INTERNATIONAL COURTOFJUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH 'WEST AFRICA CASES
(ETHIOPIAv.SOUTH AFRICA;
LIBEPJAv.SOUTH AFRICA)
VOLUME VI1
COUR Ii4TERNATIONALDEJUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES D1J SUD-OUEST AFRICAIN
(ÉTHIOI~IC.AFRIQUE DU SUD;
LIBÉRIA cAFRIQUE DU SUD)
VOLUME VI1 The present volume contains the Oral Arguments relating to the
Preliminary Objections in the Soufh WestAjvicacases. The proceedingsin
these cases, which were entered on the Court's General List on 4 Novem-
ber 1960 under numbers 46 and 47, were joined by an Order of the
Court of 20 May 1961 (SouthWest Africa, Orderof zo May 1g6r, I.C.J.
Reports1961, p. 13).WOJudgments have been rendered, the first on zr
December 1962 (South West Africa, Prelinainary Objectiolzs,Jicdgment,
I.C.J. Reports1962, p.:<rg),and the second on 18 July 1966 (SouthWest
Africa, SecondPhase,Judgmenf, I.C.J. Reports 1966, p. 6).
The page references originally appearing in the pleadinp.have been
altered to correspond mith the pagination of the present edition. Where
the reference is to another volume of the present edition, the volume is
indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume reproduit les plaidoiries relatives aux exceptions
préliminaires dans les affaires du Sud-Ouest africain.Ces affaiont été
inscrites aurôle généralde la Cour sous les noB46 et 47 le 4novembre
1960 et les deux instances ont étéjointes par ordonnance de Ia Cour le
20 mai 1961 (Sud-Ouest africain, ordonnance du 20 maz 1961, C.I.J.
Recued 1961, p.13). Elles ont fait l'objet de deux arrétç rendusle 21
décembre1962 (Sud-Ouestafricain, exce#tionsfire'Eiminairesa,rrêtC, .J.
Recueil 1962,p. 319) et le 18 juillet (Sud-Ouestafricain, deuxiime fhase,
arrêt ,.IJ. Recueil 1966,p.6).
Les renvois d'un ménioire à l'autre ont étémodifiéspour tenir compte
de la pagination de la présente édition. Lorsqu'il s'agit d'un renvoi
à un autre volume de 1s.présenteédition,un chiffre romain gras indique
le numérode ce volume.
La Haye, 1966. CONTElJTS - TABLE DES MATIÈRES
. ,
PAI2TII. ORAL ARGUMENTS
DEUX1:ÈMEPARTIE. PLAIDOIRIES
. S1:CTIONA. ORAL ARGUMENTS
CONCERNiNG THE PRELIMINARY OBJECTIONS
SECTION A. PLAIDOIRIES
RELATIVES AUX EXCEPTIONS PROLIMINAIRES
MINUTES, PROCAS-VERBAUX
page
Public heaiings held from 2 to22 October 1962. ........ 4
Audiences publiques tenues du zau 22octobre 1962 ...... 5
Public~hearingheld on 121December 1962 ........... 16
Audience publique tenue le 21 décembre1962 ..... ... 17
I. Argument of Dr. verLoren van Themaat (South Africa), 2x 62
Introductory statement and recapitulation of Preliminary Ob-
jections. ........................
Soin general. ......................tus of South West Africa
The Court is free to rrconsider or depart from previous Advisory
Opinions ............ : ...........
Compromise aspect of arrangement whereby C Mandates were
established ......................
Irrelevance of the question of annexation..........
2. Argument of Mr. de Villiers (South Africa), 2x962 .....
Analysis of rival contentions in regard to First and Second
Preliminary Objections .................
Principles of treaty interpretatio.............
Effect of dissolution of the League of Nations on pre-existing
relationskips in rel;ard to the Mandate..........
- The Court's 1950 Advisory Opinionshould be reconsideredin the
light of new inforniation ................
Mandatory's volunte,ry undertaking to report and account to
the Councilof the League of Nations became incapable ofper-
South Afnca never consented to submit to United Nations
supervision regarding the Mandate ............
South Afnca made ilclear that it had no intention of entenng
into atrusteeship agreement ..............
The Resolution adopted at the final Assembly of the League of
Nations contemplated other arrangementsbetween the United
Nations andthe Mandatory Powers ...........
In negotiations between South Africa and the United Nations
there was no agreement.for United Nations supervision. ..X SOUTH WEST AFRICA
Page
Analysis of the reasoning in the Court's1950 majority opinion
Evidential data not before the Court in Kg50 ... . . . . . . 92
The question whether the obligation to report and account 97
survived the dissolution of the League of Nations . . . . . 106
Refutation of the "principle of succession" in regard to super-
visory functions . . . . . . . . . . . . . . . . . . . . IIO
Thfunctions to the organized international communityisor. . . . 115
No de of custornary international latv supports the "succes-
sion" argument . . . . . . . . . . . . . . . . . . . . 122
Refutation of the assertion that an ovenvhelming number of
States Members ofthe United Nations consider the Mandatory
accountable to the United Nations . . . . . . . . . . . . 124
Effect of dissolution of the Leape of Nations upon the Mandate
Distinction between continued operation of the Mandate as as. . 134
treaty or convention and continued existence of the Mandate
as an objective institution . . . . . . . . . . . . . . . 144
Effect of dissolution of the League of Nations in regard to
Article 7 of the Mandate . . . . . . . . . . . . . . . . 156
Judicial supervision was not a key feature of the Mandates
Equation of League of Nations membership with membership of . . 177
the organized international community is fallacious . . . .
The "principle of effectiveness" cannot be invoked to imply tacit 179
intent . . . . . . . . . . . . . . . . . . . . , . . . 180
The "cany-over" principle is not applicable to Mandates . . . 188
Summary of contentions . . . . . . . . . . , . . . . . . 198
3. Argument of Mr. Muller (South Africa), 10-11 x 62. . . . . . 200
Third Preliminary Objection. . . . . . . . . . . . . . . . ZOO
Sense of the word "dispute". . . . . . . . . . . . . . . . zoo
Possession of legal rights or interests essential to locusstadi. 201
There is no dispute as envisaged in Article 7 of the Mandate 205
ThesupervisionNinregard to the Mandate.prov. . . . . . . . . . ZIO
Neither the Covenant nor the Mandate provides for enforcement
of the Mandate through contentious proceedings . . . . . . 218
The Mavronzmatiscase . . . . . . . . . . . . . . . . . . 224
The Court's jurisdiction was not mearit for supervision in the
interests of inhabitants of mandated territories . . . . . . 227
The rnaterial interests of Applicants are not involved. . . . . 237
When does a dispute become justiciable? . .. . . . .. .... . . . 239
Subject-matter of the alleged dispute. . . . . . . . . . . . 240
Restrictions on the possibility of negotiations. . . . . . . . 241
Alleged violation of substantive provisions of the Mandate . . 250
Submissions by Dr. verLoren van Themaat (South Africa). . . 259
4. Argument of Mr. Gross (Ethiopia and Liberia), 15x 62 . . . . 261
Introductory statement. . . . . . . . . . . . . . . . . . 261
5.Argument of Mr. Moore (Ethiopia and Liberia), 15 x 62 . . . 264 CONTENTS XI
Page
Evidence of wishto settle dispute by rule of ....... 264
Historieal survey of Mandate............... 265
Development of the Trusteeship System .......... 269
The General Assemk~ly'srequest for an Advisory Opinio... 275
The Committee on South West Africa ........... 276 .
The Second Confereiiceof Independent African States.... 279
Applications to the Courfileon 4 November 1960 ..... 279
6. Argument of Mr . Grass (Ethiopia and Liberia) (continued),
15-17 x 67 ...................... 281
The gulf between th.positions of the Parti........ 281
The alleged "new fat:ts"................. 283
Reçpondent's denovd)argument O................. 300
AppLicants'locusstmqdi.................. 33'6
The theory of "partial lapse............... 322
Reply to Third and 'Fourth Objection........... 323
Subrnission of Governments of Ethiopia and Liberi..... 326
Questions put to the Parties by Members of the Cour.... 326
7. Reply of Mr.de ViUjers(South Africa)19-22 x 62 ...... 329
References to earlier statemen.............. 329
Recapitulation of new information submitte........ 331
The "general considerations" underlying the Court's Opinion in
The principleof.res judicata is not apphcable to a previous348
Advisory Opinion ................... 35'3
RepIy to Applicants' arguments regarding the analysis of the
1950 Opinion ..................... 351
Reply to Applicants' contentions concerning the de novoargu-
Applicants' contentions concerning "succession" and "carry-354
over" are not sup~iortedby any arguments on the rneri. . 355
8. Rejoinder of M. Grcçs (Ethiopia and Liberia22 x62 ....
Applicants havenot atternpted to introduce matters of a tenden-
tious. political or motiona alna............ 358
Respondent's request for reconsideration of the 1950 Advisory
Opinion is not çuplxirtby "new facts" or "new arguments"
The Court is invit-:Oundertake an eçsentiallyjudicial t.s. 36 58
g. Answers to questionsiput by Members of the Court22x 62 . . 369
Dr.verLoren van Themaat (South Africa) ......... 369
Al.de Villiers (South Africa............... 369
Mr.Gross (Ethiopia ;mdLiberia) ............. 379
Reservation of right to submit conclusionby..Ethiopia and 382
Liberia........................ 382 PART II
ORAL ARGUMENTS
PUBLIC HEARINGS
held aithe PeacePalace, The Hague,
from 2 to2;:Octoberand on21 December1962,
(Prelzminary Objections), the President, MY. Winitiarski,$residing,
and from 15March to14 July,20 Se$temberto15 November
and 29 November 1965, 21 March and on 18 July 1966 (Merits),
thePresic!ent,Sir Percy Spender, presiding
:DEUXIÈME PARTIE
PLAIDOIRIES
AUDIENCES PUBLIQUES
tenues au I'aEaisla.Paix, LaHaye, du 2 au
22 octobreet 21 décembre1962 (exceptionspréliminaires),
sous lafirésidencede M. Winiarski, Président,
etdu rgmars au 14jui,!M1965,du 20 septembreaurg novembre1965,
le29 novembre 1965,le 21 mars 1966 et le 18jui2le1966 (fond),
sousZaprésidencede sir Percy Spender, Président SECTION A
.
ORAL ARGUMENTS CONCERNING
THE PRIELIMINARY OBJECTIONS
PUBLIC HEARINGS
held fro2 to22Octoberand on21December 1962,
thePres;ident,MY. Whiarski, presiding
SECTION A
PLAIDOIRIES CONCERNANT
LES EXCEPTIONS PR~LIMINAIRES
AUDIENCES PUBLIQUES
tenuesdu2 (EU22octobrelLe21 décembr1962,
sousZa+résidencedM. Winiarski,Président4 MINUTES
MINUTES OF THE HEARINGS HELD FROM 2 TO
22 OCTOBER AND 21 DECEMBER 1962
YEAR 1962
THIRTY-FIFTH PUBLIC HEARING (x 62, 4 p.m.)
Present: President WINIARSKI; Vice-President ALFARO; Judges
BASDEVAN T,DAWI, MORENO QUINTANA W,ELLINGTO KNOO,SPIRO-
POULOS, Sir Percy SPENDERS , ir Gerald FITZMAURIC KEO, RETSKY,
TANAKA BU, STAMAN YTEIVERO JESSUP,MORELL SIi;r Louis MBANEFO,
The Honourable J. T.VAN WYK, Judges ad hoc; M. GARNIER-COIGNET,
Regisirar. 1
Also presea:
For theGovernmeatsof Et&io$iam?Liberia:
The Honourable Ernest A. G~oss, Member of the New York Bar,
as Agentad CounseE:
assistedb:
The Honourable Edward'R. MOORE A,ssistant Attorney General of
Liberia,. .
Mr. Leonard S. SANDWEISS M,ember of the New York Bar,
as Coulasel.
For theGovernmentof the Republic of South Africa:
Dr. J. P. VERLORE VNN THEMAAST , .,Law Adviser to the Depart-
ment of Foreign Affairs, as Agent;
Mr. Ross MCGREGOR D,eputy State Attorney, as Additional
Agent;
Mr. D. P.DE VILLIERS S.,C., Member of the South African Bar,
Mr. G. VAN R. MULLER S,.C., Member of the South African Bar,
asCounsel;
Mr. J. S. F. BOTHAD, epartment of Foreign Affairs, as Advisev;
Mr. F. D. TOTHILL D,epartment of Foreign Affairs, as Secretary.
The PRESIDENT opened the heanng and announced that the Court
was assembled to deal with the dispute between Ethiopia and Liberia
on the one hand and the Republic of South Africa on the other
concerning South West Africa.oceedings in these caseswere instituted
by two Applications filed in the Registry on 4 November 1,ne by
the Government of Ethiopia and one by the Government of Liberia.
Time-limits for the filofthe first pleadings were fixed by an Order
of 13 January 1961.Within the time-limit fured by the Court for the
filing of theounter-hlemorid of the Government of the Republic of
South Africa, that Government fited certain Objections to the jurisdiction
of the Court. The proceedings on the merits were accordingly suspended
and a time-limitwas fixed within which the Governments of Ethiopia
and Liberia might present written statements of their Observations and
Subrnissions on the Objections.se Observations were filed within the
time-limit prescribed and thee was then ready for hearing.
Since the Court does not include upon the Bench any judge of the
nationality of the Applicants or of the Respondent, the former and the
latter indicated their intentiavaithemselves of the right conferredPROCÈS-VERBA~JX DES AUDLENCESTENUES DU 2
AU 22 OCTOBRE ET LE 21 DECEMBRE 1962
ANNÉE 1962
TRENTE-CINQ~JIE ÉAENCE PUBLIQUE (2 x 62, 16h)
Présefzts: M. WINIARSKI,Présidefl&;M. ALFARO,Vice-Présideltt;
RIM. BASDEVANTB , AIIAWI~,IORENOQUINTANAW , ELLINGTON KOO,
SPKROPOULO sr,Percjr SPENDER,sir Gerald FITZMAURICE M, M.KO-
sir Louis MBANEFO ,U,T.J.NT. VAN RWYK,Juges ad hoc; M. GARNIER-es;
COIGNETG , refier.
P~ksentségalemen t
Poztr leGouvernementséthiopielzet libir:en
M. Ernest A, GROSS,Membre du barreau de New York, comme agent
et conse;l
Assistépar:
M. Edward R. MOOR:E A,ttorney GeneraZadjoint du Eibéria,
M. Leonard S. SANDTVEISM S,embre du barreau de New York,
commecofiseils.
Pour le Goecvernementud-africai:
Dr. J. P. VERLOREIJ VAN THEMAATS ,.C., conseiller juridique du
département des Affaires étrangères,omme agent;
hl.Ross MCGREGOR A',taAttorneyadjoint, commeagentsup$lémentaire;
RI.D. P. DE VILLIER:;, .C.,membre du barreau d'Afrique du Sud,
M. G. VAN R. MULLERS , .C.,membre du barreau d'Afrique du Sud,
comme conseil;
M. J. S. F. BOTHA,du département des Affaires étrangères,comme
conseiller;
M. F. D. TOTHILL,du département des Affaires étrangères, comme
secrétaive.
Le PR~SIDENTouvre l'audience et annonce que la Cour se réunit
pour examiner le difEérend entre 1'Ethiopie et le Libéria d'une
part et la République sud-africaine de l'autre au sujet du Sud-
Ouest africain. Ces instances ont étéintroduites par deux requêtes
déposées au Greffe le4 novembre 1960, l'une du Gouvernement de
1'Ethiopie et i'autrdiiGouvernement du Libéria. Les délaispour le
dépôt des premières piéces de la procédure écriteont étéfixéspar
ordonnance du 13 jan\~ier 1961. Dans le délai fipar laCour pour le
dépôtdu contre-mémoiredu Gouvernement de la République d'Afrique
du Sud, cegouvernemelit a présenté certainesexceptià lacompétence
de la Cour. En conséqi~ence,la procédure sur le fona étésuspendue
et un délaiimparti aux Gouvernements de 1'Ethiopieet du Libéria,pour
présente; leurs obser~ations et conclusions sur les, exceptions. Ces
observations ont étécléposéesdans Ie délai prescrit et l'affaire s'est
trouvée en état d'êtreplaidée.
La Cour ne c0mptan.t pas sur le siégede juges de la nationalité des
Parties demanderesses etde la Partie défenderesse,les unes et l'autre
ont notifiéleur intention de faire usage du droit préàul'article 3r,6 MINUTES
by Article 31, paragraph 3,of the Statute. Byan Order of 20 May 1961
the Court, considering that the submissions of the Applicants were,
except in a few minor respects, ideiitical and that accordingly they
were in the same interest, joined the proceedings instituted by the two
Applications and fixed a time-limit within which the Government of
Ethiopia and the Government of Liberia, actingin concert,might choose
a single judge ad hoc.
The Govemments of Ethiopia and Liberia have designated Sir Louis
Mbanefo, Chief Justice of the High Court, Eastern region of Nigeria,
and the Government of the Republic of South Africa has designated the
Honourable Jacques Theodore van Wyk,Judge ofthe Appellate Division
of the Supreme Court of South Africa.
Article 20 of the Statute of the Court prescribes that every member
of the Court shall, befotaking up his duties, makea solemn declaration
in open Court that he will exercise his powers impartialand conscien-
tiously. The President called upon Sir Louis Mbanefo and Mr. Justice
van Wyk to make this solemn declaration.
Sir Louis MBANEF and Mr. Justice VAN WYKmade their declarations.
The PRESIDENTIaced on record the solemn declarations just made
by Judge Sir ~ouis Kbanefo and Judge van Wyk and declared them duly
installed as judges ad hoc for the purposes of the present case.
The President regretted toSay that Judge Cbrdova, who is prevented
by the state of his health from being present at The Hague, would be
unable to sitin the present proceedings.
He noted the presence in Courtof the Agents of the Parties and their
Counsel and declared the oraI proceedings open.
He calIed upon the Agent for the Government of the Republic of
South Africa.
Dr. VERLORE VAN THEMAA mTade the speech reproduced in annexl
and asked the President to cal1upon Mr. de Villiers.
The PRESIDENcT ailed upon Mr. de Villiers.
Mr. DE VILLIER began the speech reproduced inannex2.
The Court roseat i30 $.m.
(Sigaed) B.WINIARSKI,
President.
(SignedlGARNIER-COIGNET,
Registrar.
THIRTY-SIXTH PUBLIC HEARING (3x 62, 10.30 a.m.)
Presenl: [See hearing ofzx 62; Vice-President Alfaro waç absent.]
The PRESIDENo Tpened the hearing and stated that Vice-President
Alfaro would be unable to be present, for reasons of health. He called
upon Mr. de Villiers.
Mr. DE VILLIERb Segan the speech reproduced in annex 3.
(The hearing was adjourned from 12.50 p.m. to 4 p.m.)
Mr. DE VILLIERcSontinued the speech reproduced in annex +.
TheCourt rose ai6$.m.
[Signatures.]
lSee pp.20-23. See pp. 36-64.
*See pp.29-36, I + See pp. 64-76.paragraphe 3, du Statut. Par ordonnance du 20 mai 1961, la Cour,
considérant que les conclusions des Parties demanderesses étaient, sauf
sur quelques points mineurs, identiques et que dés lors eues faisaient
cause commune, a joini les instances introduites par les deux requêtes
et afixé ledélaidans lequel le Gouvernement de 1'Ethiopie et le Gouver-
nement du Libéria potlrraient désigner d'un commun accord un seul
juge ad hoc.
Les Gouvernements cle1'Etkiopie et du Libériaont désignésir Louis
Mbanefo, Chie/Justice de la High Court de la régionest de la Nigéria,
et le Gouvernement sud-africaina désignél'Honorable Jacques Théodore
van Wyk, juge à l'A+@dEakDivisiort de la Cour suprêmed'Afrique du
Sud.
L'article20 du Statut prescrivant que tout membre de la Cour doit,
avant d'entrer en fonci:ions, prendre en séance publique l'engagement
solennel d'exercer ses fonctions en pleine impartialité ettoute cons-
cience, le Président invite sir Louis Mbanefo et M.van WyA prononcer
cette déclaration.
Sir Louis MBANEFO et M.VAN WYKprononcent leurs déclarations.
Le PRESIDENT prend acte des déclarations qui viennent d'être pro-
noncéespar sir Louis Moanefo et par M.van Wyk et les déclare installés
en leurs fonctions de jugead hocen la présente affaire.
Le Président a le regret d'annoncer que M. Cdrdova, juge, empêché
parson état de santé devenir à La Haye, ne siégerapas en cette affaire.
Il constate la présencà l'audience des agents des Parties et de leurs
conseils et déclare la procédure orale ouverte.
II donne la paroleA .!'agent du Gouvernement de la Républiquesud-
africaine.
M. VERLORE VNAN 'I'HEMAA présente l'exposéreproduit en annexe '
et demande au Président de donner la parole A M.de Villiers.
Le P~SIDENT donne la paroleàM.de Villiers.
M. DE VILLIERS comrnence l'exposéreproduit en annexe2.
L'ozudienceestkve'ea 18?a30.
Le Président,
(Siglaé)B.~VINIARSKI,
Le Greffier,
(Signé)GARNIER-COIGNET.
TRENTE-SIXIÈME SÉANCE PUBLIQUE (3 x 62,IO h 30)
Présents:[Voir audience du 2x 62; M.Alfaro, Vice-Président, absent.]
Le PRÉSIDENT OUVT(:l'audience et annonce que M. Alfaro, Vice-
Président, ne pourra pas assisteà l'audience pour des raisons de santé.
11donne la parole AM. de Villiers.
M. DE VILLIERS comrnence l'exposéreproduit en annexe 3.
(L'audience, suspendiieà ra h50, est reprisà 16heures.)
M. DE VILLIERS continue l'exposéreproduit en annexe*.
L'audience estLevé e 18heures.
[Signatures.]
Voir pp.20-28. Voirpp.36-64.
Voirpp.19-36, Voirpp.64-76.8 MINUTES
THIRTY-SEVENTH PUBLIC HEARING (4.x 62, 10.3am.)
Present: [Seehearing of3 x 62.1
The PRESIDENT opened the hearing and stated that Vice-President
Alfaro's state of health stitl pieventehjm from takjng part in the
hearing. He called upon Mr. de Villiers.
Mr. DE VILLIERS continued the speech reproduced in annexl.
(The heaxing was adjourned from 12.55.p.m.to 4 p.m.)
Mr. DE VILLIERc Sontinued the speech reproduced in annex
The Courtroseaf 6.25 p.m.
[Signatures.]
THIRTY-EIGHTH PUBLIC HEARING (5 x 62,10.30 a.m.)
',Present: [See hearing of 3x 62.1
The PRESIDENT opened the hearing and called upon Mi. de ~illiers.
Mr. DE VILLIERc Sontinued the speech reproduced in annex 3.
(The hearing was adjourned from Ip.m. to 4 p.rn.)
Mr. DE VILLIERcS ontinued the speech reproduced in annex 4.
The Court rosut 6.20p.m.
[Signatures.]
THIRTY-NINTH PUBLIC HEARING (Sx 62, 10.30a.m.)
Present: [See hearing o3 x 62; Judge Koretsky wasabsent.]
The PRESIDEN opened the hearing and announced that Judge
Koretsky also would be unable to be present at this hearing for reasons
of health. He called upon Mr. de Villiers to continue his speech.
Mr. DE VILLIERS continued the speech reproduced in annex
(The hearing was adjourned from 12.5p 5.m. to 4 p.m.)
Mr. DE VILLIERc Sontinued the speech reproduced in annex 6.
' TheCourtroseaf 6.20p.m.
[Signatures.]
FORTIETH PUBLIC HEARING (9x 62, 10.30 a.m.)
Prwd: [Seehearing of8 x 62.1
T~~+~RESID opNned the hearing and calied upon Mr. de Villiers.
Mr. DE VILLIERc Soitinued the speech reproduced in annex'.
(The hearing was adjourned from 12-45p.m. to 4 pm.)
Mr. DE VILLIERc Sonciuded the speech reproduced in annex
The Courtroseat 6.35 p.m.
[Signatures.]
FORTY-FIRST PUBLIC HEARING (IO x 62, 10.30a.m.)
Present: [Seehearing of 8 x 62.1
The PRESIDEN opened the hearing.
Dr. VERLOREN VAN THEMAAaT sked the President to be good enough
to cal1 upon Rlr. Muller, who would deal with the Third.and Fourth
Preliminary Objections.
. . ..
See pp: 76-93. See pp.138-154.
Seepp. 93-109. Seepp.154-169. . ..--
Seepp.109-125. 7See pp.169-184.
Seepp.125-138. 8Seepp.184-199. TRENTE-SEPTIÈM SÉANCE PUBLIQUE (4x 62, IO h 30)
Présemis:[Voir audierice du3 x 62.1
Le P~SIDENT.ouvre l'audience et annonce que l'état de santé de
M. AIfaro, Vice-Président, ne lui permet toujours pas de prendre part
kl'audience. II donne la paroleà M. de Villiers.
M. DE VILLIERS continue l'exposé reproduit en annexel.
(L'audience, suspendue à 12h $5, est reprisà r6 heures.)
M. DE VILLIERS continue l'exposé reproduit en annexe 2.
L',zudienceestLevéeà18 Ii25.
[Sigmtures.]
TRENTE-HUITIÈME S.ANCE PUBLIQUE (5x 62, IO h 30)
Présents :[Voir audience du 3 x 62.1
Le PR~SIDENT ouvre :l'audienceet donne la paroIà M.de Villiers.
M. DE VILLIERScontinue l'exposéreproduit en annexe 3.
(L'audience, suspendi~eà 13heures, est reprisA 16heures.)
M. DE VILLIERS continue l'exposéreproduit en annexe 4.
L',zzadienceestlevéà18 h zo.
[Signatures.]
TRENTE-NEUVIEM SÉANCE PUBLIQUE (8 x 62,IO h 30)
Présents:(Voir audierice du3 x 62; M.Koretsky, absent.]
Le PRÉSIRENT ouvre l'audience et annonce que M. Koretsky luiaussi
ne pourra pas assister.ii l'audience de ce matin pour raisons de santé.
Il donne la paroleA M. de Villiers pour la continuation de sa plaidoirie.
M. DE VILLIERScontinue l'exposé reproduit en annexe 5.
(L'audience, susPendilà 12 h 55,est repriseA 16heures.)
M. DE VILLIERS continue l'exposéreproduit en annexe 6. .
L'.zzadiencest levéù18 h 20.
[Signatures.J
QUARANTIÈME: SÉANCE PUBLIQUE (9x 62, IO h 30)
Préseds: noir audjeiice du 8 x 62.1
Le PRÉSIDENT ouvre l'audience et donne laparole à M.de Villiers.
M. DE VILLIERS continue l'exposé reproduit en annexe 7.
(L'audience, suspendiià 12 h 45,est repriseà 16 heures.)
M. DE VILLIERS termine l'exposéreproduit en annexe
L'audience estEevé e 18 A35.
[Signatures.]
QUARANTE ET UNIEM ÇÉANCE PUBLI~UE (IO x 62,IO h 30)
Présents :voir audience du 8 x 62.1
Le PRÉSIDENo Tuvre l'audience.
M.VERLOREN'VAT NXEMAApT rie.Ie Président de bien vouloir donner
la parole à M. Muller, qui traitera de latroisiéme et de la quatrième
exception préliminaire.
1 Voir pp76-93. Voir pp. 138-154.
2 Voir pp. 93-109.- Voir pp.154-169.
Voir pp109-125. 'Voir pp.169-184,
Voir pp. 125-138. Voir pp. 184-199.IO MINUTES
The PRESIDENcT alled upon Mr. MuLler.
Mr.MULLER began the speech reproduced in annex l.
(Thehearing was adjourned £rom 12-55p.m. to 4 p.rn.1
Mr, MULLER continued thespeech reproduced in annex 2.
The Court roseut 6.25$.m.
[Signatures.J
FORTY-SECOND PUBLIC HEARING (II x 62, 10.30 am.)
Present :[Seehearing of 8 x 62.1
The PRESIDENo Tpened the hearing and called upon Mr. Muller.
Mr. MULLER continued the speech reproduced in annex 3.
(The hearing was adjourned frorn Ip.m. to 4 p.m.)
Mr. MULLER concluded the speech reproduced inannex '.
The PRESIDENT asked the Agent for South Africa whether he desired
to read the submissions of his Government.
Dr. VERLOREN VAN THEMAA rTad the submissions of his Govemment,
reproduced in annex *.
The PRESIDENT asked the Agent for Ethiopia and Liberia when they
would be able to begin their address.
Mr.GROSrS eplied thatthe Applicants would be prepared to commence
their responsive statement on hlonday, 15 October.
The PRESIDENT announced that the next hearing would take place on
Monday, 1.5 October, ai zo..?a.m.
- - Thecourt roseat6.15 $.m.
[Signatures.]
FORTY-THIR DUBLIC HEARING (15 x 62,10.30 a.m.1
Present: [See hearing of 8x 62; Judges Wellington Koo and Morelii
were absent .]
The PRESIDENT opened the hearing and announced that Judges Wel-
lington Koo and Morelliwould be unable to sit. He called upon the Agent
of Ethiopia and Liberia.
Mr. G~oss made the speech reproduced in annex6 and asked the
President to cal1upon Mr. Moore.
The PREÇIDEXcT alled uponMr. Moore.
Mr. MOORb Eegan the speech reproduced in annex '.
(Thehearing was adjourned from Ip.m. to 4 p.m.)
Mr. MOORE concluded the speech reproduced in annexa.
The PRESIDENT called upon Mr. Gross.
Mr. GROSb Çegan the speech reproduced in annex 9.
The Court roseut6.25 p.m.
[Signatures.]
FORTY-FOURTH PUBLIC HEARING (16x 62, 10.30 a.m.1
Present: [See hearing of 3 x 62; Judges Koretsky and MareiIi were
absent.]
Seepp.200-213. Seepp.261-263.
See pp214-229. Seepp. 264-277.
Seepp.229-245. 8 See pp.277-280.
Seepp.246-259. See pp.281-292.
Seepp. 259-260. Le P~SIDENT donne la paroleà M. Muller.
M.MULLE commence l'exposéreproduit en annexe l.
(L'audience, suspendueà 12 h 55,est reprisà 16 heures.)
M. MULLER continue l'exposéreproduit en annexez.
L'crzddienestlevéed 18h 25.
[Signatures.]
QUARANTE-DEUXI~ME S~ANCE PUBLIQUE (II ~'62, IOh 30)
Présents:[Voir audience du 8 x62.1
Le PRÉSIDENo Tuvre l'audience et donne la paroAeM. Multer.
M.MULLEc ontinue l'exposéreproduit en annexe3.
(L'audience, suspendueà 13 heures, est repriàe16heures.)
M. MULLEtR ermine lJ~:xposreproduit en annexe4.
Le PRÉSIDENT demande àIf, l'agent de l'Afrique du Sud s'il désire
lire les conclusions de son gouvernement.
M.VERLORE NAN TIIEMAAd Tonne lecture des conclusions de son
gouvernement reproduit.:^en annexe
Le PRÉSIDENT demande à l'agent de 1'Ethiopie et du Liberia quand il
pourra commencer sa p1:iidoine.
M. G~oss répond que les demandeurs seront prêts à commencer leur
plaidoirie en réponsee Lundir5 octobre.
Le PRÉSIDENaT nnonce que la prochaine audience aura lieu l15 oc-
tobre 4 IOh 30.
L'~:udiemeestEevéde 18 hr5.
[Signalures.J
QUARANTE-TROISI~ME &ANCE PUBLIQUE (15x 62, IOh 30)
Présents:voir audierice du 8 x 62; MM.Wellington Koo et Morelli,
absents.]
Le PRÉSIDENT ouvre l'audience et annonce queMM. Iliellington KOO
et Morelli,juges, sont erripêcçesiégeraujourd'hui11donne laparole 21
l'agent de lJEthiopie et du Libéria.
M. GROSS présente l'exposé reproduit en annexe et demande au
Président de bien vouloir donner la parole. Moore.
Le PRESIDEN donne la paroleà M. Moore.
M. MOORc Eommence l'expose reproduit en annexe'.
(L'audience, suspendueà 13heures, est reprisà 16 heures;)
M.MOOR termine l'exposéreproduit en annexe
Le PRESIDENd Tonne la paroleà M.Gross.
M. GROSc Sommence l'exposéreproduit en annexe 9.
L',zudienceest levàe18h 25.
[Signatwes.]
QUARANTE-QUATRIEME SEANC PEUBLIQUE (16 x 62,IO h 30)
P~ésents:[Voir audience du 3x 62; MM.Koretsky et Morelli,absents.]
1Voir pp.200-213. 6 Voirpp.261-263.
Voir pp.214-229. Voirpp.264-279.
Voirpp. 229-245. 8 Voir pp277-280.
Voir pp. 246-259. Voir pp281-282.
Voir pp.259-260.12 MINUTES
The PRESIDENT opened the hearing and called upon the Agent. for
Ethiopiaand Liberia. . .
Mr. G~oss continued the speech reproduced in annex l. . .
(Thehearing was adjourned from 12.55 p.m. to 4 p.m.) ..
Mr. G~oss continued the speech reproduced in annex 2.
The Court rose a5.40 $.ne.
[Signatures.]
FORTY-FIFTH PUBLIC HEARING (17 X 62,10.50 a.m.)
Present :[Seehearing of 2x 62; Vice-President Alfaro, Judges Koretsky
and MoreUiwere absent.]
The PRESIDENTopened the hearing and announced that Judge
Spiropoulos wras unwell and would be unable ta sit that morning* He
called upon the Agent for Ethiopia and Liberia. .'
hlr. G~oss concluded the speech reproduced in annex '.
The PRESIDENTannounced that two Members of the Court, Judge
Basdevant and Judge Sir Percy.Spender wished to put questions to
the Parties. He asked the Registrar to read out the question put by
Judge Basdevant.
The REGISTRAR read the question put by Judge Basdevant and
reproduced in annex 4.
The PRESIDENT called upon Sir Percy Spender.
Sir Percy SPENDER put the questions reproduced in annex
The PRESIDENT asked the agent for South Africa when he would be
ready to present hiç oralreply.
Dr. VERLOREN VAN THEMAATsaid he would be ready on Friday
morning. The answers to the questions, however, might take some time
and he would know only on Friday whether additional time would be
neceçsary.
The PRESIDENT took .noteof that reply and said that, provisionally,
the next hearin~-would be fixed for Friday, 10.30 a.m.
The Courtrose at12-.~59%.
[Signatures.]
FORTY-SIXTH PUBLIC HEARING (19X 62, 10.50 a.m.)
Present: [See hearing of2 x 62; Judge Marelli was absent.]
The PRESIDENT opened the hearing and announced that Judge
Spiropoulos as unweIl and would be unable to sit that day. He called
upon the Agent for the Republic of South Africa to make his oral reply.
Dr. VERLOREN VAN THEMAAT asked the President to cal1 upon
Mr. de Villiers.
The PRES~DENc Talled upon Mr. de Villiers.
Mr. DE VILLIERS began the speech reproduced in annex 6. -
(Thehearing was adjourned irom 12.55p.m. to4.2o.p.m.),
Mr. DE VILLIERS concluded the speech reproduced inannex 7.
l See pp. 292-306. 5 Seepp. 326-328.
See pp. 377-326. fiSee pp. 329-345.
+ Seep.326. See pp. 345-356. Le PRESIDENoT uvre l'audience et donne la parole à M. l'agent de ,
1'Ethiopie et du Libéria.
M. GROS continue l'exposéreproduit en annexe l.
[L'audience, suspendixe à 12 h 55,est repriseà 16heures.)
M.CROSScontinue 1'1:xposé reproduit en annexe 2.
L'uudidnceest levéeà 17 h 40.
[Szg~atures.]
QUARANTE-CINQUIÈ MEENCE PUBLIQUE (17x 62, IO h 50)
Présents: voir audience du 2 x 62; MM. Alfaro, Vice-Président,
Koretsky et Morelli, ab:;ents.]
Le PRESIDENT ouvre l'audience et annonce que M. Spiropoulos, juge,
est souffrantet ne pourra pas siégerce matin. Il donne la parole à hl.
l'agent de 1'Ethiopie et du Libéria.
M.G~osstermine 1'e.uposé reproduit en annexe 3.
Le P~SIDENTannonce que deux membres de la Cour, M. Basdevant
et sir Percy Spender, dPsirent poser des questions aux Parties et il invite
le Greffier donner Iecture de la question poséepar M. Basdevant.
Le GREFFIERlit la question poséepar M. Basdevant, reproduite en
annexe 4.
Le PRÉSIDENT donne la parole à sir Percy Spender.
Sir Percy SPENDER pose les questions reproduites en annexe5. .
Le PRESIDENT demande à l'agent de 1'Afriquedu Sud quand il pourra
'commencer la réplique lirale.
M. VERLOPE N AN '~HEMAAT répond qu'il sera prêt à présenter sa
réplique oralevendredi matin et qu'il pou.rra alors seulement dire quand
il lui sera possible de rfpondre aux questions. II se peut qu'il ait besoin
d'un délaisuppIémenta.re.
Le PRÉSIDENTlui donne acte de cette indication et annonce que,
provisoirement, la procliaine audience aura lieu vendredà IO h 30.
L'audienceestEevé e rz h 35.
[Signatures.]
QUARANTE-SIXI~?ME Ç~ANCE PUBLIQUE (19 X 62, IO h 50)
Préseds: voir audience du 2 x 62; M. Morelli, absent.]
Le PRÉSIDENT annonce en ouvrant l'audience que M.Spiropoulos,juge,
ne pourra pas siégerct: jour, étant souffrant.Ildonne la parole AM.
l'agent de la République sud-africaine pour sa répliqueoraIe.
M. VERLOREN VAN. THEMAAT demande au Président de donner la
parole A M. de Villiers.
Le PRÉSIDENT donne laparole à M. de Villiers.
M. DE VILLIERS commence l'exposéreproduit en annexe 6.
(L'audience, suspendiie à12 h 55,est repriseà 16h 20.)
M. DE VILLIERStem~ine l'exposéreproduit en annexe 7.Aprés avoir
1Voir pp. 306-317. 6 Voirpp. 329-345..
Voir pp. 317-326. 7 Voirpp. 345-356.
+ Voir p326.I4 MINUTES
Afterstating that he had completed his reply to the arguments of the
Agent for Ethiopia and Liberia he added that, with regard to the
questions put by Members of the Court, he hoped to be able to give his
answers on Monday, 22 October. For that purpose, and that purpose
alone, he asked the Court not to conçidhisreply as completed.
The PRESIDENT said that the next hearing would be on Monday,
22 October, at 10.30a.m.
The Court would then hear the oral rejoinder of the Agent for Ethiopia
and Liberia and the answers of the Parties to the questions put by
Members of the Court.
TheCozlrfrose nt6 p.m.
[~&atures.]
FORTY-SEVENTH PUBLIC HEARING (22x 62, 10.30 a.m.)
Present: [See hearing ofzx 62; Vice-President Alfarowas absent in
the afternoon.]
The PRESIDENo Tpened the heanng and indicated the procedure
which had been decided upon by the Court; the Agent for Ethiopia
and Liberia would first be called upon to present his oral rejoinder;
next the Agent for South Africa and the Agent for Ethiopia and Liberia
would be called upon in turn to give their answers to the questions put
by Members of the Court; and finally, the Agents would be asked to say
whether the questions and the answers given thereto led them to amend
their Submissions, and, if so, to indicate the amendments.
The President called upon the Agent for Ethiopia and Liberia to
present his oral rejoinder.
Mr. GROSS made the speech reproduced in annex l.
The PRESIDENcT alled upon the Agent for the RepubliofSouth Africa
for the soleurpose ofgivinghis answers to the questions putby Members
of the Court.
Dr, VERLORE VNAN THEMAAr Teplied to the question put by Judge
Basdevant 2.
The PRESIDENc Talled upon Mr. de Villiers.
Mr. DE VILLIERSreplied to the questions put by Judge Sir Percy
Spender 3.
(The hearing was adjourned from 12.5 5.m. to 4p.m.)
Mr.DE VILLIERS concluded the replies to the questions put by Judge
Sir Percy Spender 4.
The PRESIDEN called upon the Agent for Ethio ia and Liberia for
lis replieto the questions put by Members of the fourt.
Mr. GROSS replied to the questions put by Judges Basdevant and
Sir Percy Spender 5.
The PRESIDENc Talledupon the Agent for the Republic of South Africa.
Dr. VERLORE VAN THEMAA Tad the Subrnissions ofhi; Govemment,
as amended in the light of the answers to the questions put by Judge
Sir Percy Spender 6.
The PRESIDENa Tsked the Agent for Ethiopia and Liberia whether he
wished to amend his submissions.
l Seep.369.-368. + Seepp. 379-381.
6 Seep.382.
SecPP. 369-375.préciséque réponse a ainsi étédonnée à la plaidoirie de l'agent de
1'Ethiopie et du Libéria, il ajoute que, pour ce qui est des questions
qui ont étéposéespar les membres de la Cour, il espère pouvoir être
en mesure d'y répondre lundi. A cette fin,et & cettefinseulement, il
demande àla Cour de ne pas considérer sa réplique commeterminée.
Le PRÉSIDENT annonce que la prochaine audience aura lieu lundi
22 octobreà IO h 30. Elle sera consacrée la duplique orale de l'agent
de 1'Ethiopie et du Libriria et aux réponses des Parties aux questions
poséespar les juges.
L'audienceestlevéecl18he~res.
[Signatures.]
QUARANTE-SEPTIÈME S~ANCE PUBLIQUE (22 x 62, IO h 30)
Présents: [Voir audience d2 x 62; M.Alfaro, Vice-Président, absent
l'aprés-midi.]
Le PRÉSIDENT ouvre l'audience en exposant que la Cour a hé la
procédure suivante: la parole sera donnéeà l'agent de 1'Ethiopie et du
Libéria pour sa dupliqut: orale; la parole sera donnéeensuite l'agent
del'Afrique du Sudpuis icelui de YEthiopie et du Libériapour répondre
aux questions poséespar les juges; enfin, dans le mêmeordre, les agents
seront invitésà faire savoir si ces questions et les réponses qui y ont
étéfaites les amènent A amender leurs conclusions; ils pourront alors
énoncerles amendements éventuels à leurs conclusions.
Le Président donne la parole àM. l'agent de 1'Ethiopie et du Libéria
pour sa duplique orale.
M. GROSp Srononce l'exposéreproduit en annexe I.
Le PRESIDENT donne la parole à M. l'agent de la République sud-
africaine,uniquement pour répondre aux questions quiontété poséespar
des Membres de la Cour.
M. VERLORE NAN TI.:EMAA rTpond à la question poséepar M. Bas-
devant =.
Le PRÉSIDENT donne la parole AM.de Villiers.
M. DE VILLIERS répond aux questions poséespar sir Percy Spender3.
(L'audience, suspendui?B 12 h 55,est reprisà 16heures.)
M. DE VILLIERS termine laréponseaux questions poséespar sir Percy
Spender 4.
Le PRÉSIDENT donne la parole à l'agent de 1'Ethiopie et du Libéria
pour sa réponseaux que~.tiÔnsposéespar les membres de la Cour.
.M. GROSS répond aux questions poséespar M. Basdevant et par sir
Percy Spender5.
Le PRÉSIDENT donne kiparole Al'agent de la République sud-africaine.
M. VERLORE NAN THEMAAT donne lecture des conclusions de son
gouvernement, amendCeci àla-suite des questions.de sir Percy-Spender6.
Le PRÉÇIDENTdemande B l'agent de 1'Ethiopieet du Libérias'il désire
énoncerdes amendements à ses conclusions.
Voir pp. 358-368. Voir pp. 375-378.
2Voir p. 369. 5Voir pp. 379-382.
Voirpp. 369-375. 6Voir p.382.16 MINUTES
Mr. GROSs Stated that the Applicants did not desire to arnend their
Submissions; they wished however to reserve their right to comment
on the arnended Submissions of the Respondent. If, upon study within
a short time-limit set by the Court, he decided not to submit any com-
ment~, he would immediately advise the Court through the Registrar.
The PRESIDENsT aid that in these circumstances he would not close
the oral proceedings, and the Agents for the Parties were requesteto
remain at the disposition of the Court to furnish any further clarification
that might be desired.
The Parties would be informed of the decision of the Court concerning
a further hearing.
TheCourtrose at 5.05p.m.
[Signatures.]
FORTY-EIGHTH PUBLIC HEARING (21 XII 62, 9.30am.)
Present : Presidenb WINIARSK ;IVice-President ALFAR O Judges
BASDEVANT BADAWI, MORENO QUINTANA, WELLINGTO KNOO,SPIRO-
POULOS, Sir Percy SPENDERS , ir Gerald FITZMAURICE K,ORETSKY,,
BUSTAMAN TERIVERO, JESSUP, MORELLIS ; ir LouisMBANEFO, The
Ronourable J. T. VAN WYK,Jztdges ad hoc; M. GARNIER-COIGNET,
Regishar.
Also presem t
For theGovernmeatsof Ethiopia and Liberia:
Mr. Ernest A. GROSSM , ember of the New York Bar, as Agent and
Cozlnsel.
For theGoverfimenotf theRepzd~liofSozcthAf~ica:
Dr. J. P. VERLOREN VAN THEMAAT, S.C. Law Adviser to the Depart-
ment of Foreign Affairs, asAgent.
The PRESIDENT opened the hearing and declared that the Court was
meeting today to deliver its Judgment on the,Preliminary Objections
raisedby the Government of the Republic of South Africa in the South
West Africa cases brought before the Court by the Applicationsof the
Government of the Empire of Ethiopia and the Government of, the
Republic of Liberia.
He regretted to announce that Judge Tanaka, who sat during the oral
proceedings and who participated in a great .part of the deliberations
of the Court in these cases was unfortunately unable to take part in
the final stages of the work on the present Ju...nent because of .a
serious iliness.
He read the French text of the Judgment.
The PRESIDENT called upon the Registrar to read .t.e qperative
provision of the-Judgment in English. .'
The REGISTRA read the Engliçh text oftheoperative provision.
The PRESIDENa Tnnounced' that Judge Spiropoulos,had~appended a
Declaration to the Judgment ofthe Coùrt. Judges Bustamante y Rivero'
and Jessup and Judge ad RocSir Louis Mbanefo had appended Separate
Opinions to the Judgment of, the Court. The President ,and Judgé
Basdevant had appended DiGenting Opinions to the Judgment .of the
Court; Judges Sir Percy Spender and Sir Gerald ,,Fjtzrnaunce had hl.GROSS déclareque les demandeurs ne désirent pas amender leurs
conclusions; toutefois, ils voudraient se réserver le droit de présenter
des commentaires sur 14:sconclusions amendées par le défendeur. Si,
après étude des conclusions amendées dans un délaiqu'il demande à
la Cour de bien vouloir fi:ter, il décidede ne formuler aucun commentaire,
il en informera imqédia3:ementla Cour par l'entremise du Greffier.
Le PRÉSIDENT déclare:que, dans ces conditions, il ne prononce pas
la clôture des dêbatset prie les agents des Parties de se tenir Ala dis-
positionde la Cour pour le casoù celle-ci voudrait Ieur demander des
éclaircissements supplémentaires.
Les Parties seront avis.édela décisionde la Cour en ce qui concerne
l'audience éventuelle.
L'lrudienceeslevé8à r7 J5.
[Signatures.]
QUARANTE-HUITIÈME SÉANCE PUBLIQUE (21 XII 62,9 h 30)
Présents: M. WINIAF.SKP I,résident; M. ALFARO,Vice-Présiden t
MM. BASDEVANT, BADAWIM , ORENO QUINTANA, WELLINGTO Km,
SPIROPOULOS Si,r PercySPENDER, Sir Gerald FITZNAURICE, MM. KO-
RETSKY, BUSTAMANT YERIVERO ,ESSUP, MORELLI, Juges; Sir Louiç
. MBANEFO M,. J. T.VAN WYK, Juges ad hoc; M. GARNIER-COIGNET,
Grefier.
Prése~$tésgalemen:t
Pour lesGouvernementsé.!hlziofietnlibér:en
M. Emest A. GROSS, membre du barreau de New York, commeagent
et conseil.
PozlrleGouveraementsui-africai*:
M. 3. P. VERLOREN VAN THEMAAT, S.C., conseiller juridiqudu
département des Affaire!;étrangères,commeagent.
Le PRESIDENT ouvre l'audience et expose que la Cour se réunit
aujourd'hui pour rendr.: son arrêt sur les exceptions préliminaires
soulevéespar le Gouvernement de la République sud-africaine en les
affairedu Sud-Ouest africain, introduites devant la Cour par requêtes
du Gouvernement de 1'1SrnpiredJEthiopie et du Gouvernement de la
République du Libéria.
Il regrette d'annoncer que M.Tanaka, qui a été présentsur le si&ge
pendant la procédure orale et avait pris parAune grande partie des
délibérations, n'a ma1hr:ureusernent pas pu participer aux dernières
phases du travail sur le présent arrêten raison d'une grave maladie,
Il donne lecture du texte français de l'arrêt.
Le PRÉSIDENT invite le Grefierà donner lecture du dispositif de
l'arrêten langue anglaise.
Le GREFFIER lit le disl~ositifen anglais.
Le PRÉSIDENT annonce que M. Spiropoulos, juge, a jointA l'arrêt
une déclaration. MM. E;ustamante y Rivero et Jessup, juges, et sir
Louis Mbanefo, juge ad hoc, y ont joint les exposés de leur opinion
individuelle. Le Président et M.Basdevant, juge, y ont joint les exposés
de leur opinion dissident?; sir Percy Spender et sir Gerald Fitzmaurice,
juges, y ont joint l'exposé commun de leur opinion dissidente;MM.I8 MINUTES
appended their Joint Disenting Opinion to the Judgrnenofthe Court;
Judge Moreni and Judge ad hoc van Wyk had appended Dissenting
Opinions to the Judgment of the Court.
TheCourt roseat 10.4a5m.
(Sfgned)B. WINIARSKI,
President.
(Signed)GARNIER-COIGNET,
Registrar.Morelli,juge, etvan W'yk,juge ad hoc,y ont joint les exposésde leur
opinion dissidente.
LS,rudienceestlevéea IO h 45.
Le Président,
(Signé)B. WINIARSKI.
Le Greffier,
(Signé) GARNIER-COIGNET. SOUTH WEST AFRICA
1. ARGUMENT OF Dr. VERLOREN VAN THEMAAT
(AGENT OF THE GOVERNMENT OF SOUTH AFRICA)
AT THE PUBLIC HEARING OF 2 OCTOBER 1962
Mr. President and ~embers of this Honourable Court.
1 have the honour to present Mr. de Villiers, first on my right, and
Mr. Muller, second on mp right, Senior Counsel of the Supreme Court of
South Africa, who are appearing as Counsel for the Republic of South
Africa in these proceedings, and Mr, McGregor, fourth on the right,
Deputy State Attorney, Transvaal, who içjoint Agent of the Government
of the Republic with myself. Also Mr. Botha, third on the right, Adviser,
of the Department of Foreign Affairs of the Republic of South Africa.
Permit me, on behalf of my colleagues and myself, to express Our
appreciation of the privilege of appearing before this erninent tribunal,
the Court of nations, which has already made such a marked contribution
towards the establishment and advancement of an international legal
order. Respect for legal institutions and for judicial independence ispart
of the strongest traditions of our nation, a precious heritage from the
English and the Roman-Dutch origins of Our legal system.
We have, in this case, the situation that some of the contentions
advanced by us urge a departure in certain respects £rom conclusiqns
arrived at in this Court in earlier advisory proceedings. Fat this in-
volves or implies no disrespect for the Court or any of ~ts Members
will, 1 hope, be evident from what 1 have already stated. Indeed, we
trust that our great respect will be apparent from the very grounds
upon which we advance these contentions.
Our oral statement will deal with the four Preliminary Objections,
filed by the Govemment of the Republic of South Africa on 30 November
1961.and with the Observations filed by the Governrnents of Ethiopia
and Liberia on I March 1962. For the sake of convenience, the Govern-
ments of Ethiopia and Liberia willhereafter usually be referred to as the
Applicants, and the Government of the Republic of South Africa as the
Respondent .
Our Preliminary Objections submit that the Applicants have no s oc us
standiin these proceedings, and that the Court consequently has no
juridiction, because:
Firstly,by reason of the dissolution of the League of Nations, the
Mandate for South West Africa is no longer a "treaty or convention in
force" within the rneaning of Article37 of the Statute of the Court;
Secondly, neither of the Applicants is any longer "another Rlember
of the League of Nations" as Article 7 of the Mandate for South West
Africa requires forlocus standi;
Thirdly, no dispute in the sense contemplated by Article 7 of tk
Mandate isinvolved in the matters ~resented by Applicants for adjudi-
cation by the Court; and
FourthIy, there is, in any event, no "dispute" which cannot "be
settledby negotiation" within the rneaning of Article7.
If the Court pleases,Mr, de Villiers will deal mainly with the Fiand
Second Objections and Mr. Muller with the Third and Fourth. ARGUMENl OF DR. VERLOREN VAN THEMAAT
21.
In the presentation oi Our oral statements we shall not repeat what
is already recorded in Our written Objections, except where. this is
considered necessary for special reasons such as further explanation,
development of argument, continuity, clarity, particular emphasis or the
like. Further, in Our oral statements as in Our written Objections, we
shall confine ourselves to rnatters relevantto the Objections, and shall
not deal with allegations made in the pleadings of the Applicants regard-
ing matters which do ncit concern the jurisdictional issues.
Before Counsel deal specificallv with the Objections, 1 would Iike to
deal briefly in this introcluctory statement with three matters. They are:
In the first place, an i:xplanation of the attitude which we adopt, for
the purposes of the argument in these Objections, and in so far as is
relevant thereto, regarding the status of South West Africa in general.
In the second place, the general principIes which we submit to be
applicable in a situation where arguments advanced in contentious
proceedings are at varia.nce with a previous Advisory Opinion.
Inthe third place, certain relevant aspectsof the historyof Article 22
of the Covenant of the League of Nations and the Mandate for South
West Africa which are niaterial for the purpose of a proper appreciation
of some of Our arguments.
&Ir.President, concenling the firstof the three matters which 1 have
mentioned, the statusof South West Africa in general,I refer to para-
graph D of Chapter 1at page 214 (1) of OurPreliminary Objections where
our attitude in that regsird is outlined.
We state there that oirr submissions under the first Objection concern
onIy the Mandate as art .zgreement;our contention being that as a treaty
or conventiortthe Manda.te is no longer in force. We state further that
no submissions are adva.nced about the question whether the Mandate
in the wider sense of being an institution survived the League or not.
The logical effect of this attitude is that, although we make no admissions
in that regard, we are pr.:pared for the purposes of Ourargument in these
Objections to assume tIiat the Mandate as an institution survived the
League.
Our contention as afoi-estated, and Applicants' commentswith regard
to the contempIated distinction between the Mandate as an institution
and the Mandate as a treaty or convention, wiIl be dealt with fully in
the argument by Counst:l on the First and Second Objections. We shdl
show in that regard that Applicants are quite wrong in representing
that, in arguing on the premise 1 have just indicated, we are now ad-
vancing the same basic contention as in the advisory proceedings in
1950.
The second matter with which 1 wish to deal concerns the general
principles of approach j.ncontentious proceedings towards a previous
advisory opinion with ri:gard to the same subject-matter.
We respectfully advarice two general propositions in that regard.
The first is that a1thc.uh an advisory opinion will always cornmand
great respect und grimfi fzcie authoritativeweight as an expression of
the views of an eminenl: tribunal, the Court will never refuse to recon-
sider conclusions, reacheii ina previous advisory opinion, save perhaps
where a request for suc11reconsideration is frivolous or vexatious.This
seems, with respect, an obvious proposition which does not need motl-
vation. It seerns sufhciq:nt to cite in support of this proposition the
following passage frorn Blanley O. Hudson in his work The Permanent22 SOUTH WEST AFRICA
Court of InternationalJustice, New York, 1943, on page 512. He states
as follows:
"Nor is the Court itself bound to adhere to conclusions reached
in an advisory opinion. If the question upon which an opinion is
given is later submitted to the Court for judgment, the matter is
not resjudicata; and though an opinion may be cited as a precedent,
the Court is not bound to abide by the conclusions stated in the
opinion."
