.
The cases of Eastern Carelia and of the Peace Trearies cited bv South Africa
for the proposition that no State can, without its consent be compelled to sub-
mit to a pacific settlement procedure, are irrelevant as the question involved
in those cases was whether-a matter could be submitted to the Court for an
advisory opinion when it involved a State which was not a Member of the
League of Nations, in the first case, and of the United Nations, in the second
case. South Africa, however, is a Member of theUnited Nations, and has agreed
to Article 96of the Charter authorizing the Security Council to request advisory
opinions.
It mieht be also oointed out that the disoute relatine to the oerformance bv
South Africa of its bbligations under the ind date out ofuhichthe Sortth IV$
Afriracasesîrose, uasfindlly decided hy resolution 2145 (XXIJ. Thcreafter. the
~ecuritv Council was faced with a new situation. namelv the continued oresence
of souih Airica in Namihia nbtwithstanding~h; termination of its administra-
tive authority. The question before the Court relates to this new situation.
My Government believes thiit the Court should givean opinion on the impor-
tant legal question submitted io itby the Security Council.
III
1turn now to the third question, the validity of General Assembly resolution
2145 (XXI). Given the possibility that the Court may wish to consider this
question, 1wish to takeafewmoments tosummarize the attitude ofmy Govern-
ment thereon.
The United States and 114 other Members of the United Nations voted for ORAL STATEMENTBY MR. STEVENSON 501
resolution 2145. In thedebate on resolution 2145, the United States representa-
tive stated:
"As the mandatom power. South'~frica incurred certain obligations
tomard the people of ihc 1erritog.-includin~ the promotion of thei;social
progress. IIhiis not fulfilled these obligations.
As the mandatory pover, South Africii incurred certain obligations to
the iniemational community. for wh~chthe General Assembly ha? super-
visorv responsibilities. Amone these are oblieations to reoort annuallv on
its ndmin~strationof the terriÏory and to transmit petition; from theinhabi-
tanis. South Africii lias repeatcdly refuseIO carry out these obligations.
We are thus confronted with a continuing material breach of obligations
incumbent upon the mandatory power.
.......,...,... . . . . . . . . . .
Bvvirtue of the breach of itsoblieationsand itsdisavowalofthe Mandate.
SoGh Africa forfeits al1 right tocontinue to administer the Temtory of
South West Africa. Indeed. it is because ofSouth Africa's ownactions that
it can no longer assert itsrieht under the Mandate: and aoart from the
Mandate, South Africa has no right to administer the'~errit&." (GA,OR,
Twenty-first Sess., Plenary Meetings, 1439thmeeting.)
In preparing our written statement in this proceeding we re-cxamined the
premises upon which OurGovernment's 1966statement was based. Wereaffirm-
id our conClusion that the General Assembly validly terminated South Africa's
right to administer the Mandate. Io particular, we regard the Mandate of 17
December 1920 to have been a treaty in force hetween South Africa and the
League of Nations with the United Nations succeeding the League as a Party
in 1946. Accordingly, we regard the treaty principles relating to pocla sunf
servanda and to material breach as applicable to the mandate agreement. Under
these principles, South Africa's long-standing matenal breaches of its obliga-
tions under the Mandate, which it was legally required to carry out in good
faith, clearlv justified. in mv Government's view. the action of the General
Assenibly i~tcrminaiing SOU-th ~frica's rights. Inthis regard it shoube noted
that South Africa does not den) thüt$hç failed for more than IWO dçcndes to
furnish the General ~ssemhl~ with the annual report required under the
Mandate or to transmit petitions as she had been required to do dunng the
League period.
Now. even if the Court were not to acceot the areument that termination
of Soulh Africa's riyhts under the Mandate hy the ~cneral Assembly was justi-
lied by the iredty doctrine ofrnaierial bredcitismygo\,ernment's vtewth31the
General Assemblv had the rirht -o terminate south Africa's riahts i- the
General Assenibly'scapiicity assuccessor to the Lengueof Naiions'supenisory
responsibiliiy. The General Assembly hus ïccepted the 1950Advisory Opinion
in which thisCourt statedthat the suoervisorvauthoritv under the Mandate of
the League of Nations had passed toihe ~niied ~ations. On the basis of an
exhaustive study of the power of the League to terminate rights under a man-
date,my Government hasconcluded that thissupervisory authority whichpassed
to the United Nations clearly included the authorityto terminate rights under a
mandate.
Given the seriousness of South Africa's failure to carry out ifs obligations
under the Mandate and the failure of South Africa to comply with a senes of
lesser supervisory measures adopted during that period, the United States
considered that the Assembly might reasonably resort to termination. theultimate supervisory measure. While the Assembly might have appointed a
Member of the United Nations to administer theTerritory, there was precedent
for the United Nations itself to assume direct responsibility for the Territory.
The Charter bais for the General Assemhly's decision is, in Our view, the
same as the Court held existed for the United Nations' exercise of supervisory
functions, namely Article 80, paragraph 1 (Internotional Stotiis of Sortth West
Africa, Advisorv Ooinion. I.C.J. Reoorts 1950. n. 128 al 133-134. 136-137).
Ünde; that ~rticle and under the an date the'General Assembly &asentitléd
to take such action as was necessary to ensure that the rights of the people of
Namibia were not altered in anv manner in disreeard of The an date .S the
Court \ratcd in 1950(pp. 136-13i),the purposeofthis pro\,ision uas-tu proiide
a rcal protection for those rights". The action takcn bs the Gencrdl Assembly
was a reasonable exercise of this authoritvt. .otectthe oeonln of'Namihia and -
to safeguard the "sacred trust of civilization" and "the material and moral well-
king and the social progress of the inhabitants".
Itis the view of &e Ünited States that the Assem~l~-~~~~~~~< -a~ ~e~a~lv ~-~~~~.
sufficientto terminale the Mandate without any action by the Security Council.
Should the Court, however, have any doubt as to the suiiiciencyof the General
Assembly'sindependent authority where the United Nations isictingas succes-
sor 10 the haeue u,ith respect Io the Namibian Mandate, this doubt surely must
be satisfied when, as is presently the case. the Securitv Council ha ex~resslv
affirmed the General ~ssemblv's action.
The Securit). Council's alTikation of the Cimeral As\embly's resolution in
any event servesas the point of departure for the Council's l'urther resolutions
with respect to Namibla.
IV
In its written siaiement South Africa has contendcd that none oi the relevmt
provisions of the Charter could serve as a hasis for the Seciirity Council resolu-
lions with respect to Namibia.
In the view of the United States the Security Council action on the Namibia
question could have ken taken either under Chavter VI or in the event the
Securit). Council is regarded as sharing with the ~enera1 Assembly the United
Nations' rcsponsibilit). assucccssorto the Leaguein supemising Namibia, under
Article 80, paragraph 1,or undcr both. Itis common ~ractice for the Council
no1tosptcify thit provision of the Charter underwhich'it is acting. The United
States has taken the view th31in the Namihia case thc Council uas dealing uith
a situation under Chapter VI the continustion ofu,hich it klieved \\as "likely
IO endanger the maintenance of international Face and security". There ha\c
ken many cases &fore the Security Council in sihich the Council has taken ac-
tion under Chapter VI without a finding that the continuance of a dispute or
situation is likely to endanger the maintenance of international peace and
security.
It is abundantly clear in my Government's view, from the records of the
Council, that the measures taken were not based on Chapter VI1 and do not
obligate States to take action under that Chapter. 1would respectfully draw the
attention of the Court to the fact that any action under Chapter VI1 as dis-
tinguished from Chapter VI requires a preliminary finding under Article 39 of
the Charter that a particular situation consfitutes a threat to the peace, breach
of the peace or act of aggression. There was no such findina with respect to the
situation in Namibia. &nsequently, there could have beeR no action or mea-
sures, whether recommendatory or obligatory, under Articles 40, 41 or 42. ORAL STATEMENT BY MR. STEVENSON 503
The qucstiuii presented 10 the Court relates only to consequenccsfor States
of the continued presenceof South Africa in Namibia. Care should be takcn
in defining the legal consequencesnowing from the rele\,ant Sccurity Council
resolutions so as tu protcct individual rights of the inhdbitantj of Namibia or of
citi7ens of othcr States, leaving these to be determincd in the light of the cir-
cumstances surrounding each case. In müny cases ituill hc for the courts of
mcmber States 10 determine, in accordance ivith recogni7cd principles of private
and oublic international law. the effect on orivate relationshi~s and transactions
of ait5 takcn by the ~ovcrnment of south Africa on behalf of, or concerning,
Namibia aftcr the adoption of resolution 2145 (XXI). IIwould, ior example, be
a violation of the richts of indi\,iduals if a foreian State should refuseti~recoc-
ni~e the right of Nimibians to marry in accordance iiith thc Ilius in force in
Namibia, or rcfux tu aciept their niarriage ccrtiliiate on the ground ihat it iias
issucd bv the illecal South Africün authorities in Samihia. or would consider
tlicir shiidrcntt6c illrgitimate. A contraci for thrsslc of g<;<xlsalso rhould not
he dcclarcd inmlid merely because itwas entcred into in ascordance wirh ordi-
nary iommrrcial Iü\\s ii~~lied to Naniibia bv South Africa. These mould not
be broper consequencesgf the United ~ations actions on Namibia.
On the other hand, asamatter of present andfuture policy, it would beproper
for States to try to limit future investments in Namibia by al1legitimate means
at their disposai. The United Statesannounced iit May 1970that itspolicywith
respect to Namibia will be as follows:
"1. The United Stateswill henceforthoficially discourageinvestment by
US nationals in Namibia.
2. Export-Import Bank credit guarantees will not be made available for
trade with Namibia.
3. US nlttionals who invrst in Namibia on the büsis of rights acquircd
through the South African Governnient since adopiion of Gencrül Assem-
bly Kesolution 2145 (27 October. 1966)will not reicive US Government
assistance in protection of such 'investments against claims of a future
lawful government of Namibia." (62 Deporrmentof Stote Bullerin(8 June
1970). p. 709.)
The United Stateshopes that others will take similar steps, andthat an accumu-
lation of such measuresmay cause the South African Government to accept a
peaceful resolution of the international issue of Namibia.
Mr. President, 1should like to comment briefly on the offer by the represen-
tative of South Africa to furnish additional information as to conditions in
Namibia.
In so far as the Dresent Droceedines are concemed. the most relevant infor-
rnülion regarding <ümibiauould beihat \\hich established the conduct of the
Msndatory with regard to the performltnce of its obligations under the Mandate
prior 10 27 0ctol.er 1966. the datc on uhich the Gcncrül Assembl, adoutcd
resolution 2145 (XXI). T&O of the elements of material breach referred <O in
that resolution are failure to submit reports and to transmit petitions. South
Africa does not claim oerformance of either of these oblieations.
The third elcment or breach specified in Gcnçral ~~seibly rcsolution 2145
(XXIJ 1sfailure 10 cnsurc the mord and material uell-being and sccurity of the
indicenous inhabiiants of the Territory. Man) States hïve, in the course of the504 NAMIBIA (SOUTH WEST AFRICA)
General Assembly debate, found that failure evidenced by South Africa's
application of apartheid to the Tem'tory.
Regarding the general question of evidence, my Government would not
incline favourably to any de novoexamination of the facts. We do not believe,
Mr. President, that the Court need establish for itself the facts upon which the
General Assembly relied.
General Assembly resolution 2145recites that before adovtinc the resolution
the Acsembly hdd studied the reports of the vïrious comniitiees yvhichhad ken
est3hli5hed to exercise the supcrvisory functions of the Unitcd Nations over the
administrdtion of the Tcrritory. At al1 relevant limes those commitiees hsd
endeavourcd to obtain the \,iewsof South Africa, iihich consistently refuscd to
pdrticipate in the uork of the commitices or to sssist them in esrablishing the
facts.
Should the Court consider it necessary, despiréthe consideratii>ns which I
haveju*t described. to confirm the factual basison whichthe Assembly'sresolu-
tions were grounded. the best contemvoraneous evidence would seem to be
thdt prcscnted 10the Court in the .South Wesr Africo cxses. Some 2.000pages of
the pleîdings in those cases were devoted to fastual questions, and much of thc
information presented 10 the Court ai ihai ilme us, adduced by South Africa.
In its writien statement South Africa has also offered to produce evidence
as to the "latest progress" in Namibia. In the view of my Government, such
evidence would not be relevant to the question before the Court.
In the course of these proceedings, the South African Government has also
proposed that a plebiscite be held in Namibia under thejoint supervision of the
International Court of Justice and the Government of South Africa. The
vrovosal for a vlebiscite is not. in the view of the United States Government.
material to the-question put to the Court by the Security Council. ~herefore;
we do no1believe that this proposal should in any wa~ be~iewed as a basis for
the Court's vostvonin~ the renderina of its ooinion.
The unitid tat t eoses believe th; the qu&tion of holding a fair and proper
plebisciic under appropriate auspices and with conditions and arrangements
which would ensure a free and informed exoression of the will of the Goole of
Namibia deservesstudy. It isa matter whichmight beproperly submitied io the
competent political organs of the United Nations, which have consistently
manifested their concem that the Namibians achieve self-determination. The
Court may wish to so indicate in its opinion to the Security Council. Should
these political organs of the United Nations request the Court to play a role
in any plebiscite arrangements, the Court could then consider whether it can
appropriately participate in such arrangements. It might be recalled that the
officers of the Court, though not the Court itself, have appointed observers to
attend the plebiscites in Tenda-Briga in 1947and in the French Settlements in
India in 1949.
Mr. President. in accordance with the w~sbe~ ~ ~the Court. 1 have refrained
from rcpcating the arguments in my Government's trriiten st~temcnt. I would
Iike, at this point, io summarire the conclusions which the Government of the
United Statessubmitted in that document. ORAL STATEMENT BY MR. STEVENSON 505
First, the United Nations validly terminated the rights and authority granted
to South Africa under the Mandate of 17Decemkr 1920.
Second, South Africa no longer hasany rights in Namibia under the Mandate
and there is no other legal bais for ils continued presence in the Territory.
South Africa is. therefore. oblieated to terminale its occuoation of Namibia and
to transfer administration of Ïhe Territory to the unitid Nations. This is its
over-riding obligation and I respectfully urge that this is the most important
conclusion that the Court can reach.
Third, a number of important legal consequences flow from South Africa's
continued illegal presence in Namibia. These consequences are of two general
kinds. South Africa ha certain leeal duties which. because of its de facto
occupation, it must observe so long as it remains in ~amibia. Other tat talso
have certain duties under international law with respect to Namibia. Let me
turn ht to the consequences for other States: they have the duty to respect the
direct responsihility of the United Nations for Namibia and to assist it in
exercising those responshilities and to apply certain specified rules to treaties
affecting Namibia.
South Africa's duties include obligations to promote the well-being and
development of the inhabitants; to act in conformity with Chapter XI of the
United Nations Charter concerning non-self-governing territories; to act in
conformity with Chapter IX and certain other provisions of the Charter; and
under general international law, to adhere tocertainstandards intheadministra-
tion of~amihia. However, it should be made clear that compliance with these
obligations in no respect relieves South Africa of its primary responsibility-to
terminale ils illegalpresence in NamibiaQUESTIONS BY JUDGES SIR GERALD FITZMAURICE, DILLARD,
JIMENEZ DE ARECHAGA AND MOROZOV
The PRESIDENT: Mr. Stevenson, JudgeSir Gerald Fitzmaurice,Judge Dil-
lard and Judge Jiménez de Aréchaga havesome questions which they wish Io
address to you; these questions will be read out tayou. You can answer them at
your convenience and, if you prefer, you can remit your answers in writing
to the Court.
Judge Sir Gerald FTTZMAURICE: Mr. Stevenson, my first auestion is this:
ilhas ken mainiained on behalfofihe Uniicd States that-fundamental brcachcs
ofa coniraci by one part). entiile the oiher io put an end tu II. 1rvould Iike io
know how, in your view. exactly this would work in ~ractice. For instance. it is
evident that ifa pariy could puÏ an end IO ücontractiiierely b) allcging funda-
nienial breachcs of 18.and despite the denials of the ijihcr pirty. iihcthcr on
the facts or as regards the existence of the obl-aation. there would alwavs be an
ohvious snd cas).iia). out of contrscii u hiih one of the parties fo.ind oncrous or
inconvenient. Whai sifcgu~rd\ \i,ould y,iu instituie iiiorder 10 prevent ihis. and
how would or should such safezuards aoo.. .n the international field. in the
relations ktuecn St.itcs or heti\een States and internati<>ndlarganiraiions?
My second question isthis. 1uould he glad ioknou uheiher. aftcr hearing or
read,nc u,hat has been said on behalfofSouih Africa ai su.ro..oï-cs 367 io 372.
445 to-451, and 453, it is still maintained on behalf of the United tat tes
that the former Mandate for Palestine was unilaterally terminated hy the As-
sembly without the consent of the mandatoiy power and, if not, what precisely
is supposed 10 be the relevance of the Palestine case to the present one?
My third and last question is as follows: in the opinion of the United States
Government is there any rule of customary international law which, in general,
obliges States ta apply sanctions against a State which has acted, or is acting,
illegally-such as cutting off diplomatic, consular and commercial relations
with the tort-feasor State? If not. in what manner would States become com-
pelled so to act-not merely by way of moral duty or in the exercise of a faculty.
but as a matter of positive legal obligations?
Judee DILLARD: Mr. President. 1 had framed on the basis of the written
~ ~ ~ ~.- ~ - - ~ ~
stiiiemeni <ifthe Uniicd Siaies iiio proups of hasic questions uhich 1thoughi
needed addiiional çlaboration. 1 ihink these questions have ken ansivered or.
a1 least, ihc disiinçuished represeniaiive of the United Staics has addresred
himxlf to [hem during the oral procecdings.
l'or the record 1m3y S~Y that the Tirsiof the firsi croup of quesiions had to do
with the identification-of ihe parties to the treaty and when they became parties
toit. On the theory of a material breach oftreaty, this seemed to me a desirable
addition to the written statement.
The second of the firs~ -rouo.~elated to the ooint that auestions of material
breach of3 ireaiy involve mi~edquestions of Iawand f~cr,and uis designed ta)
deieriiiinc uhethcr yoti dqsiimcthc f;ias io have hecn c\txhlihhed and thus noi
subiect to further investieation and. if so. on what rrounds. i.e.. bv virtue of a
. ,.
conclusive determinati~nb~ the political'organs ofthe United Nations, or by
judicial notice oron some other grounds. 1would have gone on to ask whether,
if your answer to that question was that the Court should not simply assume
the establishment of the facts, you thought the Court should bear testimony on QUESTIONS BY MEMBERS Of THE COURT 507
the factual issues asserted to have constituted a breach. Now, in my opinion,
Mr. President, the United States representative has addressed himself to these
questions.
My second group of questions had reference to the specificCharter authority
on which General Assembly resolution 2145 was based. This related more
spcciiic~llyio the grneral statcmrni on page 877.1,of the United Sraicçwritten
statcinent, \\hich di4 no1 identify 3ny p~riisulûr Charter arti;le on \\,hich the
\.;iliditvof Gencral Assemhlr resoluiion 2145was Iwantcd to ilarifv that
point.Ï understand that you have now located this Charter basis in ~rtiile 80
and that this question has also been alluded to.
Therefore. Mr. President. 1 would not wish to out the auestions in the wav
originally fked, but if the representative of ihe unitid States woubé
disposed to elabnrate further on them it might be helpful.
.ÏudgeJIMÉNEZ DE ARCCHAGA M: F~tevensin, 1refer to your discus-
sion of the Court's jurisdiction and the question of voluntary abstention. Does
your statement imply that the position of your Government is to ask the
Court to determine, by implication, that paragraph 3 of Article 27 of the
Charter, and not paragraph 2, applies to any decision of the Security Council
requesting an advisory opinion?
The PRESIDENT: 1 understand that il is the wish of the representative of
South Africa ta address the Court tomorrow moming on the question of the
plebiscite in answer to the observations that have been made with regard to it
by the representative of the Secretary-General and the representative of the
United States of America.
TheCourtrose orIl a.m. TWENTIETH PUBLIC SITTING (10 11171, 10 am.)
Presenr:[Seesitting of 8Ii71.1
The PRESIDENT: in the context of the auestion addressed to the renresen-
tative of the United States of America by Judge Jiménezde réc ch agyesterday,
Judge Morozov desires 10 address a question 10 the representative of the
~niled States of America also.
Judee MOROZOV: 1 would like to out a auestion which anses out of the
question which wasput to the representative orthe United States of America at
the end of the ~uhlic sitting of the Court yesterday, 9 March. MYquestion is:
Do~~-the re~resentative of the United States of America not think that il is
cleilrfrom ~e;;rity Council resolution284 (1970) that in the processofnd<~ptio~
of thal resolution the Security Council was gu~dedhy the provision^ of parn-
graph 3of Article 27of the Charter of the Cntted Nat~oni!
Would-it.be right to conclude from the staienient indde on behalf of the
United States of Anierica that the application ofArticle 27, parngraph 3, of the
United Nations Charter in the case of rcquests made by the Security Council
for advisory opinions of the Iniernational Court of Justice is hased on the
Chaner itself. and coincides iiith the uncontestcd intemrctation conwined in
the followingwell-known documents:
1. Record of the third Plenary Meeting of the Yalta Conference, of 6 Febru-
ary 1945,at which the UnitedStatesSecretaryof State,Mr. Stettinius,said that:
"The following decisions relating 10 peaceful settlement of disputes
would also require the affirmative votes of seven Members of the Security
Council including the votes of al1the permanent members ...
IV. Whether the legal aspects of the matter before it should be referred
by the Council for advice to the International Court of Justice;" (Foreign
Relations of the United States, Diplomaric Papers, The Conferences ar
Malla and Yalta, 1945,p. 663.)
2. Statement by the Delegations of the Four Sponsoring Governments on
Voting Procedure in the Security Council, of 7 June 1945, devoted to the
questionnaire attached to Memorandum of Sub-Committee IiI/I/B, Security
Council, of the San Francisco Conference (particularly Question 13), which
confirmed that at the Yalta Conferencethe Heads of Government participating
accepted the suggestion of the United States of America jus1 quoted, which
suggestion later is reflected also in the Statement hy the Delegations of the
Four Sponsoring Governments, Part II (see UNCIO docs., Vol. Ji,pp. 704and
713);see also the Report 10the President on the results of the San Francisco
Conference by the Chairman of the United States Delegation, the Secretary of
State, page 11 onwards. ORAL STATEMENT BY MR. DE VILLIERS
REPRESENTATLVEOF THE GOVERNMENT OF SOUTH AFRlCA
Mr. de VILLIERS: Mr. President, honourable Members of the Court,
towards the end of the session last Friday (17th Public Sitting) we submitted to
the Court that an early decision on the South African proposal concerning a
plebiscite was desirable. We particularly stressed what an eîïect such a decision
could, in our submission, have on the nature and the scope of an investigation
into relevant questions of fact.
In the mean-time, representatives of the United States and of the Secretary-
General have addressed the Court and they have included in their addresses
comments on the plebiscite proposal.
We propose, at this session, to reply immediately to the reactions of these
distinguished representatives on this subject. That would enable the Court,
should it so wish. to come to an early decision on the principle of the proposal;
the propowl itselfenvisages that rnÿiters of detail would require aiterition once
the Ctiurt hîs ~ndicatedthît itisamenablc tu the idecia, such.
There was. in these two reactions to which 1have referred, rather a marked
differcnce in tone. That of the United States reaction wassubdued. It recognized
responsibly that :
". . .the question of holding a fairand proper plebiscite under appropriate
auspices and with conditions and arrangements which would ensure a fair
and informed expression of the will of the people of Namibia deserves
study" (supra, p. 504).
As 1said, with respect, that is a responsible approach recognizing the potential
value of a leb bis citn this context. provided that the conditions and other
arrangementsare such as to ensure a fair and informed expression of the willof
the people.
At the same time. the distinauished renresentative argued that in the context
of these advisory proceedings in this CO& the proposd was 'hot .. .material
to the question put to the Court by the Security Council". We submit that that
contention is not well-founded and 1 shall deal with it in due course.
1 wish to refer first, by way of contrast, Mr. President, to the Secretary-
General's reaction, which was, as the Court would have noticed-an agitated
one-even bitter and resentful, it seemed. It connotes, in elTect,that, to the
long list of sins for which South Africa has been condemned at the United
Nations, there has now ken added the most deadly sin of all, namely the
suggestion. which South Africa has made. that perhaps the justification or
~th~rwiwof ihe actions in the Uniied Nations or&s &y relevantly k iested
uith refercnce to the viewi and uishes of the inhîbitants of South West Africa.
Theattitude whtch came from the part of the Sccretary-Gcneral was iherefore
a cate~..~c~l rei.ction of~the ~hole oro.os~r.~flatlv and unconditionally. The
distinguished representative stated ihat, at any timc. ".. . ilwould have been
niÿnifestlv ini~osrible Io itccepi the ternis of a plcbi\cite as set out in the Present
South A&& proposal" (suira, p. 496).
At a later stage. he indicated, "such a proposal might have formed a basis
for negotiation had it been made to the General Assembly during the time that
South Africa was still the lawful Mandatory" (ibid. B)ut now South Africais in "illegal occupation of the Territory" (supra,p. 494), and, in the result, the
proposal is"legally andpractically incapable of implementation" (si. .o,p. 495).
~oart from this absolute reiectio" Mr. ~resident. the statement of the
~ecretar~-~eneral goes out of i& Gay to try to subject the proposa1 to ridicule
and even scorn. The proposal is said to be, inhis words, "manifestly irrelevant",
and. aeain auotine his words "not one which is canable of estahlishine the
facts orthe s~tuatioi in Namibia at the present time, id still less in the relevant
time in 1966" (si<pra,p. 492).The proposa1 was said 10 contain elements which
were "misleadingand~inappropriaie2' (supra, p. 494). And il was further said to
suffer from "inherent inconsistencies between the proposal which was made
and the purposes to which it purports to relate" (supra, p. 495).
Mr. President, 1 propose to deal first with the attitude of the Secretary-
General and then 1will revert to that of the United States.
Il will be evident that we have had from the Secretary-General much the
same kind ofapproach as in the case of the Organization of fric an Unity and
certain other States, with which approaches 1dealt on 16 Fehruary, namely an
approach of lookin very closelv and verv hard for technical hitchcs. technical-
ities however minute and small,.not witha viewto seeingwhether theycould be
overcome by constructive suggestion as to conditions and methods and mo-
dalities, but for the other purpose of seeing how big they can be blown up to
serve as objections which can be raised to the idea of a plebiscite being held at
ail.
The comer-stone for this attitude is given exactly in the phrase which 1have
quoted bcfore, namely thai the proposaÏ is "miinifestly irrclfvant" and '.n<itone
whish urould be cap3blc ofesiablishlng the facts of the situaiton in Namibia at
the uresent time, and dl lcss in the rclcvani tinic in 1966". 'Theargument on
thispoint of relevancy goes so far as to state this, Mr. President: -
"... the plebiscite could not rebut the declaralion in paragraph 3 of
resolution 2145 (XXI) that South Africa has failed 10fulfil its obligations
in respect of the administration of the mandated territon and 10 ensure
the moral and material well-being and security of the indigenous inhabi-
tants ..." (supra,p. 493).
And il is even suggested that the facts of the situation in South West Africa
and the wishes of the inhabitants are two distinct things which cannot be
ascertained in the same manner. That is also at page 493, supra.
Mt. President. the auestion that immediatelv cornes to mind is whv is this
suggcsted? Il is very sirange to heu this from'a United Nations source. Has
the United Nations majority line against South Africa not consistently ken
that there is one iniegrnted situation in South West Africa, wherrby the inhabi-
tants are suiïering uniold rniscn under the yoke of a tyrannous oppressor, and
are consequcntly crying oui for Iiberation~Thai has, as Paras \vcundersiand il.
always been the manner in which the maioritv has uresented ils case of fact in
regard 10 ihis situation in South Wcst ATricî; oncof a tyrannous yoke which
results in <inaitiiude on the part of the population of clamouring for liberdiion.
In the South African written statement-1 want to nive the Court onlv a few
examples of the way in which this attitude has beenrtated on previoui occa-
sions-in Chapter XI, paragraph 53, we quote certain of the expressions which
were used by representatives of States in the verv debates in 1966which led 10
resolution 2145,statemcnis made by thcm as king the Füctu~lbasis upon which
il was said that the resolution was io be adopted. 1do not wiint 10quote al1of
them, 1 take out only a few which are relevant to this particular point. 1quote: ORAL STATEMENT BY MR. DE VILLIERS 511
"the shameful and discredited svstem of the exnloitation of man bv man":
"the inhuman treatment by the South African ~overnment"; "a brutal polici
of iron and blood; "the untold tyranny imposed on the Africans"; "a peculiar
mixture of themost retrograde features of al1systems of exploitation and social
and political oppression".
Mr. President, does it not stand to reason that if these descriptions were
correct, it would follow that a population so treated would jump at any op-
portunity of expressing their will in favour of being rid of this yoke and this
oppression? Yet, we are told that the proposal is manifestly irrelevant.
The Se~ ~ ~v Council resol~-~on 269 (1969).which is one of those featurine
in the.%proceedings, s1ate.iin 11soperaiive paragr~ph 4: "R~coy>rizrrthe lcgiti- -
macy of theslrua~le of the neo~leof Namihia againsi the illexalnreu.nsc of the
~oulh African authorities-in ihe territory." And in operaiive paragraph 8:
"Requesrsal1States 10 increase their moral and material assistance to the people
of Namibia in their struggle against foreign occupation."
1ask a~~un. .r. President~~with submission. would a ouestion nosed di.ectlv
by wayof iiplebisciie to ihai population: "do sou want tocarr). on under Siluth
African ;idm~nistraiionur some uther administr~tion?', uould that no1be ex-
tremely relevant to testing whether there is,in fact, such a struggle of the people
of Namibia against its present administration? That was 1969.
Now 1come to a publication hy the United Nations, an officialpublication
dated 1971. It bears the inscription of the Office of Public Information, its
title is A Principie in Tormenr. 1should like to read to the Court the opening
words of the introduction, page 1:
" 'Weare Namibians and not South Africans. We do not now, and will
not in the future recoe-.ze your right to aovern us; to make laws for us in
whirh ue had no say; to treat ourco~ni~~ as if it werc your properiy dnd
u\ a$if)ou uere our masiers. We have alu,ays regarded South Africa as an
intruder in Ourcountry.'
In these words addressed to his South African captors, a Namihian
liberation leader spoke for a people in a state of bondage. For more than
half a century, the Africans of Namibia-outnumbering the whites of the
country by seven to one-have heen under the domination of South Africa
and its policies of aparrheidand white supremacy. Deprived of any role in
government and barred from exercising their basic human rights, the
-5W,000Namibians await the day when they will be free and equal in their
own land."
So this is the date of 1971.That is the theme on which this official United
Nations publication starts, it isthe theme which runs like a thread throughout
the publication. The publication, incidentally, contains some of the wont
pieces of distortion that 1have ever seen about facts, but it isnot my purpose to
deal with that now.
That is what is presented on behalf of the United Nations in 1971,about the
facts of the situation in Namibia.
On the other hand, another representative of the United Nations States to
this Court that a plebiscite to test the wishes of the people of Namibia as to
whether thev want to carrv on under the nresent administration is manifestlv
irrelevant, and he goes sofar as to Sayth& this is a proposal which would be
incapable of establishing the facts of the situation in Namibia at the present
time and still less in the~relevanttime in 1966.
Would it not be extremely relevant to see whether persons who speak as thisparticular man spoke, are in fact speaking on behalf of the people of Namibia?
Would not the plebiscite be the best test of al1for that question?
Now, Mr. President, later on in the book referred 10,at page 25, we bd a
reference to the visit of Ambassadors Carpio and Martinez de Alva to South
West Africa and South Africa in 1962.1believe the actual date was 1961, but
the date is given in the publication as king 1962.There follo- this passage,
which incidentally does not refer at al1to thejoint communiquéin which these
two~ambas~adors aereed that thev could find no siens of ee~ocide or a threat to
the peïcc or milianration in soith West Africa-there Ysno rcfercnce Io that,
but there is this pïssaec. the correîtness of which 1have not fully checked. but
presented in this unicd Nations publication as follows:
"After visiting the Territory in May, the two officersreported that the
administration of South West Africa was pewaded by the rigorous ap-
plication of apartheid in al1aspects of the livesof Afticans, resulting in the
complete subordination of their interests to those of the European minor-
ity-in contradiction with the principles of the Mandate, the United
Nations Charter. and the Universal Declaration of Human Rihts. It was
the overwhrlming desire of the Africans. thcy said, that the unircd Ndtions
should asqumc direct administration and take steps to grant freedom to
the indigenous population."
That is another example givingexactly this integrated majority United Nations
attitude about the facts of the situation in South West Africa.
So we have seen it now, Mr. President, at these various points of time-1961
or 1962; 1966,immediately before the purported termination of the Mandate;
1969,in the Security Council resolution to which 1have referred; and 1971,in
this publication. Yet the contention is that a test by way of a plebiscite, abso-
lutely and in ~rinci~le. is "manifestly irrelevant". That line. Mr. President. 1
subniit. vcry clearlyfalls to the ground.
If one Iooks morc closel) at the staternent on behalfof the Secrstary-Ceneral
whdt does one find is olïered in suoport of this over-all contention about irrele-
vancy'!On ïnalysi, unc finds tha; the material offered a$ being supporting
rnatertal is not directed at rclevancy. ln a logicsl scnse, but ai a contentton thst
the result would not bereliable evidence-not evidence uuon which this Court
could rely. Several reasons are given for this contention.
First, we are told that if in this year-1971 or 1972,the distinguished repre-
sentative stated-a Diebiscitewere to be held and if a maioritv were to vote in
South Aïrisa's fabour, that sould still be intcrpreted agiinst.~outh Africa: it
could still k interpreted as indicating ûlack of political development for which
South Africa as mandatorv or administerina authority is to be blamed. It is
like the old saying of "~eads 1win, tails yoÜlose3'-the coin has ta stand on
its edge beforesomething favourable ta South Africa cornes out of a test of the
situation.
This isa sueeestion made with reference to 1971or 1972and vet in almost the
uu ~
sïme bresth we are told thit the Cicneml~ircmbly hïd decidédas far back as
in 1966,and again iornewhdt Iater, on June 1968as a tareet date for indepen-
dence for this ver) xlf-snme pop~lation of South West Africs (si~pru,p. 494).
We are tuld that il !%ahdecided in principle already ihat upon atrainment of
independence there u,ould be established a Iegislsrive ûssemhly l'orthe whole
territory which would be elected by the whole population on the basis of
universal adult suffrage (ibid.) So this same population which could, if
they were so stupid as to vote in South Africa's favour in 1971 or 1972, he
said to be wholly lacking in political development, so wholly lacking that they ORAL STATEMENT BY MR. DE VILLIERS 513
cannot identify a tyrannous oppressor and make use of an opportunity offered
to them to say we do not want this bondage any more, has been offered inde-
pendence from the General Assembly side at as early a date as 1968: and not
only independence, but self-government on the basis of universal adult suffrage
for the whole of the population.
Then it is said, secondly, MI. President, that the questions proposed to be
put are misleading and inappropriate. This condemnation emanates from the
description in Our letter in which the proposal was conveyed to the Court of
the two alternatives between which there would be voting in such a plebiscite:
these, according to the proposais, would be, on the one hand, continued ad-
ministration of the Territory hy South Africa and, on the other hand, the words
were that it "should henceforth be administered by the United Nations" (ibid.,
o. 494).The orotest lodaed runs somethine. like this. that in fact this is
hislead~ng, bknurc on théUnited Nations side adrninist;aiion is not propojed
fur any lenglh of time: what is envisagcd is only a short period of transition to
indcoendcricc. Thar is obviouslv so. Mr. Presidcnr. wrrh rcsnect. but uhs does
the ~ccretary.~eneral accuse the South African proposal of king niisleïding
and inappropriate on this point? Whsi giws hini any justificüiion for assuming
that this important factor, to which he draws attentioii in his statement, would
not be drawn to the attention of the population of Namibia, or that it isnot
the exact intention of the proposal that it is to be drawn to their attention?
The oronosal nowhere indicates that it is now suaaestine the iosissimaverba
of questions to be put in this plebiscite. Surely the ta& of decidini upoipsissi-
ma verba would be one exactly for the committee of experts in CO-operation
with the South African Govemment. It would be a most important aspect of
determining whether the conditions under which the plebiscite could be held
would be fair and reasonable.
In essence one finds much the same thine on both sides. The United Nations
has indicatedthat if it were to take over the administration of the territory it
would accord self-determination to the population according to certain United
Nations conceots. includina this one which 1 have mentioned before of one
legislative assembly for thé whole territory in which the whole population
would be reoresented on a basis of universal adult suffrage;that iscertainly one
of the mos<important things to be brought to the notice of the population so
that they would know what it is that they are voting about, and what the im-
plications are.
On the other hand. the South African oolicies have made it clear that thev
envisage self-detemination according to Somewhat different concepts for the
population of South West Africa, and those concepts have been explained to
the ~ooulation from time to time. Thev know what thev are.
N~W,surely it would be part of the whole supervis06 process in regard to a
plebiscite to make perfectly sure that these implications are brought to the
notice of the oooulation so that thev know exactly what it is they are votina
about. ~hethér it is to be done by théfom of words in the questions to be put
themselves, or whether by other means, would be a matter of practicality, a
matter of detail which would again have to be considered by this committee of
experts.
Yet this is grasped, Mr. Piesident, as a basis upon which to launch this attack
against the South African Government of making a proposal that is misleading
and inappropriate.
Then we find, thirdly, that the suggestion is that it would not be possible to
ascertain the wishes of the inhabitants under conditions which would ensure
impartiality and freedom of choiee. Certain allegationsare madeas toconditions ORAL STATEMEN TY MR. DE VILLIERS 515
hound to an unfai,ourable result-l really do not knou hou it folloueJ.
htr. Prestdcnt. Neverthelesr, hÿving indulgcd in (hi5 exercise, what poini is
itthai the Secretary-Gencral wirhesio makc in this regard? Itrnust hc ohvioun
thal the \rholc concept of a plchisci~e,as disiinci from a rcfçrenduni in par-
tlcular coniiituiional cir~unisiiinces, is one of consultailon of a population.
it is not one which automaticallv has a binding effect in law-that is clear
from the whole concept of the subject-matter of the proposal. But, at the same
time, the concept in circumstances such as the present holds within itself
enormously important practical consequences,which will be so obvious. In
the event of an ovenvhelming vote by the population one way or the other
the practical consequenceswill be of very great significance. It needs very
little imagination to predict what weight the United Nations majorities would
attach ta anoverwhelming vote in favour of a take-over by the United Nations:
and yet that is the basis, the basis of that risk, upon which the South African
Govemment is making this orooosal. But apoarentlv the risk of aettin~ a
- -
result to the oppositeëffect is tAo much for-the ~ecretary-General, because
that is on what heseemsto harp. The only possible basisupon whicb a binding
effect couid emanate from such a oiebiscite wouid be a soeciai agreement
betuecn s~)esiallyinicresterl parties to altach certain binding consequencts IO
ihat rçsult.It \\r)uld he posstble :n Iaw for the Sccrctary-Cencr;il IOoffcr thxi
the United Nations \iould rcgard itrelf buund 10 the resiill uf the i>lehiscitr
-this plebiscite which is being proposed. If he should do that, then 1 am sure
that very serious consideration will be given by the South African Govern-
ment to entering into a mutual agreement whereby it undertakes the same
from its side.
So, Mr. President, this attempt at discrediting the proposal by such a tor-
tuous processof reasoning to come to the conclusion, which is evident in any
event from the whole concept of the plebiscite, that it is to be non-binding,
but a very important exercise in ascertaining the weight of opinion in the
country, with enorrnous potential consequencesin the practical sphere, does
not seemto take the matter any further, in my submission.
The Secretary-General makes a big point of the alleged unlawfulness of
SouthAfrica's presencein South West Africa, and a big point of the obligation
which has been put upon other States and upon him, he says, by United
Nations resolutions, to refrain from dealings which would imply recognition
of the autbority of South Africa over the Territory. That line of argument is
r~~~~ntedat ~ r ~ - ~su.ra.'
Now, Mr. President, surely the Secretary-Generalis capableof understanding
the without-oreiudice basis upon which the oroposal was made by the South
African ~ov;rnment, 3 bris \;,hich has iii,icbce" stressrd-firsi inihc original
proporing letter of 6 Fcbruary and then axain in niy sialement or 16 February
-makina it so clear that the whole basis of the pro~osal is that nobody pre-
. .
judiscs his position in Iau or in fasi by iaking part in a plehihciit or by sup-
porting the idea. the uhule cibject king I~Iicbt rival attitudes for the purposcs
of a decision, or rather an advisory opinion, in this case.
On this point, too, the Secretary-General is implicitly asking the Court
either to decide or to assumein favour of his contention on a contested pro-
position which is before the Court for decision, and then he uses that as a
basis for rejecting the plebiscite proposal.
Finally, the Secretary-General says that the United Nations must, on
the one hand, be recognized as one of the "parties in interest" fibid.).
That is a very interesting expression, coming from the self-same Secretary-
General who contended that what came before the Security Council in respect516 NAMtBIA (SOUTH WEST AFRICA)
of South West Africa was a situation and not a dispute. He mentions the
United Nations as being only one of the parties in interest in this matter. Be
that as it may, that is one way in which he refers to the United Nations. Then
he goes on to state that "responsibility for the conduct of the plebiscite should
rest with the United Nations Council for Namihia" (ibid.). On the next page
(ibid., p. 495) he even calls that Council an "impartial organ" and he demands,
Mr. President, as a basis before any plebiscite could appropriately be held-
although 1 should no1 say he demands because he rejects the whole idea out
of hand, but he postulates, if a plebiscite were to be held appropriately at al1
-that there would have to be a vrior withdrawal from the Territon' by South
Africa: not onlv certain ~ff~ ~ ~- a: there are orecedents for i- ~ ~ c~s~ o~~t~~~-
SA~ for instance, but apparentiythe whole South African administration is
to withdraw and leave a vacuum. One wonders whether in United Nations
circles attention has bxn given to what the consequences in a practical and
realistic way would be. One wonders whether attention has been given to the
question of who will face the bill and whether any hinding decisions have been
taken about that.