Our second proposition is that where sound reasons are established,
the Court will depart from a previous opinion. This also, with respect,
seems an obvious proposition. It is implicit in the decision of the Court
in the UfipevSilesza case, from which Applicants quote ai page 420 (1)
of theirObservations. The Court in that case affirmed a view previously
expressed in an advisory opinion because-and 1 quote from the case
concerning German Interestsin Ufiper Silesia, P.C.I.J., SeriesA, No. 7,
1926,at page 31 :
"Nothing has been advanced in the course of the present pro-
ceedings calculated to alter the Court's opinion on this point."
Clearly, the Court did not intend to formulate any general rule of
practice, asissuggested by Applicants on page 103 (1)of their Memorials,
and repeated on page 420 (1)of their Observations, where they used the
words "the practice of the Permanent Court in Upper Çilesia", The Court
rnerely stated its finding and its decision in that particular case. The
statement implies that, where good reasons UYB established, the Court
will depart from a previous advisory opinion.
We do not wish to suggest any general and comprehensive rules as to
when the Court will consider that there are sound reasons justifying a
departure from a previous advisory opinion. In our submission, this is
a matter which rnust largely depend upon the particular circumstances
of each case. The Court would naturally give an advisory opinion al1due
weight as an authority and as an expression of the considered views of
the leamed Judges of the Court. But if it considers in subsequent con-
tentious proceedings that good reasons exist for a different conclusion',
Our contention is that the Court would not heutate to depart from the
conclusions in the advisory proceedings.
On page 98 (1) of the Memorials, Applicants suggest the existence ofa
so-called "principle" or "doctrine of Eastern Carelia", namely "that an
advisory opinion as to a dispute is substantially equivalent to deciding
the disputeJ'.
In Our submission no such general "principle" or "doctrine" was laid
down in the Advisory Opinion of 23 July 1923 concerning the Status of
EasternCurelia. It is reported inP.C.I.J., SeriesB, No. 5.
Inthat case the Council of the League of Nations requestedan advisory
opinion from the Court as to whether a Treaty entered into between
Russia and Finland and a Declaration made by Ruçsia atthe same time
constituted engagements of an international character which placed
Russia under an obligation to Finland. Finland contended that the
DecIaration was part of the agreement with Russia. Russia maintained
that the Declaration was not by way of contract,but was only declaratory
of an existing situation and made merely for information. ARGUMENT OF DR. VERLOREN VAN THEMAAT 23
The Court found that an Advisory Opinion on the question asked by
the Council of the Leagile of Nations would have to embody a finding on
facts wliich were in dispute between Finland and Russia. Russia, who
was not a member of the League of Nations at the time, refused to take
part in the advisory proceedings.
In the circumstances, the Court declared that it wouId be at a very
great disadvantage at an enquiry into the disputed facts. The Court said:
"It appears nom. to be very doubtful whether there would be
available to the Court materials sufficient to enable it to arrive at
any judicial conclusionupon thequestionoffact :what did the parties
agree to? The Court does not srtythat there is an ahsolute rule that
the request for an ,zdvisory opinion may not involve some enquiry
as to facts, but, under ordinary circumstanceç, it is certainly
expedient that the facts upon which the opinion of the Court is
desired should not 1)ein controversy, and it should not be left tothe
Court itself to ascertain what they are.
The Court is aware of the fact that itis not requested to decide
a dispute, but to give an advisory opinion. This circumstance,
however, does not 1:ssentially modify the above considerations. The
questionput to theCozcrtis no6oneof abstractlaw,but colacernsdirectly
the main point of the contvoversybetzeiee?F ~inland and Russia, and
can only be decided by an investigation into the facts underlying the
case. Answering th6 question wouldbe substantially equivalentto de-
ciding the dispute lletweenthe $aytzes.The Court being a Court of
Justice, cannot, evrn in giving advisory opinions, depart from the
essential rules guiding theiractivity as a Court."
1 quote from pages 28 and 29 of the Kefiort.
The opinion as a whoIe indicates tkat the passage "Answering the
question would be substantially equivalent to deciding the dispute" was
intended to refer to the particular case and was not intended toIay down
any general rule, or to formulate a general principle or doctrine. Further-
more, it related purely to the Court's "activity" as a judicial tribunal
in investigating the matter with a view to coming to a "judicial con-
clusion upon the question of lact". Nothing was said or implied regarding
the weight to be attached to such conclusions in possible later contentious
proceedings.
In the Mernorials on page 98 (1) the Appficants also state that in the
PeaceTreaties case:
"Majority and dissenting opinions alike recognized irnplicitly or
explicitly the principle ofEastern Carelia,narnely that an advisory
opinion as to a dispute is substantially equivalent to deciding the
dispute."
This refers to the case Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, Advisory Opinion, I.C.J. Reports Ig50, pages 65
and following.
Again, in our submission, there is no justification for this staternent
of Applicants.
Although some of the minority Judges in the PeaceTreaties case seem
to have held the view that some general rule was formulated in the 24 SOUTH WEST AFRICA
Eastern Carelia case as to the effect of and weight to be attached to
advisory opinions, that was not the view of the majority in the Peace
Treatiescase.
The majority opinion in the last-mentioned case merely distinguished
the two cases, holding that the Eastern Carelia case was profoundly
differentfoxtwo reasons-firçtly, because the question put to the Court
in that case"was directly related to the main point of a dispute actually
pending between two States, so that answering the question would be
substantially equivalent to deciding the dispute between the parties".
And secondly, because "at the sarne time it raised a question of fact
which could not be elucidated without hearing both parties". Both
quThere is nothingminathe opinion of h ernajority in the Peace Treaties
case which justifies a conclusion that the majorityJudgesinterpretethe
Eastern Careliacase as laying down any general rule, principle ordoctrine
regarding the effect or weight of advisory opinions or which justifies a
conclusion that they gave recognition to any such general rule, principle
or doctrine.
In effect, the majority opinion in thePeace Treaties case refutes the
very existence of any such general rule, principle or doctrine. That is
why writers who interpret the Eastern Careliacase as laying down such
a rule, principle or doctrine, consider that case to have been ovenuled
by the Peace Treatiescase.
In this respect, we wish to refer to Lauterpacht in his work The
Develo$menl of In.fernabionalLaw bythe International Court,1958w ,here
the Iearned author stateç that the Advisory Opinion in the Eastern
Curelia case-and 1 quote from page 248-"can no longer be regarded
as a precedent of authority", and I quote from page 358, "can no longer
be accepted as expressing a valid legal proposition", and that the case
was-and 1 quote again from page 358-"not followed, in fact, in the
Advisory Opinion on the Interpretation of Peace Treaties".
Mr. President, 1 come now to the third and 1st matter 1 wish to deal
with. It concerns relevant aspects of the history of Article 22 of the
Covenant of the League of Nations and of the Mandate Agreement for
South West Africa.
There isa reason why I invite special attention toandthe consideration
of this chapter in the history of the Mandates systern,
The cases before the Court are concerned, primarily at least, with a
proper construction of Article 22 of the Covenant and of the Mandate
instrument.
In the task of ascertaining the true intentions of the parties to these
instruments, the circurnstances surrounding the,creation ofthe Mandates
System and the concIusion of the Mandate Agreement, as. well as the
conduct of the parties concerned, both at the time and thereafter, are
matters of g-reatimportance.
With a view to a proper appraisal of such circumstances and of the
conduct of the parties, Chapter II of Our written Objections is devoted
to an analysis -of history in so far as we consider necessary for the
purposes of Our Objections, and for the purposes of demonstrating that
certain allegations madeby the Applicants reg.rding the histoncal back-
ground are either unfounded or inaccurate. ARGUMENT OF DR. VERLOREN VAN THEMAAT 25
In answer to our historical analysis, Applicants state at page 421 (1)
of their Observations, that their own account of the relevant histoncal
facts is a fair account and "haç not been materially altered in Re-
spondent's version".
This answer by Applicants must mean that they do not dispute
Respondent's analysis of the relevant historical facts.
Proceeding upon that basis, it isunnecessary for us to spend any
further time in demonstrating the particular respects in which we
contend that the account of the historicaI factsasset forth in Applicants'
Memorials is not correc.t. Our subrnissions in that regard have already
been made in the writti:n Objections and are not attacked by the Ap-
plicants in their Observations.
In the course of the statements by Counsel for Respondent, reference
wili be made to various historical facts relevant to their arguments.
1, however, propose to deal in this introductory statement only with
the history of Article2 of the Covenant and of the Mandate instrument
with.particular reference to the compromise aspect of the arrangement
whereby the C Mandattis were established.
To avoid confusion as to the sense in which we use the word "compro-
mise'' it is necessary a the outset to state our understanding of the
meaning of that term.
It can only be in a very loose sense that the term "compromise"
can be employed to denote the procedure of offer and counter-offer
often folIowed in cornin,: to terms. In that unusual sense the term may
iend itself to the contention put fonvard by Applicants on page 423 (1)
oftheir Observations that :"nearly al1agreements arisefromcompromise".
We, however, employ the tvord in the more exact sense of a give and
take arrangement in the settlement of conflicting claims and interests
regarding the sarne subject-matter, for instance the settlement of a
Court action.
It iin this sense that the arrangements ai the Paris Peace Conference
regarding the former {German colonies, and particularly those that
became C Mandated telritones, constituted a compromise. It involved
a measure of give andtake in the settlement of conflicting claims regard-
ing the future status of the said colonies.
There waç at the Conference a marked conflict with regard to the
future of the former Gel-mancolonies in New Guinea, Samoa and South
West Africa. Australia, New Zealand and South Africa put forward
respective claims forthe annexation of those territories of which they
were then in occupation, whereas President Wilson of the United
States of America strongly advocated the application of a poucy of
"no annexations" to allthe former Gerrnan colonies.
In consequence of the conciliatory role played by the British and
South African Prime Mi~iistersin order to avoid a deadlock, acompromise
was arrived at. The effect of the compromise was that there wo~ld
be no annexations. Al1the German colonial possessions were brought
into the Mandates systein. But for that to corne about ceftain important
concessions had to be made to the States which were in occupation
of certain of those posse~sionsand particularly so in the caseofAustralia,
New Zealand and South Africa in respect of New Guinea, Samoa and
South West Africa, which became the so-calied C mindated territones.
The. States in question did not press their. claims for out ad out
annexation but obtained in retum a modified Mandate system .which26 SOUTH WEST AFRICA
involved abandonment on President Wilson's part of certain important
aspects of his proposals concerning League supremacy and control of
Mandate administration. These proposals were contained in ''Supple-
mentary Agreements" to his Second and Third Drafts of the Covenant
of the League of Nations. They are referred to oirpage 218 (1)of Our
Preliminary Objections and quoted verbatim by Baker in his work
WoodrowWilson alzd World Settlement (1922-23), Vol.III pages 108 to
129.
Thus, for example, in the Mandates system as eventually agreed
upon :
Firstly, Mandatories were to bcindividualStates to whom the Mandates
were to be allocated by the Principal Allied and Associated Powers,
and in the case of the C Mandates the allocation would have to be to
the adjacent claimant States.
This was a radica1 departure from the proposa1 which President
WiIson formulated as follows-1 read from Baker, page 109,paragraph II
of the Supplementary Agreements to the Second and Third Drafts
of the Covenant. 30th of them read exactly the same. This second
paragraph reads as folIows :
"Any authority, control or administration which may be neces-
sary in respect of these peoplesor territories other than their own
self-determined and self-organized autonomy shall be the exclusive
and exercised or undertakenebyeor on behalf of it.of Nations
It shall be lawful for the League of Nations to delegate its'autho-
rity, control, or administration of any such people or territory
to some single State or organized agency which it may designate
and appoint as its agentor mandatory; but whenever or wherever
possible or feasible the agent or mandatory so appointed shall
be nominated or approved by the autonomous people or territory."
Secondly, the relationship between the League and the Mandatories
were in each case regulated hy a Mandate agreement. Alteration of
the provisions ofthe agreement would normally require mutual consent.
This stands in sharp contrast to the following proposa1 of President
Wilson-1 read the first paragraph of paragraph III, of his Second
Draft of the Covenant of the League of Nations; the third Draft reads
exactly the same, with one smaii alteration which 1 will indicate:
"III. The degree ofauthority, control, or administration to be
exercised by the rnandatory State or agency shall in each case
be explicitly definedby the League [for 'League' in the Third
Draft the words 'Executive Council' were substituted; then the
quotation continues] in a Special Act or Charter which shall reserve
to the League complete power of supervision and of intimate
control and which shall also reserve to the people of any such
territoryor govemmental unit the right to appeal to the League
for the redress or correction of any breach of mandate by the
mandatory State or agency or for the substitution of some other
State or agency as rnandatory."
Thirdiy, in the case of the C Mandates, the Mandatories were to
have powers to administer the territories as integral portions of their ARGUMENr OF DR. ,VERLOREN VAN THEMAAT
27
own, and the open door principle was excluded. Also in these respects
there was a radical departure from President Wilson's proposals, result-
ing in fairly widespre2.d comment that the arrangements regarding
C Mandates were in their effect not far removed from annexation. We
dealt with this on page:; 221-222 (1) of our Prelirninary Objections.
Where a party makes concessions in a compromise agreement, the
natural inference woulcl be that the concessions are not intended to
extend beyond the express terms of the agreement. It is inthis respect
that the compromise origin of the Mandates system is matenal and of
special significance for 1:hepurposes of these Objections.
That compromise origin, in Respondent's submiçsion, indicates at
least a strong probability that there could have been no common in-
tention that Respondent shouId be subject to any obligations different
from or in addition to tliose expressly undertaken in tems of Article 22
of the Covenant and the Mandate instrument.
Hardly stronger demonstration of this probability can be afforded
than by the statements ofthe Prime Ministers of the United Kingdom,
Australia, New Zealand and South Africa made when the draft which
eventually became Article zz waç proposed, Mr. Lloyd George, the
British Prime Minister, stated that
".,.it waç only witll the greatest difficuIty that the representatives
of the Dominions had been prevailed upon to accept the draft
submitted, even provisionally",
and alittle Iater :
"...they had accepted his proposals, but onIy as a compromise"
(this quotation cornes ?rom the work Foreign Relulions of the United
States: The Paris Peact: Confeuence,1919, Volume III, on page 790).
And Mr. Hughes of Australia, speaking for Australia and New Zealand,
made it clear: "For the present that 'represented the maximum of their
concession" (as quoted in our Preliminary Objections, page 219 (I),
footnote 6). General Botha, the Prime Minister of the Union of South
Africa, said he was prepared to agree to the compromise because the
"...League of Nations wouId conçiçt mostly of the people who
were present there that day, who understood the position and
who would not make it impossible for any mandatory to govem
the country"
(as quoted on page 220 (1) of our PreIiminary Objections).
Applicants Say atpagr:423(1) of their Observations that they "do not
conceive it material to the instant cases to argue the exten t to
which the Mandate arose from compromise". However, d $ro$os of
Our statements regardirig the compromise, they proceed to propound
on pages 422-424 (1) of their Observations a lengthy argument on the
question whether Respondent is entitled to annexor incorporate South
West Africa, That queztion isentirely irrelevant in the instant cas-
and was not touched upon in the written Objections. We did state
in our written Objectioris that a progressive closer association between
South West Africa and South Africa waç a nonnal development and
within the contemplaticm of the parties concerned. Furthermore, we
did refer to commentators who held that C Mandates were, in their
practical effect, not far removed from annexation.28 SOUTH WEST AFRICA
In neither respect, however, did we raise any question about 'annexa-
tion, which is irrelevant ta the present proceedings and daes not there-
fore require to be dealt with by us.
Mr. President, 1 thank you. This concludes my oral statement and,
if the Court pleases, after the translation Mr. de Villiers will.address
the Court on the First and Second Objections. AR(;UMENT OF MR; DE VILLIERS
29
2. ARGUMENT OF ~r,' DE VILLIERS
[Public h#:aî.iof 2Octobev 1962, aftérnoon]
Mr. President arLdHonourable Members of this Court.
1 would like to bedn by associating myself, as Counsel, with the
respects that have so iittingly been paid to the Court and to you by
my leamed friend and Agent, Dr. verLoren van Themaat. It is indeed
a pnvilege to appear before this eminent tribunal; and I hope that the
contribution we may be ableto make will prove to be of some assistance
to the Court in a matter which, with respect, can probably not be
regarded as being withclut dificulty.
In arguing, Mr. Pre~ident, in support of the First and the Second
Objections, 1 shall not cndeavour to keep the argument relevant to one
of them entirely separate from the argument relative to the other-in
watertight compartments, as it were. There is a great deal of common
ground between these r:woObjections and 1 shall argue that common
ground as being applicable to both of the Objections. 1 shaI1indicate
the distinction between the two as that emerges. In fact, Mr. President,
that distinction wiii be found to emerge largely, although not entirely,
in the drawing of alternative conclusions .from what is essentially ,a
common line of argumrnt. 1 shall endeavour to demonstrate that in
more detail at a later stage..
I propose to devote a brief introductory portion of my argument
to an analysis, in very broad outline, of the major rival contentions
of the Parties in regard to the First and the Second Objections, and
thus also of the issuebetween the parties-the major issues-regardmg
those two Objections. In stating for that purpose what our major
tentions-thatre will conie later.. Sirnilarly, in stating what the conten-
tions or answers of the Applicants are to Our contentions, 1 shaI1not
be arguing in reply to those contentions-that will also corne later.
My purpose at the mornent is merely a very broad survey of the area
of dispute.
Now, rny learned fnerid, Dr. van Themaat, has referred to the wording
of our four Objection? and I am not going to rcad the first and the
second to the Court again-they are well known to the Court. The
first concerns the propclsition that aa result of the dissolution of the
League the Mandate Agreement, asa whole, including Article 7, has
ceased to be a treaty or convention in force within the rneaning of
Article 37 of the Statnte of the Court. The second one concerns the
proposition that the Aliplicants are unable to bring themselves within
the expression "another Member ofthe League of Nations" for purposes
of Article 7 of the Mandate Agreement.. 1 wish to point out at thxs
stage that .there are, i~ieffect, three alternative contentions wrapped
up in these First and Second Objections. The Applicants, judging by3O SOUTH 'WEST AFRICA
the way in which they have dealt with these Objections in tlieir Obser-
vations, appear to realize that and 1 propose to state those three alter-
natives to the Court in a moment. But, before doing ço, 1 would like
to refer-just for purposes of background and perspective-to the
foundation of the Applicants' case regarding jurisdiction. It is for
the Applicants to satisfy the Court that in terms of operative consent
on the Respondent's part this Court has jurisdiction in the instant
cases, that is both in regard to the subject-matter of these cases
before the Court. The AppLicants rely in this regard on ArticIe 7 of
the Mandate Agreement and on Article 37 of the Statute of the Court.
They Sayso specificallyin their Mernorials at page 88 (1).At the begin-
ning of their Chapter III they Say: "The Applicant founds the juris-
diction of the Court on Article 7 of the Mandate and Article 37 of the
Statute ofthe International Court of Justice." They go onto Say "having
regard to Article 80,paragraph I,of the United Nations Charter". But in
regard to this last portion the Applicants nowhere explain in what way
Article 80, paragraph I,of the Charter could be said to be relevant or
heIpful in this regard atal].They do not explain that anywhere in the
written proceedings. Possibly we will hear the ex-planationin the course
of their oral statementsand, if so, I could then deal with it. But for the
moment 1 wili refrain from dealing with a suggestion which 1 frankly
don't understand. 1 don't know what it is intended to connote. 1 wiil
confine myself at this stage to those two provisions upon which the
Applicants Say that they jou~d juridiction; the first one being Article 7
of the Mandate Agreement which is well known to the Court. 1 would
like to read it, though, for purposes of emphasis on a particular ele-
ment. Reading from page 88 (1)of the Applicants' Mernorial:
"The Mandatory agrees that, if any dispute whatever should
of Nations relating to the interpretation or the application of the
provisions of the filandate, such dispute, ifit ca~inot be settled
by negotiation, shall be submitted to the Permanent Court of
International Justice provided for by Article 14 of the Covenant
of the League of Nations."
Now, Mr. President, 1 would like to stress the two elements-that
the disputemust be between the Mandatory and "another Member ofthe
League ofNations", and secondly, that the provision there isfor reference
of a dispute asdefined to "the Permanent Court of International Justice".
In regard to this latter aspect, a substitution of courts is provided for
as between signatories to the Statute in Article 37 of the Statute of
the Court, but subject to certain prerequisites. It is for that purpose
that 1 read dso Article 37:
"Whenever a treaty or convention in force provides for reference
of a matter to a Tribunal to be instituted by the League of Nations
or to the Permanent Court of International Justice, the matter
shall, asbetween the parties to the present Statute, be referred
to the International Court of Justice."
1 stress, Mr. President, the prerequisite that the reference of the
matter to the Permanent Court should be provided for in "a treaty
or convention in force", The two elements which 1 have respectfully ARCrUMENT OF MR. DE VILLIERS 31
stressed in these two provisions-these two Articles-relied upon by
the Applicants, thosearc:the turo focal points of our First and our Second
Objections. Firstly, the 1-equirementin Articl37 that the reference must
be provided for in a tretrty or convention in force and, secondly, the re-
quirement in Article 7 of the Mandate itself that the dispute must be as
between the Mandatorq. and another Member of the League of Nations.
In essence, Mr. ~resident, Our main contentions regaing the first
two Objections flow froin one basic consideration and that is that, as a
result of the dissolution of the League of Nations there now no longer
exists a League of Nations and there no longer exists any Member
of the League of Nations. This, in our submission, has for the purposes
under discussion various effects. The first one is that we sumbit that
on a true construction of the Mandate Agreement, the only parties
between whom it was intended to operate as a treaty orconvention,
as an international agri:ement, were the Mandatory on the one hand,
and on the other hand, depending on how one looks at it, either the
League of Nations-seen as a legal fiersona-or the Members of the
League of Nations, or the League and its Members. But these possibilitieç
exhaust the circle, in Our submission. It could be any of those alter-
natives, but the circle is confined to the Mandatory on the one hand
and the League and/or its Members on the other hand. Our first conten-
tion then is that on diss~lution of the League and upon there ceasing to
be a League and Members of the League, there alço ceased to be a
treaty or convention i~i force, asfar as the Mandate arrangement is
concerned. Because al1the parties on the one hand fell away-there was
na longer a League, the~ewere no longer Members ofthe League and all
that remained as far as parties to an agreement were concerned was
the Mandatory on the other hand. And, consequently, Ourfirst contention
is that-
"on dissolution of the League the whole Mandate Agreement-and
thus including Article7 thereof-ceased to be a treaty or convention
in force within the meaning of Article 37 of the Statute of the
Court".
Secondly, Mr. President, we submit that certain of the provisions of
the Mandate agreement were dependent, as to their contents, upon there
existing a League ofNations and upon there being in existence Members
of the League of Natioiis. And, consequently, because of being so de-
pendent, they became completely inoperative, incapable of performance
upon dissolution of the League. We çubmit that that applies particularly
to Article 6 of the Mandate Agreement which provided for reporting by
the Mandatory to "the Council of the League of Nations ..to the satis-
faction of the Council". We submit upon there no longer being a League
of Nations, and no lang~r being a Council of the League of Nations, that
provision became incapable of performance. And, secondly, then, and
specifically important for Our purposes of jurisdiction, Article7, which
provided, in the first place, for modification of the terof the Mandate,
with the consent of the Council of the League. Again with the Gouncil
playing a necessary part for the purposes of that provision, it became
incapable of operation on dissolution of the League; and then the second
portion of Article 7 providing for compulsory jurisdiction in disputes
between the Mandatory and "another Member of the League of Nations".
There again, upon there no longer being another Member of the League32 SOUTH WEST AFRICA
of Nations there could be no party to invoke-no State with the necessary
competence to invoke-this Article and it became inoperative,
So our second contention is that-
"even if the Mandate could, in other respects,be said to be still in
. force asa treaty or convention within the meaning of Article 37 of
the Statute, Articl7 of the Mandate itself ceaseto be soin force".
Thirdly, Mr. President, on basically the same argument as applies to
our second.contention, namely that another Member of the League of
Nations is necessary for operation of Article7, there follows our third
contention which is merely an alternative way of putting the same
argument and that is that-
"even ifthe Mandate, including Article 7 thereof, could be said to
be 'a treaty or convention in force', neither of the Applicants is
qualified to invoke it as 'another Member of the League of Nations'
within the meaning thereof".
And it is mainly because of the overlapping between the second
contention-which is really still part of our First Objection-and
this third contention'which is our Second Objection-it is mainly
because of that overlapping that 1 trust the Court wiI1 find it con-
venient if 1 cany on as 1 propose and that is to deal with these two
Objections together and not to separate them entirely. I would like
to point out that the three alternative contentions, as 1 have now
put them to the Court, are nowhere exactly so stated in writing in
the Pleadings befare the Court. They are covered by the First and Second
Objections but they are nowhere exactly so stated and 1 thought it rnay
be convenient to the Court if 1 should, at this stage, hand in for each
Member of the Court a sheet of paper on which 1 have set them out in
friend has indicated that he has no objection and the copies are available
for the Court. 1 have handed copies to him already.
Le PR~SIDENT S:i je comprends bien, ce sont des conclusions qvous
avez communiquées à hl. le Greffier età la Partie adverse? Ou bien
s'agit-il d'un résuméde votre argumentation?
Mr. DE VILLIE :ROS,&Ir.President, they arenot the forma1submissions
or conclusions which I understand are normally handed in at a later
stage of the argument, in the practice of this Court. They are merely
a summary of the three main contentions which we advance under the
heading of the First and the Second Objections and 1 hand them in
purposes of analysis and the following of the further argument.for
Mr. President, on analysis of the three contentions as they are now
before the Court, 1may possibIy be asked the question "But now, why is
the first one necessary if either the second or the third should be sound?"
In other words, the question is "Isn't there a measure of overlapping
between these contentions?", and I must admit that there is. It is not
necessary for me to go so far,for purposes of an argument concerning
jurisdiction, as to satisfy the Court that the whole of the Mandate
Agreement ceased to be a treaty or convention in force if 1 could satisfy
the Court that the crucial, compromissory clause, Article 7, ceased to be
so in force as a treaty or convention.
But, Mr. President, the first contention, cornpared with the second
and third-those two arenot strictly alternatives;they are distinct lines ARi;UMENT OF MR. DE VILLIERS 33
of argument, and 1 sulmit that they are both sound. They represent
various facets of one and the same problem, namely, the effect which
the dissolution of the League had ori the pre-existing relationships
regarding the Mandate, and considerable Iight is thrown on other facets
when each one of them is dealt with. I propose therefore to deal with
each one fully, and to p.ut all those contentions to the Court because, as
1 have said, in dealing with one facet considerable light is thrown also
on the other facets. A proper appreciation of the issues and the questions
involved is thereby assisted.
Now, having stated to the Court in broad outline what Our main
contentions are, relative to the First and Second Objections, 1 turn to
the Applicants' respons~:,again, as 1 have said, by way of broad outline.
Their response, in the first place, is to point out that Our contentions as
we now advance them arein important respects at variance or in confiict
with conclusions arrived at by the Court, or by Members of the Court,
in the Advisory proceetlings of 1950 Now that is, of course, a difficulty
which we have to face ~quarely. And we do so, Mr. President, with the
greatest respect, by contending that we are now presenting to the Court
certain matenal, factual and othenvise, of very great importance which
was not before the Court in 1950 and which, had it been before the Court
in 1950,could have made al1the difference tu the conclusions eventually
arrived at in the majo,lty Opinion. We submit, therefore, that this is
one of those highly exceptional caseswhere, although the issuesmay now
in fonn appear to be still the same as they were in 1950, they are in
substance really different-really dif£erent questions for this Court to
decide, because the factual material to which this Court has to apply
the law is different from the factual material that was before the Court
in 19501 .need not ask this Court to perform the invidious function of
preferring its own reaçciningto that of an earlier tribunal because, as 1
have said, in essence aiid in substance, because of the difference in the
factual material, the issues are now different. The task to be performed
by the Court is in subç;:ance a different one.
Those are broadly ocr submissions on that question. The Applicants
departure from the Opinion ofhey 1950,oand those issues then between us
and the Applicants will have to be dealt with fully at aIater stagein the
argument.
Further, Mr. President, in regard to our first contention, the Applicants
point to the finding of t'heCourt in1950 that certain of the duties under-
taken by the Respondent in the Mandate Agreement are still in force.
That proposition, as f;iras the substantive Trust obligations in the
Mandate are concerned, is in effect not in issue in these proceedings. My
learned friend Dr. verLoren has indicated to the Court that although we
contend that the Mandate, seen as a treaty or convention, has lapsed,
we do not ofier any argument to the Court on the question, the wider
question, whether the Idandate, seen as an objective institution, is stiI1
in force, and if so, to wliat exten1.will deal with that distinction Iater;
1 am merely indicating; for the moment that we are, without making
admissions, assuming for purposes of our argument that the Mandate is
still in force as an objective institution; meaning, on the one hand, the
title, the rights, the powers of the Mandatory under the Mandate, and,
on the other hand, the substantiveTrust obligations undertaken by the
Mandatory which obBged it to use those powers and rights for the ad- SOUTH WEST AFRICA
34
vancement of and the well-being of the inhabitants of the territory. We
are assuming, for purposes of argument, that to that extent the Mandate
remains in force, but we are contending that it ceased to be in force as
a treaty or convention, as an international agreement. It is therefore
common cause between us and the Applicants that, for purposes of the
argument, at least the substantive obligations as originally set out in
Clauses 2-5 of the Mandate must be regarded as still heing in force. Now
the Applicants, if1 understand their contention correctly, appear to Say
that that is sufficient to dispose of our first contention. They Say that
that being so, and because those obligations were originally laid down
in an instrument which was a treaty or convention in force, therefore
the mere fact that the obligations or duties are stilin force must mean
that that instrument must still be in force as a treaty or convention,
That is how 1 understand the argument as they propound it in their
Observations. They seek to arrive at this conclusion without reference at
al1 to the question of parties between whom the Mandate could he said
to be in force as an international agreement, asa treaty or convention.
So we could Say that the issue which emerges between us and the
Appiicants in regard to our first contention, the crucial questionthere,
is this: Can itbe said that the Mandate can be in force as a treaty or
convention when there are no parties between whom it can be said to
operate as an international agreement? The Applicants, if 1 understand
them correctly, appear to Say the answer is "yes"; we Say the answer
is "no".
When we come to our second and Our third contentions, which relate
to the question whether the Applicants can bring themselves within the
expression another Member of tks League ofNations in Article 7 of the
Mandate Agreement; when we come to those, the Applicants are unable
to avoid the question of parties or the question of States who, in terms
of consent on the Respondent'ç part,may bring the Respondent to Court
in the instant cases. It is therefore necessary for the Applicants to
attempt to bring themselves within that expression, anotherfilember of
the League o) Nations, for purposes of-within the meaning of-Article 7
of the Mandate Agreement. And they do indeed attempt to do so. They
attempt to do so along one or both of two lines of argument, the first
one of which they call Succession and the second one of which they cal1
Curry-over. And if 1understand these contentions correctly, they amount
to this: that there has been succession on the part of the United Nations,
seen as an organization, to the League's supervisory functions regarding
the hlandate, and that that succession has led, inter dia,to the result
that Membership in the United Nations must now be regarded as bring-
ing a State within-1 quote from the Applicants-"the descriptive
specification of 'another blember of the League of Nations' for purposes
of Article7"; that is how they put it in their Observations at pages 443-
446 (1). In other words,briefly stated, their submission appears to be this:
that there has been successionwhich has in effect now made United Na-
tions Membership a qualification forinvoking Article 7,in substitution for
League Membership. And then their second line of argument, which
appears in essence to be an alternative, although they don't put it that
way, is that which they callCurry-over.They Say there has been a carry-
over of certainof the responsibilities of the Leagueupon States that were
Members of the League at the time of itsdissolution, and that has had
the result, amongst others, that such States-and 1 quote their words ARGUMENT OF MR. DE VILLIERS 35
again-"remain within the description of another Member of the League
for purposes of the Mandate". That line of argument is propounded in
the Observations at pages 446-448(I), and briefly it seems to amount to
this:that despite lossofthe qualification, League Membership,whichwas
prescribed in Article 7, States that were Mernbers of the League at the
time of dissolution ha1.e retained the cornpetence to invoke Article 7,
and that they have dcine so by reason of what the Applicants cal1 a
curry-ower+~inciple.So, clearly, the issues in that regard, both in regard
to this suggested carry-over principle and in regard to this suggested
succession, will have tcl bk very carefully gone into. Indeed, those two
issues-those two cont4:ntions as advanced by the Applicants-appear
to be of crucial importa.nce forthe purposes of the First and the Second
Objections.
You wiU have noted, Mr. President, that in our original Objections
we deal very fuiiy with a contention to the effect that the Respondent's
obligation of report and accountability to the Council of the League in
terms of Article 6 of the Mandate Agreement has lapsed, and that it
has not been replaced t.y, or rnodified into, any obligation of report and
accountabdity to any cirgan of the United Nations. We deal, as 1 Say,
very fully with that proposition, That, of course, is not in itself an
objection to jurisdiction-we fully realize that. But on the other hand
it does not follow,as th#:Applicants appear to suggest, that we introduce
that subject unnecessarily. The Applicants, strangely enough, almost
appear to resent the fact that we deal fully with the matter, because
they refer three times intheir Observations to the length at which we
do so. At pages.428 antl qzg (1) of their Observations we find that they
say, first at page428 urider paragraph z,"Respondent also devotes over
one-half of its First Objection to the question whether Article 6 of the
Mandate is in force...". At page 429 (1) they say, towards the end of the
page, "...such interconriection is not the one on which Respandent bases
its lengthy discussion of Article 6". And they continue, two sentences
further, "Since Responlrlent has nevertheless devoted more than thirty-
five pages to .the que~tion of United Nations supervision...". Their
cornplaint appears to bi: that stated at page 428 (1)where they Saythat
United Nations supervisionate,haswto jurisdiction, which is the sole issue
in these preliminary proceedings". 1 quite agree jurisdiction is the sole
issue. But exactly the way in which the Applicants have developed
their contentions in reply to our case, exactly that developrnent has
shown the importance Ior the purposes of these proceedings relative to
jurisdiction of this whoIe question of succession or no succession between
the League and the United Nations. The Applicants indeed rely on the
alleged succession in the form in which 1 have indicated as one of their
two lines of argument i~ccording to which they attempt to bring them-
selves within the exprr:ssion anotherMember of the League of Nations.
And for that reason, if Eorthat reason alone, this matter becornes of the
utmost importance. OUIfull exposition and examination of that question
of succession for purposes of Article 6 dealt very fully with it, and in
effect anticipated the Applicants' argument which is now based on that
same succession with a view to bringing themselves within the expression
alzotherMemberof the L.eaguefor purposes of Article 7. They go furtkr,
Mr. President, if 1undelstand them correctly. They Saythat the majority
Opinion of the Court in 1950 in regard to Article 7, that that opinion is36 SOUTH WEST AFRICA
to be understood asbeing based upon the finding that there has been a
succession for purposes of Article 6. They Sayat page 429 (1)of their Ob-
servations, "The interconnection, then, between Articles 6 and 7,is this:
according to the majorjty view of Article 6, Applicants have standing
to invoke Article 7 by virtue of mernbership in the United Nations,..".
That is, then, the interpretation which they themselves place upon the
majority Opinion of 1950. And now we are in the position, as 1 have
already. indicated, of putting before the Court very material, very
important information bearing upon that question of succession in regard
to Article 6, showing in our submission that, had that been before the
Court, its conclusion would have had to be different in that regard.
That is why the issue in regard to Article 6 becomes of such crucial
importance. It does not followthat if there has been succession in regard
to Article 6 there must necessarily also have been succession in regard
to Article 7; that still remainç a different argument. But if 1can satisfy
the Court that there has been no succession in regard to Article 6, then
that takes away al1semblance of abais for.contending that there has
been a succession in regard to Article 7. And that is the reason, amongst
others, why I shallat an early stagein the development of the argument
deal fully with the issues that arise in regard to this suggestion of succeç-
sion, both in regard to Article 6 and in regard to Article 7.
[Public hearing of3 Octuber 1962, mornifig]
Le PRÉSIDENT: L'audience est ouverte. J'ai le regret d'annoncer que
M. Alfaro, Vice-Président, ne pourra pas assister aujourd'hui A cette
audience pour des raisons de santé. La parole est AM. de Villiers.
Mr. DE VILLIER MS . President, before 1 deal in detail with the
various issues which 1 outlined yesterday, there is one further matter to
which 1would like to devote some attention of an introductory natureand
that is the question of principles of treaty interpretation. Of course we al1
know, with respect, that the rules are for the Judgesand not the Judges
for the rules, and no one would really want it differently. But there are
certain fundamental aspects of principles of treaty interpretation which
are important. They distinguish between the functions of a Court of Law
in expounding and applyingthe Iaw, and that of oiher types of tribunals,
like a legislature, that may have the function of altering the law inac-
cwhy I suggestwhit may be useful to have some brief discussionr reatothe
beginning of my argument in connection with these principles of inter-
pretation. Iwill,of course, not besopresumptuous asto attempt to lecture
to the Court on a subject which must be very well known to al1of its
Members. But for a better appreciation of certain of the aspects oi my
argument it rnay be useful to have someemphasison certainaspects ofthe
principles of treaty interpretation, and to have that right at the start.
There is also the factor that we al1have different backgrounds asfar as
legal training and 1egaIpractice are concerned and, in order to avoid
misunderstanding as to the legal language which 1 use, it may be useful
for me at the start to set out Ourappreciation, our understanding,of the
basic principles as they have been applied in this Court; of course only
in so far as may be relevant to the issues in this particular case.
In my brief reference to these principles, 1 shall deal first with the
subject of common intention of the Parties. ARGUMENT OF MR. DE VILLIERS 37
As we understand that subject, hir. President, briefly, the treaties
and conventions that operate in international law owe their effect in law
to the joint or common consent of the parties thereto. That is the factor
that gives to treaties and conventions binding effect in law. Perhaps one
ought to add, coupled with the general recognition of the principle that
to ansethe corollary tha rtall questions concerning either the existence of a
treaty obligation, or corxerning the measure or the meaning of a treaty
obligation, are to be answered basically with reference to the common
intent of the parties as it existed at the time when they reached their
agreement.
Therefore we find that the basic aim of treaty interpretation, as of
interpretation of co~itracts in municipal law, is generally recognized to be
that ofgiving effect to the common intention of the parties, as well as
the Court can, and as tliat common intention existed at the time when
the agreement was reaclied.
There are, amongst the commentators, certain differences on questions
of emphasis as to methods by which one can best arrive at the result of
giving effect to the conlrnon intent of the partles. Some of these will
emerge in the discussioii of some of the other principles wluch 1 have
mentioned. 1will not go into discussions which may be academicfor our
purposes here.
But it seems clear tha.t, except in the case of certain extreme teleolo-
gists whose views have iiever been accepted by this Court, there is gen-
erai agreement on the proposition that the aim of treaty interpretation is
to arrive at that common intent, and that al1the mles of interpretation,
al1the principles,are rnerely subservient to that dominant purpose-that
they are intended to be of assistance for the purpose of arriving at that
common intent.
1 shall refer, for this fairly obvious proposition, to decisions of this
Court, and also to scholarly authority. 1 do not intend to read fully from
these.
Firstly 1 refer to thtt Advisory Opinion on the Reservations to the
Convention on Gemcide. 'Thereit is stated basically that:
"It is well established that in its treaty relations a State cannot
be bound without its consent ...It is also a generally recognized
pnnciple that a multilateral convention isthe result of an agreement
freely concluded upon its clauses." (Ref. I.C. J. Refiorts1951, p. 15,
at p. 21.)
Then 1 quote from a minority Judgment in that case which further
emphasizes this point as a matter of principle and saysparticularly that:
"The fact that in so many of the multilateral conventions of the
past hundred yeart;, whether negotiated by groups of States or
the League of Nations or the United Nations, the partieshave agreed
to create new rules of law or to declare existing rules of law, with
the result that this activitysoften described as 'legislative' or 'quasi-
. legislative', must not obscure the fact that the legal basis of these
conventions, and th.e essential thing that brings them into force, is
the common consent of the parties." (Ref. ibid. ai,p. 32.)
Al1 this may be very trite, Mr. President, but 1 emphasize it for a
purpose: because that is the theme to which 1 will return every time38 SOUTH WEST AFRICA
when it cornes to the basic, the fundamental issues, concerning the first '
broad conceptions-conceptionsso pabroadly stated to the Court-such with as
succession and other matters of a similar kind, wheresome name is given
to a proposition and the name reaIiy makes it necessary for oneto analyze
what lies behind it, and how one brings the contention in line with the
fundamental principle that what we are seeking to find and seeking to
apply is a matter of common consent, a matter ofcommon intent.
The pnnciple of seeking that comrnon intent in the interpretation of
treaties is very well set out-as a principle-by authorities, judicial and
scholarly, to which 1 shall now refer.
Judicial Authority:
Case concernkg the Factory at Ckorzdw,P.C.I.J., Series A, No. g, 26
July 1927, p. 32.
"IVhen considering whether it has jurisdiction or not, the Court's
aim is always to ascertain whether an intention on the part of the
Parties exists to confer jurisdiction upon it."
"Colombian-Peruvianasylunz case,Judgment of November 2oth,1950:
I.C.J. Re$orts1950, p. 226" ; per judge Read at p. 320.
"There is,however, a principle of international law which is tmly
universal. It is given equal recognition in Lima and in London, in
Bogota and in Belgrade, in Rio and in Rome. It is the principle that,
prevail."s of treaty interpretation, the intention of the parties must
"Reservationsto the Conventionon Geftocide,Advisory Oflinion: I.C. J.
Refiorts1951 ,.15"; at p. 26.
"...no State can be bound by a reçervation to which it has not
consented ...".
Page 31, per Judges GzcerreroS ,ir Arnold McNair, Read artdHsu Mo :
"The consent of the parties is the basis of treaty obligations ..."
"Case concerningrights of nationals of the United States of America in
Morocco,Judgment of August 27th, 1952: I.C.J. Refiorts 1952, fi.r76";
at pp. 191-192,
"From either point of view, this contention is inconsistent with the
intentions of the parties to the treaties now in question. This is
show both by the wording of the particular treaties, and by the
general treaty pattern which emerges from an examination of the
treaties made by Morocco with Erance, the Netherlands, Great
Bntain, Denmark, Spain, United States, Sardinia, Austria, Bel$um
that the intention of the most-favoured-nations clauses wasties to..."
Schlurly Authority :
Rdston, J. H. The Law and Procedure of International TribunaEs,
Revised Edition (Stanford: Stanford University Press, 1926), p. 6.
"We have said that a treaty was in a general sensean agreement
between nations, More specifically, it waç described by Plumley,
umpire, in the case of the heirs of Jean Maninat, as ARGUMENT OF MR. DE VILLIERS
39
'a solemn compact between nations. It possess&s.in ordinary the
same essential qualities as a contract between individuals, enhanced
by the weightier qiiality of the parties and by the greater magnitude
of the subject-matter. To bevalid, it importsa mutual assent, and
in order that there may be such mutual assent there must be a
similar understanctingof the several matters involved.Itcan never
be what one paity understands, but it always must be what
both parties und~rstood to be the matters agreed upon and what
in fact was the ageement of the parties concerning the matters
now in dispute'. "
Page 27 :
"As is manifest from al1 of the foregoing, the intention of the
parties must rule, and the principles laid down are after al1 but
means of determiniilg, as scientifically as the subjecwill permit,
what the pariiesJ in1:entions may have been."
Schwarzenberger, G. Infernational Law, Second Edition (London:
Stevens andSons, r949), Vol. 1,p. 208.
"The purpose of the interpretation of an international treaty is to
ascertain its meanin;;, i.e. the intention of the contracting parties. As
the Permanent COUI- tf Arbitration had already emphasized in the
Island of Timor casc.(~g~q), 'here again, and always, we must look
for the reaand harnionious intention of the parties when they bound
themselves'."
Lauterpacht, H. "Restrictive Interpretation and the Principle of
Effectiveness in the 1ntei.pretation of TreatiesThe British Year Book of
InternationaELaw, Vol. XXVI (rgqg), pp. 48-85; atp. 83.
"It is the intentionof the author of the legalrule in question-
whether it be a conti-act,a treaty, or a statute-whichis thestarting
point and the goal ol al1interpretation. It is the duty of the judge to
resort to al1avai1al)le means-including rules of constmctio?-to
discover the intention of the parties; to avoid uçing rules of inter-
pretationas a ready substitute for active and independent search for
intentions; and to refrain fromneglecting any possible clues, however
troublesome may be their examination and however+Iiablethey may
be to abuse, which may reveal or render clear the intention of the
authors of the rule Io be interpreted."
Lauterpacht, H. The Develoflmentof International Law by the Inter-
national Court (London: Stevens and Sons, 1958),p. 227.
"...the fundament:~l principle of interpretation, that is to say,
that effect is to be 6;ivento the intention of the parties".
Fitzmaurice, G. G."Tlie Law and Procedure of the International Court
of Justice 1951-4 Treaty Interpretation and other Treaty Points", The
British Year Book of Intr*rnationaLaw, Vol.XXXIII (1957 pp~.203-93;
atp. 204.
"With the exception of those who support the extreme teleological
school of thought, ao one seriously denies that the aim of treaty
interpretationis ta give effect to the intentions of the parties."4O SOUTH WEST AFRICA
U.N. Duc.A/CN. ~/IOI, 14th Mach, 1956 (Refiorton The Law of
Treaties, by G. G. Fitzmaurice, Special Rapporteur), p. 16.
"Art. 4. (1) The foundation of the treaty obligation is consent,
coupled with the fundamental principle of law that consent gives
rise to obligation."
McNair, A. D. The Law of Treadies(Oxford: Clarendon Press, rg61),
P. 365.
"In our submission that task (to appIy, or construe, or interpret a
treaty) can be put in a single sentence: it can be described asthe
duty of giving effect to the expressed intention of the parties, that is,
their intention as exfiressedithewmds usedbythemin thelight O/ th
surroundingcircumstances."
Page 366 :
"The many maxims and phrases which have crystallized out and
abound in the textbooks and eIsewhere are rnerely firima facie
guides to the intention of the parties and must always give way to
contrary evidence of the intention of the parties in a particular case.
If they are allowed to become our masters instead of Ourservants
these guidecs an be very misleading."
1 would also like to Say, in regard to the views in these quotations
as expressed by an honourable Menlber of this Court, that 1 know it
couid be very invidious for members of a court to have cited to them
extracts from their writings on a matter which may have become con-
troversial in the particular case. But we are studiously avoiding that.
These views which we cite are not controversial in this particular case
and are matters of principle set out in, 1may Say with respect, such a
lucid manner that it would have been a pity not to have had them at al1
in this list; and we include them for that purpose and for that purpose
only .
Secondly, Mr. President, we refer briefly to the principles of actuality,
natural meaning and contemporaneity. Our understanding of the situa-
tionthere isbrieflythis: that one of the normal aims of parties to an inter-
national agreement-as to agreements in national lahv-is to set forth
their agreement inwriting, in suchlanguage as willbe clearly understand-
able to themselves and to others who may have some interest in reading
and understanding what that agreement is about. That is one of the nor-
maIaims. Naturally, one finds exceptions now and again, where parties
intend to disguise what their real intent may have been. Sometirnes they
don't succeedin their aim,they don't express exactly what their common
intent is in fit language for the purpose. But those are the exceptional
cases..Normally, therefore, in order to arrive at the intentofthe parties,
it is aound rule to look first, as a matter ofprima facieguide, once to the
treaty or contract, as it standsinwriting, to the text, and to accept that
as being,$rima facie at least, the agreement between the parties. And
secondly, as an equally strong prima facie guide, it is advisable to inter-
pret the treaty in accordance with the normal, the natural and the un-
strained meaning of the language in the context-this principle sometimes
being referred to asthe principle of natural meaning. And then, thirdly,
virtually as a corollary lo the previous tu-O,,there is the principle of
contemporaneity which is particularly important in treaties, and which ARGUMENT OF MR. DE VILLIERS
41
enjoins us to look at cu-ment concepts and linguistic usage at the time
when the particular treaty was entered into, ~vhichmay, in the case of
treaties,have been avery long time before the need arises for the partic-
ular interpretation.
These three principles ;irewelIknownand are expounded in the author-
ities which 1 shall cite. They are, a1 have said, not absolute rules but
they are very strong Pn'ma facieguides to intention and are generally
accepted as such. ThereEore, the authorities go on to stress that there
must be special and corrrincing reasons to displace the results which an
application of these pnnciples would indicate in a particular case. So, for
instance, if it were inten~iedto show that the text ia particular treaty
does not set forth the fullagreement between the parties; that there 1s
exceptionally something which has not been expressed in writing but
which was nevertheless part of the cornmon intent of the parties, some-
thing poçsibly verbal, soinething possibly tacit or unexpressed; those are
exceptional occurrences s.ndthey therefore require special and convincing
the text is exceptionally to be understood aseither not giving expression
to the common intent of the parties at all, or in somesense other than the
ordinary and the natural sense ofthe words in their context. It is only in
these exceptional cases fhat it then redy becomes necessary to have re-
course to extraneous means of interpretation. ,Where, for instance, an
attempt is made to show that what is recorded 1snot really the common
intent of the parties, thatthe recording waç in someway at fault, that is
one instance in which it might be possible to refer-and a necessary in-
ducement to refer-to extraneous means of interpretation. Otherwise, if
there is only one unamb~guous, natural, unstrained meaning to be given
to a text in a particular context, then that is to prevail. It would then
only be in cases of obscurity of language or ambiguity, wherc a text may
be capable-even in its rtatural connotation-ofmore than one meaning,
that it would be necessary or useful to have recourse to extraneous
means of interpretation.
In regard to statements of the principIe ofactuality and the pnncipIe
of natural meaning 1 shcluldlike to quote first of al1from articles by Sir
Gerald Fitzmaurice in the Briti s harbook.
(Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice: Treaty Interpretation and certain other Treaty PointsJ',
The Briti s har BookorIniernationaE Law, Vol. XXVIII (1951p )~, 1-
28; at p. 7.)
"The thought of the majority could be summed up by saying that
in their viewthe intentionsofthe framers ofa treaty, as they emerg-
ed from the discussions or negotiations preceding its conclusion,
must bepresumed tohave ken expressed in the treatj~itself, and are
therefore to be sou~.htprimarilyin the actual text, and not in any
extraneous s-ource.I'urthermore,treaties must be interpretedas they
stand, and subject >:Othe limitations inherent in the fact that they
only contain so.many articles, phrases and words. The intentions
or presumed intentions of the framers cannot be invoked to fil1in
gaps, or import intri the treaty something which is not there, or to
. correct or alter worclsor phrases the meaning of which is apparently
plain, or to give them a sense different from that which they possess
according to their normal and natural meaning."42 SOUTH WEST AFRICA
Page g:
"1. Principleof Actuality. Treaties are to be interpreted primarily
as they stand, and on the basis of their actual texts.
II. Principleof theNatuml Meankg. Particular words and phrases
are to be given their normal, natural, and unstrained meaning, in the
context in which they occur."
(Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice 1951-4 T:eaty Interpretation and other Treaty Points",
The British Year Book of Internatz'o?taL Eaw, Vol. XXXIII (1957 )p.
203-93a; t p. 209.)
"It is left largeIy to the textual school to insist that while a treaty
should, so faras its terms will allow, be interpreted in such a way
as to give effect to its apparent intention, and to achieve what
seem to be its objectsand purposes, it cannot be stretched to cover
more than, on the natural and ordinary meaning of its terms, it does
cover, or enIarged to contain what it does not contain; and that if
or if the apparent object cannot be achieved on the basis of then it,
actual terms of the treaty, the correct, and only correct, remedy
is for the parties to amend or supplement it, but that this cannot
be the proper function of a tribunal carrying out a purely inter-
pretative task. As the Court haç said: 'It is thedutyof the Court to
interpret ,.Treaties, not to revise thern'."
Pages 210-11 :
Resolution adopted by the lnstitute of International Law at its
Granada Session in 1956:
"Article.I.
I. The agreement of the parties having been embodied in the text
of thetreaty, itkneceçsary to take the naturaland ordinary meaning
of the terms of the text as the basiç of interpretation. The terms of
the provisions of the treaty should be interpreted in their context
as a whoIe, in accordance with good faith and in the light of the
principleç of international law.
understood in another sense, the natural and ordinary ineaning of
these terms will be displaced.
Article z.
I. In the case of a dispute brought before an internationaltribunal
itwill be for the tribunal, while bearing in mind the provisions of
the first article, to considewhether and towhat extent there are
grounds for making use ofother means of interpretation.
2. Amongst the legitimate means of interpretation are the fol-
lowing :
(a) Recourse to p~eparatory work;
(6) The practice followed in the actual application of the treaty;
(c) The consideration of the objects of the treaty." ARGUMENT OF MR. DE VILLIERS
43
Page 211:
"1. PrincipEe O/ A.dz&alit(or Textzcality).
Treaties are to be interpreted primarily as they stand, and on the
basis of their actual texts.
II. Prilzcipleof tlieNaturazand OrdinaryMeaning.
Subject to Principle VI below, where applicable, particular words
and phrases are to be given their normal, natural, and unstrained
meaning in the context in which they occur. This meaning can only
be diçplaced by direct evidence thatthe terms used are to be under-
stood in another sertsethan the natural and ordinary one, or if such
an interpretation would lead to an unreasonable or absurd result.
Only if the language employed is fundamentalIy obscure or ambig-
uous may recourçe be had to extraneous means of interpretation,
such as consideration of the surrounding circumstances, or travaux
~rd~aratoire"s.
1would now Ziketo refer the Court to the very well-known passage in
the Advisory Opinion coiicerning the Cornpetenco efth Assemblyregarding
Admission to the United Nations-the SecondAdmissions Case as it is
sometimes referred to-jn 1950.
"The Court considers it necessary to Say that the first duty of a
tribunal which is ca.lledupon to interpret and apply the provisions
of the treaty, is to endeavour to give effect to thern in their natural
and ordinary meaning in the context in which they occur. If the
relevant words in their natural and ordinary meaning make sense in
their context, that isan end of the matter. If, on the other hand,
the words in their rtatural and ordinary meaning are ambiguous or
lead to an unreason;xbleresult, then, and only then, must the Court,
by resort to other niethods of interpretation, seek ta ascertain what
the parties really did mean when they used these words. As the
Permanent Court said in the case concerning the PoZish Postal
Servicein Danzig (F.C.1J., Series B, No. II,p. 39):
'It is a cardinal principle of interpretation that words must
be interpreted in i:he sense which they would normally have in
their context, unle:,s such interpretation would lead to something
unreasonable or absurd.'
When the Court can give effectto a provision of a treaty by giving
to the words used in it their natural and ordinary meaning, it may
not interpret the -words by seeking to give thern some other
meaning." (Ref. 1.CJ. Reports rg50 ,. 4 at p.8.)
Next, 1would like to refer to the point thatthe Court has emphasized,
on certain occasions, that special and good reasons are required for a
departure from the natiiral meaning, The first example of that which 1
wish to cite is frorn thc: First Admissions Case,where the Court said:
"To warrant an interpretation other than that which ensues from the
natural meaning of the words, a decisive reason would be required which
has not been established." (Ref. I.C.J. Refi0.s 1948, p. 57 at p. 63.)
We find a similar expression in the Anglo-lranzanOz1Case : SOUTH WEST AFRICA
44
"...the Court cannot base itself on a purely grammatical inter-
pretation of the text. It must seek the interpretation which is in
harmony with a natural and reasonable way of reading the text,
having due regard to the intention of the Governrnent of Iran at
the time when it accepted the compulçoryjurisdiction of the Court.
The text itself conveys the impression that the words 'postérieurs
à la ratification de cette déclaration' ' relate to the expression
which immediately precedes them, namely, to 'traités ou conven-
tions acceptéspar la PerseJ, to which they are Iinked by the word
'et', This is, ine opinion of the Court, the natural and reasonable
way of reading the text, It would require specjal and clearly estab-
lished reasons to link the words 'et postérieurs à la ratification de
cette déclaration',to the expression 'au sujetdesituationsou defaits'
which is separated from them by a considerable number of words ..."
"Anglo-lralzian OiECO. case (jurz'sdiction!,Judgment of Jwly zznd,
1952: 1.C.J. Re#ortsrg52 , 93";at p. 104.
The Court proceeded to state that "the Government of the United
Kingdom hm endeavoured to invoke such spccial reasons" and, when
regard is had to the report, one finds that that attempt, as dealt with in
the Judgment, related to extraneous matters which could throw light
on the real intent of the parties. Sir Arnold RTcNair,in liis separate
judgment in that matter, approached the question of having recourse
to extraneous evidence in a slightly different rnanner. He considered
ings, and he said that, on that basis, it was desirable to have recourse to
extraneous evidence. He said : . .
'730th interpretations are grammatically possible, as~ounsel for
the United Kingdom adrnitted. Moreover, both are possible as a
, matter of substance; both make sense, though the,effects of the two
interpretations are quite different. In short, thereaireal ambiguity
inthe text, and, for that reason, it is both justifiable and necessary
to go outside the text and çee whether any light is shed by the sut-
rounding circumstances." (Ibid p.p. 117-r18.)
Additional authonties to which 1 wish to refer in this connection are:
Judicid Aathority :
.,Acquisition of Polish Nationality, P.C.I.J., Serieç3, NO..^ r,th Sep-
tember, 1923 ,.zo,
"The Court's task is clearly dehed. Having before it a clause
. which.leaves little to be desired in the nature of clearness, it is
bound to apply this clause as it stands, without consideringwhether
other provisions might with advantage have been added to or sub-
. stituted for it."
I?zteïpretationof the Convention O# 1919 concq,%ing Employment' of
Womenduring theNight, P.C.I.J., Series AIB, No. 50, 15th November,
1932, P.377. . ' I ARGUMENT OF MR. DE VlLLlERS 45
"The mere fact tliat, at the time when the Convention on Night
a Work of Women wits concluded, certain facts or situations, which
the terms of the .Convention in their ordinary meaning are wide
enough to cover, wcre not thought of, does not justify interpreting
those of its provisions which are general in scope othenvise than in
accordance with their terms."
"Ifiterpretation of Psuce Treaties (second $hase), Advisory Ofiinion :
1:C.J. Reports I950, p.2.21"; at p. 227.
"While the text in its literal sense does not completely exclude
the possibility of the appointment of the third mernber before the
a pointment of botli national Commissioners it is nevertheless true
, tRat according to tlie natural and ordinary meaning of the terrns
it was intended tha.t the appointment of both the-national Com-
missioners should p;:ecede that of the third member."
"Colombian-Peruvianizsylum case,Jatdgment of November2oth, 1950:
I.C.J, Reports I950, fi.226" ; at p. 279-
"Ifregard is had, on the one hand, to the structure of this pro-
vision which indicates a successive order, and,on the other hand,
to the natural and ordinary meaning of the words 'in turn', this
provision can only mean that the ..."
ScholarlyAuthority :
McNair, A. D. The La;o of Treaties (rg61),p. 367.
"In short, it is jubmitted that while a term may be 'plain'
absolutely, what a -tribunal adjudicating upon the meaning of a
treaty wants to ascertain is the meaning of the term relatively,
that is, in relation to the circumstances in which the treaty tvas
made, and in which the language was used. Ifthat iswhat is meant
by the doctrine of 'plain terms',no objection is raised to it. But if it
means that tribunals must stop short of applying the terrn in its
primary and literal sense and permit no inquiry as to anything
further, it is submitted that the doctrine is wrong. If the words
used are not clear in the light of the circumstances in which they
were used, it isperriiissible foa tribunal to examine the question,
whether the intention of the parties is different from that which
the words in their iiatural and ordinary sense express."
The principle of conternporaneity is stated by the scholarly authorities
and also in Judgments of the Court. One finds a reference to it in the
MoroccoCase, where the Court said that:
"The Treaty of 1836 replaced an earlier treaty between the United
States and Morocco .which was concluded in 1787. The two treaties
were substantially identical in terms and Articles 20 and 21 are
the same in both. Accordingly, in construing the provisions of
. Article ao-and, iriparticular, the expression 'shall have any
dispute with each otherg-it is necessary to take into account the
- meaning of the word 'dispute' at the times when the two treaties
were concluded.. Foi, this purpose it is possible to look at the way
in which the word 'dispute' or its French counterpart was iised in46 SOUTH WEST AFRICA
the different treaties concIuded by Morocco: e.g., with France in
1631 and 1682, with Great Britain in 1721, 1750, 1751, 1760and
1801. It is clear that in these instances the word was useto cover
both civil and criminal disputes. It is also necessary to take into
account that, at the times of these two treaties, the clear-cut
distinction between civil and criminal matters had not yet been
developed in Morocco,"
"Case concerningrightsof nationalsof the UnitedStatesof America in
Morocco, Judgment of Augtgust~7th~Ig'j.2:1.C.J. ReportsIp52, 9. 176";
at p. r89.
Similarly, the principle is stated in Th Minquiers case by Judge
Carneiro where he said:
"1 do not regard the Treaty of Paris as a treaty of frontiers.
To do so would be to fa11into the very error which we have been
warned against: an instrument must not be appraised in the light
ofconcepts which are not contemporaneous with it. " (Ref. 1.C.J.
ReWs 1953, P. 47, at P.91.)
Then there iç the following quotation frorn an article by Sir Gerald
Fitzmauricein the British Yearbookof 1957.
"VI. PrinciPEeof Contemporaneity.
The terms of a treaty must be interpreted according to the
meaning which they possessed, or which would have been attributed
to them, and in the light of current linguistic usage, at the time
when the treaty was originally concluded." (Page 212.)
"...the principleofContemporaneity, or the interpretation of texts
and terms in the light of the rneaning they possessed, or the sense
in which the were normally used at the time when the treaty
was conciudeJ9. (Pages 203-zoq.)
("The Law andProcedure of the I.C.J. 1951-4 Treaty Tnterpretation
and other Treaty Points", The British Yearbook of InternationalLaw,
vol. XXXIII (1957).)
Mr. President, 1 corne next to a principle which is of very great
importance for the purposes of this case, that is the question of im-
plication of tacit agreement-because as 1 understand the Applicants'
case on analysis, with reference particularly to Our first and second
Objections, it seems to rest in its crucial aspects on suggestions that this
Court is to import by implication certain things into the Mandate
agreements that were not actually expressed in those agreements,
either in the Mandate agreements or in other relevant agreements wh~ch
enter into the discussion for the purposes of the argument. And,,there-
fore, 1 wish to place particular emphasis on the question of the pnnciple
upon which such an impIication may or may not be justified.
I have referred to the pnnciple of actuality, which involves, amongst
others, that $rima facie the contract is to be taken as being fixllset
out in the written text, though exceptionally it rnay be possible to ARC UMENT OF MR. DE VILLIERS
47
establish that çomething; went without saying, that is something was
clear as a rnatter of actilal common intent in the minds of the parties,
but they did not expre:;s it; something additional, then, to the text,
upon which they gave no expression. If one were to enter into a process
of ascertaining whether that position does or does not apply in a partic-
ular case, then strictly speaking that is not reallya matter of interpre-
tation in the narrower sense of assigning a rneaning to a text ; it is rather
a process of atternpting to establish a proposition by circumstantial
evidence from which everituaIly a process of inference becornes necessary,
The circumstantial evidence would, of course, begin with the indications
afforded by the text itself ; but then also extraneous matters, surrounding
circumstances, travaux $r.@aradoires,conduct of the parties subsequent
to the treaty, and so forth, may be taken into account as being part
and parcel ofthe whole picture that could be built up by way of circum-
stantial evidence in order to see eventually whether that logical inference
can or cannot be drawn--the inference of a ecit mutual assent which
actualIy existed on the part of the parties in regard to a particular
point.
In al1legal systerns,Mr. President, courts of law have guarded them-
selves against asçenting too readily to a proposition that a certain
implication is.to be read into a contract, or into a treaty, as the case
rnay be. Because courts have realized that ifthey were to do that-if
they were to assent to pi.opositionç of that kind too readily-then they
may really become partics to making a new bargain-a new contract-
for the contracting parties, which of course is not the courts' true
function; the true function being to give efiect to the contract actually
made by the parties themselves,
Because of the fact th;it thisis a process of reaçoning by inference-
almost a rnatter of establishing a proposition by circumstantial evidence
-and also because of this danger of making new contracts for parties,
the courts have emphasized that in order to be justified such an
inference must arise nc:cessarily or inevitably from the evidential
data.
That proposition will be found emphasized repeatedly in the following
authorities, where the emphasis every time is on the elernent of necessary
implication, necessary intendment, arising inevitably.
Judicial Authority .
"Repuration for injuriçs suoeredinthe serviceof the United Nations,
Advi~ory Oflinion: I.C.J. Reports 1949, fi.174" ;ai p. 179.
"It is dificult to s;e how such a convention could operate except
upon the international plane and as between parties possessing
international personillit y.
In the opinion of the Court, the Organization was intended to
exercise and enjoy, and is in fact exercising and enjoying, functions
and rights which cm only be explained on the basis of the possession
of a large measure of international personality and the capacity
to operate upon an iilternational plane."
Page 182 :
"Under international law, the Organization must be deamed to
have those powers which, though not expressly provided in the48 SOUTH WEST AFRICA
Charter, are conferred upon it by necessary implication as being
essential to the performance of itç dutieç."
Page 184 :
"Upon examination of the character of'the functions entrusted
to the Organization and of the nature pf the missions of its agents,
it becomes clear that the capacity of the Organization to exercise
a measure of functional protection of its agents arises by necessary
intendment out of the Charter."
"Colombian-Peruvian asylum case,Judgment of November 2otk, 1950:
I.C.J. Reforts 1950 , .266" ; at p.275.
"This institution would perhaps be more effective if a mie of
unilateral and defmitive qualification were applied. But such a
rule isnot essential to the exercise of asylum.
These considerations show that the alleged right of unilaterd
and definitive qualification cannot be regarded asrecognized by
implication in the Havana Convention."
"Case concerningrights of nationals of ilz UeniteS dtates of America
in Morocco,Judgment ofAugust 27dh, 1952 : IL. J. Reports Ig52, p.176";
at p. 198.
"An interpretation, by imprication from the provisions of the
Act, establishing or confirming consular jurisdiction would involve
a transformation of the then existing treaty rights of most of the
twelve Powers into new and autonomous rights based upon the
Act. It would change treaty rights of the Powers, some of them
terminable at short notice, e.g., those of the United States which
for an unlimited penodlvebynothe Powers and incapable of being ter-
minated or modified by Morocco. Neither the preparatory work
nor the Preamble gives the least indication of any such intention.
The Court finds itself unable to impIy so fundamental a change in
the character of the then existing treatyrights as would be involved
in the acceptance of this contention.
There is, however, another aspect of this problem arising out of
the particular Articles to which reference has been made above.
.These are the Articles which include provisions necessaxilyinvolving
the exercise of consular jurisdiction. IV this case, there is a clear
indication of the intention of the parties to the effect that certain
matters are to be dealt with by the consular tribunal5 and-tothis
' .extent it is possible to interpret the provisions of the Act as estab-
lishing or confirming the exercise of consular jurisdiction for these
,, limited purposes. The maintenance of consular jurisdiction in so
far as it may be necessary to give effect to these specificprovisions
can, therefore, be justified as based upon the necessary intendment
of the provisions of the Act."
Page199 :
"The Court is not called upon to examine the particular articles
., of the Act of Algeciras which are involved, It considers it sufficient
to state as its opinion that the consular jurisdiction .of the United ARGUMENT OF MR. DE VILLIERS 49
States contiiiues to exist to the extent that may be necessary to
render effectivethose:provisionsof the Act of Algeciraswhich depend
on the existence of consular jurisdiction.
This interpretatioii of the Act, in some instances, leads to resuIts
which may not appilar to be entirely satisfactory. But that is an
unavoidable conseqiience of the rnanner in which the Algeciras
Conference dealt with the question of consular jurisdiction. The
. Court can not, by way of interpretation, derive from the Act a
general rule asto full consular jurisdiction which it doesnot contain.
On the other hand, the Court cm not disregard particular provi-
sions involving a liniited resort to consular jurisdiction. which are,
in fact, contained in the Act, and which are stilI in force asfar as
the relations between the United States and Moroccoare concerned."
CertaifiExpelases of the UrtitedNations(Article 17, paragrafih 2, of the
Charter), Advisory Opi~ion of 20 Jzkly1962, Tirage spécial, p. 13.
"Since no such quslification is expressed in the text of the Char-
ter, it could be read in, only if such qualification must necessariiy
be implied from the ~~rovisionsof the Charter considered as a whole,
or from some particular provision thereof which rnakes it un-
avoidable to do so jn order to give effect to the Charter."
Fitzmaurice, G. G. "l.he Law and Procedure of the International
Court of Justice: Treaty lnterpretation and certain other Treaty Points",
The British Year Book ofInternationalLaw, Vol. XXVIII (1951p )p,. I-
28; at p. g.
"1. Positive and :ictive obligations-as also definite exceptions
to, or derogations from, such obligations-cannot be left to arise
as a mere inference from a text or provision. They must be expressed
in termç, In other wcrds, positive obligations, or exceptions thereto,
cannot be read into ;itreaty. If not actually expressed, they must
what isexpressed."cessary(and not merely a fossible) inference from
Page 22 :
"...definite rights and obligations, or specifrc derogations there-
from, cannot be read into treaty provisions by a process ofinference;
unless this is a necessaryand not rnerely a Possibleconsequence of
the language used". .
Page 23.
"The Court's view is therefore authority for the proposition that
in fact violence isdcine to the terms of a treaty (and consequently
to major principle II) whenever the existence of a right, obIigation,
- procedure, etc., not expressly provided for in the treaty or prima
facie contemplated by it, and not a necessaryconsequence of the
. terms employed, is rievertheless read into it as not being actually.
incompatible with thxe terms, while tendingto promote the objects
. % of the treaty."5O SOUTH WEST AFRICA
Page 24.'
"..remedies or sanctions for breaches of a treaty cannot be read
into it as mere inference from its terrns, still less on the su position
that a remedy or sanction of some kind must be presume S to have
been intended".
Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice 1951-4T:reaty Interpretationand other Treaty Points",
The British Year Book of International Law,Vol. XXXIII (19.57))
pp. 203-293; at p. 233.
"In short, the implicationto be validlydrawn, must be a neces-
sary one."
McNair, A. D. The Law of ~reuties(1961p ).436.
"Conditions should be implied only with great circumspection;
for if they are implied too readily, they would become a serious
threat to the sanctity of a treaty. Nevertheles the main object of
interpretation of a treaty being to give effect to the intention of
the parties in using the language employed by them, it is reasonable
to expect that circumstances shouldarise (asthey do in the sphere
of private law contractin which it is necessary to imply a condition
in order ta give effect ta this intention."
Courts in municipal law systems have frequently dealt with the very
same problem, in principle, as to whether a tacit agreement, an implied
term, could be read into a contract between parties. Applying this same
test ofnecessaryintendment, oneceçsary infer%ce?the courts have,from
a practical point of view, indicated various criteria which may be very
useful to bear inmind. 1 cite them, with respect, ta this Court particu-
lady because some of them are so very apt and capable of such very
apt application to the problems which ariçe in this case from the sug-
gestions thatan implication of tacit agreement is to be read into certain
of these treaties with which we are dealing.
Before doing so 1 would like to refer the Court back-first to the Pre-
lirninary Objections at pages 343-344 (1)where we citean extract from
a judgment of a Judge of Appeal, and later Chief Justice of South Africa,
in which he set out these "two cardinal rules of logic which cannot be
ignored" in reasoning by inference. The first is that "The inference sought
to be drawn must be consistent with al1 the proved facts. If not, the
inference cannot be drawn." And secondly, "The proved facts should
be such that they exclude every reasonable inference from them Save
the one sought to be draïvn. If they do not exclude other reasonable
inferences, then there mustbe a doubt whether the inference sought to
be drawn iscorrect."
One findç that thissame idea isemphasized in the well-known work
Wilis on Prilzciples of CircullzstantialEvidelzce(7th Ed. 1936, p. 19)
where the learned author says: "The force and effect of circumstantial
evidence depend upon its incornpatibility with, and incapability of,
explanation or solution upon any other supposition than that of the
resembling the method of demonstration by the reductioe ad absurdum." ARGUMENT OF MR. DE VILLIERS SI
The sarne point was, in effect, made by an Honourable Member of
this Court, Mr. Justice E-adawiPasha, in the Corfu Channel case (1949).
where he stated that "1:hemost reliable doctrine takes the view that
'proof by circumstantial evidence is regarded assuccessfully established
only when other solution:. would impIy circumstances wholly astonishing,
unusual and contrary to the way of the world' " (I.C.J. Reports1949,
p. 4. at p. 60): thus thi same idea, namely that dl other reaçonable
conclusions, or reasonabje inferences, must be excluded.
Mr. President, then 1 also refer to a quotation which will be very
well known to the Menibers of the Court who are acquainted with
English jurisprudence. 1.:is the vev well-known formulation of Lord
Justice Scrutton in the case of Reigate v. Union Manufacturing Co.,
where the matter was put this way by the Iearned Lord Justice:
"These principles, however, have been clearly established: The
first thingis to sec what the parties have expressed in the contract;
and then an implied terrn is not to be added because the Court thinks
it would have been reasonable to have inserted it in the contract.
[Merely because it would have been reasonable, therefore, the term
is not to beinserted.:A term can only be implied if it is necessary in
the business sense tri give efficacy to the contract; that is, if it is
such a term that it 'anconfidently be said that if at the time the
contract was being nc:gotiatedsomeonehadsaid to the parties, 'What
will happen in such :case',they would both have replied, 'Ofcourse
so and so will happen; we did not trouble to Say that; it is too
clear'. Unless the Court comes to some such conclusion as that, it
ought not to imply 3 term which the parties themselves have not
expressed." (Ref. 19:8 iK.B. 592, at p. 605.)
That gives a very pracical demonstration of the type of question one
is to ask oneself when censidering whether the inference is a necessary
one or not.
To this, further comment was added by Lord Justice McKinnon in
Broome v. Pardess Co-ojp.Soc. (1940 (1) A.E.R. 603, at p. 612). He
stated:
"1 will add only one observation to those passages. Where the
parties have made ;in express provision as regards some matter
with regard to the contract, it is,and must be, extremely difficult
for either of them t.3 Say in regard to that subject-matter, as to
which there is an express provision, that there is also an implied
provision or condition in the contract."
That is a factor whicll also comes into the discussion in this case,
that when a particular matter is already regulated by express provision
in a contract it becomes so much more difficult to suggest that there
must in addition be also an implied regulation of that matter in the
contract or agreement.
And, finally, 1 cite from further observations on these very same
principles in a South African case by Judge Mililliin the Witwatersrand
Local Division (Transva:~l) in 1943. He was dealing with these very
same principles and their practical application. He said:
"The casesshow that the Court has to be continualiy on its guard
against being persue.ded to introduce a terrn which, on analysis 52 SOUTH WEST AFRICA
,of the argument, appears to be no more than a term which would
- make the carrying out of the contract more convenient to one of
the parties or to both of the parties and might have been included
ifthe parties had thought of it and if they had both been reasonable.
You are not to imply the term merely because if one of the parties
. or a bystander had suggested it, you think only an unreasonable
person wodd have disagreed. You have to be satisfied that both
parties did agree. It is quite a different proposition, if in the hy-
pothetical case ScruttonL. J. puts in, you feel the parties might Say:
'You have called our minds to something we have not thought of
and what you Say is not unreasonable, let us discuss it.' If that is al1
that the Court feels might have happened then the Court is not
entitled to irnply the term.
Again, it follows from the principles which I have tried to ex-
. tract from the cases that the term sought to be implied must be
capable of clear and exact formulation. It must be capable of
being formulated substantially in only one way and once there is
difficulty in formulating the term, or a doubt as to how it should
be formulated or as to how far something or other should be ex-
tended which has been thought of, then can it be said that there
is a term which the parties must obviously have intended to agree
upon? Once there is difficulty and doubt as to what the term
. should be or how far it should be taken it is obviously difficult
to Say that the parties clearly intended anything at al1to be implied.
If you corne to the conclusion that ifthe matter had been raised
' with the parties at the time they were agreeing and a number of
different ways of dealing with the point could have been suggested,
it is surely not competent for a party seeking to imply a term to
select one of these possibilities and to Say that is the term which
ought to be implied." (Rapp and Maister v. Aronovsky, 1943
W.L.D. 68 at pp. 74-75.)
The next principle to which 1wish to pay very brief attention is that
which renders of assistance the three factors of travaztx $réfiaratoires,
contemporanea ex$ositio and subsecula observatio. The Court knows
the pnnciples in that regard; 1 do not intend to state what these various
concepts mean. The only question that ariçes is under what circum-
stances is it either permissible or of assistance to have recourse to
these variouç extraneous means of interpretation. Broadly speaking,
again we have to divide the subject into two parts. One is that of in-
terpretation in the narrower sense of açsigning a meaning to a text.
There, of course, the degree of usefulness of these various extraneous
methods of interpretation may increase or decrease in accordance with
the clarityor lack of clanty of the text, because if a text in its natural
meaning, in its context, is absolutely clear and unambiguous, then it
would hardly be possible for any of these externat factors to compete
against the evidential weight of that text as to what the intention of the
parties was. One rnay get a case then of confiictbetween these extraneous
factors and the clear indications afforded by the text, And so,ofcourse,
one can get various gradations; the text may not be absolutely clear
or, on the other end of the scale, it rnay be completely ambiguous or
obscure, and' depending on matters of degree it may be possible then,
for purposes of textual interpretation, tohave recourse to these matters ARGUMENT OF MR. DE VILLIERS 53
-these aids to interpretation-and io find them useful. But there is
also the other aspect of what is possibly not strictly interpretation
but is generally regardrd as a process of interpretation-quasi inter-
pretation-and that is to decide whether in a particular instance the
parties were tacitlyagreed upon something which they did not express.
And in the course of a11 inquiry of that nature, these factors appear
to have been freely adinitted and taken into account by this Court,
with respect quite correc:tly, because they form a necessary part of the
evidential data from which inferences eventually are to be drawn.
Therefore, it will be fouiid that some of the authorities to which 1 will
refer deal with these aiils to interpretation in the one respect 1 have
mentioned, while other:; deal with them in the other respect 1have
mentioned. With regard to lruvuux préparatoires. 1 refer to the FirsS
Admissions case where the suggestion was that there should be use
of travaux firépurutoiresior purposes ofassigning a meaning to the text.
The Court said :
"The Court considers that the text is sufficiently clear; conse-
quently it does not feel that it should deviate from the consistent
practice of the Permanent Court of International Justice, according
to which there is no occasion to resort to preparatory work if the
text of a conventicn is sufficiently clear in itself." (Ref. I.C.J.
RePorts 1948, p. 57, at p. 63.)
We find much the salr.e stated in the Second Admissions case, and in
the Anzbatieloscase on jvrisdiction.
"When the Court can give effect to a provision of a treaty by
giving to the words iised in it their natural and ordinary meaning,it
may not interpret the words by seeking to give them some other
rneaning. In the present case the Court finds no difficulty in ascer-
taining the natural and ordinary rneaning of the words in question
and no difficulty iri giving effect to them. Some of the written
statements submittcd to the Court have invited it tu investigate
the travaux préfiaraioires of the Charter. Having regard, however,
to the considerationi above stated, the Court is of the opinion that
it is not permissible, in this case, to resort to travazkx#réfiaratoires."
"Com9etence of AssemSly regardzng admission to the United Nations,
Aiivisory Opinion: I.C.J.Refiorts 1950 .i4"; at p. 8.
"In any case where, as here, the text to be interpreted is clear,
there isno occasion to resort to preparatory work.!'
"Ambatielos case (lurisdiction), Jztdgment of July ~sf, 1952 : I.C.J,
RePorts 1952, 9. 28" ; at p.45.
The same point again that where the text to be interpreted is cIear,
there is no occasion to rc:sortto preparatory work. These are instances
then of suggested use 04'travaux firé+avatoiresfor purposes of textual
interpretation.
We find for the same purpose a passage in Lord McNair's Law of
Treaties where he stated: SOUTH WEST AFRICA
54
"Here we are on solid gound and are deaBng with a judicial
practice worthy to be called a rule, namely that, when there is a
doubt as to the meaning of a provision, or an expression contained
in a treaty, the relevant conduct of the contracting parties after
the conclusion of the treaty (sometimes called 'practical construc-
tion') has a high probative value as to the intention of the parties
at the time of its conclusion. This is both good sense and good Iaw."
(McNair A. D., The Law of Treaties(1961p ).,424.)
1 must apologize. 1 see 1went over to the other aspect not confined
to travauxpréfiaratoire sut to the matterof subsequent conduct between
the parties, where, in principle, the positionis very much the same.
Then in regard to travaux$réfinratoires ,s regards the other aspect of
using it (or using subsequent conduct) as a factor of circurnstantial
evidence in an inquiry as to tacit intent,one finds that that has been
done on various occasions. So, for instance, in the GenocideAdvisory
Opinion the Court said:
"The character of a multilateral convention, its purpose, pro-
visions, mode of preparation and adoption, are factors lvhich must
be considered in determining, in the absence oany express provision
on the subject, the possibility of rnaking reservations, as well as
their validity andeffect.
Although it was decided during the preparatory work not to
insert a special article on reservations, it is none the less true that
the faculty for States to make reservations was contemplated at
successive stagesof the drafting of the Convention. In this connec-
tion. the following passage niay be quoted from the comments on
the draft Convention prepared by the Secretary-General."
"Reservations fothe Conventionon Ge~ocideA , dvisory Opinion: 1.CJ.
Reports I95I. p. 15"; atp. 22.
I may in this regard refer to the very apt comment of Sir Gerald
Fitzmaurice in his 1951 article in theBritish Yearbook,where,.speaking
of the situation as atthat date,the learned author stated:
"The Court has shown no eagerness tohave recourse to travaux
firéfiaratoirand has not in fact done so, except on one occasion
where the issue was not strictly one of interpretation."
A footnote to the above is to the following effect:
"In its Advisory Opinion on the Reservations to the Genocide
Convention (1.C.J.Reports Iggr, p. r5) the Court based its view in
part on certain statements made by representatives ofGovernments
during the drafting of the Convention. But in so doing, the Court
was not interpreting any provision of the Convention itself (nor
did the Request addressed to it put any point of interpretation as
such). The particular issue involved in the appeal to the records
was whether, despite the absence of riny express clause in the Con-
vention pennitting reservations to be made, there had been a tacit
understanding among the delegates drawing up the Conve?tion
that certain kinds of unilateral reservations would be perrnitted.
The point was therefore extraneous to the text of the Convention,
and the question ofintention was a substantiveissue,fierse,rather ARC;UMENT OF MR. DE VILLIERS 5.5
than something to be ascertained as a means to interpreting some-
thing eIse." (FitzmriuriceG. G. "The Law of Procedure of the I.C.J.:
Treaty Interpretation and other Treaty Points", British Yearbook
of InternatiowalLaw, XXVIII, 1951 ,p. 1-28 at p. 6.)
There is a later case, that concerning the Rights of Nationals of the
Uded Statesin Morocco, where there was again a recourse to preparatory
work for the purpose of seeing whether a certain implication could be
made, and in which the Court said:
"Case concsrningrigh!s of nationals oj the United States of Arnerica ifi
Morocco,Judgment of August 27th, 1952: I.C.J. Reports 1952, p. 176";
at p. 198.
"An inter~retati~sn, by implication from the provisions of the
Act, establishing 01.confinning consular jurisdiction would involve
a transformation of the then existing treaty rights ...Neither the
preparatory work ~lor the Preamble gives the least indication of
any such intention."
Page 209 :
"It cannot be said that the provisions of Article 95 alone, or of
Chapter V of the Act considered as a whole, afford decisive evidence
in support of either of the interpretations contended for by the
parties respectively..
The Court ha examined the earlier practice, and the preparatory
work of the Conferince of Algeciras of 1906 ..."
Mie find the same thing with regard to the principles of subsequent
conduct on thepart of the parties. These principles of subsequentconduct
can also be applied in onr or the other sense; either of assigniagmeaning
to a text where that te:rt is for some reason obscure or ambiguous and
where the other method:; of interpretation donot provide a clear answer,
or alternatively with niuch freer use, under circumstances where the
issue is not one of strict interpretation ofa text but one of ascertaining
whether there was ataclt agreement or understanding upon a particular
point.
1refer to:
Judicial Authority :
Jurisdiction of the Courts of Danzig {Pecuniary claims of Danzig
Railway OficialswhoIza~iP eassedinto thePolishService,againstthePolish
Razlways Administratiorc), P.C.I.J., Series B, No. 15, 3rd March, 1928,
p. 18.
"The intention cd the Parties, ~vhich is to be ascertained from
the contents of the .4greement, taking into consideration the manner
in which the Agreement haç been applied, is decisive, This principle
of interpretation çIlould be applied by the Court in the present
case,"
"Corfu Chatannec1ase,jrudgmenl O# April glh, I949 :I.C.J, RefiortsIgqg,
$. 4" ;at p. 25.56 SOUTH WST AFRICA
"The subsequent attitude of the Parties shows that it was not
their intention, byentering into the Special Agreement, to preclude
the Court from fixing the amount of the compensation."
"Cornpetence ofAssernblyregardingadmission to the UrzitedNations,
Advisory Opinion: I.C.J. Reports1950, p. 4"; at p. 9.
"The organs to which Article 4 entrusts the judgment of the
Organization in matters of admission have consistently interpreted
the text in the sense that the General Assemblycan decide to admit
only on the basis of a recornmendation of the Security Council. In
particular, the Rules of Procedure of the General Assembly provide
for consideration of the merits of an application and of the decision
to be made upon it only 'if the Security Council recommends the
applicant State for membership' (Article 125).The Rules merely
state that if the Security Council has not recommended the ad-
mission, the General Assembly may send back the application to
the Security Council for further consideration (Article 126). This
laststep has been taken several times: it was taken in Resolution
296 (IV),the very one that embodies this Request for an Opinion."
ScholarlyAuthority :
Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice: Treaty Interpretationand certain other Treaty Points",
The Britis hear Book of International Law, Vol. XXVIII (1951))
pp. 1-28; at p. g.
"V. Pri?zci$Eeof Subsequent Practice. In interpreting a text,
recourse to the subsequent practice of the parties,as evidenced in
rules of procedure they have formulated, or in other ways, is not
only permissible but desirable; in brief, the way in which the treaty
has actually been interpreted in practice is evidence (sornetimes the
best evidence) of xvfiat its correct interpretatiis."
Pages 20-21:
"It is a fairinferencefrom the attitude of the Court that, in its
view, the subsequent practice of the parties in relation to a treaty
is not only a legitimate guide to its correct interpretation, but
probably a more reliable guide than recourse ttravauxpréfiaratoires
or the attempt to ascertain the presumed intentions of the original
framers. It should be observed, however, that strictly speaking,
although it is convenient to classify the rnatter as a principle of
interpretation,it is not really that so much as a rule of evidence.
It isaquestion of the probative value of the practice of the parties
asindicative of ivhat the treaty means."
Fitzmaunce, G. G. "The Law and Procedure of the International
Court of Justice1951-4 Treaty Interpretation and other Treaty Points",
The British Year Book of International Law, Vol. XXXIII (1957)~
pp. 203-293; at pp. 211-212.
"V. P~inciple of Subsequent Practice. In interpreting a text,
recourse to the subsequent conduct and practice of the parties in ARGIJMENT OF MR. DE VILLIERS
57
relation to the trea.ty is permissible, and may be desirable, as
affording the best and most reliable evidence, derived from how the
treaty has been intelpreted in practice, as to wkat its correct inter-
pretation is."
Foolnoteto this Principle :
"Where the practice has brought about a change or development
in the meaning of the treaty through a revisio.i2 of its terms by con-
duct, it is permissibiéto give effect to this change or development
as an agreed revision but not as an interpretation of its original
terms."
"It is, of course, axiomatic that the conduct in question must
have been that of both or all-or, in the case of general rnultilateral
conventions, of the great majority of the parties, and not merely
of one ...
...a consistent practice must corne very near to being conclusive
asto how the treaty should be interpreted."
McNair, A. D. TheLas?ofTreaties(1961), p. 424.
"Here we are on solid ground and are dealing with a judicid
practice worthy to liecalled a rule, namely that, when there is a
doubt as to the meaning of a provision, or an expressioncontained
in a treaty, the relevant conduct of the contracting parties after
the conclusion of th(: treaty (sometimes called 'practical constmc-
tion') has a high probative value as to the intention of the parties
at the time of its co~cluçion.This is both good sense and good law."
Apart from questions of textual meaning, the subsequent conduct
of parties, particularly ai:stages where one would expect them to recail
a tacit agreement tu mirtdand to apply it-under those circumstances
the subsequent conduct of the parties could, in our submission, afford a
very cogent guide, a very strong probative factor, on the question
whether an inference as to tacit intent arises necessarily.
Finally, Mr. Presideni:, and perhaps with a sense of relief on the
part of the Court, 1 corne to the last of these principles-the one of
effectiveness (ut res malris vlaleatpuam pereat). This is the pnnciple
by which, as we understand it, the Court has taken account of objects
and purposes of treatiesto be interpreted, and where the Court, in case
of doubt, interprets a treaty in such a way as to give major effect to
those objects and purposes. It is a principle which is again invoked
in the present case in ci.ucia1respects by the Applicants, that is why
1want to pve some close consideration to it at the present stage.
Again, the primary form of application of the principle 1s one in ,
what 1have termed the narrower sphere of interpretation, of asigning a
meaning to a text. Indeed, the maxim is put by some authorities in
this fom: Verba ita suna!intelligenda ut res magis valeat quam $ereat-
"wordç are to be so understood ..."And, in the various continental codes,
one finds the principle r;tated in the same form. For instance in the
French code-I will give a free English translation-in Article XI 57:
"When a clause is susceptible of two meanings it is to be understood
rather inthat sense in n,hich it can have some effect than in the sense58 SOUTH WEST AFRICA
in which it can have no effect at all." The Dutch code, Article XIII, So,
is exactly the same, and the Italian code, Article XIII, 67, is much the
same, except that instead of referring to "When a clause is susceptible
of two rneanings" it simply says "In a case of doubt".
That is the primary sphere of application of the priilciple. In acase
of doubt, in a case of ambiguity, in a matter of textual interpretation,
that provides a sphere for application of this principle-avery legitimate
one. But here too, as in the case of certain of the other principles which
we have discussed, it has been introduced into the other sphere, which
is, as 1have said, not stnctly oneof interpretation but one ofimplication,
or suggested implication, of tacit intent in a particular instance.
It could, in that respect, be a factor, but no more than a factor,
to be taken into account together with al1 the other evidential data,
in the process of determining whether or not a necessary inference as
to tacit intent on a particular point can be drawn.
In the authorities which 1 shall cite,bve find then that the principle
is stated in relation to its application in both of these spheres. We find,
for instance, the general statement in the Judgment of the Permanent
Court, in the case of the Acqzkisitio~zO/Polish Nationality:
"...an interpretation which would deprive the Minorities Treaty
of a great part of its value is inadmissible". (P.C.I.J., Series B,
No. 7, 15 Sept. 1923, p. 17.)
And in the Corfi~Chan~lelcase Judgment, it was stated:
dispute is referred to the Court rnust, if it does not involve doing
violence to their terms, be construed in a manner enabling the
clauses themselves to have appropriate effects." (I.C.J. Reports
1949. P. 4, at P 24.)
Thatstill appears to apply primarily to textual interpretation. And
we find the pnnciple, very aptly if 1 may Say so, stated in an article
by Sir Gerald Fitzmaurice in the 1957 British Year Book O# Intei.nationa1
Law :
Fitzmaurice, G. G. "The Law and Procedure of the International
Court of Justice: Treaty Interpretation and certain other Treaty Points",
The Brz'lish Year Book of International Law, Vol. XXVIII (1951).
pp. 1-28; at p.g.
"Subject to 1and Il:
III. Principle of Integrution.
Treaties are to be interpreted asa whole, and with reference
to their declared or apparent objects, purposeç, and principles.
IV. PrzlzcipEeof Eflectiveness.
Particular provisions are to be interpreted so as ta give them
the fullest weight and effectconsistent with the normal meaning
of the words and with other parts of the text."
Page 18:
"These principles are subordinated to the first two, because
otherwise they would be liable to lead to a purely teleological
method of interpretation which the Court declined to follow.
Subject to this, they were endorsed by the Court." ARGUMENT OF AIR.DE VILLIERS 59
With regard to the otlier sense, which for Our purposes in the present
case is the more important one, 1quote from Hdsbury's Lawsof Ertgland
-Volume KI, page 392 of the 3rd Edition-where the learned authors
state, with reference to l<nglishcase law:
"In order to give effect to a contract according to what appears
to have been the intention of the parties, the Court may imply
a term or conditioii or a qualification of a clause which is not
inconsistent with tlie general tenor of the document, but where
the intention of the parties is not sufficiently clear the Court will
not make a contraci: for them in order to prevent the whole agree-
ment from being void on the ground ofuncertainty or otherwise."
And, again, with reference to that type of application of the prin-
ciple, we find an il1ustr;ttion in the Repavaiionjor injuries case, 1949.
"Re$arationfor injzcriessueered in the service of the Uded Nations,
Advisory Opinion :.C.J. Reports1949, p. 174"; at p. 179.
"It is at present the supreme type of international organization
and it couId not caxy out the intentions of its founders if itwas
devoid of international personality. It must be acknowledged that
its Members, by entrusting certain functions toit, with the attendant
duties and responsibilities, have clothed it with the competence
required to enable those functions to be effectively discharged."
Page 183 :
"Having regard to its purposes and functions already referred to,
the Organization may find it necessary, and has in fact found it
necessary, to entrust its agents with important missions to be
performed in disturbed parts of the world ...Both to ensure the
efficient and independent performance of these missions and to
afford effective support to its agents, the Organization must pro-
vide them with adequate protection."
There the Court dealt with the question of what powers the United
Nations Organization rriust be regarded as having by virtue of its
Charter with a view to what it called protection of its agents aggnst
certain types of injuries in the course of their duties. The conclusions
at which the Court arriv?d, as is apparent from these passages and also
the earlier ones cited by me, were based on necessary implication
or necessary intendmeni from the terrns of the Charter, and in the
reasoning which led to tlieconclusion this factor of effectiveness played
a very large part. It is, then, a factor which could, in the determination
of a probability as to wliat the intent of the parties was likely to have
beeBut 1wish to stress, with respect, that in a process of that kind, where
the inquiry is aç to tacit intent, one cannot concentrate on one element
of presumed effectiveness to the exclusion of ali other cogentindications
of what the real intent of the parties was. One must inevitably have
regard to al1 relevant, practical, reliable indications of intent before
coming to one's final conclusion. And that is awaming which has very
often been stated in the jurisprudence of this Court and also by com-
mentatorsin international latv and, indeed, also inthe sphere of national
law-a warning that, at most, this rule is intended to açsist the Court60 SOUTH WEST AFRICA
override or supplant the real intention of the parties or the absence oft
intent upon a particular point. That warning one will find repeated in
various decisions of this Court, for instance in the Peace Treaties case
(Second Phase).
There the Court stated :
atingeabCommission which iç not the kind of Commission contem- cre-
plated by the Treaties. It is the duty of the Court to interpret the
Treatieç, not to revise them.
The principle of interpretation expressed in the maxim: Ut res
magis valeatquampereat,often referred to as therule of effectiveness,
cannot justify the Court in attributing to the provisions for the
settlement of disputes in the Peace Treaties a meaning which, as
stated above, would be contrary to their letter and spiri..."
The rest of the passage goes on in a sirnilar vein:
"The ineffectiveness in the present case of the clauses dealing
kith the settlement of disputes does not permit such a generaliza-
tion" [as was suggested to the Court].
"...Normally each party has a direct interestin theappointment
of its cornmissioner and must in any case be presumed to observe
its treaty obligation. That this was not so in the present case does
not justify the Court in exceeding its judicial function on the pretext
of remedying a default for the occurrence of which the Treaties have
made no provision." (I.C.J. Reports Ig50 ,. 221, at pp. 229-230.)
Similar caution is either expressed or is demonstrated in the Morocco
case, where the Court said:
"The purpoçes and objects of this Convention were stated in its
Preamble in the following words ..In these circumstances, the Court
can not adopt a construction by implication of the provisions of
the Madrid Convention whicti would go beyond the scope of its
declared purposes and objectç. Further, this contention would in-
volve radical changes and additions to the provisions of the Con-
vention. The Court, inits Opinion-Interpretation of Peace Treaties
(Second Phase) (I.C.J. Repori% 1950. p. 229)-stated: 'It is the
duty of the Court to interpret the Treaties, not to revise them'."
"Case conceraingrights of nationaisof the United Statesof America ilz
Mwocco, Judgment of August 27th, 1952: I.C.J. Reports I952 ,i176" ;
at p. 196.
And in the Bnglo-Iranian OiE case Judge Read forcibly stated the
warning in regard to the application of this principle:
"It is my duty to interpret the Declaration andnotto revise it.
In other words, 1 cannot, in seeking to find the meaning of these
words, disregard the words that as actually used, give to them a
meaning different from their ordinary and natural meaning, or add
words or ideas which were not used in the making of the Decla-
ration."
"Angle-IralaianOilCo.case(jurisdiciion) Judgmentof July 22nd, 1952 :
I.C,J. Reports 1952, p.93"; at p. 145, ARGUMENT OF MR. DE VILLIERS 61
1 would again, becausj: of their pertinence to certain of the issues in
this case, like to refer the Court to scholarly authority where this
caution is very effectively expressed. 1 ivould like to read first froman
article by Sir Gerald Fitzmaurice. It is at pages ZII and 22243 in the
article in the British Ye~rBook of rg57 :
"IV. PrhciPle of E&ctiveness (zd res magis vabeatquam pered).
Treaties are to be interpreted with reference to their declared or
apparent objects and purposes; and particular provisions are to be
interpreted so as to give them their fullest weight and effect con-
sistent with the n0r.na.l sense of the words and with other parts of
the text, and in such a way that a reason and a meaning can be
attributed to every :?artof the text."
Pages 222-223 :
"...it is through the principle of effectiveness that the Court has
given its legitimate place tothe teleological element in interpretation
(objects and purposes). But, as shown on pp. 19-20 of the 1951
article, precisely bt:cause of its teleological tendencies, and the
danger of falling into judicial legislation that the teleological
principle may invokre, the Court has subordinated the principle of
effectiveness to tliatof the textual and natural meaning, in the
sense that it is ne\.er legitirnate, even with the object of giving
maximum effect to a text, to interpret it in a rnanner actually
contrary to, or not consistent with, its plain rneaning."
Fitzmaurice, G. G. "'The Law and Procedure of the International
Court of Justice 1951-4: 'Treaty Interpretation and other Treaty Points",
The British Year Book of International Law, Vol. XXXIII (1957),
pp, 203-93;at p. 211.
1 may add, with respect, that the principle of effectiveness would not
enable the Court to make implications, where that is suggested in confict
with the ordinary princi;?les which apply to the process of making such
an implication. ,
The same type of caution is expressed by the late Judge Lauterpacht
in an article, and in his booTheDevelopmentof InternationalLaw. 1 cite
a number of quotations ;dl to the same effect that the application of the
principle of effectivenes: is not to override intent but it is to be used
as a method of arriving at the joint intent.
Lauterpacht, H. "R~strictjve Interpretation and the Principle of
Effectiveness in the Interpretation of Treaties", The Britis Y ear Book
of Internatio?zaZLaw, Vcl. XXVI (1g4g), pp. 48-85; at p. 73.
"The intention of the parties-express or implied-is the law.
Any considerations--of effectiveness or otherwise-which tend to
transform the ascertainable intention of the parties into a factor
of secondary impori;ance are inimical to the true purpose of inter-
pretation."
Page74 :
"No ruIe or principle of interpretation is acceptable unless it
proceeds from or aci:supon that paramount consideration. In parti-
cular no principle cf effectiveness can properly endeavour to gve62 SOUTH WEST AFRICA
legal efficacy to clauses or instruments which were not intended to
produce such results."
Page83 :
"...the principle of effectiveness constitutes a general principle of
law and a cogent requirement of good faith. It finds abundant
support in the practice of international tnbunals. On the other
hand, the principle...isin the 1st resort no more than an indication
of intention, to be interpreted in good faith, of the parties."
Lauterpacht, H. The Develo$men,fof I~zternationalLaw by the Inter-
nationalCourt (1958 p),227.
. - -
"...effectiveness ...may be put in jeopardy by the deliberate in-
conclusiveness of a treaty embudying a compromise attempted but
not actually achievedJ'.
Page 228:
"..,deliberately or otherwise, there may have been no intention
to render the treaty fully effective".
Page 229 :
"For the principle utres magis cale& quam pereatdoes not mean
that the maximum of effectiveness must be given to an instrument
purporting to create an international obligation; it means that the
maximum of effectiveness should be given to it consistently with
the intention-the common intention--of the parties.
Moreover, the principle of effectiveness provides no ready-made
solution in cases in which a decision must be reached in relation to
apparently conflicting provisions of the same treaty as, for in-
thereto."n the matter of the principal provision and the exceptions
Page 230 :
"A choice must thus be made between the effectiveness of the
general purpose and the exceptions thereto."
Page 281 :
"...absence of agreement could not properly be supplemented by
higher degree of efiectiveneçs than was warrantedt by the intention5
of the parties".
Finally, because of their aptness to the present case, I would like to
give your Lordships three quotations, very briefly, from authorities in
municipal law on this very same point. The first is fromNaEsbury's Laws
of England, 3rd Edition, the 8th volume at pages 121-122:
"Such an impIication must in al1cases be founded onthe presumed
intention of the parties and upon reason, and will only be made
when it is necessary in order to give the transaction that eficacy
that both parties must have intended it to have."
Further, at page 122:
"If the contract is effective without the suggested term and is
capable of being fulfilled as it stands, generally speaking an im-
plication ought not to be made." ARGUMENT OF MR. DE VILLIERS
Then at page 123:
"Where, though there has been no frustrating event putting an
end to the contract, a turn of events has occurred which was not
contemplated by the parties to the contract, the court isnot thereby
entitled to qualify the contract for the purpose of doing what
seems to it just and reasonable."
1 alço have a quotaticin from the well-known work of the American
author, Williston, OnCefitracts :
"620 : Secondary rules :The rvriting willbe interpreted if possible
so that it :,haUbe effective and reasonable.
An interpretation which makes the contract or agreement lawful
wiil bepreferred ovi:r one which would make it unlawful; an inter-
pretation which rerLders the contract or agreement valid and its
performance possible will be preferred to one which makes it void
or its performance impossible or meaningless; an interpretation
which makes the contract or agreement fair and reasonable will
be preferred to one which leads to harsh or unreasonable results ..."
And then a qualification at the end:
"But the mere j'act that parties have made an improvident
bargain will not lead a court to make unnatural implications or
artificial interpretationsA court wiLlnot under the guise of inter-
pretation write a nevicontract for the parties." WillistoOnContr~cts
(Rev. ed.), Vol.3, Sec.620.
1 wish to conclude on that note with reference to Lord McNair's
work, The Law of Treatit.~:
"The rule of effectiveness must mean something more than
the duty of a tribufial to giveegect to a treaty; that is the obvious
and constant duty of a tribunal, that is what it is there to do.
The rule musi surely mean, in the rnind of the party involving it:
'Ifyou (the tribun~l) do not construe the treaty in the way that
I submit to you to be correct, this treaty will fail in its objecBut
that is a petitio $r<nci$i, because as has been submitted in the
previous chapter, it is the duty of a tribunal to ascertain and give
effect tothe intentiov of the parties as expressedin the wordsused by
thent in the light 01 the surro.undingcircumstances. Many treaties
fail-and rightly fail-in their object by reason of the words used,
and tribunal5 are psoperly reluctant to step in and modify or sup-
plement the language of the treaty." (McNair, A. D. The Law of
Treaties (1g61),p. 3.33.)
Mr. President, 1 havc emphasized these warnings, these cautionary
notes, perhaps to exces:, but 1 have done so with a purpose, because
we find that in the crucial aspects of the issues before the Court-in
questions which are es:;entiaIly questions of interpretation-we find
contentions advanced by the Applicants using expressions somewhat
grandiose, somewhat sweeping, such as "the four sides of a quadnlateral
jura1 system", such as "an organized international community" with
,organs" that "replace" one another by virtue of a "doctrine of SUC-
cession" "explicit" in some cases and "irnplicit" in other cases. Those 64 SOUTH WEST AFRICA
are expressions which are used in questions of treaty interpretation.
We find recourse to a so-called"de factocarry-over of the responsibilities
of an entity which ha formally been dissolved", and that "carry-over
principle" is distilled from statutory provisions in certain municipal
legal systems!
1am reminded that an eminent Australian judge once said that the
greatest of fallacies may be wrapped up in a felicitous phrase, or words
to that effect. And it will be my task, part of my task, Mr. President,
to analyze these phrases and these expressions in order to see what is
really wrapped up in them from the point of view of treaty interpretation,
from the point of view of ascertaining the intentions of the parties. In
particular,I shallhâve to analyze whether in effect the Court isnot being
invited by these contentions to revise the treaties instead of interpreting
them. 1 may be at fault, but it seems to me very difficult to understand
why it should be necesçary to use al1 these high-sounding doctrines and
theories and bring them into the picture of a simple question of treaty
interpretation; of saying, in other words, what the words of the treaty
mean and what the treaties imply as a matter of tacit intent which was
so c1ea.rthat the parties did not trouble to express it, as a matter that
went without çaying.
But perhaps 1 am precursing my argument. 1 have corne to the end
of this section on principles of interpretation.
[Oral hearing of3 October1962, afternoon]
Mr. President, in outlining the issues in regard to the First and
Second Objections yesterday, I indicated that they concerned the effect
of the dissolution of the League upon certain pre-existing relationships
in regard to the Mandate. 1 propose to deal specifically now with certain
of those issues but, as a basis for doing so, it is necessary to go back
in order to find what those pre-existing relationships were in the lifetime
of the League of Nations, because that is where the issues between the
Parties commence. In order to ascertain what the effect was of dissolution
of the League on what went before, one must have absolute clanty
first as regards the position that went before. Now, fortunately, not
everything in that regard is contentiouç or in issue between the Parties.
There are certain aspects of those pre-existing relationships that may
be said to be common cause, or at any rate they do not appear to be
contested in the written Pleadings which are before the Court. 1 could
indicate certain of those features very briefly and broadly without the
elaboration with which they have already been dealt with in our Pre-
liminary Objections. We deal in Our Preliminary Objections, at pages
300-307 (1) with what we term the contractual origin and effect of the
Mandate. In essence, we point out there that the Mandate System was
brought into existence by a process of international agreement. It
came about-this constitution of the Mandate System-in virtually
two stages. The first stage was the international compromise agreement,
which became Article 22 of the Covenant of the League. That Article
provided for a Mandate System to be constituted. It provided for the
agreed idealistic objectives of such a system; it provided for agreed
methods whereby the system would be put into operation; and it pro-
vided for agreed features that would be incorporated in such a system-
substantively, corresponding to the sacred trust and, procedurally,
to the securities for the performance of that trust. But Article 22 did ARGUMENT OF MR. DE VILLIERS
65
not itself purport to put the Mandate System into operation. For that,
such further steps as contemplated in Article zz itself were necessary.
Article 22 was an agreement internationally between the Members of
the League, as such, regarding a Mandate System to be constituted in
terms thereof; but the system would only corne into operation upon
specific agreements by specific mandatones to undertake a Mandate in
accordance with ArticI? 22, with reference to a particular rnandated
territory. It wouId on1.ybe upon that act of specific consent to an
international agreemenl. that the Mandatories wouId acquire the rights
under the Mandate System, and incur for themselves the international
obligations envisaged therein.
That is then what happened in what one might term the second phase
of the constitution of the Mandate System. That, initself,really partook
of two portions. One was the allocation of the Mandates to particular
Mandatory Powers by the Principal Allied and Associated Powers, and
the tentative agreement between those Powers and the specific Man-
datories about terrns aj~d provisions to go into the particular Mandate
Agreement. And the other part of it was the agreement as between
each Mandatory and the Council of the League, in regard to the particular
Mandate to be issued tci the particular Mandatory.
Al1 that took place, Mr. President, in pursuance of international
agreement, because the Principal Allied Powers acted in pursuance of
Articles 118 and 119 of the Treaty of Versailles, by ïvhich the power
of disposal over those German posse~sions had been granted to them.
The Council of the Les.gue, in turn, in coming to agreement with the
Mandatories, acted in pursuance of paragraph 8 of Article 22 of the
Covenant which specifically authorized the Council to do that, the
Covenant itself and the Treaty of Versailles itself both being inter-
national treaties or conventions. So that the origin-the bais-of
the whole hlandate System was international agreement. Thecontractual
consequeilces of the Mandate were, for the Mandatory, the powers and
the rights obtained and the obligations accepted through the voluntary
agreement of each bfanllatory to each Mandate instrument, to the terrns
set forth therein. The Iiowers and the rights and the obligations could
be described as international in the sense that they were vaIid against
other international persons as powers and rights; they were owed to
other international pesons as obligations. And they were contrac-
tua1 because they were in force by reason ofan operative agreement,
the hlandate being an agreement between the Council of the League
representing the Leaglie of Nations and, possibly, also its Members,
and the Mandatory on the other hand.
Therefore, Mr, Presiiient (1am putting the matter very briefly-it
isdealt with more fu11yin the Preliminary Objections), if, at any stage
during the existence of the League, the question had arisen whether
the Mandate could be regarded as a treaty or convention in force, then
the answer would obvi.msly have been "yes-it isin force as an inter-
national agreement betvieen its parties' '-those parties being, as indicated
before, the Alandatory on the one hand, and the League, and/or its
Members on the other 'iiand. The question of parties will be dealt wîth
further (1 will des1 with it later) in order to emphasize the importance
of membership of thc League in regard to the question of being a party
to the Mandate Agreement. 13ut, for the moment, 1 merely ~vant to
point out tliat it does not appear to be disputed, in the written Pleadings66 SOUTH WEST AFRICA
before the Court, that the circle of parties did not extend wider than
the Mandatory, on the one hand, and the League andjor its Members, on
the other hand. We deal, in the PreIiminary Objections (at pp.307-308 (1)
para. 14,of our Chapter III)with the situation in regard to the Principal
Allied and Associated Powers. Our submission is briefly that to role
which they played in the constitution of the Mandatory System was a
transitory one. They had the power of disposa1 of the colonies and
possessions-they, as it were, brought them into the Mandate System-
but, thereafter, in the agreements which were actually forged (in Arti-
cle 22and in the actual Mandate Agreementç-the Mandate instruments)
no specific role was provided for on the part of the Principal Powers
as such. They would not be parties between whom and the Mandatory
a contract or international agreement wouId operate. They, as itwere,
brought the possessions into the Mandate System and then they retired
further from the operation of that system. They would, of course, take
part in the operation of the system, either as individual Mandatory
Powers in some cases, or as Mernbers of the League and Members of the
Council, in other instances, but not as Principal Powers, as such.
We deal aho, Mr. President, at pages 358-359 (1) (that is paragraph 51
of Chapter III of the Preliminary Objections) with the position regardmg
the inhabitantç of the territory and we point out, for the reasons there
dealt with, that they could not possibly have been regarded as being
parties to an international agreement-the Mandate Agreement. The
circle, therefore,as confined to the Mandatorv and the League and/or
its Members, and that proposition, and indeed the fact that the Mandate
operated in the lifetime of the League as an international agreement-
as a treaty or convention-does not appear to be contested by the
Applicants. 1will proceed then on the basis that they are not contested.
If they should be, in the course of these proceedings, 1 will deal with
them further, but I use them as a basis for the further argument of
the issues between the partiesin regard tothe First and SecondObjections.
Mr. President, in submitting that the Mandate had this contractual
effect to which 1 have referred, we must not be understood as suggesting
that its effect was contractual only. We are fully aware of the dis-
tinction drawn in the 1950 Advisory Opinions-particularly elaborated
in the separate Opinion of Sir Arnold BicNair-between the operation
of the Mandate as atreaty or convention and its operation as an objective
real institution which could exist independently of operation of an inter-
national agreement. That distinction appears also to have formed the
basis of the reasoning in the rnajority Opinion, although it was not quite
so fully elaborated as in the Opinion of Sir Arnold McNair,
1 have already indicated that for purposes of argument u7eassume
in these proceedings that that distinction is a sound one and that the
Mandate did have this additional operation-this operation of being
a real, or objective, institution, in addition to having a contractual oper-
ation. But the point-the only point 1 wish to make at the moment-is
that,as appears from the Opinionsin 1950themselves, that contemplated
objective or real operation was seen as being something additional
to the contractual, and not as something that displaced the contractual
operation.
As I shall have to deal luith that distinction in more detail later,
and for that purpose 1will then refer to the wording of the 1950 Opinions ARCkUMENT OF MR. DE VILLIERS
67
in that respect,1shall not do soat this stage, in order to avoidrepetition
on that point.