1 referied last Friday to an article by George Kennan which is relevant to
this tovic. 1wish to refer now to an article by Dean Acheson in the Washinp-
ron~oir of Saturday, 2 January 1971.Again ii is an article which, in its whole,
1su,ell worth reüding. The heîding givcn to it in the nrwsp3per is "Acheson
on US involvemcnt in South West Africa". He disiusses the matier ~articularlv
from the point of viewof the United States' interests in the matter and he makes
this point:
"1 can only comment that this Govemment and any government of
eoodwill would have bxn utterlv horrified if South Africa. likewise
abandoning practical reason, had undertaken to comply [that is io comply
with the United Nations resolutionsl for the United Nations lacked
resources, in material or talent, for taking over South Africa's respon-
sihilities."
So, Mr. President, those are the features of the comment delivered to this
Court on behalf of the Secretary-General. If the statement had come not
from the Secretary-General but from a partisan government emotionally
involved in the so-called anti-colo~~al carnoaien..on-.could have understood.
if not justified, the antics on which I have ju\t dwclt.
Mr. I'rcsident. coming from an organization whiih uai formed for the mîin-
tenance of internationaÏwace,~~~ and~ ~curitv. ,or the oeaceful set~~ement of dis-
putes and for the furtherance of friendly relations, it is less easy to undentand;
and from the Chief Executive of the Organization. who is suvposed to be im-
partial, it rather surpasses belief. 1 do not wish to dwell on that, as this is not
the forum for il. 1 may be excused for asking whether the Secretdry-General
persists in his final suhmission in his oral statement (supra, p. 62) to the
effect that South Africa has denrived the inhabitants of South West Africa.
~ ~ -~
inter dia, of "their right ta SelfId~termination" and that "the law cannot bé
indifferent to a matter so basic to international order and morality". 1may sug-
eest. with resoect. that the~Se~r-~~~~~~~~.ral could orofitablv reflect .n the
meking of those Lords.
The analysis which 1 have just ofiered concerning the Secretary-General's
reaction to the olebiscite orooosal will immediatelv indicate. Mr. President.
that while such in attitudepe;sists therecan be littL hope or'prospect for thé
suggestion made yesterday on behalf of the United States that the question of
holding a fair and proPei plebiscite might be properly submitted to the com- ORAL STATEMENT BY MR. DE ViLLlERS 517
petent political organs of the United Nations. That suggestion is ta be found
at page 504. supra.
lt rimains for me to deal with the contention offered by the distinguished
representative of the United States that the plebiscite proposal is not material
to the question before the Court. That contention seemed to rest on a orior con-
tention-thx an enquiry offact is not called for or relewnt and. thercfore. sccing
the plebiscitc proposal as king pÿrt ofa prospective enquiry of Tact,that, toi),
becomes irrcle\'ant. That is hou. I undersiood ihc contention. This orior con-
tention was at pages 503-504 of the sarne record.
Now, Mr. President, that prior contention, that a de novo enquiry into facts
is not called for or relevant. rests oartlv on a statement which is made bv the
distinguished rcpresentati\,e ai page 503 of that resord to the erfect tha; two
of the clemenis of matcrial brcach relied on in rebolution 2145 wcre failurc on
South Africa's oart to submit reoorts and failure to submit oetitions to the
United Nations; and that the rack in that regard are not in diipute. Now that
part of the contention necessitates some analysis of the resolution 2145 and its
history.
1 will endeavour to show [hat in the adoption of that resolution the refusal
to report and to fonvard petitions played no part at al1and that the socalled
disavowal of the Mandate olav.d .n insienificant role and was not accorded ~ ~ ~
material ueight. Rcsolution 2145-1 do not want io rcad iis wording again to
the Court-isset out in fulin the \\,ritienstaicmcnts. lfonc looks ai thcu,ording
one sees that it was based almost exclusively on Iwo lines of argument or alle-
gation, the first one being that the inhabitants of the Territory were entitled
to freedom and independence in accordance with the principles contained in
the Charter. as amolified by resolution 1514 (XVkthe. shall 1 sav. anti-
colonial line, or dcc~lonizati6n line. The other one was that the administration
of the Territory had been conducied in a manner opprcssivc to the inhabitanis
or othenvise contrary to the obligations of the suth African Government
under the Mandate and the Charter.
It is not always possible in the wording of the resolution to distinguish
these two lines absolutely or to seoarate them absolutelv-sometimes thev
overlap. But under the fikt headini, the decolonization heading, would fail
preambular paragraphs 1 and 7 and also operativeparagraphs 1 and 2 of the
resolution. Under the second headina. the alle~ationof violation of oblirations
towards the inhabitants, would fall P;eambul& paragraph 3, then preambular
paragraph 5, which expressed a conviction that the administration of the
Territory has been conducted in a mannercontrarv to the Mandate. the Charter
of the United Nations and the Universal ~eclaration of Human ~ights. It is
to be seenalsoin preambular paragraph 6, which reaffirmed a previous resolu-
tion which condemned the ooliciesof aoartheid and racial discrimination
practised by the ~ovcrnment'of South ~fiica in South West Africï as con~ti-
tuting a crime againsr humîniry; rhen ds(i paragr~ph 8 of the preamblc
which considcred that 311thectfortsofthe United Nations IO induce thc Govern-
ment of South Africa IO fulfil ils obligations in respect of the administration of
IhcTerritoryandto ensure the well-king and sccurity of the indigenous inha-
bitants had been of no avail: oreambular oaramaoh 9which was mindful of the
obligationsof theUnited Nations towards thépeople of South West Africa;
and then preambular paragraph 10, which noted with deep concern the explo-
sive situation which existed in the southem region of Africa.
Now, in this same category-still that of alleged violation of trust obliga-
tions-falls operative paragraph 3 which:518 NAMlBlA (SOUTH WEST AFRICA)
"Declares that South Africa has failed to fulfil ils obligations in respect
of the administration of the Mandated Territory and to ensure the moral
and material well-beina and security of the indiaenous inhabitants of
South West Africa and %as,in fact, disavowed the an date:'
Thenfollowed operativeparagraph4whichpurported to contain the decision
to terminate the Mandate.
Now this analysis, Mr. President, with respect to the preambular and
operative paragraphs, serves to demonstrate two facts. One is the positive fact
that the overwhelmina emvhasis fell on the so-called rieht to fkedom and
-.
independence and on the alleged \.islations of s~bstanti~e obligation\ undcr
the Mand3te and the Charter. The second is the negative fact thdt no relimce
was sought to be placed on the failure or refusal on South Africa's part to
report and tosubmit petitions.
The $econd feature is a very remarkable one because it is one to which
attention had been drawn in the oroceedines leadine uo to the adootion of the
resolution. It was mentioned in t6e subsommittee repirt which 1q;oted to the
Court last Friday, at page 297 of that report, paragraph 16(doc. Al6300, Rev.
1).Then it was mentioncd bv various ~taies-Ge did not look them dl uo kain.
b;t as examples I could reier the Court to statements niade on behalf of the
Philippines at the 1417thmeeting of the General Assembly. . .e .0. and. Peru
on the rame page of the sdme record. And 3rguments uere raised to the elfeci
thdt these in theniselves uere violations of the Mandate. apart from the alleged
violation of the substantive obligations towards the inhabitants.
That makes it the more remarkable that when one refers to resolution 2145
one finds no reference at al1 to this alleged violation as being a basis for the
purposes of termination or revocation of the Mandate. The supervisory
functions of the General Assembly, as contended for, were referred <O only in
two preambular paragraphs, and in neither of those is any mention made of a
failure to report or a failure to transmit petitions. The second preambular
paragraph merely recalled the Advisory Opinions of 1950, 1955and 1956and
the Judgment of 1962,and then gave what was considered to be the effect of
those Opinions and the Judgment. ïhe fourth preambular paragraph stated
that the report of the various committees which had been established to exercise
the supervisory functions of the United Nations over the Territory had ken
studied. There was not a word of reference to a failure or refusal on South
Africa's part to report or to transmit petitions.
On reflection there may have been various reasons for this omission. One
important reason may have been that it was realized that the General Assembly
-or the majority-could hardly rely on a failure to report asa basisfor revoking
the Mandate or rights under the Mandate unless the General Assembly had
actually been preiudiced bv it-unless it was a serious matter from that point
of view. But on the other hand, it would not do tocreatethe impressionthat the
General Assembly lacked information on the substantive aspects of the facts.
On the contrary, the General Assembly majority purported ta be sufficiently
informed about the Territory to enable it to make the extremely dogmatic
judgments which 1have mentioned.
Of Dossibly eaual sicnificance is the fact that the correctness of the 1950
mil~tlr;ly0plnlon on the oblixstion to subniit reports and to transmit petitii)ns
remincd a niatter of genuine controversy. no! only betueen South Africd and
the mdi~.it, ln the United ;\'aiii)nsivhohad acce~tedthe 1950m3io.ity .~inion
on the point, but also between lawyers, publici;ts, judges and others. AS this
field was dealt with earlier by my learned friend, Mr. Grosskopf, 1 do not want
to traverse it again. ORAL STATEMENT BV MR. DE VILLIERS 519
Because of the fact that it did remain a matter, putting it at its lowest, of
genuine controversy, it was one of the points specificallysubmitted Io the Court
aeain for a decision in the South ~esr~frica contentious cases. In the end that
remained one of the matters which wa; no1 formally disposed of; but as my
learned friend, Mr. Grosskopf, indicated in his argument, in the course of the
~as~ ~eeal and iudicial suooort for the South African ooint of view on this issue
grcu. ihis uï;intimütei~cr). pointcdly on behdlfof ~ou1h~fri;s in ihedehdtes
in 1966io the Gencrül Assenihls ~>tfhe Uniicd Nations. So, clcïrly, ilcould noi
be said that there was in this respect on the part of South ~frica a deliberate
disregard of an obligation which it knew or acknowledged Io exist; and that
again may have ken a vital reason which caused the General Assembly to
desist from offering this as one of the bases upon which it purported to revoke
the Mandate.
However. 1 am offering these as probable and, 1 submit, auite uracticably
feasihle rcasons why ihis m3y have been so.1 do noi know ihÿi;t iia; in fact so;
wh3t 1am contcnding 10 the Court i\ ihai il is \'eV clciir ihït in F~ctihat biisis
was not relied uoon in the resolution 2145.
Then, Mr l>r;sident, thcrc rem.iins the uords in opcrütivc pïriigraph 4: '.and
hïs in fü;id:savoucd the Mindaic." in ihis regard, I wish io refcr bï~k IO\%ha!
\~,csiatcdinour \\,ritien it~tenicnt,C'hüpicr XI,pïriigraph 2,iind ar ïb~s Iw3nt
to make this exception of reading a brief passage:
"It is not clear what was meant by the phrase 'has .. .disavowed the
Mandate'. Presumably the authors of the resolution had in mind assertions
on the part of South Africa to the effect that the Mandate had lapsed.
Whilst it is true that the South African Govemment contends that the
Mandate did lapse on the dissolution of the League of Nations, it has
consistently expressed an intention to administer the Territory in the
spirit of the Mandate: in other words, Io carry out, as a moral duty, its
erstwhile substantive obligations as if the Mandate still existed. The
resolution under consideration did no1nuroort to relvon the 'disavowal'of
the Mandate as î sepüraic ground for ;raocîtion thfrcof, and, in the light
of South Africa's dccldred intenr. iis legrilconrcniions rcgïrding the lapse
of the Mandate cannot, it issubmitted, constitute such a separate ground."
Breaking into the quotation for a moment-1 will refer later Io the debate
which bears out exactly what is said-that this was not viewed by the sponsors
of the motion as a scparate ground. 1 willcontinue with the quotation:
"As has been demonstrated above, the revocation of the Mandate
cannot be iustifiedon the basis of a breach of a treatv or agreement existing
between the United Nations and South Africa, and, indeed, in adopting
resolution 2145 (XXI) the General Assembly purported to act qua super-
visory organ not qua contractual Party. And as a purported supervisory
organ. the United Nations mus1 surely have been concerned with the
manner in which South Africa administered the Territory, rather than
with views expressed by South Africa as Io the legal position."
1 would also refer the Court to a very pertinent statement made on this
subject by Dr. Muller, the South African Foreign Minister, in the General
Assembly debates preceding the adoption of resolution 2145. He said:
"My Government has frequently expressed the view that as a matter of
law the Mandate lapsed on dissolution of the League. On king asked Io
explain on what basis its right of administration would, in that event, rest, it has also explicitly stated its view in that respect. But ilhas never suggested
that if its view of the lanse of the Mandate should bewrone it nevertheless
wished to be divested Ôfthe Mandate. On the contrary, it has eonsistently
stated its intention to continue to administer South West Africa in the
snirit of the orincioles laid down in the Mandate. In other words. it wo~ld ~
continue Io Pursuéits sacred trust obligations, whether they were now to
be seen as legal or moral.
My Government has also repeatedly made clear that its view as to
absence of supervisory power on the part of the United Nations stands
independently of the question whether the Mandate has lapsed or is still
legally in force. There is consequently no justification for the assertion that
South Africa has in fact disavowed the Mandate, in the sen% which is
apparently king suggested-namely of terminating by its own action a
legal institution which would othenvise still k in force." (GA, OR, 21st
Session, 1451st Plenary Meeting, p. 3.)
So, Mr. President, these are two matters to which my learned friend, Mr.
Grosskopf has also referred-the South African contention stated on various
occasions-firstly, that asamatterof law, the Mandate came to an end with the
dissolution of the League of Nations, and secondly, that the obligation to
submit to supervisory powers fell away on the dissolution of the League,
whether the Mandate was in other resoects in existence or not.
Those iwo contenttons uere conteniionr of law.
Taking ihe first one and that isihe importanu. of the disrinciion draun by
Dr. Muller in his statement-ihat ihe Mandate hsd \anscd on ihe dissolution
of the kague. it wasa contention as to how the legal situstion uîs to be vieurd.
It \rra..not a deliberaie act of chooring to do somcihng by voluntary act on the
oart of the South African Government in order to brinp. about a result of
ierminating an institution-if the Court !$,ascorrect in ils-1950 Opinion that
the Mandate siill enistcd. it was a position thai uould have to k accepied.
There is no action on the Dart of South Africa which could be internrcted a,
being a voluntary action of trying ta do that (i.e., to terminate) and-that wds
the only relevant sense in which one could understand this suggestion or
contention about a disavowal. That in fact never happened, and that is why the
South African Government insisted, evey time il made a statement in an
international context about the Mandate having lapsed, in its contention, on
addinp. that as a matter of nolicv that would not affect its actions: its actions
wou~dbe conducted on thé baGs as if its sacred trust obligations under the
Mandate, as distinct from its obligations to report and account, were still in
existence. And therefore in the coÜrse of time virtually no importance from a
practical point of view attached to this question of whether it was correct or
wrong in law to regard the Mandate as having lapsed.
The one to which nractical imnortance did attach was the contention that
whïtevcr rnight hc th; pc>siiiunabout thc rcst ~of thc hllind:ite, the obligarions
to report and account had Iîpsed, because thît wîs ihc lepal bîsis upon $5hich
South Africa did not submit reports or transmit petitions to the General
Assembly of the United Nations.
TheCourt adjournedjrom 11.20o.m. to 11.45n.if7.
Mr. President, when one refers to the proceedings in the General Assembly
preceding the adoption of resolution 2145, one also finds that the so-called
disavowal aspect played an insignificant role in the final result. The idea was ORAL STATEME~T BY MR. DE VILLIERS 521
quite obviously an afterthought; it did not feature in the earlier parts of the
drive towards terminating the Mandate. 1 do not know exactlywhere it orig-
inated but. iust lookine at it as a matter of use of the Enelish laneuaee- it
rïihcr si>u"d;as if itdilnot came from this sidr of the ~tlant~c. Hut1redlly di,
noi know. Whai is cleiirfrom the records is that this idea does not even feaiurp
in the report of the Sub-Committee for South WestAfrica, which recommended
the termination. The Court will remember 1 referred to that Sub-Committee
report at pages 407-408, supra. 11 did not feature in the short debate of the
Committee of 24 on that report before it adopted the report by consensus
(doc. A/6300, Rev. 1,pp. 292-296).
Incidentally, 1did not mention this last Wednesday, in referring to the short
debate in the Committee of 24 on the report: it was again emphasized by the
representative of Uruguay that it was a matter for regret that the conclusions
of the Sub-Committee's report "were not backed by a solid juridical argument"
(ibid..D.296).
~hz adoition of the report by the Committee of 24 was on 15September, as
1indicated, and the plenan' session of the General Assemblv on this particular
item commenced v& shor.l~ aften.ards. If s~~~s evident that the idea of
suggesting this disavo\val as a basis for the General Assembly's action must
h~veariwn just about at the star1 of the procredings in the plenïry session of
the Gencral Assembly itsclf.It wins. from the very rcvtewthat 1gaveIast week,
that therc uas a suggestion to niake ihis-the divavoii.alÿspect-a dominating
frature, in an atiempt IO overcomc or to covcr up the Icr3l difficultyabout the
poucrs of the ~cnëral Assembly to make rcc~mmendations only. But this
aiicmpi was rejected by the Afro-Asian States particularly, as Idemonsirated
ai Daaes410-414. suDra. In the end this ~hrase "and has in fact disavowed the
~kdate" was merely something added to the basic proposition that South
Africa-
". ..has failed to fulfil its obligations in respect of the administration of
the Mandated Territory and toensure the moral and material well-king
and security of the indigenous inhabitants of South West Africa".
Even as such an addition, it was still resented by some States, for example,
Tanzania (siipra,p. 413). 1want to refer now ta what the representative of the
USSR said on this point in his explanation of vote after the adoption of the
resolution:
"We also felt doubtful about paragraph 3 of the wording proposed by
the Latin American countries. [The Court will recall that the wording
about disavowel was added to the paragraph as originally proposed on
behalf of the Afro-Asian countries, by the Latin American amendment.]
This wording adduces as a reason for depriving the Republic of South
Africa of the Mandate for South West Africa the argument that the
Republic has itself disavowed the Mandate. That is not the reason why the
Republic of South Africa has today been deprived of the Mandate for
South West Africa; the reason is that the people of South West Africa
must be emancipated from South African racist oppression and be given
independence." (CA, OR, 1454thMeeting, p. 29, para. 318.)
The representative of the Sudan made a significantstatement. He said:
"The lirsi aincndmenr, ivhich reekc io add the phrase 'and kas, in fari,
disavowed the hl;ind;itc', does not. in the opinion of the dclegiitiiin of the
Sudan. add much to the original drïft resolution, if tïkcn by ilself, South Africa has, in fact, declared many times its disavowal of the Mandate.
Are we endorsing this position? 1rather doubt this becausethedelegations
which drafted these amendments did not intend this one to be taken by
itself. It is with this understanding and on the assumption that this dis-
avowal does no1 refer to any statement of its position by South Africa, but
rather Io the fact of the forfeiture of the oowers enioved bv South Africa.
as, indeed, is apparent from reading the preceding Sentence relating to the
failure of South Africa Io fulfil its obligations-in other words, disavowal
in the sense of forfeiture-that we have no objection to this amendment to
operative paragraph 3of the draft resolution." (Ibid,,p. 1,para. 8.)
In this respect. a statement by Mr. Cuevas Cancino. the distineuished
representati~~c~oM f exico. who spoke on behalr<ifthc 21 Latin ~meriçai Stïtcs
which sponsorcd the ;iniendment. 1sstgnificant. He u,as sprsking in the contrxt
of explainina whv those States would abstain from votine on the United States
-. -
sub-amendment :
"In dealing with this mdtter, which goes Io the very heart of the great
international ~roblem of the indevendence of Trust Territories. the Latin
American ~obernments have endéavoured to emphasize the uianimity of
~urp-se that inspires the great majority of Member States-the desire to
bring Io an end-a Mandate that has been transformed into a tyranny."
(Ibid.,p. 1, para. 4.)
That is the basis stated by the representative of Mexico on behalf of the spon-
soringStates themselves.
One could demonstrate in another way, with submission, the unimportance
of the aspect of alleged "disavowal" and of the failure to report and submit
petitions.
Mr. President, let us assume for the moment that somebody had come, or a
number of responsible States had come, Io the General Assembly in 1966and
had said: we have studied the record closely, or we have caused experts to
study the record closely, the record in the South West Africa cases, and we
have come Io the conclusion that the General Assembly should re-assess its
view that South Africa is, through its policies, violating its substantive trust
obligations under the Mandate. In the meantime we suaaest that we act, while
we are investigating that matter further, on the basis a; if South Africa is in
every way complying with its substantive obligations, until we have, by investi-
gation, satisfied ourselves to the contrary.
1s itimaeinable that. under those circumstanc~s~~~~~. ~ -~~~~ c~ ~ ~have eo-. UD
and said: Gry well, wLaccept that basis of dealing with the niatter. WC accept
that, we assume for purposes of argument that South Africa is fully complying .~ -
with al1itssubstantive obligations ai best as can be. But, yet, we mÜstpoint out
that South Africa has, as a matter of law, taken up the attitude that the Man-
date is no longer in operation as an institution in law, and secondly, that South
Africa does no1 admit that it has an obligation to report to us and to transmit
petitions. II is true that South Africa does act on the basis of a policy of com-
plying with its sacred trust obligations, whether they are legal or moral, and as
far as information is concerned, South Africa states to us [as it did in fact a1
that particular session of the General Assembly] that it is in its own interests
voluntarily Io supply information. And indeed the petitions do come to us
whether South Africa forwards them or not.
1s it then feasible that anybody would have said: on that basis we must still
adjudge South Africa Io be in substantial violation of its obligations to the ORAL STATEMEN BY MR. DE VILLIERS 523
Organization, sufficient to justify a termination of the Mandate, without any
enquiry further into the questions of fact.
1submit, Mr. President, it would be flying in the face of reality to suggest
anything of the kind.
Our conclusion is, with submission, that the failure to report and to send
petitions played no role at al1in General Assembly resolution 2145. In regard
to the aspect of alleged disavowal, it was not intended to play an independent
role nor could it, for the reasons 1 have given, with submission, in law have
olaved an indeoendent role. Therefore the emuhasis comes back on the factual
bask upon which the Assembly purported to-act in resolution 2145, the basis
of the proposition that South Africa was not promoting the well-king and
~roaress of the inhabitants. but violatine its obliaations inthat resoect.
' Gis, Mr. President. in the Ieglilargu~rciiis which ue h~<,ealrerijy dddwssed
to the Court, niy lelirned collc~gucsand 1have. \iith subinission. deinonsirilted
that there is no leaal basis uoonwhich the Assemblv. in adiudaina these facts.
could take decisiins or make determinations whiih wouli b; binding upon
this Court. The distinçuish?d representative for the United States has not tried
to meet anv of our areuments in that resoect and he has not contributed new
arguments on this parïicular point; so wLproceed to view his argument on the
basis upon which he did address an alternative argument to the Court, namely
tliat one accepts that the Court must enquire into the facts itselHe then seems
to suggest, on that basis, that the Court should confine itself in the first place
to evidence of events prior to 27 October 1966, being the date of purported
termination of the Mandate, and secondly, ta the facts as emanating from the
pleadings and evidence in the SorrthWestAfiica cases.
1 submit,-Mr. President, that on the basis on which we are talking now,
rhat the Court does itself enquire into the fasis. neiiher ,>fthese contenÏions is
sound. In regard to the first one, ihît the Couri should conline iiselftoevidence
daiinr back io hefore 27 October 1966.\ce ooinied out reoeatedly in the Sourh
l#/es/>/iic<cases, in Our prcrcntst,on. thai policies con&rntng, and dcizelop-
ment of. under-developed ierrttories arc no1siaiic concepts: there 1sno pdriicu-
lar point of time at which one can say wemustadjudge thematterinastatic way,
as one finds itnow: One niust look at the line of what is being done, what is the
policy, what is being aimed at, how is it moving, from where to where, because
that is the whole idea of the development of under-developed areas and the
promotion of the well-being of the inhabitants of such areas. "
In 1964,because that was the point of time at which the written pleadings in
the Sorith WesrAfiica case were finalized, one could point to the fact that there
was planning in many respects which had, in part, ken brought to fruition;
other parts had not ken put into actual practice, one would only see the results
later. And, 1submit. from al1those ooints of view it is verv relevant indeed to
see in concrete térmswhat has heenachieved and what ha; evolved and devel-
oped in South West Africa since October 1966, in a continuing line with
policies and with plans which were already in existence at that particular stage.
That is true in regard Io governmental institutions, institutions for self-rule.
We could point out in the Sortth WestAfiica cases that there was the Odendaal
Commission plan and the White Pawr of the Government in regard to that
plan, concern-inncertain forms of projected political deve~o~mentfor various
peoples. Several of those have made marked progress in the meantime, and it
would be very relevant to see what has ken achieved. esoecially in the light
of the typeof counier-srgumeni \\hich one inet with so frequcnily in ihose dsys.
naniely ihït ihex blue-prinis and the>eplans and p<ilicie\wcre jus1 IO be seen
as a smoke-screen, that the South African Government really intended to applya policy of oppression andrepression but that these were fancy schemes with
which to fool the test of the world.
There are similar examples in the fields of education, health. economics.
hydroelectric schemes, and sn forth. uhereuhat happenedsubsequ~ntly ssn be
most pertinently brought intn Iine with nhai hîd IiIreIidy been planned and
what was inherent in policies at that point in time.
Then the second suggestion, that the Court should confine itself to the
pleadings and evidence in,the South West Africa cases: as 1 have said, in the
first olace. the oleadings werefinalized withour Reioinder. which wascomoleted
towards the end of 19-54,in other words, the laiest data contained in it was
derived from the year 1961.And then, as was indicated in the written pleadings
and in corresoondence to the Court. we intended to follow that Üo with-a
funher refut.ition in detail of certain aspects of the chargamddc against South
Africÿ, by cîlling some 38 niinesses and experts to testify before this Court.
We also invited the Court to come on an inspection of the Territorv as-.art of
......>-..,.. ..~~~-~ ~ ~ ~ ~
Nom,. in the course of the oral procecdings, the Applicants changcd their
c<ise.Thevamcnded ths forrnal Submissions which they made to the Court so as
to omit Ïhe previous allegations of oppression and repression and to rely
entirely on a so-called nom or standards of non-discrimination and non-
seoaration. 1do not want to -0 into the technical details of that chang-at this
stageeecept to point out that, rightly or wrongly. ae sonccived the change to be
of such a nature thît II rcndered irrelevant the calling of much of the evidence
which we intended to oresent in answer to the charaes of oppression and
repression which originally brought us into the court. The court gave no
reasons for its fairlyclose decision of 8votes to 6 by which it eventually rejected
the proposal for an inspection, but it seems logical to assume that this change
in the nature of the case presented to the Court may well have played a part in
that decision too.
So, Mr. President, those are just illustrations of aspects in which the record
was indeed not completed in the South West Africa case, apart from what has
happened in the meantirne, and apart from this further factor that in that
context South Africa was replying to charges as they had ken selected by the
particular Applicants and their legal advisen. It did not purport to answer al1
charges made from time to time in United Nations circles.
Now. if the Court should. after consideration. indicate to us either that it
declincs Our plebisciie propos~l, or that itdeclines to make Iinydecision about
ir at this stage. then we shall have to come to the furthcr presentation of facts.
If the Court decides. and informs us shortly. that it accedes to the leb bis cite
proposal, then of coune there would k a "ew situation to which Ge would
give attention straight away. If it decides the other way round, weshould like
to indicate to the Court, after completion of Our argument on the rernaining
legal aspects and our replies to the questions put tous by the Court, Ourattitude
about three matters.
Firjtly. to whît extent IIis possible for us on thc record as ilstands tu argue
or indicate the South Africnn attitude in thc hctual ficld. Whcn I sa) "in the
Ptctu~lficld" Iman it in a brojdcr context. which 1sx twolold ilne. First of XII.
there is the lepal basis uoon which alleced violations of substantive obligations
would have to be viewed, because thal is in itself an intricate field to be con-
sidered. It requires consideration of suggested norms, standards, interpretations
and so forthwhich have come into existence and which may play a part-
consideration of concepts such as self-determination, human rights, norms of
non-discrimination and so forth. In other words, what is the state of inter- ORAL STATEMENT BY MR. nE VILLIERS 525
national law at this particular time in these various fields, and on what legal
hasis is one to adiudae allerred violations of obliaations throuah nolicies and
factual conduct? '?ha; would be one aspect of it. The other aspectof it wouid,
of course, be the relevant facts inthe field as a whole. So the first step would be
to indicate on bath asvects to what extent it willbe vossible for us to a-aue the
South African attitudéon the record as it stands. . .
Secondly, we should like to indicate in what respects we find it neiessary to
su~~lement the record of fact for vurvoses of findinrrs thereon bv the Court.
~hiidl~. uc should like to indicatc u,hy itwould. in oÜrsuhmission, not k fair
to make lindings of fïct on the rccord as itstands, particularly findings of îact
unfavourable to South Afric3, u,ithout giving to it an opponunily for amplifica-
tion of the record of the nature \!hich ue stibmit tu bcnecessary:.But 1will not
eldhorate on those matters al this stage.
In the main. we will want to refer to svecific allegations on factual asDects
irhich haie recently been introduced into thcse proccedings,and whichweCould
not ha\,e met in advdncc. Many of those have specifically ben brought in by
the writtcn siaiement of the United States ~rscll.and 1made refcrence rosome
enaniplcs 31 piges 473.474. .ttpr<rOn the hasis that the nccd to entcr into the
factual fielddoes no1 fall away, e~thcras a rcsult of3 decision of the Court in
reaard to the nlebiscite vrovosal or as a result of a conclusion on a lecal asvect
u,hich rendcr; al1conridcr~tiun of fÿctual issues unnccessary, we shai indfcatc
that as far as thcse new spects uhich have ken introduced into the record are
concerned, if we have ta meet them, we shall require time. But 1 need not
elaborate on that at this stage; we can deal with the matter if and when we
came to il.
In conclusion. in reaard to the comment that has been offered to the Court
as reactions to ihe plébisciteproposal, we submit that no valid objection has
been raised. The proposal serves the very important purpose of bringing the
matter of South West Africa from the svhere of domnatic attitudes and technical
disputation in international bodies ta ihe practici sphere of the human beings
whose well-king, and progress are at stake. And the plebiscite may be of
inestimable value. vrimarily for the vurvoses of these vroceedinas. but ulti-
mately also for developing towards-peaceful and conStructive ~olutions in
respect of the Territory and its peoples and the whole of the suh-continent of
Southem Africa in which they are situated.
The PRESIDENT: The Court understands that the revresentative of South
Africa would be ready tu dcal with the tuo matters that he hisind~catcd,that
is to Say.ansirers IOihc questions that have been addressrd to him, and lunher
comments on the oral statements that have been made. after the last statement
of the represcntûtive of Suuth Alrida on Monday afternoon. ,Chatking 90, the
Court will nom,rise and uill rcsumc 31 3p.m. on Munday aftemoon to hear the
representative of South Africa.
The Court rose ot12.15 p.m. TWENTY-FIRST PUBLIC SmING (15 II1 71,3 p.m.1
ORAL STATEMENT BY MR. GROSSKOPF
REPRESENTATIVE OF THE GOVERNMEN OT SOUTH AFRICA
Mr. GROSSKOPF: Mr. President, honourable Members of the Court. The
firstaspgt of this remaining part of Our argument is the reply ta any new
points raised by the representative of the Secretary-General and that of the
UnitedStatesof America since last we spoke. In addition we have certain ques-
~ ~ ~ ~-~ ~Memben of the Court still to answer. We or. .se takina a-. noints
dealing with the same subject-matter together and dealing with them on that
basis rather than replying to each participant or judge in turn. The result will
then be that the auestions of some of the iudees will besolit uo between two or
more suhjects bit we think it would be more convenient io deal with the
matter in this way rather than jump from subject to subject.
We propose dealing first with the nature and content of the Mandate, then
with questions relating ta the suggested transfer of functions to the United
Nations and in that regard, in particular, the provisions of Article 80 of the
Charter. Thereafter we shall deal with the consequences of the lapse of the
Mandate and then with the procedures and powers of the General Assembly
and the Security Council. Thereafter we propose dealing with the legal basis
upon which any factual enquiry should, in Our submission, proceed, in the
course of which we shall advert ta the questions which were asked conceming
the effects of Article 73 of the Charter.
The first topic, as 1 have indicated, is then the nature and content of the
Mandate. Under this heading 1 propose dealing with questions put by Judge
Lachs, Judge Forster, Judges Onyeama and Dillard and the Vice-President
and Judge Ignacio-Pinto in that order.
I first come to the question put by Judge Lachs. On 5 March Judge Lachs
referred to our discussion of the travaux prépararoiresrelative to the intention
of the authors of the mandates system. In that regard he referred to the reply
of the Allied and Associated Powers to the observations of the German dele-
galion on the conditions of peace, in which it was stated that in requiring
Germany to renounce any claims to her overseas possessions the Allied and
Associated Powers placed before every other consideration the interests of the
native population, as advocated by President Wilson, and that it would have
been uniust to burden the natives ofthose territories with exoenditure incurred
in Germany's own interest. and no less unjust to place this respùns~bilityupon
the niandatory Pouers u,hich "in so fdr a$ they may heappointcd [rustee by the
Leaeue of Nations. will derive no benefit from such trusteeship".
~ldge Lachs alsb referred to Article 257 of the Treaty of versailles which
provided that in the case of the former German territories administered hy a
mandatorv under Article 22 of the Covenant neither the territory nor the man-
datory ~ower should be charged with any portion of the debt of the German
Empire or State. The question was then posed how. in the light of the con-
clusions we arrived at in Our written statement and in Our oral address, we
interpret these statements and these treaty provisions (supra, p. 452.) ORAL STATEMENT BY MR. GROSSKOPF 527
Now, MI. President, we had referred ta the travaux préparatoires with a
view to demonstratine /a) that there cannot be imnlied in the Covenant or the
mandate instrumentsa term by virtue of which a mandatory would be ac-
countahle to, inter dia, a possible successor of the League of Nations, and (b)
that it was not the intention of the authors of the mandates svstem that man-
dates should berevocable. Judge Lachs' question therefore invites us to state
whether these contentions and the reasoning we advanced in supoort of them
are in hamonv with the statements and the~rovisions of the versailles Treatv
referred to byhim.
In our respectful submission, there isnothing in thestatements and provisions
referred to bv Judee Lachs which in anv wav contradicts or is in conflict with
the contentions ai arguments advancédby-us. As regards the first portion of
the reply of the Allied and Associated Powers quoted by Judge Lachs, it should
be obsemed that this reolv was made in defence of a decison that Germanv
should not retain her ovirieas possessions. In their reply the AlliedASSOC;-
ated Powers stated:
"In requiring Germany ta renounce al1 her rights and claims to her
overseas possessions, the Allied and Associated Powers placed before
everv other consideration the interests of the native populations advocated
by ~resident Wilson in the fifth point of his ~ourt&n points mentioned in
his address on 8 January 1918. Reference to the evidence from German
sources ... and to the formal charges made in the Reichstag ... will
suffice to throw full light on the Geiman colonial administration, upon
the cruel methods of repression, the arhitrary requisition, and therious
foms offorced labour which resulted in the denonulation of vast exoanses
of territory in German East Atrica and the ~ameroons, not to mention
the tragicfate of the Hereros in South West Africa, which is well known
to all.
Germany's dereliction in the sphere ol colonial civilization has been
revealed too completely to admit of the Allied and Associated Powers
consenting to make a second exoeriment and of their assuming the re-
sponsibilib of again abandoningathirteen or fourteen millions of natives
to afate from which the war has delivered them." (HMSO, Miscellaneous
No. 4, 1919, Cnmd. 258,p. 19.)
It will be seen, MI. President, that the consideration advanced as to why the
Allied and Associated Powers were not willina to let Germany retain her
overseds possessions u,as the meihod, of repre;sion and oppres~ion said ta
have becn employed by Grrmïny in rhose ierriturirs. Thisw;izihr reason why II
was stated that in requiring Germany to renounce al1her rights and claims to
her overseas possessions,tie ~owers~laced before any othe;consideration the
interests of the native populations advocated by President Wilson in his fifth
point. In other words, the interests of the native population required that
Germany should renounce her rights and claims ta her overseas possessions.
The fifthpoint of President Wilson'sFourteen Points to which reference was
made was as follows:
"A free. open-mindedand ab\olutcly inipart~ïl adjusinicnt of311colonial
clairlis bascd upon a siricr ubjcrvan;e of the principle thït in delerniintng
al1such questions of sovereimtv the interests of the nooulations concerned
must haGeequal weight with'théequitable claims ofihe government whose
title is to be determined." (Temperley,A Hislory ofthe Peace Cotgerence
ofParis, Vol. 1, p. 434.) Now, MI. President, it will k immediately obsemed, with respect, that like
the other 13points, this point was expressed in very general terms. As was said
by Walters, A Historo yftheLeagueofNations,Volume 1,page 30:
"Victors and vanquished alike had accepted Wilson's Fourteen Points
as the basis of the future oeace. But theurteen Points were for the most
part expressed in general terms; their application left countless decisions
still ta be taken, not only of detail, but often involving issuesof the greatest
importance."
MI. President, the letter of the Allied and Associated Powers which was
dated 16June 1919 was al a stage when President Wilson's fifth point had, in
so Far as is relevant for present purposes, if is submitted, already been im-
plemented de facto in the informal compromise concerning mandates and, in
particular "C" mandates. So, in so far as this fifth point of President Wilson
weighed with the Allied Powers, it had already been given eiTect to in the
arrangement that had ken reached conceming mandates. And, Mr. President,
it will be recalled that the formula which was ultimatelv devised for mandates.
and particularly "C" mandates, was one whereby the ~nterests of the popula:
lions and the equitable claims of the Dominions had been equally recognized,
so that il was in that way that this fifth point had been implemented.
Then, MI. President, 1 came to the reply relative to the expenditure which
had been incurred by Germany.
Now. Mr. President. in our submission. the statement bv the Allied and
~rsociated Pou,ers in thir respeo was clearly not intcnded 1; be anything else
but a motivation for their point of viewthxt the cession of the Germnn coloniei
should no1 be coupled with the imposition of an obligation on the peoples of
the territories concemed or the mandatory Powers to bear any portion of the
German debt. As far as the mandatory Powers were concerned, the motiva-
tion was that thev would not derive benefit from theirm truste es hi^".ut. Mr.
President, il is our respectful submission that the benefit to which refeience
is made there is clearly, in the context, financial benefit. It is not, in our sub-
mission, suggested that there was ta be no benefit of any sort whatsoever for
inandatory Powers.
We accept that il was never the intention that a mandatory should enrich
itself as a result of ils administration of a mandated territory. Therefore, it
would have been unjust if a mandatory had to take over the whole or part of
Germany's debt in respect of the territory concemed and, in our submission,
that was why it provided in Article 257 of the Treaty of Versailles, as
contrasted with Articles 254 and 256, that in the case of the former German
territories administeredby a mandatory neither the territory nor the mandatory
Power should be charged with any portion of the debt of the German State.
In our submission, Mr. President, if does not, however, follow that the
mandatories had no interest in obtaining or retaining control overthe territories,
or that the Allied and Associated Powers intended to convey this in their reply
to the German delegation. We accept that there was no intention of financial
enrichment, but, as 1 say, that does no1mean that there were no other benefits
and no other interests. The nature of the interest, particularly of the "C" man-
datories, was repeatedly stressed during the Paris Peace Conference, as we
haveshown in Chapter VI1of our written statement. It included matters such
as the strateaic imoortance of exercisina control over an adjacent territow
withnut natural bokndaries and it includëd matters such as the advantages of
common customs and fiscal policies. These matters, as the Court will recall,
were rei>eatedlystressed during the Paris Peace Conference as reasons why the ORAL STATEMENT BY MR. GROSSKOPF 529
Dominions wanted annexation and as reasons whv. in the ultimate analvsis.
there were only certain States which could haveeei the "C" mandatories-thé
"C" mandates could only have been granted to the adjacent States.
It was these considerations. Mr. ~resident. which. in Our submission. led to
theforniulation of the compromise thal \vils;ltimdrely rcached as beini to the
effcct that President Wilson had succeeded in prevrntins annehalion. whereas
the conquerors had succeeded in retaining their conquests. The Court will
recall that was stated hy Mr. Rappard-we quote ifin Chapter VIII, paragraph
23, first footnote, of Our written statement.
It isaccordinnlv. Mr. President. Ourresoectful submission that the statements
and provirionsÏ~ hhich Judg l-,clis ha; rsferrsd us do not in any uay aiïect
uur contentions or ~rguments on the intentions of the auihors uf the manddtes
system regarding the issues relevant in these proceedings.
1come now, Mr. President, to the questions put by Judge Forster.
On 5 March Judge Forster referred to pages 313 and 314, supra, where
we dealt with the reauirement of unanimitv in the Council of the League in the
context of the question whether the kagué was legally empowered torevoke a
mandate. Judge Forster pertinently referred to passages in which we stated that
a decision to revoke a mandate could not havi been taken had the mandatorv
opposed such a course, and that, had it been the intention that the manda&
should be revocablc at the instance of the League, it is inconceivable that the
founders of the Learue would have made it mechanicallv imoossible for this
competence to be e&rcised in practice. We also contendéd that it can be re-
garded as settled law that a decision to revoke the mandate could not have been
taken aaainst the will of the mandatorv concerned and that the Council would
have beénlegally powerless not only iEa mandatory had acted in conflict with
the views of the Council, but also if it had acted contrary to the terms of the
mandate itself.
Judge Forster then stated that it isappreciated that the whole concept of
mandates was inspired and sustained by confidence in the goodwill and good
faith of the Council of the League and the rpandatory Powers, and in that
regard he quoted an excerpt from the Court's 1966 Judgment. Thereafter he
posed four questions at page 467, supra.The first question reads as follows:
"1. 1sthere any case on record where a proposal of the Council of the
League. supported by al1the Members of the Council, was defeated hy an
adverse vote of the mandatory?"
NOW,Mr. President, our reply to that question is that we are not aware of
any specific instance in which a proposal of the Council was defeated hy an
adverse vote of the mandatory. But that does not, in Our view, lead to any
other inference than that there never was a proposal which was so totally
unacceptable to a mandatory that it felt obliged to defeat the proposal by its
adverse vote.
The second question reads:
"2. What conclusion may legitimately be drawn from the occasional
absence of the mandatory from a meeting of the Council of the League
which was designed to enable decisions to be taken that the mandatory
might have found obliged to vote against if it had been present?"