1 proceed to deal with one of the first, and one of the most important,
issues relating to the First and Second Objections. That is the effectof
the dissolution of the League upon the Mandatory's obligations relative
to supervision on the Fart of the League organs, generauy referred to
as the supervisory functions of the League. And our broad contention
is, as1have indicated liefore, that in this respect the obligation on the
part of the Mandatory was terminated completely on the dissolution
of the League and th(: obligation was not converted into a sirnilar
obligation of report arid accountability to any organ of the United
Nations. This is a matter that was dealt with in the 1950 proceedings
and the Court decided on the question, with a majority of 12 to 2, in
favour of a ruling that there was now an obligation on the Mandatory
to report and account to the General Assembly of the United Nations.
It isparticularly in that respect that we submit that there is information
of very vital importance which is now put before the Court, ~vhichwas
not before the Court in 1950 .nd which particularIy renders desirable
a full reconsideration of this whole question.
We elaborate OUT arjpment in this regard fully in the Preliminary
Objections. But inorder to deal with the issues that have now arisen
beiween us and the Applicants in that regard, 1 will, as a basis ofmy
argument, have to restate certain of those elements which have been
dealt with in the Prelirninary Objections very briefly and without full
elaboration.1 wiIl state them merely as a basis for bringing me to the
crucial issues between the two Parties.
In the Preliminary 0l)jections we point out that this elementof report
and accountability to tlieCouncil of the League as a supervisory autho-
rity was something wliich brought about a measure of resemblance
between the internatio~ial mandate institution and the municipal law
institute of a mandatuvn; it is an element of resemblance, of broad
resemblance. One does not Say that those two institutions could be
assimilated to one another, because the international Mandate institution
also had other elemeni:~, other elements which brought about broad
resemblance with the trust institution and with the tutelage institution
of municipal law.
We point out further that this element was an innovation in the
history ofthe goirernme~itof backward communities which was considered
to be of very great practical importance, as compared with previous
avowals of a sacred tr?ist in colonial administration and even earlier
international arrangements or agreements which had recognized sub-
stantive obligations of :;acred trust and tutelage in that regard. It was
considered to be an important element. How important, and of what
determinative value in the mandate as a legal concept, is a different
matter with which 1wii.1deal later.
We point out furthe~ that although it is customary to speak in this
regard of "supervisory functions of theLeague", of"League supervision"
and so forth, those are not expressions that were used in the actual
Mandate instruments or in the Covenant itself. They are descriptions
which really follow froin the obligation undertaken by the Mandatory
to report to the Councjl of the League. The only specific provisions in
the Mandate treaties-jncluding in that description the Covenant of the
Leape-relevant to this obligation are tobe found in paragaph 7 of68 SOUTH WEST AFRICA
Article 22 providing for a report to the Council of the League; para-
graph 9 of Article22 providing for the Permanent Mandates Commission,
and then in Article6 of the Mandate Agreement itself. In al1 cases the
rnatter is put on the basis of an obligation on the part of the Mandatory
to report to the Council. The element of account of which we speak
really emanates from the wording of Article 6 in that respect where it
says that this report shaU be:
"to the satisfaction of the Council, containing full information
tvith regard to the territory, andindicating the measures taken to
carry out the obligations assumed under Articles 2,3, 4 and 5".
In other words, the essence of this reporting was to indicate to the
international supervisory authority what the Mandatory was actually
doing with a view to fulfrlment of the substantive obligations under-
taken in the earIier portion of the Mandate Agreement. It was in that
sense then that the Mandatory waç said to be under an obligation not
only to report but also to account to the supervisory authority, the
Council of the League. And the description of the Council as a super-
visory authority really only follows from the Mandatory's agreement,
the Mandatory's consent, to accept this obligation to report and account.
And so, for instance, Mr. President, we refer to a sirnilar type of
substantive obligation undertaken by al1 League Members in Article
23 (b) of the Covenant, where they stated that:
"Subject to and in accordance with the provisions of international
conventions existing or hereafter to be agreed upon, the Members
of the League undertake to secure just treatment of the native
inhabitants of territories under their control."
That could historically be said to be the forerunnet of Chapter XI
of the Charter of the United Nations.
Now, there was a substantive obligation undertaken simiIar to the
substantive obligations in the various Mandate agreements; but in the
absence of a complementary agreement-rather supplementary agree-
ment-providing for report to a supervisory authority, there has never
been any suggestion that that was an obligation to be undertaken under
the supervision of the League. There has never been any suggestion
that the League had any supervisory functions in regard to an obligation
of that kind.
Therefore the essence of looking at the League as a supervisory author-
ity isreally the Mandatory's voluntary undertaking of the obligation of
report and accountability.
Again, and itis necessary to get this cIear at the outset, the procedure
in regard to petitions being sent to this supervisory authority appears
to have been entirely subsidiary and dependent upon the fact that the
Council was the supervisory authority. Petitions were sent in fact,
and the Council then had to evolve some form of procedure asto how
petitions would be dealt with. Froin that emanated the rules which
provided for petitions to be forwarded through the Mandatory so as to
give the Mandatory an opportunity of commenting on the petitions.
But the petitions went to the Council because the Council was the
supervisory authority, and the Council was the supervisory authority
because of the obligation to report and account as undertaken by the
Mandatory. So everything in this regard also revolves around that
fundamental obligation as undertaken by theMandatory. ARGUMENT OF MR. DE VILLIERS
69
The source and the crigin of this obligation to report and account
was contractual in the sense which 1 have indicated: the Mandatory
becoming bound to it tty its agreement to Article 6 of the Mandate.
If one further bears in mind the suggested distinction by analogy which
Sir Arnold McNair employed in 19jo as between persona1 rights and
obligations on the one hand, md real rights and obligations on theother,
1 would submit with ri:spect that by its very nature this obligation
would have to be classified as a personal one. One can understand that
obligations to deal with property, to deal with a territory, to deal
with powers of administration of a territory, for a trust purpose-that
substantive obligations of that kind could be regarded as obligations
which affect the property itself ;which affect territory, by analogy, itself,
and which could be said to be something ofthe nature of an onus reale
resting upon the power or the title to that property or to that territory.
But when it cornes to ari obligation of a procedural kind, an obligation
to report to an outside body, to a third party not involved in the trust
itself, to a superviçory body, in regard to the manner of discharge of
substantive trust obligations, then that surely by its nature would be
personal. It could hardly be said to be something affecting the property
itself, or the title to the property.ut that is not a matter of particular
importance. However one views the matter in that regard, the important
question is, does one regard this obligation of report and accountability
as being an element of tlie Mandate which was severable from the other
aspects of the Mandate, or must it be regarded as being an integral
portion of such a kind ilsto be totally inseverable from other aspects
of the Mandate institution. A question of severability or inseverability
is of course, in the case of something which grows out of agreement,
always to be related back to the common intent of the parties which
brought that institution into existence by their agreement.
The consequences of regarding this obligation to report and account
as being an absolutely :.lecessary inseverable element of the Mandate
institution, asit was conceived by its founders, would be that ifone
should corne to the cofi.clusion that this particular obligation ceased
to euist, that it could no longer be capable of performance, then the
whole Mandate institution would have to fa11to the ground and would
have to be regarded as havinglapsed, because of the premise of insevera-
bility between this element and the rest of the Mandate institution.
That, however, was not the view of the situation which is apparent from
the Opinion in1950 Indt:ed, if we take first the separate, or shall we Say
in this regard, the rnino~ity Opinions of SirArnold RicNair and Judge
Read-because the position in that respect can be demonstrated most
easily in the case of these opinions-they actually found that the obliga-
tion to report and acconnt had lapsed, but that the Mandate as an
institution in other respects still remained in existence. Judge Read,
indeed, emphasized spet:ifically this element of severability which ex-
isted in his view. I think: that is to be found at page 165 of the 1950
Opinions where he said :
"This third class of obligations [i.e. those under Articles6 and 7
of the Mandate] was the new element in the Mandates System, and
its importance shoulll not be underrated. At the same tirne it should
not be overestimateci. The disappearance of the obligations incIuded
in the first and the s-cond cIasses would bring the Mandates System SOUTH WEST AFRICA
70
to an end. [They are the substantive obligations.] The disappearance
of the regime of report, accountabilitysupervision and modification,
through the Council and the Permanent Mandates Commission,
might weakea the Mandates System; but it would not bring it to
an end. As a matter of fact, the record shows that the paralysis of
those agencies during six war years had no detrimental effect
upon the maintenance of the well-being and development of the
peoples."
So here is a very explicit stàtement of the view of severability, and
indeed, as 1 pointed out, the very conclusion arrived at in this opinion,
as in the Opinion of SirArnold McNair, followed upon that basis.
But, Mr. President, the same view emerges on analysis from the
majority Opinion of the Court. The majority Opinion dealt first with
the question whether the Mandate seen as a status-seen as title on a
Mandatory's part on the one hand and substantive obligations, as set
forth in Article2to 5,on the other hand-was still in existence. In dealing
with the obligations, the Court dealt first with the substantive obligations
as set forth in Articles 2 to 5; and at page 133 of the Opinion t,ese
obligations are referred to as follows:
"These obligations represent the very essence of the sacred
tn~st of civilization. Theiraison d'êtreand original object remain.
Since their fulfilment did not depend on the existence of the League
of Nations, they could not be brought to an end rnerely because
this supervisory organ ceased to exist. Nor could the right of the
population to have the Territory administered in accordance with
these rules depend thereon."
1emphasize that their fulfilment did not depend upon the existence
of the League of Nations and they could, therefore, not be brought
to an end merely because this supervisory organ ceased to exist. Already,
by strong implication, the Court intirnates there that the continued
operation or existence of the Mandate, including these substantive
trust obligations, was not dependent upon there being a supervisory
organ or upon reporting to a supervisory organ. That is the firima facie
intimation which we find at this stage of the Opinion. We find that
intimation confirmed by various other considerations in this Opinion.
The majority of the Court proceeded in the next ensuing pages of
the Opinionu ,p to the top of page 136, to deal with its conclnsion
and ils reasons for the conclusion that the Mandate survived the League.
It deals with those reasons, and it states its conclusion, without having
regard at al1 at that stage to the question whether the obligation under
Article 6 relative to supervision-reporting and accounting-whether
that obligation is still in existence. Surely, if the view of the Courtd
been total inseverability between the obligation to report and account
and the other aspects of the Mandate institution, then it could not come
to a positive conclusion as to the continued existence of the Mandate
institution in other respects before having regard to the question
whether Article 6 survived in some iorm or another. Yet the Court did
so, and therefore I submit the indications are very clear that the Court
itself regarded the obligation under Article 6 as being severable from
the other aspects of the Mandate institution. The Court very clearly
in the passages as from page 133 to page 136 referred several times to
conclusions already reached by it; particularly at the top of page 136 ARGlJMEKT OF MR. DE VILLIERS
7I
certain statements on the part of the hlandatory were referred to and
the Court concluded: "In this case the declarations of the Union of
South Africa support the conclusions already reached by the Court."
And it is only after reaching these conclusions that the Court proceeds
and says: "The Court arill now consider the above-mentioned second
group of obligations." [Iricluding, then, Article6.1
The Court proceeded to indicate at page 136 that the obligation
incumbent upon a Mandatory State to accept international supervision
and to submit reports wa; an important part of the Mandate system. The
Court proceeded to describe it as something that was considered ne-
cessary for effective performance of the sacred trust. Now that is not
a description of somethin; which waç regarded as absolutely necessary-
as something without wliich the rest of the Mandate institution could
not exist at all. And therefore,1 submit, Mr. President, that on analysis
it becomes very clear frcim the majority Opinion that it aIso regarded
the obligation to report and account as being severable frorn the rest
of the Mandate institution. And it is because of the premise upon which
we argue this case-because oi the premise that theopinions were correct
in 1950 to the extent of finding that the Mandate as an objective in-
stitution survived the League-because of that premise, we also accept
forpurposes of argument the premise of severability ; so that a conclusion
that the obligation to report and account has terminated does ~iot
necessarily result in a co~iclusionthat the whole of the Mandate has also
terminated and iapsed.
Thenext aspect of this obligation to report and account, which 1 have
to stress asbeing of the ixtrnost importance, isthat its content was pre- +
cise; itscontent was to report and account to a specific body-the Coun-
cil of the League-to its :;atisfaclioOne can hardly think of something
more specific, more precke; not a general, vague concept of reporting to
an international community, reporting to some international authority,
reporting to the community of nations, or the like. It is very precise: a
specific organ of a specilic international organization and to the satis-
faction not of the organization, but of that particular organ-the Council
of the League. That bod:q-the organ-was constituted in terms of the
Covenant of the League under certain very specific provisions which
provided for the manner in which the Council was to be composed and
for the manner in which the Council \vas to operate, and particularly also
for the manner in whicli the Council was to act in relation to other
Members of the League 01other States whose rights orinterests might be
affected by any action 01-1the part of the Council.
Therefore, Mr. Presideilt, when I refer to the fact that the content of
the obligation was precisi: in this sense,Iam not referring to a technical
consideration in this regard. 1 am referring to something which, as al1
the historical indications show, was of the utmost practical importance
to the contracting partie:; who brought the mandate system into exist-
ence. It was of the utmoi;t practical importance because of the inherent
careful checks and balances that were to be found in the supervisory
system as devised in the Covenant of the League, and in the attendant
procedural arrangements in that regard, and already foreshadowed at the
Peace Conference, where the compromise agreement in regard to man-
dates was entered into. 'Thosechecks and balances were specifically ço
devised as to protect the mandatories against interference with their
administration which mii;ht be imprudent or unwise or unfair in certain SOUTH WEST AFRICA
72
respects, and at thesame time to have the effect, aswas then considered
beneficial for the population in those terntories, that the supervision
should carry within ita minimum of political element and a maximum
of an expert independent approach. When we analyze the arrangements
we find that in the first place the Council was cornposed as a relatively
small and select body of the Great Powers and certain other Powers with
them, and that the Council included within its number a number of
mandatory Powerç-Powers, therefore, who would know the problems
of a mandatory, who would understand them, and who would be sym-
pathetically inclined towards those problems and obstacles which a
mandatory Power might encounter.
We find, secondly, that there was a rule which required unanimity for
Council decisions and, thirdly, an attendant rule which required the
Council to accord session on the CounciI to any Member of the Leape
whose interests might be affected by a decision of the Council in a
particular case.So, that wouId in each case have included the mandatory
Power when the Council was about to take s decision affecting that
particular mandate.
Itdoes not matter for the purposes of my argument whether in these
circumstanceç we have to look at the unanimity requirement as involving
that the mandatory also had to agree to a Council decision in cases
affecting the Mandate, or whether it did not involve that. For purposes
of my argument Iam perfectly prepared to assume that the mandatory's
vote was not required, and that unanimity was only required as far asthe
other members of the Council were concerned. But even so, that in itself
was an extremely important, practical safeguard and check against un-
due, against imprudent, against unfair interference with mandatory
administration.
Then we find that part of the system was that the Council was to be
advised by a Permanent Mandates Commission. This Mandates Com-
mission was designedly composed not of political representatives of their
governments, but of independent experts, who employed a non-political,
impartial approach to their task as a supervisory authority-as they
expressed it in a very well-known passage which is cited inOur Prelimi-
nary Objections :"less as judges than as collaborators in a great cause".
And finally we findthat this policy to which 1have just referred-the
policy of CO-operation, of acting less as judges than as collaborators-
was not something which originated with the Permanent Mandates
Commissiononce it wasformed, and once it started to function, but it was
something that wasinherent in the very approach to the Mandatessystem
right from the very start and even foreshadowed at the Peace Conference
itself, as we emphasized at pages 317-31 91) of Our Preliminary Objec-
tions. 1 will try to find the exact page. YeI,refer to the bottom of page
318 of OurPreliminary Objections, where we have a citation of something
stated by Mr. Lloyd George at the Peace Conference on the 28th January
1919. [Hel
"said that he agreed with hl. Clemenceau that if the League of Na-
tions were made an executive for purposes ofgoverning, and charged
with functions which it would be unable to perform, it would be
destroyed fram the beginning. But he had not so interpreted the
mandatory principle when he had accepted it.
President Wilson çaid l-ietoo had not so interpreted it. ARE-UMENTOF MR. DE VILLIERS
73
Mr. Lloyd George, continuing, said that he regarded the system
merely as a general trusteeship upon defined conditions. Only when
those conditions were scandalously abused would the League of
Nations have the right to interfere and to cal1 on the mandatory
for an explanation. For instance, should a mandatory allow fou1
liquor to swampthe territories entrusted to it,the League of Nations
would have the rigl-~tto insist on a remedy of the abuseM-
therefore, what Imight term aconservative policy as regards the possibi-
lity of interference with mandatory administration, and a policy which
did not only evolve in the lifetirne of the League but which existed and
was foreshadowed even ;~tthe Peace Conference, at the very birth of the
mandatory system.
Al1these factors, singly and collectively, emphasize the practical im-
portance of the fact that this obligation to report and account was
precise, as far as its content was concerned; and, when1 emphasize that,
I am not speaking merely of a technical consideration but of one that
was of the very essence of the arrangement, from a practical point of
view, from an equitable point of view.
That, indeed, was in effect emphasized by the South African Prime
Minister on the very occasion when this compromise agreement was en-
tered into in regard to the Mandates system, when at length Australia,
New Zealand and South Afnca werc prevailed upon to agree to bring the
respective territories in which they were interested into the Mandates
system as "C" mandated.territories. He said on that very occasion-now
reading from page 318 (1) of the Preliminary Objections-that :
"Personally he felt very strongly about the question of German
South-West Africa. He thought that it differed eniirely from any
question that they had to decidein this conference, but he would be
prepared to Say tha he was a supporter of the document handed in
that moming, because he linew that, if the idea fructified, the League
of Nations would coilsist mostly of the same people who were present
there that day who understaod the position and wha would nat
make it impossible for any mandatory to govern the country.
That was why he said he would accept it."
That ernphasizes, precisely and specifically, why it was so important
for the parties to this compromise arrangement to know that the obliga-
tion to report and accouiit was one relating toaspecificsupervisory body
and no other.
In logic and in fairness it, therefore, cannot be inferred that when
any mandatory Power vras prepared to accept such an obligation, that
carried with it willingness to submit to supervision on the part of any
other supervisory authoiity not specified in the agreement at the time.
The situation is very n-~uchanalagous to what we find in almost al1
municipal legal systems, aç far as1 know, that \&en a master enters into
a contract of service with a servant which involves the persona1 relation-
ship of supervision and control on the part of the mater, then almost
invariably that is a contract which the master cannot assign without
the servant's specific consent, because it is of the essence of the very
arrangement that what the servant has agreed to is to serve a particular
master, to obey him and to obey his instructions, and not to obey some-
body else who might be chosen as a cessionary by that master.74 SOUTH WEST AFRICA
1 ain speaking by way of a very broad analogy ; but as a matter of
logic and as a matter of equity and fairness, those same considerations
enter into this arrangement between the mandatory Powers and the
other Members of the League regarding supervision of their mandatory
administration by the Council of the League, with the assistance of the
Permanent Mandates Commission, and in terms of the specific arrange-
ments containing the checks and balances to wllich I have referred.
Mr. President, because of the considerations which 1 have just stressed,
we give examples, in our Preliminary Objections at pages 108-109 of,
what Mandatories clearly could not have been obliged to submit to,
during the lifetime of the League, because of their consent to the obliga-
tions to report and account to the Council of the League. We give the
example, for instance, if States that were not Mernbers of the League had
decided to form an organization, simiIar to the League, of their own.We
know that there were times when a very large number of civilized States
of the world did not belong to the League, and where it would not have
been completely inconceivable that they could have formed an organi-
zation of their own. And suppose that in this international organization
they provided for an organ which constitutionally would have been ca-
pable of exercising supervisory functions over mandatory administration.
That, surely, alone, could not have made the Mandatory obliged to re-
port and account to such an organ-to such a potential supervisory au-
thority. Fresh consent, on the Mandatory's part, wouid be required for
that purpose because the obligation would not only in form, but also in
substance,be a different obligation from that which the Mandatory under-
toolcbyits consent to the Mandate Agreement. Similarly, if we take some
of the international organizations which did come into existence, such as
the International Labour Organisation, having for its Members Iargely
the same States that were Members of the League, surely,there again, the
same applies as in the case of the previous example. And even within the
League ofNations, if there sliould have been an alteration ofthe provisions
of the Covenant to the effect that supervision over mandatory admini-
stration was now to be handled by the Assernbly of the League instead
of the Council, and that the Assernbly would, for that purpose, be able
to come to a decision by a bare majority vote, or by a two-thirds majority
vote, then surely that, in itse,would again alter not only the form but
also the substance of the obligation for the Mandatory to submit to such
supervision. That could not take place without the Mandatory's consent.
Article 26 of the Coveriant, indeed, makes that clear, in another sense,
because the Article is to the effect that if a valid amendment of the Cove-
nant receives sufficient support, for the purposes of being valid, it will
operate but it willnotbind any Member of the League that may not have
supported it, although such a Member of the League may then lose itç
membership in the League. That is the effect of the Article, as 1 read it.
Therefore, in the case of those Mandatories u-ho were also Members of
the League, if they were not prepared to assent to an alteration of the
kind which 1 have just mentioned by way of an exarnple, the position
appears to be that they could qua Member of the League then be forced
out of the League, but they could not qltaMandatory, as a party to
the Mandate Agreement, be forced to accept that alteration as binding
upon them without their own consent.
We submit, therefore, Mr. President, that because of this precise
nature and content of the obligation, it necessanly came to an end with ARGUMENT OF MR. DE VILLIERS 75
the dissolution of theLeligue; and upon there no longer being a Council
of the Leape, as envisased in the obligation itself-the Council of the
League being the only :;upervisory body as to which there had been
agreement for purposes of this obligation, the Council of the League
being the body to do the supervision, to be satisfied with the reports-
that Council falling away. the obligatiobecameincapableofperformance.
And we stress that an obligation to report and account concerning manda-
tory administration to aiiy organ of the United Nations, and particularly
if it were to be the Gene~alhssernbly of the United Nations, would, like
the exampies which I have just mentioned, involve a difference in sub-
stance, as well as in forrn, from the obligation undertaken by thc Manda-
tory in Article 6 of the Mandate with which we are dealing-and, indeed,
al1 Mandatories in resprct of similar obligations in their Mandate.
Thesubstantive aspect-the aspect of practical importance of thisdiffer-
ence-emerges in various respects. Again1 emphasize that the distinction
is not a technical one, it:ione of the utmost practical importance.
In the first place, let u:;takeit only on thbasis ofthe legal situation.
The United Nations was by deliberate design, as the Court knows, not con-
stituted a general successor of the League of Nations. We al1 know
what the position was, ii~ that regard, of certain of the major Powers,
particularly the United States and the Soviet Union, who took a leading
part in the formation of the United Nations, and who particularly did not
want any semblance of the United Nations being a successor of the
League. We know, therei'ore, that anything that might resemble such a
succession was studiously avoided. We know that, in so far as it was
desired to transfer certain assets of the League to the United Nations,
and in so far as it was 1:egarded as desirable that the United Nations
should take over, or cor:tinue, certain of the functions that had been
exercized bythe League, it wasnecessary to make specific ad hocarrange-
ment for such transfer âi~dfor such assumption, or taking over, by the
United Nations and that was, in fact, done by a very elaborate arrange-
ment.
We know that where (and this is where the practicaI importance of the
distinction cornes in) the United Nations Charter made provision for a
trusteeship system whicli would, broadly speaking, correspond to the
League Mandatory Systt:m, there were certain elements of very impor-
tant practical difference, as far as supervision over trusteeship admin-
istration was concerned. The supervisory body, what we might call of
the first instance, which would correspond broadly to the Permanent
Mandates Commission in .thecase of the League, would be the Trusteeship
Council; and the Truste~:ship Council, in contrast with the Permanent
Mandates Commission, wauld consist of political representatives of
governments-of State Members of the United Nations. They would not
be independent experts with a non-political approach, but they would be
political representatives of their governments who would, in the normal
course, receive instructions from their governments as to what political
attitude to adopt in particular cases. One knows from experience that
that is how is does go at the United Nations-that is the general practice
and that is what is to be cxpected, and what must have been anticipated
in a system of thiskind; thus there is a distinction, not only of a technical
nature, but one that could be of very major practical importance.
Secondly, we find that the ultimate supervisory authority, correspond-
Ing by analogy to the Council of theLeague, would be the General Assem-76 SOUTH WEST AFRICA
bly of the United Nations; not a small and select bodyin which Manda-
tories could exercise some measure of influence,as was the case with the
Council. It would be the Plenary General Assembly of the United Nations,
consisting of al1 its Members, a large nurnber of whom had never been
Members of the League at all.
Thirdly, instead of the unanimity rule which prevailed in the League
Council, decisions in the United Nations General Assembly could be
taken either by a bare majority, or by a two-thirds majority on im-
portant questions, and, in the Security Council, in the event of trustee-
ship over strategic areas, a decision could be taken by an affirmative 7
votes out of a total oII,except of course for the veto-a possible veto-
by one of the five Permanent Members. So, again, we have, in the very
structure of the supervisory machinery, these very important differences,
which are unavoidable differences. They flow from the very structure of
the Organization and tliey render the distinction between supervision by
the one organization and supervision by the other not onIy a technical
one, but one of the utmost practical importance. In addition, there was,
in the case of the United Nations, no policy of conservatism as regards
possible interference tvith mandatory administration corresponding to the
policy which 1outlined earlier this afternoon in the case of the League.
Therefore,having regard to al1these factors of difference, it is,myn
submission, a matter not only of technical law but also of logic and of
ordinary equity or fairness, that a Mandatory couId not merely by
reason of its agreement to the obligation as originally set out in the Man-
date Agreements to report and account to the Council.of the League, be
held liable to report and account to any one of these supervisory bodies
on thepart of the United Nations. There would have to be an act of fresh
consent, or assent, on the part of the Mandatory, in order to render it
liable to such an obligation. The question, in essence, therefore-the
question regarding possible succession or non-succession in regard to
Article 6-that question revolves, in essence, around the enquiry whether
the Mandatory (the Respondent in this case) ever gave such consent by
any binding juristic act, expreçsly or impliedly,
[Public kearingof4 Octaber1962, morning]
Le PRÉSIDENT: L'audience est ouverte et j'ai leregret d'annoncer que
l'état de santé de M. Alfaro, Vice-Président, ne lui permet toujours pas
de prendre part à l'audience d'aujourd'hui.
La parole est àM. de Villiers.
Mr. DE VILLIERS: Mr. President, at the conclusion of yesterday's argu-
ment, we came to the point where 1submitted to the Court thatthe con-
sent of the Mandatory-of the Respondent-to the Mandate agreement,
and particularly to Article6 thereof, was not by itself sufficient to create
an obligation on the part of the Respondent to submit to an obligation
to report and account to an organ of the United Nations concerning
Mandatory administration; that for this latter purpose fresh consent
and agreement to such an obligation would be required on the part of
the Respondent; and that the inquiry is therefore to be directed to
this question whether such consent or agreement was ever given. 1 may
Say, in passing, that in dealing yesterday with the differences, in sub-
stance as well as in form, in supervision by United Nations agencies or
organs as against supervision by the League machinery, 1 omitted to ARGUMENT OF MR. DE VILLIERS 77
refer the Court to a passage which is very pertinent in that regard, in the
Advisory Opinion of ihi:;Court in 1955 concerning the VotingProcedure
on Questionsrelating to .!?e#ortsand Petitions concerningthe Territory of
South West Ajrica. At page 75 of that Opinion there occurs this passage:
"The voting syst8:m is related to the composition and functions
of the organ. It forins one of tKe characteristics of the constitution
of the organ. Taking decisions by a two-thirds majority vote or by a
simple majority vote is one of the distinguishing features of the
General Assembly, .#hile the unanimity rule was one of the distin-
guishing features of the Council of the League of Nations. These two
systems are c11aracti:risticof different organs, and onesystem cannot
be substituted for tlie other without constitutionalamendment."
I proceed, Mr. Presideiit, with thisinquiry, whether there was ever any
fresh consent or agreement on the Respondent's part to an obligation to
subrnit to United Nations supervision regarding the Mandate. And
immediately the furthei-1 might say component-questions present
themselves as to when and to whom sucfi consent could conceivably
have been given. As regards the time when it could have been given, that
could possibIy have been any time as from 1920 until now, but, more
probably, when historic:.l events are taken into account, if such consent
had been given at all, one would have expected it to have been given
during the period which we, for convenience, called the period of tran-
sition, meaning thereby, transition generally in world organization as
from the era of the Leape of Nations tothat of the United Nations ; the
period, in other words,1945 to 1946 when the United Nations was formed,
when it was constituted, when it was set into operation and when the
League was disbanded and eventually dissolved. One would expect that
if there was consent to an obligation to submit to supervision on tlie part
of the United Nations, it would have been given either during that period
or possibly shortly thereafter. Again, as to possible parties to whom such
consent could have been given, one would have expected either the
Members of the United Nations, or the United Nations as an organization,
or the Members of the Ltiague, orthe League asari organization, or toal1
these groups that 1 have rnentioned. There are variants within this num-
ber, of course, but that :ippears to be the circle within which one could
expect that such a const:nt would have been given, if at all.
Now, it seems to be common cause that such consent was never
expressly given; nowhere in the pleadings do the Applicants allege
that such consent was ever expressly given. Indeed, in the major-
ity Opinion of 1950, the1.ewas a specific acknowledgment that there was
never such express arrangement. One finds that at page 136 of the
Opinion: "Some doubt might arise from the fact that the supervisory
functions of the League with respect to Mandated territories not placed
under the new trusteesh.ip system were neither expressly transferred to
the United Nations nor expressly assumed by that Organization." That,
of course, refers to a gencral transfer of functions, but also more specific-
ally to the case of the 6:espondent. The Court nowhere finds that there
was any express submission to supervision by United Nations supervisory
machinery. And the question that rernains, therefore, is whether such
consent was ever given tacitly. On the principleç with which 1 dealt
yesterday, the inquiry would therefore have to be whether, from al1the
relevant evidential data, therecan be drawn a necessary inference of such78 SOUTH WEST AFRICA
tacit consent, necessary in the sense of excluding al1 other reasonable
inferences and of being consistent with ail the relevant facts.
In the 1950 proceedings, if 1 understand those opinions correctly, the
Court differed on that question whether on the facts and information
as then presented to the Court, such a necessary inference couId be
drawn. That iswhy itis of such extreme importance, as1stressed yester-
day, that we are presenting to the Court further.evidential data, further
evidential material,which we submit to be of utmost importance and
which, in substance, alters the totality of the factsfromwhichaninference
is to be drawn, so that this Court need not be placed in the position of
having to choose between the reasoning of the majority and the minority
in the 1950 proceedings on this particular question. The question is, in
substance, a new one on the evidential material that is now presented to
the Court. 1 wiIldeal with the question of what the evidence shows and
of what inferences are to be drawn from the evidence. 1 willdeal with
that first in the light of the facts as now before the Court, and1 shaIl
stress afterwards the particular significance in that regard of material
which isnow before the Courtand which was not soin 1g50.
First of dl,when regard is had to the Charter of the United Nations,
we find that it makes specific provision for United Nations supervision of
administration under trusteeship agreements voluntarily entered into,
but it makes no mention of any supervision in regard to Mandates not
converted into trusteeship. This indicates in Our submission, Mr.
President, at least firimafacie,that on the part of the authors of the
Charter there was never any contemplation of such supervision of Man-
datory administration in the case of a Mandate not converted into
trusteeship. Or alternatively, if there was any such contemplation at all,
it was left for subsequent arrangement-something additional to the
Charter, something subsequent to the Charter, something possibly by
way of amendment of the Charter-but the Charter itself made no
provision therefor. In addition, during the San Francisco Conference, the
Respondent's representative made a statement which we set out in the
Preliminary Objections at pages 237-23 81) andthat statement read as a
whole, Mr. President, renders clear, in our submission, that on the poft
South Africa there was no intention at that stage to be committed to the
United Nations in any respect in regard to South West Africa, either in
regard to entering into trusteeship agreement or in regard to any other
arrangement. ln fact, the statement makes it clear, if we refer to the por-
tion at page238 of the Preliminary Ob'ections, that the whole questioof
this daim which South Africa inten ded to put forward as regards in-
corporation of South West Africa into the Union, as at that time, was
intended to be presented at that stage not to the United Nations itself,
but to a peace conference that was apparently contemplated at that stage.
We read at the top of page 238:
"The Delegation of the Union ofSouth Africathereforedaims that
the Mandate should be terminated and that the territory should be
incorporated as part of the Union of South Africa.
As territorial questionsare however reserved for handIing at the
laterPeace 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 implication then is cIear, that what was intimated by the South AR'UMENT OF MR. DE VILLIERS 79
African repreçentative mas that the other delegates were to understand
clearly that there was to be no comrnit~nent as far as SouthWest Africa
was concerned on the part of the Union towards the United Nations.
That is rendered further clear by a comment in the very next paragraph,
at page 238 (1) of Our l'reliminary Objections, when there was about a
year later a referencba.:k to thisstatement by Field-Marshai Smuts. He
stated there that the purpose of this statement was that such con-
sideration of this question should not be prejudiced by any prior com-
mitment on the part of the Union Government by virtue of its member-
ship of any organization which might replace the League of Nations.
So, when these factors are taken into account, it seems most unlikely
that there could have been any tacit understanding on the part of the
founders of the United Nations, including the Respondent, to the
effect that there would be United Nations supervision in respect of
Mandates not convertetk into trusteeship.
But in any event, Mr. President,there is a further way oftesting wheth-
er there was any such contemplation, and that is this consideration,
namely that if tkere ha&been any such understanding one would surely
have expected it to have been raised in some way or other during the
deliberations of the Preparatory Commission and the first portion of the
first session of tlie United Nations General Assembly, when special atten-
tion waç given in the two reçolutions-XIV and XI-to the question ofthe
taking overof certain asjets and also certain functions and powers by the
United Nations as from i:heLeague of Nations. If there had been contem-
plation, as 1 say, of such supervision over Mandates not converted into
trusteeship, that wouldhave been the stage at which one would have ex-
pected it to have come to light and to have been mentioned, and that
would therefore afford a next testing point at which one can see whether
there could have been siich a contemplation at all.
Mr. President, we deal very fully, in the Preliminary Objections
at pages 239-247 (1) ad then again at pages 325-328, with the two
resolutions XI and XIV. as adopted at the first part of the First Session
of the United Nations General Assembly in London in early 1946,and
the history-the precetling history-of these resolutions in the Pre-
paratory Commission and its Cornmittees.
1 willnot go into that matter fully again. 1 merely wish to draw
attention to some of th,: very pertinent indications of intent, as far as
is relevant for our argument-our present purposes-that are afforded
by this portion of the record.
Now, our submissior~ is that these resolutions and their history
show very clearly that the United Nations did not consider itself to
be a successor in law .iutomatically to any of the League assets or
functions, and that the founders of the United Nations, therefore,
contemplated special arrangements for the transfer of particular League
assets and for the assumption of particular functions and powers; and
when it came to the functions and powers.they even took trouble, at
the instance of certain ddegations, to avoid the word "transfer" because
those delegations expressed the fear that the use of that expression
might, and 1 quote from the United Nations records, "irnply a legal
continuity which would mot in fact exist".We deal with that point in
the Preliminary Objectiunç at page 241 (1) and we give the references to
that portion of the debate,
ft was that concern u.hich resulted in an alteration of the wording in80 SOUTH WEST AFRICA
these arrangements. The Committees and Sub-Cornmittees had initially
proposed a "transfer" of functions and powers, and that word was
altered later to "assumption" on the part of the United Nations of
particular functions and powers,
Kesolution XIV was the one that dealt with this transfer of assets
and assumption of powers, and it contained in its Part 1,paragraph3 (B),
which we cite at page 242 (1) of our Preliminary Objections a statement
of general willingnesson the part of the General Assembly of the United
Nations to continue ta exercise certain League functions. But when
regard is had to the wording one finds that this was confined to non-
political functions. When it came to political functions, there was a
different part of the resolution which dealt with that. It was Part 1,
paragraph 3 (C), which we cite in Our Preliminary Objections at
pages 242-243 (11,and there the Court will see that the provision was
that :
"The General Assembly will itself examine, orwill submit to the
appropriate organ of the United Nations, any request from the
parties that the United Nations should assume the exercise of
functions or powers entrusted to the League of Nations by treaties,
international conventions, agreements and other instruments having
a political characte..."
So,if resolutionXIV could be regarded as being possibly appropriate
at al1 to a question of supervision of Mandatory administration, which
waça political matter, then the matter would have had to be dealt with
in terms of this portion of resolutioXIV.
But, on analysis, Mr. President, it will be found that from apractical
point of view the procedure as envisaged here could hardly have been
regarded as being appropriate to the case of mandates, particularly if
one viewed mandates as being an arrangement as between a Mandatory,
on the one hand, and the League of Nations andjor al1 the Members
of the League, on the other hand. It would not be easy to arrange a
request from the parties under circurnstances of that kind. Therefore
it is not surprising to find in the his.toofthis resolution that, on the
part of its proposers at any rate, it was not designed to cover the
case of Mandatory administration or supervision over Mandatory
administration; because if we look back in the history to the Cornmittees
and the Sub-Cornmittees, we find that at an early stage an exception
was made in regard to Mandates. There wâs stated-the Court will
find that at page 239 (1) of Our Preliminary Objections-that:
"Since the questions arising from the winding up of the Mandate
systern are dealt with in Part III, ChapterIV, no recommendation
on this subject is included here."
If we trace that through the documents we findthat perhapç that
reference to "Part III,Chapter IV" is not very apt. But we do trace
in the history of resolution XI, which dealt with the putting into
operation of the trusteeship system, that there was a special reference
to this question of supervision of Mandatory administration. We find
that dealt with in the Preliminary Objections at page 244 (1). The only
point 1 wish to make at the moment is that that indicates clearly that
resolution XIV was not even intended, by its proposers at any rate, , ARGLLMENT OF MR. DE VILLIERS 81
to cover the case of Manciatory administration or supervision in respect
thereof.
When we then corne t13resolution XI and its history, we find that
the proposa1 in the Execuiive Cornmittee of the Preparatory Commission
was that there should be constituted a Temporary Trusteeship Council
and that its functions woilld be interaliato
"advise the General Assembly on any matters that might anse
with regard to the transfer to'the United Nations of any functions
and responçibilities hitherto cxercised under the Mandates system".
(Doc. PC/EX/rxg/Rev. I,12th November, 1945 ,. 56.)
So here, then, was a specific, express proposa1 to do something in
regard to the possible transfer to the United Nations of functions of
the Leagueregarding Mandates. But, Mr. President, we find in the further
history of this resolutior.XI that this proposal was not adopted. It
was dropped in the Preparatory Commission itself and nothing was
substituted for it in rega.rd to possible transfer of, or assurnption by,
the United Nations of League functions in regard to Mandates. The
proposa1 was dropped, nothing was substituted forit, and in the end
we find that resolutionX:[in effect merely urged the Mandatory Powers
to submit trusteeship agt.eements as soon as possible. That is the effect
of the resolution. We cite the resolution at page247 (1) of the Prelirni-
nary Objections, and we deal with it again at page 327 (1).
The Assemblyknew by that time that in certain cases such trusteeship
agreements would not be submitted. It knew, by reason of the reser-
vations that South Africii had made, that South Africa would not be
submitting a trusteeship agreement, that the position was still one
where the population u.ould be consulted in regard to a possible
incorporation into the Union. And it also knew in regard to Palestine
that the United Kingdoin had said spccifically that the matter was
subject to an enquiry bj.the Anglo-Arnerican Commission of Inquiry
and that for the time being no proposals would be made in regard to
Palestine at all. Even in the case of the former Japanese Mandate the
position was cornpletely iincertain and nobody knew exactly what was
going to happen.
These, therefore, are the outstanding features of the history of those
two resolutions as they ai-epertinent for our purposes, and they, in rny
submission, demonstrate very clearly that there could not have been
a tacit understanding on .the part of the foundersof the United Nations
to the effect that supervisory functions of the League regarding Mandates
not converted into trus;:eeship would be transferred to the United
Nations without anything more being required to be done in that regard.
In the first place, the Members of the United Nations must have
realized that if there was to be any such transfer, then CO-operation
on the part of the Leagiie itself would be required for that purpose.
To dernonstrate that by way of an extreme: Suppose the League at the
last meeting of its Asserribly had decided that al1 Mandates should be
cancelled-there was at one stage some talk of that possibility-but
let us suppose that had been a possible resolution on the part of the
League Assembly at its last meeting. Then, on that basis, there would
have been nothing to transfer. There would have been nothing to assume
on the part ofthe United Nations. And, surely, there must have been 82 SOUTH WEST AFRICA
that contemplation-that knowledge-on the part of the founders of
the United Nations that, for this reason, some CO-operation on the
part of the League itself would be required if there was to be such a
transfer. In fact, in regard to al1 the other transfers there was such
CO-operation, and it was expected beforehand; it was actually solicited
by the United Nations. Tt was expected, and it was solicited by the
form of resolution XIV, taken at the first portion of the First Assembly
meeting. That resolution was laid before the League Assembly at its
last session and it served as a baçis for corresponding resolutions taken
at that last session ofthe League, so that the matter of a transfer of
assets and an assurnption of functions and powers could be arranged
so far as was necessary by way of CO-operationbetween these two
organizations and representatives thereof. Therefore again, in the case
of possible taking over of supervision in respect of Mandatory adminis-
tration, the realization must have been that there would have to be
similar CO-operation, and, for that reason alone, it seems most unlikely
that the matter would have been left to a tacit understanding and that
there would not have been some express arrangement about it, if that
had been the contemplation. Indeed, when we find that there isa concern
not to imply a legal continuity which would in fact not exist, if we find
that al1the elaborate arrangements are made in the other respects for a
transfer of assets'and assumption of functions and powers, one caniiot
understand why this question in regard to mandates supervision should
have been regarded assomething that "went without saying".
The very proposal, Mr. President, which existed at one stage for a
Temporary Trusteeship Council, that proposal showed that there could
not have been a general contemplation that this was a matter that
spoke for itself, that did not require speciai and explicit arrangements.
The mere fact that there was such a proposa1 shows that there was a
contemplation that if there was to be a transfer of functions in this
regard it would have to be specially provided for. But that proposal,
asI have pointed out, fell away eventually. The inference appears to
be that it did not obtain sufficient support in order to be adopted as
portion of a resolution. T cannot put it higher than that. 1 cannot Say
that that must necessarily have been the position, but there is at least
a strong indication of probability that that proposa1 could not obtain
sufficient support, and therefore the indications of probability are
against there having been a general contemplation, tacit or otherwise,
that there would be a transfer of League functions of supervision in
regard to Mandatory administration.
The probabilities are much rather that the contemplation was that
this wouId be a matter to be Ieft to individual treatrnent in every case.
Each one of the Mandatories, except for the case ofthe previous Japanese
Mandate, had made a statement regarding its position-its intentions-
in regard to the mandated territories. There were the differences per-
taining to the various cases, and the probabilities are that the general
contemplation was that each case would be dealt with separately and
that an appropriate arrangement would be foundin each case.
Mr. President, 1turn next to the proceedings at the last session of the
League Assembly, with a view to seeing what evidence those proceedings
provide as regards this questionof intent-intent on thequeçtionwhether
any League supervisory functions regarding Mandates were to be trans-
ferred to the United Nations in cases outside of trusteeship. ARGISMENTOF MR. DE VILLIERS
83
\;Ire find that, after ~~msiderationof the United Nations resolution
XIV, the League Assemédyadopted resolutions to facilitate the assump-
tion by the United Nations of League functions, powers and activities,
but the resoliition was co~lfinedto functions, powers and activities of a
non-political character. In regard to those of a political character there
was no reçolution at al1oii the League side. Obviously, then, the intention
mus t have been to leave these in general to the ad hoc treatment which
had been envisaged in the United Nations resolution XIV, partI,3 C-
the one that I read to the Court before-namely a specific request from
the parties in each caseta be specifically dealwith by the United Nations
. organs.
Now, more particularl;: inregard to Mandates, we find a very signifi-
cant indication of inteni: in the history revolving around the original
proposa1 by China, whicll is set out at page 253 (1) of our Preliminary
Objections. The Court willfind that that proposal-the draft resolution
proposed-reads as folloivç:
"The Assembly :
Considerifig that l.he Trusteeship Council of the United Nations
has not yet been constituted and that al1mandated territories under
the League have not been transformed into territories under trustee-
ship ;
Consideriag that ;:he League functions as supervisory organ for
mandated territorie:; should be transferred to the United Nations
after the dissolutiori of the League in order to avoid a period of
interregnum in the siipervision of the mandated territones:
Reconzmends that the mandatory Powers as well as thoçe admin-
istering ex-enerny nîandated territories shall continue to submit
annual reports on ttiese territories to the United Nations and to
submit to inspection by the same until the trusteeship council shall
have been constitut~d."
In other words, what m-as envisaged here was thiç time-Iag between the
dissolution of the League andthe constitution of the Trusteeship Council
because, as the Court knows, the Trusteeship Council consists partly of
representatives of administering authorities, and prier ta the entering
into of trusteeship agreenients there could therefore not be a constitution
of the Trusteeship Council; so there would necessarily be a time-lag
.between the contemp1ati:d dissolution of the League and the time when
the Trusteeship Council could begin to function and begin to exercise its
supervision in respect of trusteeship agreements. That period-that inte-
rim period-was seen by the representative of China as constituting a
possible threatto the con;tinuation of supervision in respect of Mandatory
administration. He wantsd to avoid a period of interreglzum in that re-
gard, and he therefore proposed expressly that the Assembly should ex-
press itself as considering that the League functions as supervisory organ
should be transferred to tlie United Nations, particularly in order avoid
that period of interregnum:.He proposed an expressresolution recornmend-
ing that the Mandatory Fowersshould for that period continue to submit
annual reports on the territories.
Therefore, the questior. of possible United Nations supervision regvd-
ing Mandates not conver1:ed into tmteeship was not, at this last session
of the League AssembIy, treated as something that "goes without SOUTH WEST AFRICA
84
saying", sornething that could be left to tacit underçtanding. There was
a proposa1 here to deal with it expressly and specifically.And one sees
that as the events progressed at the last session of the League Assembly
the only inference that can bedrawn is that this proposal could not muster
sufficient support in order to be carrieu as a unanimous resolution at the
last League Assembly; because one finds in the subsequent history that
there were negotiations, and, resulting from these negotiations, one finds
in the First Cornmittee there was later a report that there had now been
an agreed draft, to which everybody had agreed, including the representa-
tive of China who then, indeed, proceeded to be the introducer of that
agreed draft, and that draft became the eventual resolution regarding
Mandates. The matter is so important because of the significant contrats
between the resolution as eventually adopted and thiç earlier proposa1 on
the part of the representative of China. In paragaph 3 of the resolution
as adopted, the Assembly "Recognizes that, on the termination of the
League's existence, its functions with respect to the Mandated territones
will come to an end ..."- Iam reading from the wording of the resolution
as set out at page 255 (1) of the Preliminary Objections. There it recog-
nizes that on termination of the League's existence its functions with re-
spect to the Mandated territories will come to an end. But itMnotesthat
Chapters XI, XII and XIII of the Charter of the United Nations embody
principles corresponding to those declared in Article 22 of the Covenant
of the League". In other words, in spite of the recognition that those
functions of the League would corne to an end, nothing issaid about the
possibility of transfer ofthose functions to cover this period of interreg-
num-possible period of ilzterregnum--as had been previously proposed
in the Chinese draft. Al1that the resolution proceeded to do was to note
that there were corresponding principles in Chapters XI, XII and XII1
of the Charter. In other words, nothing was done in order to have a trans-
fer for the period of interregnum; everything was left to be dealt with
exclusively in accordance with the provisions of the Charter in that res-
pect, in Chapter XI, Chapter XII and Chapter XIII; XII and XIII
contempIating the possibility of trusteeship agreements and Chapter XI
dealing generally with non-self-governingterritories.
The resolution goes on, in paragraph 4,to state that the Assembiy :
"Takes note pf the expressed intentions of the members of the
League now administering territories under mandate to continue
to administer them for the weii-being and developrnent of the peoples
concerned in accordance with the obligations contained in the res-
pective mandates until other arrangements have been agreed be-
tween the United Nations and the respective mandatory powers."
(Preliminary Objectiolas,p.255 (1).)
Inother words, the Assembly contemplates that there may be other
arrangements agreed upon between the United Nations and the respect-
ive Mandatory Yowers. It contemplates a specific agreement in each case,
a specific arrangement that may be agreed between the United Nations
and the respective Power; and it aIso contemplates, as did the original
Chinese proposal, that there would be an interim period pending such
further arrangements. In regard to that interim period it also expresses
itselfastaking note of expressed intentions of the Members of the League
in regard to that period, But a11that those intentions arnounted to were
intentions regarding the administration of the territories for the well- ARGIJMENT OF MR. DE VILLIERS
85
being and development cifthe peoples concerned-nothing in regard to
reporting or accounting, a.shad been expresslyproposed and visualized in
the original Chinese proposal. And those omissions, 1 submit, Mr. Presi-
dent, especially by way of this contrast, are very significant. They de-
monstrate, in my submis:;ion, very clearly that there was a total absence
of contemplation of a general transferof League functions of supervision
regarding Mandates for this interirn period ;that the proposa1 for effecting
such a transfer coulà not achieve the necessary support, and that that in
itself indicates that there was no general agreement about it.
Mr. President, further ernphasis on the contrast which 1 have just
referred to-the contrast between the resolution as eventually adopted
and the proposa1 contained in the original draft submitted by China-
further emphasis on that contrast is tobe found in what the representative
of China is reported to have stated in introducing the ageed draft which
eventually became the i:esolution. We find an extract from what he
stated at page 254 (1) of -thePreliminary Objections, and I would liketo
direct the Court's attention thereto.
"In proposing the newdraft resolution, Dr. Liang 'recalled that he
had already drawn tb.eattention of the Cornmittee to the complicated
problems arising in regard to mandates from the transfer of functions
from the League to the United Nations. The United Nations Charter
in Chapters XII and XII1 established a system of trusteeship based
largely upon the principles of the mandatessystem, but [1emphasize]
the functions of the :Leaguein that respect werenot transferredauto-
maticallyto the United Nations. The Assembly should therefore take
steps to secure the continued application of the principles of the
mandates systern'."
I pause there for a mornent. The speaker drabvs attention again to the
fact that there was no autornatic transfer of functions and that it was
therefore necessary for the AssembIy to take steps. The matter could not
be left unsaid; something specifically had to be done in regard thereto.
But now, hlr. Presiden.;:,insteadof moving to the next logical stageas
he had done in his previoils proposal, namely, to propose that something
expressly should be resolved by the Assembly in regard to this inter-
vening period, he goes on to Say that :
"As Professor Bailey had pointed out to the Àssembly on the pre-
vious day, the Leagile wouldwish ta be asszlredas to the future of
rnandated territorie:;. The matter had also been referred to by
Lord Cecil and other delegates." (PreliminaryObjectiolasp,. 254(I).)
In other words, the rel'erence is now purely to the statements, to the
assurances, that had been given to the Assembly by the various represen-
tatives of the Mandatory Powers. And he proceeded to Say:
"It was gratifyiy* to the Chinese delegation, as representing a
country which had aIways stood for the principle of trusteeship,
that al1 the hlandatory Powers had announced their intention to
administer the tenitories under their control in accordance with
their obligations under the mandates system until otherarrangements
were agveedu$on. It was to hehoped that the futzlrarrangements to
be made with regard to these territories would apply in full the
firirsci$Zeof trusteeshiunderlying the mandates system." (Prelinz-
inary Objections,p. 254 (I).)86 SOUTH WEST AFRICA
In other words, there was no contemplation here that there would be
anything in regard to report or accountability or supervision in the
intervening period. Everything was placed on a hope of full application
of the principles of trusteeship by the future arrangements to be made.
For the interim, there was only a contemplation of continued admini-
stration by the Mandatory Powers in accordance with their obligations
under the Mandate system.
Indeed, then, if we refer to the wording of the various statements
by Mandatory Powers to the Assembly, we find this point further em-
phasized, that not a single one of them referred to any intentiontorender
reports for the interim period until such time as they might make other
arrangements with the United Nations. Their intentions, as expressed
regarding that interim period, were confined entirely to the matter of
administration in the territories thernselves, and indeed, in the case of
three of those statements, the suggestion was very pointed, that in the
meantime there would be no reporting astherehad been before and as had
been required in the respective report articles of the Mandates. So, for
instance, if we refer to the statement by the representative of South
Africa-which we find atpages 250-251 (1) of the Preliminary Objections
-we find that there is a statement firstof the intention to consult the
population and to lay proposals in that regard before the General As-
sembly of the United Nations; and then, as for the interim, we find this
statement at page 251:
"...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 interests of
the inhabitants, as she has done during the past six years when
meetings of the Mandates Commission could not be he1d"-
in other words, during the period when there could be no reporting
and when there was in fact no reporting and no supervision; the sug-
gestion being that that was the position which would now be continued.
"The disappearance of those organs of the League concerned with
the su~ervision of mandates. nrimarilv the Mandates Commission
and the League anc cil, wiil'necessa;i~~ preclude cornplete corn-
pliance with the letter of the mandate." (P~eliminary Objections,
Again, very pointedly, that very same suggestion. When we look at the
statement by the representative of Australia, the position becomes, if
anything, clearer, for this reason, that the Australian representative
reridered clear that in his view there would be an obligatioin the interim
period to submit information in terms of Chapter XI of the United
Nations Charter-Article 73(e)--which of course is a very much iess
onerous and stringent obligation than reporting and accounting in
respect of cornpliancewith substantive trust obligations under amandate.
This Article is to the effect that the Members of the United Nations
who have responsibilities for Non-Self-Governing Territones under-
take to transmit regularly to the Secretary-General for information
purposes, subject to such limitation as security and constitutional
considerations may require, statistical and other information of a
technical nature relating to economic, social and educational con-
ditions in the territories for bvhich they are respectively responsible, ARGUME?.TT OF MR. DE VILLIERS
87
other than those territories to which Chapters XII and XII1 apply.
Whether this contemplation was legally correct or not does not matter
formy purposes, Mr. President; whether in fact there was a legal obli-
gation in the interim to submit information in terms ofthis Article does
not really matter. What does matter is that ,thAustralianrepresentative,
if there had been sny contemplation on his part that there would be a
continued obligation to report and account in terms of the relevant
provision of the mandite agreement, could not have stated a con-
templation that this 1e;ser obligation would apply in the meantime.
The representative stated that "After the dissolution of the Leape of
NationsM-I am reading from page 252 (1) of Our Preliminary Ob-
jections-
"...After the dissolution of the League of Nations and the
consequent liquidation of the Permanent Mandates Com~nission,
it will be impossible to continue the mandates syçtem in its entirety,
Notwithstanding this, the Government of Australia does not
regard the dissoIution of the League as lessening the obligations
imposed upon it foi-the protection and advancement of the inhabi-
tants of the mandz.ted territories, which it regards as having still
full force and effect. AccordingIy, until the coming into force of
appropriate trustei:shipagreements under Chapter XII of the
Charter, the Goveinment of Australia wiil continue to adrninister
the present mandai:ed territories, in accordance with the provision
of the for the protection and advancement of the in-
habitants.''
So, there again, the undertaking is confined to the manner of admi-
nistration. And then, further on:
<r...In due cour.;e these terntories will be brought under the
trusteeship system of the United Nations; until then, the ground
is covered not only11y the pledge which the Government ofAustralia
haç given to this Assembly today [relating to the rnanner of admini-
stration] but also by the explicit international obligations laid
down in Chapter XI of the Charter, to which 1 have referred."
(Prelimi?zaryObjectz'onsp,.252 (1).)
That previous reference is not given there.Imight give it to the Court.
It is from page 47 of the Special Supplernent No. 194 of the League of
Nations Oficia1 Journal dealing with this 1st meeting, and there it is
stated-there is a referelice to ChapteXI of the Charter, with a further
comment :
"... Arnongst other things, each administering authority under
that chapter undertakes to supply to the United Nations information
concerning economic, social and educational conditions in its
dependent territorit:ç."
That mere contempl:rtion, as 1 have submitted, excludes a contem-
plation of a more onerclus obligation to report in terms of the relevant
provision of the Mandate Agreement.
Finally, we find that the United Kingdom's representative expressed
the intention of bis Gcvernment in this for~n: he referred to the in-
tention to place certain territories under trusteeship, depending on
negotiation of satisfact-3ry terms, and then, as regards Palestine, he 88 SOUTH WEST AFRICA
saidthatthat could not be decided irntil the Anglo-American Committee
ofEnquiry had rendered their report, but then:
"...until the three African territories have actually been placed
under trusteeship and until fresh arrangements have been reached
in regard to Palestine-whatever those arrangements may be-it
is the intention of His Majesty's Government in the United King-
dom to continue to adrninister these territories in accordance with
the general principles of the existing mandates".Leagueof Nations,
OfleialJournal. SfiecialSzlfi#lemenf,No. 194,p. 28.)
1 stress "the general principles of the existing mandates". A rather
interesting light on what appears to have been intended with that
expression is provided by the Report of the Special Committee on
Palestine, from which we cite in our Preliminary Objections at page
335 (I), where we find this statement from that Report:
"Following the Second World War, the establishment of the
United Nations in 1945 and the dissolution of the League of Na-
tions the following year opened a new phase in the hiçtory of the
mandatory regime. The mandatory Power, in the absence of the
League and its Permanent Mandates Commission, had no kter-
national authority to which itmight submtt reports nad genernlly
accountfor the exerciseof its responsibilities in accordance with the
terrns of the Mandate. Having this in mind, at the final session of
the League Assembly the United Kingdom represcntative declared
that Palestine would be administered 'in accordancewith thegeneral
principles'of the existing Mandate until 'fresh arrangements had
been reached'."
This is a report by the Eleven-Nation Committee, not by the United
Kingdom itself; but it seems most unlikely that this explanation could
have been given for that statement had it not been obtained at the
statement's very source. And that, indeed, appears to be the only logical
would be followed in the meantirne, that would be by way of generalons
principle, because there could meanwhile be no reporting. Therefore, on
analysis, a veryclear contemplation, intimated to the General Assembly,
that there would, in the interim period, be no reporting or accounting.
Mr. President, Our submission is then that the events at the final
session of the League Assembly show very clearly, not only an absence
of a contemplation of a transfer of League supervisory functions re-
garding Mandates to the United Nations in respect of territories not
converted into trusteeship, but that there was a widespread contrary
understanding, namely, that there would be no report and accountability
in that regard.
1 proceed to deal with the negotiations between the Respondent and
the United Nations subsequent to the dissolution of the Leape, in
order to point out that from those negotiations again there never resulted
any agreement, or any consent on the Respondent's part to submit to
United Nations supervisian in respect of administration under the
Mandate. There was initidly the proposa1 regarding the recognition of
incorporation, to which the General Assembly would not accede. There
was the counter-invitation of the General Assembly to the Union of ARGUMENT OF MR. DE VILLIERS
89
South Africa to submit a trusteeship agreement, to which the Union
would not accede for thr: reasons it gave. There were further proposals
from the side of the Union Government in regard to new arrangements
that might be entered into. These were not acceptable to the United
Nations or its negotiatirig agencies. So that there was, in general, no
United Nations. There vras for a period a submission of information in
accordance with, orbroallly on the same bais asenvisaged in, Article 73
of the Charter, for information purposes only. But in regard to that
submission of information, it was made clear from the outset that the
information was subrnitted on the bais that there was no obligation at
allas far asthe Union IV:Lconcerned, to submit any information whatso-
ever; that it would be voluntary and that the Union would submit it on
the condition thatthe inj'ormationwas not to be dealt withas ifa trustee-
ship agreement had, in fiict, been concluded. It was coupled with an ex-
press denial ofany accouiitability to the United Nations. These conditions
were never accepted by the United Nations and, indeed, the information
was treated eventually as if it involved accountability, and for that
reason the practice was desisted from of supplying thaf information.
There was therefore, Mr. President, no agreement, either express or
implied, even in regard to submitting information in accordance with
Article 73 (4, and much less to submit information by way of reporting
and accounting as regards compliance withsubstantive obligations under
a Mandate.
The Applicants do not appear to allege that any agreement came
about relative to the present case inthk history of negotiation between
us and the United Nations. But 1 mention it for this purpose, namely
that there appears to be some misunderstanding, judging from certain
things 1 have read, ab0c.t what the position was in this regard and par-
ticularly also as to what the finding of the majority of the Court was in
this regard in 1950 . e find, for instance, ina dissenting Opinion by
five judges in 1956 on the question of the hearing of oral petitions, this
statement at page 65 of that Opinion:
"An important e1i:mentof the situation then existing was referred
to on a number of occasions by the Court in the reasoning of its
Opinion [referring to the 1950majority Opinion]: that is, the
wiilingness expressed by the Union of South Africa to regard itself
as continuing to exercIse its Mandate, to continue to administer
the Territory in accordance with the provisions of the Mandate
and to continue to render reports to the United Nations."
There was, in fact, ni:ver any such willingness expressed as regards
continuing to render reports, if by that is meant reporting in terms
of the Mandate obligatiori, and the Court, in 1950,ever found that there
was anything of the kind. There seems to be a similar misunderstanding
on the partof the late Judge Lauterpacht ;I am reading £romhis Develop-
ment of I?eternationalL~EBby theInbernational Courdat page 170.He says
there-in discussing a principle of interpretation:
"...Thus in the fidvisory Opinion on the Intemntiond Status of
South-West Africa the Court held that certain declarations made
by the Govemmeni: of the Union of South Africa constituted a
recognition on its part of its obligation to submit to continuedgo SOUTH WEST AFRlCA
supervision in accordance with the Mandate and not merely an
indication ofits future conduct."
In fact, Mr. President, there was no such declaration by, or on behalf
of, the Govemment of the Union, and the Court did not find in rg5o
that there was any. The Court did refer to declarations which implied
the continued existence of the Mandate, but nothing which implied .
acceptance of United Nations supervisory powers in respect of the
Mandate.
We deal iurther, Mr. President, in our Preliminary Objections,
with a section which we cal1the Practice ofStates. MTedo so at pages 334-
337 (1) of the Preliminary Objections, and as the matter is set out quite
fully there, 1 do not propose to deal with that in detail. I merely want
to emphasize certain salient features which emerge £rom it. The first
is-perhaps 1 should put it on this basis-that if, during the transition
period of 1945 to 1946, there had then been a tacit agreement or under-
standing that there would be continued reporting and accounting
under Mandates not converted into trusteeship, then one would have
expected that understanding to have been referred to shortIy thercafter
on several occasions. We refer to some of these. One, for instance, is the
fact that in the case of Nauru and in the case of Palestine, the "other
respectively after the coming into force of the Charter, one and a half
years and two years after dissolution of the League. There was that
long intervening period, and in that time nobody ever suggested that
in respect of those two Mandates, which in the meantime remained in
existence, there should be reporting or accounting to the United Nations.
We refer to the report of the Eleven-Nation Special Committee on
Palestine-Australia, Canada, Czechoslovakia, Guatemala, India, Uni-
guay, Iran, the Netherlands, Peru, Sweden and Yugoslavia-of whom
eight had dso been Prlembersof the League at the time of its dissolution
some seventeen months before this report. There we have the expiicit
statements of which 1 have read one or two to the Court (there are
othersset out which I amnot going to read) to the effect that, according
to their understanding, with the disappearance of the Council of the
League and the Permanent Mandates Commission there was an end of
the obligation of report and accountability in terms of the Mandates.
Perhaps 1should just read this; the conclusion then is that in the case
of Palestine:
"The most the lnandatory coud now do, therefore,in the eventof
thecontinuationof theMandate,wozlldbetocurry outits administration
in the spiriof theMandate, without beingable tudischargeits inter-
nationut obligationsin accordancewith the intent of the mandates
system" (Preliminary Objections,p. 335 (1)).
that is, by reporting and accounting to some supervisory organ. So, if
there had been any contemplation of an obligation on the part of Man-
datories to report and account in terms of the Mandate to any United
Nations supervisory organ, then surely it would have been stated there.
But, in fact, the very contrary understanding is stated by these eleven
made in various circumstanceserinvarious debates between 1946andnts 1948
(1) ofour PreIiminary Objections), of the Soviet Union and of the United ARCUMENT OF MR. DE VILLIERS
91
States of America, clearly intimating that, in their view of the situation,
outside of trusteeship there could be na question of United Nations
supervision in respect of Mandates. The New Zealand representative
apparently had a difficult time about the terms of the draft trusteeship
agreement, and he eventually said that if any terms were attempted to be
forced upon him there oiight be no agreement at ali, and "in this even-
tuality, New Zealand WC-uld have to carryon without the privilege of the
supervision by the United Nations, which it desired".
The Soviet Union's statement was made with reference to the Mandate
pre.r~iouslyheld by Japan. The question arose whether the Security
Council could express itself on the question whether or not Japan had
violated the terms of ihe Mandate, and the Soviet Union's attitude
was that it could not dc.so because "there is no continuity, either legal
or othenvise, between tlie 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 the Security Council to
discuss this question, let aIone take any decisions on it." The further
reasoning proceeds on the same lines.
The United States representative in regard to a debate on Palestine
said:
responsibilities either of the League of Nations oofthe Alandatory
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." (PrelzmilzavyObjectiop n.,37 (I).)
Mr. President, we taki: then the eleven States in the case of the report
on Palestine, plus these three States, making a total of fourteeil-about
a quarter of the rnembership of the LTnitedNations at the tirne, These
statements are made apparently without any contradiction at all, in
various circumstances of interest or counter-interest, not al1in respect
of the same matter wherl: there may be a grouping of interests, and made
very soon after the period during which such tacit understanding, if it
existed, wouId have mmifested itself. I submit that, as a matter of
circumstantial evidence, the weight to be assigned to these expressed
contemplations and uncerstandings of the situation must be consider-
able. It must be very much more than attitudes that might have been
taken up later by various States specifically in regard to the Mandate
on South West Africa w:iiensides had already been taken, when matters
of prestige, and possiblj emotion, came into the picture. In ariy event,
1shd deal later, in reply to an argument by the Applicants, with the
attitudes that were shc.wn by States, Members oi the United Nations
initidy on this questior!, during the years1947 to 1949:1 will come to
that later. But quite apart from that, these attitudes show in respect
of ci~cumstances, very strongly, in my submission, show that therearw&tv
a widesvread understafidina and contem~lation that. in the absence
of trusteeship agreement, thëre would be Lo supervisor$ function on the
part of the United Nations and no obLigation to submit to any such
supervision on the part of the Mandatory Powers.
Mr. President, it is against the background of the evidential material
which 1 have now particularly emphasized that 1 would like to deal,
with respect, with the Advisory'Opinion of 1950on this question of92 SOUTH WEST AFRICA
report and accountability-the majority Opinion in that regard-in
order to develop our contention that the information which we now put
before the Court, and which was not before the Court in 1950, is of
cnzcial importance for an evaluation of this Opinion.
First, it becomes necessary to interpret the reasoning in that Opinion
relative to the question under discussion, and Imust admit that there
are various interpretations. Commentators have differed as to the
exact manner in which that reasoning is to be interpreted. We find
that difference of opinion, for instance, in the 1956Opinion concerning
the question ofhearing of oralpetitions, a differenceofopinion apparently
between the Judges who concurred in the majority judgrnent in 1956
as against the Judges who concurred in the minority Opinion in that
year; they differedasto the interpretation to be put upon the relevant
by the contentions on the written pleadings before the Court. Anddging
there also appears to be a difference of opinion in the writings of com-
mentators. Our submission is that, on analysis, that reasoning is to be
understood as resting on an implication of tacit agreement or under-
standing on the part of the Members of the United Nations at the time
of its establishment and corresponding tacit agreement on the part of
the Members of the League at the time of its dissolution to the effect
that, and 1 quote from the Opinion, "...the supervisory functions [are]
to be exercised bythe United Nations..."; and to the effect, further, that
Mandatories would be obliged to submit to such supervision pending or
failing trusteeship or other agreement. That is, in our submission, the
basis upon which the Opinion, on analysis, rests-an implication of
such tacit agreement on the part of United Nations Members on the
one hand and Members of the League on the other. That, in our sub-
mission, is really the only logical and juridical explanation that can
be given of that reasoning when, with respect, it is analyzed. And we
submit that it is because of resting on such an implication that the
evidential material to which I have referred, which is now placed before
the Court for the first time, assumes such very crucial importance.
Now, first, in regard to this interpretation of the reasoning. 1 have
where the Court said thatt to the passage at page 136of th1950 Opinion,
"...Since the Council disappeared bythe dissolution oftheLeague,
the question arises whether these supervisory functions are to be
exercised by the new international organization created by the
Charter, and whether the Union of South Africa is under an obli-
gation ta submit to a supervision by this new organ and to render
annual reports to it."
Then this passage follows :
"Some doubts might arise from the fact that the supervisory
functions of the League with regard to mandated territories not
placed under the new Trusteeship System were neither expressly
transferred to the United Nations nor expressly assumed by that
organization."
So, the reasoning begins with this acknowledgment that there was no
express arrangement. That in itself suggests that the reasoning to
follow would be likely to rest upoan implication af a tacit arrangement ARCUMENT OF MR. DE VILLIERS 93
or understanding. And, indeed, when one analyses the reasoning that
follows, one finds that that suggestion is confirmed by. it. In the first
place, by just looking at it superficially and seeing what is the key
word in the various sen1:encesof the reasoning, one finds th&: one finds
there is a reference towhat the authors of the Covenant "considered"
when they created the systern; we find a reference to what the authors
of the Charter "had in rnind" when they organized the international
trusteeship system; we hd, in regard to Article 80,paragraph r, at
the bottom of page 136, that there is a reference to what the purpose
"must have been". And then there is a reference to the last resolution
of the League Assembl~~,and the crucial sentence at the end refers to
what the resolution "pr~supposes" ;it "presupposes that the supervisory
functions of the League would be taken over by the United Nations'.
Now, al1those words inclicate that what the Court was referring to was
~vhat these parties had in mind without expressing it, because in each
case the referenceisnot ::something to be expressly found in the treaties
or the provisions ofthe resolutions in question, but to what, according
to the reasoning of tht: Court, is to be inferred therefrom. That by
itself indicates that the reasoning is founded on an implication of tacit
arrangement, agreement or understanding.
[Public heariqzgoJ4 Octobev 1962, affernoon]
Mr. President, 1 was dealing at the adjournment with the inter-
pretation of the 1950majority Opinion on the question of supervisory
functions, and my subrnission to the Court was that both as regards
the structure of the reasming and as regards the language of the crucial
portions thereof, the iridications are that what the majority of the
Court had in mind as tlie basis of its reasoning was a tacit agreement,
or understanding, as beizweenMembers of the League on the one hand
and Members of the United Nations on the other hand.
1propose to continue to anaIyze the substance of the reasoning, and
1 submit that that analysis will further confirm what I have just sub-
mitted, andthat is that it \vassuch a tacit agreement or understanding
that the Court had in mind.
We find that the rea:;oning falls to be divided into four parts. Be-
ginning at page 136of tlie Opinion, the four parts are divided into four
paragraphs in the text. The first one is what the Court itself described
as "general consideratior~s".Then followed aparagraph concemingArticle
80, paragraph r, of the Charter. Then a paragraph concerning the last
resolution of the League Assembly regarding mandates. And the fourth,
the United Nations to exercise supervision and to receive and examine
reports.
This last one refers to Article IO of the Charter which authorizes the
General Assembly to di:jcu~sany questions or any matters within the
scope of the Charter an<:to make recommendations on these matters or
questions to the Members of the United Kationç. Now, obviously, that
reference does not appea:.:to have been intended to deal with the question
at al1whether there ha& been any transfer or assumption of functions;
itmerely pointed to an organ within the United Nations that would be
competent to exercise the supervision if such supervision were a matter
within the scope of the Charter. That question does not purport to be94 SOUTH WEST AFRICA
answered by this last paragrapb. The answer to that, if any, is to be
found in the first three paragraphs, and that is therefore, on analysis,
what appears to be the crucial portion of the reasoning-the fist three
of these four paragraphs.
Now, the first one sets out-1 am reading back at page 136-that:
international supervision andto submit reports is an important part
of the Mandates System. M%enthe authors of the Covenant created
this system, they considered that the effective performance of the
sacred trust of civilization by the mandatory Powers required that
the administration of mandated territones shouId be subject to
international supervision. The authors of the Charter had in mind
the same necessity when they organized an International Trusteeship
System. The necessity for supervision continues to exist despite
the disappearance of the supervisory organ under the Mandates
System." (1950 Opinion p. 136.)
I pause there for a moment. What the Court is suggesting here is,
in my submission, perfectly clear. It is that in this Mandate System
the element of report and accountability to an international super-
directed towards effective performance of the sacred trust of civili-t
zation. It was so considered by the authors of the Covenant; and later
the authors of the Charter, when they devised the trusteeship system,
had a similar contemplation. And, there fore, there arises this general
probability that even after the disappearance of the supervisory organ
provided for under the Mandate System tfiere would be a contemplation
of continuation of such a system of supervision. The Court refers, as 1
understand it,to the consideration ofeffectiveness as a consideration of
general probability, bearing upon probable intent ofthe interested par-
ties.
The Court continues to refer then to another general consideration
which isthat there isin existence, despite the disappearance ofthe League
supervisory organ, an organ on the part of the United Nations which
performs similar, though not identical, supervisory functions.
The Court said :
"... It cannot be admitted that tIie obligation to submit to
supervision has disappeared rnerely because the supervisory organ
has ceased to exist, when the United Nations has another inter-
national organ performing similar, though not identical, supervisory
functions." (195 0pinion,p. 13ti.)
The suggestion appears to be this: that because of the gcneral prob-
ability that the interested parties would have intended to keep alive
a system of supervision, and because of the existence now of an organ
that would be capable of performing such supervisory functions,, the
probability is that the parties would have intended such supervision
to be exercised by this new organ.
That, in my submission, is the only juridical interpretation that
them. It couId not have been the intention of the Court to connote that
because of the necessity or desirability of supervision, therefore the
Court holds that that supervision niust be kept alive. It cannot have ARGUMEXT OF MR. DE VILLIERS
95
been the intention of tlie Court to signify that because there was an
organ on the part of i:he United Nations capable of exercising the
supervision, therefore the Court now holds that there is an obligation
on the part of the biaiidatory Power to submit to such supervision.
Because, if that had been the intention of the Court, then what the
Court would have been doing would not be interpreting the law but
laying down the law, or legislating, and that is not a fair interpretation
that could be placed upon this reasoning. The only juridical, or judicial
interpretation, 1 submit, that can be placed upon it, is to read it as
being indicative, as a matter of probability, of intent-probable intent
on the part of the interected parties, with the aid of the consideration of
effectiveness. Therefore, that is the rcason why the Court itself referred
to this reasoning as "tliese general considerations"-meaning thereby
general considerations of probability tending towards an inference of
tacit intent on the part of interested parties.
Read in this way, tht: "general considerations" could not have been
regarded as being conclusive on the question of what the tacit intent
of the parties must have been. They are mere general indications of
probability tending one way. Rut before a final answer could be given
to the question whether an inference of tacit agreement arose necessariIy
or not, it would be necessary to have recoursc also to al1other evidence
beanng upon such intent on the part of the interested parties. And,
therefore, the Court proreeded to have regard first of al1to a considera-
tion regarding probable intent on the part of the authors of the Charter
in its reference to Artide 80, paragraph 1, and thereafter it proceeded
to give corresponding attention to probable intent on the part of the
Members of the .Leagur: at the time of the last resolution regarding
mandates. And it is only after consideration of a11this reasoning that
the Court stated its conc.lusion at page137:
"For the above rzasons, the Court has arrived at the conclusion
that the Gcneral Asjembly of the United Nations is legally qualified
to exercise the supervisory functions previously exercised by the
League of Nations uith regard to the administration ofthe Territory,
and that the Union of South Africa is under an obligation to submit
to supervision and zontrol of the General hssembly and to render
annual reports to it."(195 O0pinion ,.137.)
M'hen we corne to analyze what the Court said inregard to Article 80,
paragraph I, we see that the Court refers to this clause "as it has been
interpreted above". NOM.t,he "above" interpretation refers back to pages
133and 134 of the repcirt ~vhere Article do, paragraph I,isfirst dealt
with in this Opinion. The Court there stated this view of the continued
existence of the substantive portion of the Mandate:
"This view is coniirmed by Article 80,paragraph 1,of the Charter,
which maintains th? rights of States and peoples and the terms of
existing international instruments until the territories in question
are placed under the Truçteeship Syçtem. It is true that this pro-
vision only says that nothing in Chapter XII shall be construed to
alter the rightsof Citates or peoples orthe terms of existing inter-
national instruments. But-as far as mandated territories are
concerned, to which paragraph 2 of this article referç-thprovision
presupposes that the rights of States and peoples shall not lapseg6 SOUTH WEST AFRICA
automatically on the dissolution of the League of Nations. It obvi-
ously was the intention to safeguard the rights of Statesand peoples
under aiicircumstances and in all respects, until each temtory
should be placed under the Trusteeship System." (rp50Opinion,
PP. 133-134.)
So, Mr. President, in refemng back then tu this interpretation of
Article 80, the Court evidentIy referred back to this portion as to what
this provision "presupposed", and as to what the "obvious intention"
was that wasto be found underlying that provision. Because the Court
-at pages 133to 134-contrasted what the provision actually says with
what the provision presupposed and what was the obvious Intention in
regard to that provision. And therefore again this reference in the reaçon-
ing at page 136to 137,referring back to Article 80 as"interpreted above",
is areference, not to the express provisions of Article 80, but to a tacit
underlying intent which the Court infers from it.
And that idea is further supported by the wording which the Court
now employs at pages 136 to 137, where it says further:
"...It purports to safeguard, not only the rights of States, but
also the rights of peoples of mandated territories until Trusteeship
Agreements are concluded. The purpose must have been to provide
a real protection for those rights; but no such rights of the peoples
could be effectiveIy safeguarded without international supervision
and a duty to render reports to a supervisory organ."(195 O0$inion,
PP. 136-137.)
Therefore, Mr. President, again a clear reference to implication as to
tacit underlying intent-"The purpose must have been"-and the argu-
ment is supported by the consideration of effectiveness.
Again, therefore, the reasoning appears tobe that the indications, the
probabilities, indicated an underlying intent which must have been to
provide for continued international supervision in regard to mandatory
administration.
And then, finally, in the reference to the Resolution of the Assembly
third and fourth paragraphs thereof, and then concludes with the words:
',
..This resolution presupposes that the supervisory functions
exercised by the League wouIdbe taken over by the UnitedNations."
(195 0 pinion,p. 137.)
Again therefore, the reference in the reasoning is not to something
expressed in the resolution. The resolution nowhere expreçsly said
anything about transfer of supervisoryfunctions exercised by the League
to the United Kations, or the taking over of such functions. But when the
Court speaks of what the resolution "presupposes" in that regard, it must
be an inference and an implication as to tacit underlying intent.
It was therefore, Mr. President, the totality of these factors-the
general considerations of probability, the indications afforded to the
Court by Article 80, paragraph I,of the Charter, and the indications
afforded to it by the 1st resolution onmandates by the LeagueAssembly-
the totality of those factors led the Court to an inference that there
was an intention ,on the part of the interested parties to provide for
an obligation of report and accountability regarding mandatory admin- AR(;UMENT OF MR. DE VILLIERS 97
istration to the General Assembly of the League, reading in this last
respect also,ArticleIO ofthe United Nations Charterwith that reasoning.
And, because of that basis for the reasoning, it becomes extremely im-
portant to have regard to these factors of evidence, throwing light on the
actualintentions ofthe iiiterested parties, which were not before the Court
in 1950. Because, clearly, where reasoning has to proceed by inference
from evidential data, tlien the conclusion arrived at by inference from
certain facts could be completely different from what it might be if those
facts were ampIified by others which were not known at the time when
the first inference was drawn. The question-the logical question-as to
whether an inference cal or cannot be drawn alters asthe evidentjal data,
from which the inference is sought to be drawn, is altered.
We Est at pages 345-346 (1)of our Preliminary Objections the partic-
uIar factors whic1.iwere not before the Court in 1950,and which in our
submission are important now. The first one is not really important-1
will not deal with it for the moment for I wili revert to it later-but
those which 1 wish to rmphasize now asbeing of importance are the
second, the thirdand th#:fourth. 1would like to begin with the third one,
which refers to the facts concerningthe original proposal by China at the
final session of the Assernbly of the League of Nations, and the subse-
quent withdrawal thereof and substitution therefor of the reçolution
actually adopted.
Mr. President, those facts, in my submission, are of the utmost im-
portance in this regard. U7henwe look at the wording ofthat original
proposa1 by China we find that it contains almost word for word a pro-
position, a proposal, for an express resolution to the effect-to the same
effect-as the tacit intcnt the Court found to bepresupposed by the
actual resolution of the League. The Court stated that presupposition,
which it considered to be involveclin the League resolution, as followsat
page 137: "This resolulion presiipposes that the superviçory functions
exercised by the Leagui: would be taken over by the United Nations."
The original Chinesedraiit, as wehave it at page 253 (1)ofthe Preliminary
Objections, proposed in its second leg that the Assernbly should express
the view that it considered "that the League fiinctions as supervisory
organ for mandated territories should be transferred to the United Na-
tions after the dissoIution of the League". Exactly the same thing. The
Court considered that to be presupposed in the actual resolution adopted.
The original proposal by Chinaprovided for an express resolution to that
effect. But now that al1the facts are known it is also known that that
proposa1 by China could not be adopted because al1the indications were
that it could not receive the nccessary support at the final meeting of the
League. And when that proposal is now contrasted with the resolution
actuallyadopted, considerably more light is thrown on the wholesubject
than was available to the Court before. Now, it becomes significant to see
what was not containeil in the actual resolution as adopted, and the
significance appears frorn the staternent by the representative of China
on the introduction of tlie resolution asfinally adopted. The implications
flowing from that staternent also become clear, to the effect that the
understanding now was that there would be no further reporting and
accounting; there woulc! not be a transfer of functions of the League in
respect of mandated tel-ritories not converted into trusteeship. And as
soon as that becomes cle;tr,then that throws considerable light in all other
directions too. If that liad been the understanding at the time of the SOUTH WEST AFRICA
98
dissolution of the League, then surely it seems hardly likely that there
could have been an opposite understanding some months earlier at San
Francisco, when the Charter was adopted, when the delegates at the
San Francisco Conference included the majority of the Members of the
League.
Therefore, this factor, in itself, throwç such light on what the actuaI
intentions were, that it serves to counteract the considerations of general
probability on which the Court relied and, with respect, correctly relied,
in the absence of evidence to the contrary. But where tliis evidence to the
contrary is supplied, then those general indications. of probability lose
their effect. This is particularso when, in conjunction with the history
regarding the original Chinese proposal, there is also taken into account
the further fact which we mention in paragraph 2 at page 345 (1) of our
Preliminary Objections, nameIy that the Court was not iniormed of the
proposa1 by the Executive Committee of the Preparatory Commission
of the United Nations for a Temporary Trusteeship Committee, or of the
rejection of that proposal by the Preparatory Commission itself, or of the
fact that nothing 5t7asthen substituted as regards possibletransfer to or
assumption by the United Nations of functions regarding Mandated
territories. That again shows, in the history of the formation of the United
Nations and the putting into operation of the tmsteeship system, that
there was a proposa1 for some express regulation in this regard-for the
taking over of supervisory functions in regard to Mandates not converted
into trusteeship. And there again, the proposal was eventually rejected
and not adopted, affording a further indication thatit could not muster
the necessary support. And as regards both sides-the contemplation
both at the finalmeeting of the League Assembl~r,and the contemplation
at the San Francisco Conference, and the first General Assembly of the
United Nations at the time of its formation-considerable light is thrown
on the intentions and the understanding then by the practice of States,
to which 1 referredthis morning. That is point (iv) which we list at page
346 (1) of our Prelirninary Objections. This again affords very strong evi-
dential material-in my submission virtually conclusive evidence-that
there could not have been such a tacit understanding either on the part of
League Members or on the part of Members of the United Nations, as was
found by inference by the majority of the Court in 1950 . ere we have
direct evidence, very shortly after the actual event, bearing upon what
the understanding and the intent of the parties in question actually was.
AI1the evidence obtained from this source points in one direction and
one direction only, and that is that about a quarter of the Members of the
Gnited Nations indicated that, according to their understanding, there
was to be no supervision in respect of Mandatory administration where
the Mandate had not been converted into trusteeship; and that, where
they do express this under circumstances where one might expect con-
tradiction, if there were other States that did not agree with that, we
find no contradiction at all.
Therefore, we submit that, with this evidence specifically directed to
the crucial portions of the reaçoning by inference i1950 ,f this evidence
had been before the Court in 1950, the conclusion at which the majority
arrived would not have been a possible conclusion for it, and in our
submission it w~ouldthen not have been recorded.
Rlr. President, we deal at pages 346-350 (1) of our Preliminary Objec-
tions with extracts from the writingsof several scholarlywriters on inter- ARG.UMENT OF MR. DE VILLIERS
99
national law who accor~led a critical reception to the majority Opinion
of 1950 on the point under discussion. 1 am not going to refer to those
further now; they are oii record.Al11 wish to say about it is this:I am
not suggesting that the raajority Opinion must be considered tobewrong
mereIy because certain writers on international law suggested that it
was, but what 1 do sug<est is that when one has such a reaction from
scholarly writers it is :in indication that something could have been
amiss somewhere. My siibrni~sion as to what was amiss was the inade-
quate presentation of fa-:tual material to the Court in 1950. Some of the
factual material may wc-11have been known to some of these writers, as
appears to have been indicated by their comments. Indeed, Mr. President,
the only scholariy miter-apart from those who merelynote the Court's
decision without a discussion of its merit-theonly writer who indicates
support for the decision, asfar as we have been able to ascertain, waç
the late Judge Lauterpacht in his writings. And he appcars to have
laboured under the mi:japprehension of fact which 1 mentioned this
morning, namely that thcre had been sorne statement on the part of the
South African Governnent by which it had acknowledged acceptance
of an obligation to submit to supervision on the part of the United Na-
tions, which, of course-was a complete misapprehension of the true facts
of the situation.
I turn now to the Applicants' submissions in regard to Article 6 to
see what they are, and 1.0what extent they meet the case which 1 have
justput to the Court. 'Their submissions in that regard appear to fa11
into three parts. The firstis an introduction in their Obserrrations at
pages 428-429 (1) in which they suggest that we rnay haveintroducedthis
subject of Article6unnt:cessarily in these proceedings-in these Prelim-
inary Objections. 1havc:, in effect, disposeof that point; 1 dealt uith
it two days ago,1think, and 1pointed out that if1could satisfy the Court
that there was no successionas far as Article6was concemed, then that
takes away al1 basis for the suggested succession in regard to Article7
upon which the Applicaïits rely; and in that sense alone, the point is of
the utmost importance. It is important also in other respects which I
need not deal with now. Secondly, the Applicants urge a reaffirmation of
the 1950 majority Opinion, andthey deny the existenceof good grounds
for a full reconsideratio~i of thmatter. Tkirdly, they have certain sub-
missions on the merits of the question.
Iwill nonr deal firwith what they Sayin regard toreaffirmation of the
1950 majority Opinion. 'i'heycommence with their submissions inthat re-
gard at page 430 (1) of -theObservations, and there they state that Re-
spondent's contention is advanced "with little grace or merit". Gracis, 1
suppose Mr. President, a matter of taste essentially, anIthink it ismy
French ancestors who fiist ernphasized that thal was not a matter which
was really susceptible (if logical disputation.But 1 need say nothing
further about it except, seriously, that Our contention involves no
diçrespect whatsoever fc-rthe Court. Indeed, 1 think 1 have emphasized
that in the very way in v~hich1have submitted to the Court that the real
basis why 1 submit th~t there is a ground for deviation from what
the Court found in rggc.in this respect,isthat the facts were not fully
and adequately presented to the Court then. As to the merit of the
contention, 1 have dealt with that and 1 will deal with it further in
answer to the Applicantj' submissions. The Applicants continue at page
430(1) of the Observations and Say: IO0 SOUTH WEST AFRICA
"First, not one of the so-called 'new facts' has corne into existence
since 1950. Respondent had full opportunity to deveIop at length
each and every one of them during the advisclry proceedings."
(Observations, p.430 (I).)
Now, Mr. President, as a statement of fact that is correct, except of
course that we nowhere in our subrnissions refeto them as "new facts" ;
wedon't caUthem that. They are not new in the sense that they came into
existence after1950 or that they could not have been presented in 1950.
But that, in my subrnission, makes no difference whatsoever to the
contention which we are advancing or to the merits of that contention.
In municipal legal systems where there exists a principle of res judicata,
provision is made by way of exception for reopening a case where new
evidence is discovered, but then, in order to prevent abuse-in order to
prevent this principle of res judicata from being frittered away altogether
-that exception is safeguarded by qualifications. The qualifications are
generally to the effect that the evidence sought to be raised with a
view to reopening a case has to be new, either in the sense that it arose
after the previous hearing, or in the sense that it could not with due
diligence have been discovered at the stage of the previous hearing.
One generalIy findsthat in municipal legal systems qualifications of that
kind are attached to this exception to the principle of res judicata.
We find a similar situation in theprocedure of this Court as set out in
Article 61, paragraph I,of the Statute. We find it there stated that:
"An application for revision of a judgment [a judgment now in
contrast with an advisory opinion] may be made only when it is
based upon the discovery of some fact of such a nature as to be a
decisive factor, which fact was, when the judgment was given,
unlrnown to the Court and also to the party claiming revision,
always provided that such ignorance was not due to negligence."
So \vehave a similar safeguard there in protection oasirnilar pnnciple
of res judicata. But, Mr. President, in the case of a previous advisory
opinion the principle of res judicatd aoes not apply, and where the
principIe does not apply, there is noneed for an exception to the principle,
and where there is no need for an exception to the principle, there
can be no occasion for a qualification to the exception. There is, indeed,
. no question as to the admissibility of argument or evidence on the
same question that had been decided before in an advisory opinion.
The sole question here is, what weight is to be assigned to the pre-
vious advisory opinion as a matter of authority. Clearly, if the factual
material before the Court now was substantially the same as the factual
materia1 in ïgjo when the Advisory Opinion was considered, then that
alone ~vouldmean that the Advisory Opinion would be granted strong
primafacie weight as being of precedential value as an authority. But
when it is found that the question now before the Court is,although the
same in form, very different in substance because of the presentation of
new facts, then that must affect the value that could be given to the
Advisory Opinion as a matter of precedent-as a matter of authority.
That içthe only logical proposition that is before the Court. We Say it
goes so far that the real question to be decided now by application of the
law to the facts is in substance different from what it waç in 1950,
although the form of it still remains the same and, therefore, ihatthe ARGUMENT OF MR. DE VILLIERS
IO1
Advisory Opinion has iinder these peculiar circumstances virtuaIly no
precedential weight in tlie present circumstances. That is our contention
as ive advance it, and .Ne submit that that contention remains sound
whatever the reason pa-y.have been why the facts were not presented to
the Court in 1950 when they might well have been presented.
. Mr. President, the Applicants proceed at page 430 (1) of their Obser-
vations as follows; they Say:
"Second, not one of the so-called 'crucial new facts' is in reality
either new or cruciai..Each one of them was before the Court in 1950,
and, obviously, was not deemed crucial."
They proceed then, at pages 430-433 (1) of the Observations, to discuss
this allegation with refere~lce to each one of the four elements of fact
which we listed in the Preliminary Objections at pages 345-346, and they
conclude by repeating ai:page 433:
".. . These facts are neither new nor crucial. The Court considered
them, as well as the other pertinent facts, and arrived at its conclu-
sion. Respondent merely disagrees with that conclusion."
Now, >Ir. President, t'hat is not so: except for an explanation which 1
have to give in regard to the first one of the four points which we list,
it is completely incorrect to Say that any one of these factors on which
we rely in fact was before the Court in 1950. In regard to the fkst one,
1refer to our Preliminary Objections, page 345 (1) ; that was a reference
to "Respondent's expres:jreservation of II th May, 1945, at the San Fran-
cisco Conference". The reference back is to pages 237-238 of the Preiimi-
nary Objections, It is a statement from which 1read to the Court earlier
in my argument-1 read a portion at the top of page 238. The Court will
observe that there is a footnote at page 238 which explains that in the
written record of this statement, which we found in Our records, from
which the South Africafi. Representative, Dr. Smit,had read the state-
ment, there was a furthi:r paragraph which was not to be found in the
United Nations record. That paragraph reads as follows:
"As stated in the Memorandum, this is not a rnatter that can be
decided here, but 1 :Lmdirected to mention it for the information of
the Conference so that South Africa may not aftenvards be held to
have acquiesced in the continuance of the Mandate or the inclusion
of the territory in :iny form of trusteeship under the new Inter-
national Organizaticln."
When we referred to something that was not before the Court in 1950,
we intended that to relate only to this last paragraph, because the
rest of the statement w,zs before the Court. But that was not cleav
the wording of Our Preliininary Objections on thjs point was misleading
as it was originally filed--the wording, that is, at pag345 (1). And that
is why rve made a corrc:ction before the Observations were filed. The
correction was forwarded under cover of a letter dated 13Februay 1962
in which we asked for a :ioootnoteto be inserted at page r33 to the effect
that the text of the mer.lorandum set out in Chapter II,Part A, para-
graph 25 swpra, was bef.3re the Court in 1950, but that the Court was
not inforrned of the further paragraph set out in footnote I atpage 238
sufiru.So that was al1 that was intended to be referred to, and as a
matter of fact that statement is correct; the Court was not informedIO2 SOUTH WEST AFRICA
of this further paragrapli, But the whole question is really unimportant,
and it is cornplicated further by the fact that although we had Dr.
Srnita ffirmation at the time when these Preliminary Objections were
filed that hedid in fact make that statement, Dr. Smit isunfortunately
now deceased. The matter is for my purposes not important-that is
why I said before I was not placing particular reliance on it because,
in effect, there is implicit in the body of the statement, as it is in the
text at pages237-238 (11,the same asisconveyed explicitly in this further
paragraphin the footnote, and 1 am prepared to leave the matter at that.
But now, what is important, as 1 have submitted before-important
for our purposes-are the second, the third and the fourth points listed
in our Preliminary Objections at pages 345-346.In regard to the second
point, narnely :
"The rejection by the Preparatory Commission of its Executive
Committee's proposa1 for a Temporary Trusteeship Committee,
without substitution of anything regarding possible transfer to,
or assumption by, the United Nations of any 'functions under the
Mandates Systern' "
in regard to that point the Applicants subrnit at page 431 (1) of the
Observations that that was covered in substance by Respondent's
Written Statement in 1950,and they refer then to an extract from the
Written Statement. On amalysis, Mr. President, one finds that that
Statement referred only to the change of wording from "...a 'transfer'
of functions ..."to the wording of an "...'assumption' by the United
That is the crucial point, as far as 1 can make out, of the relevant
passage in the Written Statement of 1950, Now, that is a point which
1 dealt with here too. It is a point which occurred in regard to the
history of resolution XIV at the first part of the first session of the
United Nations General Assembly. But the point regarding a proposal
for a Temporary Trusteeship Committee with a function infer aliaof
investigating questions that might arise in regard to the transfer of
functions regarding Rfandates-that proposa1 was çomething quite
different. That was something which occurred as part of the history of
resolution XI relating to the putting into operation of the trusteeship
system. That is a completely different point, and 1 don't know how it
could be suggested that that was covered in substance by this different
submission made in 1950in the passage cited by the Applicants. The
point on which we rely is that there was in this history of resolution XI
a specific proposal for express provision in regard to arrangements for
a possible transfer of functions, but that that express proposal could not
muster sufficient support. So itisa point which is completely different
from any of the others.that have been submitted, and it wâs definitely
not before the Court in 1950. Nor'is the point covered by the further
statements which the Applicants make here. They say-1 am reading
from the Observations at page 431 (1) :
"The Court knew that the functions of the League in respect to
mandates had not been expressly transferred to the United Nations
and was aware of the fact that other transfers from the League
to the United Nations had occurred. Neither of these factç was
regarded as crucial." ARGvJMENT OF MR. DE VILLIERS
Io3
But then again, neith~r of those facts is this particulfact on which
we rely; this express prclposal for a Temporary Trusteeship Committee
for dealing with the question of transfer of functions which could not,
apparently, muster sufficient support.
Then wlien we come to OUT point No. (iii) relating to the original
Chinese proposa1 at tht: final session of the League Assembly. The
Applicants state at the bottom of page 431 (1) of their Observations:
"Respondent's statement concerning the original Chinese pro-
posa1 is also not vj~elltaken. The facts concerning the Chinese
proposa1 were beforc the Court in 1950, in the Written Statement
of the United States of America."
And at page 432 (1) ag.~in-about the middle of the page-they state:
"... As a matter of fact, the Court obviously did not find the
facts concerning the Chinese proposal crucial, and had good reason
therefor, as is demoristrated by the following sectiofrom a League
Report which is quoted in the United States Jiritten Statement ..."
So, both these allegationç-to the effect that the facts concerning the
original Chinese propos~il were before the Court in 1950-rest upon
this extract from the Written Statement filed by the United States in
1950 .he Written Statement cited the following from a report by an
official of the League, and the wording ofthat report was:
"Following upon a number of statements in plenary session of
the Assembly with regard to the future of the territories now
held under mandate, this subject was but briefly discussed by
the First Comniittt:e. Attention was drawn by the delegate of
China to the fact that, although the Charteof the United Nations-
in particularby the establishment of an international trusteeship
çystern-embodied ~rinciples corresponding to those of the mandate
system, it made no provision for assumption by the United Nations
of the League's functions under that system as such. The continued
application to the riandated territories ofthe principles laid down
in the Covenant of tne League was a matter on which the AssembIy
would wish to be xjsured. The First Committee took note of the
fact that al1the Members of the Leape now administering mandated
territories had expressed their intention to continue, notwithstanding
the dissolution of the League, to administer these territories for
the well-being and developrnent of the peoples concerned in accord-
ance with their ob1,igations under the respective mandates, until
other arrangements were agreed upon with the United Nations."
(Obseruationsp,p. 432-433 (I).)
Now, Mr. President, how this extract could justify the statement that
the facts concerning the original Clrinese proposa1 were before the
Court in 1g5o I frankly don't understand. The reference is entirely
to what was stated by tht representative of China on the second occasion;
that was on 12 April 1946 on the introduction of the agreed draft which
eventually became the iesolution of the League Assembly, as will be
evident on reference to our Preliminary Objections, pages 253-254 (1)
where we cite the extracts from the Oficial Recordsof the League. The
Court will see that the reference to what occurred on gApril when the
original proposa1 was inti.oduced, as recorded in the sumrnary records of104 SOUTH WEST AFRICA
the League, that is set out at page 253 (1).And then over the page, at
page 254,there is recorded what was stated on 12 April on the introduc-
tion of the approved draft-of the agreed draft. And when the statement
at page 254is compared with this.extract from the Written Statement of
the United States in 1950,one will see that they accord almost exactly,
and that the reference therefore was to what was stated on this later
occasion. There was not a word of reference to the earlier proposal-
either to the contents of the proposa1 or to what was stated in regard
to that proposa1 on the earlier occasion. So that the whole of the point
which we are now making, of the contrast which there is between what
was eventuaily resolved and what was originally proposed-that was
not before the Court at dl, and I reallysee no justification whatever
for this suggestion that the facts were in any way before the Court.
Mr. Fresident, in regard still to this question of the original Chinese
proposal, the Applicants further-at page 432 (1) oftheir Observations-
state as follows:
"The Chinese delegate to the Fourth Committee has placed
Respondent's contention in its proper perspective."
The reference is to something which was stated in the Fourth Com-
mittee-1 think it was in 1950-after the Advisory Opinion of the Court
and after reference had been made there to the fact that certain of these
factshad not been placed before the Court. Now, the citation is this, and
Applicants Say this places our contention in its proper perspective:
"Mr. Liu (China) observed that the South African representative
had stressed the draft remlution submitted to the League of Nations
by the Chinese delegation; he feared that that representative's
remarks might create a wrong impression in the Fourth Cornmittee.
The resolution finally adopted by the League did not, it was tme,
contain any specific provision for the transfer of supervisory func-
tions, but neither did it forbid such transfer. In view of the im-
portance of that point, he wondcred why the South African Govern-
ment had not considered it earlier but had waited until the advisory
opinion of the Court had been discussed in the Fourth Committee.
Dr. Steyn, who had represented his Government at the deliberations
of the International Court of Justice, could have raised the question
at the time.
The Chinese delegation was therefore unable to accept the
argument that the Court had been ignarent of the facts." (Obser-
vations,p. 432 (I).)
Mr. President, how that places the matter in perspective, 1 must
Say, 1 fail to understand. The only two statements in here are that
there was no forbidding of transfer, the relevance of which 1 do not
appreciate, and that Dr. Steyn could have raised the question at
the time. But why this should lead to the conclusion that the Court
was not ignorant of the facts 1 really do not understand. 1 do not
understand the perspective that is said to flow from this. The fact
remains that the facts regarding the original Chinese draft and its
history were not placed before the Court, and none of this comment can
do away with that basic fact.
Then, in regard to our fourth point, which we list at page 346 (1) of
Our Preliminary Objections under the heading of "Practice of States", ARG'JXEPr'TOF MR. DE VILLIERS Io5
referring to the unanimous comments of the United Nations Special
Committee on Palestine., and also the statements on behalf of certain
other States aswe deal with them in our Preliminary Objections, there
the Applicants statein tlleir Observations at page 433 (I), the paragraph
numbered (4) (1 willnot read the first portion, which is argumentative;
I wilI deal with that later. I will proceed with the statement at the
rniddle of that paragrapli:
"The facts concerning the Palestine Mandate were discussed by
Sir Arnold McNair in his Separate Opinion, and, preçumably, were
known to his colieagpes on the Court as well",
andthe reference in the footnote is to Sir Arnold McNair's Opinion at
page 157-
Mr. President, we find that what Sir Arnold McNair said was this:
"Each Mandate has to be considered separately to ascertain the
date and the mode of its termination. Take the case of Palestine.
It is instructive to note that on November 29, 1947, the General
a plan of partition of Palestine, which was firmly based on the view
that the Palestine Mandate still continued, as is evident from
ArticlesI and 2 of Part A and ArticIe 12 of Part B of thePlan."
(195O 0pinion p.,157.)
That is al1 that Si]:Arnold McNair says in regard to Palestine.
Now, how that could be relevant to our allegation that there was a
report on Palestine which contained these very explicit statements
indicating an understanding that there was no longer an obligation to
report and account-hou that could be affected I do not know. The
reference by Sir Arnold McNair is not even to the report; he refers
to the resolution which .wasbased on the report, and he himself made
no mention of that repoi-t at alI. The Applicants go on andSay:
"The Report of the Special Cornmittee on Palestine was also
noted in the aforeinentioned Written Statement of the United
States."
And they refer to paice 134of the statement in the Pleadings aîzd
Documentsof 1950. Non,, thisis apparently the passage to which the
reierence ismade:
"In April 1947, the mandatory for Palestine requested the
calling of a special session of the General Assembly to consider
the question of the future government of PaIestine and make
recornmendations concerning it. A special session was held, and
a United Nations SpecialCornmittee on Palestine was appointed by
the Assembly. This; Committee reported to the second reguIar
session of the Asse~nblyin the fa11of 1947, and on the basis of
its report the Gene1.d Assembly adopted resolution 109 (II)con-
taining recornmendé.tionsconcerning the future of Palestine. The
resolution recommeiided the establishment of a Jewish State, an
Arab State, and an jnternationalized city of Jerusalem. On May 15,
1948, the State of 1:;raelcame into existence. Subsequently, it was
admitted to mernbership in the United Nations, Negotiations are
still in progress conc:erningthe definitive arrangemento be made SOUTH WEST AFRICA
with respect to Jerusalem and the portions of Palestine outside of
Israeli territory."
So, the only çtatement there is that therewas a resolution which was
based on a report of this Committee, and there is no reference whatsoever
to the contents of the report. We carefully went through the documen-
tation of 1950, and we are quite satisfied that the report itself wasnot
before the Court. The documentation shows that very clearly.
Therefore, Mr. President, the mere fact that Members of the Court
may broadly have known the facts, as 1suppose we al1did, more or less,
regarding the developments in Palestine-may even have known of the
existence of a Committee, of the fact that the Committee had reported-
that would not have made the Court aware ofthese particular portions of
the report ofthe Committeeon which werely as being ofspecial significance
in this regard. So here again, the Applicants' suggestion that those
statements were before the Court is not well founded. The Applicants
do not deal at aiiwith the further statements from debates in the United
Nations by representatives of New Zealand, the Soviet Union and the
United States, which 1 referred to this morning and which are set out
in thePreliminary Objections at pages 336-337 (1). They do not attempt
to show that those statements were brought to the Court's attention.
They do make other comrnents regarding our reliance now upon those
statements, but 1wiil deal with that later.
Because, Mr. President, of the fact that the Applicants suggest that
these facts were before the Court, they do not deal, as a matter of
merit, with our suggestion-with Our subrnission-that those facts
were of crucial importance. They simply Say (a) the facts were before
the Court and {b) because of the result they were obviously not deemed
important by the Court, not deemed crucial. That is the way in which
theyput them. They put it specifically so at page 430(1)where they Say:
"Each one of them was before the Court in 1950 ,nd, obviously,
was not deemed crucial."
Now, because the premise falls away-the suggestion that the facts
were before the Court-therefore the basis for the further comment abo
falls alvay-the suggestion that the facts were obviously not deemed
crucial. They could not have been deemed either crucial or not crucial
when the Court was not aware of them. And the Applicants therefore
present no reasoning at al1tothe Court in regard to the question whether
knowledge of those facts could or could not have made a difference to
the result arrived at by the Court in1950.The Applicantshave therefore
failed to show that this is not a case in which we can legitimately, on
grounds of real substance, ask the Court for a reconsideration de novo
of the whole question and for a conclusion which would difier in that
particular respect from that arrived at in 1950.
hlr. President, 1 come now to the Applicants' submissions on the
merits of the question whether the obligation to report and account
survived the diççoiution of the League.
In this respect, the Applicant's argument largely takes the form of
putting an interpretation upon the majority Opinion of rg5o and then
supporting that opinion in the sense in which the Applicants interpret
it. 1 can give a general indication of their submissions in that regard
with reference to page 430(1) of their Observations. 1 should perhaps,
for context, start at the bottom of page qzg. They Say: ARGUMENT OF MR. DE VILLIERS
107
"Respondent adniits that it is the Mandatory's duty to report
and account which distinguishes a mandate from a self-limiting
trust. Nevertheless, although it continues to adrninister the Terri-
tory,and avers that it has the legitimate right to do so, it contends
that it has no duty to report and account. It is this illogical and
inequitable proposition which the Court was unwilling to accept
when itheld that E.espondent has the duty to report and account
to the United Nations; when it did so, it did no more than apply
the principle of giving effect to a basic international instrument
which has as its purpose more than mere contractual relations
between two entities, but which creates an international institution
-a sacred trust. The Court employed the sarne type of legal
reasoning that a municipal court would employ if itwere faced
by the contention clfa trustee or tzkteurthat this duty to account
had 'lapsed'."
Now, Mr. President, there are several things wrapped up in that
passage. Erst of al1 th~re is a suggestion, not specifically stated but
strongly made, that a right to administer the territory under a Mandate
cannot be separated from a duty to report and account in respect of
itto an international institution: in other words, a suggestion of in-
severability as between the duty to report and account and the other
aspects of the Mandate institution. I have already pointed out that
as far as this suggestioi~ is concerned it finds no support whatsoever
from the Advisory Opiriiori of 1950. 1 may Say, in passing, that the
Applicants make that suggestion of inseverability more explicitly at
page 443 (1) of their Ol~servations, where they say:
"Although they ..."
(the organs created after World War 1)
"have been succeeded or replaced by other organs, the Court in
its 1950 Advisory Opinion ruled that the Mandate survived, and
conseguently, that international supervision of the Respondent, as
Mandatory, endures" (Obsemiat2onsp , .443 (I)),
the suggestion being that as soon as we have survival of a Mandate,
then there rnust neccss;trily also be international supervision of the
Respondent as Mandatory : again, therefore, a very pertinent suggestion
of inseverability in this respect.
1 have given the Coiirt the analysis, the proposition being quite
obvious in the case of the two minority Opinions of Sir Arnold McNair
and Judge Read that tlley regarded the two elements as severable-
the element of report and accountability as against that of the other
aspects of the Mandate--and also an analysis of the majority Opinion
which cIearly shows that that proceeded on the basis of severability and
not inseverability.
The next aspect of this passage from the Observations which 1
have read,is the suggestion that the majority's finding in1950 regarding
survival of this obligation to report and account was based on the
finding that the Mandate involved more than mere contractual relations
between two entities and that it created an international institution-a
sacred trust. But that alpin, Mr. President, seems at best a very ques-
tionable interpretation of the majority Opinion. That Opinion, as 1I 08 SOUTH WEST AFRICA
pointed out to the Court before, specificaIIy distinguished Eetween
what it called "the essence of the sacred trust" on the one hand-"the
substantive obligations to utilize its powers for the benefit and the
advancement of the native inhabitants of the territoryu-it distingwshed
very clearly between those obligations as set out in Articles 2 to 5of the
Mandate, and what it called the obligations which corresponded to secu-
rities for the performance of this trust, and it clarjsifiedthe obligation
of report and accountability in this latter category. It was in regard to
the former category, the survival of the substantive obligations involved
in the sacred trust that the Court employed the reference to "something
which involved more than mere contractual relations", that involved an
international institution.
Mr. President, apart from that, let us for the moment 'assume for
purposes of argument that we do regard this element of report and ac-
countability as not merely a persona1 contractual obligation, but as
something which could, in some sense or another, be said to be part of an
international institution, part of a régime,part of a status-something
objective. The mere fact that one could give that description to it-give
it that name-does not mean that one can now deal with this element as
if it were unrelated to an original question of intention between the
parties altogether. It does not mean that if the parties which created this
international institution-this status or régime, by an international
agreement-.if they intended that that obligation was to relate to specific
because of this fonning part of an objective status or institution, that the
Court could now step in and substitute other supervisory machinery for
that originally agreed upon by the parties. I do not know of any principle
of law which would justify such a process of reasoning-a process of
reasoning whch leads to the result that as soon as one can give the name
of a status or a régimeto a certain arrangement, then intentions of the
parties that created that thing no longer matter at al1and the Court can
step in and change the situation and bring about one that is not in
accordance with what the parties originally intended. Even if we deal
with something that could be described as a status, as a régime,as an
objective institution, its content must still be deterrnined with reference
to the intentions of the parties that created it, the effectiveintent that
went into its creation, its constitution. That is the only basis that 1
know of in law for determining what the content of such an institution
could be.
Thirdly, Mr. President, there is in this passage, which 1 have read
from the Observations, a suggestion that "the Court employed the sarne
type of legal reasoning that a municipal court would employ if it were
faced by the contention of a trustee or tuteurthat his duty to account had
lapsed". The analogy, in my submission, iscompletely unsound. When we
deal with a case of a trustee, or tuteur, in municipal law what does his
duty to account mean? His duty to account means something substantive.
It means the duty which is the essence of his trust: to account to the
beneficiariesunder thetrust, to render to them the interest on the capital,
or the capital itseIf if and when he has to do so in terms of his trust;
and if he fails to do so, to account to them, to excuse his failure for
complying with his substantive obligation. That is what is meant by a
tuteur or a trustee's duty to account in municipal law. It is something
substantive. It issomething part and parce1 of his trust, and obviously ARGIJMENT OF MR. DE VILLIERS 109
he cannot remain a tute~sror a trustee and have that duty lo account
lapse.
But, Mr. President, that is not the analogy with the Mandate as.an
international institution and with the Mandatory's duty to account.
The Mandatory's duty is different. It would be analogous to a case
where such a municipal tzctezor trustee is, in addition to his substantive
duty to account to the bzneficiaries, also syecially requireby contract
to render, Say, an annus.1 account to some supervisory body, or sorne
person in a supervisory position-where, for instance, there may be a
Board of Executors, or a Board of Trustees, or a Master or an Orphanage
chamber, or something c4fthat kind-where there is special provision,
then, in the trust arrangement, that apart from accounting substantively
to the bencficiaries, there is also to be an annual report or account to such
a supervisory institution.
Now if such a supervjsory institution shouId cease to exist for any
reason whatsoever, there isno reason that 1 can see why a municipal
court would not find that a tuteur or trustce's duty to account in that
sense had lapsed, when i:here is nothing in the trust arrangement that
is substituted for that ptrticular supervisory body or pcrson to whom
the duty to account related. There is nothing fancy or fantastic in the
suggestion that such a dilty to account could have lapsed. And that,I
submit, is the true analogy between the case of a municipal trustee or
tuteur and that of the sitiiation relatinta a duty to report and account
under the Mandate systein.