Mr. President, in Our view the conclusion to be drawn from the occasional
absence of a mandatory from a meeting of the Council of the League which
was designed to enable decisions tu be taken that the mandatory might havebeen found obliged to vote against, if it had been present, has already been
stated by the Court in its 1966 Judgment, in the excerpt quoted by Judge
Forster. The Court said that the unanimity rule was frequently not insisted
upon or ifs impact was mitigated by a process of give and take, and that it was
part of the process for arriving at generally acceptable conclusions that the
occasional deliberate absence of the mandatory from a meeting enabled
decisions to be taken that the mandatory might have felt obliged to vote against
if it hadbeen present. . .
Inoursubmission, Mr. President, it is highly probable that as part and parcel
of the orocess of eive and take. there occurred instances in which oro~osals
which would have injoycd ihe support of the niemhen of the ~i,unciiueie no1
formally put forward ksîuse ii<vasknown thïi ihcy would be so unaccepiablc
to a particular mandatory that it would have been obliged to exercise what
amounted to a veto. That would, of course, not appear from the official re-
cords.
Having regard, Mr. President, to the spirit of goodwill in which the Council
of the League and the mandatories functioned, itis hardly likely, in Our sub-
mission, that a member of the Council would have formally made proposals
concerning the administration of mandated territories without havina some
informal or private consultation with the mandatory concerned.
1come now to the third question, Mr. President, which reads:
"3. In case of a conflict between the unanimous view of the Council
of the League on a particular proposal, designed to make effective a
provision of the Covenant of the League upon which it insisted and the
opposition to the proposal on the part of the mandatory in which it
persisted, was thereany provision in the Covenant which could ultimately
and in the last resort be brought into play to resolve the conflict? Or is it
the case of South Africa that the opposition of the mandatory could not
by any possible means be overcome in such a case?"
As regards this question it isOurcontention that within the framework of the
League there was no procedure whereby a conflict between the othenvise
unanimous Council of the League and the mandatory might be resolved. In
other words, as was said by the Court, both in its 1962 and 1966Judgments,
the Council of the League could not have imposed its will upon a mandatory.
1refer the Court ta page 313, supro.
The fourth question reads:
"4. If the answer to the first part of the preceding question should be
in the negative and the answer to the lastpar1should be in the affirmative.
would the reoresentative of South Africa stdte whether oa.agr-oh 4 of
Article 16 ofthe Covenant brought into play would not resolve ihe kind
of conflict mentioned in the preceding question and was it not the con-
sciousness of that provision which enahled recourse to the kind of practice
mentioned in paragraph 82 of the Judgment of the Court set out above
(pp. 44 and 45),to obviate a conflict between the Council of the League
and a mandatory on crucial matters?"
Now, Mr. President, paragraph 4 of Article 16 provided as follows:
"Any Member of the League which has violated any covenant of the
League may be declared no longer a Member of the League by a vote of
the Council concurred in by the representatives of al1the other Members
of the League represented thereon." It appears that what Judge Forster has in mind is that, if a coniiict between
a mandatory and the Council occurred and if al1the Members of the Council
were of the opinion that the mandatory had violated a covenant of the League,
it would have been legally possible for the Council to expel the mandatory
from the League and thereafter decisions of the Council could no longer be
thwarted by the particular mandatom-for instance, a decision to revoke the
mandate. The mandatory would then no longer be a Member of the League
and would then accordingly no longer be entitled to attend and vote in Council
meetings.
Now, with respect, Mr. President, we agree that by expelling a mandatory
the Council could have overcome the practical or mechanical difficulties
created by the unanimity requirement. However, there is certainly, in our
submission. nothinz to indicate that it was the consciousness of the oossibilitv
ofexpulsio~ whichbrought about the kind of practice mentioned in the exccrs
froni the 1966Judgiiierit qucited hy Judge f?orstcr.\Vc have no indtcatton that
the occasional deliberate absence of a mandaton, was caused bv anv. .ore- ,.
hension thït 3 vote by itin conilict with the rest ofihe Council ~iouldleaIO ils
expulsion. We are no1 3uare of a single <)cca9i,inon uhich the Council or
any individual member thereof ever threatened a mandatory with expulsion
should it oppose a proposal considered or to be considered by the Council.
If one has regard to the fact that three of the permanent Members of the
Council were themselves mandatories. it is. in Our submission.,hi-.lv unlikelv
that there would have existed any notion t'hat a mandatory might be expelled
from the Leaaue if it vetoed a decision of the Council.
In this regard, Mr. President, we submit that it is of some significance that
after the Assembly of the League, on 24 February 1933, had adopted a state-
ment which left no doubt as to Japan's violation of the Covenant, and Japan
had walked out of the Assembly meeting, no attempt was made to expel Japan
from the League-in fact, the initiative came from Japan when a month later
it announced its decision to withdraw from the League (Walters, A Hisrory
of the Leogue of Narions, Vol. II, pp. 494 to 495). And, Mr. President, at no
stage thereafter was an attempt made to revoke Japan's mandate for the North-
ern Pacific Islands.
In conclusion. Mr. President. we submit we should out Judz- Forster's
qtiestions andour iinriiers thereto into perspective uith relstion to the resr of
Ourcontentions. We relicd on the unlinim~tyrequiremcnt as one of the factors
strongly militating against the notion that it could have been the intention of
the authors of the mandates system that mandates would be revocable. That
is why, MI. President, we said that had their intention ken that the League
should eniov a Dower of revocation. it is inconceivable that thev would have
made it mëchanically impossible for this competence to be exercised in practice.
In other words, Mr. President, this was an additional reason why we stated,
or contended. that there could not be an imolication of anv rizht ofrevocation
of 3 niandate in the Covenant or other niandate docume~ts.'~his was one of
the feÿtiires \%hich.in oiir submission. niilitated ngxinst îny such iniplicïtion.
Ofiutirse. Mr. Presideni. had a mÿndiit<in,ken evnelled from the Lcwue. this
competence, if it existed in law, could have been éxercised.So if onewere to
come to a conclusion by other means that there was such a competence, then
it mizht conceivablv have been exercised in this fashion. But surelv. Mr.
Pre\ident. it n,ouldbe fsr-fctchcd to suggest that the authors of thc mn"datcs
<ystemand the Covenant introduced Article 16.pariigrîph 4, into the Covenant
uith the intention. inrrr alio. that it could k utilizcd bv the Council should it
become necessaryto revokea mandate. lt is hardly likely that had they had ORAL STATEMENT BY MR. OROSSKOPF 533
1 now turn to Our reply to a question by the Vice-President and Judae -
Ignacio-Pinto.
On 5 March, the Vice-President and Judge Ignacio-Pinto asked the following
question:
"You bave discussed the circumstances in which the Mandates for
Palestine and the North Pacific Islands came to an end, with a view to
showing that these Mandates were not terminated unilaterally or without
the prior consent of the mandatory Power.
Would you be prepared also to discuss the circumstances in which the
Mandates for Syria and the Lebanon were terminated, so as to ascertain
whether they were terminated with or without the prior consent of the
mandatory Power?' (Supra, p. 466.)
May we sav at the outset that we dealt with the circumstances in which the
an date sor~~alest,neand thc North Pacifis Isl.tnd%wcretcrminated in anriver
ta certain spesilic cunteniions in the uriiten statcnicnt of thc Uniied Statr., of
America. These contentions were to the effect that the oractice of the United
Nations in regard to the termination of these ~andâtes strengthened the
conclusion that the supervisos. authority was legallyentitled ta revoke a
mandate. In other words, we dealt with these contentions in the context of
the powers of the supervisory authority vis-à-vis fhe mandatory and, in Our
submission, we showed that these contentions were unfounded. We dealt with
them at pages 445 to 451 and at pages 453 10.457, supra. So the reason why
we concentrated on those two instances was 'because they were specifically
raised against us-or sought to be raised against us-in the statement of the
United States.
IIaiwevcr. Mr. Presideni,it<an, in Our subinis,ion, liketiise bc starcd imme-
diately thai the circiirnstances aitending the terniin,iiion of ihe Mandates for
Svria and the Lebanon also did not involve the assertion of the oowers bv the
Liague or the United Nations to terminate mandates without the consent of
the mandatory Power. The Mandates for Syria and the Lebanon were class
"A mandates to which paragraph 4 of Article 22 of the Covenant was appli-
cable. This paragraph read as follows:
"Certain communities formerly belonging to the Turkish Empire have
reached a stage of develo~ment where their existence as indemndent
nations can be~rovisionall~cognized subject to the rendering of admin-
istrative advice and assistance by a Mandatory until such times as they
are able to stand alone. The wishes of these communities must be a nrin-
cipal consideration in the selection of the Mandatory."
So, Mr. President, itwill be seen that in the Covenant the existence of Syria
and the Lebanon as an independent nation or nations was already provisionally
recognized.
In the autumn of 1936 the French Government. which was the Mandatom
in respect of Syria and the ~ebanin, reached agreement with the govek-
ments of these two territories in ternis of which the Mandate was to last for
three more years. Thereafter two new independent States would came into
existence. So, at that stage, Mr. President, it was envisaged that the Mandate
would only last until 1939,when there would be two new independent States
(Walters, A History ofthe League ofNations, Vol. II,pp. 742-743).
However, before the agreement was implemented the war intervened, and
in June 1941an Allied Force consisting of Free French and British Common-
wealth troops entered Syria and the Lebanon and took over the territory from the Vichy French forces after a campaign lasting a month. In simulta-
neous Free French and British proclamations the peoples of Syria and the
Lebanon were declared "from henceforth sovereign and independent peoples"
(Hall, Mandates, Dependenciesand Trusteeship,p. 265).
On 24 June General de Gaulle issued two decrees: the one nominating
General Catroux Commander-in-Chief of the troops of the Levant, and the
other appointing him "delegate-general and plenipotentiary" of the Chief of
the Free French for the States of the Levant (Hourany, Syria and Lebanon,
p.243).
General Catroux proclaimed the independence of Syria as a sovereign State
on 28 September and of the Lebanon on 26 November 1941, and British
recognition was accorded to Syria on 27 October and to the Lehanon on
26 December 1941 (Hall, Mandates, Dependencies and Trusteeship, p. 265).
The proclamation applicable to Syria, in sofar as it is relevant, read as follows:
"On June8th last, at the time of the entry in10 the Levant of the Allied
Armies, in a manifesto which 1 addressed to you in the name of Free
France and of her Chief, General de Gaulle, 1 recognized Syria as a
sovereign and independent State, under the promise of a treaty guaran-
teeing our reciprocal relations.
The British Govemment. the Allv of Free France. acting in accord
with her,a%ociaied itsclf hd simulta~cnus declarailon wiih th;$ important
politicdl act On the 16th of this month, I put my declardtion of Junc 8th
intoeffect bv translatina into cstablished fact the ~rinci~lethereenunciated.
Thus thëera is be&n in which independeni andsovereign Syria will
herself control her destinies.
..........................
The Syrian State will enjoy from now onwards the rights and prerog-
atives of an independent and sovereign State. These will be subject only
to the restrictions imposed by the present state of war and the security
of the territory." (Hourany, SyriandLebanon, pp. 247-248.)
The proclamation relating to the Lebanon contained similar terms (ibid.,
.O. 250-252).
Howcver, notuithstdndinç thce proclanidtion\. the Frcnsh vieiv \rî5 thdt
legally the .Manddtc still held and ihat it could be ierminaied by a legdl proses,
throueh the Leaeue of Nations onlv. The view of Svria and Lebanon was that
the Mandate ha; already ceased <Oexist-at leastde facto-and in October
1943 the Lebanese Government and Parliament eliminated al1 references to
the mandatory Power and the League of Nations from the Constitution. As
from 1943 to 1944 the new States were recognized by a number of Powers:
first by the ArabStates, then by the USSR and then by the United States
of America. After signing the declaration of the United Nations Syria and the
Lebanon were invited on 29 March 1945, by the United States and the other
sponsor Powers, to the San Francisco Conference.
The termination of the Syrian Mandate is summarized as follows by Hall:
"Thus, the Syrian mandate may be said to have been terminated without
any formal action on the part of the League or ils successor. The mandate
was terminated by the declaration of the mandatory power, and of the
new states themselves, of their independence, followed by a process of
piecemeal unconditional recognition by the other powers, culminating in
formal admission to the United Nations. Article 78 of the Charter ended
the status of tutelage for anymember state: 'The trusteeship system shall ORAL STATEMENTBV MR. GROSSKOPF
535
iiot apply to territories which have become Members of the United
Nations .. .'."(Hall, Mandates, Dependencies and Trusteeship, p. 266.)
In the resolution on mandates adovted at the final meeting of the Assemblv
of the League of Nations on 18 ~iril 1946, the~ssembr~ "welcomes thé
termination of the mandated status of Syria, the Lebanon and Transjordan,
which have, since the last session of the Assembly, become independent mem-
bers of the world community" (League of Nations, doc. A. 33. 1946,pp. 5-6).
This resolution, which welcomed the termination of the mandated status,
was supported also by the French Government, which voted in favour of the
resolution.
To summarize, Mr. President, it seems, in our submission, clear that Syna
and the Lebanon attained de facto inde~endence in 1941.Whether thev attained
it de jure as a result of the kree ~rench proclamation or of recognitio ny a
number of Powers or by virtue of the resolution of the League to which 1have
iust referredis. in mv submission. immaterial for oresentournoses. What is
important, in our submission, is that the mandatoj~ower did not oppose the
attainment of independence by these two Statesand that there was no auestion
of the suuervisory oower of the so-called organized world communitv. whether
in the fokm of theeLeague or of the ~nitedkations terminating the- an dates
against the will of the mandatory Power. It was not something that was done
by either of these two international organizations against the mil1of the man-
datory Power, being France in that case.
Now, MI. President, that concludes the part of our replies dealing with the
nature and content of the Mandate and 1 now tum to the auestions relatinn
to the transfer of supervisory powers, and in particular to ihe provisions of
Article 80 (1) of the Charter.
This Article was mentioned not onlv in the oral statement bv the United
States of America, but also incertainq;estions by honourable ~émbers of the
Court. In the oral statement of the United States of America (supra, p. 502)
the following contentions were advanced concerning the power ofthe Genera~
Assembly to make a binding decision in resolution 2145:
"The Charter basis for the General Assembly's decision is, in our view,
the same as the Court held existed for the United Nations' exercise of
supervisory functions, namely Article 80, paragraph 1. (International
Slatus of South WestAJkica,Advisory Opinion,I.C.J. Reports 1950,p. 128
at 133-134, 136-137.) Under that Article and under the Mandate, the
General Assembly was entitled to take such action as was necessary to
ensure that the rights of the m~le of Namibia were not altered in any
niünner in disrcgiFd of the ~~ndstc. As the Court stated in 1950(pp. 13h-
137). ihc purpose OC ihis provision uas 'Io pravide 3 reîl protcciii)n for
thore rights'. Ihe action raken hy the Gcncral Asscmhly was a reasonablc
excrci5cof this authorityIOprotect the people i~fNamibia and to safcguïrd
ihc 'sacred trust of civili~ation'and 'the maierial and moral rell-bcing and
the socialprogress of the inhabitants'."
Thai na5 the argunieni on hchalf of the Unitcd States Govrrnmeni: that
rcjoluiion 2145 could bejiistificd on the basis of the pro\'isions of Articl(1)0
of the Charter. Also. the Scciirits Cotincil action on the South Wcit Africï
issue could, in the ~nited states3-view, have been taken under Article 80 (l),
"in the event the Security Council is regarded as sharing with the General
Assembly the United Nations responsibility as successor to the League in
supervising Namibia" (supra, p. 502). Article 80 has also ken the subject of questions by Judges Lachs and Jiménez
de Arkhaga.
It is accordingly, MI. President, in our submission, necessary to give some
further attention to this Article. In doing so, I propose dealing kt with the
interpretation of the text of the Article read in the context of the Charter (and
with the Judges' questions relating thereto) and thereafter proceeding to con-
sider what further light, if any, is cast thereon by its legislative history.
..Article 80 (1) reads asfollows:
"Except as may be agreed upon in individual trusteeship agreements,
made under Articles 77, 79 and 81, placing each territory under the trust-
eeship system, and until-such agreements~have been concluded, nothing
in this Chapter shallbe 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."
1emphasized when last 1dealt with this, MI. President, the wording of this
Article-that ifis limited to stating that "nothing in this Chapter shall be
construed, in or of itself, to alter in any manner the [various] rights" that are
mentioned. That is al1that the Article, in its express terms, in my submission,
seeks to do.
In the contentious proceedings in the South West Africa cases, much the same
type of argument was advanced as is now advanced by the United States of
~merica on the streneth of Article 80. The Court did not however accent the
contention based up& the Article, that is, the succession argument, to &ch
1have referred already in previous appearances, and it isOursubmission, there-
fore. that the Court must be taken to have reiected it. Thisaraument. in 1962.
was houever specifically dealt uith by Judgcs~~irPercy ~~cndcrand Sir Gerdld
Fit7maurice. who said the following, which we quote in Our written <tatement
ltis a lonaish auotation. but. with-the Court's leave. 1will read it because. in
my submiLsion;it is pariicul&ly pertinent not only 1; the interpretation of the
Article in general, but also to the arguments advanced by the United States
and to the questions asked by the Judges. The quotation is as follows:
"It has however been sought to cal1 it [Le., Article 80 (l)] in aid as
follows: the Article. it isid. 'consewed' the riahts of States: one of these
rights uas that staied In Articlc 7 of the i an date instrument; therefiire
the rights suwivcd the Ledguc dissolution until thc mündated territory a3s
brought under trusteeship."
1 would oause there merelv~.o n~7~t out that the areument bv the United
Sratcs of Americii in the present prucccdings is io much the same eifest -again
a contention that Article 80 conrewed certain riehts and therefore these righis
must be effectively maintained even by provid&g certain powers for ~dted
Nations organs which are not to be found in other parts of the Charter. I then
return to the quotation from the joint opinion in 1962 which continues as
follows:
"The argument is not only inherently unsound, il ignores the words
of Article 80 (1). This Article is clearlv an inter~retation clause. commonly
called a savin; clause, of a type frequently 10 be found in legislative or
treaty instruments, designed to prevent Statute or Treaty provisions being
inierpreied so as to operate beyond their intendment.
Such a clause does not, except in a loose and quite indefinite sense, ORAL STATEMENT BY MR. CROSSKOPF 537
'conserve' any rights. It prevents the operation of the Statute or Treaty
from affecting them (whatever they are and whatever their content) except
as provided by the Statute or Treaty. Article 80 (1) does not maintain or
stabilize rights as they existed at the date of the Charter coming into
operation, nor does it insure the continuance of those rights or increase or
diminish them. It leaves them unaffected by Chapter XII of the Charter.
What Article 80 (1) does not say is as important as what it does say.
It does not say that rights shall continue. It does not provide that these
rights shall not thereafter, until trusteeship agreements have been con-
cluded, be subject to the operation of law, or that they shall not terminale
or be extinguished by effluxion of time, failure of purpose, impossibility
of performance or for any other reasnn. It dnes not say these rights shall
not be altered orbe subject to alteration even by normal legal processes.
It isevident that the purpose of Article 80(1) was quite different to what
has been contended and does not lend itself by any ratinnal method of
interpretation to support the contention advanced. The sole purpose of
the Article was to prevent any provision of Chapter XII of the Charter
being construed so as to alter existing rights prior to a certain event."
(South Afriûui written statement, 1,Chapter VIII, para. 51.)
Mr. President. with the greatest resoect. this oassaae is. in our submission.
clearly a correct interpretacon of the ~rticie. 1&ht say itcertainly persuaded
the Applicants in the contentious cases; during the hearing on the merits their
cnunsel expresslv associated himself with thi views exoressed hv Judees Sir
Pcrcy ~pender inil Sir Gerald Fiizrnaurice and expreised his ;egretUat his
previous "incornpletcncss of presentntion on this question" u,hich might have
eiven a dtffcrcnt imorcrsion. That is in the I.C.JPlrado~rs.Suorh IVcsrAlricri.
volume VIII, pagei23. ". -.
The important points for our purposes in the statement made hy the learned
.ude-s are those to the efect that Article 80(1) does not ensure the continuance
of any rights, it does not increase or diminiih any "ghts, i. .ust leaves them
unaffected by Chapter XII of the Charter.
Before advertina soecifically to the auestions out bv Members of the Court.
1.rrouldfirjt urishÏo &al ivith;hecont~ntions of ihe unitcd States ~overnment:
In my respcctful suhmis\ion their conteniions suffer from a number of logical
Firstly. let us look at the position under the Mandaic Under Article 22 of
the Co\,en<intand Article 6of the Mandate. South Africa us ohliged to report
IO the Council or the League of Nations. According io the United States con-
tention, this obligation became uwing tu the General As\enibly of the United
Nations by virtue of the operîtion of Article 80. In other u,urds. if thai con-
tention is correct, then these instruments 1have mentioned, namely Article 22
of the Covenant and Article 6 of the mandate instrument, must be read as if
arnended by providing a new supervisory authority. Yet, MI. President, the
United States seeks to iustify this conclusion bv relving on Article 80. which
expressly provides thai nothing in Chapter >jll, in whirh Article 80 itself
appears, shall be constmed to alter existing international instruments. So one
reaches the situation that a provision which savs that it shall not be construed
to alter existing international instruments is, jn fact, invoked in order to do
just that-in order to have the practical effect of altering existing international
instruments.
Mnreover, the complete illogicality to which this contention leads, is, in my
submission, shown hy the argument concerning revocation of a mandate. If
one were to assume, for the purposes of argument. that the Council of the538 NAMIBLA (SOUTH WEST AFRICA)
League could have revoked the mandate, that is, that it did have the power or
the competence to do so, it clearly could do so only on the basis of unanim-
ity. Even if one disregards the veto of the mandatory Power itself, the manda-
tory Power's interests were protected in that its title could not beterminatedas
long as it had the support of only one Council Member.
Mr. President, on any practical basis, that is of course an important safe-
guard. If the Council had the power to revoke,:then even if one leaves aside the
vote of the mandatory itself, al1the mandatory would need in order to defeat
such a motion would be the support of one member.
Now the United States contention is that the mandatory's title may be
revoked by a two-thirds majority of the General Assembly. In my submission
this is clearly, from any point of view, a vital diminution in the rights of the
mandatory. Nevertheless, this change, this diminution in the rights of the
mandatory is sought to be justified on the bais of an article which provides
that it and the chaoter in which it avoears should not be construed to alter
in an). manner ihc righii whïiiocver ol'iiny Siaies. With rcipcci Mr. I>reridenl.
it I, .çoinpleie inversion of logic-an article which 1,intcndcd Io ensurc ihiit
there should be no change of riahts is invoked for the Duru.se .f atternv.ing .
to enèci iipoiiiivc iiltcr~Tionin Therights of the partici.
The third logical inconsisiency. in niy respeciful suhmiision. \\hich i u,ould
emohasize relates to the oowers of the Ornansof the United Nations.
NOW, Mr. President, the Charter of theUnited Nations contains a definition
of the powers of its organs. Concerning the General Assembly in particular,
it was a matter of fundamental importance that its decisions should. in aeneral,
berecommendatoryonly. My learnedfriendand colleague, Mr. de ~illiërs, has
dealt with that and 1 don't want to repeat it, but this feature of the General
Assembly was at al1times a matter of substantial importance for everybody.
Now, Mr. President, the United States Government is seeking to add to
these recommendatory powers certain powers of binding decision and they
seek to do that again by invoking this article which expressly States that it
should not be construed as altering the terms of inst~uments or rights under
instruments.
Aaain, with resoect. Mr. President. a comvlete inversion of loaic-the
argument seeks to Fhaige an instrument, the charter, by invoking ai article
in the Charter that says that that article is not to beconstrued as altering the
terms of any instmment or any right. . .
In passing 1may just add that the ~harter'basis for the General Assembly's
power of supervision was stated by the Court in 1950, in Oursubmission, to be
Article 10.and not Article 80. oaragraoh 1.as contended bv the United States.
Article 80; paragraph 1,was in;oke> by the Court in 1950as an element which
the Court considered relevant to the transfer of supervisory functions. How-
ever, when it cameto ascertaining under what provision the powers of the
General Assembly would be exercised, the Court stated, quite explicitly in Our
submission, at page 137:
"The competence of the General-Assembly of the United Nations to
exercise such supervision and to receive and examine reports is derived
from the provisions of Article 10 of the Charter."
1 would refer the Court also to pages 416-419, supro, where my learned friend,
Mr. de Villiers, dealt with this aspect.
For the above-mentioned reasons I submit that the contentions of the
United States Govenunent are logically inconsistent with the provision on
which they rely, but 1 would also advert to certain of the implications which ORAL STATEMENT BV MR. OROSSKOPF 539
are inherent in the argument advanced by the United States. It will be recalled,
Mr. President, that Article 80 came into force with the rest of the Charter on
24 October 1945when the League of Nations was still in existence. So, Mr.
President. when the Charter. and Article 80 in narticular. became effective.
the Leag;e was still legally in existence although its dissoltkion was expected:
It is not clear to me whether the United States representatives suggested that
the suoewisorv oowers ~assed immediatelv. that is alreadv in OGober 1945.
They did not in iheir argument advert to thépoint of time at which the super-
visory powers would in their submission have passed by reason of Article 80,
oarazraoh.~. If. however. their contentions areto be understood as beine that
ihe s~péwi<o~powers already passed in October 1945,then the consequence
would of course be that Article 80, paragraph 1: would nnt only have altered
the rights of the mandatory bu1also~thatoithe League. Then one would have
had the position that Article 80, paragraph 1, which in terms states that it
would not affect rights, would also have affected the rights even of the League
ot Nations itself, because it would then in some way have effected a transfer
of supervisory functions'from the League to the United Nations while the
League was still in existence.
On the other hand. if that is not their areument. if their areument is that the
League retained its powers of supervisi& untif the ~eagie was dissolved,
then the effect of the dissolution of the Leaaue would presumably have been
to activate Article 80. oaraeraoh 1. in some wav. ~he oosition would then
presumably have. ken' ihat Fhe'league conti"ued.as sup~wisory authority, al
least in theory, until April 1946and that whenthe Leaguethen becamedissolved,
in some way or another Article 80, paragraph 1,causëd the supewisory powers
to pass over to the United Nations.
If that is so, MI. President, then the principle of Article 80, paragraph 1,
would presumably be, on this interpretation that al1rights which existed at the
time of the coming into force of the Charter would be protected by Article 80,
paragraph 1,against subsequent lapse for any reason at any future time. More-
over, Mr. President, the consequence would then presumably be that Article
80, paragraph 1, would serve to invest the organs of the United Nations with
al1powen necessary to make such protection effectiveat any future time when
anv of these riehts were to reauire orotecrinn. No criteria are sueeested ac-
coiding to which the United ~ationSshould be invested with such~~wers.
In my submission, Mr. President, itis an important aspect of the case that
the suggested elïect of Article 80 is nnt limited only ta iights which existed
or which ceased ta exist on the coming into force of the Charter, but that if
this contention is correct then Article 80 would serve also in some way to
protect rights which continued after the Charter came into existence and which
might still be today fullyeffectivebut would then be protected againstlapseeven
in the future.
In mv submission. Mr. President. the lack of loeic of this line of argument
becorneseven more apparent when it isborne in min; that Article 80,paragraph
1, is not limited to mandates only. It applies to 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. It is completely
wide and general in its terms. If is not limited to mandates or similar instru-
ments. it extends to al1instruments and al1riehts whatsoever to whicb Members
of the United Nations may Lx parties. So on this lin6 of argument Article 80
could for instance be invoked in an attempt to revitalize the minority provisions
madeat theend of theFint World War. and to orovide thenecessarv organs and
. -
powers under the auspices of the ~nited o arion tsmake theseprovisions effec-540 NAM181A (SOUTH WEST ARIICA)
tive. One could, Mr. President, on the ume basis, the same arguinenr .md the
wme logic,work out sonlesort ofa lineofreasoning byu,hichonecould Sayihar
theseminorities ~rovisionswhich werecontained inthe PeaceTreat~es~ ~~ - - ~~~ ~ ~ ~ ~
of the F"st worid War must now still be protected. They fall under the rights of
peoples which wereprotected by Article 80,Daragra~h1,and one must therefore
now create some ~nited Nations power evën though it does not appear in the
Charter and some United Nations organization to protect these rights. In
fact, Mr. President, there must be large numbers of instmments or rights which
have lapsed or altered since 1945 or which might still do so in the future.
There must be many preexisting rights which are still in existence. 1 would
pose the question: is it suggested that Article 80, paragraph 1, provides the
machinery to protect al1of these rights, if needs be by adding to the powers
of the organs of the United Nations? Mr. President, this whole edifice of the
protection of rights, the adding to the powers of the United Nations to make
lhis suggested Goteciion elleriive, is sought to be built on a provision u,orded
as Article 80 is, which stAtesin express temls that itis noi IO be construed a5
altering any rights. In my submission the argument is inherently unsound.
The Court adjournedfronr 4.20 p.m. Io 4.50 p.!rr
Before the adjournment 1 was dealing with the contentions advanced on
behalf of the United States Government concerning the effects of Article 80,
paragraph 1, of the Charter. Before leaving that argument 1would make one
further observation.
It has been our contention in these Droceedinas that there is a general ad-
mission im~licit in al1the nresentationstha~ ha~ ~ ~ ~ ~ ----- .. .~..ourt that
there is reilly no ~harter'basis for the purported binding decisiori which the
General Assembly soueht to take in resolution 2145.We submit. Mr. President,
that the United StateLargument, which is based on Article 80, paragraph 1,
has fortified rather than contradicted our contention in this regard. Article 80,
paragraph 1,was, for the reasons 1 have given, not, and did not even putpon
to be,a grant of powers to any organ. There is nothing in the Article which
suggests that it was meant to give any definition of or even to advert to the
powers of any organ of the United Nations. In other words, if an organ did
no1 have a power from a source outside of Article 80, paragraph 1, that pro-
vision makes it very clear, in Our submission, that it does not itself confer
such a power on the organ.
So. Mr. President. with resnect. our submission is that the fact that this
Article has been sought in aid iortifies rather than weakens our contention that
there is no Charter basis which would iustifv resolution 2145.
1 turn now to the questions by chour rab Juedges on the interpretation
of Article 80.
On 4 March Judge Jiménezde Aréchaga askedthe following:
"(a) What would be the meaning and effect, in the view of the Govern-
ment of South Africa, of the proviso at the end of Article 76 of the
Charter ('subject to the provisions of Article 80') if Article 80,
paragraph 1, were Io be interpreted as having the eiiect contended
for ~, South Africa?~ ~
(b) What would be the meaning and purpose, according to the same in-
terpretation, of Article 80,paragraph 2,oftheCharter?'(Supra, p.424.)
On 5 March Judge Lachs asked the following question: ORAL STATEMENT BY MR. GROSSKOPF 541
"What would you consider to constitute, within the meaning of Article
80, paragraph 1, an alteration in respect of a territory which has not been
placed under the tmsteeship system of the rights of a State or people, or
the terms of an existing international instrument to which a Member of
the United Nations is a party?" (Supra, p. 452.)
1propose dealing first with the questions put byJudge Jimehezde Aréchaga;
Article 76 provides that the basic objectives of the trusteeship~sy~tem in
accordance with the purpose of the ~nited Nations shall be: . . '
"(d) ta ensure equal treatment in social, economic and commercial
matters for al1 Members of the United Nations and their nationals,
and also equal treatment for the latter in the administration of
justice, without prejudice to the attainment of the foregoing ob-
jectives and subject to the provisions of Article 80."
It is to this last proviso to the paragraph that Judge limenez de Aréchagahas
referred us.
In my respectful submission, the meaning and effectof this proviso are clear.
The proviso serves to emphasize, in my submission, that the equal treatment
in social, economic and commercial matters for al1 Members of the United
Nations and their nationals would not be introduced by the mere coming into
force of Chapter XII, or even by the conclusion of a trusteeship agreement,
Savein sa far as the trusteeship agreement made provision therefor. In other
words, the reference to Article 80is the reference to the Article in the interpre-
tation which we have olaced uoon it. that nothine in Chaoter XII of the Charter
should be construed 'inand of itself ta effect any alteration in rights. So that
also this provision in Article 7(d) would not in or of itselfeffectany alteration
of rights until and to the extent to which a trusteeship agreement may effect
such an alteration.
ln my submission, that is the sole purpose of the proviso-to emphasize
aaain that these economic and other riahts would not be altered by the mere
ciming into force of the Charter and noÏeven bythe conclusion of alrusteeship
agreemcnt. Saveto thc catent to which the trusteeship agreement rnsdee.xpress
provision therefor.
As will be seen when 1examine the legislativehistory of Article 80, the open-
door provisions of the "A" and "B mandates and their absence in "C" man-
dates were much in the minds of the framers of the Charter. It was indeed in
order to emphasize that the open-door provisions would not be introduced in
territories under "C mandates, othenvise than by the terms of the relevant
tmsteeship agreements, that the forerunner of Article 80,paragraph 1. was
initially inserted. But 1shall come to that later when 1deal with the legislative
history.
As regards the general effects of the proviso to Article 76, paragraph (d),
1 would refer the Court to Kelsen, The Law of the UnitedNotions, page 576;
Goodrich, Hambro and Simons, Charrer of the United Nations, third edition,
pages 476-477,second edition, pages 426-427.
Mr. President, in my submission, the meaning and purpose of Article 80,
paramaph 2, are equally clear. The paragraph reads:
"Paragraph 1 of the Article shall not be interpreted as giving grounds
for delay or postponement of the negotiation and conclusion of agree-
ments for placing mandated and other territories under the trusteeship
system as provided for in Article 77." Itmusi first be emphasized that the parïgraph is not confined to mandatcd
ierritories-tt also mentiuns the other territuries %,,hichArticle 77 ci)ntemplates
michi be placed undcr the trusteeship wstem. Yow. .Ur. President. as ue 311
kniw, it was decided by the Court in1950 that the placing of mandated terri-
tories under trusteeship is voluntary, and that this is the position has never
been doubted in respect of the other territories mentioned in Article 77 as
suitable for inclusion in the systern. So, even though there might at one stage
have been a doubt as to whether there was an obligation to place mandated
territories under trusteeship. that was not the position. inour submission, with
respect to the other territoiies mentioned in ~iticle 77:Article 80, paramaph 2,
refers to al1 these territories. It accordingly, in my submission, clearly refers
to territories in respect of which there was no obligation to neaotiate or con-
clude iruitecship agreements ai ;iII.Accord~ngly.uhen Article 86. parÿgraph ?,
refcrs to these mandated and oiher territories. ttdoes so in the full auareness
that there is no obligation on the States in control of those territories to place
them under trusteeship at all. A fortioriit follows that there is no obligation
to negotiate or conclude trusteeship agreements expeditiousiy. If you do not
have to do it at all, then obviously you do not have 10 do it speedily.
At the same time, Mr. President, the Charter did not by itself terminate or
alter the rights of mandatories and others who, it was hoped, would place
territories under the svstem. So. on the one hand there was no obligation to
conclude an agrccmenÏ. un the othcr there mas no terininaiion of th~cxisting
title. The position could. iherefurc, >ri%?that a pïriicular gnvcrtiing authority
might uuite lawfully delay. p.stp.ne or even refuse to place a territom under
truiteeship. To prevent these eventualities, to preveni delay, postponement
or refusal 10 place a territory under trusteeship, it would have ben nwssary
either to make the speedy conclusion of trusteeship agreements obligatory,
either generally or with respect to certain territories, or to pronde that the
rights of the administering authority would cease on the coming into force
of the Charter, or some similar arrangement. But that was not done. ln fact
the framers of the Charter did nothing to prevent, in law, the delay, post-
ponement or refusal to conclude a trusteeship agreement. In our submission,
there is nothing in the Charter which would, in law, have prevented an admin-
istering authority either delaying, postponing or refusing to conclude a trustee-
ship agreement.
As was held in the 1950 Opinion, Article 80. paraara~h 2. did not impose
any obligation to conclude O; even to negotiate a trusteeship agreement: So,
MI. President, the effect of Article 80, paragraph 2, must be seen in the realm
of something which does not impose a legal obligation. In Our submission, il
operated only as a form of persuasion or encouragement to administering
authorities to do speedily that which they were not obliged in law to do at
all-they were king encouraged to be speedy about the conclusion of trustee-
ship agreements, although the framers were aware that there was no obligation
on them to conclude them at all.
I would refer the Court, as regards the effect of Article 80, paragraph 2,
to Ke~s~n. The Law of rhe United Nations. at oaees 576 .o ~ ~. -~e circum-
stances leading to theinsertion of this exhortation, if 1may cal1it that, will k
dealt with when 1consider the leaislative historv of the Article.
1 turn now to the specific question put by Judge Lachs. In reply thereto,
1 would say that we would interpret the word "alteration" in its ordinary
sense as connoting any change in the rights of States or peoples. The important
point for Our purposes is, however, that Article 80, paragraph 1, does not
purport to prevent in general any alteration of rights, il does not purport to ORAL STATEMENT BY MR. GROSSKOPF 543
prevent any alteration of rights save in respect of a particular instrument. It
merely emphasizes that the coming into force of Chapter XII would not per
seeffect any such alteration. It leaves unaffected al1 other methods whereby
rights might be altered.
With reference specificallyto the mandates system, Article 80, paragraph 1,
would, in our submission, have rendered il clear that the coming into force
of Chapter XII did not affect, for instance, the title of the mandatories, the
open-door principle applicable to "A" and "B mandates, the obligations to
submit reports-the League was then of course still in existence-or any of
the other rights established under the mandates system. At that stage Article
80, paragraph 1, would have made it quite clear and emphasized that the
Charter does not affect any of these rights. However, none of these rights were
preserved against alteration by legal processes other than the coming into
force of Chapter XII, and that is really the significant point from Our point
of view. The Article did not purport to preserve or maintain any rights against
anythjng other than alteration by Chapter XII itself. if,for instance, a State
were ta have resigned from the League immediately after the commencement
of the Charter, say in November 1945,that State would, in Our submission,
clearly have lost its rights in terms of open-door principles or any other rights
it may have had as a Member of the League.
Article 80, paragraph 1, would not have preserved the rights of a Member
of the League, even where such a Member resigned its membership. Its resig-
nation would then have ken the cause of the alteration of its rights. And
Article 80, in out submission, would not have done nnything to preserve its
rights.
1corne now to the legislative history of Article 80 which Judge Jiménezde
Aréchaga invitedus to examine (supra, p. 424).It is Our contention that this
history confirms the interpretation which we have placed upon the Article.
The legislative history is conveniently set out in Russell, A History of the.
United Nations Charter, Cbapter XXXI, and save where otherwise indicated,
we have drawn from that source.
The provisions conceming trusteeship were first discussed at San Francisco
hy the Five Power Consultative Group. Their hope was to work out a joint
proposal to form a basis of discussion-in Committee lT/4 in the same way as
the Dumbarton Oaks proposais formed the hasis of work in other teclmical
committees. Events did not, however, work out that way. In particular the
Consultative Group proved unable to agree on ajoint plan within a reasonable
period.
Finally the Five Powers presented the Committee with a working paper
which was described as tentative and not binding on either the Five Powers
or any other delegation. They found it, in the event, impossible to have a
joint plan on which they were al1 agreed. This had the consequence that al1
new questions of importance had to be debated by the Five Power Consul-
tative Group before the Committee could proceed with them. As Russell States:
"Moreover. under the increasine Dressure of time as the Conference
progressed, the American chairmanLof the Consultative Group sought
to facilitate committee proceedings through informal negotiations out-
side the reeular meetines of boththe consultative Grouu and the com-
mittee. ~h: method pr>ved to be an effective device for getting agree-
ment among the States most concemed with particular points and it
became a regular and approved part of the committee process. Sucb
negotiations, however, complicated the official records which conse-544 NAMIBIA (SOUTH WEST AFRICA)
quently tend to be as confusing as the procedure followed." (A History
of the United Nations Charter, p. 810.)
1 mention this, because one does, with respect, find some of these records a
bit confusing and this is the explanation which Russell gives for this phe-
nomenon. In my suhmission, it is against this background that the legislative
historv of Article 80 (1) must be sien.
~hcn the l'ive Poker Coniultÿiive Ciroup usas considering the objcctivcs
of the tru%tsystcm the United States suggrstcd tkit generül non-discrimin~tors
oolicies should be established in trust aieas in regard to economic and other
Eivi~activities of the nationals of al1member staïes. This was regarded as in
the interest of the United States since the "C" Mandates did not contain the
o~en-door ~rovisions, and that had been a matter which had been an issue
bétweenthe United ~tates.'and some of the mandatories so that the United
States wanted this general'objective of the open-door to be included in the
trust svstem.
~he.French Govemmrnt, however, argued. inrrrulia, thït cigeneral coni-
niitmcnt on non-diicriniinaiory policier wi~uld, in elfcct, alter ihc tcriiis of
the "C" hlündates %v~thouiihr conwni of thc mandatories. To ineci this ooint
a new provision was proposed reserving al1 rights, including those of the
mandatory States, pending completion of the subsequent trust agreements.
As debated in the Technical Committee, the paragraph read:
"Except as may be agreed upon in individual trusteeship arrangements
made under paragraphs 4 and 6, placing each territory under the trustee-
ship system, nothing in this chapter should be construed in and of itself
to alter in any manner the rights of any State or any peoples in any terri-
tory, or the terms of any mandate." (Ibid., pp. 827-828.)
The Egyptian representative proposed that the paragraph should read
as follows:
"Nothing in this chapter should be construed in and of itself to alter
in any manner the rights of the people of any territory or the terms of
any mandate." (UNCIO docs., Vol. X, p. 477.)
The effect of thisvrovosal would have ken to omit the reference to rights
of Siaics and also toomit the refercncc to the possible chsnge of rights bfihr
conclusion of trusiceship agreenient,. As statcd hy Russell, ihis proposa1 can
be undersiood only in the Iipht of the situaiion in Palestine. Thç Arüb Siaies
wanted at least to freeze the-status of Palestine so that it could not be placed
under trusteeship on terms they might have considered less advantageous to
the Palestinian Arabs (Russell, op.cit..D. 828). Since most of the factors in this
complic3ied situation conccrning ~ülcst;neh3d to rcmain unspi>kcn,there was a
'.good deal of discursive indirection iiithe commiitee di\îussions" (rbid.,
Against the Egyptian amendment, it was argued that it would defeat its
own purpose by freezing existing situations and making it impossible to enlarge
the rights of peoples in mandated territories when placed under trusteeship
(IJNCIO docs., Vol. X, p. 477). The reason for this argument was, of course,
as 1 have indicated, that the Egyptian amendment would have omitted the
possibility of a change in the rights of peoples by the u>nclusion of trutteeship
arrangements.