[Publi hctrvingof 5 October1962,rnorfiing]
Mr. President, 1 am still dealing with various arguments of the Appli-
cants concerning the obligation of report and accountability. I pointed out
yesterday, shortly before the adjournment , that most of these arguments
take the form of putting :in interpretation on the 1950 majority Opinion
and then supporting the Opinion inthe sense asinterpreted. There is a
further one of these at page 430 (1) of the Observations, to which 1
would fike to refer-the second paragraph there:
"The Court furthermore found, for purposes of confirmation,
that the League of Nations relied on declarations of Mandatories,
including Respondeiit, that they would continue to honor their
obligations as mandatories ..."
Now, Mr. President, 1 pointed out earlier inmy argument, in dealing
with the last session of the League Assembly, that those declarations by
Mandatory Powers relateil only to obligations concerning administration
in the territories themselves, and they included no intention whatsoever
of reporting in regard to irnplementation of those obligations. That po-
sition is perfectly clear11the record, and the majority Opinion of 1950
did not indicate anything to the contrary. Therefore itis not clear atail
what this argument of the Applicants is intended to mean-at any rate
with reference to the que;tion of report andaccountability. The Applic-
ants proceed to Say the Court also found
O...that neither the League nor the United Nations intended the
obligations of mandatories to disappear without their being replaced
by new obligations under trusteeçhip agreements". (Obsemiutions,
P. 430 (11.1II0 SOUTH WEST AFRICA
There again it is difficult to see the relevance of this contention to the
question of report and accountability because, in regard to that obliga-
tion of the Mandatories, no specific intent was required to make that
obligation disappear:It would disappea~ automaticaIly upon dissolution
of the League, upon cessation of the existence of the supervisory organs
specificallyreferred to in terms of that obligation. And it could only be
kept in existence by some new arrangement, somefresh consent, whereby
a new supervisory organ would be substituted for the old one for the pur-
poses of the obligation. The Court in 1950 investigated the question
whether there was such a new arrangement. The majority found there
was, by implication, sribrnission on the part of the hlandatory to a new
supervisory authority-the General Assembly of the United Nations;
the minority differed on that point. That was the question decided. So
1 do not follow how this interprctation could be put on that Opinion
relative to the obligation to report and account, narndy that what the
Court found was that thcre was no intention that the obligation should
disappear.
The main contention which the Applicants advance as the rati or the
rg50 decision on the question of report and accountability is what they
call by various names : "automatic succession" is the expression they
use.at page 429 (1) ; they call it a "doctrine of succession" at thasame
page and also at page 443; and they call ita "principle of succession"in
the Observations at page 445 n each case the suggestion is that the suc-
cession involved a substitution of the United Nations for the League as
the supervisoryorgan to which the Mandatory was obliged to report and
account. Now, one has to analyze what is exactly meant by fhese ex-
pressions-"automatic succession","doctrine of succession" or ''principle
of succession". How is that brought into relation with the treaty relation-
ships between the parties regarding the Mandate?
There are three possibiIities. The first one, it seems, iç that what
the Applicants may have in mind is a succession in pursuance of some-
thing which was already provided for in the Mandate Agreement itself.
If that Agreement should, for instance, have provided that "in the
event of dissolution of the League of Nations, and in the event of there
then being or coming into existence another iiiternational organization
with the following characteristics"-and there would then have followed
a description which would have fitted the United Nations-"then, in
such an event, the Mandatory will be obliged to report to an appropnate
organ of such an organization to its satisfaction"-if there had been a
provision of that kind in the Mandate, then one could speak of an
"automatic succession" at the time when the League was dissolved
and when the United Nations \vas formed. The succession would.be
automatic in thesense that itwould take place in pursuance of something
provided for in the basic instrument, There is, of course,no such express
provision in any of the Mandates-in any of the international agreements
relating to the Mandates-but it may be, and it seems to be the position,
that the Applicants rely on something tacit to that effect, something
to be implied in the Mandate Agreements. That is the first possibility
as to what they might mean by the expressions,
The second possibility is that they might refer to succession by
reason of some tacit agreement or understanding arrived at during the
period of transition, thatis,at the time of establishment of the United
Nations and of dissolution of the League. And the third possibility is ARGUMENT OF MR. DE VILLIERS III
that they might have in mind a succession by reason of some principle
of customary international law.
When one cornes to a~~alyzethe arguments of the Applicants as they
develop them-to the extent that they develop them-in the Obser-
vations,it would appear, Mr. President, tl-iat they mainiy have in mind
succession in thefirst senje to whicI1have referred; succession provided
forin the Mandate Agreement itself, by implication. They don't put it
in ço many words, they don't state itexactly in that way, but that is,
on analysis, what they appear to advance. They also refer to a passage
in an articleby Sir Gerald Fitzmaurice, and the manner in which they
cite that appears to su{;gest that they might poçsibly have in mind
succession by reason of some principle of international law; but that
is not clear at dl-1 shall deal witl-ithat at a Iater stage. In the main
it appears that they hwre in mind succession by reason of something
provided for in the hlanrlate Agreement itself. We find the argument in
that regard linked up with references to an "organized international
community", and this argument is particularly deveioped at pages 442-
443 and again at pages 443-446 of the Observations. They fortify the argu-
ment further with refererlce to scholarly authority and to the pr' ciple of
effectiveness. The scholarly authority is cited in the Observa '4ins at
pages 445-446,and the ~irinciple of effectiveness is referred to at pages
446 and again 481 of the Observations.
Now, Mr, President, if this line of argument is reduced to its bare
essentials it appears to atnount to this: that by Article6 ofthe Mandate
Agreement the Respondent undertook to report and account to what
then was "the a~~,L~ri4te international institution" of "the oreanized
international community"-those are the two expressions uçeduby the
A~~licants inthis content ion-"the annro~riate international institution"
oi "the organized international comk;nify". So that, although Article 6
expressly referred only "to the Council of the League", "to the satis-
faction of the Council", what was really meant was the appropriate
international institution of the organized international conimunity.
Secondly, that for purpoc,es of the Mandate the United Nations has now
replaced the League of Nations as the appropriate international in-
stitution, and that Respondent is therefore now obliged to report and
account to the United Nations in the manner prescribed in Article 6.
They advance further that such an interpretation of the situation
involves a legitimate ap~llication of the pnnciple of effectiveness. That
appears to be the Iine of argument advanced. It seems, Mr, President,
that the argument rests primarily on an implication to be read into
Article 6 of the Mandate .4greement itself, because the Applicants them-
selves state expressly at page 481 (1) of the Observations as follows-
they refer frrst to what they cal1a liberal interpretation employed by the
Court in other cases, and then say in thc last pzragraph at page 481:
"This mode of interpretation has already been accepted by the
Court in interpretinl; Article 6 of the Mandate. In the Advisory
Opinion the Court concluded that Respondent is required to submit
to the supervision of the General Assembly of the United Nations
and render annuai r~:ports thereto. In reaching its conclusion, the
Court interpreted Article 6 of the Mandate so as to accomplish its
purposes."II2 SOUTH WEST AFRICA
interpretation or construction of Article 6 of the Mandate Agreement. of
But naturally Article 6 contains notrhg express to the effect contended
for by the Applicants, and therefore the contention must rest on an
implication which they seek to introduce into Article 6.
Mr, President, when 1 submitted, in the course of my argument to
the Court, that Article 6 referred expressly only to a specificsupervisoIy
organ-the Council of the League-I was not asking the Court to inter-
pret Article 6 restnctively or to indulge in a difficult process of inter-
pretation in order to assign that meaning to Article 6. That is the only
meaning which the words in Article 6 can bear, given their ordinary
natural meaning in their context. It is simple enough:
"The Mandatory shd make to the Council of the League of
tainkg,.." annual report to the satisfaction of the Council, con-
And the same in paragraph 7 of Article zz:
"In every case of mandate, the Mandatory shall render to the
Corncil an annual report ..."
That is then the onlymeaning ofthe wordsinterpretedintheir ordinary
and natural sense. And therefore, Mr. President, if the Applicants now
seek to put another interpretation, asthey cal1it, upon Article 6, by
which Article 6 must be understood as referring to the appropriate organ
for the time being of the organized international society, or words to
that effect, then, Mr. President, that interpretation must in fact rest
on implication. It is something which was not expressed-it was some-
thing that, if it is to be sound, must reon one thing and one thing only,
namely a tacit comrnon agreement between the Parties which they did
not express because they thought that that was "too clear".
would havehad to involve this: that in the event of the Eeague becoming
dissolved and in the event of there then existing another international
organization to which the description "organized international com-
munity" might be applicable, then the obligation would be to report
and account to whatever organ of that new organization which could
now be regarded as being appropriate in terms of its constitution.
That seems to be the suggestion, and that would then have to be the
effect, broadly speaking, of this tacitcommon intent on the part of the
Parties to the Mandate Agreement if the Applicants' contention was to be
regarded as sound. And so the question anses, on the principles which 1
attempted to state to the Court before, whether-having regard to the
relevant evidential material concerning the Mandate Agreement, con-
cerning Article 22 of the Covenant, concerning the constitution of the
Mandate systern, having regard to al1that relevantevidential material-a
necessary inference can be drawn to the effect that there was actually
such mutual intent onthe part ofthe Parties to the Mandatearrangements
My submission is, Mr. President, that when regard is had to the
circumstances surrounding the compromise agreement that went into
Article 22 of the Covenant-the historical circumstances at the t~me
which are well known to the Court and which are a matter of record-
then it seems perfectly clear that there iç no justification whatsoever
for drawing such an inference as being anything approaching a ltecessary ARGUMENT OF MR. DE VILLIERS 113
inference. It may welt bt. that some of the delegates to the Peace Con-
ference would have liked to see such a result ifpossible, notably the
President of the United States (President Wilson) and others who rnay
have thought in the sam-: direction as he did. They may have thought
of that-they may or may not have had it in mind as an ideal. Whether
they thought of it or noi., ifsomebody had raised it, they might have
considered it something t.hat ought to be striven for as an ideal which
ought to be achieved if p.~ssible.But one must not lose sight of the fact
that what could be achie-red could be done by agreement and by agree-
ment alone, andthere were other Iinesofthought at that same conference,
as history very clearly shows.
The States who were in possession of the ex-German colonies and
possessions, and who reaUy wanted to annex or incorporate them into
their own-for them the natural desire would have been-"If we do
accept this Mandate system as a compromise, we want to make our obli-
gations in regard thereto :filittle onerousas possible." That would bethe
natural tendency. Therelore the tendencies in this respect-on this
particular point-would be in opposite directions, as indeed in many
other aspects of this co~npromise arrangement which was eventually
forged.
When these States werr:then eventualiy and with difficulty prevailed
upon to accept the formiila which was proposed as a compromise-an
expressformula which thq then accepted-there is inmy submission no
justification whatsoever for an inference that what is now suggested by
the Applicants, and which would have taken the matter a step further
than to what they agreeti expressly, that they would have assented to
such a proposition. Indeetl, Mr. President, al1the indications are against
even the probability that 1:heywould have assented to such a proposition.
1 have referred in that regard to the attitude expressed by the Prime
Minister of Australia-we find it at page219 of the Preliminary Objec-
tions-ta the effect that liis country really desiredirect control (those
werehis words) and that tliis document, as handed in by the Prime Minis-
ter of Great Britain, represented for his country and for New Zealand the
maximum of their concession. 1have referrcd in that regard-the quota-
tion is in the same portion of the Preliminary Objections-to what the
South Afncan Prime Mini:;terstated, to the emphasis which he laid upon
the people who constituted the conference and who would constitute the
League of Nations, who understood the position and would not make it
impossible for any Mandatory to govern the country. That was a factor
which had induced him to agree. 1 have stressed in that regard the checks
and the balances whichwent into a very carefuily devised League super-
visory system, and which were known to the Mandatories at the time
when they agreed to this c:ompromisesolution.
In these circurnstances then, Mr. President, if the officiousbystander-
ashe has sometimes been called-referred to by Lord Justice Scrutton
had corne along and had asked the question, "Now, what will happen if
the League of Nations is to be dissolved one day? What will happen
to this obligation of repcirt and accountability to the Council of the
League?", can one serioi~sly under those circumstances expect that
there would have been one harmonious answer from the delegates at
that conference? Couldont:expect that they would have said, "Obviously
the answer is so clear that we did not trouble to Say so"? 1 submit not,
Mr. President. 1 submit that a factor of vital importance in that whole= 14 SOUTH WEST AFRICA
situation is the existence in the Mandates system-jn each of the Man-
dates-of a provision for amendment and modification of the terms of
the Mandate, ifand when that might be necessary, by agreement between
the Mandatory and the Council of the League. TheAppiicants themselves
state, at page 443 (1) of their Observations, towards the bottom of the
page :
"It was, of course, hoped and expected that the organs created
after World War 1 to represent the international cornmunity would
endure."
From that proposition certain consequences follow, which the Appli-
cants overlook in their argument. Most important is this, that it would,
in rny submission, be quite unrealistic to attribute to the delegates at the
Peace Conference any real contemplation of detailed effects which a
possible later dissolutionof the League of Nations might have upon the
Mandate arrangements. If the question had been put to them they would
say, "But that is something which Ive do not foresee at the moment. The
circumstances, if that should happen, must determine what will take
place." So that, if the bystander had put this question, "What will
happen if the League is to be dissolved?", the natural answer would
have been, "Al1 wiIl depend on the circumstances; there is machinery
here by which we can alter the Mandate agreements to fit in with altered
circumstances; we cannot foresee exactly what those circumstances will
be, and time will have to tell. The arrangements and adjustments will
have to be made as we go along.We cannot now have an agreement or an
arrangement to cope with something which as yet 1s for alof us sorne-
thing from a practical point of view completely unforeseen." And there-
fore the circurnstances here very forcibly ernphasize the generalization
to which I referred before by way of an extract from the judgment of
Lord Justice McKinnon, in Broome v, Pardesç. It is already on record-
1 merely repeat it for emphaçis-where the learned Lord Justice said:
" ..Where the parties have made an express provision as regards
some matter with regard to the contract, it is, and must be, extremely
difficult for either of them to Say in regard to that subject-matter,
asto which thereis an express provision, that thereisalso an implied
provision or condition in the contract."
To take this analysis a stage further, Mr. President, suppose the
bystander-the imaginary bystander-at this conference had pressed his
point a bit furthei. and had said: "What if the League-if and when it
should be dissolved-should be replaced by another organization which
could be described as the organized international community, and whatjf
that organization should have an organ that might be appropriate, in
terrns of its constitution, for theurpose of exercising supervision over
mandatory administration? Wodd this consent, which haç nowbeengiven
by mandatones to submit to the supervision of the Council of the League,
to report and account to it,be regarded as applicable also to reporting
and accounting to such an appropriate organ of such an imaginary later
organization?" What would the natural reaction to that have been, Mr.
President? 1 can imagine that a ver7 natural and probable reaction might
have been: "We have had enough trouble and difficulty about arriving
at the agreement that has been arrived at; don't introduce further
difficulties now; that is something which is not an imrnediate problem,
it can safely be left for posterity. We will have to deal with the obstacle ARC UMENT OF MR. DE VILLIERS II5
when we come to it; therii is provision forpossible amendment", as Ihave
said. That is one possibl~:reaction, a very reasonable and very probable
one.
Another probable reaction might have been, "We have not discussed
that matter at all; let us discuss it now and see how far we come". In the
event of such a discussi~-~n,hat are the indications of probability as
to what the attitude woiild have been, judging by what there is on the
record in the annals ofhistory as to the various attitudes at the confer-
ence?
Again, Mr. President, the probabilities are thatthe Mandatories-or at
lest some of them-~vould have said: "Now we know what it is that we
are agreeing to by way c-fsupervision on the part of the Council of the
League; we know the iniplications of that type of supervision and we
know, in other words, exactly what we are agreeing to. We are satisfied
with those implications, Ive are prepared to accept them. This suggestion
that is now being put to us about some type of organization which may
replace the League, whic:h rnay have an appropriate organ to exercise
this supervision, is very .:ague. We cannot agree to, or asçent to, a pro-
position of that kind wittiout having more particulars, more details as to
what it would involve, what the implications would be for us. We cannot,
in fairness, be asked to agreto a proposition which isasvague as al1that,
without knowing how this organization would be constituted, how its
organs would be composed, what the powers would be of the organs,
what the voting procedure would be of the organs, and so forth." Indeed,
that would have been the obvious attitude that the Mandatory Powers-
or at least some of them-would have adopted. And, in those circum-
stances, Mr. President, 1 submit that nobody at that conference could
have thought that there was any tacit agreement to the effect that the
express provision in regard to supervision was intended to cary with
it also a submission to a further vague type of supervision of this kind.
There could not have been any impression in the minds of any of the
delegates to the conference that that was the consensus of opinion and
that everyone was prepared to agree to a proposition of that kind,
although it had never bet:n discussed.
That that is so, is specjfically borneout by the subsequent conduct of
the parties-of the States-who were represented at that Peace Confer-
ence initially and who can be regarded as the founders of the Mandate
system. If there had beeii an understanding that Article 6 was to be in-
terpreted or understood -in the sense contended for by the Applicants.
then surely there were occasions-particularly in 1945 and 1946 and
shortly thereafter-when that understanding would very pertinently
have been brought to light. Particularly ifwe look at the occasion on
12 April 1946,at the last sessionof the League Assembly, when the re-
presentative of China said thatthe functions of the League in that respect
-in respect of Mandates-were not transferred automatically to the
United Nations (1 have gi~en the quotation to the Court before) when he
said that, then surely, if i:here had been a general tacit understandingof
the kind contended for by the Applicants, sornebody would have reacted:
"But that is not right, you know! These functions of the League will be
transferred automatically because the understanding has always been
that this reporting and ac1:ounting is to be to the appropriate organ of the
organized international c~)rnmunity, and now there willbe appropriate
organs in the United Nations and, therefore, there will be an automatic116 SOUTH WEST AFRICA
transfer." Surely if therehad been such a general agreement-such a clear
understanding, something which was not expressed because "it went
without sayingW-then there would have been some reaction of that kind
at the League Assenibly. But not a single delegate spoke to that effect,
and indeed there was no disputation whatsoever of this statement by the
Chinese representative that the functions of the League were not trans-
ferred automatically. Further, when the Chinese representative made the
proposa1that there should be expressprovision for a transfer of functions
and for further reporting and accounting inthe interregnum to which he
had referred, one would have expected a reaction: "But that is unneces-
sary, it is already provided for by this generai understanding whichwe al1
know, and to which we are al1parties." And again there was no reaction
of that kind.
When the expressed intentions of.the Mandatory States at that last
League Assembly indicated that there ivouidbe adherence to the obliga-
tions of the Mandates as regards adntinistrafiolzin the territories, when
in some cases nothing was said at aii about reporting and acco~nting,
and when in other respects there was a ,most pertinent indicat~on+r
intimation-that there would be no reporting and accounting in terms of
the Mandate, then surely if there had been a general tacit understanding
as contended forsomeonewouldhave reacted to that effect and would have
said: "Now what about that obligation, what about this understanding
we have always had that your reporting and accounting would not only
be to the Council of the League but to whatever organ of the organized
international community could fairly thereafter be regarded as being a
successor in that respect of the Council?" Nobody reacted to that effect,
Mr. President.
When the questions arose in regard to Palestine (which were dealt
with by that Eleven-Nation Committee), surely if there had been a
general understanding of that kind the Committee could not unanimously
have said: The Mandate has now become infructuous because tkere is
no organ to which there can be reporting and accounting.
The question, Mr.President, remains ;oneofintentions-joint, common,
mutual intentions-of the parties; and that question cannot be+avoided
by the use of labels, by speaking of an "automatic succession", by
speaking of an "organized international community", or by using
expressions of that kind. The basic enquiry remains one of intent.
The factors to which 1 have referred afford the most practical means
of testing that intention, and they al1go to show that there is no foun-
dation for the Applicants' argument.
If we take, for instance, the label "the organized international com-
munity", the argument may at first blush seem attractive because it
has succeeded in finding a comrnon name which can apply both to the
League of Nations and to the United Nations, and by the use of this
common name the argument seeks to bridge the gap. But, Mr. President,
ofrthe parties. I can give the Court an example. Suppose 1 make aentions
contract with a transport contractor that he is to pick me up every
rnorning by motorcar at an appointed tirne to take me to my place of
work. One morning he tumsup with an ox cart. Surely he cannot then
say to me, "But Ourcontract provided for amotorcar, lvkich is a vehicle,
and an ox cart is also a vehicle, and therefore 1 am performing my
contract by bringing a vehicle and taking you in that, even though ARGUMENT OF ME. DE VILLIERS
117
you may be sopping wet when you arrive there because of the rain and
even though you may be an hour late for your work." Surely,one cannot,
rnereIy by finding a cornmon name for two things, now regard those
two things as being the equivalent of one another for the purposes of
a contract or agreement which refers to one of them.
If, for instance, some State had joined the League of Nations in 1930
and thus-according to i.he Applicants' description-became a Mernber
of the "organized intemational community"; if that State had never
taken any trouble to take the necessary steps to become a Member of
the United Nations, surel$ that State could not at the present tirne claim
that "1 am a Member of the United Nations because the United Nations
now is the 'organized kternational community' and 1 joined the 'or-
ganized international coinmunity' in 1930 when 1joined the League".
That type of assimilation is a fallacious one unless it is related to the
intentions-to the real intentions-of the parties. And the factors to
which 1 have referred rcnder it clear, in my submission, that the in-
tentions of the parties iigreeing specifically about supervision by the
Council of the League cannot be understood as referring to the Council
of the League as a concept of being an appropnate organ of an "or-
ganized international cc-mrnunity" for the purpose of implying that
if the Council shouldno longer exisotne day and if there should besome
other organization to which that label might apply, then that other
organization is to be the supervisory authority.
Another ground on which Applicants' argument is sought to be based
is the "principle of effectiveness".However, as the authorities on the
subject render clear, this principlemerely to be used as aguide ofa pre-
sumptive nature, indicative of common intent; it is to be used as an
aid in arriving at a consideration of general probability regarding such
intent. There can be no .;tope forits application where such intent, or
the absence thereof, is clearly demonstrated by other considerations.
Williston on Contracts,in Volume 3, Sec. 620, in referring to the use of
this principlemites :
"But themere fact that parties havemade an improvident bargain
will not lead a Cou1 t to make unnatural implications or artificial
interpretations.A Court will not under the guise of interpretation
write a new contract for the parties."
And in Halsbury's Lam O/ EngZalzd u7efind in Volume 8, pages 121
to 122, that
"Such an implicalion must in al1 cases be founded on the pre-
sumed intention of Che parties and upon reason, and willonly be
made when it is nezessary in order to give the transaction that
efficacy that both parties must have intended it to have."
In the present case, tliere is no justification for contending that the
parties to the Mandate igstrument must have intended the effect con-
tended for by Applicantc. As Lauterpacht, in his DeveEopment of Inter-
nationa law by the Inte;*nationaiCourt,page 281, points out,
"...absence of agreement could not properly be supplemented by
an inference aiming at securing for the instrument in question a
higher degree of effec:tiveness than was warranted by the intentions
of the parties".118 SOUTH WEST AFRICA
The overriding considerations, therefore must be such practical,
reliable indications of common intent as exist, or-as in the present
case-of the absence of such intent. A court's aim cannot be to attain
the maximum of effectiveness, but only the maximum effectiveness
consistent with the intentions of the parties. Indeed the 1950 majority
Opinion did not invoke the principle of effectiveness in the way sug-
gested by Applicants-i.e. with a view to reading an implication into
Article 6 of the Mandate'-but merely as an indication of probability
regarding the intent of members of the League and of the United Nations
at the time of transition.
Infurther support of their contention, Applicants refer to a statement
of Judge Lauterpacht quoted at pages 445 (1) and 446 of the Obser-
vations, which readç as follows:
"While as a ruIe the devolution of rights and competences is
governed either by the constituent instruments of the organizations
in question or by special agreements or decisions of their organs,
the requirement of continuity of international life demands that
succession should be assumed to operate in al1 cases where that is
consistent with or indicated by the reasonably assumed intention
of the parties as interpreted in the Iightof the purpose of the or-
ganizations in question."
It will be observed, Mr. President, that the statement is premised
upon the "reasonably assumed intention of the parties". As Lauterpacht
hirnself pointed out elsewhere the use of the principleof effectiveness is
essentially a matter of good faith; it rests on an interpretation in a11
good faith of the intention of the parties. Where therefore as in the
present case, practical considerations demonstrate the absence of such
intent, that takes away al1 ground for such a reasonable assumption
of intent and therefore precludes the succession contended for.
In the reasoning which led Judge Lauterpacht to the statement
I have just read out to you, an analogy is drawn between the present
situation and the "cy-fires" doctrine. This reasoning is set out at page
279 of the Developnielztof International Law by theInternatiolzal Court,
and the relevant passage reads as follows:
". .. Seldom was there a more compelling occasion for applying-
as the Court did in fact-the cy-près doctrine which cornmon law
courts apply in order to render effective a general charitable in-
tention in face of the impossibility of applying it according to the
literal language of its author. In the case of the Status of South-
West Africa the Court applied the essence, though not the termi-
nology, of that doctrine-with full propriety, it is believed-to
something less than the substance of the relevant provision; it
applied it merely to the procedure of its execution. If, asthe Court
held unanimously, the institution of mandates constituted a
statuç, then it was proper to apply to the matter before it the
principle of succession in international organization-a principle
which the present writer has stated ...with reference to the Opinion
of the Court in the case concerning the Status oSozlth-WestAfrica."
It seems clear, Mr.President, that in this case the vergr premiçe for
the analogy is lackin , i.e. the basic overriding intent to which effect
can be given despite 7ailure of a particular method or machinery pre- ARCUMENT OF MR. DE VILLIERS II9
scribed foritsimplernentation. To illustrate thipoint, may I be permit-
ted to quote from Halsblcry'sLaws of England on the "cy-@es" principle,
where we 6nd on page :;r7of Volume 4 (3rd edition):
"There can be no question of an application cy-près until it is
clearly established that the mode specified by the donor cannot
be carried into effect and that the donor had a general charitabIe
intention."
And it goes on as folI(iws,at pages 317 to 318 :
"An application (:y-prèsresults from the exercise of the ordinary
jurisdiction of the Court to adrninister a charitable trust of which
the particular mode of application has not been defined by the
donor. IVhere the d.>norhas in fact prescribed a particular mode of
application and th;it mode is incapable of being performed but
the donor had a cha;-itableintention which transcended the particular
mode of applicatioii prescribed, the Court in the exercise of this
jurisdiction can camy out the charitable intention as though the
particular direction had ?lot been expressed at all.Wkere, kowever,
the particular mode of application prescribed by the donor was the
essence of bis inten;:ion (which may be shown by a condition or by
particularity of lariguage) and that mode is incapable of being
performed, there is nothing left upon which the Court can found
its jurisdiction, so that in such circumstances the Court has no
power to direct an:{ other charitable application in .place of that
which has failed."
Then, at page 324 w,e findthe following passage on the same principle :
"LVhere the original foundation is capable of taking effect, the
Court has no authojrity to Vary it and to apply the charity cstates
in a manner which .iconceives to be more beneficial to the public,
or even in a mannei which the Court rnay surmise that the founder
would himself have contemplated could he have foreseen the
changes which have taken place by lapse of time."
And finally, at page 3:?5,we read:
"bgain, where tht!re is no general dedication of a fund to charity,
or,in other words, v~herethere is no overriding charitable intention,
a gift for a particularpurpose svhich cannot take effect cannot be
applied cy-prés."
As we have seen fror:l the quotations given above, the basic over-
riding intent in cases where the "cy-près" principle can be resorted to
is known as a "general charitable intent", i.e. when a donor or testator
had an overriding intent to benefit charity, a specifbody or institution
having been designated by him to effect that overriding intent. Howevcr,
where no such infent can be found, the doctrine cannot be applied.
The matter is one of interpretation in each case. To corne back to the
analogy suggested in the passage I quoted from Judge Lauterpacht 's
book: if the "GY-p~es" principle were to be applicable here, there would
surely have to be an overriding intent on the part of the founders of the
Mandate that Mandatorjcs should be obliged to submit to inte~mational
supervision, and that they should report and account to alz organ, not
necessarily the one exprt:ssly provided for, with a view to achieving the120 SOUTH WEST AFRICA
overriding intent. But surely, Mr. President, if there is no such intent-
the reporting and accountability obligations being specifically and ex-
clusively related to a specific organ or institution-the very premise
for the analogy fds away.
There are other respects in which the analogy with the "cy-PY~s''
principle fails. The doctrine is applied where, a donor or testator no
longer dive and in control, the Court then of necessity has to stepin, in
view of the ensuing change of circumstances, to take such steps as are ap-
propriate to effect what it considers to have been the overriding intent of
the donor or testator. Now, where a contract, or an international agee-
ment is concerned, where the parties to that agreement are still in exist-
ence, and where specific provisions are made in theinstrument for effect-
ing such modifications as may be required in view of altered circum-
stances, there is no such necessity for the Court to intervene.
Thirdly, in order to justify intervention by the Court, the original
foundation must be incapable of taking effect-ila totoand not rnerely as
regards some aspect thereof. The reason for that is perfectly clear. The
Court steps in because of necessity, when necessity requires it, in order
to give effect to the basic intent and to prevent a lapse of the charitable
bequest. But where there is no wecessityfor the Court tostep in there is
no justification for the Court to do so.
To give an example: Suppose there should be a bequest with a general
charitable intent of providing for hospitalization of the poor in a partic-
ular district. -In order to give effecto that intent, the donor or testator
provides that there is to be, Say, an annuity available to a particular
hospital in the district, and one of the conditions or directions in regard
to that bequest is that the director of the hospital shall annually report
to Say a hospital control board of the district in order to indicate what he
had done with the money during that year. Now, Mr. President, if that
particular hospital should cease to exist, then there would, on these
principles,be an occasion for the Court to step in and appIy the cy-prks
doctrine. But if merely the hospital control board should cease to exist
so that there could no longer be reporting to the supervisory board, then
that would merely alter one of the aspects of the bequest. The bequest
itself-the original foundation-would still be capable of being given
dffect to. The hospital could carry on-it could still apply that annuity
every year for the purpose for which it was intended-and there would
therefore be no occasion, or no justification, for an application cy-pr2s
according to these principles to which 1 have refe~~ed.
That is really the position here. On the basis on ~vhich this case is
being argued, one accepts that the basic idea, the sacred trust of civili-
zation, remains, that the Mandate remains, involving for the Mandatory
the substantive trust obligations which he undertook and which bind him
to apply his rights and his powers in regard to the territory for the benefit
and for the weli-being and for the advancement of the inhabitants. .
That is the basic, underlying, original foundation-if we talk by way
of anaogly with the cy-près doctrine-and that can still take effect.
Therefore there is no justification for a Court to step in merely when
an additional aspect attached to it, that of reporting and accounting to a
supervisory authority, when that by itself becomes incapable of further
performance. There would be no occasion and there would be no justi-
fication for the Court to perform any role of that kind. ARGUMENT OF MR. DE VIUIERS 121
For al1 these reasons, therefore, the analogy with the cy-firésdoc-
trine is not a sound one.
Mr. President, at pagt: 445 (1)of the Observations the Applicants cite
in support of their argunient a passage from an article by Sir Gerald Fitz-
maurice in the 1952 13ri:ishYear Book.They state that:
" ..The rationale ofthe Court's approach isfurther confirmed by
the carefuliy reasoried analyses of Sir Gerald Fitzmaurice and Sir
Hersch Lauterpacht . Judge Fitzmaurice has pointed out ...",
and then follows a passage which 1 am not going to read to the Court;
it points to the similai.ity between State succession, where territory
asses from one State to another, and the passing of a functional field
Prom one organization to another.
Now, what 1 do want to point out is that the manner in which this
passage isquoted, divorced from its context, is apt to lead to a rnislead-
ing impression. The passage in fact in the British Year Book, 1952, at
page g, commences with the words "On the foregoing buis", which
wordswere omitted at the beginning of the quotation ;and they refer back
to very important qualifications which go before, as 1 understand the
article. On the previous page the learned author states, referring to the
1950 Opinion :
"The Court founclin effect that there had been an automatic or
necessary devoluticn on to the United Nations of certain super-
visory functions of .the former League of Nations in regard to man-
dated territories, ie. the rigto receive, examine and observe upon
reports on such territories, which the mandatory Powers were under
a corresponding obligation to furnish to the League, and hence (in
view of the devo1ut:ion)were now under an obligation to furnish to
the United Nations, in lieu of the League. Judges McNair and Read
dissented from this view, because they were unable to agree that
there had been an:? automatic or necessary devolution. In their
opinion, any succession depended on definite arrangements to that
effect having been niade, and in the light of the relevant instruments
they did not consider that this had been done."
The learned author proceeds:
"lt isnot the present purpose to discusswhich of these views was
particular instruments, and, to that extent, raised no point of of
general legal interest. It would appear, however, that the Court's
findings [in other words the findings in the majonty Opinion]
constitute authority for at any rate the following two general
propositions:
(i) There can be anautomatic devolution of functions from one
international organization on to another in the event of the ex-
tinction of the former.
(ii) There is a pri:sumption that such a devolution occurs when-
ever the following conditions are fulfLued:
a, a given organization becomes extinct, but another organization,
intended generally to take its place cornes or has corneinto being,
having essentially the sarnepurposes and pnnciples, with asimilar
or analagous constitution and institutions, and carrying out
broadly the samt: functions, in the same field;122 SOUTH WEST AFRICA
b. the constitutive instrument of the new organization specifically
authorizes or enables itto assume and carry out the functions in
question."
Al1 these qualifications are therefore to be borne in mind as being
implicit in the words "On the foregoing basis" which introduce the next
passage. Particularly 1want to stress these,Mr. President: it was not the
learned author's purpose to discuss whether the views of the majority
or of the minority were correct in th19jû proceedings; secondly the issue
in rg5o turned very largely upon the effect of particular instruments and
arrangements; and, finally, where the general propositions arestated on
the basis of the views of the majority of the Court, even there the
occurrence of a devolution under the circurnstances mentioned cm
be put no higher than a presumption, which would apply under certain
circumstances. And particularly, in a footnote relating to this element
of presumption, the learned author again states:
"The matter is purposely not put higher than a presumption
because it is clear that in arriving at the conclusion that the rights
and functions inquestion had devolved on tu the United Nations,
the Court was not proceeding on a purely cloctrina1 basis but was
influenced by certain factual considerationsrelativeto the character
of the Mandate for South-West Africa and the effect of certain
particular instruments."
Therefoie, it appears that, although the rationale of the Court's
approach was analyzed by the leamed author, it was certainly not con-
firntedby him.
The analysis, in my submission, supports the construction which 1
have, with respect and with submission, put upon that reasoning of the
majority, in the sense that 1 have also submitted to the Court-that
it was based on a general probability-a conception on the part of
the majority that there would have been, as arnatter of general probabil-
ity, an intention on the part of the interested partiesto keep alive this
obligation to report and account in the form that the new organ, that
would be appropriate for the purpose, would then for the purposes of
their, contract, be regarded as the new superviçory organ. In other
words, it proceeded on a general probability, one that would have
to be viewed and to be weighed in the light of al1 other relevant, evi-
dential considerations before one can corne to a final conclusion as to
whether there was infact and in law inthe particular case such a devo-
lution or succession.
Therefore also, where 1 referred earlier to the three possible ways
in which the AppLicants' reference to a principle of succession could be
understood, itis only when this particular passage to which 1have just
referred is read without regard to its context, it is only then that there
could be sorne suggestion of a possiblereference to succession in the sense
of a principle of customary international law.1know of no authority that
has ever suggested that there does exist such a principle of customary
international law, It is not suggested in the article in question, as I have
just emphasized. The article points out that the matter is one to be
investigated with reference to the particular instruments, and 1 know of
no authority which refers at al1to the possibility of there existing a rule
of customary international law to this effect. ARGUMENT OF MR. DE VILLIERS
I23
Thereiore in the fin5.I anaIysis, &Ir. President, of the Applicants'
arguments concerning siiccession, we find that they apparently do not
contend for succession in pursuance of a principle of customary inter-
national law. They do nst contend for succession in the sense of a tacit
agreement at the time of transition between Members of the League on
the one hand and Memilers of the United Nations on the other hand.
Nowhere in their writtctn Observations does one find any suggestion
that they reIy on succe~sion in this latter sense. And therefore, in my
submission, they do not attempt to support what was really the rationale
of the majority Opinioii in 1950, According to the analysis which I
presented yesterday in rny argument, that Opinion rested on a conclusion
that during the time of transition there was such a tacit agreement or
understanding providing for a succession, but that the Applicants donot
attempt to support. And they do not attempt to controvert our analysis
of the events during the transition period by which we show that al1the
indications there are against the existence of such a tacit agreement or
understanding.
Their contention app?ars to rest entirely upon this interpretation,
as theyput it, which isto be given to Articl6of the Mandate Agreement,
and which, on analysis, as1have presented it tothe Court, is to be under-
stood really as resting cm an implication to be read into that Article.
And it is significant thiit, although they do that, they do not really
advance any evidential material to the Court rvhich must indicate that it
would be a necessary inference to attribute such a common intent to the
Parties. They do not attrmpt to controvert severaI major factors in our
argument which tend to show that there could have been no such joint
intent. They do not attempt to controvert our dernonstration of the
compromise history of Article 22, nor Our andysis of the practical irn-
portance to the Mandatcaries of the fact that Article 6 related to specific
League supervisory machinery only. They don't controvert that any-
where. They don't meet Our argument as to the difference in substance
and in form between supervision on the part of the League supervisory
machinery and organs ofthe United Nations on the other hand.
And, finally, they dl> not meet our argument at al1 as to the
significance to be attrituted to the practice of States in this regard
-to the statements of the nations involved in the report of the Commis-
sion on Palestine, to thi: other statements by the United States. New
Zealand and the Soviet Union representatives during the course of de-
bates-bearing upon what the real intent of the Parties in this regard
must have been. They sirnpIy assert that that iç theway in which Article
6 is to be read inorder to make it effective. That, in Our submission, in
effect amounts to a sug.gestion that the instrument is to be given a
higher degree of effectivaness than is warranted by the intentions of the
Parties. it would, in eftect, in my submission, amount to a revision
of the instruments inste2.d of interpreting thern and it would give them
an effect which would be contrary to their letterand their spirit.
Kr. President, when 1dealt earlier with the Applicants' repIy at page
433 (1) of their 0bserva.tions to our argument concerning the practice
of States, 1 mentioned then that there was a portion of that reply
with which I would not deal at that stage. 1 would like to do so now.
There are really two portions of that passage at page 433 which remain
to be dealt with.I24 SOUTH WEST AFRICA
The first isa reference to Dr. Steyn's address to this Court on behalf
of the Union of South Africa in 1950. The argument is this: Applicants
Say "The fact that Respondent finds the views of States expressed in a
Report on Palestine to be crucialis surprising in the light of Respondent's
argument before the Court in 1950"~and they cite:
"As a corollary, apparently, to the proposition that the man-
datories and the Membersof the League never intended the mandates
to lapse, the Court's attention isalsodrawn, in the Written State-
fact that certain Members of the United Nations, and also theo the
United Nations itself in certain resolutions, have accepted the
continued existence ofthe mandates. Now that again, MT. President,
does not seem to take the rnatter any further. In fact, I find it
difficult to understand why these views are referred to at al1in this
connection. At the most, they are mere expressions of opinion.
These expressions of opinion cannot change the realities of
the legal situation. They cannot make new law." (Observations,
P. 433 (11.1
But to appreciate that argument in its true light, one merely has to
go on to read the very next sentence at page 280 of the Pleadings,
Oral Arguments, Documelatsof 1950. The next sentence reads:
"If in law the mandates lapsed upon the dissolution of the
League, a contrary opinion, howevcr often it may be expressed
in the United Nations, could not alter the law, and revive the
mandates."
There was no inconsistency whatsoever; Dr. Steyn's argument then
was that a certain situation, the lapse of the Mandates, followed ne-
cessariIy upon an event, namely the dissolution of the League. He said
where that has happened, opinions expressed afterwards cannot alter
that situation. Here we are dealing with an entirely different proposition;
we are dealing with a proposition that there was, in regard to the
questjon of succession or no succession regarding supervisory functions,
a tacit agreement or understanding between the interested States. We
refer to the practice of the States under various circumstances, the
attitudes they adopted very shortly after the period of this suggested
tacit agreement, when that tacit agreement would have become an
important matter. And we submit that the views which they then ex-
pressed in that regard must be regarded as of very ~eat evidential
weight.
There is another passage at page 433 (1) of the Observations which
remains to be dealt with, where the Applicants state:
"Further, if the views of States are now to be considered relevant,
due weight will undoubtedly be accorded to the views of the over-
whelming number of United Nations Members, which have re-
peatedly taken the position that Respondent as Mandatory is
accountable to the United Nations."
Now in support, in a footnote (No. 51,the Applicants state: "See, for
example...", and they mention three United Nations General Assembly
resolutions. The Court will note that the dates are 13 December 1950, '
the next one is 1952 and the third one is 1953V .%en those resolutions
are referred to one finds that they were all, as thedates indicate, adopted ARGUMENT OF MR. DE VILLIERS 12.5
ajter the 1950 Advisory Opinion, and they were a11directed inferalia
at acceptance of that Clpinion by the United Nations and a practical
course or policy to be adopted on the basis of that Opinion. That was
the trend or the contents of those resolutions, and that was what these
States who took part in them were voting for. They were not then
giving an indication of their own views or their own understanding of
the situation in regardtc report and accountability. If one is to ascertain
what their attitude was in that regard, one has to go back to the crucial
years before the Court's Opinion was given, immediately after this
question of South West ilfrica had begun to arise in the United Nations.
And then one has to refer for that purpose to the very signihcant
debates of 1947, 1948 and 1949 in this regard. If one does that, Mr.
President, as 1now interid to do in reply to this argument of the Appli-
cants, onefinds that very far from the views of the ovenvhelming number
of United Nations Members having been as the Applicants allege, we
find the contrary. We frniioverwhelmingly the understanding isindicated
that there was no ob1igai:ionto report and account, outside of a trustee-
ship agreement, in terms of a mandate agreement because of a tacit
agreement or understanè.ing to that effect.
For the purposes of presenting this argument to the Court, I would
like to refer to certain extracts from specches and statements in debates
in the United Nations.
[Public heltring of5 October 1962, aftenaoon]
Before reverting to th(: argument 1would liketo explain further that
we have compiled an index of al1 statements made on South West
Africa at the U.N., but that need not form part of the record at all.
It couId be a document in the files of the Court. It was purely for the
convenience of Memberc of the Court, and for my learned friends, to
enable a check to be made on whether 1ve have made the extracts
correctly, or whether th,: extracts ought, in some way, to be regarded
as being ampliiïed or qualified by other things said on other occasions.
The index is as full as w<:could rnake it-we cannot guarantee that it is
absolutely exhaustive.
Now, Mr. President, .to revert to the argument. We wish to draw
attention to the fact that in 1947,during the Second Sessionof the United
Nations General Asseml)ly, the representative of the Respondent on
two occasions stated veqr explicitly that, in the view of his Government,
the United Nations had no supervisory jurisdiction in respect of South
West Africa. He said t:hat first on the 27th September 1947in the
Fourth Committee. We quote the passage in our Preliminary Objections,
at page 261 (1). The passage reads as follows:
"the annual report an hi chis Governrnent wouId submit on South
Territory as is required for Non-Self-Governing Territories under
Article 73(e) of the Charter. It was the assumption of his Govern-
ment, he said, that the report would not be considered by the
Trusteeship Council and would not be dealt with as if a trusteeship
agreement had in fact been concluded. He further explained that,
since the League of Nations had ceased to exist, the righto submit
petitions could no longer be exercised, since that right presupposes126 SOUTH WEST AFRICA
a jurisdiction which would only exist where there is a right of
control or supervision, and in the view of the Union of South Africa
no such jurisdiction is vested in the United Nations with regardto
South West Africa."
Over the page, we find a reference to a further statemcnt on I No-
vember 1947 in the Plenary General Assembly-also by the representa-
tive of the Union-where he stated that:
"The Union of South Africa has expressed its readiness to submit
annual reports for the information of the United Nations. That
undertaking stands. Although these reports, if accepted, will be
rendered on the basis that the United Nations has no supervisory
jurisdiction in respect of this territorthey will serve to keep the
United Nations informed ..."(PveliminaryObjections, p.262 (1)).
1 am stressing that portion-tkey "miElBerendered[if accepted] on
the basisthatthe U?zitedNations has $20sufierliisoryjurisdictionirespect
of this territory".
There were, at the time, 57 Members of the United Nations, 51 of
whom had been original Members of the United Nations. 32 of those
51 States had also been Members of the League at the time of its dis-
solution, and 34 of them had been original Members of the League.
Therefore, if there had been a tacit understanding-originating from the
timc of the League, either from the tirne when the Mandate system was
created or from the transition period when the League was dissolved
and the United Nations came into existence-to the effect that the
Mandatory was now obliged to report and account to the United Nations,
as formerly to the Councii of the League, regarding cornpliance with its
substantive obligations under the Nandate, then surely, after these
two statements by the representative of South Africa (to which 1 have
just referred) in1947, very shortly after the transition, one would have
expected some reaction to that. Someone ~vouldhave got up and said:
"But you are running contrary to this understanding which has always
existed, something that was so clear that it wcnt without saying." But
what do we find, in fact, during this1947 Session? We find, on analysis,
that representatives of 41 States addressed the various organs of the
United Kations on this question of South West Africa-the Fourth
Cornmittee, the Trusteeship Council and the General Assembly. The
other 16 of the 57 Members at the time did not take part in the debate
on this question. Not a single one of any of the States-any of the
Mernbers of the United Nations-alleged the existence of a tacit agree-
ment orJunderstanding of the kind which 1 have just mentioned. There
were some of the 41 who took part in the debates who contended that
there was an obligation to enter into a trusteeship agreement. There
were some of them who contended for an obligation to submit technical
information to the Secretary-General under Article 73 (ej of the Charter,
which (as 1 have shown) is a different obligation from reporting and
accounting under the Mandate. Some of them contended that the
Respondent (the Union of South Africa) had committed itself to the
United Nations by the temporary rendering of reports in terms of the
undertaking to which the two statements 1 have just read refer. They
had, apparently, misunderstood the conditions under which that sub-
mission of information had been made right from the start. Some of
the States contended that the Mandate had lapsed altogetker, and some
of them stated no clear attitude on the legal side of the situation. ARGUMENT OF MR. DE VILLIERS 127
They contended for whit they calIed "political and moral duties and
obligations" but they did not deal specifically with the legal side.
These are various types of attitudes adopted on the question. But,
1 repeat, not a single orle of them alleged a tacit agreement or under-
standing which would render the Respondent liable to submit to super-
vision by the United Nations in the mannerin which it had reported and
accounted and submittecl to the supervision of the Council of the League.
In addition to argumcnts stated on other aspects of the matter, one
finds that at least 14 of the 41 States who took part in the debatc,
acknowledged-ither e::pressly orby very clear implication-that, in
the absence of a trusteeship agreement, the United Nations would
have no supervisory powers in respect of South West Africa. (1 Say
at least14 for we made this classification and in some cases it is very
difficult todecide whetlier the attitude of a State is to be classified
on one side of the Iineor thc other. We tried to be as conservative as
possible and where the1.e was the least doubt we classified a State's
attitude as being non-cornmittal on the point, rather than as being in our
favour in this particular respect. But of thos14,wesuggest (even though
there may, in other cases, be difference of opinion) that they, either
expressly, or by clear implication, indicated the attitude that outside
of a trusteeship agreement there would be no supervisory powers on
the part of the United Nations in respect of South West Africa. These
States were: Australia, China, Colornbia, Cuba, France, India, Iraq,
the Netlierlands, Wew Zealand, Pakistan, the Philippine Republic, the
Soviet Union, the Unitecl States of America and Uruguay.
1would like to give examples now of the types of statements made in
this regard by the States which 1have mentioned, and to give the refer-
ences where their statemmts are to be found. 1 would classify the state-
ments of the following nations as being very explicit on the point: that
of the United States, thai of the Netherlands, that of Pakistan, of China,
and of India. Now 1would like to refer first to a statement on behalf of
the United States of America, for a reason which will become obvious
from the contents of that statement. Itis to be found in the records of the
Trusteeship Council for i:he and Session, 1st Part, 15th Meeting, 12 De-,
cember 1947, page 505--a statement by bfr, Gerig. The occasion waç
consideration of the information which the Union of South Africa had
voluntarily submitted in terms of its undertaking. There appears to have
been quite a debate on the question as to the manner in which this
information was now to be dealt with in the Trusteeship Council. And
this is what the represen:ative of the United States said:
"It was said here earlier this afternoon, and 1 did not hear any
mernber object, that while we al1hope-my delegation as much as
any delegation feeli that way-that there will be a trusteeship
agreement for this territory, we do not, in the absence of a trustee-
ship agreement, hzfe supervisory functions over this temtory.
Therefore, 1do not think we ought to imply that we do have super-
visory functions to cnsure that the Union Government discharges
its duties under the present mandate, admitting that it exists."
It is a very significant statement because it is not only one made on
behaIf of the United States of America but it reffects on al1 the other
memberspresent in the TI-usteeship Councilon that particular afternoon,
in that the representativi: of the United States said that that statement
had been made and he djd not hear any rnember object.128 SOUTH WEST AFRICA
The statement on behalf of the Netherlands waç alrnost equaiiy
explicit. 1refer to the Records of Plenary Sessions'ofthe General Assem-
bly, 2nd Session, Volume 1, 105th Plenary Meeting, 1st November, 1947,
page 605. Mr. Kerncamp stated:
"The mandate system now does not operate. As there is no longer
voluntary transmission of information, merely for the sake of in-
formation, by the Union of South Africa to the Tmsteeship Council
does not give the Council the same jurisdiction asthe Permanent
Commission on Mandates had ...
We consider that the present situation constitutes a step back-
ward, in so far as a territory once under international supervision
is now under no çupenntendence."
We find on behalf of Pakistan equally explicit statements. The paçsage
as a whole to which regard ought to be had is somewhat longer and 1do
not propose to read the whole of it to the Court. Its to be found in the
General AssemblyOficial Records,SecondSession,Volume 1, IOjth Plenary
Meeting, 1st November 1947 ,t pages 618-619 a,statement by Mr. Pir-
zada, commencing with the wordç "A simpIe comparison of the relevant
Articles in Chapters XI and XII...", and 1would Iike to refer to the whole
passage to where it concludes with the words: "...second, supervisory
control of an internationalbody". For the sake of emphasis 1 refer now
only to these two portions. The speaker was comparing the situation
under the Mandate system, taking that systern as being still in existence
in regard to the caseof South West Afnca, and the situation, on the other
hmd, under the Trusteeship system, and he was mentioning vanous
points of comparison. He stated:
"The second advantage whick the Trusteeship System has over
the ordinary administration under Chapter XI is that international
supervision is providedunder the International Trusteeship System,
according toArticle 75of the Charter. Asagainstthat, under Cha ter
XI of the Charter, which relates to the administration of Non-lelf-
Governing Territories-to which clasç this Territory of South West
Africa will have to belong if it is not brought under the Trusteeship
System-there iç no provision for international supervision, and
the only supervision that exists takes the form of suppIying in-
formation on non-political matters for the consideration of the
United Nations: in other words, economic, social, and other mat-
ters..."
I skip somewhat and read the very Iast portion:
"Therefore, by refuçing to place this Territory under the Trustee-
ship System, the Union of South Africa is going back on both prin-
ciples recognized by the Covenant of the 1,eague of Nations: first,
truçteeship of an international body; second, supervisory control
of an international body." (P. 619.)
We find in the case of China two statements which, in our submission,
strongly imply the same thing, both made in 1947. I will merely give
their referencesnow without reading thern. The first one: GeneralAssem-
bly, 0ficiaE Records, Second Session, Fourth Cornmittee, 315t Meeting,
25th September 1947 p,age 6; and the second one, G.A.O.R., Second
Session, Volume 1,105th Plenary Meeting of the General Assembly, ARCiUMENT OF MR. DE VILLIERS 129
1st November, 1947,page 601. But any doubt there may be as to what
was intended to be signified was removed by a statement by the same
representative of China in1948,GeneralAssembZy,ThirdSession, Part 1,
Fourth Cornmiltee,76th Meeting, 9th November, 1948 ,age 296. There
the statement was this:
"It was true that, açno trusteeship agreement had been concIuded
for South West Af~ica, the United Nations could not intervene or
exercise itç power of supervision in regard to that territory. But
paragraph z of Article 80 imposed an obligation to conclude such an
agreement without delay."
An example, therefore, of an attitude that there was an obligation
to enter into a trusteeship agreement but that, in the absence thereof,
there was no power of siipervision.
Then, India. India proposed a draft resolution of which paragraph 5
contained the following statement (GeneralAssembly, Second Session,
Fourth Cornmittee,Anne:{ 3 h, page 197):
"Whereus the te~ritory of South West Africa, though not self-
governing, is at present outside the control and supervision of the
United Nations."
The case of Australia 1 classifiedas being one of clear implication.
Possibly 1 could put it stronger andput iton the basis of being express.
We have three references-Fourth Committee of the General Assembly,
Second Session, 39th Meeting, 8th October, 1947 ,age 58; and the next
one is Plenary Meetings ofthe Second Session, VoIume 1,,104th Meeting,
1st November, 1947 ,age j88. On both occasions the effect of the state-
ment was that the Uni0.n\vas under an obligation to treat the territory
as being non-self-governing and therefore to submit information in
terms of Chapter XI.
But nowI wish to refe~tothe third extract, which iinthe Trztsteeskip
Coacnci SecondSessiorz,First Part,15th Meeting, 12th December, 1947,
page 477-a statement liy Mr. Forsyth :
"The reports on Trust Territories are subrnitted not merely to
inform the Trustet:ship Council but to enable the Trusteeship
Council to exerciseits main function, the supervision of admini-
stration.In the cae of South West Africa which is not a Trust
Territory, the Trusteeship Council does not have the function of
supervising administration. The administration of South West
Africa has been reservedby the Government ofthe Union of South
Africaas its own concern and that Government, not having placed
the territory under -:rusteeship, does not recognize the power of the
Trusteeship Council to supervise its administration. Theris?there-
fore, a fundamental difference between the purpose for which the
report on South We:;t Africa issubmitted andthe purpose for which
reports on Trust Temitories are submitted."
1 have now referred to the statements on behalf ofsix of the fourteen
States which 1 mentioneil; 1 wiil not read from the statements on behalf
of the other eight1 will merely indicate the references where their state-
ments are to be found and our interpretation which we place on those
statements.
In the case of Colombia, there are two statements to be found in the
Officia1Records of the Cieneral Assembly's Second Session, namely the I3O SOUTH WEST AFRICA
105th Plenary Meeting, 1st November, 1947, page 602, and the 33rd
Meeting of the Fourth Committee, 27th September, 1947, page r4, In the
case of Iraq there are three to be fouiid in the Officia1Records, namely,
General Assembly, Second Session, Pourth Committee, 32nd Meeting,
26th September, 1947, page IO; 105th Plenary Meeting, 1st November,
1947, pages 621-622; and Trusteeship Council, Second Session, Firçt
Part, 15th Meeting, 12th December, 1947, page 482. In the case of the
Soviet Union there is one in the Oficial Records of the General Assembly's
Second Session, Volume 1, 105th Plenary Meeting, 1st November, 1947,
page 612; and in the case of Uruguay there are three references in the
General Assembly's Official Records of the Second Session, namely:
Fourth Committee, 33rd Meeting, ~7th September, 1947, page 14;
Fourth Committee, 40th Meeting, 9th October, 1947, page 60; 105th
Plenary Meeting, Volume 1,xst November, 1947, page 615. In al1 these
cases the attitude adopted was that the Mandate had lapsed altogether,
so by clear implication, Mr. President, if the Mandate had lapsed alto-
gether then there could not be a duty of reporting and accounting in
terms of the Mandate.
Then the other States of the fourteen that I have mentioned, were
France-Trusteeship Council, Second Session, First Part, 15th Meeting,
12th December, 1947, page 480; New Zealand-General Assernbly,
Second Session, Fourth Committee, ~3rd Meeting, 27th September, 1947,
page 17, and Second Session, Trusteeship Council, First, Part, 15th
Meeting, 12th December, 1947, pages 478-479; Cuba, in whose case there
are two in the Officia1Records of the General Assembly's Second Session,
namely Fourth Commitee, 3znd Meeting, 26th September, 1947, page
ro, and 39th Meeting, 8th October, 1947, page 55; and finally the Philip-
pine Republic, for whom also there aretwo, namely, G.A.O.R. Second Ses-
sion, Fourth Committee, 31st Meeting, 25th September, 1947, page 7, and
39th Meeting, 8th October, 1947, page 57. In al1 these cases the impli-
cation isclear because the çtatementsare to the effect that in the absence
of a trusteeship agreement the information in fact submitted by South
Africa under itsundertaking at that tlme could be examined for informa-
tion purposeç only-that was the trend of these various statements made.