Eevot and the United States thereunon consulted ~oe~ ~er in nrivate but
ûppÿknil) could not reach an agr&m&t. Thereïftcr ihe~nited ~;atc, statcd
in Commiitee Fuur lhat thc paragraph as propowd by the l'nited Stütcs war ORAL STATEMENT BY MR. GROSSKOPF 54.5
intended as "a conservatory or safeguarding clause", and it was willing that
the minutes of the Committee should show that it was intended to mean that
"al1 riahts whatever thev may be. remain exactly the same as thev exist-that
rhr)~a~cnctihrrincrc~wd no;d~minlshed by ihe adi,~t~on of rhis i.hiiricr. Any
chüngc is lefi35 a matier t'orsubsequcnt agreements. The clause hhuuld ncithcr
add nor detract, but safeguard al1 existing rights, whatever they may be"
(ibid., p. 486).
It will he observed, Mr. President, that according to the United States
representative, the paragraph which eventually became Article 80 (1) of the
Charter was intended to convey that existing rights would not be changed by
the adoption of the Charter.
Hereafter the Eavotian amendment was out to a vote and defeated. Imme-
diately thereafterfhé representative of ~yria proposed a similar amendment,
in terms of which the paragraph under consideration would have read as
follows:
"Except as may be agreed upon in individual trusteeship agreements
made under paragraphs 4 and 6 placing each territory under the trustee-
shio svstem. nothina in this chaoter should be construed in and of itself
to alter in any manner the rights sf any state or any peoples of rhe rerrirory
concerned,or the terms of any mandate." (Italics added.)
1 emphasize the words "of the territory concerned" because those were the
important ones for the purpose of the amendment.
In favour of the amendment. it was said that it would exclude claims to
rights on the part of the peoples butside the territory concerned. If such peoples
had rights, these rights would be presented by the States ta which such peoples
belon% not bv the oeooles theiselves. ~his was clearlv a reference to anv
claimSwhich jewish'people might have had. Against thémotion, it was said
that the effect would be seriously to weaken the conservatory or safeguarding
clause bv failin-.to oreserve certain riehts. namelv.the riehts of oeo~les out-
side the icrritories. In the event this ïmendmcnt wù\ slso dcïeaied (;htd.:p. 487).
From the r~ther cryptic report of ihc dissussionr in the Comniiitce uhich
one finds in the UNClO dilcunients. iiis diilicult io undersiand how the
Syrian motion could have seriously weakened the socalled conservatory
clause by failing to presem rights for peoples outside the territory. Possibly
there was some of the "indirection" which Miss Russell mentioned in some
of these arguments. In any event, Mr. President, the important point, from
Our aspect, is that there is no indication of any intention to protect rights
against anv.hine"ther than the comine into force of the Charter itself. There
ica lot ofarguinenr about uhat righis hhould be proicçted but there is nothing
10 suggest an inicnriun to protccr rirhts again,t anythina other than the coniing
into force of the Charter.
Five days Iatcr the Sovici rcpreientative re~eivcdinstruction< from Mosco\i.
and proposcd to eliminütc psrsgraph 5 altogether on the grounds that ilci~uld
bc intcrprctrd to keep existing niand;itiiries indefiniiîl~ in control. 1he United
States. China and France argucd thai ihc provision ivas csiential and niade
nothing perriidnent, it merely niaintained exisling rights uniil subsequcnt
agreement did. or did not. chan= them. The Arab deleaates remained dis-
Wiisiied with the Iack ofspccial Piovision for Püie,tinc. ~he Lnited Kingdoni
siigpcsted thai their fears mighi be quieted by indirect refercnce to Article 22
ilfthc Covenant relaiina io fornicr Turkish tsrrit<>ries.uhich nrtividcd that
the wishes of these communities must be a principal, consideration iii the
selection of the mandatory. However, MI. President, the United States dele-546 NAMIBIA (SOUTH WEST AFRICA)
gation felt that the mention of this Article would rouse Zionist opposition,
and further informal consultations, which were not recorded, were held hy
its political advisers with Arab representatives to try to find a satisfactory
formulation IRussell. oo. cit.o. 829).
~greemeniwas finaliy reached upon some changes in the text in an attempt
tomeet Arab concern. A new final sentence was also suggested to meet the
earlier Soviet obiection. and this new final sentence ultimatelv became Article
80 (2). The provi'sionwas reconsidered and it was approyed b; the consultative
group in the following form:
"Except as may he agreed upon in individual trusteeshiparrangements,
made under paragraphs 3, 4 and 6, placing each territory under the
trusteeship system, and until such agreements have been concluded,
nothine in this Chaoter shall be construed in or of itself to alter in anv
manne; the rights whatsoever of any States or any peoples or the terms if
existing international instruments to which member States may respec-
tivelv he oarties. This n.rae-.oh should not be interoreted as nivinr
groinds fir delay or postponement of the negotiation; and concrusion
of agreements for placing mandated and other territories, as provided
for in paragraph 3, under the trusteeship system."
When this text was presented the United States delegate added that he would
enter an officia1statement in the record to the effect that among "rights what-
soever" were included any rights in Article 22 (4) of the Covenant (UNCIO
docs., Vol. X, p. 515).
The delegate for Iraq thereupon moved an amendment, the effect of which
would have heen that trusteeship agreements in respect of territories falling
under Article 22, paragraph 4, of the Covenant, could not be concluded "save
within the limits and for the purposes" laid down in that paragraph (ibid.,
pp. 515-516).
So, Mr. President, here for the first time was an amendment which would
have provided that trusteeship agreements should incorporate certain rights
which had existed under the Covenant. This amendment would also have
provided that nothing in the Charter "should he construed in and of itself to
alter in anv manner the riehts of anv State in anv territo.. or to diminish the
riphth of thc people [iinguïar] ofihit icrritory"..
In support tifthc niotion. iilias said thdt the Ilnitcd Staics proposa1 \iould
Iclivcpeoplcs cumiii~undcr the trii<teeshipsy,tcm si the nicrcy of iho,e iiiliking
the truriechip arrsngemcnts. for no provision \13s iniludcd for consiilting
ihc desirch oithe pçoplcs csn~erned. There rhould be ü auarantec thai iheir
rights should not in any way he reduced, and that in particular there should
be no doubt that the rights set forth in Article 22, paragraph 4, of the Covenant
were included in the paragraph.
So, Mr. President, as 1 say,. here was a specific proposal to ensure that
certain rights which had existed under the mandates system would be main-
tained in an altered form under the trusteeship system. However, the opposi-
tion to the amendment proposed hy Iraq was based on the ground that its
effect would be to cut off the rights of some peoples in some territories, as
the text of the amendment used the word "people" in the singular, "whereas
the paragraph would safeguard al1rights". This was probably again a reference
to the Palestinian question.
Then a further argument used in opposition to the amendment was that not
al1 of the United Nations were parties to the same international instruments,
and in particular some were not bound by the Covenant. "Account should ORAL STATEMENT BY MR. GROSSFOPF 547
be taken of the respective positions of al1the United Nations in this respect."
(Ibid p.,522.)
Now, Mr. President, if 1 understand this argument correctly-and 1 would
imrnediately Say that these UNCIO documents are very brief-there was an
objection ta the imposition on non-members of the League of obligations under
Article 22 of the Covenant. The very basis of the objection was that some
Members of the United Nations were not bound by the Covenant and, there-
fore, there should not be a provision which would ensure that any provisions
of the Covenant would necessarily he included in trusteeship agreements.
That, in my submission, is a further indication that Article 80 was not
intended to impose any new obligations on anybody, even if such imposition
was necessary to protect existing rights. So, even if it was necessary to protect
existing rights ofpeoples falling under Article 22, paragraph 4, of the Cove-
nant, to make this provision, there was opposition thereto on the basis that it
would have imposed obligations on non-mernbers of the League.
In the result. MI. President. the United States o.oo.sal was acceoted and
that of Iraq rejected.
The next reference we could find was in the Co-ordination Committee,
where the Article was aeain discussed. What haooened there is reflected as
follows in the UNCIO documents, Volume ~~11,';age 312:
"The Committee discussed at some length the clause 'alter in any
manner the rights whatsoever, of any States or any peoples'. ... Messrs.
Golunsky (USSR) and Robertson (Canada) insisted the text had been
laboriouslv neaotiated. The Chairman orooosed ta read 'in anv manner
whatsoever', bit Mr. Robertson was confirmed by Mr. Gerig itechnical
adviser) in saying that the intention of Committee II14 was 'ta freeze the
present position: bona fide rights, doubtful rights, rights that are pure
figments' after the Charter just as they were before it. No change was
made."
The paragraph thereupon was included in the Charter as Article 80.
1would, MI. President, emphasize the explanation given here that the inten-
tion was "to freeze the Dresent oosition: bona fide richts, doubtful rixhts.
rights that are pure figments, aftér the Charter just as?hey were before-it".
And thaf, in my submission, was the sole purpose as appears both from the
wordine and from the draftin~ historv-that r-nhts were not ta be altered bv
the zoming intu force of ihe ~h3rtcr.-
In ionclubion, ihçrcfure.MC whiiiii ih;itin the Iight of ihc Icgisla1ii.eh!story
tifArticle 80 the full<~bvingain~lusionsscciiijii,titicd:
(a) The purpose of including the provision which later became Article 80,
, paragraph 1.was originally to Drotect the "C" Mandates from automati-'
cally becoming subject to the- open-door provisions by reason of the
introduction of Chapter XII, and particularly the provision which later
became Article 76. paragraph (d).
(b) During the debates, the Arab States made various attempts to change
the wording so as ta advance the cause of the Arab population in Palestine;
This history is rather confusing but on the whole it appears that these
attempts were unsuccessful.
(c) Ultimately the Article was intended to serve only the purpose which
appears from the clear wording, namely ta ensure that the coming into
force of Chapter Xrr would not per se effect any change in the rights, real
or imaginary, of anybody. Ii is ritheriica,c of coiiiing oui by ilie unie door a\ i)nï ticnt in. One siari*
off uith a.tcxi, and, in niy siibniission. aftcr dijciission of the lcgislaii\e hihtory
one finds that the clear wording of the text corresponds with what appears tb
have been the actual intention of the framers of the Charter.
That then brings me, Mr. President, ta the reply to questions put by your-
self and by Judges Onyeama and Dillard conceming the consequences of the
lapse of the Mandate.
1 would commence by making a few observations on the introduction to
the auestions out bv Judaes Onyeama and Dillard (suora o. 438). At the outset
1wohd confi& th& weire in Ïespectful agreemeni With'iheproposition stated
by the leamed Judges that the supervisory and accountability ~rovisions of
the Mandate (Article 6) were of sÜch importance that their laise might have
caused the termination of the Mandate itself. Indeed, we would stress that, if
the Mandate lapsed in rofo it did so for that very reason, in our submission,
Le.. because of the fallina awav ofthe suoervisorv and accountabilitv orovisi~ ~~-~
onthe other hand, if t<e an dat etiliexisted-after 1946 we coniend it could
have done so only without supervisory and accountability ~rovisions.
Our contentions concemina the falline awav of suoervisorv and accounta-
bility provisions aie, accordingly, absolute and;nqualified. 0; the other hand,
OUI contentions concerning the possible lapse of the Mandate as a whole are
secondary and consequential and depend on our primary contention that the
supervision and the accountability provisions fellaway on the dissolution of the
League.
In the present proceedings we accordingly make the formal submission that
the Mandate has lapsed as a whole by reason of the falling away of super-
vision by the League, but for the rest we assume that the Mandate still contin-
ued. That is in Chapter 1,paragraph 10,of our written statement; at pages 275
and 277, supraa ;nd Chapter IX, paragraph 66, of our written statement which
we dealt with orally at pages 276-277supra.
However. Mr. President. on either hvoothesis we contend that after dissolu-
lion of the~engue there no longer w:is any obli~ation io report and account
tinder the .Mandate. This %baralso uur attitude in thc prcvious cuntcniious
proceedings, as Ive have indicüted in the pa$sagc, thai 1 have jus1 citcd io the
Court, although in rhose procecdings iie did prc.cnt argumcnt on thc second
aliernaiivc part of Our contcniion, namcly thii the Mandüte 35 a wholc had
lapsed. We did so in reply to a specificsubmission to the contrary by the Ap-
plicants.
The questions put by the Members of the Court flow, with respect, logically
fromthe contention advanced bv us in the alternative. namelv that the Mandate
as a whole had lapsed on dissoiution of the League.'we ha& in any event, in-
tended dealing with the consequences of the postulated lapse of the Mandate,
but we welcome the opportunity of doing so more pertinently with reference
to the questions put by the leamed Judges. We must, however, emphasize our
contention that the outcome of this case should be substantially the same
whether or not the Mandate as a whole laosed in 1946. We have oroceeded
for purpoics of argument on the as5umptii)n thiit itdid not I~p,c, that it con-
tinud, and 1nrrd no1rcpcat the c<)ntcniionsaJvdiiced hy uson that hypoihesis.
On the alternative hypothesis, namely on the hypothesis that theMandate
did lapse in 1946, we submit that al1subsequent United Nations action would
have been misconceived. In particular, General Assemblyresolution 2145(XXI)
would have been of no force and effect, as would have been the position con-
cerning subsequent SecurityCouncil resolutions. We have dealt with this matter, ORAL STATEMEM BY MR. GROSSKOPF 549
Mr. President, in our written statement1,Chapter 1,paragraph 10,and in out
oral statement at page 277,supra.
Against this background, we reply to the questions as follows, and I deal
firstly with the question put by the honourable President at page 424, supra.
There the honourable President asked the followine auestion: "under what
title does the Government of South Africa claim to carri on the administration
of Namibia?". Our answer is as follows.
The PRESIDENT: Will you kindly read out the whole of the question.
Mr. GROSSKOPF: 1 kg your pardon, Mr. President, 1was under the im-
pression that was the whole of the question.
The PRESLDENT: It starts with saying "Kindly see ..."
MI. GROSSKOPF: Yes, well this is the whole of the question. With respect,
you referred back to Our contention that the mandate had lapsed. That is, of
course, the background which 1havejust dealt with against which this question
is tobe answered. With respect. ..
The PRESWENT: Have you any particular objection to cornplying with
my request?
MI. GROSSKOPF: No, save the practical one that, Mr. President, 1don't
have it with me at the moment.
The PRESIDENT: Kindly do that.
Mr. GROSSKOPF: But the question which the honourable President put
was after referring to the submission which we have made in the previous .. .
The PRESIDENT: Kindly read out what 1 said, not your interpretation.
Mr. GROSSKOPF: 1 am very sorry, Mr. President, 1 don't have it with me
at this moment.
The PRESIDENT: Very well-proceed.
Mr. GROSSKOPF: Against the background of the submission which we
had made in the orevious oroceedines to the effect that the Mandate. as a
whole, had lapsed; togethe; with all-obligations thereunder, the hono;rable
President asked the question "Under what title does the Government of South
Africa claim to carry on the administration of Namibia?" Our answer is as
follows:
South Africa conquered the Territory by force of arms in 1915,and adminis-
tered it under military rule until the end of the war.
It was generally accepted at the lime that in the event of an Allied victory,
South West Africa necessarily had to become an integral part of the Union.
This was dictated not by any territorial ambitions on the part of South Africa,
but by the purely practical and realistic consideration that the Territory could
not ùe properly administered or developed divorced from South Africa. This
consideration was given effect to, first by theecision of the British Imperia!
War Cabinet in 1917 to award full sovereignty over the Territory to South
Africa, and later by its inclusion in a separate class of mandates which was
designed largely to suit the circumstances of South West Africa and which
required it Iobe administered under the laws of the Mandatory as an integral
portion of ils own territory. This arrangement required the consent of South
Africa, which was given because the mandates system recognized the special
relationship between South Africa and South West Africa.
In the years since 1915, South West Africa has inevitably been integrated
even more closely with the Republic. The development of the Territory in al1 550 NAMIBIA [SOUTH WESTAFRICA)
fields has been stimulated largely by experience, knowledge and capital derived
from South Africa. Its present high level of economic progress, administrative
efficiency, and social,edical and educational advancement are dependent on
the continuation of its links with South Africa.
When the League was dissolved (and the Mandate lapsed, on the hypothesis
on which this question rests) it was contemplated in the declarations made by
the mandatories as well as by the League and other States generally that the
mandatories would have a title to administer the territories and to make
arrangements concerning their future-indeed, that this would be a conse-
quence of the sacred trust which had originally been assumed. So it was, for
instance, stated in the report of the United Nations Special Committee on
Palestine that, in circumstances in which the Committee was doubtful whether
the,mandate still existed, the mandatory could, in the absence of trusteeship,
do no more than to carry out its administration of the territory in the spirit
of the mandate [written staternents, 1,Chap. VIII, para. 44). And, Mr. Presi-
dent, this has indeed been the avowed policy of the South African Government.
In the political field South Africa has accepted that the ultimate aim of its
administration must be to advance the peoples of the Territory to self-deter-
mination. In this process, political institutions hased on the will of the people
have been established for population groups comprising a substantial majority
of al1the inhahitants of the Territory.
In the light of this history, it is the view of the South African Government
that, if it is accepted that the Mandate has lapsed, the South African Govern-
ment would have the right to administer the Territory by reason of a combina-
tion of factors, being (a) its original conquest: (b) its long occupation; (c)
the continuation of the sacred trust hasis agreed upon in 1920; and, finally (d)
because its administration is to the benefit of the inhabitants of the Territorv
and is desired by them. In these circumstances the South African ~overnme~t
cannot accept that any State or organization can have a better title to the
Territory.
1 then turn ta the questions put by Judges Onyeama and Dillard (supra,
p. 438). There also, MI. President, 1 have with me only the questions-
1 have not got the introductory part on which 1 have already delivered com-
ments although I have not quoted it, but for the sake of brevity 1would only
put the specific questions, if 1may. They read as follows:
(1) 1s it your position that no legal restraints of any kind were imposed on
South Africa subsequent to the dissolution of the League of Nations?
(2) If your answer is that there remained legal restraints, will you specify
their nature and areas of application?
(3) If your answer is that there remained only a political or moral obligation
to live upta the requirements of Article 22 of the Covenant then is it your
position that there are no legally operative provisions anywhere which
would prevent South Africa from annexing South West Africa (Namibia)?
Now, MI. President, reading the questions together, it seems to us that the
word "imposed"in Question 1islimited, or isintended to helimited, torestraints
imposed in terms of Article 22 of the Covenant and ofthe mandate instruments,
and would therefore not include leaal restraints which mi& have been im-
posed by other conventions, instruments or rules of customary law. We read
it in this way mainly because Question 2 refers to remaining legal restraints-
"If your answer is that there remained lezal restraints". and therefore we
accepi thit the le~rned Judgei had in rninrl 1Eg;ilreririintr einanaiing frim ihe
mandate do.umcnr\ as such, and noi lc~al resimints ii'hich nii~ht have becn ORAL STATEMENT BY MR. OROSSKOPF 551
imposed in any other fashion. On the other hand, if we construed Question 1
too narrowly, we would appreciate it if the leamed Judges could indicate that
to us, and we would then deal with it on a wider hasis.
However. on that readine. Our answer to Ouestion 1 is in th~-~ffirmative. ~ ~ ~ ~
It is Our position that no leial restraints im6sed by the an dat eernained
after dissolution of the League. Consequently, of course, Question 2 falls
away.
In reply to Question 3, we state that in OUI view there would be no legally
operative provisions anywhere which would prevent South Africa from an-
nexing South West Africa. This was, incidentally, also the view of Kelsen
(TheLaw of the United Nations,pp. 592 et seq.), where he dealt with the tran-
sition between the mandates system and the trusteeship system. He was of
the view that the Covenant and the mandates system were no longer in force
after dissolution of the League. He stated categorically:
"The trusteeship system did not automatically replace the mandate
system, and the UN did not succeed to the rights of the League of Nations
as to the former mandated territories. There is no legal continuity in the
relation of these two systems. The one ceased to exist long before the
other came into existence." (Kelsen, The Law of the United Nations,
pp. 596-597.)
He came to the clear conclusion that neither the Covenant nor the Charter
would be violated by an act of annexation by the former mandatory Power,
and that the United Nations, under the Charter, has no competence to consent
or to refuse to consent to the annexation of a formerly mandated territory by
the Power actually exercising the administration.
So, Mr. President, his attitude was that neither the Covenant nor the Charter
would be violated by such an annexation and that the United Nations as such
had no role to play in any purported annexation by the Power exercising ad-
ministration. In particular, he also emphasized that the sacred trust principles
emhodied both in the Covenant and in Article 73 of the Charter would not be
in conflict with annexation or with the exercise of sovereignty. Indeed he makes
the point that Article 73 applies mainly, if not solely, to territories which fall
under the sovereientv of some State (i~.~~. n...598-599. f,ot~ ~ ~ ~~~).
I must add at this Stage, MI. President, that Kelsen seems to ha;e had some
reservations about the Dossible rirhts of the Princi~al Allied and Associated
Powers, but he was nevertheless of the opinion that the disposal of formerly
rnandated territories by placing them under trusteeship at the instance of the
former mandatory Powers could he legally justified only on the assumption
that on dissolution of the League the territories came under the sovereignty
of the former mandatories (ibid., p. 603). He discusses the legal basis on which
the former mandatory Powers had locusstandi to enter into truste es hiagree-
ments and his conclu~ionisthat the fact that they were the parties to the'truitee-
ship agreement could beexplained only on the basis that the territories had
come under their sovereignty and that they were therefore entitled to dispose
of them in this particular way.
1 may also in passing note Kelsen's discussion of the South African in-
corporation proposal in 1946, in which he again underlined that the matter
was brought before the General Assembly rather for political than for legal
reasons (ibid., p. 598, footnote 4).
So, after this long story,MI. President, to repeat: it is the view of the South
African Government that no legal provisions prevent its annexing South
West Africa. However, as the South African Government has repeatedlyintimated, it has no.intention of doing so and is indeed at present engaged
on the development of political institutions in the Territorv which are desimed
to lead the peoples of the Territoiy towards self-determination. So that, in
Our submission, from a practical point of view, the possibility of annexation
is not of any importance and is, in our submission, only of academic interest
at this stage because of the policies to which l'have adverted. ORAL STATEMENT BY MR. DE VILLIERS
REPRESENTATIVE OF THE GOVERNMENT OF SOUTH AFRlCA
ThePRESIDENT: Mr. de Villiers,can you gire the Court an estimate of the
timc nccdcd by you for concluding )uur <~bservationson the tmo presentations
that were made after you spoke last?
MI. de VILLIERS: In reply to yow question, MI. President, 1propose to
deal with certain remaining questions of law. There are still one or two ques-
tions .ut b. Judges to us which have to be reolied to. There are also certain
matters of comment which have been presented by the representatives of the
Secretary-General and by the representative of the United States in their oral
statements concernine leeal areuments which we had Presented to the Court
with which 1should ikc ;O dcï?. That uould bring me ;nt0 a spherc uhich u,e
considcr IO be important also and the nature of which 1indiwtcd to the Court a
few days ago, nimely that although at this stage we do not know what the
Court's decision will be on what we have suggested in regard to the plebiscite
proposal, namely that there should be an early decision on that matter, we are
readv to comment at this staee verv brieflv on certain introductow aslie.ts .
concerning what 1might cal1the iactial field: It u,ould cuncern two aspects and
some of theni have a bearing too on questions iihich have bccn put hy learncd
Members of the Court,for instance conccrning the applicability or otherwisc of
portions of Article 73of the Charter of the United Nations.
I want to direct attention, bricfly10 South Africs's attitude, as distinct from
a detailed argument al this stage. about the legal principles and noms in
current international law upon wkih its conduct in south West Africa is to be
adjudged. That isone aspect, and then, secondly, 1would like to indicate to the
Court to what extent we consider that if the Court should come to the conclu-
sion that it is necessary or desirable to go into the factual field at allIo what
extent we consider that even in that respect we should like to be enabled to
amplify the record. A similarpresentation isproposed by my leahed colleague,
Mr. Botha, on the factual field as such-South Africa's attitude, again as
distinct from detajled argument, about its record of fact in South West Africa
seen against the background of what 1 have just mentioned as that of the legal
principles and norms in current international law against which it is to be
adjudged. A brief statement on that and a bnef indication of the type of further
material which it would be necessary to place before the Court in the event it
may becomenecessary to have a full investigation of the matter.
South Africa's contentions about this-perhaps this may be a convenient
oint at which to out that clearlv-are these. We have contended to the Court,
and 1 wish to repeat for emphas;s that, in our submission, a consideration and
an investigation into the factual field is an integral part and a necessary part
of the task which has been olaced uoonthe Court by the request of the Security
Council. In this senw uc c;n sec thit itiiiay bc possiblc for ihe Cotirt hyconiing
Io sonclusions F~vourdbleto South Africa's contentions on ~ertain lcgal i%*ues
to make it unnecessarv to eo into the factual field. It may well be possible for
the Court to decidc that ai the sonclusionr ai ahich itÜrrivesconcerning the
potiers of the General A\semhly ur of the Security Council or i)f hoth. thc
action taken wiihin the United Nataons to terniindte South Africa's title in
respect of South West Africa was an invalid action, and having come to that 554 NAMlBIA (SOLTH WEST AFRICA)
conclusion on a purely legal basis it may become unnecessary at al1 to enter
into the factual field. That is a possibility: we do not, with respect and with
submission, see a possibility the other way round. We do not see a possibility
that the Court could on a legal basis declare that the actions taken within the
United Nations were valid actions. without--.ine fullv into th.~~ue~~~ ~ of~ ~e
factual justification or otherwise for those actions. That is why we submit very
strongly that that is a matter which, unless the Court disposes of it on a leeal
basisf&ourable to South Africa's contentions, it is absoiutely essential in our
snbmission to be properly investigated, at a time and in a manner convenient to
the Court.
That will give the Court an indication of what we intend to present at this
stage. My estimate would be that it should conclude by Thursday.
The PRESIDENT: When we had the opportunity of the consultation over
the nrocedure and the time-table last 1 was given an imwression. eenerallv.
to which 1do not restrict you and your collea&es, and 1 am hopini fhat more
or less so far as the time-table is concemed that could be adhered to. 1would
further wish toobseme that with regard to the first part of your presentation,
after you bave dealt with the remaining questions to which the answers are
still due, according to you, you will kindly restrict your comments on the
"statements of the representatives of the Secretary-General and the represen-
tative of the United States to matters which are altogether new, and in your
reply would confine yourself also to any new presentation on those points. 1
have no doubt whatsoever. from an estimate of the abilitv and skill with which
you have presented and continue to present the case of South-~frica, that you
will not find itcessas. to repeat an answer which may already he contained
in your written statement or in your oral statement though, of course, you will
be at liberty to givethe references to the Court.
To enable you both to do this and, if you so.wish and consider it necessary
to make any addition to it, the Court will now, on your estimate, have to sit
tomorrow afternoon also, in addition to the morning sitting, because of certain
considerations that the Court has in mind with regard to its own time-table.
At this stage1will say no more than that 1hope very much that you may he
able to conclude hy tomorrow evening.
Mr. de VILLIERS: We shall certainly see what we can do about it, Mr.
President.1am sorry if there was any misunderstanding.
The PRESIDENT: There was no misunderstanding. You were not bound
by any estimate and that was made quite clear. There is no misunderstanding
atall. If you willdo your best 1am sure you willsucceedalso.
Mr. deVILLIERS: Certainly, Mr. President.
The Court rose nt6.15p.m. TWENTY-SECOND PUBLIC SITTING (16 III 71, 10 am.)
Present: [SeeSittingof 81171.1
Mr. de VILLIEI<S: 1 ihould Iike tii refcr tirit of.ilto ceriain responses
given on bcliall'of the Secrei3rs-Gcner31 10 questions ihar wcre put io hini by
Judres Gros and Sir Cierilrl Fii7mauri:e on tlic auesiion ùf the relevani powers
of ihe General Asscnibly and ihe Sccuriiy C'ounCil.1do so kcaurc, in ; large
nieasure, the answers direcicd io tho~ que~iionlwere also direcied IOargumcnis
which had been presented on behalf of South Africa: sometimes they were
explicitly so directed to Our arguments and sometimes implicitly. BU ^will
confine myself, Mr. President, in view of your request yesterday, to matters
that are new, which isin any event, with respect what one would do for purposes
of iircply. 1iiiII~lsoconfine ni)self in m3fn clcrncnt, ofthiscomnientand u.111
nilt iry Io pursuc ilinio al1the nooks and crînnies of Jeisil.
Firsi 1shùuld Iikc ti)dwl i\,iihcerrüin cIements periûinine, io the quebiion
of the power of the General Assembly ta make a binding deCisionin the case
under consideration.
In that respect, we submit that what is new and remarkable is that when one
analyses the Secretary-General's statement, one finds that it emphasizes his
complete inahility to point to any legal basis for the existenceof such a power.
His contention on that aspect is still that the decision-in resolution 2145-to
terminate the Mandate and to assume direct responsibility for the adminis-
tration of the Territory, was a valid one. His replies to the questions by Judge
Gros made it clear that he contended that this decision conseauently created
or rc.sultcd in ne\$ and legdlly binding uhligitionr, not only for the ~iaic mosr
direcily conccrncd, king South Africa, iihich had opposcd the dccision vcry
sirùnaly. but alro foriiloihcr States Menibers of ihç Uniicd Naiions. including
thosëwho did not support the decision and who had expressed réservations
or doubts concerning its validity or its wisdom. In his own words, in this
respect. the effect was"ta establish a new factual and legal situation from which
ceriainobligations flow automatically, as a matter hoth of law and of logic"
(supra, p. 481). And it followed that in his contention no reservations, qualifi-
cations, doubts or statements of disagreement could he relevant to such
a resolution or its consequences (supra, pp. 483-484). There was a dia-
lectical question about whether the word "resentation" was a proper or
appropriate one to use in this context. That, in my submission,is of littleor no
sienificance. What is imnortant is that he made it clear that. whether one could
properly spcïk of rewn,uiion\ in ihis contexi or mheiher one ipoke of doilbts or
siaiemeni\ <ifdi,;igreenient, his conteniiims applied to al1of ihcni. AI1 <ifih05e
would be to no avail. and the States concemrd would still be bound to the
obligations flowing a;tomatically from the new factual and legal situation
which had been created.
He did trv to minimize the extent to which these other States did. in fact.
express disagreement. In my submission, he somewhat overdid that;but that
is not important for my purposes and 1 will not pursue the point, because, in
my submission, in principle that is totally irrelevant. As matter of legal
principle, whether the disagreement indicated was of a minor scope or major556 NAMlBlA (SOUTH WEST AFRICA)
scope, the position remains exactly the same. The contention of the Secretary-
General must go so far as to mean that this decision would have been valid and
binding, so a; to create these new legal obligations for al1 United Nations
Memberc, even if it had ken vehemently opposed byjust lessthan one-third of
the total membership of the United Nations. At that time, Mr. President, it
would have meant with a total United Nations membershi~ of 121. tha. t~~ ~ ~ ~ ~ ~
protesting miiiority could have becn us large as 40. or if one takes the nuniber
that actually pïrticip3ied in the voiing. I IL)then the proiesting niinorifs could
~ ~ ~~~e~ as laree & 39. In other words if one takes eilher fieurë. it is o~~~-hi~ ~ ~ ~ ~
- -.
isagreat de31larger. almost double thcsi7e. of u hat 1sknoivn in United N2tions
circles as the -.nup of Western Europesn States and others. Ii isalntosi the size
of thxi group plus the Latin i\nier&in group, and it represcnts vcry nexrly 80
per c:nt ofthc original mcmkr\hip ot'thc United Kations whcn ii\\~sfoundcrl
The protesting minority could have expressed their disagreement and oppo.
sition on various grounds, i.e., on one or more of such various grounds. Th
could have taken the attitude that in their view ttiere was a lack of power on
the part of the General Assembly to take the step. Secondly, they could have
based themselves on the lack of substantive grounds for such a decision.
Thirdlv. their attitude could have been that the termination of the Mandate
would as ï niatter of pnlicy bc unu,ise,cvcn if itcould bejustificd in Iaw. And.
fourthly. their attitude niight simply have been that such a decision. or a pur-
ported decision, would be a matter of major controversy, it would give rise to
such uncertainty and further controversy that that state could not be beneficial
to anybody concerned. Those are various possible grounds upon which, as 1
have said, such a protesting minority might base itself.
Ye~ ~h~ ~ec~ ~ ~ ~G,ne~ ~'s~co~ten~ ~n must mean. in law. that such a
protesting minority would be bound hy the votes of the bther two-thirds of the
rnembershiu. He does not suggest any bais in law which would distinguish
such a situation from one ofnear-unanimity, nor is it conceivable that there
could, in law, he any such distinction.
So. Mr. President. the auestion, in its legal essence, is where does he find the
power for ihc Generd ~ssiiiibly io do rhis?
When we pursue ihai question tic find thït the nc\t impori~ni fr.~tureof ihc
statemcnt on bchalfof the Sccrciary-Gcnerdl iras that he no\%e~pliciil~agrccd
that it was by the Charter that the principal organs of the ~nited~ationswere
"establishcd and their functionsand powers defined" (supra, p. 485). In otber
words, he had to admit that he had to find a Charter basis for this suggested
power. He made the admission in various words at pages 479 and 490, supra,
and he had to admit that it was to the Charter that one had to refer for the
relevant limits to the vower (,u.ra....479 and 485). For both of those vurposes
-in other words, hsth concerning the grant of power and the limiiation of
power-he professed to base himself on the express text of the Charter, together
with necessary implication or intendment arisingfrom it (ibid.).
So, Mr. President, there is now in this respect, common cause between the
Secretary-General and us. That was made clear in this replying statement,
although it took very pertinent questioning to bring him so far as to state this
explicitly.
The Secretary-General in his statement did attempt to leave open a little
back-door by saying that the Charter "is ... suhject to continuing interpre-
tation" > .iora..o.485). or that "like al1constitutions. if is intervreted from dav
to day by practice, an n the light of current norms and events" (supra, p.487).
However, 1shall deal with that aspect later, Mr. President. ORAL STATE.MENT BY MR. DE VILLIERS 557
1wish to take him up first on the Charter basis to which he himself subscribed.
The questions put to him by the learned Members of the Court searchingly
reauired hini to elucidate his contentions with reference to a relevant eran- ~~ ~ --
poker and relevant limitations on powers. Yet he completely failed to indicate
how the General Assembly could be said to derive the power of binding deci-
sion. for which he contends. either from anv ex-.ess orovision of the charter ~~~~~~~-
or fiom any necessary implication or intendment arising from it. He singularly
refrained from discussing this matter at al1 with reference to the probable
intent of the authors of the Charter. So one does not see how far an; basis of
necessary implication or intendment could bring him.
He repeated a vague generality in this respect, namely that "the Charter-
like other constitutions-does not set out swcific and detailed orovis.ons ~-~ ~ ~ ~
dealing witheachand every type of contingency khich may arise" (supra, p. 485).
Now, Mr. President, that is true enough, it is so. It is true of probably everv
constitution, but it does not let the Secretary-General off the hook as far as
this case is concerned. Surely, in order Io make his contention even plausible,
he must be able to point to some provision, however broad and sweeping it
mizht be. which can be said to include either in its formulation or in its neces-
sa6 intendment a power on the part of the General Assembly to act as it has
purported to do. He must find something in the Charter which can be said to
include such a vower-as the Court indeed did in the Effects of Awards of
Compensation case to which the Secretary-General referred (ibid.j in suppo;t
of his general contention. Now, in that case, Mr. President, it concerns, in this
portion of the Judgment, the power to establish a tribunal which could adjudi-
cate on staff disputes, shall we say-disputes between staff members of the
Organization and the Organization itself. There was no provision in the Charter
exolicitlv worded with reference to the creation of such a tribunal. But the Court
had regardtl.~.~. Rcporrr 19.54, pp. 57-58) to various provisions of the charter
ihich could be sîid to give risc by their neccswry intendmeni io such a pouer.
The Court referred spccificdlly (;/>id.p. 58)to the pou,er of the Generîl Asscm-
hly under Article 22 to cstiibliih ruch suhsidiary organs as ir deenisneccssary
Forthe performance of iir Funsiions, and the Couri laid particular srress on the
oower of the General Assemblv contemolated under ~rticle 101. oaraeraoh 1.
io establish staff regulations, w-hichthemselves were described biihe Court
a complex code of law and which were to govern the regulations between the
staff and the Oreanization and under which~the~ecretarvz~eneral would make
appointments to the staff. From a combination of thosépowers and the logic
of the situation as it seemed to the Court, it derived by necessary intendment
a oower to establish a tribunal which could adiudicateon staff disoutes which
m;ght Jrix fri~nithe application of ihaicode of Aiscipline
But my point isthai in the present cîsc the Secrctïry-Cieneral fails complctely
to point to any provision of a comparable kind from which such inferences
could be drawn.
The extent of his evasion is most noticeable in his answer to the first of the
auestions ut bv Sir Gerald Fitzmaurice concemine limits on the vowers of
the~enerûl ~wémbly.klecommences h~siins\ieronthe basisthiit he understands
the quesiton ru be conlined to liinii.; "ai they mighc relaie 10 ihe pressnt case"
(suora. o. 485).Whether the auestion was in fact so intended or not 1would not
know.1 know that we directid our argument to a question going much fiirther
than that, testing his original contentions in another way, saying that if this
is the extent to which the Court is asked to go by way of implications in the
Charter in order to justify a finding adverse to South Africa, where does it end
and what consequences could it have to other States.558 NAMIBIA (SOUTH WEST AFRICA)
Nevertheless, that isthe basis on which he professed ta answer this question-
limits as they might relate to the present case. But then we find that when he
proceeds (supra, pp. 486-487) to discuss examples of limitations, he raises
several which have no relevance at al1 to the present case, and about which
nobody has ever suggested that they may have any relevance. In particular,
he referred ta the limitation concerning domestic jurisdiction in Article 2,
paragraph 7, of the Charter. Nobody has ever suggested that that is of any
relevance in this case. Yet he put up this ninepin about three times in order to
knock it down agdin (supra, pp. 478-479.486 and 487).
Then he also referred to another limitation which is quite irrelevant and
which has never been relied upon, namely that concerning enforcement action
in Article 11,paragraph 2, of the Charter. Yet, and this is the important point,
the real and pertinent limitation on which South Africa forcibly relies and ta
which attention was pertinently drawn in the debates in the United Nations,
bv France in these ~roceedings. and by other States in this context. the relevant
limitation that the General~ssembÏy's powers under the Charter are, with
immaterial exceptions, recommendatory only, that received from him only a
very cursory and a very passing mention. We find it is al1dealt withinonevery
brief paragraph (supra, p. 486,para. 41).
The paragraph consists of two lines of text plus a quotation of a passage
from the Judgment in the Certain Expenses case. The two lines of text say this,
~~~-~,v ~ - -~ ~ r~~er~ ~f~ ~e General Assemblv are "normallv of a recommen-
datory character" and then go on: "This is by no means, however, an absolute
limitation." That is all: there is no explanation of where the Secretary-General
says that the dividingline is ta be drawn between the normal case and the
exceptional cases. There is no attempt to show that a case like the present
would fa11on the side of the exceptional cases and not on the side of the normal
one. It is perfectly obvious, with submission and respect, MI. President, that
the Secretary-General could not have contended that a case like the present
would have fallen under the exce~tional cases. He must have realized that such
a demonsiration \rith refercncc t6 ihc provirlons of the Charter or ils neccssary
intcndmcnt \r,ouldhave ken imp~ssihle.
'Thai is al1ihat hc sa~s in the texi of th31 Dar.grap. He procccd\ to quoie
from the Certain ~x~e&s case, and that does not help hi& in the 1east;The
quotation States,correctly, in Oursubmission and with respect that:
".. .the functions and oowers conferred bv the Charter on the General
Assembly are not confiied to discussion, consideration, the initiation of
studies and the making of recommendations; they are not merely horta-
tory" (I.C.J. Reports 1962,p. 163).
And sa, the passage proceeds, decisions of the General Assembly, as contem-
plated under Article 18, "do indeed include certain recommendations, but
o~he~ ~ ~ ~ disoositive force and effect" libi )..
That isthe q;otation as given by the ~ecretary-General in his statement. He
leaves the matter there. He does iiot mention that the Court went further and
that the~ ~urt~did what he did not do. namelv to indicate exactlv what line of
demarcation it had in niind. It made il pcrfe!ily clcïr that ihe l;nc ufdeniar-
cation ii hïd in mind \vas ihai whtch uas draivn hy the express pro\'ision\ uf
the Charter itself. That emerges from the very next sentence following on the
passage quoted by the Secretary-General. That sentence in the Judgment reads:
"Among these latter decisions [in other words, those having dispositive
force andëffect] Article 18 includes suspension of rights and privileges of
membership, expulsion of members 'and budgetary questions'." (Ibid.)L ORAL STATEMEN BTY MR. DE VILLIERS 559
The Judgment then proceeds to point out that in sofar as powers of suspension
and expulsion under Articles 5 and 6 were concerned, they were conditional
upon prior recommendation by the SecurityCouncil.
In other words, the Judgment makes it perfectly clear that these matters
which are ex~licitlv mentioned in the Charter as beine ones uoon which the
General ~ssehbly Lay make binding,decisions, are theones which it contem-
plated in indicating this dividing line. So. clearly, the Secretary-General derives
no support whatsoever from lhat ~udgrnent. He does not contend that the
termination of a State's title to administer a territory is to be seen as resorting
under budgetary or procedural matters, nor surely could he seriously put any
such contention to the Court.
Similar evasions were evident in the Secretary-General's reply to the fourtb
question of Sir Gerald Fitzmaurice. That is the question which referred to the
suaaested Dowerof the General Assemblv to make a iudement of law: and on
thai basis ihe question proceeded to enq;ire what the line of distinction would
be between the judicial functions of the General Assembly and those of the
Court
Inhi5rcply Io ihis question the Secretary-GcnerÿI, in the firsi place. made no
distinction u~hÿisocvcrbetucen a deicrniination, \i,hethcrofTiictor oflaw.on ihc
out of the General Assemblv. that would be bindine and one that would be
non-binding in law. I have coiceded in earlier portions of our argument that
it would be perfectly in order for the General Assembly to make determinations
of a non-binding nature as a basis for itself toro&d in terms of its own
procedure. Incontras1 to that would stand a determination which purports to
be hinding upon non-consenting Mernbers of the United Nations, either
provisionally or absolutely; provisionally meaning subject to correction by a
court of law on merit, and absolutely being not so subject to correction by a
court of law.
As 1 said. the Secretarv-General Dointedlv avoids indicatin- for which of
these various possible kinds of poweri of determination he iscontending-non-
binding, provisionally binding or absolutely binding.
In the secondlace. the ~ecÏetarv-General exolic~lvacknowledees that. with a
viewtoanswering ihequcstion. "i;is first neceAry ioexaminc the provi>'ionsof
the Charter, uitha vicivtousccrtainin~ whethcr rush a powcr has beenentrusted
10 the General Aswmblv" (ihitl.D.490). Buthavine riaied ihis. the Secretarv-
General then in fact, in his staiemeni, examines only one p;ovision of the
Charter.That provision isArticle 6,whichdeals witha totallydifferentsituation,
namelv that of exoelline a member from the Oreanization uoon the recommen-
datio; of the ~eCurit;~ouncil. He does noceven indicate whether, in his
submission, the legal evaluation which the General Assembly is called upon to
make for purposes of Article 6 was intended to be provisionally binding or
absolutely binding. And he does not indicate what bearing this provision could
possibly have on a suggested power of legal evaluation in a totally different
situation with reference to a totally differentbject-matter than that referred
Io in Article 6.One should'say that the logical indications, in so far as they
could be said to appear at al1from Article 6, would tend to run against the
Secretarv-General's contention rather than in favour of it-on the basis that
~riiclco isan indicat~onthat u,hrrc potrers of niaking binding deterniinritions
arc conteniplaied, they are in fact m-niioned and rpecifically cunlerred and
conditioned in the Charter-conditioned in this in5tÿncewith a wry important
prcrequisiteof a recoiiiniendaiion by the Securiiy Council.
So, >lr. President, the need to find a Charter bxis for the ~~ggestcdpotier560 NAMIBTA (SOUTH WEST AFRICA)
of making a binding determination, whether of law or of fact or of both, is, in
reality, totally evaded by the Secretary-General.
In the result it is not surprising to hd that he isevasivetoo on the question
posed by Sir Gerald Fitzmaurice concerning the line of demarcation to be
drawn between the powers of the General Assembly and those of the Court.
He says that he "does not believethat a categorical answer can be given at this
stage of the development of international law which would be applicable to al1
cases or situations. In his opinion, this line of demarcation has to emerge in
practice from the Charter, the Statute of the Court, as well as the respective
proceedings and jurisprudence of the General Assernbly and of the Court"
(supra, p. 491). But surely, if a power of making a determination, or any power,
in orinciole. is conferred exolicitlv bv the orovisions of the Charter. then it
should no1 beditficult. and should'pr~scnt no probleni for anybody, to'indicate
u,hat are the limits of the piwe3s thry efnergefrom the Charter. And siniilarly,
if a power emerges by necessary impl&ationor necessary intendment from the
provisions of the Charter, it mus1again be possible to indicate with reasonable
clarity what the limits of such a power would be, because otherwise it would
no1 be leeallv or loeicallv oermissible to imolv such a oower at al]. That is one
of thebazc erincipier ofi3\1,and of logicde3l;~r,iihcïriicr by ni).learncd friend.
Mr. Grossku~f, in res~rd tu iniplicaiii)nof r>rovi\iuninan instrument, \,ilth31
if you are notable toindicate the content and the limits of the suggested implied
term with reasonable clarity, that is already an indication that il is impossible
to say that such a term was so clear to the parties that it went without iaying.
So, by this evasion, the Secretary-General reafims his inability to find a
Charter basis for the suggested power.
Moreover, in my respectful submission, he seeks to confuse the issue when
he brings into his answer to the question the factor whether in a particular
instance there may or may not have been a submission to the jurisdiction of
a court (supra. pp. 490 and 491); there is a complete confusion between
conceots in the wav in which he introduces this and takes this as beine the
indica'torwhether idecision was to be reviewable or non-reviewable by a court
on merit. A moment's reflection would show that this is so. and particularly
strongly so in international law. Judicial review on merit can, in asubstantive
sense, be said to be excluded only in a situation where an organ or a body has
been givena power to make a determination which will be final and binding-
like that of an arbritral tribunal, for instance, which is intended to be a final and
a binding one and not subject, in a substantive sense, to review or correction
on merit by a court of law. It is only then that judicial review on merit can be
said to be excluded. If the power is merely that of making a legal or a factual
determination which isprovisionally binding,in otherwords whichisconditional
upon ils being based on a correct appreciation of the fact and the law, then that
determination, in principle, remains subject to judicial correction or review,
quite independently of whether the necessaryjurisdictional provision has been
made in the particular instance. For jurisdictional provision could always be
made later by special agreement, or the possibility of judicial review, in the
special sense in which it is applicable to advisory proceedings of this Court,
may arise exactly in advisory proceedings, where the court afterwards could
express itself on the merits of what has been done in the case of the particular
determination. So, bringing the aspect of submission to jurisdiction into il
does no1help, it seeksto confusethe issue.
Finallv. in reeard to the fourth auestion bv Sir Gerald Fitzmaurice. the
~ecreta6kener;l emphasizes "the causal nexis between the lack of success
of the attempt al having the question decided judicially in contentious pro- ORAL STATEMENT BY MR. DE VILLIERS 561
ceedings on the one hand, and the General Assemhly making the decision on
the other" (supra, pp. 491 ff. N).w it will be obvious to the Court that this
causal nexus-1 say obvious with submission, Mr. President-ould be anything
but a leeal basis. let alone a Charter basis. for the surreested nower. This is no
way of inding abasis in the Charter, by eipress provyGonorkecessary intend-
ment, for the power for which he contends. He is referringnow to extra-judicial
considerations. Surely what he is referring to provides no justification for
reading intothe Charter a grant of power which the Charter does not contain.
Nor was there, in my submission, in any legal oreven practical sense, a necessity
for the General Assemblv to act as it did. On the failure of the contentious
proceedings, there was nithing which prevented the General Assenibly from-
before taking action in the matter-then referring the case to the Court for an
advisory opinion, specifically on the question o^f the General Assembly's
powers with reference to alleged violations of the Mandate and with reference
to possible steps with a view to revocation or.terniination of the Mandate.
Nothing in that form had been presented to the Court in the South West Africa
cases, and those would par excellence have heen fit matters on which the
General Assembly could have asked the Court for an advisory opinion before
a~t~ne.
~o-the statement on behalf of the Secretary-General has, in our submission,
made it perfectly clear that there is a total inability on his part to find a Charter
hasis for~thesueeested nower onthe oart of the General ~ssemblv.
He tried, apz froni'the one 1havejust mentioned, two furthérbases ontside
of the Charter. One of those was the assertion, which he repeated three times,
that South Africa has no sovereignty over the Territory of~amibia or South
West Africa, that it is in relation to South Africa res aliena-as if that were a
relevant consideration, if itis correctly put, Le.,assuming that for the purposes
of the areument. What flows from it? How is this relevant. Mr. President.
with submission? Would that givc the General Assembly a power not conferred
by the Charter? And yet this is stated with so much emphasis as if it is the key
to the whole situation: Let ustake~an examole divorced fiom the United Nations
context. Let us assume that three States, together, in particular circumsfances,
by force of arms, conquer a territory which has previously been ruled by
another State, and in the peace treaty they agree amongst themselves and with
the other State that no one of them is going to assume sovereignty over that
territory; for the time king sovereignty will remain in suspense. But, by
agreement between al1 of them, that is by international treaty, one, State A,
will rule that territory. State A will rule it with a view to its eventual self-
determination, when the time comes. So that is the arrangement made in terms
of a treaty. And then at a particular stage, States B and C say to A "we do not
recognize the validity of your occupation or administration of this territory
at al1 any more". And then State A says "why not" and they say "because
vou have no sovereientv over it". But he would sav "but that isOuraereement-
i aould h3vc no sov~rc~gnt)biii 1si111 h~ven tre~t;. 2hinding trenty ~latioiisliip
uiih you in ierm.s <if\ihi..h 1niil;idni,nistcrinp thai 1erritor.v; so, hoiv could
the absence of sovereignty on my part have any bearing on the situation. That
treaty was surely entered into with me in my capacity as a sovereign State, and
it involvesrights and obligations interse ktween you and me."
So, Mr. President, 1 do not understand why this repeated insistence cornes
into the record on the situation that South Africa has no sovereignty over the
Territory, as if thatsolves the whole problem.
The other basis which the Secretary-General tried, outside of the Charter,562 NAMIB^ (SOUTH WEST AFRICA)
was the one to which 1 referred earlier as a "back-door"-namelv his ooint
that the Charter is subject io inierpretaiion by practice from day 16 day.'
Now our submisi~~nin law aboui this matter was givcn to thc Court earlier
and ar~ued hy my learned friend. Mr. Grossko~f. about the basic orincioles
of law applicable Cosuch a contention. The court bill find that at pages 202-213
supra, and 1 do not want to repeat in the least what Mr. Grosskopf said. Our
contention is basically that it is not legally possible for practiceto supply a
power to an organ of the United Nations where there is no Charter basis at
al1for such a power. But in any event, if the Secretary-General wishes to rely
on the contrarv contention. surelv he would at least have to eo so far as to sav
.
rhdt there hïs&en a pract/ccwhich has hardened inro sonicïhing likc arule of
cusiomîry international law. Does he suggcrt anything of ilic kind in the Drcsent
instance? In our submission, the answer is a plain "no"-whatever imprëssions
to the contrary he may have created in his first oral presentation. The Court
will recall that in his first oral presentation (First Public Sitting) there were
certain impressions created of a practice with reference to a long list of exam-
ples of resolutions in which he said the General Assembly had acted on behalf
of the United Nations (supra, pp. 50-52).
But if that created the impression that he was relying on a relevent practice
which has hardened into something like a rule of customary international law,
he now explicitly disclaims that (supra, p. 485).
The Court will recall. iust for identification. what tha~ ~ ~~~~~~ ~ ~ - ~ ~ - ~ ~ ~ - ~ ~
It was that the General~ssemhly was the cokpetent organ to act in the name
of the United Nations in a wide range of matters, eswcially economic. social
and trusteeship matters, non-self-governing territories, administration and
finance, and action required under the Charter not coming within the special
competence of the Security Council.
We dealt with that contention in our opening statement, in what seemed
to us to be the context in which it was advanced. We understood that context
as king the power, or the absence of power, on the part of the General Assem-
blv to take decisions that would be bindine uno-.a non-cons~nti~ ~~ ~t~. -n~ ~ ~. ~-
ucni~dctharcle~rindealingwi~hthecont~ hijnutiyosriir<i,pp.152.153).
ThcSccrciary.General now says we attributcd to him "a docirinc tifunlim-
ited powers". MI. President, we did nothing of the kind, with submission.
We merely gave examples within his limits of what kind of actions would be
possible in this context for the General Assembly if his contention was rigbt;
and when 1 sav "within his limits". 1 mean within the cateeories indicated hv
~ ~ ~ ~ ~ - u ~ - ~ ~ - -.
him himself, namely economic, social, and so forth.
So we did not attribute to him a "doctrine of unlimited oowersW-we merelv
tested him in the context which we understood to be the relevant one. Now hé
says (Eighteenth Public Sitting) that he "must therefore place on record that
he has manifestly beeo misunderstood by South Africa"; and be says that the
illustrations which we gave of what it might be possible for the General Assem-
bly to do if his contention were correct "are in fact widely removed from the
context of the Secretary-General's statement and bear no relation to the exam-
ples of the types of action to which the Secretary-General referred".
Now, Mr. President, 1 repeat, we understood the context to be that of a
power of General Assembly majorities to bind non-consenting minorities.
And later, when we dealt with the examples themselves we suhmitted that
those examples could not indeed in this context provide precedents for the
Secretary-General's contention (supra, p. 463). They do not provide precedents
for acting in a binding way against the opposition of non-consenting States.
The Secretary-General now really confirms this last submission which we ORAL STATEMENT BY MR. DE VILLIERS
563
made. In other words he admits that this whole long list of precedents which
he submitted to the Court do not demonstrate poiers of Genera~ Assembly
majorities to hind non-consenting minorities. So on this crucially relevant
issue, the Secretary-General therefore admits that there is no relevant practice
or precedent to support his contention. lt is of course very useful to have this
admission from the Secretary-General on record, even although it did take
very incisivequestioning and elaborate argument to elicit that admission from
him.
But the questions then remain: In the first place, why did the Secretary-Gen-
eral introduce this list of examples into his statement at all? What was his
contention based upon them intended to signify? Because this was the only
relevant context that arose for purposes of the issues in this case. Was it not,
1 ask with suhmission. Mr. President. a danaerouslv misleadinr! wav for the
Secretary-General to fulfil his functions of assisting the court in advisory
proceedings by making relevant materials available to it and attempting to
assist it "in itsvaluation of these materials" (suora. o.4781,
, . ..
Su, I suhiiiii, ihere ha> hçen ï cleïr demi)nstr.ition thit thcrc ii no hlrrii in
the C'h~ricr.or an). lcg.il b~jir ai dl, in~.liidinça b;isisof prcccdcnt or prasiice,
on \ihich ihc Se~,reiarv-Cienrra1caiuldrcly fori nuwcr on the part <ifthe Generÿl
Assembly to bind non-consenting tat te is iis purportedrevocation of the
Mandate in resolution 2145.
Before leaving the subject of the powers of the General Assembly, 1 may
just in passing recall that the United States, in its oral statement, placed reli-
ance only on Article 80 (1) as being a Charter basis for the action taken by the
General Assembly. That contention has already been adequately dealt with
and refuted hy my learned friend, Mr. Grosskopf, in my suhmission, and 1will
not refer to it again.
This brinas me then to the sphere of the powers of the Security Council,
and in that Contextthere is not only the comment of the ~ecretary-General and
of the United States, but thereare also two relevant questions hy Judge Morozov
which still have to be reolied to,
In order to link up wiih the line of dealingwith thecomment of thesecretary-
General in his las1 statement, 1 propose, with respect, to deal first with the
second auestion put to us bv the honourable Judae Moro-ov. That question
reads as'follows:'
"Do the submissions made to the Court hv the reoresentative of South
Afr~ca, ofcurrectly undersiood, niean that hc docr no;coniidcr dccisi<iniof
the Securit) Coiincil, tïkcn in azzordance with Artizlc 21 of the Charrcr. to
he hindingonall hlcmbersof thc Ilnitcd hl~tii>n\inxccordance \\,;thArticle
25 of thecharter of the United Nations?"
Mr. President, in reply to that question 1 would emphasize at the outset
that the basic contention of the South African Government is that Article 24
perse confers no power of decision on the Security Council at all.
We demonstrated this, Mr. President, at some length in Ouroral statement-
the statement hy my learned friend, Mr. Viall (supra,pp. 242-249)-and part D,
of Chapter V, of our written statement. In answering the present question,
we would like for the sake of convenience al the same time to deal with the
reolv of the renresentative of the Secretam-General in so fa1 as it is relevant
tothis ~uestion 2. In reply to the firrt question put to him by the honourable
Sir Gerald Fitzmaurice. he stated that in Article 24 there are limitations upon
the powers of the secu;ity Council. This, in my submission, is very significant.He in effectadmitted the whole of the interpretation which we place on Article
24. without the ultimate conclusion.
He admits that paragraph 1 of the Article imposes a limitation in referring
to the primary~resp-nsibility of the Security Council in respect of international
oeace and securitv. He admits that that is of the nature of im~osine.a limitation
;pan power. ~e-admits that the first sentence of paragraph 2 if the Article
does the same in referring to the purposes and principles of the United Nations.
He admits that that is limitative too.
So, MI. President, the question arises how does he in that portion of the
Article find any suggestion of a grant of power at all? That is the difficulty
which 1 have and 1 submit that is the significant feature which emerges from
his dealing with this matter in this last statement of his at pages 486 and 487,
supra.
The last sentence of Article 24 is the only one which refers to powers, and
then it refers to powers which are conferred upon the Security Council in
another portion of the Charter.
So in our submission. bv dealine with the matter in this wav the learned reo-
resentative of the ~ecretaj-Generil has really confirmed th& there could ln
logic be no grant of power to be found anywhere in Article 24.
The learned reoresentative oroceeded to refer further to the ouinion which
had been given by the ~ecretary-General in 1947 to the ~ecuriiy Council in
the Triesc tase (supra, p.489). Now in Our oral statement, Mr. President, we
dealt with the then Secretam-General's oninion in the Triesc tase. in which
he invoked the legislative hfstory of ~rticle 24 in support of his contentions
that that Articlecontained a reserve of powers and that these powers are bind-
in-.in terms of Article 25
Our arguments on this matier are set out at page> 243io 246and üt pJges 258
to 260, sripru.Nou uhiri rcïction do we find tu thoc argunienis on rhr pari of
the reoresentative of the Secretam-General? He sim..v sa.s be finds them lack-
ing in persuasion and he does nit deal with them at al1any further. But, MI.
President, seeing that he has again brought up this question of the legislative
history of Article 24, and in the light of the question put by Judge Morozov in
regard to Article 24, we have gone further into the legislative history of that
Article and we have found certain additional material which we submit to be
very relevant and to confirm our contentions in regard to the Article. It is new
material, but even so 1 do not propose to deal with it very fully by way of
quotation. 1 would rather give the Court exact references to the records and
then a short indication of what we submit to be the salient features.
We refer to the part of the history after consideration in Committee U1/1of
what eventually became Article 24. We refer to the legislative history in the
Co-ordination Committee. At the sixth meeting of the Co-ordination Commit-
tee it hadbefore it a text as adopted by Committee III/I. That text isto be found
at pages 36 and 37 of Volume 18 of the UNCIO documents. The third para-
eraoh of that draft Article read as follows: "For the ouruose of discharxine.
rheie duties the Security Council shall have the specificpowers set out in ~ha6
ters VI, VII, and VIII."
After a first readine. of the draft in this Co-ordination Committee. it was
decided, amongst othër things, to ask the Technical Committee to consider a
possible addition of the words "and elsewhere in the Chartcr". In other words,
then it would read "specific powers set out in Chapters V1,VI1 and VIII and
elsewhere in the Charter". That one finds in the same record, Volume 17, at
page 26.
At the 11th meeting of the Co-ordination Comrnittee it considered the text ORAL STATEMENTBY MR. DE VILLIERS 565
of Article 24 as tentatively approved by it at ils sixth meeting and as it had ken
revised in the meantime by the Advisory Committee of Juricts. As a result of
these processes, the phrase "and elsewhere in the Charter" had been added at
the end of paragraph 3 of the Article. That we find in the same source, Volume
18, page 197.
And, finally, when the committee considered the Article at its 25th meeting
the phrase still featured in the text as it had meanwhile been revised by the
Secretariat of the Conference (ibid p..198). In this context the discussiom at
the Ilth and the 25th meetings of the Council are signifiant. They are to be
found in Volume 17, pages 61 to 62 and 171to 172.
It was apparent from those discussions that the phrase "and elsewhere in
the Charter" was introduced in order to include a reference in Article 24 to
powers of the Council in connection with the maintenance of peace and security
other than such powers as specifially provided for in Chapters VI, VUand VIII.
There was in the discussion some difference of ooinion whether the elective
and the susoensive Dowers of the Council fell wiihio the catee-.v of no.ers
for the maintenanceof peace and security. There was an argument about that
aspect. Moreover, some Members felt that inclusion of the phrase "and else-
where in the Charter" would imolv an enlaraement of the ~ouncil's oower.
whereas, they said, the intent of ihe ~ommitfee was to restrict the ~iuncil'f
power. In response to this, the representative of Australia pointed out-and
thisis simificant and therefor1 want to auote it-"The reference in the Article
to otherpowers was only a cross-reference; it neither conferred nor lirnited th;
powers of the Council". In his opinion, it had no place in the Charter but was
simply a useful memorandum for reference purPoses-that is in Volume 17,
page 172. In our submission, that is exactly what the wording of the Article
means and this is what was emphasized by the representative of Australia.
In the event,theCommittee decided that thephrase-elsewhere in theCharter"
should be ornitted.
What is a very significant feature of these discussions, MI. President, in our
submission, is that only the last sentence of paragraph 2 was referred to as
possibly having a bearing on the question of grant of powers, and then only in
this context which 1 have mentioned. The previous portions of the Article
were nowhere referred to as beine-concerned at al1with anv ~. .ible er-nt of
paver. And cven in regsrd IO the Iasr sntence uf par~graph 2 it was raiscd only
in Ihis coniext: lha1some had suggeslcd II might ha\e a bearine, on cnlarging
or diminishing oowers. whereas fheex~lanation bv the reoresentative of AU<
tralia that it ;as merely a cross-referenke ta grants;n otheiparts of the Chapter
appears to have prevailed-although that is not absolutely clear frorn the
summary record. But. as 1 have said. that is. in Our subrnission. an obviouslv
correct interpretationof what the words thehselves say. And sb here too the
result is that having looked very closely at what one might cal1the legislative
history of the Article, that confirms exactly what Our contention is about, its
plain and ordinary meaning.
It is not without significance, in our submission, that the distinguished rep-
resentative of the United States in his oral statement did not atternpt to rely
on Article 24 as a source of the Council's power in the present case. He sees
that source in Chapter VIof the Charter (p. 502,supra), and as we have pointed
out, that Chapter confers no oower of bindina decision.
Sa, Mr. ri si denin,our submission, thejegislative history of Article 24
supports our contention that Article 24 per se confers no powers and more
especially no powers of decision on the Security Council. And that king so
the question of whether such decisions of the Council would be binding interms of Article 25 falls away. But even making the assumption against OUI-
selves,as we did in Our statement (supra, pp. 259-260).making the assumption
that the Council is empowered to take decisions under Article 24, it is our sub-
mission, in further reply ta the honourahle Judge Morozov's question, that
such decisions would not be binding on Memben of the United Nations in
accordance with Article 25 of the Charter. We set out our reasons for this
contention at some length in Our oral statement (supra, p-. 25--261). where
we also pointed out that contentions to the contrary by various participants
in these proceedings remain wholly unsubstantiated and amounted ta bare
assertion.
So there would sesm to benothine further to add with resoect to the areu-
nicnts uthichu.chave alre~dy adduccdin this connection ~o\r;ver, and assuni-
ing for thc purpt>scsi)f ihe qucstion ;rpower on ihc part of the Council to iakc
decirions in ternis of Articlc 24. 1uould aeliin rcfcr to ahxt the dist~nauijhcd
rcprcscntative of the ~eiretary-~eneral h;id to say in thi~conncction in reply
to the third qucrtion put 10 him hy Sir Gcrald Fitzmaurice. Aftcr ,t.îting
that the decision of the Council under Article 24 "cornes within the ternis uf
Article 25", and after quoting in support the opinion of the then Secretary-
General in the Trieste case, without even attempting to meet Ourarguments in
this connection. he aareed with leadina commentators on the Charter that the
term "decisions" in Article 25 was aibiguous. Then he says he founds his
case on "an analysis of the various articles of the Charter", but in fact wefind
that he attempts no such analysis; and he says further that he founds it on
"the San Francisco records" and "the practice of the Security Council" and
again he does not advert to our arguments in this connection. Then he States
that the binding character of "decisions" inaccordaoce with Article 25 is not
confined to coercive measures under Articles 41 and 42. This again, in our suh-
mission, is bare assertion: he does not try to justify that with reference ta the
oravisions of the Charter. And finallv...ea-n ienorine our arguments. he con-
&ludesthat "in the special circumstances of th: ~amibia casethe ~o"ncil has
the authority ta adopt decisions which are, in effect,binding, and has done sa".
An-.n, Mr. President. he has not tried to exolain what these soecial circum-
stances of the ~amihi'a case were and how théycould succeed iiproviding the
Council with a power on which the provisions of the Charter themselves are
lackine
So the Secretary-General in effect raises the prohlem of what resolutions of
the Council are decisions within the meaning of Article 25, but he does not
attemot to meet that oroblem at al1exceot hv assertion: and as 1 have said.
he takes refugein iihaihecall( .'thespcciaicirc~mstan;cs of the Nlimibiiicase":
Our ansu,er ta the sccond question put hy the honourahle Judge ,Morozov
is thcreforc that. in the submission of the Govcrnmcnt of South Africa. the
Sccurity Council sannot takc decisions in tcrmr of Article 24, but that cvcn if it
could. such deci5ions ivould not k hinding in accordance with Article 25 of
the Charter of the United Nations
At this stage it may be convenient also to reply ta the first question of Judge
Morozov: it is a fairly brief reply which 1 could give straight away. This ques-
tion reads as follows:
"Has the Government of South Africa at any lime asked the Security
Council of the United Nations to permit its representative to participate
in the discussions of the Security Council on the question of Namibia, and
particularly to participate in the discussions of the Security Council lead-
ing to the adoption of resolution 276 (1970) and resolution 284 (1970)?
If sa, what was the result of such request? ORAL STATEMENT BY MR. DE VILLIERS 567
If not. can the South African reoresentative be so kind as to exdain whv
it did not do so,taking into accoint the fact that the Agenda fo;all meet-
ings of the Security Council are distnbuted in advance to al1 Permanent
~epresentatives in~ew York?"
MI. President, our answer to the first and second part of this question is that
the Government of South Africa has not at any time asked the Council to
oermit it to ~articioate in the relevant discussions of the Securitv Council.
In regardto the'third part of the question, concerning reasois, the reason
why it did not do so was because in terms of the Charter it was not for South
~frica to reauest an invitation. but for the Securitv Council to issue one. And.
1 may add ~r. President, mekly as a practical matter, that the experience of
the South African Government in the past has not ken such asto induce it to
reauest invitations to oarticioate in activities of United Nations bodies where
it does not receive an invitation to which it is entitled. Upon several occasions
the South African Government has actually ken denied its undoubted rights
under the Charter to narticioate in those activities: it has had statements ofits
representatives in coknitt&s of the General ~siembly expunged from the
record; it has been illegally expelled from certain of the specialized agencies of
the United Nations: renreseitatives of certain States have walked out. or
broken into a chant,'when South African representatives began to speak, and
so forth. But be that as it may, the fact remains. in our submission, that Article
32 imposed upon the ~ouncii a mandatory dut; to issue an invitation to South
Africa to participate in the discussions in question, whether South Africa
requested such an invitation or not.
The mandatory character of the Article has not been contested in the pro-
ceedings, in fact it was explicitly conceded by the Secretary-General (supra,
p. 41). And that is really the answer to the whole question-if, of course, it
be accepted that the present situation constitutes a dispute, which we have al-
ready submitted that it does.
Full argument concerning Article 32 and its application was presented in
Part F of Chan.~-- iïiof ~ur written statement and aeain in our oral statement of
22 Fehruary (.rupropp. 219 11.).Our oral siaienient in that record stands un-
contrndicted and. indecd, was not cven rcfcrrcd to bythe rcpresent3tive of the
Secretam-General in his second oral statement or bv the reoresentative of the
United States in his oral statement. In our submiss&n, the; arguments show
ovenvhelmingly that theCouncil had no choice in the matter-that it was bound
in the circumstances to issue an invitation to South Africa. and 1therefore. do
no more hcre than rcpcît what Judge Jiménez de ~r~chïia wrote at page 58
of his work Voringondrheflondlingof Bicpuusin rhrSrcuriryCuuncil. publishcd
in 1950:
"...an invitation under Article 32 need not be requested; it must be
issued by the Council even if not requested by the State party to the dis-
pute".
That is the conclusion of Ouranswer to that question, Mr. President.
The Courradjournedfiom 11.20 a.m. ro 11.50am.
Mr. President, it now remains for us to deal with the question put by Judge
Jimenez de Arechaga on 4 March 1971 (supro, pp. 424-425) concerning the
applicability or otherwise of paragraphs (O) to (dj of Article 73of the Charter
of the United Nations to the Territory and people of Namibia (South West
Africa).568 NAMIBIA (S0IJTH WEST AFRICA)
This suestion forms oart of a wider suhiect of the norms. orincioies and
rules aciording to which South Africa's conduct in South westAfri& falis to
be considered, and on which 1 indicated yesterday that we should like to make
a brief statement.
First, 1should like toreply Iothe questionsput hyJudgeJimknez de Aréchaga.
The question, to which 1have referred the Court, commences at page 424,
supra, where there is an introductory portion which, to Save time,.~ do not
propose to read. The introduction refers ta questions put by Judge Jessup in
the South West Africo cases. Io the reply by the then Applicants and to the
reply by the Government of South Africa, which in effect declined to answer
the question. The question put by the learned Judge is:.
"Since in advisorv orocedure the Court is not suhiect to the same limi-
tations of a jurisdickonal nature, 1 wish ta ask the representatives of the
Government of South Africa if they would be prepared to provide infor-
mation as to whether. in the ooinion of the Government of South Africa.
paragraphs (o) ta (d) of Article 73 of the Charter of the ~nited ~ation;
apply, or have applied at any time, since the entry into force of the Charter,
ta theterritory and people of Namihia(South WestAfrica)?" (Supra, p. 425.)
The question whether Article 73 technically, and as a matter of law, applied
to South West Africa has been a controversial one for a long time. as indeed has
the question whether Article 73 was intended to apply ta mandatid territories
at all, as distinct from colonial territories...o~erly so-called.
The attitude of the South African Gover-~en-~~~~the niatter was. at the
time, that technically and as a matter of law Article 73 did not-appl; to the
case of South West Africa. The importance of the matter from a practical
point of view is much like that concerning the question whether the Mandate,
as a matter of law, lapsed or did not lapse on the dissolution of the League of
Nations; because when it cames to the oractical. substantive asoect of the
mattcr. thesuhstantivccriteria prescrihed paragr~phs (a, IO(il, of~rticle 73.
the iechnical legal posiiion makes no diffcrenceat a11ta the attitude or the Souih
African Government.
Let me put it this way, from a practical point of view it never had any dif-
ficulty at al1 with what is prescribed in paragraphs (o) ta (d). Its practical
difficulty in the United Nations context arose from sub-paragraph (e), from
the part of giving regular information. The Court will recall that my learned
friend, Mr. Grosskopf, dealt with the history of the offer hy the South African
Government, in the very early stages of the United Nations, which was once
cornolied withfromitsside. to suhmit reoor7~co~~-~nine the tvoe of information
coniemplaicd in that par3graph. alth"ugh itdid sa ;;th a.keservati[~n of its
Icgal position and ivithout admitting îny obligstiun tu do so, and. ai the same
timc. stipulaiing that the matter u,as to be trcated within the context of what
was conremplatcd in Article 73 and not from 3 point of viea. as if South Wert
Africa \us actually under the truste es hissstem.
The history of how those stipulations iere ignored in regard to the one
report which was indeed furnished hy South Africa on that hasis, and how the
South African Government then decided to submit no further reports, was
also dealt with.
That was a major, practical difficulty with regard ta its attitude concerning
Article 73, mililating against a continued offer to act under that Article in ils
relationship with the United Nations despite the absence, in its conception. of
a legal obligation todo sa. ORAL STATEMENT BY MR. DE VILLIERS 569
What further strengthened that difficulty was what couldbe seento happen
in the case of various colonial oowers and the treatment. 1fmav cal1it that.
which they receivedat the hands of various committees which w&e appointid
within the UnitedNations context to deal with reports under Article 73 (ej-
where gradually the treatment of those reports developed from what was &ri-
ginally contemplated in the Article to something which really amounted to
supervision, as if those territones were also under trusteeship. We dealt with
the whole historv in that regard rather fullv in VolumeD( of the Pleadinps.
Oral ~rgu>nenu,~~ocuments, W~e~ou~fhca cases, 1966,pages 470 to 476:
1am not aware of any recent pronouncement of the South African Govern-
ment specifically on this particular question; but its attitude, as we conceive it,
is that, though it is technically and as a matter of law not bound to the
provisions of Article 73, those provisions prescribe the very criteria which it is,
as a matter of policy, applying in the pursuit of the sacred trust in regard to
South West Africa, whether as a matter of law or as a matter of morals.
The legislative history of Article 73 was referred toinnine points which
were formulated for the consideration of the parties by the President of the
Court in the South West Africa cases,and the Court will tind that inVolume
Viiï of the Pleadings, Oral Arguments, etc., at pages 38-40. The wording of
the Article. read in coniunction with the leaislative historv. made it clear that
the generai purpose was to extend the main principles oftrusteeship or guar-
dianship to colonial territories generally. However, it did not automatically
follow that thev were also intended to aoolv to mandated territories. Thein-
tention may wëll have ben to limit 73 to colonial territories and to
provide for former mandated territories only within the context of the trus-
teeshio system
As a niattcr of textual interprctdtion alone, there u,as much in bc for a
contention IO that effcct ; and at the San Frdncisco Conference there îlso existed
considerable support for the attitude that territories then held under mandates
did not fall within the terms of Article 73. In that respect an argument was
addressed to this Court hy the distinguished representative of South Africa,
now Chief Justice Steyn (1950 Advisory Proceedings, Pleadings, Oral Argu-
ments and Documenrs, pp. 304-312).
MI. President, the Article itself, furthermore, did not provide that any organ
of the United Nations would have the comvetence to decide which territories
would fall within its amhit, Le., sirhichwebe regarded a5non-self-governing
territories for the purposes of the application of the Article; and initirilly the
General Asscnibly left it to Mcnibers concerncd to determine which tcrriti)ries
fell within the cïiegory of non-srIf-go\,erning territorics. Not only did member
States initially in fact dccide for themsclvcs in respect of which territories in-
formation was to be transmitted, but they also decided when it was no longer
deemed necessary to transmit such information, in other words, when they
would no longer consider those territories to he non-self-goveming.
To mention onlv a few examdes. the United States ceased to transmit in-
formation on the Panama canaizone. the United Kingdoni ccasedto transniit
infomdtion on Malta. and Frdncc ceasedto trmsmit information on a numbcr
of territories alter 1947. includinr French G.vana. Guadelouve. Martiniaue.
Rkunion, New Caledonia, ~renchcceania and others(UN doc.~915, pp.7-8):
RY 1960the situation had chnnged completcly. When the General Assenibly
ndopted resolution 1514 (XV) the nrinci~les soniained in this resolution uere
in fact applied to a number of ~ort"~ue& territories. despite Portugal's protest.
In the very next resolution, 1542 (XV), the General Assembly declared that: ". ..an obligation exists on the part of the government of Portugal to
transmit information under Cha~ter XI of the Charter concernina thes-
terrilories.. .".
So that is part of what developed, as 1 have said, into something really
amounting to supervision, as if these territories were under trusteeship.
In regard to the present proceedings, we submit again, with the greatest re-
spect, that the question of the technical applicationor otherwise of Article 73
as a matter of law is no1 relevant. The General Assembly could not have re-
voked, and did not purport to revoke, the Mandate because of the applicability
of this Article; and if we may be wrong in thinking that,-if the criteria set
in Article 73 were indeed part of those which the General Assembly may have
had in mind in talking about a violation of obligations on the part of South
Africa, then we do not balk al South Africa's record and policies being put to
the test with reference to the criteria stated in Article 73. South Africa has
always declared ils willingness to pursue, whether as a legal duty oras a moral
duty, the obligation to promote to the utmost the well-being of the inhabitants
of South West Aîrica. Conseau.~t~~~ w,.ther Article 73 is or is not leeallv
applicable to South West Airica, South Africa has been and is willing to oi-
ply with the substantive criteria in its provisions in regard to the administration
of theTerritorv. and narticularlv inreeard to naraeraohs (a) ,o I,. of Article73.
as well as the-&cred trust concept set out in th: itkroductory portion of thé
Article. The objectives formulated in them are part of the objectives pursued
by South Africa in ils policy of continuing the administration of the Territory
in the spirit of the Mandate. As 1said, if the factual field is to be properly in-
vestigated in this case, South Africa agrees to the testing of its record of fact,
amonest others. aeainst these criteria.
c hi;brings nie,-~r. President~~~othe wider field of applicable normr and
principles. against u,hich Si~uthAfrica's record of fasi requires to he adjudged.
I indicaicd yesicrday \ihy \te suhniit it to be relevant 2nd desirahle io present,
ai rhis stage.3 brief statement,üs oppoied IO a fully re~sonedargumeni.~bout
this niaiier to the Couri. Wiihout m~kina such ï siaiement nou'.even if il is a
fairly broad statement, many allegationi and assertions which are presently
on the record from other participants would stand unanswered. Moreover,
we submit that such a statement is highly desirable from the Court's own
point of view, inasmuch as it would enable the Court, at a later stage, to decide
to what extent it might require further assistance, further investigation in10
the field of fact and further investigation in10 this field of norms, principles
and rules which come into ooeratinn in that resoect.
In particular, 1 want to emphasize that on; should, with respect, guard
against considering the record which is now before the Court as king complete,
ehher with reference to this subject of norms, standards and principles, or the
subject of the facts themselves.
Now, as regards the field of norms and principles, it concerns chiefly con-
cents of human riahts and dienities in eene-al-human riehts. dianities and
fr&doms-and then, in particular, in that broad field, co~cepts if non-dis-
crimination and of self-determination. But before dealina in turn with each
one of these concepts, 1propose to devote some brief attention to the general
question of the attainment of legal force by norms and principles.
When wvespeak of norms and principles in this field they may be of a very
varied content and nature. Thev mav exist in a whollv idealistic sense onlv. as
a philosophical concept or as a polirisally des~rableconcept. and as such there.
mas be much suppori for them by various States in the wnu of decloring thoss ORAL STATEMENT BY MR. DE VILLIERS 571
to be desirable obiectives to oursue. But. havinrrsaid al1tbat. there would still
be nothing of a leial right O; a legal obligationin the situation. On the other
hand, such concepts, philosophical or politically desirable, or whatever their
oriain mav be. mav at a ~articular ooint of time be whollv.or o.rtlv.translated
into legal>ighfs and obligations. ho s could, broadly speaking, agaio be of a
twofold nature. They could be of a nature of prescribing action aimed at the
furtherance or the promotion of the objectives-in otheÏ words, States could
bind themselves in law to do certain things with a view to the promotion of the
particular objective-or they could be of the nature of defining the principle
itself into some fiat of behaviour.
One could givc ex~iiiplesof both kinds. Of the first kind 1have meniioned-
action aimed a1 furthcrance or promotion of an ohjcctivc~ne could cite the
example of Article 1 of the Mand~te for South West Africa, "th? mandatory
sh311proniote to ihe utniost ihe inoral and iii3tcrial well-beingand the social
progress of the inhabitanis of the Terriiory". Thxi is an obligation ïinied 31
furtherance or promotion of an objective, the objective king Ïhe sacred trust
of civilization and what it was described as containing in those relevant in-
struments.
Then. another examole that mav be mentioned is that of Article 56 of the
charter of the United~ations in khich States bind themselves to further the
objectives set out in Article55 of the Charter. 1will refer later to the contents
of those Articles and 1do not orooose to read them now.
Examplesof thesecond kindkhich I have mentioned-the transforming of a
principle, or philosophy, or policy into a fiat of behaviour in a legal sense-
would be ~rohibitions of zenocide. ~rohibitions of slaverv. and so forth.
What is'important, ~r.-~resident; in our submission, iithat there are for al1
practical purposes only two ways in which norms and principles may, wholly
or partly in the sense which 1havejust described, be translated into legal rights
and obligations. They are, firstly, treaty and, secondly, custom, where the
test, of course, is that of performance and compliance. A norm or a principle,
even one which has received fairly general recognition as an objective or an
ideal, if it has not been embodied as a mle in a treaty naturally does not form
part of treaty law. If there is no consistent, actual compliance with it in the
practice of States, il does not become a rule of customary international law.
And the same would apply, of course, to suggested rules of promotion or
implementation of the ideal.
Those are the Iwo primary sources of obligation in international law; sug-
gested norms and principles would, in a legal context, have to comply with
the one or the other, and they would be part of international law only to the
extent that thev do comol. .
An aspect iihich follows. inan important sense, from uhat I have jus1stited.
is th~t itiçneiessary to dtstinr?ui\h heiween the norm or the principlc. on the
one hand, and methods or rulei of implementation, on the other hand. A norm
or a principle may very often in its abstract form be such that it can be uni-
venally subscribed to. But then, when it comes Io methods of implementation,
the difficultv about sueeested universalitv beeins to arise. It mav then. in re-
spect of théniethods,'become necessai to distinguish very carefully between
situations in various Darts of the world and to decide whether a particular
method aimed at achieving a common ideal is appropriate here and, in ad-
dition, appropriate in totally different practical circumstances in another part
of the world.
That is so exactly because of the fact that an infinite variety of circumstances
may be encountered al1over the world. So it follows that when we find in a572 NAMIDIA (SOUTH WEST AFRICA)
particular declaration or other documcnt an embodinient of scntinienis on.
shiill 1wy, a human rights subject. and u,here that documcnt doe\ not confine
itselfto statement of the principle or the idcal bu1entcrs tnto ihe fielduf mcihods
of impiementalion uiih a view Io the \tdndardization Ur gcnerîl prcwription
of such mcihods. then States can, and they do vcry casily, find themsclirs in
the position that they cannot subscribe to the document as such, while they do
subscribe to the principle itself. This has, inact, ken one of South Africa's
major difficultieswith attitudes of United Nations majorities in the field under
discussion.
The difficulty has no1 affected South Africa alone. It has manifested itself in
many other ways. One often would find that a particular non-binding declara-
tionmav have tremendous suooort to start off with. when it takes onthe form
of a non-binding declaration and nothing else. It &ay be subscribed to at that
stage by a very large number of States. When it comes, however, to the next
stage ofembodying thecontents,oreven part of thecontents, of the declaration
in a document that would bea binding convention, then one finds, in the first
place, a sharp diminution in the number of signatures to the draft convention
as compared to the number of votes for the original declaration, or even to the
votes for the draft convention. Eventually, when it comes 10 ratifications of
the convention, the actual number would be much more sharply reduced than
even the signatures. This, Mr. President, is apart from the enormous length
of lime which it has taken to gel any conventions in operation at al1 in the
field of human rights-despite the enormous amount of effort that has gone
into it-conventi6ns 10 whatever limited an extent in the geographical sense,
in the sense of the number of participating States, or in the sense of the subject-
matters covered by those conventions.
Another manifestation of this same problem has been this, that when the
test of performance or compliance in the actual practice of States has been
amlied to a sungested norm or orinciple which has been fairly generally ac-
cebted as an ideal, though not imbodied in a convention, one finds that the
result is very often substantially different from declarations of support that
have been given in international bodies.
So those are aspects of the matter which are very relevant, we submit, in
the field with which we are dealing in its application to South African policy,
and in particular to South West Africa.