In the case of Cuba the representative went so far as to Say that the
information could not be examined at all, and the representative of
the Philippine Republic contended that there was an obligation under
Chapter XI to submit information which of course, as 1 have explained
before, is a much less onerous obligation than tu report and account
in regard to cornpliance with substantive mandatory obligations.
Now of these fourteen States, Mr. President, four of them had also
signed the Report on Palestine to which 1referred before. They were
Australia, India,the Netherlands and Uruguay, leaving seven additional
signatories to that Report who had there, of course, indicatedthe same
type of attitude. The other seven, then, were Canada, Czechoslovakia,
Guatemala, Iran, Peru, Sweden and Yugoslavia, So, if we add these
seven-because the Report was aIso in 1947-to the fourteen 1 have men-
tioned, we have twenty-one in al1of the Members of the United Nations
out of a total of fifty-seven who gave expression tu this view in 1947,
without a single contradiction. Sixteen of those twenty-one States had
alsobeenFounder Members of the League of Nations, and fiftecn had been
Members at the time of its dissolution. The record for 1947is inthregard
therefore a very significant one in my submission. ARC,UMEKTOF MR. DE VILLIERS
131
During 1948 and 19'1 there were three additional States who by
similar statements associated themselves with the others 1 have
mentioned, so as to bring the total up from twenty-one to twenty-
four. Those three were Costa Rica, Greece and the United Kingdom.
Costa Rica's ç'taternent was to the effect that the Mandate had ceased
to exist (G.A.O.R., Third Sess., Part 1, Fourth Comm., 82nd Meeting,
17 Nov. 1948,p. 365). Then there was a statement by Greece to which 1
would like to refer. It was by Mr. Lely:
"He recalled that at the third session of the General Assembly the
representative of th.e Union of South Africa had stated that, when
the Government of i.heUnion of South Africa had given an assurance
that it would send information on the Territory, it had made a
specific reservation that the sending of such information wouId
imply no commitment forthe future and would not be indicative
of accountability to the United Nations.
[He] felt that tha.t statement spoke for itself. The sending of in-
formation was a vo1:mtary act on the part of the Union Government.
If that was so, and he believed that it was, then the Union Govern-
ment had not repudiated any previous assurance." (G.A.O.R.,
Fourth Sess., 26gtli Ylenary Meeting, 6 Dec., 1949 ,. 530.)
And then the third statement-that of the United Kingdom to the
effect that
"Itcould not be :iaid that the Government of the Union of South
Africa had repudiat ed itsprevious assurance since it had complete
liberty todecide whi:ther or not to transmit information." (G.A.O.R.,
Fourth Sess., FourtllComm., 135th Meeting, 24 Nov., 1949, p.24.7.)
50 the total, then, that had indicated this attitude grew to twenty-
four; if we add the Unio-nof South Africa itself, we find that twenty-five
United Nations Mernbei's out of a total of fifty-six had expressed this
attitude ovcr the three years.
Whereas there had, i~.1947, been no contradiction whatsoever, there
came some measure of contradiction over the years 1948and 1949, but,
Mr. President, only froni five States out of the very large numbers that
participated in the debates. These were five that suggested that the
United Nations had supi:rvisary powers, or that Respondent had a duty
to account, in respect of continued administration under the Mandate.
They were Belgium, Brazil, Cuba, India and Uruguay. The attitude of
Belgium is to be found at G.A.,O.R., Third Sess.,Part 1, Fourth Corn*.,
79th Meeting, 12th November, 1948, pages 325-326; of Brazil at G.A.,
O.R., Fourth Sess.,Fourth Comm., 13znd Meeting, aznd November, 1949,
pages 223-224 and G. A., (I.R., FourtSess.,FoztrthComm., 135th Meeting,
24th November, 1949, page 244; of Cuba at G.A., O.R., Third Sess.,
Part 1, Fourth Comm., 8znd Meeting, 17th November, 1948, page 356,
and G.A., O.R., Fourth Sm., FozirthComm., 130th Meeting, 21st Novem-
ber, 194 , page 216; of India at G.A .,O.R., Third Sess., Part I,Fourth
Conm., 81st Meeting, 161h November, 1948, page 352; and of Uruguay at
G.A., O.R.,Third Sess.,Part 1,Fourth Comm., 78th Meeting, 11th Novem-
ber, 1948 ,ages 311-312.
NOW,Mr. President, in the cases of Cuba, India and Uruguay, these
statements were in conflict with earlier statements or attitudes which they
had adopted. I have already indicated before that Cuba had, in 1947,132 SOUTH WEST AFRICA
taken up the attitude that the Mandate had lapsed altogether, India had
inserted that paragraph in its draft resolution to the effect that South
West Africa was outside United Nations supervision and control, Uru-
guay had taken the attitude (G.A.,O.R., 2nd Sess., 4th Comm., 33rd
Meeting, p. 14; 40th Meeting, p. 60, and Vol. 1, 105th Plenary
Meeting, p. 615) to the effect that the Mandate had lapsed alto-
gether and that there was now only a matter of self-governing terri-
tories, non-self-governingterritoriesand territories under the trusteeçhip
system, and that there was no provision for any other-that was the
attitude that Uruguay had taken up; so in these three cases the attitude
adopted later,ineither 1948 or 1949, was in conflict with an earlier atti-
tude stated on the subject in 1947. In addition 1might point out in the
case of India the attitude was also in conflict with a submission which
India made to this Court in 1950; that subrnission is to be found in the
officia1record of thePleadings in 1950 at page 148. The submission is to
this effect:
"It is respectfully submitted that the only respect in which the
position has changed [as a result of the dissolution of the League]
is that Article6 of the Mandate and the first portion of Article 7
of the Mandate have beconre incapable of being complied with.
In other respects, the rightç and obligations of the mandatory are
exactly the same asthey were before. The result is thatthemandato-
ry is not obliged to submit an annual report under Article6 and that
it cannot modify the tems of the Mandate at al1 because the proce-
dure by whichit could have modified the terms of the Mandate has
ceased to be applicable."
That was the attitude again adopted by India before this Court in
its forma1 submission in 1950. And in any event, Mr. President. in no
case was the attitude of any one of these five States based upon asug-
gestion of a tacit agreement or understanding that had ariscn an this
subject during the transition period of 1945 or 1946. And in no case was
the attitude baçed, explicitly at any rate, on an implication to be read
into the Mandate Agreement itsclf; they may have had that in mind,
but nobody ever said so. Briefly speaking, the bases which were in fact
advanced were these: on behalf of Belgium the attitude was that Article
SO of the Charter protected the benefit of international supervision for
the people of South West Africa; that is to be found at the reference
place which 1 have given. In the case of Bra~il there was just a broad
statement to the effect that the Mandated territory "was under the super-
vision of the community of Nations, namely, the General Assembly".
but no motivation given asto why that was so. In the case of Cuba the
statement was tliat the United Natioiis had assumed the League's super-
visory functions, for both Organizations represented the international
community. That was the motivation given for the statement that there
had been an assumption of League functions by the United Nations. In
the case of India there was a broad suggestion that Article 80 of the
Charter prevented the extinction of the right of the people of South West
Africa to have reports submitted and scnitinized. In the case of Uruguay
the reference was again to Article 80. It said that Article 80 imposed a
duty to report to the international community, the United Nations
having replaced the Council of the League as the organ or CO-ordinating
centre of that community; there we find an argument which approxi- ARGUMENT OF MR. DE VILLIERS
I33
mates to that which the AppIicants are now addressing to the Court,
And we find, therefore, even in the case of these five, that the suggestions
were çomewhat vague and inconsistent in themselves, and contradictory.
There was not a joint saggestion that there had been an understanding
al1 the time to which South Africa was now running counter. The mere
fact that they are soinconsistent, and that they are even so contradictory
in certain respects, affords, rny submission, additional evidence of the
absence of any clear unrlerstanding on the subject.
The fact that we find in the case of the three countries, BraziI,Cuba
and Uruguay, a referencl: now to the organized international community
-that appears to sugge:;t that that was not an idea that had operated
in the minds of the fouaders of the Mandate system way back in 1920,
butthat it was an idea tliat appears to have onginated somewhere with a
lawyer in 1948 or 1949, and was then put fonvard by these three coun-
tries, in the case of two cf them in conflict with attitudes which they had
adopted before-in the case of Cuba and in the case of Uruguay.
So,Mr. President, 1 sübmit that the total result of this survey is that,
far from the overwhelming number of United Nations Blernbers having
taken the attitude that Respondent as Mandatory isaccountable to the
United Nations, as issul~mitted by the Applicants, the situation during
the significant period which 1 have covered, shortIy after the transition,
may be said to have been overwhelmingly the opposite. 1 am not concern-
ed with the question whether the actual legal attitudes adopted by the
various States were correct in law or not;1am mereiy concerned with an
evidentialenquiry as to rvhether there was a general understanding of the
kind suggested by the contention of the Applicants, and I submit that
this cvidcnce beyond any doubt refutes the existence of any such under-
standing and shows the existence of a very wide-spread contrary, or
opposite, understanding.
&Ir.President, 1have :orne to the end of the portion of the argument
dealing with the effect of the dissolution of the League on the Mandatory's
obIigation to report an$. account. In conclusion, I want to state that
the effect of the argumi:nt is that that obligation, properly construed
and interpreted-as a inatter of wording and as a matter of prob-
able inteni of the parties-related only to specific League supervi-
sory machinery and to iiothing else; and because of the disappearance
of that machinery, itbecame incapable of performance. All the sugges-
tions ofsuccessionon thepart ofUnited Nations organs in that regard are,
on analysis, and upon being tested in the light of the evidence as to the
real intentions of the parties,ound to be without foundation in law. I
have in this regard stresiied the importance of the facts which have now
been placed before the Court, and which were not before the Court in
1950. Incidentally, this i'urther analysis which1 have juçt given of the
attitudes of States ai the United Nations during the penod 1947 to 1949
on this very question of South West Africa, that too was not before the
Court in 1950.
Where 1 have stresseil that, 1 must not be taken to suggest that,
had it not been for new f.icts or new information, it would not have been
competent for this Court to depart from a conclusion earlier arrived at in
an advisory opinion. It would certainly have been competent for the
Court to do so, and 1 sutirnit that if the Court were satisfied that justice
required it to do that, i.t would not hesitate even in the absence of
any iiew information. But 1 submit that in this case it would be much134 SOUTH WEST AFRICA
easier for the Court to corne to its own conclusion because of the fact
that there is this new information which in substance makes the task
of applying the Iaw to the facts in this regard a different one from what
it waç in 1950.
1 proceed to deaI with the effect ofthe dissolution of the League upon
the Mandate seen as a treaty or convention in force. 1have dealt with the
contractual origin and effect of the Mandate, and 1have pointed out in
that regard that it appears to be common cause that during the lifetime
of the League, whatever its other effects may have been in addition,
the Mandate did operate as a treaty or convention, and it would have
been regarded as a treaty or convention in force within the meaning of
Article 37 of the Statute of the Court. There does not aypear to be any
dispute about that. What is an issue between the Parties is whether,
despite the dissolution of the League, the Mandate Agreement is still
in force as a treaty or convention within the meaning of Article 37. We
Say "no", the Applicants Say "yes". The Applicants have to satisfy the
Court that it is, with a view to justifying their contentiowith regard to
jurisdiction.
Mr. President, Our basic contentions in that regard are as follows.
Viresubmit that a treaty or convention is an international agreement made
between subjects of international law and intended to create rights and
obligations between such subjects of international law. Therefore, for
a treaty or convention to have effective existence there must of necessity
be at least two such parties possessed of international personality who
enter into such agreement, and between whom the intended rights and
obligations can operate as provisions of such an agreement. That appears
to be perfectly trite-that one cannot have an agreement without at least
two parties, and where one requires partieswith international personality,
as parties to a treaty or convention, there one must have at least two
such parties to a treatyor convention in order to bring it into existence as
an agreement, and in order to bring about contractual rights and obli-
gations which can operate between them.
Likewise, WC submit that, for continued operation as a treaty or con-
vention, such an agreement requires the continuation in being of at least
two parties, possessed of international personality, who can, as between
themselves and by reason of the contractual gzexus betwecn thern, claim
observance of the agreed rights and performance of the agreedobligations.
It is not sufficient only to have the two parties to make the agreement.
They must continue to be parties to the agreement while it isin operation,
othenvise itdoes not continue to operate as an agreement. There must
be parties of which .one can Say to the other: "You have made a
promise to me, you are under an obligation to me by reason of the con-
tractual nexus between us; therefore 1 can enforce that promise against
pu; you cannot break it; you haire promised to me that yuu are to
fulfil it, and 1 now clairn performance fromyou, because that contract is
still in operation as an agreement betwecn ourselves."
Consequently, when by extinction of parties to a treaty or convention
the number of parties is rediiced to one, then its continued contractual
operation between parties becomes impossible in fact. In our submission
the continued existence of the contractual rights and obligations as
between international persons by reason of that treaty is then rendered
impossible in law ;there being onlyone party, the operation of contractual
rights and obligations between international persons then becomes ARGJMENT OF MR. DE VILLIERS
135
impossible. It is impossil>lein fact, and the continued existence then of
contractual rights and ol)ligatioris, as distinct frorn other types of inter-
national rights and obligations, becornes impossible as a matter of law.
Now, MT. President, snch an extinction of parties so as to reduce their
number to one could occur in various ways. They could be extinguished
as States, or they could-although remaining in existence as States-
cease to be parties to the particular agreement. There rnay be various
reasons why they could si)cease to be parties to a particular agreement.
They could be released hy voluntay agreement between the parties, or
they could cease to be a party because of loss of an agreed qualification
for being a party. The contract may require that in order to be, and in
order to remain, a party to that contract, the particular State or inter-
national person must have a certain qualification, with the result that,
upon ioss of that qualification, that State or international person wouId,
in pursuance of the very agrecrncnt itsclf, cease to be a yarty to the con-
tract. .Andour submissioa is that that is what happened upon the disso-
lution of theLeague of Nations in regard to the Mandate in its aspect of
operating as an international agreement, as a treaty or convention. We
submit that al1the parti<.sto that agreement, other than the Mandatory
itself, fell away-al1 the parties between whom it previousIy had contrac-
tualoperation-and that for that reason there ceased to be a treaty or
convention in force, quite irrespective of the question whether certain
of the vcsted consequences of the Mandate Agreement could continue in
existence for an independent reason, independently of itsoperation as an
international agreement. In order to develop the crucial contention that
al1 the parties other thar- the Mandatory fell away on the dissolution of
the League, we have to deal with the question who those parties were
and what was the intent of the parties to the Mandate Agreement as to
qualificationsin that regard; and that is the next subject to which 1will
pay attention.
Mr. President, we deal in the Preliminary Objections, at pages 300-305
(1), very fully with the question of who are to be regarded as having
been the parties to the Mandate Agreement. 1 have already made a
submission to the Court that the function of the Principal Allied and
Associated Powers in thi:; regarwas intended to be of a mere transitory
nature, to bring the prc.perty into the tmst, as it were, if 1 may use
that analogy. The situation was very much analogous, in my submission,
to that of a donor in respect of s trust. 1 may refer the Court to the
view of authorities in regard to what that position is. 1 refer to an
extract from a book whic:his available here in the Carnegie Library-it
is Underhill'sLaw Re1ati.q to Trusts and Trusfees, 11th edition, page 5.
1 will read a brief extraci:-theauthor States:
"The late Sir Frederick Pollock, in his learned work on contracts,
considers that a tmst is, in its inception, a form of contract, but
admits that the cornplex relations involved in a trust cannot be
conveniently reduced to the ordinary elements of a contract and
that there is sufficient justification for the course adopted by al1
English writers of treating trusts as a separate branch of law.
There is, however, a radical distinction between contracts and
trusts, namely that an executed trust, as distinct from a contract
to create a trust, car,.only be enforced by a person for whose benefit
it was made and can neither be enforced nor released by the person136 SOUTH WEST AFRICA
who created it, unlesshe be also a beneficiaqr. On the other hand,
asisshown later on in Article8, acontract as a rule can be enforced
orreleased only by the parties theretoA trust, once finally created,
is in fact the equitable equivalent of a Common Law gift and leaves
no right in the creator thereof as such to enforce it."
The analogy, in my submission, applies in this case to the Principal
Allied and Associated Powerç. There was no contract which stipulated
a role for them in the operation of the contract. They were in the sarne
position as a donor who brings property into a trust. That trust was
intended to operate, by broad analogy, as between the Mandatory and
the inhabitants of the various territories, but also with certain contractual
relations to apply in that regard as between the Mandatory and the
League of Nations or the Members of the League, Because we find that
the other party to this Mandate Agreement, apart from the Mandatory,
was then the Council of the League; the Council of the League, actingin
pursuance of paragraph 8 of Article22 of the Covenant, which provided
that "the degree of authority, control, or administration to be exercised
bythe Mandatory shall, if not previously agreed upon by the Members of
the League, be explicitly defined in each case by the Council." That is
where the Council got its authority to act as it did in representing the
League or its Members in contracting with the Mandatory.
The next question, then, really is, who did the Council represent?
Did it represent the League, to be seen as a legal persona, or was the
League not to be regarded as a legal $ersona, and, if so, whom did the
Council then represent? And if the League was a legal fiersonadid the
Council represent the League only, or the Members of the League as
well as the League itself?
We submit-and 1 don't need to elaborate on the submissions now
because they are fully dealt with in the Preliminary Objections-that
if the League was not to be viewed as alegal fiersonathen the Council,
in agreeing with the Mandatory thatit was to be a hlandatory on behalf
of the League, would then, in reality, have been acting on behalf of
the Mernbers of the League associated in the League seen as a mere
voluntary association of international perçons and not as a legal persona.
The expression itself "Mandatory on behalf of the League" would then
not really be an exact one; it would realiy be an expression ivhich is
inapt and which ought to read "a Mandatory on behalf of the States
associated in the League of Nations as Members thereof". Then the
Members would have to be seen as the principals represented by the
Council. And so the contractual nexzts \vpuId then, in that event, have
been between the Mandatory, on the one hand, and al1 the Members
of the League, on the other hand, in respect of al1 the rights and obli-
gations provided for in the Mandate Agreement.
There is, however, Mr. President, a very considerablebody of authority
for the proposition that theLeague was to be seen orviewed as a legal
persona. We cite that authority in the Preliminary Objections at pages
308-310 (X),in Our paragraph 15 of Chapter III.That is a proposition
which 1do not intend to argue fully or to analyze fully. It does not matter
for the purposes of my argument whether the League be viewed as a
legal persona or not. On eitlier basis-and 1 argue the effect of the
dissolution of the League on the Mandate as a treaty or convention,
1 argue it on both bases-the argument cornes to one and the same ARGUMENT OF MR. DE VILLIERS I37
result,in rny submissioii. But we do point out that the Applicants
appear to accept thepro~~oçitionthat the League was to be seenas a Iegal
ersona, because atpage 448 (1) of their Observations they refer to the
t.ague as a "corporate body" and they propound there a "carry-over"
argument which wasderived from provisions in municipal law regarding
corporations.At page 448 (1) there is a section headed "Respondent's
Contentions", andthe laït sentence of it reads:
"If the League still existed as such, and a State withdrew from
membership, there would stilI remain a corporate body and a
membership thereof which could assure cornpliance with the
Mandate."
And as 1have said, the whole "carry-over" argument isbased on the
propositions which applj. to corporate bodies.
Now, Mr. President, on the basis that the League was to be viewed
as a legal persona, then the League itself would primarily have been
the principal, the party represented by the Council in its contract or
agreement with the Mantlatory; and therefore, then, al1the rights and the
obligations provided fol. in the Mandate Agreement would primarily
operate as between the Mandatory, on the one hand, and the League,
seen as a legal persona, on the other hand, And on this bais there would
beno ground for regardir.g the League Members alço as parties or as the
holders of legal interestiunder the Mandate as an agreement, except
an inference which might be drawn, not from anything express or
anything specificdly said upon the point, but from certain of the pro-
visions of that agreement. It wiIl be recalled that the individual States
Members of the League did not sign the Mandate Agreement, nor did
they ratify it.If they became parties, or the holders of legal interests
in regard thereto, it could only have been because of representation of
themselves by the Council, or, possibly, by way of a stipulation for their
benefit, seen as third pi~rties, which they then accepted, and so, in a
sense, rendered themselves parties to the Agreement.
The provisions from h hi chone might possibly infer that Rfernbers
of the League were also intended to be parties, or the holders of legal
interests, arethose which envisage actuaI benefits for them. One finds
in the various agreements-not in the C Mandates, of course, but in
the other mandates-ont finds the provisions for an open door, intended
to operate for the bene3 of League Members. One finds even in the
case of the C Mandates--the ones with ivhich we are dealing-there is a
provision providing for fieedom of movement of the nationals of League
Mernbers who are rnissio:.3ariesand who want to exercise their callingin
the Mandated territory. One finds in Article7 that provision ismade
for the reference of disputes between another Member of the League and
the Mandatory to the Permanent Court of Mernational Justice. That
in itself suggests that there was a view that Members of the League were
to be regarded as having. a legal interest or rights under this agreement
which wouId then be justiciable in terms of Article 7. It is only in-
ference from consideratit>ns of that kind, whereby one could say that
on the basis that the League was to be viewed as a legal fiersona, the
Members ofthe Leape vrere to some extent tobe regarded as CO-parties.
On that basis, then, the Mandate would be a contract primarily
between the hiandatory :ind the League of Nations, but in addition also
between the Mandatory and the Members of the League to the extent ARGUMENT OF MR. DE VILLIERS
I39
La parole estA M. de Villiers pour la continuation de sa plaidoirie.
Mr. DE VILLIERS: MF. President, before the adjournment on Friday,
1 was developing Our argument regarding the effect of the dissolution of
the League of Nations upon the Mandate as a treaty or convention in
force within the meaning of Article37 of the Statute of the Court1 then
gave reasons for Our subinission that, in order for a treaty or convention
to be in force within the ineaning of Arti37, there must at least be two
parties, or sets of parties, with international personagty, between whom
it can operate as an international agreement, and that ~fthe parties should
be reduced to one, then it would cease to have operation as an inter-
national agreement and thus as a treaty or convention.
As regards application of that submission to the present case, 1was
dealing with the proposition that, for the Mandate seen as a treaty or
convention during the li-[etime of the League, the only parties were on
the one hand the Mandatory, on the other hand the League andlor its
Members. 1dealt with th(: various alternative possibilities involved in the
conception of the Leaguf: andlor its Members as parties to the Mandate
Agreement. 1 pointed oul.that in that respect there was in oneinstanca
dispute between us and the Applicants concerning the scope of interests,
or rights, of Members O! the League on the basis of the League itself
being regarded as a legal $ersona. 1pointed out also that there appears
to be no conflict on the pi,oposition that the circle of parties was confined,
as 1 have stated, to the Mandatory, on the one hand, and the League
and/or its Members on the other.
Proceeding, then, fronl that point, Mr. PresidentI would like to re-
mind the Court that in the Preliminary Objections, at pages 351-35 51)
(theyare paragraphs 39-46 of our Third Chapter), there we analyze the
provisions of the Covenant and of the Mandate instruments and we refer
to relevant ~ractice of States in confirmation of our submission that
Mernbers of ihe League were the only States that were intended to acquire
contractual riahts and interests from the Covenant and from the Mandate
Agreements. And werefei:there, amongstothers, to the importance which
was obviously attached in the Covenant to the aspect of reciprocity-
reciprocity as between rights,interests, benefits wliich the provisions of
the Covenant could confer upon States as Members of the League and,
on the other hand, obligations imposed upon States as Members of the
League by the provisions of the Covenant; the intent being obvious that
the benefits or rights werc:not to be enjoyed by States who did not render
themselves bound to the reciprocal obligations imposed by the Covenant,
and that that was the bajic reason or policy why rights conferred by the
Covenant, and by the Mandates made in pursuance of the Covenant,
would be confmed to Les.gue Members.
We deai in detail there with provisions of the Covenant in substantia-
tion ofthis argument, and1 need not repeat the details which are before
the Court in the Prelimir~ary Objections.
We point out that the Mandates were made in pursuance of the Cove-
nant and contain a projection of that same policy; that they indicate
that they are Mandates "on behalf of the League" which conception itself
confines the circle ofntctrested parties to the League and possibly also
its Members, and that in compromissory clauses in the various Mandates
-1ike Article 7 in the ca.seof Our Mandate-the procedural facility for
invoking jurisdiction of t.he Permanent Court was confined to Members
of the League, thereby again indicating the contemplation that theIq" SOUTH WEST AFRICA
substantive rights intended to be conferred by the earlier provisions of
the Agreement were intended to be confined to States that were Members
of the League.
We point out also-and 1 would like to emphasize this-that the
Council was acting in pursuance of Article 22; paragraph 8, ofthe Cove-
nant, and that that was an authorization which was given only by
League Members; and therefore in so far as it codd be regarded as
an authorization to act on behalf of States, as distinct from the League
itself, it could not fairly be regarded-icould not be regarded at all-as
being an authorization to act on behalf of States that were not Members
of the League.
Now, again, these submissions, Mr. President, are not disputed by
the Applicants and they appear to be cornmon cause.
We proceed in the Preliminary Objections at pages 355-35( 1) (our
paragaphs 47and 48ofChapter 3) with afurther analysis ofthe provisions
of the Covenant and of the Mandate instruments. We demonstrate there,
with reference to both the natural meaning andthe practical implications
of those provisions, that, just as membership of the League wasnecessary
in order to procure rights for States in regard to the Mandate system,
just so membership of the League was a necessary qualification for the
retention of such nghts, and that the obvious intent was that upon loss of
mernbership of the League the rights would no Ionger be vested in that
particular State.
Again, Mr. President, we point out that as a general probability one
would expect that to be so. If al1the concernwas shown to prevent States
other than League Members from acquiring rights under the Mandate
system, or under the Covenant generally, then one would neturally
expect tliat there would be the same concern shown to ensure that after
loss of membership by a particular State, rights would not be retained,
otherwise the position would become anomalous.
We refer, for instance, to the large number of provisions in the Cove-
nant in which the expression "Mernber of the League" occurs. We
find it in provisions suchasthose providing that each Member shall have
a vote in the Assembly, that four Members ofthe League, apart from the
Principal Allied and Associated Powers, shall have representation on the
Council. Kow, in provisions of that kind it seems so obvious that the
practical intent is that they apply while a State is a Member. The position
would be completely anomalous if a State could, after ceasing to be a
on analysis, right throughout the Covenanton:it isboth a matter ofnatural,
meaning and a matter of practical impLicationas to what the intent was
in those respects.
And again the situation in regard to the Mandates we find to be a
projection of what is in the Covenant itself in that regard. 1fmay again
refer to Article22, paragraph 8, in so far as it authorized the Council to
act on behalf of States, it did so clearly for the purpose of the association
of those States in the League of Nations and for no other purpose.
Again asregards the conception ofa"Mandate onbehalf ofthe League",
ifthe position was to be that States that ceased to be Members of the
League would retain their rights under the Mandate system, then in the
1930s when a large number of States, ex-Members, were no longer Mem-
bers of the League, one would have found a position of the Mandatory
then having a Mandate not only on behalf of the League but also on ARGUMENT OF MR. DE VILLIERS 141
behalf of some fifteen States in addition. And we find that the situation
would, in practice, be a11anomalous one, if States that were no longer
Members of the League could retain their rightsas against the Mandatory
as parties to a Mandate Agreement. They could, for instance, insist on
demilitarization in accordance with the provisions of the Mandate and
at the same tirne commit flagrant breaches of their otvn obligations in
that regard under the Coyenant. They could insist on open-door facilitieç
in the Mandates .in which that applied, while at the same tirne not
complying with their obligations under the Covenant as regards freedom
of transit and movement and so forth.
Clearly, then, the situation there envisaged also was that upon loss
of membership of the League, for the practical reasons 1have mentioned
and becauçe of al1these indications of intent, such a State would lose the
rights, the legal interests it previously had under the Mandate vis-d-vis
the Mandatory.
And again, Mr. President, we find that this proposition does not appear
to be disputed by the iipplicants as far as the position is concerned
during the lifetime of th-. League; because they go so far as to use this
language at page 448 (111of their Observations, in that middle section,
headed "Respondent 's C:ontentions", in the third sentence beginning
with the word "Respondent" they state:
"Respondent elaborates an argument inwhich a State which had
withdrawn, or had been expelled from, the League attempted to
exercise rights it had formerly possessed as a League Member."
1 emphasize "rights ilhad formerly 9ossessedas a Leagzae Member",
indicating clearly an ac-:eptance of the proposition that those rights
would no longer be possessed by such a State-that is, of course, dealing
with the position during the lifetime of the League, whatever the position
might be afterwards, whkh is the one that is being brought in issue by
the Applicants.
Now, Mr. President, jast as, during the lifetime of the League, any
State which ceased to be a Member lost its status as a party to the
Mandate contract, we slibmit that that consequence necessarily and
logically followed for aEl Members of the League at the date of the
League's dissolution, because, if the contractual intent was that
contractual rights would be confined to the League Members, then as
soon as there were no Ion~er any League Members, in terms of that very
same intent, there woula no longer be contracting parties. The logical
consequence, further, of this result would be that the Mandate would
cease to operate as an iaternational agreement, whatever vested con-
sequences of that agreement might still rernain in existence and in
operation,
The Applicants do noi. deal directly with this submission, as to the
necessary and logical consequence of the situation asin the League's
lifetime upon the situation that resulted from dissolution ofthe League.
The Court will recall that in regard to a similar problem which arises,
particularly as re~ards Articles 6 and 7, the Applicants advance
submissions as to 'succr:ssion" and as to "carry-over". They do not
advance simiIar subrnissi~~nshere. The effect of-shall we say-a "suc-
cession" argument, as applied to the whole situation of the Mandate
as a treaty or convention in force, would really be that, whereas te
original contracting partics were the League and/or its Members, vis-à-vzs142 SOUTH WEST AFRXCA
the Mandatory, those contracting parties would now be the United
Nations andjor its hfembers. Therefore, there would now be, in terms
of the succession, a substitution-not only of a supervisory authority
for the purposes of Article 6, not only of States competent to invoke
compulsory jurisdiction under Article 7, but also of the very parties
to the Mandate Agreement. There would, as regards the parties with
whom the hlandatory contracted, be a substitution of a completely
new set for the previous set. That contention is not advanced by the
Applicants-they rather attempt to meet OUT case in an indirect manner
on this particular point.
They advance an argument, at pages 434-436 (1) of their Observations,
of arhichthe salient features appear to be this(1refer to certain portions
of the Observations in regard thereto): they Say that the Mandate
instrument was-and indeed still is-a treaty or convention and that
it defines Respondent's duties. We find that towards the middle of
page 435 (1)-it is,1 should Say, about one-third down the page:
"... Applicants respectfully reiterate the point that it is the
Mandate instrument-a treaty or convention-which defines Res-
pondent's duties."
1t goes on to say :
"It is to that instrument that the Court looked, holding that
the terrns of the Mandate are still in force, including Articles 6
and 7 thereof."
Then they go on (1 skip abit) :
"...the Mandate instrument, which created an international regime
or a status, survived the dissolution of the League as a treaty or
convention because, to repeat the words of Judge Lauterpacht,
'the essence of such instruments is that their validity continues
notwithstanding changes in the attitudes, or the status, or the very
survival of individual parties or perçons affected'".
At the beginning of that paragraph the Applicants state:
"Applicants have pointed out that the instant cases pertain to
the duties of Respondent as set forth in the Mandate instrument,
and that the Court in its Advisory Opinion found such duties in
force."
This reasoning, if 1 understand it correctly, appears to mean this:
"We have duties laid down in an instrument. At the time when the
instrument laid them down the instrument was a treaty or convention
in force. The Court has now found that those duties are still in force
and they are still in force as defined in the instrument. Therefore, the
instrument must still be in force and therefore it must still be in force
as a treaty or convention." That appears to be the line of argument; and
it is advanced (the Court will observe) without reference at al1 to the
question of parties between whom the Mandate could be said to be in
force asan internationai agreement. Our submission is thathat argument
of the Applicants breaks down, at its very premise, because its premise
is really aplay on words.
In our submission a treaty or convention is a legal transaction, an
international agreement. That is the primary signification of that ex- ARGUMEKT OF MR. DE VILLIERS I43
pression. But, because of the practice of embodying a contract-an
agreement and also an international agreement-in a written instrument,
the terms "treaty or corivention" have acquired usage also as referring
to such an instrument. 'To that extent, then, there is an ambiguity in
the expression itself-"treaty or convention". But that ambiguity exists
only when one has the expression alone, divorced from any context.
As soon as one putç it into a context-as soon as one speaks of a treaty
or convention in force--then surely in that context the expression
could only refer to the legal transaction and not to the document which
is, in essence, mere eviclence of what the transaction is. It is not, in
any true sense, a document that could be "in force"-it is the legal
transaction recorded in the document that could be either in force
or not "in force". Therefc~re,it could only be in a very loose sense (1know
the language is sometimt:s used) that one could speak of an instrument
asbeing "in operation", or "inforce", or as having "continued validity",
the real suggestion contained in such expressions being that the transac-
tion recorded in that instrument is still inforce as a legaltransaction-
as a legal act.
We have a similar situc.tion in the sphere of private law-of municipal
law-with regard to the use of the words "contract" and "agreement".
Again the word "contraci:" and the word "agreement" refer primariIy to
the tralzsactionand, when they are used in conjunction with the expression
"in force" or "operative" (or anything of that kind), then quite clearly
the reference isto the hrtnsaction.One could also say-and one does-
with the same type of arnbiguity that an instrument in which such a
contract or agreement might be recorded is a"contract" or "agreement",
although the more correc usage would be to speak of that instrument as
the deed, as is the practice in English law, the deed which contains that
transaction-records it-sets itout. But as soon as one speaks of the
conception of a contract: or an agreement, as being in force-as being
operative-then it becomes clear that one has a transaction in mind and
not the deed or the docu~nent in which it might be recorded.
Confirmation for this :;ubmission, Mr. President, which 1: have just
advanced, is found in this consideration: Suppose we have a treaty or
convention recorded in an instrument, but, later, something happens
which cancels that agreement, renders it inoperative-suppose there is
a later treaty between the parties by which the previous one is expressly
cancelled and annulled. Now the document in which that previous treaty
had been recorded and st:tout might still be in existence. It need not
necessarily be torn up because there has been a cancellation of thetreaty,
and there could be record:; of it ; it might be printed in books (as we often
find). One couId then still--as a matter of language-refer to those docu-
ments (even copies thereoi) as being "treaties" or "conventions". But one
would never speak of them as being a "treaty or convention in force".
The reason why one would not do that is because the transaction which
they recorded is no longe].in force: and, therefore, that must always be
the deteminative considi:ration when one raises the question whether
a treaty or convention is. in force. The determinative consideration is
the transaction recorded--is thatin force or not? And from that there
might, or might not, follow a less precise usage of speaking of the in-
strument as either being in force or not being in force.
Mr. President, 1have with respect employed the example of a previous
treaty which may be canci:lled expressly by a later treaty, with the resultI44 SOUTH WEST AFRICA
that one would then no Ionger speak of the previous treaty as being a
treaty or convention in force. That same result would, in my submission,
follow evcn if there would, Say in the new treaty, corne into existence
a new causa for the same obligations as in the previous treaty to come
into force again, or to remain in force. Suppose the obligations, or some
of them, as recorded in the earlier treaty should be repeated in substance
or even precisely in the later treaty, but they now owe their existence
not to the first treaty but the second one, and that is why they are now
in force as treaty obligations.Then the mere fact that those obligations
still exist in exactly the same fom, with exactly the same content and
in exactly the same wording as originallyrecorded in the cancelled treaty,
that would still not result in a consequence whereby one could speak
of the cancelled treatyas being in force. It, therefore, followsMr. Presi-
dent, that it is not sufficient for the Applicants to point to certain of
the duties of the Respondents as originaliy recorded in the Mandate
instrument as being still in force, and then to Say that the consequence
follows that the Mandate rnust still be in forceas a treaty or convention.
The inquiry must centre on the causa, the reason for those obligations
stillbeingin force.Ifthat reason is the continued operation of the original
transaction namely, the Mandate as an agreement, then of course the
Applicants' contention ~fouldbe çound. But if itshould be found that
the cazssaor the reason is something else-is not continued operation
of the original transaction, the agreement-but is something else which
results in those obligations still being in force without the original
contract or agreement still being in operation, then the Applicants'
contention isnot sound. It is for that reason that it becomes necessary
to have regard to the distinction between duties as originaly defined
in the Mandate agreement continuing in force by reason of either con-
tinued operation of the Mandate as a treaty or convention, or alter-
nati.el., by reason of continued existence of the Mandate as an objective
institution.
That distinction, Mr. President, is one to which 1 have referred
several ti~nes, but I have not dealt with it in detail before. It isone
which is not in truth advanced by us as a submission which we urge
the Court to accept; it is rcally a distinction which was drawn by this
Court in 1950 in the Advisory Opinion, in coming to the conclusion
that the Mandate was still in operation. Broadly speaking, the contention
then advanced to the Court on behslf of the Union of South Africa was
that upon dissolution of the League, the Mandate lapsed in toto,there
was nothing left of a Mandate. The Court's answer to that in effect
was, as we understand the Opinions, that the hlandate involved some-
thing more than contractual relations only: it involved also for the
temtory an objective status or regme which could survive and exist
independentIy of continued operation of the contractual arrangements
from -.hich it had resulted. That status or regime comprised, on the
one hand for the Respondent, title, power to administer the territory
as Mandatory, and on the other hand, substantive trust obligations as
set out in Articles z to 5 of the Mandate instrument.
What we are doing in referring the Court now to that distinction is
really to say that that answer whch the Court gave in its Opinion in
1950 is accepted by us, for purposes of argument, to be correct, and
that on that assumption that distinction becomes an important one.
It becomes necessary then to have regard to its implications as regards ARG;;TMENT OF WR. DE VILLIERS I4.5
this question whether the Mandate can still be said to be in force as
a treaty or convention.
1 have now stated to the Court broadly how we understand and
interpret the 1950 Opinions on this point. Just for sake of clarity,
may I repeat our onderstanding is that what the Court indicated was
thatthe Mandate really had a dual aspect ; it had the aspect of operating
as an international agreement, as a treaty or convention, but the aspect
also of resulting in an objective institution, and that therefore the
argument addressed to the Court to the effect that the Mandate as a
whole necessarily lapsed because the parties thereto disappeared, that
argument could not be sound because even if there should no longer be
an international agreement, the Mandate was still in existence as some-
thing objective which colild exist independently of the operation of an
agreement. The Applicards, however, Say that we have misunderstood
the pertinency of the judicial analysis,-these are the terms they use at
page 435 (1) ofthe Observations. They say-a iittle bit above the middle
of that page:
"The Court did riot, as might be infen-ed from Respondcnt's
ambiguous language, hold that only in an objective or 'real' sense
did the Mandate survive. The Court found that the Mandate is an
international regirne, and Judge McNair found that it has acquired
a 'real'or objective stiitus. But the pertinency of this judicial analysis
is lost on Respondeiit: the Mandate instrument which created an
intcrnational regime or a status, survived the dissolution of the
League as a treaty or convention because, to repeat the words of
gudge Lauterpacht, 'the essence of such instruments is that their
vaIidity continues notwithçtanding changes in the attitudes, or the
status,orthe very suivival of individualpartiesor persons affected'."
It will be noted imrnecliately, Mr. President, that in support of their
statement that Respondent has misunderstood the pertinency of
the judicial analyçis, the Applicants refer not to something which
was said in the Igjû Opinions, they refer to an extract from what was
written by the late Jlidge Lauterpacht. In effect, they merely
concentrate on this use cf language on his part where he said that "the
essence of such instrurnt:nts is that their validity continues notwith-
standing changes in the attitudes, or status, or the very survival of
individual parties or perçons affected". Now that language, with the
greatest respect, &Ir. President, in that context was somewhat loose.
It did not matter for the purposes of the learned author that it was loose
because he was not dealjng with a possible distinction between the
Mandate operating as a treaty or convention and operating objectiveIy.
What the learned author thereimplied, and that was his only pointreally,
was that the obligations,the legal rights and obligations provided for
in the instrument, were still in effcct, that their validity continued
and it was reallyper const:quentiathat he then spoke of the "instrument"
itself as being something of which the validity continued. But he did not
use that language in relation to the question whether it could then be
said that such an instrument was still in operation as a treaty or con-
vention, without referenci: to the question of parties between whom it
could operate aç an international agreement. And therefore. because
his language was not intended by him to be applied to such a situation,
even that Ianguage afforils no support for the Applicants' contention.14~ SOUTH WEST AFRICA
When one turns to the 19jo Opinions themselves, they, in my sub-
mission, afford no support for the contention of the Applicants but
they bear out the interpretation which we are putting on them for the
purposes of our contention.
Mr. President, for the purposes of the analysis of the 1950 Opinions
on the point under discussion, 1 should like to commence with the
separate Opinion of Sir Arnold McNair on this point, because the learned
judge went into this distinction most fully and explicitlin that Opinion.
1 will from that revcrt to the majority Opinion, which did not deal with
the point in the same measure of detail, but my submission uill be that
the indications are clear that the line of thought was the sarne.
1 refer first to pag153 of the separate Opinion of Sir Arnold BlcNair.
There the learned judge stated this proposition:
"From time to time it happens that a group of great Powers,
or a large number of States both great and small, assume a power
to create by a multipartite treaty some new international régime
or status, ïvhich soon acquires a degree of acceptance and durability
extending beyond the lirnits of the actual contracting parties, and
giving it an objective existence."
Thus the concept of something barn from international agreement by
multipartite treaty, but something which, once it has been created
inter $artes,acquires a degree of acceptance beyond the coniînes of the
contracting partics and therefore also of durability beyond the existence
or operation of their contract.
He discusses this proposition with reference to other examples that
have occurred and, at pages 154 to 155, he applies it to the case of the
Mandates system established in purçuance of Article 22of the Covenmt.
1 read the last sentence at page 154-it follows on a discussion as to
the corning into effect of Articl22 :
"In iny opinion, the new régime established in pursuance of this
'principle' [the principle that the well-being forms a sacred trust of
civilization] has more than a purely contractual basis, and the
territorles subjectedto it areimpressed with a special legal status,
designed to last until modified in the manner indicated by Ar-
ticle22."
Therefore, again, something which would have effect beyond the
ordinary confines of a contractual relationship, more than a purely con-
tractual basis-a special legal status resulting from it for the territories.
At page 156 there foUa~vs thissignificant passage, after setfingoutthe
contents of the Mandate for South West Africa. I'm reading just below
the quotation frorn Article7.
"These obligations possess two distinct characters.The provisions
of the Mandate are in part contractual, and in part 'dispositive'
(upon which term see Westlake, International Law (2nd edit.) ; ii,
pp. 60, 294); In English terminology, it is both a 'contract' and a
conveyance ,that is to Say, a document which transfers or creates
rights connected with property or possession. In addition to the
persona1 rights and obligations referred to above, it also created
certain 'real'ights and obligations." ARGIJMENT OF MR. DE VILLIERS 147
Here we then find a very clear and explicit statement on the'dual
aspect of the Mandate to which I referred before; its effect as a contract
inter partes plus the additional effect as being something of the nature
of â conveyance, as beifig dispositive of something real, pertaining to
ownership, to use, to possession, to title of property. And the line of
thought is developed as fdlows:
"Coupled with the effect of the assent of the Principal Allied and
Associated Powers, in whose favour Germany renounced her rights
and titles over Soutlt-West Africa and ~vhoare expressly described
in the preamble of the Mandate as the proposers of the Mandate,
the Mandate transferred to the Mandatory, or created and recognized
in the hands of the Mandatory, certain rights of possession and gov-
ernment (administrative and legislative) which are valid in rem-
ergaomnes, tliat is, a.gainst the whole world, or at any rate against
every State which wils a Member of the League or in any other way
recognized the Mandate; moreover, there are certain obligations
binding every State that isresponsible for the control of territory
and available to othu States." (195O 0pinio n.,156.)
It looks, Mr. Presideni, as if in this last portion of the sentence, a
"the" may have been omitted in front of the word "territory". The
French is "du territoire", a,ndthe equivalent in English would require the
"the", which would also rnake better sense in the context. It looks as if
that might have been omitted there.
In any event, the disti~iction suggested here is a cIear one. The idea is
apparently that in addition to operating as a contract or agreement
interfiartes,the Mandate and its conçequences-things that went with it
-had a dispositive effect regarding title to property and corresponding
conditions, or burdens, rtsting upon that title. That is why the learned
judge stressed the effect cifthe assent of the Principal AlLied and Asso-
ciated Powers, who had the power to dispose of the title to the particular
territories.That demon~trated the fact that the Mandate had the
effect of transferring or creating a right of possession and govemment,
which would have an elYect beyond the contracting parties, appar-
ently based upon the recoj:nitiothat would be given to that special type
of status-that special tjpe of title which is involved for a particular
Mandatory. Through the Mandatory's acceptance of that title, which
involved not only rights but also corresponding obligations, and by
recognition by other States of that type of title and of the Mandatory's
possession of that specific title in a particular case-through that
process of recognition the::e came about an objective situation operating
outside of, and independently of, a contractual relationship.
This conclusion is further rendered clear by the next passage at pages
156 to 157:
"In short, the Mandate created a status for South-West Africa.
This factis important in assessing the effect of the dissolution of the
League. This status--valid inrem-supplies the element of perma-
nence tvhich would enable the legal condition of the Temtory to
survive the disappea.rance of the League, even if there were no
surviving persona1 ok.ligations between the Union and other former
Members of the Leape."14~ SOUTH WEST AFRICA
In'other words, here the learned judge very definitely foresees the
possibility that the whole of the contractual relationship may have
disappeared, ruid yet the Mandate would survive in the sense of this
legal condition of the territory-thisstatus and the title which it involves
for the Mandatory, coupled with the corresponding obligations-in that
sense there would be a survival of the Mandate.
Further, Mr. President, in support of this line of thought, and this
interpretation which we put upon the Opinion, 1 refer to page157 ivhere
the learned judge cited an extract from a judgment of Chief Justice
Marshall of the United States on the point that when a right is once
vested, although having had its birth from a treaty, the expiration of the
treaty which originally conferred that right cannot affect the continued
existence of the nght. The right may be one that has now obtained an
independent existence, independently ofthe treaty which gave birth to it.
That treaty may fall away and yet the right might persist: again sup-
porting the interpretation that what the learned judge had in mind was
that the Mandate seen as a contract, an international agreement,
might have disappeared altogether, and that yet the Mandate as an
objective institution would still have an independent existence, inde-
pendent from the continued operation of that international agreement
to which it owed its original creation.
Before proceeding with an analysis of the majority Opinion, 1 lvould
like to refer to Westlake, the work to which Sir Arnold McNair referred
at page 156of his Opinion in drawing the distinction between a contrac-
tualand a dispositive effect of the Mandate. The particuIar passage from
Westlake throws more light on ïvhat was envisaged in that distinction.
The learned author was dealing with the general principle that where
territory is ceded by a treaty of transfer or cession, then under certain
circumstances the treaties which had been entered into by the transferor
State may cease to be of operation in the ceded territory, and ais0 with
the principle, closely related to it, that where a State may cease to exist
through annexation by another State, then the treaties of the annexed
territory cease to be of operation-that being a general principle which
he had discussed before. Now the learned author proceeds to state:
"There is a claçs of treatiecalled transitory or dispositive which
may seem to be an exception tothe rule that the treaties ofthe trans-
feror or extinguished state cease ta operate in the ceded or annexed
territory, but which may as easily be represented as not being reaiiy
an exception. These are treaties which dispose of or about things by
fieldor grantingaeright ofway over it disposes ofor about,the fieldby
transferring the property in it to the purchaser or creating the nght
of way over it in the grantee. Such are treaties of cession, by which
the sovereignty in a territory is transferred by one state to another,
and those by which a territory is subjected to a servitude or ease-
ment, as the treaties of1815 by which northern Savoy was declared
perpetually neutral, thus creating in it a servitude of neutrality in
support of the neutrality of Switzerland. Documents of title of this
class,whether in private orininternational law, are calledtransitory,
because their effect passes over (transit)into and forms a part ofthe
body of rights concerning the thing in question, so that it is possible
in subsequent dealings to start from that body of rights as a fact, ARGUMENT OF MR. DE VILLIERS I49
.'
without being obligeti always to refer to the dealings which created it,
asit would be necesc.ary to refer to an ordinary contract every time
that its performance had to be claimed in a fresh case. But the term
[transitory] iabad me, because the associations usually connected
with the word 'transitory' cause itto suggest a fleeting character for
documents of which the operation is really the most permanent,
and the best term to use is 'dispositive'. Now a transfereeorannexing
state takes the territory as it stands, that is, subject to al1 the
rights ~vhichhave been impressed on it in favour of third parties
by the treaties which have diçposed about it; alid by virtue of
this possibility of lociking only at the rights as they stand, without
going behind thern tc~the documents of title, dispositive treaties rnay
be represented as riot being an exception to the general rule."
(Westlake, International Law. Part 1, Peace, Second Edit., pp.
60-61.)
In other words, the line of reasoning is that where you have as a
normal pnnciple that the treaties of the, sball we now say, annexed
territory, automatically iall away, that they cease to be of operation on
annexation, we have this situation about dispositive treaties, that may
have created something of the nature of a servitude or an easement,
something which pertainj to the use of the property-dcmilitarization,
canal rights, something of that nature-that in those cases it may be
possible to look not only :3tthe treaties but also at the rights ~vhichhave
resulted from the treaties as kaving an objective existence. Therefore
theydonot really constitiite an exception to the rule, because the treaties
themselves cease to operate, there no longer being parties to those
treaties. But the righis -,vhich have become vested have acquired an
objective, an independen! esistence and for that reason. the rights them-
selves continue to operate without the treaties still being in operation.
That is apparcntly the tl.pe of distinction borne in mind and which was
to be applied to the Mandate system.
1proceed to refer tothe majority Opinion at page 131.There the major-
ity of the Court descrilie the Mandate system as an "international
regime" in the last paragraph.
"With a vietv to giving practical effect to these principles, an
international régime. the Mandates System, was created by Article
22 of the Covenant clfthe League...",
and at page 132, the next page, there is a reference to the Mandate,
just below the break in the print, about one-third down the page:
"The terms of this Mandate, as well as the provisions of Article 22
of the Covenant and the principles embodied therein, show that the
creation of this new international institution did not involve any
cession of territory ..."
So the Mandate is the1.edescribed as "tkis new international institu-
tion".
Further down the pagc the Court reasons in answer to the contention
asthen advanced on behalf of the Union Govemment-1 think it may be
best to read that portion in its context:
,
"It is now contended on behalf of the Union Government that .
this Mandate has lapsed, because the League has ceased to exist. SOUTH WEST AFRICA
This contention is based on a misconception of the legal situation
created by Article 22 of the Covenant and by the Mandate itself."
(195 0 pinion, p. 132.)
And then the Court proceeds to explain why that was a misconception:
"The League was not, as alleged by that Government, a 'manda-
tor'in the sense in which this term isused in the national law of
certain States. It had only assumed an international function of
supervision and control. The 'Mandate' had only the name in com-
mon with the several notions of mandate in national law." (1950
Opinion,p. 132.)
Istress the next portion:
"The object of the Mandate regulated by international rules far
exceeded that of contractual relations regulated by national law."
(195O 0pinion,p. 132.)
In other words, here we get the same idea that the Mandate had in
mind something-an object-which would transcend or exceed con-
tractual relations. The next passage proceeds to explain what that was:
"The Mandate was created, in the interest of the inhabitants of
the territory, andof humanity in general, as an international insti-
tution with an international object-a sacred trust of civilization."
(rg5O 0pinion,p. 132.)
That, then, in this context, mustbe what the Court had in mind as the
object which the founders of the institution contemplated, as something
which would transcend and go beyond normal contractual relations.
"It is therefore not possible to draw any conclusion by analogy
from the notions of mandate in national law or from any other
legal conception of that law. The internationalrules regulating the
Mandate constituted an international status for the Territory
recognized by a11the Members of the League of Nations, including
the Union of South Afnca." (1950 Opinion,p. 132.)
And thus we corne again to the conclusion that there is something
which would olve itç existence to recognition afforded to it and which
could for that reason have a status, an existence, independent of, or at
any rate transcending, contractual relationships. There seems to be, there-
fore,basically the same line of reaso~iingand of distinction as in the Opin-
ion of Sir Arnold McNair, because what is to be borne in mind is the
context of this reasoning; the context is an answer to the contention of
the Union Govemment that the whole ofthe Mandate had lapsed because
there was no longer a Mandator. And the Court answered it by saying
that the institution that was created here had an object which transcen-
ded contractual relationships, and that was a status for the territory,
recogltixedby the Members of the League of Nations, including the
Union.
And therefore thesame result follows: that what was conternplated by
the Court was something which could exist independently of contractual
relationships.
Explaining more particularly what this object involved-this object
that would go beyond contractual relationships-we find the majority
stating at page 133,the second paragraph from the end of the page: ARGIrMENT OF MR. DE VILLIERS
If)1
"These obligations [referring to Articles 2-51 represent the very
essence of the sacred trust of civilization. Theirison d'étreand ori-
ginal object remain. since their fulfilment did no1 depend on the
existence of the Leag.ueof Nations, they could not be brought to an
end merely because this supervisory organ ceased to exist." (1950
Ofih?i~~pt,.133.)
Here, then, we find what it was that the Court had in mind as some-
thing capable of this objective existence, as forming part and parce1 of
fhis international çtatus of the territory recognized by the Members of
the League, including the Union of South Africa.
Judge Read, in his Separate Opinion in 1950, indicated agreement
with that elaboration, with the views of the majority on the question
of the status for the territory which resulted from the Mandate arrange-
ments. At page 164, he stated:
"It is sufficient to note that the international status of South-
West Africa was that of a mandated territory."
And then at pages 165-166 he says:
"Bearing in mind Ihe nature of the international status of South-
West Africa under the Mandate System, it is necessary to consider
the effect of the disstblution of the League. In this matter,1 concur
in the view of my colleagues that the international status of South-
West Africa, as a mandated territory, survived thc League."
Mr. President, the general views of the Members of the Court in 1950
on this question, therefore, appear to have been that quite independently
of continued operation of a contractual relationship between the Man-
datory and other Membe~s of the League-in other words between the
founders of the Mandate system-the Mandate could exist as an inter-
nationaily recognized ini,titution which involves for the territory a
status thus recognized, and, for the Mandatory, a title or a power of
administration, thus recognized. The title, according to this view,
was seen as a quaIified one-analogous to that of a trustee in municipal
Iaw-in the sense that it existed for the purpose of implementation
of a sacred trust. And, ji~st as in municipal law, it is possible to view
the trust as being something ofa burden which rests upon the title of the
trustee, something which exists independently of a contract. Thisappears
from the passage from Urtderhill, which 1 read, in which he rendered it
clear that the donor, having made the necessary arrangements for the
trust, normaIly falls out of the picture-in the absence of some very
special arrangement. The completed trust then is no longer a contract.
It is something analogous to a completed gift. There has already been a
disposition of the propert:~, a new title is now recognized by the law in
the hands of the trustee and the obligations of the trustee vis-Avis the
beneficiariesunder the trust are seen as sornething which operate as a
qualification to his title. 13ehaç the title for the purpose of complying
with those trust obligatiorisand, in that sense, the obligations are much
of the same nature as areal charge-an onus reale-on the trust property.
That appears to be the type of institution which the Court had in mind
in1950, whichcouldexist irithe case of the Mandate, independently of the
operation of a contract. It would be something analogous then ta a
municipal law trust, in the sense that here would be a special kind of152 .SOUTH.WEST AFRICA
status for the territory-a special kind of title-involving rights and
powers, on the one hand, but substantive obligations, on the other hand,
pertaining to the manner in which this property was to be used, and the
manner in which the title (the powers-the title to the property) was to
be applied, namely for the benefit of the inhabitants (the beneficiaries)
for the furtherance of the sacred trust. On this basis, 1 rnight point out
that if this is a true appreciation of what the Court had in rnind, then it
might well be that, on that view of the situation, the conditions resting
upon the Mandatory's title, as qualifications thereto, may be available
as rights to a wider circle of States than those who had been parties to
the Mandate arrangement, the idea being apparently that States recog-
aize the objective existence of the hlandate-f this new type of status
for a territory-and ofa particular Mandatory's title thereto, and that,
on the basis of that recognition, the Mandatory is not only qualified to
exercise his rightsbut he isalso obliged to comply with his duties which
are coupled as part and parce1 of his rights to the territory. That
would seem to be the contemplation, and that would seem then to
be the distinction which was drawn between continued operation of the
Mandate as a treaty or convention, as an international agreement, and
continued existence as an objective or a real institution.