There is another important aspect to al1 of this. There are portions of the
presentations of the Secretary-General and of other participants and partici-
pating States in these proceedings which create the impression that they ascribe
10 so-called orinci~les and norms concerninr h-man riehts-and freedoms a
general application ininternational law-an application, as they say,ergaomnes,
bindinn against al1 concerned. That. the suggestion seems 10 be. is an appli-
cation-which arises independently of a treai; basis or of general acceptance
as rules of law.
In support, reference is often made to a well-known passage in the Judgment
in the BarcelonaTracrion case.Ifiscited. for instanc,. .v the Secretarv-General
in paragraph 9 of his written statement. In our submission, that passage does
not support this kind of approach. The Court spoke specifically in that state-
ment of ~rincioles and niles-which are derived from noÏmallv acceuted sources
of obligation in international law, i.e., from general acceptance in-the body of
international law, or from instniments of a universal or quasi-universal char-
acter.
Nevertheless, one Kods these attempts at ascribing an independent legal
force to such norms and principles, so as even to over-ride the Charter. 1sub- ORAL STATEMENT BY MR. DE VILLIERS 573
mit, MI. President, on analysis those will be found to be of a subtly revolu-
tionary nature. They are really seeking at inverting the order of precedence of
the three legal sources which Article 38of the Statute of this Court prescribed,
for the Court to aooly as sources of international law. Those three sources
are very well knowÏt6 the Court, but for the purposes of this demonstration
1would like to refer ta the wording of the Statute and to the order of precedence
of the three:
"(a) international conventions,whether general or particular, establishing
rules exoressly recog.ized by the contestinp.-States:
(hl internarionxl custom, xsevidenccof~ general priicticcaccepted îslow;
(cl the gCncr.llprinciples of Iiiurecognized h) civilized niitiibns."
There is now an attempt, MI. President, in effect to take this third one and
to place it first, but not without some prior mutilation. This third one-the
aenerdl orincioles of law recomized bv civilized nations-is first tobe divest~~
Of ifs a"xiliari and supplemehary nature and to be converted into a primaiy
source of obligation. The words "of law" really become redundant, because it
does not really matter whether these ceneral orincivies are ~hiiosoohical or
political or legal-they are to have prë-eminence even in the-legal field. And
the element of "recognized by civilized nations" is really given very little if any
weiaht. This is oart of the tendencv of that t..e of araument. to which 1 have
thoight it vcryielevînt tu drîu the Cuurt's artenriun-
South Africa's gcncrîl attitude about thcsc mattcrsis not Jiiiisuli to statc-a..
a general attitudeor approach. Firstly, the South African Government for the
most part has no problem with general ideals and objectives in the field of
human rights and freedom.
Secondlv. the South African Government does not believe in riaid. stan-
dardized riies pertaining to methods of promotion and implementazon. as if
they were to be valid al1over the globe.
Thirdly, South Africa has often had to abstain from supporting instruments
drawn up in international bodies because of the incorporation of such methods
which it considered ta be inappropriate to circumstances in its part of the
world, despite the fact that it does support the ideals and the objectives to
which those documents are directed.
Having done this, South Africa was repeatedly accused of repudiation and
even of violation of the aeneral orincioles and ideals themselves-accusations
which, of course, South Africa has rejkted and still rejects. And then, because
specific formulations in instruments have sought to be invoked against South
Africa in sumort of alleaations of violation of lecal obliaations. South Africa
h:is had to insisi in itr d&;iics with the ouiside tyorld, and in particular trith
intcrniitional orysnizdtions about this niaiter, on thc :ipplicîtion of c\tahlishcd
criteria of international law in order to ascertain whether those formulations
irhich are invoked agdinst South Africa indced containcd legal obligations
hinding upon South Africa And that is very much the ïpproach which applics
in the field now for consideration before the Court
Lct ui now pro.xïd frorti this general approach ta the first one i~fthe topfcs
ndmed specificiilly-ndniely. the gcncral field of human rights and frecdoms.
The Court u,ill recall thït the Charter of the United Nations contains relevant
provisions concerning human rights, but they are broadly speaking what one
might cal1of skeleton nature only. In Article 1 (3) it is stated that one of the
purposes of the Organization isto promoteand to encourage respect for human
rights and fundamental freedoms for al1 without distinction as to race, sex.574 NAMIMA (SOUTH WEST AFRICA)
language or religion. The Organization would be the centre for harmonizing
the actions of nations in the attainment of these ends-that is provided for in
Article 1 (4).
Then there is Article 55 (c) in which it is stated that the United Nations. in
ils creütion of conditions of stabilit) and iiell-kinivhich arc nece5varyfor the
pea~.eful:ind friendly relations aniong nations, sha11promotc "univerul respect
for and observance of human rights and fundamental freedoms for al1without
distinction as to race, sex,ang&e or religion".
Under Article 56, "al1 Members pledge themselves to take joint and separate
action in CO-owration with the Ornanization for the achievement of the our-
posesset forthin Article 55".Ir iscicar, in passin$, thït acsordinIO the ~'hr-
ter. ihc Organization was contemplaicd asa centre fur harnioni~ing the actions
of nliiionsfor the promotionofhumün rights.Itcould hïrdly haveken foreseen
that the United Nations u,ould devclop into a field of strife and dispute in this
respect. but thdtis what unfortun3tely happcncd to a large chient.
On IDeiember 1948the General Asscmbly adopted thc Univerwl Declara-
lion of Human Rights, u,ith ü ver) large mqority vote cunsidering itsmeiiiber-
ship ai the ilme -48 votes in support. This Decl~ration fcll uithin the purvieu
of the recommendatory powers ofthe General Assembly, and it did notpretend
to be more than that which its name implied-namely a recommendation,
which according to the views of the majority of the Members of the General
Assemblv, should have aeneral aoolication.
It coniained no provisions fir.its implementation and enforcement, and
it in no way tried to lay down binding directives: but exactly for these reasons,
the whole human rights movement, as Imay cal1it, was directed as from that
time towards the achievement of binding conventions in this field. And in
the 1965 oral proceedings we gave illustrations of various committees that
particularly made that their task. At one stageone of the committees was presid-
cd over, 1 recall, by the distinguished representative of the Soviet Union, Mr.
Malik, and from time to time these committees expressed disappointment at
the slow rate of progress, emphasizing some of the general difficulties which 1
have mentioned.
As late as 16 December 1966, after effort lasting some 18years since 1948,
there were oresented to the General Assemblv. and acceoted bv the General
Assembly by a large majority vote, two draft covenants and an.optional pro-
tocol in this field-the International Covenant on Economic. Social and Cul-
tural Rightsand then, secondly. the International Covenant on Civil and Politi-
cal Rights, to which there was attached an optional protocol dealing with the
rights of individual petition.
Thesedraft instruments look the matters dealt with in the Universal Declara-
lion a step further. in some cases there \rere rcfincments and elaboraiion, in
some casesmodification of the naturc of compromise possibly. and they ucre
drafted in the furm of ntultilateral conventioni. ThcirÜDDIOV~~~by the Gencral
Assembly in resolution 2200 (XXi) of 16 December (966 meant, of courx,
nothing more than they werc accepted asnon-binduig recommcndations by the
General Assemblv. But there wai a further asoect attached to it-thev were
accepted as potential conventionsand States werc invitcd to sign. to ratify or to
acccdc to the% conifensnts. Thcy were open for such signature, rarification of
accession as from the date of adootion-16 December 1966and it was oro-
vidcd that in the caseof the coven<inti they would enter into force thrce moiths
after the date of the deposit u,ith the Secretary-General of the United Nations of
the thirtv-firtinstmment of ratification or instrument of accession-onlv 35
required; wkn the United Nations membership was well over 100 by-that ORAL STATEMENT BY MR. DE VILLIERS 575
time-and, in the case of the protocol, after the tenth instrument of ratification
or accession.
Now, according ta a United Nations publication, one of the Economic and
Social Committee(E/C.N. 41907,Revised 7, of 23 December 1970),the position
is given, as in December 1970-that is very close to today's date-in respect
of these s-gnatures and ratifications.
New, in the case of ihe Covenant on Economic, Soctal 2nd Cultural Kights,
the vote in the Gencrdl Asxnibly u,hen ilu,as itill in ils non-binding forni uas
IO6in favdur: bv December 1970.39Srstes had sinncd mil orth 9 hdd ratilicd.
In the case of the second one, the Covenant on civil and political Rights, 107
had voted in favour in the General Assembly; by the end of 1970, 38 States
had signed and only 9 had ratified. The States in the two cases were exactly
the same with the difference that Malta signed the first covenant but not the
second-that is why there is the difference between the 39 and the 38.
Then, in the case of the optional protocol, in the General Assembly 66 had
voted in favour, 2 against, with 39 abstentions; by the date under discussion-
December of last ycar-there were 13 signatures from States and only 4 rati-
fications. Accordingly, it is clear that as yet not one of these covenants has
came into force.
The nature of the reasons why this phenomenon manifests itself has been
indicated-1 have tried to indicate it broadlv before. Some interestine further
light on those reasons was thrown by discussion at a Seminar on ~umai Rights
in Developing Countries which was held at Dakar in Senegal on 8 to 22 Febru-
aw 1966.a seminar oreanized bv the United Nations. Various of the soeakers.
pïrticulrlily dealing aiÏh situations on the continent of Africa. made the point
that the Univcrsal Declaration uas non-binding in iis legal effcct. One cxaniple
of that isa1page 22 of the document, the ofici31 rcfcrcnce to uhiih isS'ïiTAOI
HRIZS. Whai iiof more importance iswhat v~ritiur spïdkers had rosa) about
the suhstanic of the Universal Declriration. Its substance tvns challçngcd in
various important respects. Speakers wondered whether the ~eclaration cor-
responded with the present state of Society in the Third World.
After raising doubts about this, one speaker expressed the view that the
economic and oolitical reauirements of Africa could not be met within the
framework of ihe ~eclaraiion. Another participant pointed out that as the
Universal Declaration dated from 1948 it did not therefore take into account
the problems raised by the independence of the African countries. Further-
more, it had been drawnup on the basis of theideas and needsof States whose
economic and social structures were radically different from those of the
African countries.
Yet anothcr participant propowd ihat in vicu of the obsiaclcs ta develop-
ment uhlch niight arisc from the principles of the Univcrsal Declsraiion relating
to ~rowrties. the seminar should cal1for a revision of the 1948 Declaration
in order to adapt it to African realities. These views will be found at pages 21
and 22 of the record to which 1have just referred.
These. Mr. President. were not reoresentatives of the Government of South
Africa speaking-theywere represktatives of independent African States
pointing to the difficulties which one has about applying preconceived ideas,
not nnlv of ideals but also of methods of im~lemenÏation. in circumstances for
which they were not devised, and particulaily those whiih apply on the Con-
tinent of Africa.
So, Mr. President. South Africa's attitude is that in this fieldof human rights,
it is not sn much out of step as it is made out to be by its accusers, provided576 NAMIBIA (SOUTH WEST AFRICA)
that its attitude is correctlv understood: and its attitude isone concemed mainlv
with the question of method and not with the question ofideal.
May 1 refer the Court to the wording of other aspects of Article 55 of the
Charter. iust with a view ta demonstratine. this ooint.In coniunction with para-
graph (Cj which Ihave already read ta the court, one finis certain othei ob-
jectives which it is said that the United Nations should promote. They are
raised in the context of the creation of conditions of stabilitv and well-beine
which are necessary for peaceful and friendly relations amo;g nations, based
on respect for the principle of equal rights and self-determination of peoples.
It is then undertaken that the ~nited Nations shall promote:
"(a) higher standards of living, full employment, and conditions of
economic and social progress and development."
These are given at least an equal priority with the general principle of the
observance of human rights and freedoms. It is stated in the fust place in this
context and it is given that emphiïsis.
Secondly,
"(b) solutionsof intemationaleconomic, social, health and related prob-
lems; and international cultural and educational CO-operation."
Now the South African Government says, and my leamed friend, Mr. Botha
will deal with this. that in these verv matters there is the record of the South
African G<ivernment in South \vcst.~frica. Thosc arc parts of the field of the
practical endc<ivour in the furtherance of humÿn riahts and frcedonis in the
context in which it was contemplated from the startk the Charter. But when
it does come to a stage where the South African Government, shall we Say,
in consultation and in CO-operation with the Ovambo people of South West
Africa arrange for organs of self-government for that people and they then
hear from United Nations sources: "No, you cannot do that because that is in
conflict with rules which we have laid down about territorial integrity", then
it no longer makes sense to the South African Govemment, with respect and
with submission.
That brings me IO the second of the three subjects to which 1referred at the
outset. namelv . r ~iol.~~~~d noms of non-discrimi~ ~i~n~ ~ow. Mr. Presi-
dent, when it issaid that South Africa is violating legal obligations by practising
policiesof racial discrimination,what is exactly meant by that? What principle
or rule of law bindine on South Aîrica is said io be violad. and whatis meant
by racial discriminarion? The two questions, of course, have a direct inter-
relationship. When you have the content of the concept of racial discrimination
you usually also have the content of the rule or the nomi for which the accuser
is contending; and that presents problems, particularly ta the accuser. We in
the South African circumstances know this so well, we have been confronted
with it oversuch a lone time that we have had to think it out auitefundamen-
tally. and 1think, with-respect and &th siibrnisçitin, thai the re;ults cank pu!
fairly simply to the Coiirt. 11issimplv3.matter ofchoosing betu,cen iuo thingr:
one is th& of savine that South Af;ica is discriminatine-in a oeio.a.ive sense.
in the sense of préferringone race or ethnic group abovethe other, which is thé
counterpart or another way of saying that it is oppressing or suppressing one
for thebenefit of the other. That is one fom in which~ ~~ accusation could be
made and is, in fact, made.
The other form of accusation is this: that South Africa isdistinguishing
ktween peoplc in its rules and practices and oltisial conduct; it is distinguish-
ing betu,een people because of thcircthnic relationships. because of their meni- ORAL STATEMENT BY MR. DE VILLlERS 577
bership of a particular racial or ethnic group, and it prescrites distinctive,
differential r-ehts and oblia-tions onthat criterion for various ~eoo.e. .nd it
i, ihcn haid th31 that in ilself, \~hclher il is donc for good or for h~d, is in mn-
iiict with some norni or principle or obligation which is legülly binding upon
South Africa in this niodern u<irld. Thuse are hasic~llv the tao alternativcs.
In logic and with reference ta basic legal principles, there could really be none
other.
Let us discuss first !he implications of these two. Take the first one which 1
have mentioned-that South Africa is discriminating in the pejorative sense
of suppressing or repressing one for the benefit of another-that that is what
is meant by racial discrimination. It must be conceded immediately that if
South Africa were to be doing that in fact, then it would he acting in violation
of the sacred trust which it undertook in the Mandate. It would be acting in
violation of the ohlieation to nromote to the utmost the material and moral
well-king of the population, and it would be acting in conflict with the sub-
stantive criteria prescribed in Article 73, paragraphs (a) to (dl, of thecharter.
in hoth cases iherefore. if on~ ~ccents. as 1do for Durnosesof this areument.
~. .
that those obligations & seen not only as nioral, but as legal, then i ï ould
mean a violation of law by South Africa if it did act in this way. But, Mr.
President, the difficulty from the point of view of the accuser is this, that if
that is his accusation he must prove it with reference to fact. He must relate
his accusation to a total vicw of the policy and the conduct of the South
African Government in this field of inter-group relations, and he mus1 then
draw from that the inference that this is the object and effect of the policy.
In the lopic of thic particular situation-we have dealt with it lreauently
heforc-noÏso much inicrnis of generrtlprinciples of la-, or gcneral possibilities
pcrtaining to siiiiilar situationi, but because of the plirticular situation undcr
the Mandate for South \Vcit Africï-the accusation tvould have 11)be one of
deliberate violation. 1 sav.it ir so under this~ ~.~ic~ ~ ~si-~ation. b.cause it is
one wheriby south Africa as a governrnent is given a governmental function,
itis given the power in the Mandate to legislate for and to administer South
wcst~frica. l'hosc poners aie, in accordancc with the hlandste, to bf directed
at the srtcrcrltrust ohjectii'e, the objcctii'eof proiiioting acll-king 2nd proçrehs
to the utmost. If they are directed to that ohiective then they are in cornpliance
with the Mandate; if they are directed to sime other objective then they are
not. The South African Govemment could hardly direct ils powers al some
other objective without knowina that it is doina that.
\Vhït ;s iiiore, basically.î function to legislaÏc2nd to odrninistcr is ï dime-
tionary function, itii a function of goi'crnnieni; iic~rrics within iidi~cretion.
In this instance it carries within itthe d:scretion to detcriiiine the niethod by
which the sacred trust objective is to be pursued. It is qualified in the League
context only with reference 16the persuasive effect of the supervisos. machine-
r~; but in the lepal context it is aualified by the ultimate Durposewhich it must
serve. It is a viGlation of obligation if ifis not directed'at ihe serving of that
purpose, but if if is, and if one merely differs on matters of detail, on matters
of judgment, on matters of whether this particular one is reasonable or un-
reasonable, that is not a basis upon which a court of law could adjudicate and
coufd declare the validity or invalidity of the actions of a government, That has
been recognized injurisprudence al1over the world and in this particular con-
text of the mandates system too.
There is logically and in Iaw no basis upon which the Court could apply a
test of Say,reasonahleness in this context. Reasonahleness, if it is to he applied
by a court of law, must relate to a prescrjbed crjterjon, e.g.. the old critenonof Ruman law of the honusputerfanr;l;us. Le., the test whether, in a given siiua-
lion relating to 3 tort or a delicr. somcbody acied as the reasondhlc, prudcnt
manwould have acted in the circumstances. It is the setting of a standard which
is supplied by this test of the reasonable man-a standard in law. When it is
said that one must look at the acts of a government in a particular field to see
whether they are reasonable or unreasonable. then talking about reasonable or
unre3sunïble doesnot refer Io a sianddrd in l<iiv, IInie3nsa standard in political
conception, in poliiical, moral or siniilar non-legal conception, and ihûi iiiakes
the difference.
One coiilcl look 31 uther altcrn3tives. Could one test iluiih refsrencr' io
the elfeci\ of the policy or of the actiuns ofa p~rticuldr yovernment? Are those
effects and results such that one can say it is promotina to the utmost? But
there again a court of law. IIil is 10app& 3judickl tesi Cothat question, finds
itself in the difficultth~r no crilerion in prescribed in any leyiil instrumcnt or
in îny Ieg31principlc. There is nothing which s3yr thai in the year 1950or 1960
or 1960the ~tageof proercss ought IO hai'e ken here and not therc. Again. io
make 3 total judgment in that field. urherher progress should havc ken further
advanced than it is at a particular stage, involves essentially a political and a
non-legal judgment which it is not appropriate for a court of law to make in
the absence of some instrument or other basis which firmly prescribes a legal
criterion which it can apply.
So, by a procers of bGii ïnûlysis, logic and eliminaiion, one finds ihere are
only thesetwo basicalternatives. The one is tu accule SouthAfrica of a dcliber-
ate violation of the sacred trust by oppressingone for the benefit of the other:
that of course has been the general line at the United Nations. And the alter-
native is to say, there is now a rule of international law binding upon South
Africa which makes it unnecessaryfor me to show the pejorative intent or the
pejorative effect of its policy, but1 can take merely its admitted conduct that
it is distinguishing on an ethnic basisand 1Saythat, per se,is a violation of this
norm of international law. The Court will know that the Ao~licants in the
Soulh H'<,ir Afrircicontenitous casesrtruygled u,iih ihese iwo aiternariver. Thcy
bcgan \ilth nuniber one. iviih the aczusaiion of dclihcrûie oppresbion, and they
ran into ditticult) bec~useof diiiicultic~ of proof. Aftcr Souih Africa h:id sct
out ils sidc of the case fully on thc pleadings, the Applicants begm Io seethe
difficult)', and apari froni this one Iinc which they tuok in the onginal Memori-
als, the one of deliberate oppression, they came in the Reply with the alter-
native to say that, apart from that accusation, they also relied on a so-called
norm of non-discrimination. And when we came to the oral proceedings, when
South Africa ofered further oral testimonv. insnection and so forth in further
answer to and refutation of the charges ofdelibérate oppression, and when the
Applicants found they could not offer testimony in support, that they could
not even relv. as thev had to admit. on what the variok oetitioners had said
at the ~nited~atio&, then they came and dropped the line of accusation of a
deliberately oppressive policy and relied entirely on the alternative line, the
one which was an alternative in their Reolv in the oleadines staee. of savine
that therc wasa norm which absolutely pr~hibiterl di;criminGion Ordistinction
on the basis of membership in a race, class or croup And that uas then the
caseto which we had to direct the further part ofOur attention by way of expert
testimony and by way of argument.
Mr. President, we refuted the caseof the Applicants asfar asthat aspect was
concerned. in various ways. We demonstrated that there was no source in law.
Cor 3 norm such ils they conicnded for. We deïli with thït proposition specifical:
ly wiih refercncc io the three sources of Iaw, uiih a fourih auxiliary one, in ORAL STATEMENT BY MR. DE VILLIERS 579
Article 38 of the Statute of the Court, i.e., with reference to the basis of treaty,
to the basis of custom, and to the general principles of law accepted by civi-
lized nations. And we dealt with their contentions with reference to the effects
of fact, the effects in the factual field which the application of such a rigid,
absolute norm would have, not only in the circumstances of South West Africa,
but in manv other situations in the world: and on that basis we demonstrated
various things. In the first place, that théprovisions of the Charter referring
to human rights, the ones Io which 1have referred this mornina. do not in them-
selves mechanically prohibit distinctions. They are concemed with a much
more important objective than that: they are concerned with the promotion of
certain substantive matters for the benefit of the peoples concerned and they
say ineffect that that promotion isto be an obligationof Membersofthe United
Nations which is undertaken without any distinction in the concern which will
be shown to various people belonging to various groups. And we pointed out
that South Africa was certainly not a party Io any treaty in which it accepted
such an ahsolute principle or norm as binding.
And then we tested it (the suggested norm) with reference to custom, two
aspects of custom or practice. One aspect specificallyrelied upon by the Ap-
plicants was that of the actions and the opinions voiced by United Nations
majorities. We pointed out, with submission, that that was in law not a suffi-
cient basis, but, further that in any case, when those attitudes were analysed,
it was found that they rested not on a conception of such an absolute, colourless
norm, but on a conception that South Africa was, in fact, deliherately op-
pressing.
Then finally, we demonstrated, through the evidence mainly of Professor
Possony, that with reference to the acid test of custom, practice and compliance,
there were no fewer than 50 States and territories in the world in which exactly
hy law, official practice and custom distinctions were still in operation as be-
tween various oeople, exactly on the basis of their membershi~ of a race, an
ethnic group O; a class. ~nd, what is more, 40 of those at the %me, including
the Applicants Ethiopia and Liberia, were Members of the United Nations.
Furthermore, we demonstrated. throuah the evidence of Professor Possony,
and through other evidence, much of which was specificallydirected to south
West Africa, that the application of such a rigid approach in the world would
be a disastrous one as far as the factual aspect of the benefit to mankind was
concerned.
~ ~
1would Iike ta]conclude this portion by jus1 rcading this quotarion froni ihc
conclusion stated by Profcssor Poriuny in his evidence. He u,asaskcd in aencral
whether it would bé practicahle or juit to apply a norm of the kind which the
Applicants contended for, under al1 circumstances and at al1 times, and his
answer was:
"MY answer to this auestion is no. Mankind with al1its diversities has
never acccpted a single hi. To impose a single formula would be idcolo-
plcal iniperi~lism.The bcsi principle.itscemsto me, is to tailor the meihods
or res~onses to s~ecific challenees. An ootimal solution can be ootimal
only in terms of a concrete situation, a solution can be viable only if if
respects the history of an area and is implemented in the same rhythm as
the Societyliving in that area is evolving."
Expert witnesses dealing with the facts of South West Africa demonstrated
how absolutely disastrous il would be in the context of the well-king and pro-
gress of, panicularly, the indigenous peoples of South West Africa, if this rigid
approach were to be introduced there.580 NAMIBIA (SOUTH WEST AFRICA)
The PRESIDENT: The Court understands that it would not be convenient
for the distinguished representative of South Africa to continue his address to
the Court this afternoon, as the Court had contemplated yesterday. The Court
will therefore resume tomorrow morning at 10 a.m. The Court understood
yesterday afternoon that the representative of South Africa will try his best to
condense his furthersubmission to the Court within the period of one sitting,
yet if he isnable to carry that out by the time that the Court has adjoumed
tomorrow at 1 o'clock, the Court will be prepared to sit in the afternoon for
such a period as may enable him to conclude the address.
Mr. de VILLIERS: Thank you Mr. President. May Isay, with respect,
before the Court rises, that after the adjournment yesterday we wenl very care-
fully into the matter to see how co-operaiive we could be in trying to comply
with the Court's request; but we found that it would be absolutely impossible
for us to attempt tocarry on this afternoon. As far as the further time to be
taken is concerned it seems clear to us that we will nbeable to finish in one
session, but we ought 10be able to finish within the compass of two.
The Court rose al 1.08p.m. TWENTY-THIRD PUBLIC SITTING (17 111 71. 10am.)
Presenr: [See Sitting of 8 II 71.1
Mr. de VILLIERS: Mr. President, Members of the Court, 1had concluded
at the adjoununent yesterday a very brief and broad review of South Africa's
case in 1965, ùi answer to the contention by counsel of Ethiopia and Liberia
as to the existence in international law of an absolute, binding nom of non-
discrimination, prohibiting, as it was contended, al1 fonns of distinction by
law and official government practice between people on the basis of their
membershipin a race or classor group-whether that distinction, or discrimina-
tion, is intended and does, in fact, operate for good or for bad. The effect of
our demonstration was, with subniission, that no such norm exists in inter-
national law-that it was a non-starter. if1 mav use that word. with resvect.
not only for legal reasons but also for practical ieasons: exactlyfor the reison
that "mankind in al1its diversity", if 1may borrow that phrase from Professor
Possony, did not find such a nom acceptable; and further, because application
of such a norm or rule, in that rigid sense, in certain paris of the world, with
the conditions operating there, would have and could have only disastrous
consequences in ternis of the well-beingand progress of the peoples concerned.
For that reason Our contention, in effect, meant this: that if one said in an
international law context that a State has discriminated or is discriminating
on a racial or an ethnic basis, that in itself does not impute to the State unlaw-
ful conduct. The imputation would have to go further, if would have ta take
into account the abject, purpose and eiTectof such discrimination. The dis-
crimination. in our submission. is to be seen in itself.-.oeicallv and nhiloso~hi-
cally, as sokething neutral, which could be applied to a good or a bad end,
like a knife which could be applied to surgery or to murder. And, the enquiry
into an allegation of unlawfulÏconduct th;oigh discrimination, on a racial or
ethnic basis, would have ta go further than the allegation of a discrimination
pcr se,it would have to take into account the ohject, purposes and eITect.
In that sense, South Africa's contention has received remarkable support
since 1965 in the international context. In order to demonstrate that to the
Court 1 should like to refer first to the United Nations Declaration on the
Elimination of All Forms of Racial Discrimination adopted on 20 November
1963by General Assembly resolution 1904(XVIII).
That Declaration was an extreme one in the sense under discussion. It was,
to a laree extent. almost a bill of attainder aeainst South Africa. Avartheid.
withourany definition and juit hy that naniç. uas specificlillyrefcrrédto and
condemned in the eiphth preambular piiragraph and In operative paragraph 5.
- - -
But that is not the important point for my purposes.
The basic prohibition as contained in Article 1 of that Declaration was in
terms an absolute one, according very closely to the contention by counsel
for Ethiopia and Liberia in this Court in 1965. 1 read the wording of that
Article:
"Discrimination between human beinas on the ground of race, colour
or ethnic origin is an offence to human dignity andshall be condemned as
a denial of the principles of the Charter of the United Nations, as a viola- tion of the human rights and fundamental freedoms proclaimed in the
Universal Declaration of Human Rights, as an obstacle to friendly and
peaceful relations among nations and as a fact capable of disturbing
peace and security among peoples."
So the Court will see the absolute terms in which this was put. What was
proscribed there was "discrimination between human beings on the ground
of race. colour or ethnic oriain"
in the meantime there has-been development in this sphere, too, in the direc-
tion of a convention. After discussion, further debate and consideration of the
problem there was adopted, as a bais for a convention, General Assembly
resolution 2106A (XX) of 21 December 1965. It was called the International
Convention on the Elimination of All Forms of Racial Discrimination. Here
tao it took the form of being adopted by a General Assembly resolution first,
and then to be open for ratification and accession before it could enter into
force as a convention.
Here we find that this matter had apparently, in the meanlime, received fur-
ther attention, and 1would likc ta refer the Court ta the wording of Article 1,
paragraphs 1 and 4.
Article 1, paragraph 1,states:
"1. In this Convention, the term 'racial discrimination' shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic oriain which has the Duro.se .r effect of
nullifying or impairing the reco&tion, enjoyment or exercise, on an
equal footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life."
in other words, Mr. President, no longer a proscription of the distinction
on a race or ethnic basis in itself, but only when it has a certain purpose or
effect.
And then, paragraph 4 states:
"4. Special measures taken for the sole purpose of securing adequate
advancement of certain racial or ethnic groups or individuals requiring
such protection as may be necessary in order to ensure such arouus or
indivfduals equal enjoiment or exersse of human rights and fuida&tal
freedoms shall not be deemed racial discrimination, provided, however,
that such measures do not. as a consequence, lead ta the maintenance of
separate rights for different racial groups and that they shall not be con-
tinued after the objectives for which they were taken have been achieved."
So there too soecial attention to the case of oarticular racial or et-~ic-erou7~
or indi\'iduïls uhich may rcquire protcciinn and for the purposes of such pro-
tection niay nced differcniial meÿsures b3sd on the fact of their meinbcrrhi~
in that ethnic or racial group.
In other words, in broad principle, as distinct from detailed formulation
which does not concem me for the moment. the South African attitude was
vindicated bv the attitude taken in the ado~tion of this draft convention. that
ir1snoi sulficient IO enquirc iiiio the mechïni~al act of diu.riminatiun, that
the purpose and clfcct niusi be thc dctermining rcaiure, to detcrmine its Iegal~ty
~his drift convention, in passing, took up Io 4 January 1969 ta secure the
27 ratifications which were necessaty ta bring it into force. It is as yet far from ORAL STATEMENT BY MR. DE VILLIERS 583
beinga universally accepted document; even asat 18December 1970,whichwas
the operative date of the document to which 1referred yesterday, only 45 States
had signified ratification or accession. The reference is to document E/CN.
419071Rev.7. UN ECOSOC.
, ,
So, Mr. piesident, that brings me to the conclusion of the broad survey of
the position in respect of suggestednorms of non-discrimination. In the parti-
culaÏ context of th Africa continuing under the basis of trust as conferred
upon iiin the hlandate, under the powcriïnd uith ihc dutier and the objectives
as there iniposed upon it, Souih Africa ic in the position thai its conduct would
bc unlawful if the diiïerentiation ivhichiindniittedly praciises should be direct-
cd al. and have the result of rubordinliting thc interests of one or certain groups
on 3 racial or cthnic b~sisto thosc of rithers. Io suppress ur opprcss somc fur
the bcnefii ofrithers. If that cm bcesiahlished in fact. then South Africa would
be guilty of violation of its obligations in that respect, othenvise not.
That brings me to the last oneof the categories which 1foreshadowed 1would
deal with brieflv. That is the cateaorv of self-determination. The concept of
self-detemination, as the Court wouid know, Mr. President, has a verylong
history. 1do not intend to trace that in any detail at this stage. Ttis wellknown
that this conceot was ina larze measure a dominating princiole during the peace
negotiations and the treatie'of 1919.One of the miin criticisms subseq"ently
directed at the treaties-perhaps oneshould sayat their application-was based
on the allenation that the orinciole of self-determination had not ken prowrlv
and suffici~ntlyobservcd and that it was violated in too many instances; and
these alleged or real violations are regarded by many as amongst the important
causes of the Second World War
Ir ic ihercforc. wnvuhai curprising, in an) cveni rernarkïblc, th31the con-
cept of self-dcrcrmin~tion did not rereivc niore prominence ihïn ilin faci d~d
in-the Charter of the United Nations. It is in terms mentioned in two places
only, namely in Article 2, paragraph 1, and in Article 55. lt is, one could say,
contemplated in Article 73 and in Chapter XII dealing with the trusteeship
svstem. but it is nowhere mentioned as a conceot b. .hat name even in those
portions of the Charter.
Article 1, paragraph 2, uses the expression within the context of this phrase,
"friendlv relations amone. nations based on reswct for the orinciple of eaual
rights Gd self-determinaïion of peoples"; and'in Article 55 the iontext and
indeed the words, the exact phrase as 1have read it out now, are exactly the
same. One could say that there is here a distinct lack of emphasis on the concept
of self-determination. That arises from the fact that nothing more was said
about it than what 1 have just read out to the Court. Secondly, that one would
see that the context isone of "respect for" self-determination of peoples,it isnot
even an obligation to promote; and one will further note that the concept is
referred to as a principle, it is not referred to as being in the context of a right,
on the one hand. or duties on the other hand.
This, Mr. ~reiident, contrasts very strongly with contentions which have
been addressed to this Court in writing and orally by various participants in
thesc proceedings, speaking of a right of self-determination and a corresponding
duty to ensure self-determination primarily on South Africa, and, because
South Africa did not act in accordance with the wishes of the majority of the
United Nations, the United Nations took upon itself that duty as a basis which
it said necessitated it to act when South Africa violated its duty.
1 do not propose to give any reviewat this stage of authorities, of publicists,
who have dealt with this question in international law. 1 would like to give the
Court one reference only, which is to a German writer who has made a careful ORAL STATEMENT BY MR. DE VILLIERS 585
redrawn so that there would be onlv one ethnic unit within each State: because
ifthat were so, it would of course have necessitated the hreak-up of a number of
existing States, and if this were to he punued with any vigour and with any
enforcement. it would hardlv be coinnatible with the noals of oeace and securitv.
B>, Mr. ~resident, as 1ittle.a~that ;as the general prescription of the charter,
as little was it a prescription, on the other hand, that in cases of multiethnic
States or territories where the neooles have not in fact rnerged into one nation.
self-determination must be accorded only to a non-existent nation, being the
total ~op~lation, and not to pro~erl~ identifiable peoples within the territorial
unit.
The Charter did not deisn to prescribe one way or the other, but it did re-
cognize that self-determination could attach to the smaller, the ethnic unit
and need not necessarilv attach to the whole territorial oo~ulation.
The Charter thereforéleft these questions of modalit; open and it left open
questions which then arise such as: is there a limit at the lower end and, if so,
where is that limit? Would this conceot of self-determination as aoolvin~ to ... -
eihnic iinitr apply only IL, Idr-cr grouh Iike. for instdnie, the Ovniiibo n:irion
ofa qwdrter of a niillion people iiiSo~ih Wcsr Africa. or uould 11apply also to
smalÏerouos and even to ore-tribal societies like the Bushmen in South West
~frica? ~hgse, too, are questions which were left open by the Charter.
If one approaches those questions as a matter of logic, it follows that there
c- - ~ ~~ ~on~iderable differencei~ o~actical ineanine and in ootential scooe
-
of self-determination depending on what type of group professes to exercise it,
or to what kind of group the right is to be accorded. Logically the practical
scope of what couldbe Gtained by self-determination must be affected by fac-
tors such as the state of development of the particular group, its particular
situation, where it is located, and its sire. These factors in combination would
then in a practical sense determine ta what extent self-government or autonomy
would be, in the first place, feasible for such a group, and in the second place,
desirable in relation to other goals which are being set for the groupgoals
such as well-being, economic growth, and so forth. As 1 have said, those are
practical factors: they do not attach ta legal prescription asat the Charter stage
with which we are dealing at the moment.
In orinciole. Mr. President. in Our submission. there is no reason whv anv
shouid be denied this ;ight of self-determ,nation, as long as we actes
that at the lower end it could often, in a practical sense, not extend to real in-
ternational indeoendence. for the oractical tvoe of reasons which 1have men-
..
tioncil. Ofren. i~od,:ilihough frcclycxercising iri iiiIIin thdi regard. as a inJiter
of prinriple. the Sruiip may iind iiself rcstrtctcd in ii~chutcc of ~licrnatii'cs uf
what wiuld be fissible for itself.
In that sense, self-determination may well find itself practically restricted to
some kind of autonomy and local self-government within a larger arrangement
of co-operation. The practice of tat teins this sphere differs and seems to he
affected strongly by geographical considerations. In the case of the Union of
Soviet Socialist Republics one iïnds that in practice, as we understand the
situation. autonomv has heen eranted to verv small ethnic xrou~s. bu. aut.-
nom). hai hecn rleni~.d IO largsr group: which Iive in dispersal, in aiilier \rords,
groups \rh~sh lack a disrinct ierriiory as a çruup honic. The I'eoplc's Rcpuhlic
of China isconiniiricd tu a similar interprcrarii~nof seli-dctcrmin3iion, itnuuld
appear, bur iis practicc has noi becn quitc consisrcnt in that respect. In the
United Siaies and Canxda one findsthc arrangenient ii'hcrchytribal self-govcrn-
ment of Indian groups isprotectedand the same applies in several Statesin LatinAmerica. It isadmittedly a limited concept of self-determination, but it operates
to that limited extent and within that limited sohere.
The South African practice has been a simicar one except that it has gone
further in protecting the identity of groups which desired it, whether those
-.uos were larne or small.
So, Mr. ~resident, in brief, there is nowhere a typical situation to which the
principle of self-determination can logically be applied in a mechanical way.
~irtually every situation is, for that purpose, a unique one, which requires
special attention and special adaptation. Generally speaking, it would seem
that the principle is intended to apply to stable ethnic groups. When 1 Say
"stable" 1 mean those of which the members are identified clearly with the
group. \Vhethcr they drc originally and purel) of the wmc cihnic ur~gin\io~iId
no1 rnÿttcr jslong ir 31 thc ~üritcular iidge ihcy do, in fact. by ihciiiiIIidcn-
tifv themselves as a distinct arouo. The princiole aoolies to the conceut of a
grbup becoming totally independent, or linking "p with another country,
making some new arrangement about the future of that group as a whole.
It aoolies also. in the lesser sense, to possibilities of such mouos coming to-
gr.[&, co-ordinliting and uorking tugciher wiihin ihc franie\iori of one lirger
poliricil unit iccording to such metho& as they moy liiiveagrccd upon ninongst
themselves. be those methods federal. confederal. of the nature of a common
market, iihriicver ihc arrangcmcni niay hc.
The imp<iridni point nhi~h I hüw kcn strcssing i, th.itthc Charter lcft al1
thcsc miitiers unrcgulaied. Thc Chdrtcr lefi [hem to be dealt ivith in gond scnsc
by ihojc \vho ma) be dirsctly coiiccrncd at the ;ippropridre tinies.
So, Mr. Pre%idcnt,in the noi so dibtunt p3.i. aftcr ihe coming into oper~tion
of the United Nations, there have been practices in regard to various situations
which illustrate the diversity of what may be decided upon as a practical solu-
tion in the particular case, and in some of these situations there was co-opera-
tion from the United Nations side. There was the case of Palestine. t.e oa.tition
solution; there was the case of India and Pakistan, again partition; there was
Rwanda and Burundi. the old Ruanda-Urundi being divided so as to accord
with the ethnic situation to a greater extent than before; there was the arrange-
ment in Togoland and in the Cameroons where horders were adjusted, in some
cases linking up with neighhouring territories; there was the special kind of
arranz-ment in Cvnr.. to cone with the situation of two nrouos-.hich could
no1ccimcto (erms about merging in ihcir guvsrnmenial sysicni.
Dut ihrrc have, on the oihcr han& ken üitemptr, pariicularly inIlter Ilnitcd
Nations history, by majorities to introduce rigidity in this sphere, where nnne
was intended or provided for in the Charter.
Itwas the same resolution 1514 (XV), the decolonization resolution, which
first suoke of a so-called "rizht" to self-determination, thus aoina beyond the
charter formulation of pnnciple, and then for "al1 peoples", Article 2.
It went further in Article 3 to provide that: "Inadequacy of political, economic,
social or educational preparedness should never serve as a pretext for delaying
independence."
So hy a combination of these features the attempt is now made to move to-
wards a right to immediate self-determination for al1 colonial countries and
peoples-a right to immediate self-determination and a corresponding ohli-
gation on those concerned to give effect to such a right.
In Articles 4 and 6 of that same resolution expression was given to a concept
of a principle of so-called territorial integrity of a country: in other words, in
the processes of decolonization, the territorial integrity of the particular terri-
tory is to be respected. That is then to be dealt with as a unit-as a whole. So ORAL STATEMENT BY MR. DE VILLIERS 587
that soueht to introduce this further rieiditv. that it was not oo.si~ ~ ~ ~ m,re ~ ~
to accord. according ti)this~onception,~%lf:derermin3iion toclearly distinguish-
able groups within a territor); the territory had IO be dealt with as a uhole.
That kind of approach later led to the somewhat absurd statements-absurd,
that is, to people who know the circumstances of Africa, and particularly the
circumstances of southern Africa-to the effect that there is to k discerned a
people (in the singular) of Namibia. Those who know the facts know, Mr.
President, with submission, that there is no such thing.
The whole concept of a people of Namibia is a fiction; and it seems also that
the idea expressed in Article 2 that such Peonles mav "freelv determine their
political status and freely pursue their econokic, social and~culturaldevelop-
ment" has largely become fictional in the practice of the United Nations, be-
cause very often the right to self-determination is asserted not bv the neonles
themselv& but by the majority in the Gencral Asscnibly, accordikg to its Con-
ception? of what the people mighi Iike Some of that is evident again in these
proceedings in connection with the plebiscite proposal, on which ldo not wish
~- ~well~n~~- ~
The latest development in this field was a Declaration accepted by aGeneral
Assembly resolution on 4 Novemkr 1970(A/RES/2625 (XXV)). It was called
the Declaration of Principles of International Law concerning Friendly Rela-
tions and Co-operation among States in accordance with the Charter of the
United Nations
The Declaration is a formidable documeni: IIrequires thorough înalysis.
It is one step in what is descrikd as "the progressive developmeni and codili-
cation of the vrinci~les of international law concernine friendlv relations and
CO-operationimong Siaies". More particularly this ~eclardtiok is devoted tu
the elaboration of seven principles ivhich the Declaration descrihs ai "basic
principles of international Inu". In the light. Mr. Presidenr, of the kind of
submisiions th31 have ken addresscd to this Court on behlf of the Secretary-
Ceneral and othcr participants, one \vonden if the conteniion will now be
that these formulations in this General Assemblvresolution. thoueh thev annear
to be sonieuhat confuscd and involvcd, are to be regardedas biiding 311
Menibers of the United Nations as nn authoritative determination of lau, made
by the Ceneral Asscmbls. and ns such bindine on this Court too. 1am nierelv
posing the question: one bould have to see wKat the reaction to that would bé.
1 will not review the provisions of this Declaration in detail now. 1 wish to
refer only to a few features. There is a portion which is headed and which deals
with "the principle of equal rights and self-determination of peoples". Now,
in that portion, the idea of territorial integrity as it emerged already in reso-
lution 1514 is maintained. On the other-hand. the ~edaration recoenizes
explicitly that there are different modes of "imblementing the right O? self-
determination", and they give as examples sovereign and independent state-
hood, free association or integration with an independent State,~or "the emer-
gence into any other political status freely determined by the people".
The Declaration does not prescribe any procedures for the peaceful at-
tainment of self-determination. And it fails comoletelv. Mr. President. to direct
itcatteniion IO the speiial problenis thai =rire in'rcgardto the application <ifthe
principle in multi-ethni: societies: that leads again to this concedlnient of the
fact that a society is a multi-ethnic one. e.... -.vus.ne a descriotion such as
"the people of the territor) ofN;iniibia". In Oursubm~sion. such an apprsach
iiiust havc the etïeci ot'den)in,: di-Jeterniinaiion and ethni; identity to clenrls
dibcernible peoples, \,hich could be of a considerahle size. but.uho could tind
themselves in the minority in a particular territorial situation, very often aterritorial situation created in amanner which was totally artificial from the
point of view of those peoples-created by the drawing of lines on a map by
neaotiating oowers in the colonial times. lines which, as we know. very often
iu;th~ou~h'thc ver) lirca occupicd hy 3 distinct pcoplç. Thir hlippened in the
case of the Ovamhc>,so thdt part of the Ovambo pcople arcsitulitcd inAngola
and oart in South West Africa. And. i~nthe othcr hand. itrcsulied in brinainc!
within the same territorial area a number of distinct national units, etLi;
units, "peoples" in the contemplation of the Charterof the United Nationsas 1
have dealt with it, in situations such as Nigeria and-we know-in South West
Africa.
As 1have said, the Declaration fails to deal with these matters and by faili&
ta do so, and by seeking to maintain this element of rigidity that one may pro-
ceed on a basis only of the total population of a territory having to determine
by a majonty vote what is to bappen by way of self-determination for that
territory, it could, in effect, deny self-determination completely to minority
groups within such a territory. For that reason the Declaration, 1 suhmit, has
as little intellectual relevance ta the issues of South West Africa as it has legal
binding force.
One of the few people who have given really serious attention ta the question
of self-determination in ethnically non-homogeneous societies has been a
Turkish orofessor bv the name of Tahsin Bekir Balta (Kurt Rahl. editor.
~us~ewil;lte ~egenw>rrsJh~enrum Problem der ~erwirklichungdes ~elbsti
bestimmungrechtder Volker, Vol. il, München, Lerche, 1965, pp. 13-26). He
pointed out in this study of the problem that in such areas votes by a majori-
ty would mean that the majority decides for the minority and thus would de-
prive the minority of its rights. And he reasoned that the argument according
to which such a votine orocedure is said to be democratic is unsound. amonast
others, becaUse the &ic minority could not, like a minority politi'cal paGy,
ever become a majority and reach power; it would be confined to a status of
king numerically-in the minority by reason of king an ethnic group in the
minority. That is one factor in his reasoning. Another important factor is
because a self-determining decision camot easily be changed and usually has
effects for a verv Ion= oeriod. And the third is because in the absence of an
ethnic numericai majorGy two or three groups could compromise ta the detri-
ment of other groups. They could combine so asto form a majority for pur-
poses of rendering the others in the minority and then imposing their will upon
the rest of the population. instead of a majority vote, he arguesin such instances
for what might be called co-determination or-if one translates it more clum-
sily-orrelated self-determination, self-determination for al1 by virtue of
correlated action in which each has a part.
But how that is to take place so as to be fair to al1concerned, as nearly as
possible, certainly requires verycareful thought which, in our submission, has
not been given ta the problem in United Nations circles, certainly not in the
context of South West Africa.
The approach of the Professor, ta wbich 1have just referred, is a logical and
a reasonahle one, and 1should be very much surprised to hear that he has ever
heard about the problems of South West Africa. So it is not sa difficult to
understand the ~roblem and to understand the orinciole.
The problcm, in our subm,ssion, in territoric~ sush ai South West Africa, ic
not the principle of self-dctermindti~in:itis a problcm of hou ta givc prdc1ic:il
effect to it wshout creating new dominations. And in essence, if one accepts
that from a practical point of view it would not be feasihle for each ethnic
group ta become a sovereign nation-State, the problem becomes one of proper ORAL STATEMENT BY MR. DE VILLIERS 589
representation for each group. When 1Saythat 1mean, in the ~Ûstplace, proper
representation in self-expressing organs of zovemment. which will be trusted
and uill be really reprcsentativcof ihe pcoplëconcernrdsoihst those rcpreseni-
inp the people in this minncr-really reprcscniing thcir viewsand king trusted
hy them with the organs of govemment within the particular ethnie groip-can
then take up the negotiation on a footing of equality with the others, in a
similar representative capacity, and in that CO-ordinatingand CO-operative
manner forge a future for al1of them and not onlv for some.
In our submission, the United Nations proposais for South West Africa
arenot progressive or democratic, they really imply oppression through pseudo-
democracv. South Africa therefore cannot accept them as eitherieeallv or
morally binding in this context. She cannot adopt an attitude of, &hi or
wrong, one man one vote for the whole population of South West Africa and
damn the consequences. That South Afrkcannot do, because she would, by
doing so, violate her sacred trust.
Mr. President, that covers my brief statement on this field which 1 have de-
lineated as beine concemed with relevant norms and nrincioles. As will have
-.
been clear to the Court, 1 did not expand or go into 'greatdetail, or take up
possible contested lines, or take up arguments to the contrary that have been
offered by participants in these proceedings.
In order to deal with this matter fully in regard to al1issues that could arise
in regard to if, a good deal offurther expansion and research would berequired,
as 1indicated before. But this, in broad outline, is our attitude on this subject,
the attitude of the South African Government on behalf of which 1have made
this statement. ORAL STATEMENT BY MR. BOTHA
REPRESENTATIVE OF THE GOVERNMENT OF SOUTH AFRlCA
Mr. BOTHA: Mr. President, honourahle Members of the Court, my learned
friend and senior, Mr. de Villiers, has indicated what our general approach is
to the questions of international standards of administration and-norms of
human rights, with particular reference to self-determination and non-discrim-
ination.
It remains for me to sketch in broad outline what is the potential field of
controversy concerning the application of these standards and norms to the
circumstances of South West Africa. In this respect also, as with respect to the
matter~ dea~t with bv .v l~,~ ~ ~~~ ~~d~ ~I..de Villiers.1do no! oronose .eal-.
ing cxhauriively wiih the problcm, inv~lved. lndccd, I shall direinpi nierely io
deline~rc the nature of the tîbk thai ivould have io he c\sd\ed if ihc l'acisofihc
present matter were ta be canvassed with any degree of thoroughness.
Before commencing on any examination of the merits of the system of ad-
ministration in South West Africa. one would have to pay due regard to the
fundamental problems which would confront any adminCstering aithority in
the Territory. The basic facts are so well known that Ido not propose quoting
any authority for them-if verification or details are required, reference may
be made ta Chapter XI of our written statement and the annexes thereto.
South West Africa is a vast and under-inhabited territory. Its total area is
over 800,000 square kilometres whereas it has a population of only ap~roxi- . ..
niîiely ~~~~~~~popl ihat is. ihrçe quartcrs of a miiliun peoplc. In the rc\uli,
ils popiilation dcnjiiy is lcss ihan I person pcr square kiloiiietrc, as compdred,
fur in\iancc, u,iih 12 in Likris, 20 in thc Cnited Siatcs ofAmcri;a and 346 in
the Setherlands. Ltscliniaic iion ihr iihole unsuiiablc for mm's purposes. Thc
greîter part of ihc Trrriiory is desert 3re.i and II iionly in ihe norihern part oi
the 'lerriiory, along the Okavÿnço Riwr and in théCdprivi Sirip wherccon-
diiions inlayhc rcgdrdcd 3s favciur~blefor ihc dcnser type of hunian occupaiion
and fairly intcnsi\c agriculiural exploiiïiiun. Ir 1..onl) in thojc arcîs ihai ihc
rainfdll i\ hirh and conqisicni cnoiiah to k suiiahlc fur such purposes The
rest of the ~ërritory not only suffers'from a low average rainfalj, h"t it is also
subject to cruel and recurrent droughts of great severity.
nie diversity of geographic features is equalled by the great differences in
the inhabitants of the Territory. The largest single population group is the
Ovambo. They live in the northern parts of the Territory, Ovamboland, and
they are themselves divided into a number of peoples.
Then there are the peoples of the Kavango, who inhabit the well-watered
regions on the banks of the Kavango River. A third population group is found
in the eastem Caprivi Zipfel, which is a curious appendage to the Territory
of South West Africa extending ta the east into the area between Zambia and
Botswana. in the southern part of the Territory there are other population
-.ou~s-the Nama. who are of the Khoisan ErouD of Deo~les. who are nOt
relûted IO the Rantu pcopler like the Ov.imh<iJI-,111T .hcn ;hcr;arcihc ~ushriien.
whi~aere originally a nonisdic people lii,iiigcnrircly frtonihiinringandgaihering
wild fruits of the veld.
Also in the southern part of the Territory are found the Herero, a Bantu
people, though distinct from the other Bantu tribes of northem and eastem ORAL STATEMENT BY MR. BOTHA 591
South West Africa, and then the Damara, who are a Negroid people with
many distinctive characteristics.
In addition, Mr. President, a substantial number of White and Coloured
people have settled in the southern part of the Territory. Amongst them are
the Rehoboth Basters, who have been living in their own territory since the
last quater of the previous century and have a certain degree of auto-
nomy.
~hese various population groups differ substantially in their ethnic origins,
in their languages, customs and cultures. In the early days before South Africa's
administration had commenced there was a state of almost nernetual warfare
amongst various of these peoples. Although the ancien1 hoitiliiies have been
reduced in intensity, it would betotally wrong to suppose that any of these pop- -
ulation groups would at the present moment be &epared to integrate hith
.~-~,-- the ~thers.
The circumstances which 1have mentioned have necessarily had an adverse
effect on develooment of the Territon. The low oooulation densit. - ~ ~ ~ -
only limited the-market for agricultur>l and indugtgal products,. but has re-
sulted in high transport costs and in the necessity of importina almost al1the
needs of the modern sector of the economv. This a..lies.,forinstanc--~to al1
fuel for power and transport, machinery equipment, many types of building
materials, most consumer goods and even a great deal of food.
Desoite the difficulthuman and ohvsical oroblems. there has been substa~-~~~~
develobment in South West frica Ta.e pobulation growth rate in the Territory
is 3.7 percent. per annum, a figure which in the whole of Africa isequalled only
by ~ibya, and which elsewheÏe is from 1.3 per cent. to 3.3 per cent. The real
income per head of the population grew by no less than 53 per cent. during
the years between 1960and 1969.Indeed, Mr. President, with the exception of
Libya, the per capita income of South West Africa was the highest in Africa
in 1966. Education is flourishing-the total number of pupils of al1groups in
primary and secondary schools has more than doubled in the decade between
1960 and 1970, and as far as the indigenous peoples are concerned it is at a
very high level, comparing more than favourahly with standards achieved in
comparable countries. Health services receive a per capita expenditure that
exceeds that of anv other countn in Africa.
\Vhnt ii ptrhapre\'en ninre iiiiporinni is ihïi in Soiiih West Airu there 15 a
gencral atnii)iphere of goud\\iII and iricndship am<ing\t the ditferent group., .
in contradistinction to what the situation was in years gone by.
In the light of what 1have just said, the question arises: what are the factual
cornplaints which are made against the South African administration? In view
of the high standard of well-being and progress in the Territory, it is a matter
for comment that the South African Govemment has been the subject of so
much attack in respect of its administration there.
As we have shown in Chanter XI of our written statement. the reason for the
hosiility isnnt in be f,iunJ in ;hi ineritsnr dcnieriisoftheSouth Africanadntinis-
trition as such. but in a general enloiional ~inipaign nhizh regards South \Vcsr
Africa as a manifestation of colonialism which ihould be terminated. It was
this campaign which led to the contentious South West Africa cases, as.well as
to General Assembly resolution 2145 @Xi) and suhsequent United Nations
action. In oarticular. our ooo..ents often contend that the South African
Goveriiiiicnt fails 10 liveLIP 10 the principlcs ofseli-~leicrminition. and niore-
over pur\ucr a pi)licyi>filiicriniin.ttion on a racial hwis ihat iç,discriniinxtion
in the pejorative sense of the word.
On the part of the South African Govemment, these contentions have been592 NAMIBIA (SOUTH WEST AFRICA)
and are vieorouslv denied. It is true that the South African Government~ ~ ~ ~ ~ -...
diilr.rentiîÏc bctuëen vsrious populîtion groups-that uc adinit. Iiut this ij
not froni any deiire or intention IOoppress or repres any of the pcooles for the
benefit of anv others. Measures of differentiation are dictated nit hv ~ ~~ -2 ---,
philosophy or dowutic \.ieu,sabout race, as issomctlnics contcndcd, but bythe
objcctivr circumjtitnies oi the Terriiory and in particular by the crcü. di\,ersitv
of;ts oeonles.
~hi: di;ersity has necessitated differential measures, inter alia, in education,
economic development, and also in political organization. In the last-mentioned
re~-rd. . .itical institutions have been established for various noniilati.n
grnups in South WC,~Africa. Il 15the pulicy of ihe South Africaii Governnicnt
to devcloo these institution* 10 ihe stage uhcrc the? will be caiii<bleof taking
part in adialogue about the future organization of the ~erritory, and indeed
of the whole sub-continent of southern Africa.
The nroblem. as my learned colleague. Mr. de Villiers, indicated. is not one
of the prittripleof self-dctcrniin~tii~n,~bu otf iis,ipplicu~iunin .Iniu'lii-nalional
socicty in ,uch a nianncr as to promore wcll-beingand progres> IO ihc utnio\t.
'Io rhai end ihc maior requirement is the h~ilding UP uictTecti\,e 2nd nieÿnine-
ful forms of repre&ntation for the various peoilës through which they ccn
shape their future. In this respect, major progress has been made.
In Our written statement we set out the general circumstances in South West
Africa and the broad lines of the policies adopted there, and we provided some
information on the progress that had been achieved. This elicited a very limited
reaction from other ~articipants-in fact only the distinxuished renresentative
of Finland made an; express reference Io our exposition. 1 refer the Court to
pages 80-81, supra. However, as will be seen byreferringto therecordjustmen-
tioned. thisreoresentativedidnot deal inanys~stematicwavwithour contentions
but oniy statéda couple of general criticisms. As far as ihe other participants
were concerned, they contented themselves on the whole with wild sweeping
alleaations of on~ression and denial of human rights and with referencei 16
~nifed ~ations-and other sources as supposedly Containing the true facts of
the situation in South West Africa. When dealing with the application for a
plebiscite, we indicated what prohlems we have in replying Io this type of alle-
gation. We do not want to repeat what we said at that stage but it might be
convenient to refer to a few illustrations.
Thus. for instance. some ~artici~ants merelv alleeed that South Africa has
. .
\,iolïted itr ohligatia)'n\,withour ii;akinç ans rtemht tu indisîie ihc f.,ctual
barisof suchallegaiion. In the \rritten .tdtement of Nigeria (1, o. 892) it nit,
nicrcly wid thdt thc CieiieralAssenihl) h;id decided to tcrminliic South Africa's
"rrustccship" in vieu, of the pcriistcnt hreachej of tlie Mandatc, and ihat the
vast msjairiry of the Menibcrs of the Un~icdNations no longer have any con-
fidence in the ability of South Africa 1,)fulfilthc rolccnvisaged undcr the mm-
ddtes ç)stcm as \i.ella)thc relevant provisionsof il~eChsrtcr.sinccSouth Africa's
record of brc:ichcs uf ireai? ohligîtions Joes not cntitlc IIIO continue its prc-
scnce in South WC$[Africa (ihi,lp. 893).
No\\ , ,r prohlcms in replying io allcgaiions of tliis kind nitist iiiiniediately
be apparent.One looks in vdtn Io the writtcn statcniciil of Nigeria in an attcmpt
to establish which acts or ommissions of South Africa are beine teli-d unon as
conitituring hrcachrs df ils obligations iindcr the Mandate. or for ans dci;,ils
of the $0-called brcnchcb of trcaty ~hligation\. Ilow clin one possihly ansuer
allcgationr rclating to hrcaches of ohligaiions ifone dors no1knou [liecondusi
which is said ti)ciiniiiruie sucn breachcs'!
Siiiiilar problemr are cncounicrcd ai a result of the approash adopied, for ORAL STATEMENT Bi' MW. BOTHA 593
example, by the distinguished representative of Finland. With reference ta
our written,statement; he said (supra, p.81) that the real facts are well known
ta al1 and that it is only necessary ta examine South African legislation, of
which only one specificexample is given, and administrative regulations, which
arealleeed to be arbitrarv..unreasonable and uniust. We are not. however. told,
which siecific acts or administrative regulation; are in their terms or their ap-
plication arbitrary, unreasonable and unjust. How does one, Mr. President.
deal with such an alleeation?
Another example ofthe kind of vague and general allegations made against
South Africa concerns the.Terrorism Act of 1967, wbich was characterized
by the re~resentative of Finland in his oral statement libid .sJ an an.r~ ~ ~
heidme3s;rc derignedtosupprcss thc rights and liherties of théinhabitanis of
South West Afri:;i and, as such. an in\idnce oihow South Airica has Niled IO
.
fulfilher obliaations under the Mandate.
In the firsr-place, the application of ihis ActIO South \Veil Afria can clearly
nor k invoked as a ground for thc purported revocation of the Mandate bv
the General Asenibly, $ince ii \id>applicd ta the Territory subsequent to thai
purporied rci'ocütion And, in the second pl3ce. the Act cdnnot bcan apartheid
measure because it in no way discriminates between different races or groups
of oeodes.
~urihermore, inordertogointo themeritsofthisspecificallegationit wouldbe
necessary to know in what respects the Act is considered obiectionable. But
this thereoresentative of ~inlGd does.not tell us. other thant~ ~ ~ ~ ~hat it~~~.~.
suppre~ses'ri~htsand libcrtics of theinhahitants of'ihc Tcrritory. I3utk;w does
it do thi.;It cïn cleïrly not be objcii onable upon the pround thdr iiisdesiened
to combat terrorism because thatis a duty implied in the undertaking of south
Africato promote the welfare of the peoples of South West Africa. So we have
only the bare and general allegation.
In order to eo into the merits of the alleeation we would n~~~~-n-~~~~.~ ~ >
therefore, not only what particular aspects oithe Act are ohjected to, but also
whether or not the Act isjustifiable in the circumstances of South West Africa.
And in this connection it would be necessary to test the provisions of the Act
against those of similar legislation elsewhere in the world. Thus a very wide
field of enquiry isinvolved.
It may be that the effect of the Act is too severe for the evil it isdesigned to
combat. That, Mr. President, cannot be ascertained without a full enquiry
into al1 the circumstances, but unless that enquiry is undertaken the Act
certainly cannot be condemned out of hand. And it may be added that this
Act is but one of the many which have been cited against us as examples of
repressivelegislation.
A eood examole of the tvoe of alleeation one has to meet is also found in
the ~iited ~tate; written stafëment (1,p. 865) where there appears a quotation
from the South West Afiica Survey 1967to the effect that South Africa-
". ..rejected 'every policy which suggested the giving of limited rights to
the various groups inside one political structure' since'such policy 'had
the prospect of one man one vote as an unavoidahle end result, with its
easily predictahle consequences' [the end of minority controlr'.
Althoueh the words in sauare hrackets are indicated as not formine oart of
- e --
the quota'iion, the impression is created that the~ represent what is contained
in the publication itself. That, Mr. President, is clearly misleading. The easily
predictable consequences were explicitly stated to be "rising tensions betweekthegroupsand a struggle for supremacy" (SouthWestAfric0 Survey1967, p. 47).
A further example of the far-reaching nature of the accusations against South
Africa is to he fohd in charees concemine freedom of movemenc In his oral
address, the distinguished representative oFthe Organization of African Unity
alleged that South Africa had acted in breach of its obligations by, inrer alia,
denying to the inhabitants of South West Africa their rights to freedom of
movement. In commenting on Our plebiscite proposal, the distinguished
representative of the Secretary-General even went so far as to say that a
olebiscite eenerallv desimed to ascertain the wishes of the inhabitants of South
est Afriga coul&ot be held under conditions which would ensure impartiality
and freedom of choice, since such conditions do not exist at present because of,
for example, the denial of freedom of movement to the vast majority of the
population.
In our written statement we did not deal specifically with this topic, for the
simple reason that at that stage no specificcharges had been formulated which
called for a reply on Ourpart. However, the alleged denial of a right of freedom
of movement is a charge which has often been made against South Africa's
administration of the Territorv. We do not for a moment dis~ute that the
freedom of movikent of the in-habitants of South West Africa, whether White
or non-White. is to a certain extent restricted. We do not dispute that. But this
~-not a oh.nanen- ~ ~ ~ ~ . ~o South West Africa. In~manv countries it haç
been found necessary, and for various reasons, to restrict in one way or another
an ahsolute freedom of movement of the inhabitants concerned. This has heen
done mostly foreconomical,planning, healthand sanitary reasons-for instance,
the prevention of slum areas in the vicinity ofcities.
Consequently, if it were necessary to refute the charges relating to freedom
of movement in South West Africa, it would be necessary to present the Court
with details of the circumstances in South West Africa which made it necessary
to introduce such restrictions on this freedom, and also, by way of companson,
to deal with analo~ ~0 situations else~he~e in the wor~ ~whe~ ~ ~milar measures
arc or have been in operation. In psrticular, uc would wish to dcmonstrate that
the inhabitiints of South Wcsi Africa are not suhicctcd to restrictions on ihcir
freedom of movement in excess of what is essenfial from the point of view of
"securing due recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order and the general
welfare in a democratic society". These words come from the Universal
Declaration of Human Rights.
The Courf adjournedfrom 11.20 a.m. ro 11.45 a.m.
Mr. President, in its written statement the United States, in support of ;ts
alle-ation that Sou~h~~frica had acted in conflict wi~h it~ oblieations under
the hlandate. relied on a nuniber of statutory mciirurcs applying in South \Vert
Africa and also on 3 çtudy i~fthe Internütional Coniniission of Jurists. the
reDori of the SDCC~JR ~n~oortrur of the Commission on tluman Richis (Fich'.
4/949), and thédissentini opinions of some judges in 1966.On page 867; 1,of
the written statements, the United States said that the General Assembly,
in resolution 2439-O~ ~n.endorse..the re~o~mendation~ ~ ~ ~ ~ ~ ~ of the Soecial
Rapportcur of the Comniission on Human Rightr that South Afrtcï hc required
to rcpciil, anicnd or rcpliice Iiii\,scitcd in r>ïraar;ir>h 1517 of the Report. In this
.arae-.oh some 80 laws of South Africa and~iuth West Africa were listed.
Accordingly, the written statement of the United States appears to invite a
debateon the merits and demerits of al1 these laws, apart from al1the other ORAL STATEMENT BY MR. BOTHA 595
material contained in the report of the Special Rapporteur and the said study
of the International Commission of Jurists.
However. from the noint of view of the sheer volume of work involve~ ~ ~ -~
--.
grcatr.31diltic~lties .ire prescntcd hy the d~rcunientsfilcd in ihcse proceedings
by the Sccrerary-General of the Unitcd Nsiions. In his a ritien staienieni he stid:
"The facts of the violations by South Africa of her international obliga-
tions in respect of Namihia were set out, inter alia,in the reports submitted
hy successive committees to which special responsibilities in respect of
Namibia were assigned by the General Assembly." (Written statement,
1,para. 78,footnote 116,p. 96.)
The Secretary-General then proceeded to list more than 30 different docu-
ments. In these documents references are to be found to numerous other
docunicnts and source>.II \rIII31s0he aihscrvedthsr ïc~oriling ro the SeCrct,,ry-
Ciencra1rhc i'iolations;irectout,irr~r~r<ilr~rin thcic ~loiunicnts. II ~111 prclum-
ably therefore be necessary to deal with al1 United Nations documents in
which allegations were made to the effect that South Africa had violated its
obligations under the Mandate.
In theearly 1950sa Special Committee on South West Africa was appointed,
the tasks of which were later taken over by the so-called Committee of 24, that
is, the Special Committee on the Situation with Regard to the Implementation
of the Declaration on the Granting of Independence to Colonial Countries
and Peoples. These committees received written petitions and granted oral
hearings to petitioners, they conducted certain investigations and they exten-
sively debated the issue of South West Africa. Thereafter a reoort would be
foruarded IO the ti>urth C,)mniittec tihich \voiild discuss itand'at rimes grant
additional Iie:iringr to ordl pciitii>ncri.1)rtftres~~luti<~a nsopted hy the Fourth
Committee were then forwarded to the olenarv session of the General Assemblv
where at times further discussions took placé.It will accordingly be necessa&
to read through al1 these debates, reports, testimony and other relevant docu-
ments in order to establish which acts or omissions of South Africa were relied
upon as breaches of its obligations, and,thereafter to refute them one by one.
The fact that thousands and thousands of pages of documents are involved
isitselfsufficientto demonstrate the enormity of the task involved.
A preliminary copy of the dossier submitted by the Secretary-General
containing documents likely to throw light upon the question on which an
advisory opinion has heen requested, was received by us on or about 13January
1971, when, Mr. President, we were on the point of departing for The Hague.
After arriva1 here we received, on 20 January 1971, the official Court version
of the dossier together with an introductory note of 20 pages. The dossier itself
runs into 33 pages listing a vast number of documents including, but also
additional to those relied upon in the Secretary-General's written statement.
The dossier consists of 10 folders collectively measuring some M) cm. high.
These folders contain 382 items, many of which are themselves sub-divided
into a number ofdocunients. Thus, for example, item 267, which contains the
annexes to agenda item 64 at the General Assemblv's 23rd Session in 1968.
inci~rporiitcseight separxe dci~unicnii. In hi5 intr~iductory nutc the Secrctary-
Gencral point%out that only the docunienis relevmt IO the q~eition submitted
Io tlie Couri and whiih werc 1s-uedin 1966 and thcrc~ftcr, were includcd. but
even so. this documentation comorises a.fo~ ~ ~ble~ ~ll~ ~ ~ ~of fact~ ~~
allegations of almost every type and description.
Included in the dossier are records or extracts of records of 232 meetings of596 NAMlBlA (SOUTH WEST AFRICA)
United Nations bodies ranging frorn the Security Council, the Committee on
Colonialism. the Fourth Committee to the olenarv meetines of the General
Assembly itself. Then there is a total of 49 resoiutions adopted by United
Nations bodies during the period since 1966.There are also a number of reports
submitted by the Skretary-General, the Committee on ~olonialism; the
Fourth Committee, the Council for South West Africa as well as reports
prepared under theauspices of the Human Rights Commission and the Econo-
mic and Social Council. Likewise, there are a number of reports of sub-com-
mittees, of working papers prepared by the Secretariat and of extracts of
statements made bypetitioners.
As alreadv stated. these documents contain a vast number of factual alle-
galions. ~aiy of those, although they are contained in documents issued~in
1966and thereafter, appear to us to be applicablealso to the alleged violations
of the obligations by South Africa during earlier years. It will consequently
also be necessary to deal with allegationscontained in al1these documents.
Soon after receipt of the written statements of the other participants in
December 1970, a main committee was actually formed in South Africa,
consisting of senior officiais, to assist with the task of gathering the facts
necessary to refute the charges of violations of South Africa's obligations. Each
of the committee members was made responsible for a group of allegations, at
least such as could be identifiedat that stage. In turn, each of them sub-divided
his task into more detailed subjects assigning individual sub-divisions to experts
in the subjects concerned. Thus, one major area, social and welfare matters,
has ken sub-divided into civil pensions and gratuities, housing, disability
allowances, old-age pensions, caring for the old, crèchesand childcare, sport
and recreation, cultural activities, education and health services. Social and
welfare matters constitute but one of a number of major areas. The official
res~onsiblefora maior area is the Dersonwho. in consultation with the Govern-
me'nt'slegalrcpresentativcs. allocite, the charges, according tu their nature and
scope. to the officiïls responsible for the sub-divisions.
Theestablishment of thiscommiitcc in South Africacniîiled also thccrcation
of an organi7ational structure wiih headquïrters in Cape Town and sub-
divisions in Pretoria. Windhoek and Oshakati, the capital of Ovamboland.
Administrative and secretarial su~~ort had to be su~~lied and arrangements
ucre made for regular despatchcs of specialairniail bagscontaining background
maierial and volumes and volumes of records betuecn these centres which 3re
se~arated by vast distances. One of the first tasks was of course to du~licate
thiusands of pages of United Nations documentation for use by the main
committee, that is, the South African committee, and its numerous sub-
sections and sub-departments.
However, notuit&tanding the esrly strp, taken, which I have skeiched, II
has as set ken impossible IO analyse al1the charge<contained in ihe documents
already referred Io. let alone to nather al1 the facts and formulate re~lies. It
will heimpossibletodo so for quik some lime tocome.
Ofcourse wecmnoi sa).thît u,ehave no knou,ledgeof the type of allegations
contained in the documentation referred to or that some of them are not easv
Io rcfute. Indeed, in paragraphs 14to 31of Chïpter XI of our written statemcn.~
ue deïlt with the quality and sources of the attacks in the United Nation5 and
we demonstrated that they were mostly derived {rom wild assertions made by
petitioners. Byuay of illu;trationWC dcalt with certain categories of allegaiions
made by peiitioncrs and echoed in Ilnitcd Nations dcbates. namel) : allegations
of genocide, of herdinp, the non-white psiiulation of South West Africa into
concentration camps, of depriving the-indigenous inhabitants of the richest ORAL STATEMENTBY MR. BOTHA 597
nart of the territorv and conking them to desert-like or unhealthv areas to
Lake wüyfur ~hitésetiler~, and aiimil!tariziition oithe~erritory.
\Vc showed thni juch iillcg~tions uere completely unirue, but the caiegorics
of alleration with \\hich u,edeali are onlv a $niaIl~oriion of those iu be found
in thevarious reports and debates to which reference has been made.
1 wish ta offer a few more examples to illustrate the problem. One category
of accusations which is ta be found quite often in the documentation relied
upon by the Secretary-General is the absence or the inadequacy of medical
facilities for the indigenous inhabitants of South West Africa. According to
witnesses interviewed bv the Committee on South West Africa in 1961 "the
poorly niainiained medi&îland healih services were far too inadequate to save
the indigenous population ïroni gradual extinction in the fore%cable future".
This conles (rom UN docunietii A 4926. oariieran- 1=~. Dae,.16. one ,f the
documentsrelied upon by the ~ecret'ary-~eneral.
A petitioner, MI. Ngavirue, stated that there was a great shortage of medical
facilities in the territory.In some regions there were virtually no hospitals.
Hospitals were always understaffed, overcrowded and generally had poor
sanitary conditions. There was neither a neurologist nor a psychiatrist at the
Windhoek Native Hospital, but African mental patients drawn from al1parts
were herded into a camp where they were left to decay. There were hardly any
specialized medical services for either Africans or Europeans. However, if a
European patient needed a specialist, provision was made for his transfer to a
better hospital in South Afnca, whereas an African was rarely sent elsewhere
for medical treatment. This also comes from UN document A14926,at para-
graph 113,page 16,and, as 1have indicated, this is one of the documents relied
upon by the Secretary-General.
In 1965 the representative of the USSR explained his delegation's position
on a draft resolution on South West Africa. introduced al the 367th meetinn
of the Speciiil Coniniittre on ihc Situ;iiion u1iihregard ta the ~mplemcntatio~
of the Declaration on the Ciranting of Independence to Colonial Couniries and
Peo~les. He stated that he was exnlainine his deleeation's oosition on the draft
reGlution in the light of the statements made by tKepetitionen and the Special
Committee's deliberations on South West Africa. in South West Africa, he
said. "the onlv law was the violation of -he ~i~ ~tv and of the nehts of man.
~he'~eo~leoisouth West Africa were reduced-toslavery denied ;II education
and medical assistance". This comes from UN document Al6OOIRev.1, para.
219, page 141, another document relied upon by the ~ecretary-Generalof the
United Nations.
Ironically, MI. President, the utter falsity of these charges is demonstrated
in another document on which reliance is placed in these proceedings ta sub-
stantiate the factsof South Africa's so-called violations of her trust obligations.
I refer to the Report of the Special Rapporteur of the Commission on Human
Riehts entitled "Studv of Anartheid and Racial Discrimination in Southern
.4f;ica3', UN document ~/~~.4/949/~dd. 1. in p&agraphs 793 ta 815 of this
report, submitted by the Secretary-General of the United Nattons, information
isfurnished which com~le. .v contradictsthe charees which 1have iust read and
which were part of those charges on which reliancewas placed whei resolutions
condemning South Africa were passed by the General Assembly.
So here we nowhave two documents, bath submitted by the Secretary-
General, one accusingus and the otherone contradicting those very accusations.
We have fumished extensive information on health services. 1 can refer to
the South Wesr Afiica Survey 1967, pages 121 to 132 and to the letter dated
26 September 1969from the South African Foreign Minister ta the Secretaiy-598 NAMIB~A (SOUTH WEST AFRICA)
General of ihe United Nations, pages 98 IO 105.Despite AI this, the Sccretary-
Gencral in eiïect still maintains that lsck of hospiial and mediral Facilitie~is
one of the fdas of Suuth Afr,cï'~ ,~iolaiionsof ticrlru.\i ubligaiions. He main-
tains ihis hecause allcgation< to ihai eiïeci are coniiiincd in ihe dosunieniaiion
to uhich he has referred ihis Court. and he has noi de-ancrlto sav that this part
of thecharge no longer stands. MU& wemeet il?
Mr. President, in the financial year 196911970.current expenditure on health
services in South West Africa amounted to R5.84 million, of which 74. almost
75 per cent. iia\ e~pcnded on behalf of the indigenous peoples as against
25 per sent. for the Whiie group. C~piial c.%pendiiiirein 1969 1970anii>unted
tu K1.l 16inillisn, of \\hich 87 Derccni. mas dc\.uiedIOfaciliiie\ ior ilicindiuc-
nous groups alone. -
There are 1,049 beds available for White patients and 5,602 beds for the
other . .ulation arouos, aivinp.a ratio of almost nine beds oer thousand of
al1pupulati<ingri~üpi.~ féw ).&ri aSo the cornparahle figure; for ronic oihcr
Africiin countries u,ere les.;than t\\,o and even lers than one kd pcr ihousand
of the population.
ln 1970, new services or improvements to existing services to a total value
of R40.77 million were king actively planned or were about to be initiated.
This is almost one-third of the United Nations' budeet. Of the total fiaure.
R8.82 million were for services to Whites. alniost ~20Aillion in respect O? the
indigenous people>,uhilc lhc reniainder cuncerned projccrs cervinç iiIpopula-
tion groups.
There are 146medical practitioners, dentists and specialists in the Territory
(excluding the Eastern Caprivi). This gives a figure of one doctor to about
5,000 inhabitants. There are probahly no countries in the African continent
south of the Sahara with a more favourable distribution of physicians to
population, except South Africa heiself, where the figure is one doctor to
1,900people. Recently the distribution of physicians in, for instance, Burundi
was 1 : 61,000;Ethiopia-l : 65,000; Nigeria-l : 31,000; Rwanda-l : 57,000;
Senegal-l : 17,000;Liberia-l : 11,000and Mali-l :51,000(United Nations
Statisticol Yearbook, 1969, table 198, pp. 673-677). Again, how does this
compare with South West Africa?
In regard to nurses and their training, control of diseases, subsidies to
mission hospitals, medical research, laboratory services, blood transfusion
services, the position is more than favourable. 1 will not go into details, Mr.
President-1 me-ly refer the Court to Our written statement, Chapter XI,
section F, paragraphs 151-158, where al1 these details appear. For earlier
data 1 refer thecourt to Annexes A, 1, pages 121-132,' and C, pages 98-105, '
to Chapter XI of our written statement.
But, Mr. President, because the charge is still on record in the documen-
tation relied upon by the Secretary-General, let us look at the additional
work involved in preparing a proper reply on a subject which we would have
thoueht to have been thorouehlv canvassed. We are faced with numerous
individual accusations which might not be adequately met by the data which
we have made available, and to which 1have referred.
These accusations one finds interwoven with other accusations in statements
by petitioners and representatives of countries participating in debates over
almost 20 years in various bodies of the United Nations. It is a considerable
task to read through the thousands of pages of record in order to ensure that
our list of particular charges on the s;biect of medical services is complete.
' Not reproduced. ORALSTATEMENB TY MR. BOTHA 599
Only thereafter can a start be made to determine which accusations can be
met from available material, and which accusations will require additional
enquiries with a view to obtaining factual material in order Io canvass those
accusations.
Let me illustrate this with a practical examole. In the statement of Mr.
Ngavirue, which I have read a litlie *,hile agoit,s allcgcd thai "hospiials iirre
31~\~;1)undersi~ffcd. o\~ercro\t,dcdand gcncrally had poor saniiary conditions".
Now let us loi~k si ihis allccaiion. Firsi of al1ithad io k round in the record.
and in this specific case the reader would have come across it after havin;
gone through more than ten years of United Nations records. He would by
then have come across many others, but none hased on these specific facts
as 1 have just read them. This one is then added to the long list which has to
be fonvarded to the head of the health authorities with the request to cause
proper enquiries to be made and to furnish full details asto the facts pertaining
to this charge.
The head of the health authorities would then have to cal1 in the heads of
the various sections administerin~ health matters and he would have to brief
ihem as IO whai would be rcquirëd. Prîmnably, the personnel section uould
be given ihc taik ro invcsiigatethe charge thai "hospitals were aluays under-
staffed". That is the first part of the charge
Another scction responjihle for planni& hospital ~.apacitiesii,ould bc given
the ta$k of rcplying to the accusation th~t "hospitals \icre nlwayi ovcrcrouJcd".
A third scoion. rcsoonrihlc for the physical olannina of the buildings 2nd the
maintenance of the prescribed standards of hygienë would have to reply to
the charge that the hospitals "generally had poor sanitary conditions".
Mr. President, at the time of the purported revocation of South Africa's
Mandate, there were 130 hospitals and clinics in the Territory. Some of these
are situated at vast distances from one another. For example, the hospital
at Oranjemund in the south is about 650 kilometres from Windhoek by
direct air route. Oranjemund, again by direct air route via Rundu in the
Kavango, is situated at a distance of almost 1,800kilometres from the central
hosoital in the eastem Caorivi. It is conseauentlv hardly necessarv to sav
thal the con,ultitiions involved in adequîr& nn;uerinË the iharge undir
consideration will involve ü con~iderïblc amount of lime and effort.
1 intend to conclude. Mr. President. 1 wish to advert to a remark made bv
the Ji>iinguished rcpr~sentative of ihc Orpani~ntion of African ~nity-a
rernark hc made in his oral siaicnient <in 10 Fcbrusry 1971 (rr(pro.p. 104).
Hc vaid: ".ilt,,in Namihia arc decsvinc morally and spiriiualls heiausc of
the policies carried out in that part of the world."
We believe that this brief remark goes to the very heart of the whole South
West Africa issue.
The distinguished representative of the OAU believes that men are decaying
in South West Africa becauseof South Africa's policies.
If South Africa were indeed pursuing a policy of genocide and racial exter-
mination in South West Africa, and treading under her feet the self-deter-
mination and human rights of the black peoples of the Territory; if the hlack
peoples were herded in concentration camps, treated like animals, reduced to
slavem and for~e~ ~o live in conditions of na~ed~terror: if South Africa's ~olicies
u,erc rootcd in rdcial hatrcd and aniniosity and in a doctrine of white supcri-
ority and hlack inferiority: if. Mr. Prrsident. Soiith Africa \verein fact depriving
thenon-white . .oles of their land. and confinine-them to desert areas: if
the education system of the indigenous peoples were designed to prepare them
for aninferior position in life; if the health sewicesprovided for the indigenouspeoples were far too inadequate to save them from gradua1 extinction-if
al1this were true, then,men would indeed be decaying, and the deep emotional
involvement of the African countries would then be under~tandable.
On the other hand, Mr. President, if these allegations were unrrlrewe would
be entitled to expect that the African States would feel relieved that men are
not decaying in that part of our continent. South Africa is confident that given
the lime and opportunity, she will be able to demonstrate that not only are
men not decaying in South West Africa but that al1men, irrespective of their
colour, are developing and advancing in a way and at a rate of which the rest
of Africa would be proud.
Being an African-rooted country, South Africa is deeply aware of the
problems of our continent. We realize that there is hard work ahead for al1
of us. But we believe that we can overcome our obstacles in a spirit of co-
operation based on respect for the self-determination of al1 our peoples-
black and white.
We appreciate that the prosperity of our neighbours is also in our interests.
Their security is our security. No other country is better equipped to assist
actively and directly in the development of our African sub-continent. We
desire to play our role to the full in this great adventure.
have the willand the
South Africa looks fonvard to the day that the sincerity of her purpose will
be accepted by al1 African States. She looks fonvard to the opportunity in
these proceedings to have that sincerity tested against the results achieved in
every essential sphere of life or the peoples of South West Africa. ORAL STATEMENT BY MR. DE VILLIERS
REPRESENTATIVE OF THE GOVERNMENT OF SOUTH AFRICA
MI. de VILLIERS: Mr. President, Counsel's estimates of time are notor-
iously inaccurate and again we have been proved wrong. We are going ta
finish during this session after a1lwish ta make only a very brief concluding
statement to the Court.
1want to state briefiy in conclusion cerlain themes which have been running
throueh Our nresentation. I wish to stress three of those themes. Thev are not
intended to be exhaustive. The first one is that neither individual States nor
the international order can live with General Assembly resolutions elevated
to the status of binding legislation, more especially if such legislative acts are
sought to be applied arbitrarily to some States and not to others. Even so,
despite al1 the attempts in this Court to represent the acts of the Assembly
and the Court's consequent pronouncement upon them as king confined ta
an issue of a so-called delinquent South Africa with reference ta South West
Africa, once such a concept prevails in international law, an authoritative
precedent will have been set, and no one can tell this Court, with respect,
where it will stop.
Secondly, the mandates system and the trusteeship system were designed
to ooerate on a basis of dialoeue and neaceful develo~ment. This is basic.
in la; and in fact. The sacred th requi;es 10 be honouiéd no1 only by south
Africa but also by the United Nations. The United Nations would be betraying
its mission if it &ks enforcement action for its majority views, a course which:
as we have demonstrated, mus1 inevitably lead to untold harm for the very
peoples whose cause those majorities profess to espouse.
Thirdly, Mr. President, if disputes are to be settled by law rather than by
power and force, a judiciary in the position of this Court must be willing to
oppose political pressures and temporary majorities. That is frequently the
only protection for a wronged minority.
We have came to a conclusion which is not an end, Mr. President. We have
now fully presented our oral statements on the legal issues bearing on the
powers of the organs of the United Nations with reference ta their relevant
resolutions. However, the factual issues underlying those decisions have not
been fully dealt with, as we tried to explain in some detail 10 the Court
today.
South Africa contends that if it is necessary to go into the factual field at
all, then a very substantial further canvassing of the factual field will be neces-
sary. When 1 Say "if it is necessary to go into the factual field at all" 1 have
in mind the two qualifications which we have indicated before. The first one
is that it is conceivable that asresult of the view or conclusion arrived at by
the Court on the legal issues, the Court might find that the actions taken in
the organs of the United Nations were invalid on legal grounds, making il
unnecessary to enter in10 the factual field al all. That is one possibility.
We do not see the converse as king possible, with submission. We do not
see a possibility of a conclusion upholding the validity of the action of revoca-
lion without fully considering the question of factual justification for il.
The other possibility was tbat raised by South Africa's plebiscite proposal.
We have indicated our reasons for submitting to the Court that if that proposal602 NAMtBlA (SOUTH WEST AFRICA)
is acceded ta, it could have a vital bearing on the nature and on the scope of
such further investigation into the facts.
Those are the two qualifications which 1had in mind when 1said "if further
consideration of the factual field should prove necessary".
The Court has not responded to our plebiscite ~ro~osal. nor to Our sug-
gestion th;itishould inJicate to usai an cirly stage ihsi il.ï;ritude or decision
on the mdtter mighi k. Sc?our position ai this stage is this. I thtnk ue have
made itcle~r thdt cven ifit had not been for the t\vo iocioii \rhicli I Iiü\.c
mentioned, South Africa would more or less at this stage of the proceedings
have been in the position of having ta apply for a postponement with a view
ta further investigation into the factual field and the presentation thereof to
the Court, for the reasons which we have made clear today and which were
specifically dealt with by my learned friend, Mr. Botha.
But we are not formally in the oosition now of havine. to make that aooli-
cation, as we see the posiiion. Assoon as the Court has-communicated Gus
the Court's attitude or view in connection with the plebiscite proposal we
shall, with respect and with submission, be in a position to know whether it
is necessary to make such a formal application. In the meantime, 1 do wish
ta state ta the Court formally. firstly, that unless the need for a factual enquiry
falls away, wholly or in part, for one or both of the reasons which 1 have
mentioned, South Africa submits that an extensive further enquiry into the
facts is essential and that without it great injustice could be done ta South
Africa's position.
Secondly, we therefore wait to hear from the Court and we hold ourselves
at its disposal for suCha further investigation. ORAL STATEMENT BY MR. VICKERS
REPRESENTATIV OF THESECRETARY-GENER ALTHEUNITEDNATIONS
Mr. VICKERS: Mr. President, honourable Members of the Court. The
Secretary-General would respectfully request that the fact of not replying to
any of the points which have been ~resented to the Court in the course of
these proc&dings will not beconstr;ed as an) admission on his pari of their
corre:tness, or completeness. or relev~nce. Subject to this reservation. the
Secretary-General does not wish to detain the Court at this time with further
rebuttal; or elaborations, especially since, in his view, many of the differences
between his position and that taken by South Africa result in effect from
differences in their respective conceptions as to the legal and factual nature
of the situation of Namibia.
In conclusion, therefore, the Secretary-General has directed me to reiterate
his confidence that the United Nations will receive from the Court the guidance
which it is seeking. CLOSING OF THE ORAL PROCEEDINGS
The PRESIDENT: The Court has considered the request submitted by the
representative of South Africa in his letter of 6February 1971 'that a plebiscite
should be held in the Territory of Namibia (South West Africa) under the
joint supervision of the Court and the Government of the Republic of South
Africa.
The Court cannot pronounce upon this request at the present stage without
anticipating, or appearing to anticipate, ifsdecision on one or more of the main
issues now before it. Consequently, the Court must defer its answer to this
request untila later date.
The Court has also had under consideration the desire of the Government
of the Republic to supply the Court with further factuai material concerning
the situation in Namibia (South West Africa). However, until the Court has
been able first to examine some of the leaal issueswhich must. in anv event. be
dealt with. ilwillno1 be in a positionIOdelemine whethcr itrciuires.addiii<;n;iI
matcrial on the facts. TheCourt must accordingly defer ilsdccision on ihis matter
If, at any time, the Court should iïnd itself in need of further arguments or
information,on these or any other matters. it will notify the Govemments and
Or~anizations whose reDresentatives have ~artici~ated in the oral hearinas
Having arrived at theend of this phase Goral hearings, the Court desires me
to express its appreciation of the valuable assistance it has received from the
tat teasd Organizations which have submitted written statements and have
participated in theoral hearings.
The Courtrose or12.30p.m.
' See Correspondence ,o. 92, p.673, infro. TWENTY-FOURTH PUBLIC SIïTING (21 V171, 10 am.)
Present:PresidenSir Muhammad ZAFRULLK AHAN; fie-PresidentAMMOUN;
Judges Sir Gerald FITZMAURICE FO, RSTERG, ROS,BENGZONP ,ETRÉNL , ACHS,
ONYEAMAD , ILLARD,IGNACIO-PINTO ,E CASTRO,MOROZOV,JIMÉNEZ DE
ARÉCHAGA ;egisrrarAQUARONE.
Alsopresenl:
For Finland:
Mr. P. Gustafsson, Ambassador to the Netherlands.
for India:
Mr. T. S. Ramamurti, Secretary of Embassy.
for the Netherlands:
Dr. C. W. van Santen, Deputy Legal Adviser, Ministry of Foreign Affain.
for Nigeria:
Mr. 1. J. D. Durlo-.. Ambassador to the Netherlands.
For Pakistan:
Mr. R. S. Chhatari, Ambassador to the Netherlands.
For SouthAfrica:
Mr. J. D. Viall. Leaal Adviser to the DeDarIrnent of Foreign Affairs
Mr. D. P.de villier<. S.C.. ~dvoraleofthSuprcme ~uurÏof South Africa.
Mr. E.M. Grosskopf. S.C.. Meniber of the South African Bar.
Mr. J. D. ToihiIl. Member of the Depïrtment of Foreign Affairs.
READING OF THE ADVISORY OPINION
The PRESIDENT: The Court meets today to deliver in open court, in
accordance with Article 67 of the Court's Statute, the Advisory Opinion
requested by the Security Council of the United Nations on thegal Conse-
ouencesfor Storesof the ContinuedPresencof SouthAfrica in Namibia (South
West~jrica) norwihstandingSecurity ~ounc~l~esolu~on 276 (1970). '
Much to the regret of the Members of the Court. Judae Padilla Nervo is
unable to be here todav. Shortlv before the Court hadcomoleted the substance
,~~ .~~~~
of ils u,ork on the preseni cahe.uas taken III. Alter mcdiwl consultations
in The Ilaeueiluar ihouaht best for him to return to Mexico for consullation
with his own doctorsandhe accordingly did so. He has since teen undergoing
treatment which is proceeding satisfactorily but which, under medical advice,
has not allowed him to return to The Haaue,
The relevant clauses of the Court's-~esolution conceming its Intemal
Judicial Practice provide that a judge who has participated substantially in the
proceedings of a case but who, because of illness or physical incapacity, is
unable to attend in gerson on the occasion of the Court's final adoption of its
Judgment or Opinion may nevertheless record his vote in such manner as the
Court may decide to be compatible with its Statute, any doubt being settled
by the Court itself.
Judge Padilla Nervo was present throughout the oral proceedings in this
case and also throughout the Court's private deliberations up to a point atwhich it had reached the substance of its decision,-a decision on which Judge
Padilla Nervo was able to make his opinion known.
Accordingly, and in the circumstances jus1 described, the Court decided
that Judge Padilla Nemo should be allowed to record his final vote in writing.
This having ken done, that vote duly figures amongst those recorded in the
Opinion of the Court.
1 shall now read the English text of the Opinion.
The Presidentread the Opinion '.
1 cal1 upon the Registrar ta read the operative part of the Advisory Opin-
ion in French.
The Registrarread the operativepart of the Opinion Z.
Appended ln the Opinion of the Court is a declaration by myself. Vice-
President Ammoun and Judges Padilla Nerva, Petren, Onyeama, Dillard and
de Castro append separate opinions; Judges Sir Gerald Fitzmaurice and
Gros append dissenting opinions.
In view of the fact that the Security Council requested the Opinion of the
Court to be made available at an early date, and in order to avoid the delay
involved in printing the Opinion, it has been decided to read the Opinion
today from a rnneoed text. The normal printed edition will be available in
about a week's lime.
Zhe Cour1rose at 11.50 0.111.
(Signed) ZAFRULLK AHAN,
President.
(Sigited) S.AQUARONE,
Registrar.
I.C.J. Reporls1971,pp. 21-58.
'I.C.J. Reports1971, p.58.ANNEXES TO ORAL STATEMENTS
ANNEXES AUX EXPOSÉS ORAUX Source
the Security Council as required by Article
23 (1) of the Charter.
(3) In the alternative, the Court should as a
matter ofjudicial propriety decline to accede
to the request because of-
(a) the political background to the question Written statement,
in which the Court itself has become Chapter IV, paras.
involved and the potential damage to the 4-30.
status and standing of the Court and
its members;
(b) the direct bearing of the question on an Written statement.
actual dispute between South Africa and Chapter IV, paras.
other States; 31-43.
(c) the existence of the above-mentioned Written statement,
Chapter IV, paras.
extensive factual issues, for the investi-
gationand decision of which the advisory 44-48.
process isnot appropriate.
The Merits
A. TheSco~eand Strucrureof the Quest-on
Ali relevant Security Council resolutions Written statement,
leading up to and including resolution 276of 1970 Chapter V, paras.
freferred to in the auestion) rested uoon an 6-15.
assumption of the valkity of the action &ken by
the General Assemhly in resolution 2145 (1966)
which purported to terminale South Africa's
title to administer South West Africa: the funda-
mental issues therefore concern the validity of
that action.
B. ThePurported Terminationof theMandate
The purported termination of the Mandate by
General Assemblv resolution 2145 (1966).was .
invalid for the foilowing reasons:
(a) Save in exceptional cases of a domestic Written statement,
nature and no1 relevant here, the General Chapter X, paras.
Assemblv has no oower under the Charter 1-11.
to makebinding decision,. as iipurportcd
to do indecidingto terniinate the Mandate.
(b, (1)In any cveni, the Gencral Acwmbly Written statement,
purported to îct as succcssor io the Chapter VI, paras.
supervisor) runctions previously cxer- 1-16.
cird bv the Council of ihe Leaauc of
~atiois; -
but
(ii) in lawand in fact it did not succeed to Written statement,
those supervisory functions; Chapter VIL, paras.
and 43-64 and Chapter
VIII,paras. 1-78,read
with Chapter 1X. ANNEXESTO ORAL STATEMENTS 611
Source
(iii) moreover, even the Council of the Written statement,
League of Nations did not have the Chapter VII, paras.
power of unilateral termination of the 65-97.
Mandate.
(cl (1)Furthermore, the Generül Assembly Wriiten statement,
purporied to ïci on the basis of a Chapier XI. parils.
violation hv South Africil of its 1-3.read with
obligations in respect of the mandated ~hapter VI, paras.
territory and ils inhabitants, 1-16.
but
(ii) in fact and in law there was no Written statement,
justification for the assertion thath Chapter XI, paras.
a violation had occurred, 4-161.
and
fiii) no attempt was made at a fair and Ibid.
proper investigation of this assertion.
C. The Validityand Effecf of the Relevant
SecurifyCouncilResolufions
(1) The resolutions are invalid:
(a) since they were based on General Assem- Written statement,
bly resolution 2145 (XXI) which in Chapter V, paras. 6-15.
itself has no binding force;
(b) since they were not supported by the Written statement,
concurring voies of al1 the permanent Chapter III, paras.
members of the Security Council; 12-40.
(c) since South Africa was not invited in Written statement,
terms of Article 32 of the Charter to Chapter III,paras.
participate in the discussions preceding 51-55.
theiradoption.
(2) In any event the Court needs to consider Written statement,
whether the Republic of China was at al1
Chapter III, paras.
material limes a member of the Security 6-11.
Council as required by Article 23 (1) of the
Charter.
(3) Resolution 276 (1970)isfurthermore invalid- Written statement,
(a) since certain members of the Council Chapter m, para. 41.
should have ahstained from voting;
fb) it was not adooted in conformity with
the provisions o;fthe Charter andionse-
quently isulfra viresthe Security Council,
in particular:
ii) since for purposes of action in terms Written statement,
of Chapter Vil of the Charter, no Chapter V, paras.
determination was made that there 16-20.
existed in relation to South West
Africa "any threat to the peace,
breach of the peace or act of ag-
gression"; Source
(ii) since, as far as the powers under Written statement,
Chapter VI of the Charter are con- Chapter V, paras.
cemed, the Council did not act for the 32-45.
purpose of maintaining international
peace and secunty, nor was any
impartial and objective investigation
conducted in order to determine
whether the dispute or situation was
likely to endanger international
mace and security.
(4) In the alternative, und cvcn ifrcsolution 276 Written statement,
(1970)is not invalid. ils terms have no Içgally Chitpier V. paras.
hinding conseauences for Stato but are at the 46-64),
most rëcommëndatory in their effect. EXTRACT FROM THE REPORT CONCERNING THE
IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTIONS
1578 (XV) AND 1596 (XV), BY THE COMMITTEE ON SOUTH WEST
AFRICA (1961)'
Recommendotions:
..........................
"(2)The immediate institution of the United Nations' presence in South
West Africa;
(3) Removal of the present Administration from the Territory of South
West Africa, with effective and simultaneous transfer of power to the
United Nations or ta the indigenous inhabitants of the Territory."(GA,
OR, Sixteenth Sess., Supplement No. 12(A/4926).)
Extractsfrorn Debaresin the Fourth Cornmitteeduringifs 16th Session(1961):
Mr. Castafieda(Mexico):
"In general his delegation endorsed the conclusions and reconunen-
dations in the Conunittee's report. The Committee's basic recommen-
dation was that the Mandate entmsted by the League of Nations to the
Union of South Africa should be terminated, so that the administration
of the Territory could be assumed directly by the United Nations for a
period of lime with a view to eventual independence. As the Cornmittee
hod not examinedin detoil the problemof the legal groundsfor revoking
the Mandate, and asthat wasno doubra questionwhichwouldgiverise to
some debote, he wished ta give his country's views on that subject."
(GA, OR, Sixteenth Sess., 4th Comm., 1226th Meeting, p. 436.)
"It was frequently thought in the United Nations that any solution
which represented a real advance in dealing with a particular problem
was of a ~olitical nature. It was said that lawyen were basically techni-
cians -,hise principal mission was to elaboratë legïl arguments Io justify
alreïdy existing political positions and that law u,ar fundîrncntnlly con-
servative inasmuch as it tended to maintain thstafusquo and Io prevent
a radical change in the existing situation. For that riason most of the
progress made in the protection of dependent peoples had been achieved
throub ~olitical action and in many cases the possibilities of legal action
to chinie the existing situation had not kn kully cxplored. et it uas
ofrcn possible to usc lcgal machinery to alter situ~ti~n~which had become
unsatisfactory and it would certainly be worth while to explore the pos-
sibilities offered by international law to deal with the situation in South
West Africa.
So far al1 efforts had been confmed to persuading the South African
Government ta comply with its obligations under the Mandate, which
from the point of viewof international law was a treaty. When one parry
to a treaty did not comply with its obligations, the other party had two
alternative courses: to demand the fulfilment of the obligation, or to
See p.402,supro. ANNEXES '10 ORAL STATEMENTS 615
and il was obvious that if the South African Government continued to
administer South West Africa, there would be no political, economic,
social or cultural progress inChat international Territory. The juridical
arguments adduced by the Pretoria Government were acceptable only ta
its avowed accomplices, because that Government was completely indif-
ferent to the findings of the Court when those iïndings were contrary to
ils own desires. The fact that the Governments of Liberia and Etbiooia
had brought the question beforc the International Court of Justice cohd
not bean ohsiacle tu the Iiberdtii~nof the pcoplcs conccrned. since General
Assemblv resolution 1514 (XV) on the arantini of indevendence Io colonial
countrie; and peoples mu& aiply to them as-well as io al1others. In any
event, the Court could do no more than indicate what regime should be
introduced in South West Africa in accordance with the Mandate and
reaffirm theillegality of the attitude of the South African Government.
That would not bea substitute for the political decision which the General
Assemblv was entitled to take to Save the oeoole of South West Africa
from oppression, degradation and systematic extinction. The South
African Government's defiance would only be encouraged by weakness
on the part of the United Nations." (Ibid., p. 465.)
Mr. Zikrio (Afghanisran):
"His delegation was not opposed to the idea of revoking the Mandate,
but itconsidered that. the United Nations, in adopting the Declaration
on the granting of independence, had ipso facto revoked the Mandate
under which South Africa was occupying the Territory in question."
(Ibid., 1229th Meeting, p. 458.)
Mr. Taylhardar (Venezuela):
"His delegation agreed with the Committee on South West Africa that
the South African Government was unfit further to administer the Terri-
torv and that the General Assemblv should. as amatter of urnencv. under-
ta!& a study of the ways and means by which to terminate Guth frica an
administration over the mandated Territory. In his statement al the
1226th meetinp. the reoresentative of Mexico had advanced coaent leaal
arguments on that point which would be useful to the Fourth ~>mmitke
in reachina a decision on the revocation of the Mandate. Since the Manda-
tory ~ower had failed to comply with its obligations, the international
community could unilaterally revoke the Mandate and assume al1 the
rights and titles to the Territory al present held by the Republic of South
Africa. In the existing state of apdirs, however, the General Assembly
should carefully examine the legal, political and other consequences of
revoking the Mandate." (Ibid., 1231st Meeting, p. 472.)
Mr. Perris (Ceylon):
"Considering the question from the legal point of view, while he would
not presume ta add anything to the statement of the Mexican represen-
tative, he recalled the terrns of the advisory opinion which the Inter-
national Court of Justice had delivered on 11 July 1950. The question
arose whether the United Nations, as the legal successor to the League of
Nations, was competent to change the international status of the Terri-
tory unilaterally. In regard to that point, the advisory opinion had made
it clear beyond doubt that in law the United Nations was the residuary
legatee of the rights and obligations of the League of Nations, a status which was confirmed by Articles 79 and 80 of the Charter." (Ibid., p. 472.)
"According to the statements of Field Marshal Smuts, one of the chief
architects of the Mandates System, if a Mandatory Power abused the
trust reposed in it the League of Nations should be able 10 revoke the
Mandate. It had ken clear to the Committee on South West Africa that
the South African Government should no longer continue ta exercise
the Mandate because it had proved to be unfit to do so." (Ibid., p. 473.)
Mr. Anronowicz (Poland):
"For the United Nations ta continue voicing itr concem about the
fact that the South African Government refused to discharge ils duties
in the Territoiy would be tantamount to agreeing ta toleratethe existing
state of affain. The obvious course to follow was to deprive the South
African Government of its authority in South West Africa. The General
Assembly should therefore decide that further administration of the
Territory by South Africa was illegal; the United Nations would retain
ils responsibility for the Territory pending the establishment of an inde-
pendent State of South West Africa." (Ibid., 1231st Meeting, p. 474.)
Mr. Sioian (Romania):
"It was not a question of embarking now upon a study of the present
situation in andthe future of the Territory. That future had already been
determined by its legal statusand by the Charter.The course to be followed
was that set forth in General Assemhly resolutions 1514 O<V)and 1654
(XVi). The extraordinary state of tension in the Territory made it incum-
bent upon the United Nations ta do something immediately.
The United Nations had to out an end to the South~ ~ ~can Govern-~ -
ment's administration, which 'had Gome illegal with South Africa's
refusal to place the Territory under tmsteeship, as required by the Charter.
The first step to be takenwas that recommended by the Committee in
paragraph 164 of the report (A/4926), namely the immediate establish-
ment of a United Nations presence in the Territory, which in concrete
terms meant withdrawing the Mandate from South Africa." (Ibid., 1233rd
Meeting, p. 492.)
Mr. Cassou (Togo):
"ln the opinion of the Togolese delegation, the South African Govem-
ment had betrayed the Mandate that has been entrusted to it: it was
exploiting the ~crritor~ imteiiil<ifadministering it on the principle that
the interests of the inhabitants were paramouni; it uas making the inhaha-
tants ils slaves instead of promoting their economic, social. educational
and political welfare; it was practising apartheid where frkdom should
reign and its objective was the annexation of the Territory rather than the
latter's accessionto indeoendence. The Toaolese delegation endorsed the
conclusion containcd in.parilgraph 159 orthe reporÏ of the Coniniittcc
on South West Africa (A 4926) that the M;indatory Poacr. unresponsibe
to the appeÿls of thc Native no~ulation. the African community and the
intcrnat;onal community as a hhole, had follouedacourse of intirnaticinal
illegality which required that corrective measurcs should be instituted u,ith
a view ta protecting the lives and the legitimate rights and aspirations of
the wooles of South West Africa. The Toeoleie delesalion endorsed the
recokmendations which the Committee-on south West Africa had
accordingly put forward in paragraphs 162 to 164 of the same report,618 NAMIBIA (SOUTH WEST AFRICA)
recommended the immediate removal of the Dresent administration and
the transfer of al1powers to the people of the ~erritory, with the assistance
of the United Nations. The people of South West Africa had expressed
their wishes concemine indeoendence. which thev hooed would be safe-
guarded by the ~nited~ations. Undei resolution-1514 @Y), the General
Assembly had proclaimed the immediate abolition of colonialisrn. and
hence the recommendations of the Committee on South West Africa must
be given effect. To that end, the Assembly must declare the South African
Govemment unfit to administer the Territory and proclaim that South
West Africa would be an independent and sovereign State as soon as a
constitution had been drafted and democratic institutions established.
Lastly. the General Assemblv should setUD a committee of five or seven
members to ensure the impiementation of the recommendations of the
Committee on South West Africa." (Ibid., 1234th Meeting, p. 502.)
Mr. Brykin (USSR):
"In the view of the USSR delegation, the Committee should strongly
suDDort the recommendations made by the Committee on South West
.&&ka,particularly those appearing in paragraph 164 (a}(Z) ,3). (5) and
(6) of ils report (Al4926). It was convinced that, in accordance with the
Declaration on the granting of independence to colonial countries and
peoples and pursuant to the previous decisions of the United Nations on
the question of South West Africa, il was necessary: firstly, ta terminale
South Africa's Mandate over South West Africa immediately; and
secondly, to entrust the administration of South West Africa aospecial
commission composed of representatives of independent African States,
so asto ensure the avvlication during the comina year of the measures
proposed by the ~okittee on south West ~frka, with a view to the
Territory attaining complete independence before the end of 1962." (Ihid.,
1235th Meeting, p. 511.)
Mr. Edmonds (New Zealand):
"The 1950Advisory Opinion did not make it clear whether the United
Nations was itself competent unilaterally to alter that status. That was
a most delicate question. Suggestions had heen made that the General
Assemblv or the Securitv Council should revoke. sus~end or transfer the
Mandaté, or even declaie the Territory independen< The New Zealand
delegation endorsed the objective of self-determination and the eventual
assumption of separate national sovereignty by the people of South West
Africa if that should be their wish, but il couldsee1how il would help
for the Assembly simply to revoke or suspend the Mandate, even if that
proved legally possible, which was extremely doubtful. The practical dif-
ficullies would become even greater and the legal situation even less
satisfactory, for it was the Mandate that gave the United Nations the
solid legal basis for its supervision of the Temtory. It had also provided
the basis for the Court action which Ethiopia and Liberia were at present
actively prosecuting against South Africa. If as a result of that legal action
judgment were given against South Africa, and South Africa accepted it,
that would inevitably have profound effects on the policies followed by
that Govemment in the Republic itself as well as in the Mandated Terri-
tory. If, on the other hand, South Africa failed to comply with an adverse
decision in the International Court, the position would be different.
Ethiopia and Liberia would then have the right, under Article 94 of theCharter, ta have recourse to the Security Council. At that stage, no doubt,
the Council would find il most helpful to know ils precise powers with
regard to the transfer or revocation of the Mandate and there seerned
therefore to be sound sense in the ~ ~ ~~~-endation of the Cor~r-~tt~-~~ -
on South West Africa that the General Assembly should now arrange for
a study of the ways and means bv which South Africa's administration
of the Mandated Territory might 6e terminated.
The rnatter bristled with both legal and practical problerns. He felt
sure that the representative of Mexico, whose valuable contribution to
the debate would, he hoped, be circulated in full, would readily admit
that there wzre weighty arguments against the termination of the Man-
date." (Ibid., 1226th Meeting, p. 439.)PROPOSALS RELATING TO THE REVOCATION OF THE MANDATE
IN THE SPECIAL COMMITTEE ON THE SITUATION WITH REGARD
TO THE IMPLEMENTATION OF THE DECLARATION ON THE
GRANTING OF INDEPENDENCE TO COLONIAL COUNTRIES
AND PEOPLES'
lvory Coast:
"In the view of his delegation, the problem of South West Africa was not
onlv a iuridical one: it was also a colonial ~roblem. which the Special Com-
mit;= u,as a.ualified'to consider. The ~fricini were fully aiixre of the course
which events were taking in that area, of the factors drteriiiining those events
and of their im~lications for and repercussions on the African continent as a
whole. The tim; had come 10iake more effectiveaction thdn in the pdsi. The
United Sarions should no longer be content to seek to put an end to conllicis
once they had broken out. but should strive to prevent them, particularly when
it knew the origin of the danger. The origin of the Second World War was still
fresh in the minds of all. To prevent the recurrence of such a tragedy, South
West Africa must be removed from South Africa'scontrol. To enable the people
of South West Africa io obinin national independence, adîquate measures musi
be rnacted, such as the complete and early revocation of South Africd's Man-
date and the immediate and effective establishment of either an emerg-ncy~
force or an international volunteer corps. Those measures were al1 the more
essential in that they would have the effect of preventing the racist South
African Government from occupying South West Africa as it intended to do
even if the decision of the International Court of Justice was unfavourable to
it." (CA, OR, Twentieth Sess., doc. A/6000/Rev. 1, p. 139.)
"tn approaching the problem of how to secure rapid termination of the
Mandate, however. care should be taken not to repulse those whose support
was neceisary. The General Assembly would of course be competent to cancel
the Mandate if the claim that South Africa was violating it was validated. The
question had, however, been brought before the International Court of Justice
by Ethiopia and Liberia, and it would be contrary to the general principles
of law for a political organ likethe General Assembly to take a decision pending
the Court's judgment, which was expected before the convening of the twenty-
first session of the General Assembly." (Ibid.Twenty-first Sess., doc. Al63001
Rev. I, p. 273.)
Iran:
"In accordance with the Declaration on the Granting of Independence to
Colonial Countries and Peoples, the United Nations should do ils utmost to
revoke the Mandate and thus secure the independence and freedom of the
people of South West Africa." (Ibid..p. 274.)
' See p. 406, supra. ANNEXES TO ORAL STATE.UENTS 621
USSR:
"His Government was &xiously awaiting the decision of the International
Court of Justice on the question, but the legal aspect was one of secondary
imoortance. The main issue was oolitical: the-termination of the Mandate and
the accession of South West ~fiica to independence, in accordance with the
provisions of General Assembly resolution 1514 (XV)." (Ibid., p. 276.)
Venezuela:
"Again, it had often been claimed that the problem was one of law. That
was a pretext used by the administering Power to gain time and hold up such
measures as the United Nations might take.
As the Venezuelan delegation had already stated at the General Assembly's
twentieth session, it was the duty of the Special Committee to recommend to
the General Assemhly means and procedures calculated to put an end to the
ahnormal situation prevailing in the Territory and to give effect to General
Assembly resolution 1514 (XV)." (Ibid., pp. 276-277.)
. .
Indin: ..
"Some members had considered that it was not proper for the Special Com-
mittee or for the United Nations to discuss the question of South West Africa
because it was being considered hy the International Court of Justice. Such
an argument was intended to divert attention from the support given by the
tradingpartnersof South Africa. The International Court of Justice wasdealing
only with certain legal aspects of the problem, not with the social, political
and economic aspects; it was not expected to rule on the Temtory's political
future. The United Nations was. entitled, and indeed morally obliged, to
examine the situation and to study wavs of transferring uower to the indinenous
people. The Special Committee's own iask was to ensuÏespeedy implemeitation
of the Declaration on the Granting of Independence to Colonial Countries
and Peooles. and his dele-ation honed that it would not be deterred from its
aim." (~bid.,p. 278.)
Poland:
"The South West African question was a challenge to the conscience of
mankind. In his delegation's opinion, there could he no exception regarding
the im~lementation of General Assemblv resolution 1514 O<V)and the United
~ations xhould nst alloii lepal tcchniciliticr IO pre\.ent the '&ople of South
West Afrosafroni artaining indspendence. Ihc Spectal Comniirtcc should rcdl17e
thiit South Afrisd and il\allies ncre domg thcir Ltniost IO consolidnie iheir
industrial and military empire in the southcm part of Africa and to perpetuate
the exploitation of Africans. His delegation therefore considered that the
General Assemhly and the Special Committee should agree upon concrete
measures to divest South Africa of its Mandate and should demand the with-
drawal of al1military bases and personnel from South West Africa. It would
support any resolution calling for the transfer of Dowerto the oeoole of South
~eit Africa, in accordance with the Declarationon the ~ranting-of Indepen-
dence to Colonial Countries and Peoples. He therefore suggested that the Special
Committee should recommend that the General Assembly take the necessary
measures to divest South Africa of its Mandate over South West Africa and
cal1 upon the Security Council to consider the steps to be taken in order to
effect the transfer of power to a representative Govemment established as a
result ofgeneral elections held under the supervision of the United Nations."
(Ibid., p. 279.)622 NAMIBIA(SOUTH WEST AFRICA)
Tunisia:
"The representative of Tunisia emphasized that the question of South West
Africa was a specifically colonial problem which came within the purview of
the Special Committee and the General Assembly. The people of that Territory
had to be freed from the grasp of a State which, althouah a Member of the
Unitcd Nations, coniinued~io oppress them poliiically, asiell a.;economically
and sùcially. despitc al1the recommendaiionr <ithe United Salions. The situa-
tion ~revailina in South West Africa was unworthy of modern times and al1
men had a dGy to put an end to it. The legal arguments adduced by certain
delegations, which had taken refuge behind the final decision to be taken by
the International Court of Justice, should not stand in the way of the recom-
mendations made by the majority of States Members of the United Nations
that the Mandate for South West Africa should be withdrawn from South
Africa." (Ibid.,p. 279.)
"Heconridered thlit thejudgment of the Internlitional Court of Justice rclated
to only one aspect of the question and ihat ilwas noul t~mcto decide on the
substance of the matter, namely, the question of releasing the people of South
West Africa from colonial domination once and for al1 by ending South
Africa's Mandate for that Territory." (Ibid.p. 280.)
Ivory Coasr:
"Despite the fact that one aspect of the question was king examined by the
International Court of Justice he considered that General Assembly resolution
1514 O<V)should be aoolied to that Territorv without delav. .e ae~-ed with
the re~re~~ntativesof ~énin~rk,Vcncnicla aid Xlali thai the Mandate should
be uiihdrau,n froni South Africa as soon as théIntzrnït~onal Court of Jusiice
had handed down its judgment." (Ibid.,p. 280.)
See also pages 745 to 746 of Chapter XI of OUI written statement (1). REPLY BY MR. STEVENSON TO QUESTIONS BY JUDGES SIR
GERALD FITZMAURICE, JIMENEZ DE ARECHAGA AND MOZOROVL
Firsr Questionof JudgeSir CeraldFitzrrrarrriceZ
Question: "It has been maintained on behalf of the United States that funda-
mental breaches of a contract by one party entitle the other to put an end to it.
1would like to know how, in your view, exactly this would work in practice.
For instance, it is evident that if a party could put an end to aract merely
by alleging fundamental breaches of il, and despite the denials of the other
party, whether on the facts or as regards the existence of the obligation, there
would alwavs be an obvious and easv wav out of contracts which one of the
parties fouid onerous or inconvenient. ~hat safeguards would you institute
in order to prevent this, and how would or should such safeguards apply in the
international field. in the relations between States or betweenat tes aninter-
national organizations?'
Reply: The doctrine of material breach as a basis of terminating a contract
is a doctrine of municioal contract law which has been reflected in internalional
treaty law. ~bviously'not every breach of a contract would justify the other
party in terminating the contract but only a breach of such significance as, in
the words of Article 60 .3. of the Vienna Convention on the Law of Treaties.
would constiiutc a "violation ofd provisiun es>entialto ihc üccurnpli~hmentof
theobjeci or purpoie i~fthc trcïis". If the vdrty allepinp brelich \iere hçld byan
international tribunal not to have established the material breach. theter-
mination would not be legally justified and a party which had terminated the
treaty on the basis of an alleged breach would be liahle for an unjustified
repudiation of a contract. The fact that in the international as opposed to a
municipal legal system the other party cannot he assured of bringing a case
involving material breach before an international tribunal except where hoth
oarties have accented the CO~~U~SON iurisdiction of an international tribunal
is a problem relaiing to the efficacyofinternationai lawand institutions gener-
ally and not especially to the problem of the material breach doctrine. The
best safe-uardaea-nst misuse-of the doctrine of material breach would be
ihrough ihc chieniion (if ihc ~.<~mpul\or)j.urisdiciion of the Iniernaiional
Couri of Jusiicc or other üppropriaie inicrnaiion~l tribunals over lcgïl disputes
arising between States or-between States and international organizations, at
least with respect to those disputes which relate to the interpretation, appli-
cation and termination of international agreements.
Second Question of JadgeSir CeraldFitzrnoirrice
Qrrestion:"1 would be glad to know whether, after hearing or reading what
has ken said on behalf of South Africa at supra, pages 367-372,445-451, and
453. it is still maintained on behalf of the United States that the former
Mandaie for Palestine uiic unil3ierally terminated b) the Assembly without the
conceni of ihe miindatory power and, if not, what precircly is supposed Io be
the relevance of the Palestine case to the present one?"
' See p. 506,supra,and Correspondenee,No. 99, p. 679infra,
See p. 506, supra.624 NAMlBlA (SOUTH WEST AFRICA)
Reolv: We wish Io noint out that the Palestine case is referr~~~.- .. ~--~
sectiin-of our writtensiitement (PartII C,hapter 1,Section VI, pp. 860through
863 (1)) which shows that the United Nations succeeded Io the League of
Nations supervisory powers including the right to terminale a mandate. That
the League of Nations had the power to terminale the rights of a mandatory
is established, we submit, in the preceding Section of Our written statement
(Section V. on. 857 throuph 860 ml.
' The ~o;;t'will secthüïprincipil iiuthority cited In Section VI ofour urittcn
statenient in support ol'the proposition Ihat the LniteJ Nations 3ucccidcd to
the oowers of the League is the advisorv o~inions of this Court~-~~..~.ine the
~ntehationolStorus 07 South West~frico,. VotingProcedureand the ~eoiin~s
of Peririoners.However. those opinions were not rendered until 1950. 1955
and 1956resoectivelv
The practice of the United Naiiom in the Palestine case. berore rhr: Inter-
national Court of Justice hîd firmly established ihc proposition that the Ciencral
Assembly had succeeded to the responsibilities of the League for mandates,
is early evidence that the General Assembly considered itselfcompetent to deal
with the mandate system formerly supervised by the League of Nations. In
the Palestine case. certain members of the United Nations. both kfore~-~~ and
=fier rhe adoption of rcsolution 181 (11). challengcd the competcnce of the
Cicneral r\ssembly to xdopt ü rcsoluiion rcgarding the disposiiion of the
nianrlatcd territorv. Houever, the oïeruhelming niajority,in îdopting reso-
lution 181(Il), supportcd the vie\\ tliül the Generîl Asscmbly had that contpe-
tsnce. \Ve believe, theref~ire,that thc Palestine cîxis relevant IOthe Kamibiî
caseas an early mdnifestdtion of the General Assembly's eyerciie of the super-
visory aurhoriry orrr niandates furnirrly lodged in the League of Sations. As
the mandatory power relinquished the mandate before the date specified in
paragraph I of the planfor partition recommended in the resolution, the issue
of non-compliance didnot arise.
Third Questionof JudgeSir Cerald Fitzmourice '
Question:"ln the opinion of the United States Governmenr is there any rule
of customarv international law which. in general. obliges States to av~ly
sanctions against a State which has acted;or is 'acting, illegally-such-ai
cutting off diplomatic, consular and commercial relations with the tort-feasor
State? If not, in what manner would States become compelled so to act-not
merely by way of moral duty or in the exercise of a faculty, but asa matter of
positive legal obligations?"
Reply:It is the opinion of the United States that there is no rule of customary
international law imposing on a State a duty to apply sanctions against the
State which has acted, or is acting, illegally. However, under the Charter of the
United Nations, the Security Council has the power to decide that member
Statesshould apply sanctions against the State which actsincertain illegal ways.
Thus, should the Security Council detennine that an illegal act hy a State
constitutes "a threat Io the peace,breach of the peace,or act of aggressioo", it
would have a duty under Article 39 Io "make recommendations, or decide
what measuresshall be taken in accordance with Articles 41 and 42, to maintain
or restore international veace and security". Whenever the Security Council
makes bucha determination and decidri thai diplomatic. consular and commcr-
cial relations rhall k cut off in accordanîe with Article 41 of the Charter. al1
hlemkrs of the United Nations ha\'c the duty IO üpply such nieasures.
Seep. 506,supra. ANNEXES TO ORAL STATEMENTS 625
Questiorrsof JudgesJiménezde Aréchaga and Morozov '
Quesfioirof JudgeJitnérrerde Aréchaga: "1 refer to your discussion of the
Court's jurisdiction and the question of voluntary abstention. Does your
statement imply that the position of your Government is to ask the Court
to determine, by implication, that paragraph 3 of Article 27 of the Charter,
and not paragraph 2, applies ta any decision of the SecurityCouncil requesting
an advisory opinion?'
Questionof JudgeMorozov: "Does the representative of the United States
of America not think that it is clear from Security Council resolution 284
(1970) that in the process of adoption of that resolution the Security Council
was guided by the provisions of paragraph 3 of Article 27 of the Charter of
the United Nations?
Would it be right to conclude from the statement made on behalf of the
United States of America that the application of Article 27, paragraph 3, of
the United Nations Charter in the case of requests made by the Security
Council for advisow opinions of the International Court of Justice is based
on the Charter itself, and coincides with the uncontested interpretation con-
tained in the following well-known documents:
1. Record of the third Plenary Meeting of the Yalta Conference, of 6 February
1945,at which the United States Secretary of State, Mr. Stettinius, said that:
"The following decisions relating ta peaceful settlement of disputes
would also reauire the affirmative votes of seven Members of the Securitv
Council including the vdtes of al1the permanent members ...
IV. Whether the legal aspects of the matter before it should be referred
by the Council for advice to the International Court of Justice; ..."
(Foreign Relations of the UnitedStates,DiplomaticPapers, TheConferences
or Malta and Yalta. 1945. P. 663).
2. Siatenienr hy the Deleg~iions uf the Fiiur Sponsoring Covcrnmcnt~ on
Voting I'ruiedurc in the Security Cuuncil. of 7 Junc 1945.dcvuicd to the
uuçstionnltirc aiiached tu Mernoriinduni <ifSuh-Co~nriiitieeIII IB. Securtts
i'oun;il, of the SJn tr.inciici> Conferencc (p~rtii~l~rlyQuestion 13).kliich
confirmed that ai the YiiltltConfercnce the Ihds of Govcrnnient p3rtici-
nzttineücccnied ihc siicrccsiionof the United St3tes of America iuit uuuied.
khichsuggéstion later-& reflected also in the Statement by the ~elegations
of the Four Sponsoring Governments, Part 11(see UNCIO docs., Vol. II,
00. 704 and 713): see also the Report to the President on the results of the
sin Francisco Conference by the chairman of the United States Delegation,
the Secretary of State, page 71 onwards.
Reply fo Qiresfionsof JudgesJiménrzde Aréchaga and Morozov
These auestions raise the issuewhether a decision by the Security Council to
reque\t an ;idviwry apinion a proicdur;il niaiter governed by Article 27 (2)
or a rnxtter governed by Arti~lc 27 (3,.The orltl \taienient, which I msde on
heh3lrof the United Siaie, (~apro,pp. 497-5UilJ.uas iiierely intendcd tu rebut
an ~ntcrprctation oi,\riicle27(3) adv.lnsed by the Guvernnicni ofSouth Africa,
u hichu.d\ compleiely oppsrcd io a gcner~llyacsepied Cniicd Naiionspriictice.
Our statement was not intended to imply any view as ta which paragraph
Sec pp. 507 and 508, supra.626 NAMlBlA (SOUTH WEST AFRICA)
of Article 27 is controlline. or Io sueeest that this is a auestion with which the
Court bhould concern ilseif in this Gel Indeed, .rrebelieve thai our statemeni
esinblishes ihat the Security Council's reauest for an advisory opinion would be
equally valid no matter which paragraph of Article 27 were d&med to apply.
There is accordingly no reason for the Court to undertake to answer this long-
standing and complex question.
Procès-verbaux des audiences publiques tenues au Palais de la Paix, La Haye, le 27 janvier, du 8 février au 17 mars et le 21 juin 1971, sous la présidence de sir Muhammad Zafrulla Khan, président