That is why, Mr. President, 1wish to emphasize that it is not for me
to satisfy the Court that there is, or is not, a continued existence, as an
at al1 for my purposes whether or not there is such a thing. On theatter
assumption that there should be no Mandate at all, then there could be
no jurisdiction of the kind which the Applicants seek to found, juris-
diction being part and parce1of a Mandate alleged to be in existence and
sought to be exercised for the very purpose of performance of that Man-
date. Therefore, an assumption of that kind does not hurt me, it hurts the
Applicants. Again, the purpose of my argument has been to demonçtrate
that an opposite assumption-an assumption of continued operation of
the Mandate of thenature that the Court envisaged in I 50, namely as an
objective institution-does not hurt my argument eit er, because that
would envisage a causa for continued operation of the Mandate which
would be cornpletely independent of continued operation of a contract.
Therefore, rny contention that the Mandate ceased to.be in force as a
treaty or convention, isnot affected at al1by acceptance-assumption for
purposes of argument-f the proposition that the Mandate continued in
operation in the objective sense. That is so in as far as concem: the
Mandate seen as the title of the Mandatory, the status of the ten~tory,
and the objective trust obligations contained in Articles 2-5 of the Man-
date.
Different considerations apply to Articles 6 and 7. I have pointed out
before that, in regard to Article6, it would be difficult to apply the anal-
ogy of a real charge-of something which affects the possession or the
use of property. It seems to be more persona1 in its nature. That 1s the
more so in regard to Article 7, providing for compulsory jurisdiction of a
court. That is really a matter providing for adjudication of disputes, and
it could hardly be said to be somethingdirectly pertaining to the use that
can be made of property and, in that sense, to fa11in the analogy of areal
charge or an obligation of a dispositive nature. Apart from that, Article.7
operation-iftithere is tobe a finding that Article 7 is stUhinloperation- in ARG'iJMENTOF MR, DE VILLIERS 153
then that finding would imply that there would be parties who could
bring it into operation and, because ofthe requirements ofArticle 37ofthe
Statute of the Court, that operation would have to be based on a treaty
or convention. 1must therefore admit that in so far as the Court found in
1950 that Article 7 is stil! in force, that findingdid seem to imply that it
was stiil in force as a treaty or convention. Therefore 1 am prepared to
accept that,as far as Articles 6and 7are concerned, what 1am contending
in respect of those Articles is,in effect,in conflict with the opinion, the
conclusion arrived at by the Court in its majority Opinion in 1950.
But that does not apply as far as Articles 2-5 are concerned. The Court
did notin any way indicxte, as far as Articles 2-5were concemed, whether
it considered that, in addition to their objective existence as part of the
sacred trust, there could :;tillbe said to be a treaty or convention in force
in regard to them.
Therefore, in al1respects except Articles 6 and 7, the contention which
1have now advanced to the Court is not in conflict with anything found
in ~gjû. In so fnr as variance is involved regarding Article 6, 1havedealt
with the situation in that regard. 1will deal particularly with Article 7
in a separate portion of my argument which wiil foliow directly on this
one. Al11want to point oilt at the moment is that if the principles and the
application which 1have advanced to the Court under this portion of the
argument should be accepted as sound, if, in addition, the contention
~vhich 1 have aIready aclvanced in regard to Article 6 is accepted as
sound, and, finally, the contentions which 1 am to advance in regard to
Article 7-if those shouIil also be accepted-then the final consequence
of the argument, as I ha1.enow stated it to the Court, would be that the
whole of the Mandate agreement is no longer in force as a treaty or con-
vention.
As regards the Separate Opinions in 1950 of Judge McNairand Judge
Read, our contention that the Mandate is no longer in force as a treaty
or convention also involves some rneasure of confiict, but only in ço far
as Sir Arnold McNair found that the expression "Member of the League"
was "descriptive" and not "conditional". Hestated that at pages 158-159
of the Opinion. But perhaps I should refer first to a passage at the begin-
ning of page 158 :
"Which then of the obligations and other legal effects resulting
from the Mandate remain to-day? The Mandatory owed ta the
League and to its Memberç a general obligation to cany out the
terms of the Mandate and also certain specific obligations, such as
the obligation of Article 6 to make an annual report to the Councq
of the League. The obligations owed to the League itself have come
to an end. The oblig,ationsowed to former Members of the League,
at any rate, those who were Members at the date of its dissolution,'
subsist, except in so far as their performance invoIves the actual'
CO-operation of the League, which is now impossible."
.So, there, the learned judge appears to find that there is still a con-
tractual relationship in f'orceas between the Mandatory and the other
Membersofthe League, and he.says so specifically at the.botto7mof the
page:. . ... . .. ..154 SOUTH WEST AFRICA
"..and 1haveendeavoured to show that the agreement between the
Mandatory and other Members of the League embodied in the
Mandate 1sstill 'in forc". (1950 Opinios, p. 158.)
And now follows the ratio for this finding:
"The expression 'Memberof the League of Nations' is descriptive,
in my opinion, not conditional, and does not mean 'so long as the
League exists and they are Members of it'; their interest in the per-
formance of the obligations of the Mandate did not accrue to them
rnerely from membership of the League, as an examination of the
content of the Mandate makes clear." (195 0 pinion, pp. 158-159.)
It is on the basisof this reasoning that Sir Arnold McNaIr found that
there was stiII a contractual relationship in force as between the Manda-
toryandother Membersofthe Leape. Rut the passagewhich 1read earlier
he would have corne to the conclusion that the Mandate still existedtheas
an objective institution, although there would then have been no sur-
viving contractual relationship. The passage which 1 read earlier is at
page r56-157where he said:
1L
This status-valid in rem-supplies the element of permanence
which would enable the legal condition of the Territory to survive
the disappearance of the League, even if there were no su~ving
persona1 obligations between the Union and other former Members
of the League."
Therefore, Mr. President, it was only in respect of this finding-
on the basisof this finding-that the expression "Member of the League"
wasdescriptive and not conditional for intended parties, that Sir Arnold
McNair came to the conclusion that a contractual relationship still
subsisted. That reasoning 1propose to deal with specifically in the portion
of my argument conceming Article 7, because it is particularly applicable
there. Apart, then, from questions pertaining to Articles 6 and 7, my
contentions regarding the cessation of the npesation of the Mandate as a
treaty or convention are not in conflict with anything found either in the
majority, or in the minority, Opinions in 1950.
[Public hearing of8 October1962, a/ternoon]
Mr. President, 1had ai the adjournmentvirtually completed my argu-
ment on the question of the effectof the dissolution of the League on the
Mandate seen asa treaty or convention in force within the meaning of
ArticIe 37 of the Statute of the Court. It remains for me only to deal in
that regard with certain specific averments by the Applicants. 1 have
dealt with their main arguments in that regard; but there are certain
averments which deal with this aspect of the subject and which have, in
effect, been answered, but 1 would just like to put the specific answers
on record.
In their Observations at page 421 (1) the Applicants state this-1 am .
reading from just about the middle of the page, the middle of the second
paragraph :
"The question before the Court is whether Respondent's duties
under the Mandate instrument continue to exist, that içto Say, ARGUMENT OF MR. DE VILLIERS I5.5
whether Responderit's administration of the mandated territory
which is based on the Mandate instrument is free of the obIigations
prescribed in that iiistrument."
1 point out that for the purposes of this contention that is not the
question at all.The question is not whether those duties continue to
exist, but, assuming as uredo for purposes of argument that they do exist
as far as the substantive obligations are concerned, what is the causa
for their existence. 1 have dealt with that question fully. Then, at page
426 (1) of the Observations, the Applicants state, in the third paragraph,
the second sentence :
"Its [that is, Respondent's]contention is exactly that advanced
by it in 1950before i:heCourt, and which the Court rejected,namely,
that the dissolution of the League caused its obligations defined in
the Mandate instrument to lape."
That is not our contention; indeed on the contrary, we assume for
purposes of argument the existence of the substantive trust obligations.
Then, still at page 426(1),the Applicants state, just belowthe quotation:
"Respondent still views the Mandate as a bare contract",
and somewhat further, three lines from the bottom of the page:
"AU that Respondent has done in its more modem version has
been to add one more possible contractor who couM have 'failen
away' by virtue of the League's dissolution, in spite of the fact that
the Court clearly st;.ted that the Mandate may not be anaIyzed as a
mere contract." (Observatio p.4 26 (I).)
Mr. President, far froni viewing or analyzing the Mandate as a "bare"
contract or as a "mere" contract, our contention assumes the dud ef£ect
of the Mandate, the coritractual as well as the objective status which
resulted from the Mandate. The latter status could, as far as we as-
sume for purposes of a~gument, have survived the dissolution of the
League, whereas the contractual aspect fell away. This comment of the
Applicants is therefore alsonot justified. Also, iisnot true or correct to
Say that we have added iinother contractor who could have fallen away.
1 think 1 have made it cIear that for purposes of argument it makes no
differencewhatsoever whether the League alone is seen as the contracting
party vis-2-visthe Manaatory, or whether the Members of the Leape
are so seen or whether tlie situation is seen as being the League and its
Members. Wkat is important is that the circle was no wider than the
League and/or its members. Then at page 427 (1)of the Observations the
Applicants state :
"...it is an imposition upon the Court for Respondent to present
the same basic argument as before, and at the same time propose
a denovo consideration".
Now again, Mr. President, the argument is not the same, basically
or othenvise. It assume!; as correct the basic finding of the Court in
1950; and in the limited respects regarding Articles 6 and 7 in which it
is in conflict with what the Court decided in 1950 w,e have given, 1
submit, good reaçons for a deviation from the Court's finding as far.as
Article 6 is concemed. Ad I will proceedto state ow reasons regarding;156 'SOUTH WEST AFRICA
Article7,which Isubmit are equally good reasons. That brings me to the
:end of that particular portion and1 caa proceed to deal specificaliy with
the effectof the dissoluti ofnthe League regarding Article 7 of the
Mandate.
Now, 1 have pointed out that the second portion of Article 7,whicIi
is the crucial cornpromissory clause, required foits operation "another
Member.of the League of Nations" to invoke that jurisdiction. It is com-
mon cause between the parties that during the lifetime of the League,
each Applicant would have fallen within the rneaning of that expression
.and could in a fitcase have invoked the jurisdiction 'ofthe Court. But
the issue between us is whether that is still the situation, since the disso-
lution of the League; whether any State can now still qualify to invoke
.such jurisdiction within the meaning of the expression "another Member
of the League of Nations". We, representing the Respondent, contend
for a negative answer and the Applicants contend that certain States,
including themselves, can still so qualify. Thatis,broadly speaking, the
issue regarding Article 7. Before1develop the arguments inthat regard,
may I just again refer to the implications; to exactly how and where this
:argument fits into the pattern of our objections and our contentions
regarding the first two objections.If our contention regarding Article 7
should be sound then the effect would be, in the first place, that in
conjunction with the argument which 1 have already addressed to the
Court regarding Article 6, and in conjunction with the argument which 1
addressed to the Court this morning in regard to Article2 to 5,the effect
would be that the whole of the Mandate agreement has ceased to be a
treaty or convention in force within the rneaning of Article 37 of the
Statute, that being the first of our three contentions relativto ,the first
two objections. But we contend in any event, secondly that whatever the
'situation might be in regard to other portions of the Mandate Agreement,
the effect of Our contentions regarding Article 7 is that Article7 itself
ceased to be so in force as a treaty or convention-that is our second
contention, Our third and alternative to the second is that even if Article
7 could be said to be so in force, the Applicants are not qualified to
invoke it.
1will proceed to deal first with a development of Ourargument as tothe
.proper interpretation of that phrase "another Member of the League of
Nations" in its context in Article. But before doing so,1 think it would
:be convenient if 1were to refer to something which the Applicants raise
in this regard and which might almost be regarded asan objection to our
.objection. They quote in their Observations, at page 440 (1) a passage
from a statement made by a representative ofthe Union of South Africa
in1950- They Say it was Mr. D. B. Sole. That was not correct, the rep-
resentative was Dr. Donges, but that does not matter.;The point is that
this statement is cited herey the Applicants, at page MO, and they refer
to itas if it was something said by a representative of Respondent
"speaking for Respondent". Those are the words used at page 440. And
they Say about it earlier, at pag437,just above theheadingl'A. Judicial,
Scholarly. and Other Authority," that our contention-our submission
regarding Article 7-"is inconsistent with the prior decisions of this
Court, aswell as with scholarly authorityand the admissions of Respon-
dent,itself before the United Nations", that statement apparentlybearing
,upon this portion here cited at page 440. Further, at page 4.40 after the
.quotation., theysay of it;in the Sumrnary-the last sentence: ARG UMËNT OF'MR. DE VILLIERS 157
"The latter admission, 'thougli not conclusive as to (the meaning
.recognition by a partynsiofritseownbaobiigations under (Articlein7)'."
(Observatip o.ns40 (1))
Now, Mr. President, what 1want to indicate in regard to that passage
is,in the first place, that when it is properly interpreted in its context it.
is very doubtful, to put it at its lowest, whether the representative in-
tended to do anything more than to set out the effect of the Opinion of
the Court on this particular point. But even if he should have intended
anything more, ifhe should have added sornething by way of cornment-
apart from merely stating the effect of the Opinion of the Court-then
it is perfectly clear from the context, from explicit statements made by
him before and after this passage in the course of his address, that he was
not speaking on behalf of his government and that hisgovernment had.
not yet taken any attitude about the matter and that nothing that he
could Say at that stage rriust be taken asbinding his government in any
way. Therefore what he said could not have been understood by anybody
as being spoken on behalf of the Respondent, as being an admission on
Gehalf of the Respondeni:, of binding the Respondent in any way or of
indicating an admission carrecognition by a party of its own obligations.
I shaii deal with those sulimissions ina moment with reference to the ad-'
dress.
Nowfirçt, Mr. President, as ;egards the interpretation of the statement
itself, two paragraphs beiore the portion which is quoted in the Obser-
vations the speaker started by stating:
"It will be recalleclthat the Court advised",
and then he proceeded tc. state the effect of what the Court had advised
ofdhis own apparently irl that regard. I must admit immediatdy, thets,
statement is confusing in the sense that the speaker did not always
clearly distinguish betwet:n what waç his own comment and whaf was a
statement as to the effect of the Opinionof the Court. Yossibly the ques-
tion ofthe use of quotatioiis, or the absence of quotation marks, may also
have made a difference. Eut infact one fmds that when he cornesto this
passage which is quoted, itreally consists of a piecing together of certain
statements by Judge McNair at page 158of his Opinion and certain
statements by Judge Read at page 165 of his Opinion.
So, for instance, the firjt sentence.in that quotation is:
"Now the Mandate, as has been shown, provided two'kinds of-
machinery for its siipervision by the League of Nations-firstly,,
there was the judicial supervision by means of the right of any..
member of the Lealye under Article 7 to bring the mandatory
compulsorily before the Permanent Court. And secondly, the
administrative supervision by means of annual reports and their
examination by thi: Permanent Mandates Commission of the,
. League." (Obs~valiotrs,p. 440 (1))
'That is almost verbatim what Sir Arnold McNair said at page 158:
"The Mandate provides two kinds of machinery for its super-
vision.."
and it goes on to the judicial and the administrative. .158 SOUTH WEST AFRICA
And so, the next sentence then, in the quoted portion:
"The judicial supervision provided for in Article 7 of the mandate
has been expressly preserved by means of Article 37 of the Statute
ofthe International Court of Justice ..." (Obseniafio.nsp(1).)0
For that portion, again the statement that there has been an express
preservation by means of Article 37 istaken from Sir Arnold McNair
at page 158 where the learned judge stated:
"The judicial supervisionhas been expressly preserved by means
of Article 37 of the Statute of the International Co..."
The other sections, and even the phrase "reinforced by Article 94
of the Charter", corne from Judge Read's Opinion at page 169 where
Judge Read said:
"In the present instance, the Union, in the case of disputes
relating to the interpretation or the application of the provisions
of the Mandate, is subject to the compulçory jurisdiction of this
Court-under the provisions of Article 7 of the Mandate Agreement
and Article7ofthe Statute, reinforced byArticle 94of the Charter."
And the statement continues, as quoted:
"..and the Court has in fact found that the Union of South Africa
isthereforestill under an obligation to accept the compulsory juris-
diction of the Court according to the provisions mentioned".
(Observations,p.440 (I).)
That may possibly'be a reference to the Court in the sense of the
majority of the Court,. which also made a finding specifically on that
point, as cornpared with the statements which have been cited from the
judgments of Sir Arnold McNair and Mr. Justice Read. The quoted
statement proceeds :
"Any State which was a member of the League at its dissolution
could therefore still implead the Government of the Union of
South Africa before the International Court of Justice in respect of
any dispute between such a member state and the Govemment of
the Union of South Africa relating to the interpretation or the
application of the provisions of the Mandate." (Obsemiation,. +O
(11.1
That sentence couId be taken either as being a statement by the
speaker himself, or as stating the effect of what the Court had found, in
the context there. But, Mr. President, as 1 have said1 must admit the
statement is a most confusingone in that respect and 1am perfectly pre-
paxedto assume, for the purposes of my argument, thatthe speaker here
went further than stating the effect of the Opinions.
Even then it becomes very clear from the context and from the cir-
cumstances that he never intended to say anything on behalf of his
government and that he could not possibly have been so understood.
The occasion on which he spoke was in December of 1950 some months
after the Advisory Opinions had been delivered. 1 think the Opinions
had been deIivered in July of 1950 A.nd in stating the attitude of the
Respondent to the Court in this regard in the Advisory Proceedings, Dr.
Steyn, at page 288of the Pleadings as officiallyprinted, had statedthere: ARGUMENT OF MR. DE VILLIERS I59
"And finaily, there is no State legally competent to refer disputes
relating to the intel-pretation or the application of the provisions of
the Mandate to the International Court of Justice, the cornpetence
to do so having beeillimited by Articleof the Mandate to Members
ofthe League."
So the attitude, as sta-tedto the Court-thattitude of the Respondent
-was very clearly that there was no longer compulsory jurisdictionin
tems of Article 7 for i.hat reason, because there were now no longer
any Members of the Leigue. Dr. Steyn had also advanced to the Court
the main contention to which there has been ample reference in the
PEeadilzgs by the Applicants themselves in this case, namely that the
Mandate had, as a result of the dissolution of the League, lapsed toto.
any question of compu1c;oryjurisdiction in pursuance of Article 7 of the
Mandate. Those, in botli.respects, were attitudes stated on behalf of the
Union Government. But now, in the address by Dr. Donges in December
1950 ,e commenced (in document A.C.41185f, rom which the passage is
cited by the Applicants:~early in his statement (it is at page 3 of that
document) to state the following:
''~bw, 1 corneto another point which haç concerned several dele-
gations,and which was first put to me in the form of questions by
the distinguished delegate from the Philippines, and which was also
repeated by many other delegates, and again this afternoon in the
speech which preceded mine, by the distinguished delegate from
Mexico. The question was, what was the decision of South Africa
in regard to the ailvisory opinion of the International Court. 1
plain 1have merely to refer to what the distinguished delegate of
Ecuador has already stated today, namely, that the position taken
up by South Africa in this regard is crystal clear. 1said then that 1
did not propose to p-articipate unduly in this debate on a matter on
which my Govemment will later on have to define its position."
[1 repeat]"on a matteron which my Goverfimefitwill Ealeon havefo
defineit$ositto?z."
Andthat is the positionof South Africa in regard to the Advisory Opinion
of the International Cou:?. The speaker proceeded:
"1 said that 'it would be readily understood that thenature of the
rby the General Assembly, wili have an important effect on myttee and
Government's decisions',and while we are not prepared to slam the
door on any attempt to find an amicable solution of a question
which has vexed us for so long, we sincerely hope that the Organ-
ization on its part willnot do soeither." (U.Doc. A/C. 41185 p. 4.)
There, very clearly, hi!;government had taken no deciçion and would
later on have to define it; position. And then, at the end of the address,
after the quoted passage and at the very conclusion (pag16of the docu-
ment) the speaker stated:
is a factor which has also to be carefully weighed and considered by,160 SOUTH WEST AFRICA
. my Government, together with the attitude of the United Nations in
regard to the international position of South West Afnca as ex-
pressed in any resolution which may be adopted by the General
Assembly. It would bepremature to expect me to Sayor do anything
which could possibly be interpreted as binding my Government in
any way until it has had every opportunity of considenng fully and
carefuliy the wholeproblem in all its aspects(U.N D.oc.A/C.4/185,
p. 16.)
That, 1submit, Mr. Preçident, renders quite clear thatthe speaker did
not intend, and that his audience could not have understood him. as
intending, to state anything that could be regarded as binding his
government, as being an admission by his government, as being a re-
cognition of any duties still incumbent uponhisgovernment.
1rnay point out further in that regard too, that shortly afterwards,
,in June1951 ,fter resolutions had been taken at the United Nations and
after the Union Government had had an opportunity of defining its at-
titude, its attitude was stated by its representative to tad hoc Com-
mittee on the 27th June 1951 1.quote from the Applicants' Memorials,
pages 56-57 (1).where they set that out. 1 read about eight lines from
the bottorn of the page:
"...the union repesentative stated, according to the surnrnary
records, that 'the International Court had expressed the view that
these obligations rernain legally in force, a view to which apparently
not agree with the opinion of the Court as endorsedbyothe majority
. of the United Nations on this point. It held that, since one of the
- two parties to the contractual arrangement had disappeared, the
Mandate had lapsed and it could no longer be regarded as a legally
binding contract and that, in consequence, the Government of the
Union, in contrast to the opinion of the Court and of the rnajority
of the United.Nations was of the opinion that it no longer was legally
. bound to carry out the provisions of the Mandate in question.
Here, therefore, there was disagreement'."
So, Mr. President, on the last occasion before this statement, where
there had been a formal statement of the attitude of the Union Govern-
ment,and on the first occasion afterwards, one finds a ver- clear intima-
tion of the position of the Union Government, again showing that
what was stated by the speaker on that particular occasion was not
intended to be spoken on behalf of his government. And, indeed, in
the Mernorials, the Applicants had already referred to this particular
passage on which they now rely as an admission. And there they appear
to have conceded that it could not be regarded as an admission on the
Respondent's behalf, because they stated there, at page 93 (1) in a
.footnote:
"PresumabIy, the Union denies that Article 7 is in force since it
states that the Mandate is not in force. It is well to note, however,
that on 7 December, 1950the Union's representative to the Eourth
Cornmittee stated ..."
and then followed an extract from the statement which is also now
quoted. SOthere was an indication that the Applicants realized that this
was, in tnith, no admission at all-the statement which isnow reliedppon
by them as being such an admission. ARGUMENT OF MR. DE VILLIERS 161
1proceed with the argument on the merits of the dispute between us
and the Applicants as to .themeaning and effect to be given to the expres-
sion "another Mernber of the League of Nations" read in its context in
Article 7 of the Mandate.Agreement.
Mr. President, what is that context? The context is one of a com-
promissory clause in wluch the Mandatory agrees to accept the corn-
pulsory juriçdiction of tlie Court for certain types of dispute as deiîned.
That consent is qualifie.. with reference to variousthings andqualified,
interaEia,with reference tothe party or parties who could, in the case of
a dispute as defined,bring the Mandatory before the Court. Indeed, that
party is referred to as being the otherparty to such dispute; the dispute
must arise between the Mandatory and another Member of the League.
The reference to that other party to the dispute is not to another
State or States by name but to another State or States to which the
expression "Member of the League of Nations" applies. Now, may 1
refer the Court again t-3the wording of the second part of Article 7,
which I now propose to read elliptically for a closer analysis of context
on this particular point. 1 read the words:
"...ifany dispute 3uhatever should arise between the Mandatory
and another Member of the League of Nations [1am skipping some
words] such dispute [omitting again] shall be submitted to the Per-
manent Court".
And so we have: "If any dispute should arise between the Nandatory
and another Member of the League ... such dispute ...shall be submit-
ted to the Permanent Court." In the context, both the literal meaning and
the natural and ordinary meaning isperfectly cIear, and that içthat this
other State must be a Member of the League of Nations at the time when
the dispute arises; at the time, therefore, of envisaged application of this
clause, when there may ~hen be such a reference of the dispute to the
decision ofa Court. And if the othei party to the dispute does not comply
with this qualification to the consent, then the consent does not cover the
particular case.If the other party is not, at the time when the dispute
arises and when the occasion cornes for a reference to the Court, if that
party is not then another Member of the League of Nations then the
consent does not apply tu] that particular case.
The effect, Mr. Presidmt, of this construction may be described in
two ways. One may Say'that the expvession "another Member of the
League" is descri#tive,but it is descriptive with reference to the time
oJenvisagedapplication of the clause. It deçcribes what the other party
is to be at the time svhrn the clause is to come into operation. As 1
shall Iater emphasize, to talk of a descriptive meaning has little purpose
unless the description is related to a point or a period of time.
That is one way of describing what the effect is of this natural and
ordinary construction of this clause, The alternative way of describing
it 1sto Say that the right of the other State to take the Mandatory to
court is colzditionalupor. that State complying with a qualification at
the time of envisaged lap$tlicationof the clause. One could put it intwo
ways. One can Say the expression is descriptive, but at the point of
envisaged application. Oae can Say, alternatively, the right of the State
is conditional upon thal. State complying with the qualification, but
again at the time of en~içaged application-that being the important
factor in both instances. 162 SOUTH WEST AFRICA
That is not only the natural and ordinary way of interpreting the
language which we find here, itis aperfectIy ordinary and very common
and usual thing in matters of jurisdiction, in matters of loczcsstandi,
in questions pertaining to competence to bring judicial proceedings,
to adjudge those questions as at the stage of the institution of the
proceedings. That is the normal thing which one finds in al1 systems
of the law of procedure. But be that as it may, in this particular context
here, taking the wording into account and taking into account the
context as a compromissory clause, that is the literal interpretation-
indeed the only literal interpretation-and it is the onIy ordinary and
natural meaning that could be given to the language.
Therefore, in terms of the principle of natural construction as we have
notedit from the Second Admission case, the next stage in this enquiry
is now: does that construction make sense? Do the words read in this
meaning, in their ordinary, naturd meaning in the context, do they make
sense or, on the other hand, are they ambiguous or do they lead in
practice to an unreasonable result? Because, as the Court will remember,
according to the principles asthey are stated in the Second Admissio~s
case, if the natural construction makes sense that is the end of the
enquiry.
Our subrnission is,Mr. President, that there is no ambipity whatso-
ever and that, on an analysis of the practical implications, one finds
that this natural construction leads to a result which, far from being
unreasonable, does make sense and accords with the probable intentions
of the parties.
For the purposes of developing this submission, 1 remind the Court
again-without going into detail because 1 have covered that field-
of the analysis whicli lias been made in the Preliminary Objections and
which 1 referred to inmy argument this morning, of the provisions of
the Covenant of the League, which, in al1 except a few of its clauses,
contains the expression "Member of the League" or "Member of the
League of Nations", or a sirnilar expression. ln each one of them one
finds that that reference to membership is intended to relate to the
time of eavisaged application of that clause. Where there is an obligation
to contribute to the expenses of the secretariat, surely that applies to
a Member of the Leaguewho is a mernber at the time when the obligation
accrues. Where there is an obligation to exchange information inter alia
about arrnaments and so forth, as between Members of the League,
surely that obligation applies to a State if at the time when there is
to be such an exchange that State is a Member, otherwise it does not
apply to it. When itapplies to a right to be elected to the Conncil, the
same thing goes-the State has to be a Member at the stage of election or
at the stage of taking session on the Council if elected, othenvise this
clause does not apply. And so one can go through with eachone of them ;
that is every time the interpretation which inakes sense and which
accords with the probable intentions of the parties, apart frorn being,
in each instance, also the natural construction of the language in the
context.
And likewise where we find in the Mandate instruments themselves
either a use of the expression "another Member of the League of Nations"
or we find a clause which appears to be intended for the benefit of
another Member of the League of Nations, one can find as a matter of
probable intent and as a matter of natural construction the same idea ARGUMENT OF MR. DE VILLIERS 163
that membership must be there as a qualification at the time of the
envisaged application of a particular clause.
Take the open-door arrangement in the A and the B Mandates for
the benefit of other Menïbers of the League andtheir nationals. Surely
that benefit is to apply vrhilea State is a Member of the League and not
at 'any other time. And. therefore, again, in those instances of inter-
pretation in accordance .with the idea of documents inpari materia,one
finds that the natural construction is confirmed.
lndeed asa result of the submission~1made to the Court this morning,
based on this same anaiysis, one comes to the conclusion that the only
States for whom substanl.ive rights wereintended vis-ù-visthe Mandatory
under the Mandate Agreement were Members of the League, and that
those substantive right:; would apply only for so long as they were
Members of the League. Now surely if that were so, then a compro-
rnissory clause aimed at the enforcernent of substantive rights by the
other parties to the contract could only make sense if it too is lirnited
for the duration of the other party's membership of the League. Other-
wise we would have thi:; strange and anomalous position of a Member
of the League having no substantive rights under the Mandate Agree-
ment but still having the facility at its disposa1 of invoking a com-
promissory clause. The question might be asked then: What for, if
there is no substantive right which can be enforced?
We deal specifically iiithe Preliminary Objections, at page 365 (I),
paragraph 6 of the Fo~irth Chapter, with the anomalies that would
ffow from a result whei-eby an ex-Member of the League could still
implead the Mandatory under Clause 7. We would have the position
that the State would ncilonger be a Member of the League; it could
no longer raise any questions about the Mandatory administration
in the League Council, ia the organs of the League; it could no longer
ask the League to take z.ction about it; but it could still take the Man-
datory to court or force the Mandatory to negotiate with it to avoid
being taken to Court. 'This position would be the more anomalous,
if the rights andinterest!; which could be taken to court under this com-
promissory clause by Meinbers of the League should include the interests
of the inhabitants of the i:erritory-even in caseswhere the other Member
of the League may have no direct material interest ofits own or indirectly
through its subjects in the subject-matter of the particular dispute.
We contend for the pui-poseç of our third objection that that inter-
pretation is not to be given to Article 7, that the only typesof diçputes
in which the other Stati:-theh coother Member of the Leaguewouldthose
have a material interest either for itself as a State or for its subjects
or nationals, and, therefore, the type of case which concerned solely
the interests of the inhabitants of a particular territory, that type of
case was not intended to be covered by Article 7 at all. But for the
purposes of the first an.3 the second Objections we assume that the
position could be either lvay as far as that waç concerned. If we should
at this stage, in conflict with our submission for the purposes of the
third Objection, assume that the wider interpretation be given to Ar-
ticle 7 on that particular point so that another Member of the League
could take the Mandat01.yto court even on a matter which concerned
the inhabitants' interests alone, that position would become even more
anomalous when it is ex-tended to ex-Members of the League, Because164 SOUTH WEST AFHICA
then we could have this position : that a State iaMember of the League
for some tirne and is either expelled or resigns from the League; the
Mandatory continues to administer the territory in .accordance with
policies discussed in the Permanent Mandates Commission and approved
of-unanimausly approved of-by the Council,, but that policy iç not
in accordance with the wishes, or in accordance with the views or desires,
of this ex-Member of the League. Under a construction whereby that
ex-league Member would still have the cornpetence to invoke Article 7,
he could then take the Mandatory to court on a matter which complies
entirely with the views of the supervisory organ-the Council-but still
the Mandatory would have to account to this ex-League Rlember,
negotiate with him and be subject to compulsory jurisdiction of a court
if the negotiations should lead to nothing. That would clearly be a
completely anomalous result.
Similar considerations of a practical nature apply-and one could
easily think of examples-to other instances where the expression
"Member of the League" is employed, for instance in other Mandates
with regard to the open-door provision, as 1.have stated before. In al1
these other Mandate instrunients, in al1 the provisions of the Covenant
where-the expression "Member of the League" is used, one finds that
the natural interpretation, and the one that makes sense, is the one that
relates the requirement of membership to the time- of envisaged appli-
cation of the particular provision. There is not a single instance which
we could find in which the expression was used in any other sense, either
in the Covenant, or in any other Mandate instrument. And therefore
we submit that the natural meaning is confirmed by the practical im-
plications bearing on the probable intent of the parties.
Mr. President, in everything that has been written about this question
-and that is a great deal-including what has been written in pleadings
now before the Court, the only meaning alternative to the one which
1 have just advanced to the Court, is that in the separate judgment of
Sir Arnold McNair, to which I referred this morning-what one might
brieflyterm his "descriptive meaning". 1have nowhere, with any other
author ar even in the submissions of the Applicants, found any sug-
gestion as to an alternative meaning. The Applicants contend for a
different resztlt, but that is not by attaching a different meaning to
this phrase, as 1shall endeavour to show later.
Sir Arnold McNair said (if 1may remind the Court) at pages 158-159:
"The expression 'filember of the League of Nations' is descriptive
in my opinion, not conditional, and does not mean 'so long as the
League exists and they are Members of it'."
And itwas on the basis of assigning this meaning to the expression
"another Member of the League of Nations" or "Member of the League
of Xations" that Sir Arnold came to the concIusion both that Article 7
remained in force, and indeed that the Mandate asa whole remained in
force as an agreement. Because it seems quite clear from the reçt of bis
reasoning that had it not been for this conclusion he would have found
that the Mandate ceased to exist in its contractual operation-that is
as a treaty or convention-although remaining in objective existence
in the manner in which he explained.
This may be a convenient stage now for examining, with respect, the ARGUMENT OF MR. DE VILLIERS
165
reasoninginvolved in this "descriptive" meaning suggestion, both for the
purposes of Article 7 and for the purpose of the wholc question whether
the Mandate Agreement remained in force as a treaty or convention.
Now what did the learned judge mean by that expression-"descriptive"
and "not conditional"? Apparently, it seems, with respect, that what he
had in mind was that Article 7 was not intended to prescribe, in its
reference to another Mcmber of the League, a qualification with which
the other party to the dispute is to comply, but, just as the clause
rnight have said "if a dispute should aise between the Mandatory
and States A,B, C,D anci E" (mentioning them by name), or, as the clause
rnight have said "any :.tate mentioned in the annex hereto" (and then
incorporate a list by reference), just as that would be a descriptive
method of stating who the other parties to this arrangement would be,
just so, thiçreference to "another hlernber of the League" could be read
as referring to every Sta.te that was a Member of the League, just as if a
list had been attached with the names of those States :so that the ref-
erence is to the State, and not to the State in a capacityas a Mernber
of .an international organization. That appears to be the idea under-
lying this suggestion-the idea then that led to the conclusion that
even after disso~ution ol'the League, and even after loss of rnembership
of the League, the'States that had been Members could retain their.
rights under the Mandate-their contractual rights vis-à-visthe Man-
datory generaIly, and, iri particular, their cornpetence to invokeArti7.e
'Noxv,Rlr. President, it is exactly for the purpose of that type of.
reasoning that 1 mentioiied earlier, that calling a meaning "descriptive"
does not really help, uilless it is brought in relation to a point, or a
period, of time. Look at the problem with reference to a "Member
of the League". Ifthe meaning waç intended to be descriptive,in the
sense whick 1 have endeavoured to explain, does that description apply
to Members at the time vhen the Mandate Agreements were entered into,
or does it appiy to any States that at any time became Members there-
after-or would becomi: Members thereafter-or would it apply only
to States that rernained Members until the Ideaguets dissolution? What
exactly was intended to be referred to in this description, because the
three alternatives that 1 have now stated would have involved three
alternative lists, if they are seen in accordance with the concept of, Say,
an annexure to the Mandate agreement, something that is incorporated
by reference. There w~~uldbe three alternative lists of States, ac-
cording to those, three alternative possibilities. There is nothing in
Article 7 itself-or indeed in the Mandate Agreement as a whole, or
anywhere in the Covmant or associated documents-which could
throw any light, as a rnatter of choice, on any of those three possibilities
-as to which of those tlnree one would have to choose for purposes of a
"descriptive meaning" iaterpretation.
Let us examine the inlplications of those three from a practical point
of view. Let us take, first, the possibility of those States that were
Members atthe time when the Mandate Agreement was entered into-
that that was the list of States intended to be referred tOn that basis,
Mr. President, the interpretation would exclude States who Iater
became Members of tht: Leagué. They would then never acquire the
cornpetence to invoke Airticle7 and that, in itself, seems a most unlikely
contemplation or intention for the parties. tothis agreement. Sec-
ondly, the implication would be that a State which resigns from the166 SOUTH WEST AFRICA
League, or is expelled from the League, during its lifetime, could
stiii, even after that event, have the competence to invoke Article 7,
which would again be a rnost unlikely contemplation.
Let us take the second possibility, that the intention was to refer
to States that might, at any time be, or become, Members of the League.
There we would not have the first of the difficdties which 1 mentioned
in regard to the first alternative, but we would still have the second
one-we would still have this difficulty that States that ceased to be
Members of the League even during its lifetime, by reason of resignation
or expulsion, would retain competence to invoke Article 7, and that
does seern a most unhkely contemplation.
The third alternative would be the point of time of dissolution of
the League. TheStates intended to be referred to in Article 7 would then
be States who would be Members of the League at the tirneof dissolution
of the League. Now, Mr. President, inthe first place, the difficulty with
this suggestion is that it would seek to distinguiçh between States that
lost membership of the League before dissolution and States that lost
membership at dissolution and because of the dissolution. That is a
distinction for which Article 7, or any other provision in the Mandate
(or anywhere else), makes no provision whatever. Thereisnot even any
clue which could lead one to a conclusion that there was an intention to
draw a distinction of that kind, as a matter of designation or meaning
of this phrase "another Member of the League". The second difficulty
about this suggestion-relating the description to the time of dissolution
of the League-would be that that would attribute to the parties to the
Mandate Agreements in 1920 a contemplation of what would happen at
some future date when the League might be dissolved, something which
does not appear to have been foreseen asa practical eventuality at that
stage. It could have been foreseen, of course, asa theoretical possibility,
as something that might happen, but it could not yet at that stage have
been foreseen as a practical eventin the sense that there could have been
a contemplation on the part of the parties as to what the circumstances
then would be, and what the implications would be of the situation.
So that itseems most unlikely thatthe parties would, at the inception of
their agreement relative to an organization which was intended to be a
permanent or indefinite one, that they would now begin to make definite
arrangements-by contemplation or othemise-for that event of dis-
solution of that organization, and for what is to happen insuch an event.
More specifically, Mr. President, it u70uldreally mean that the parties
here provided, in Article 7, for referenceof disputes as therein described
to a certain Court-the Permanent Court of International Justice-
for its existence and its functioning upon the existence of the League
of Nations-because of the manner in which the Court functioned, in
which it was financed, composed, and so forth. Therefore, the normal
contemplation would be that, if the League shouId fa11away, the Court
would fa11away;and it seems most unlikely that the parties would have
intended to make a provision whereby competence to invoke thisclause-
to take a matter to that particular Court-should be kept alive after
the dissolution of the Leape, unless the parties had in mind already
somemethod whereby the Court would be kept in existence and function-
ing despite dissolution of the League, or whereby there would be some
other organization that would keep alive a Court and that could provide ARGUMENT OF MR. DE VILLIERS
1~7
Members who could take a matter to the Court. Sureiy it becomes
completely unrealistic O attribute ideas of that kind to the founders
of the Mandate system.
Therefore, Mr. President, there is, in my submiççion, no foundation
whatsoever, with the ,greatest respect, for this "descriptive meaning"
suggestion. It leads to a11these difficulties and to al1these anomalies;
and when one has regard further to the fact that, as a matter of assign-
ing a meaning to language, it muçt at least be classified as a somewhat
unnatural and strained meaning, then sureIy it cannot compete, in any
way, with the natural construction, the natural meaning which 1
suggested to the Court, which can be tested in al1 its practicai impli-
cations, and which withstands the test of making very good and sound
sense, in accordance wjth the probable intent of the parties.
Mr. President, 1 havc: said that SirArnold McNair was the only one
who expressed this view as to an alternative meaning to be assigned
to the expression "another Member of the League of Nations". Possibly
Judge Read's separate opinion is to be read as irnplying agreement
with Sir Arnold McNaii. on this point, but it does not Say so anywhere
expressly. The result, of course, of that opinion was also to keep alive
on the part of States tliat were no longer members of the Leape after
dissolution, the c0mpeti:nce to invoke Article7,and also to regard them
asstill having substantive rights under the Mandate contract with the
Mandatory. And it may well be that for those reasons Judge Read's
Opinion is to be read as being along the same lineof reasoning as that
of Sir Arnold McNair, implicitly. If so, the same argument which 1
have now addresçed to the Court applies also to the case of Judge Read's
opinion on this particuliir point.
In our Preliminary Objections at pages 370 (1) to 372 we dealt fully
with the reasons which we respectfdy advance why the interpretation
of Sir Arnold McNair could not be accepted as legally correct. We dealt
with the matter as one of principle, one of analysis, and we supported
our submisçions with ~eference to scholarly authority. Despite that
fact, the Applicants norvhere in the written pleadings before the Court
attempt to answer our argument in that regard, or to offer any argument
in support of the "descriptive meaning" interpretation, though they cite
that interpretation as i~matter of a conclusion arrived at by Judge
McNair. They cite in thtir Memorials at page go (1) and in their Obser-
vations at page 439 (1), an extract from Judge McNair's opinion which
contains the portion in question. But they offer no argument in support
of the interpretation. l'heir own arguments which they offer on this
question of Article 7 i~nplicity reject the "descriptive" meaning inter-
pretation and proceed cm a basis in conflict withit.Indeed, Mr. Presi-
dent, the Applicants r~owhere dispute our analysis of the meaning,
and 1 stress the wzeaning of the expression "another Mernber of the
League of Nations" in Article 7. On the contrary, it seems implicit in
the manner in which th,: Applicants seek to answer us that they accept
that meaning as being 3correct one. 1 have pointed out already that
which had withdrawn theoïbhad been expelled from the League during itse
lifetime would have loçt the right ithad formerly possessed as a League
Member. Ttseems that they intended that statement to apply also to
the right to invoke jurisdiction in terms of Article 7,because that is
the point with which they are dealing at that particular page-page 448I68 SOUTH WEST AFRICA
(1).They are dealing in this chapterwith the question of the competence
to invoke Article 7, and after making the statement to which 1 have
just referred, they go on to conclude that portion with reference to
our contentions and then to state their conclusion: "Applicantç' legal
conclusion-that they are competent to invoke Article 7 is supported
bythe authority ..."and so forth. Sothat is the point with which theyare
dealing. And they appear, therefore, to accept at that particular stage
that during the lifetime of the League, a State which had ceased to be
a Member of the League would no longer be "another Member of the
League" within the meaning of Article 7.Therefore, it seems, Mr. Presi-
dent, that they accept as a matter oflinguistic meaning in the context this
interpretation which we put upon that expression, but they contend
for a differenreszllfrom the one at which we arrive, for special reasons.
Their submissionsin that regard do not rest on giving a differentmeaning
to Article 7. On the contrary, if we look at the nature of those sub-
missions, not only at theway in which they areworded, but also at their
substance as legal propositions, they appear to proceed from the basis
of an implicit acceptance of the construction which we put on "another
Member of the League" asa rnatter of meaning in the context. For they
Saythat for reasons other than meaning, the expression "another Member
of the League" isnow to beregarded as referring to "former Members of
the League as weIl as to Members of the United Nations". For these last
words 1quote from the Mernorials at page go (1)-for the words "former
Members of the League as well as to Members of the United Nations".
They Say in the first paragraph at page go:
"It is submitted that the phrase 'another Member of the League
of Nations' as used in Article7 of the Mandate, should be construed
asreferring to former Members of the League, as well as to Mernbers
of the United Nations."
Now surely, they cannot make that subrnission asa matter of assigning
a rneaning to "another Member of the League of NationsW.Theygo on
and they state in their Observations at page 446 (1):
"Even if the principle ofsuccession as set forth above were not
accepted by the Court in the instant cases, Applicants are never-
theless competent to invoke Article 7 inasmuch as they were Mem-
bers of the League at the time of the League's dissolution."
And after referringthen to the "principle of carry-over", theystate at the
bottom of the page:
"Hence, States, such as Ethiopia and Liberia, which were
remain within the description of 'another Member of the League'ion,
for purposes of the Mandate." (Observations,p. 446 (1).)
Again, therefore, no suggestion that that expression still app!ies
today as a matter of meaning, but that States to which the expression
applied ai the date of dissolution still would have the competence to
invoke the Article.And finally,they abo state with reference to their
succession contention, at page 443 (I), that (1 am referring to the first ARGUMENT OF MR. DE VILLIERS 169
paragraph juçt before the one headed, Membership in the United
Nations, the last sentence of that paragraph) :
"They [the Applicants] fall within the descriptive specification
of 'another Member of the League of Nations' either as current :
Members of the Uriited Nations or aç Members of the League of
Nations at the time of its diçsolution."
Current Members of the United Nations could never as a matter of
meaning be the same a; "another Member of the Leagueof Nations".
Indeed, Mr. President. if one Iooks now at what these two alternative
contentions are-1 Say alternative; the Applicants do not advance them
as alternative, but they Say they rely on one or the other, or both. In
essence they are, in my submission, alternatives, but 1 will deal with
that point later. Let us just look for the moment at what these two
contentions involve: succession by the United Nations to the League
supervisory functions resulting in a succession also by United Nations
Members to the competace of League Members to invoke Article 7-
that is their first line of argument. The second one is a carry-over of
the League's responsibilities regarding Mandates, resulting inter alia,in
the keeping alive on the part of States tllat were Members of the League
at the time of its dissolution of the competence to invoke Article 7.
Surely neither of these v,ould be necessary if the Applicants could assign
to the expression "anot1::erMember of the League ofNations" a meaning
wfiich would keep on applying to them after dissolution of the League.
They would nui need :t succession from one organization to another
in order to bring them mithin the competence provided for by Article 7;
and they would not require this conception of a "carry-over" of
something, which had bt:longed to the League, to States that were Mem-
bers of the League at the time of its dissolution,ifthey could by a simple
expedient of assigning an alternative meaning to the expression-sirnilar
to wl-tatSirArnold McNairdid--corne to a conclusion thatthat expression
in its meaning as construed still applies to them. What they are really
saying in effect is that -~hen regard is had to the meaning of that ex-
pression in the clause, the natural consequence would be that upon ~OSS
of League membership the competence provided for would also be lost,
.but that there are two special reasons why at the dissolution of the
League that did not happen, why in spite of loss of the prescribed
qualification, the compatence to invoke the clause \vas nevertheless
retained by States in the position of the Applicants. That is the effect
of the argument which they are advancing to the Court. And that is
the issue which has to be further considered, our submission being that
as a result of this natural meaning of the expression "another Mernber
of the League of Nation!;", the consequence of dissolution of the League .
is to end al1League meni9ershipç; and therefore to end for al1those States
the competence to invoke Article 7, That submission rnust be sound,
unless there is some special reason, something of the kind advaeced
by the Applicants, why, in spite of the Iossofthe qualificationprescnbed
by Article 7, the compeience could still be regarded as being alive.
[Public ht.aring oj g October1962,mornil~g]
. Mr. President, during yesterday's argument 1 concluded the develop-
ment of Our submission!; regarding the meaning to be assigned to Ar-=?O SOUTH WEST AFRICA
ticle 7 of the Mandate, p~ticularly as regards the expression "another
Member of the League of Nations", our contention being that thenatural
ordinary meaning in the context, confirmed by the considerations
which 1 dealt with, is to the effect that a State that would wish to
invoke Article 7 would have to be a Member of the League at the time
of envisaged application of the clause, that is at the time of the arising
of the dispute which is sought to be referred to the Court for adjudication.
1 dealt with the consequence which that had in the lifetime of the
League, namely that if a Member of the League should lose membership
then it would also lose the competence to invoke Article 7. 1 pointed
out that as far as tliese two propositions are concerned, whick I have
just stated now by way of repetition, there does not appear to be a
dispute betwreen Our attitude andthat of the Applicants, but that the
dispute cornes in at the next stage. We Say the further logical con-
sequence of that meaning of Article 7 is that on dissolution of the
League and upon loss of al1 League rnemberships there ceased to be
any States with the necessary competence to invoke Article 7, with the
result that Article 7 practically became incapable of performance and
inoperative. That consequence, we submit, must necessarily follow from
the meaning of Article 7,unless there was some special reason to prevent
it, unless therewas some special cause or ground which could have the
effect that States could either retain or acquire the competence to
invoke Article 7,despite the fact that they did not have the qualification
or no langer had the qualification prescribedtherein, so that this special
ground for still being able to invoke the jurisdiction of the Court relative
to matters concerning the Mandate would then have to be based on
something other than membership of the League. It would have to be
some special ground providing for such competence despite absence of
the qualification of rnembership of the League. And the Applicants'
argument in this regard is in effect an attempt to invoke such special
reasons of tlie kind that1 have mentioned. In order to achieve its effect
of resulting in jurisdiction of the Court at the instance ofsuch parties,
such a special ground or reason would have to be based on the consent
of the Mandatory because that is the fundamental requisite for jurisdic-
tion of this Court. That consent, because of the meaning of the text which
1 have exhaustively dealt with, is not provided for in the text expressly.
It would therefore have to be found either by way of an implication
to be read into the text, or it would have to be found outside the text
altogether. And, as I have said, it would have to be something which
involves the consent of the Mandatory to the effect that such other
State, not a Member of the League, would have the competence to invoke
Article 7. It seems cornmon cause, Mr. President, that such consent
outside of the text of Article7 was never exflresslygiven, and the only
question that could then remain is whether it was ever tacitlygiven,
either as 1 have said, as an implication in Article 7 itself, or on any
other occasion. Were again, one is to have reference to the two main
occasions on which it would be likeiy, on which one could expect such
consent to have been given, if at all. The first would be at the time of
entering into the Mandate Agreement-something to be read as being
part and parce1 of the arrangement or the contract then made. Or the
alternative would be at the transition stage during the years 1945 and
1946 when the United Nations were founded and when the League was
dissolved. ARGUMENT OF MR. DE VILLIERS I7I
The Applicants, on the two grounds which they invoke-special
grounds-attempt to atiribute to themselves the competence to invoke
Article7.In the first one of these, succession, they attemptto found that,
upon analysis, on an im1)lication to be read into Article 7 itself, that is,
something said to be tacitly agreed upon at the time when the Mandate
Agreement was entered into. They state their contention in this forrn
at page 446 (1) of the Observations:
"Put in the fom of the analysis of Judge Lauterpacht stated
above, a holding by the Court that United Nations Members have
succeeded to the functions of League Mernbers vis-à-visthe Man-
date would be 'no niore than an example of legitimate application
of the principle ofefectiveness to basicinternationalinstmments'."
Their contention theri seems to be basically that United Kations
Members have succeedeti to the functions of League Members vis-ri-vis
the Mandate. That appcars to be the succession contention relative to
Article 7. The line of reasoning in support of that contention is to be
found over the pages 440 (1) and following, as far as pa446.As 1 under-
standthe line ofreasoninl;,Mr. President, it amountsto this, that this con-
tention of succession regnrding Article 7 is really a corollary to the con-
tention of succession regarding Article 6,something which followed as
a consequence from the :illeged succession of the United Nations to the
supervisory functions of the League regarding Mandates. But then there
are certain additional links in the chain which have to be filled in for
purposes of the contention of succesçion regarding Article 7. They
are separately advanced by the Applicants, and 1 shall deal with them
in due course. The steps in the reasoning appear to be in the first place
that the legal interests of Mernbers of the League in the performance
of the Mandate encompassed a good deal more than their own rnaterial
interests as States and .the interests of their subjects or nationals; it
encompassed also the due performance by the Mandatory of the sacred
trust of civilization, and that the competence of Members of the League
therefore to invoke Article 7 was particularly directed towards this
purpose, towards seeing, in the interest of the inhabitants, that the
sacred trust of civilizatirin was duly complied with. We find that basic
proposition stated inthe Observations at various places, first at pag441
(1), where there is a refer.ence to a passage in our Preliminary Objections
where we dealt with the legal position on the basis of the League being
a legalpersona. lie submitted there that on that basis the legal interests
of Members of the League as distinct from the League itself would have
been confined to matter:; which operated for their benefit and for the
benefit of their nationab;, Now the Applicants answer that by saying:
"Respondent und1:rstandç the 'benefit of the Rlernbers' to mean
material benefits in ierms of trade and commerceor specific benefits
to their nationals isuch terms as rights of entry, freedom of action
for missionaries, etc. This iç far too narrow and technical a con-
ception of 'benefit' or 'interest'. If these had been indeed the sole
interests of theMernberç of the League, one could understand and
possibly even admit a contention that such 'legal interests'
lapsed with the termination of the Lesgue's existence. But the
'interests' of the Members of the League in the Mandate, propedy
understood, encompassed the achievement of the 'material and172 SOUTH WEST AFRICA
'
moral well-being and the social progress of the inhabitants' of the
Mandated Territory as a 'sacred trust of civilization'," (Observatio~s,
. . P. 441 . . . .
'There is then further comment along the same lines. ,I have pointed,
out before fhat the Applicants apparentljr missed the point heie, that~
we were'there dealing with the matter purely on the basis of the League.
being viewed as a legal persona, and also that for purposes of Our First
and Second Objections, we make the same assumption as they clo, that
Article 7 of the .Mandatehad the wide effect of enabling Members of the
League to invoke the jurisdiction of the Court in matters not only
afiecting their own matenal interests, but also in cases affecting the
interests of the inhabitants alone. We make assumptions both ways, we
argue the matter on the basis of both the narrower and the wider inter-
pretation of Article 7 on that point for the purposes of our First and
Second Objections. Of course, the point itself is the subject of our Third
Objection where we deal exhaustiveiy with our contention for the
purposes of that objection, that tlie narrower of those meanings is to
be assigned to Article 7. In any event, this is the basic proposition
made by the Applicants for the purposes of their contention of succession
regarding Article 7. They start off with the proposition that the legal
interests of the Members of the League had this wide purpose to which
I have referred.
The first stage in their reasoning then is that the purpose of Ar-
ticle 7 was to secure judicial supervision of Mandatory administration
also, and particularly, for the purpose of seeing that there was due
performance of the sacred trust of civilization.
The second stage in the Applicants' reasoning is that such judicial
supervision, like administrative supervision in pursuance of Article 6,
is to be regarded as a necessary, an indispensable, an inseverable element
of the Mandate institution which must necessarily survive if any
portion of the Mandate is held to survive. That we find stated very
pertinently atseveral places in the Observations. At page 441 (I), we find
in the last paragraph but one:
"In this true sense, the legizl interests and responsibilities of
Applicants could not and did not lapse so long as the Mandate
exists and so long as Respondent occupies or administers the
affairs of the Mandated Territory. The continuance of their legal
interests and responsibilities as Members necessarilyimports their
caplacity (and duty) to invoke the powers of this Court under Ar-
ticle7 of the Mandate."
Necessarily imports apower and capacity. At pages 441-44 (I), we find:
"Respondent's Second Objection, in addition to ignoring the
. foregoing principles, would undermine the jural relationçhip en-
visaged by the Mandates System as linking the four essential
elernents of that system [I stress, Mr. President, essential, the four
essential elements of that system] : the Mandatory, the League of
Nations, the Rfembers of the League, and the Permanent Court of
International Justice.
Irrespective of the theory upon which rests the inescapable and
judicially settled conclusion that the Mandate did not die with
the League's dissolirtion, these four sides of the quadrilateral jural ARGUMENT OF MR. DE VILLIERS
173
system must survile, if any one of them is held to survive as part
. ' of the Mandate." (Observations,pp. 441-44 (I).)
So there, definitely, thi:re is a submission that if any portion of the
Mandate survives, then ,311 four portions must survive, including judicial
supervision. And, at th€ bottom of pages 442-443, we find this passage:
"The Mandate is a creature ol the organized international com-
munity, as well as the subject of a legal interest of such community
and its Members. Its existence today rests upon the continued
, vitality of the authority conferred upon Kespondent by the organ-
ized international c.3mmunity and by the continued vitality of the
rights of such cornniunity and its Members to ensure that the Man-
date is properly adrninistered."
Just to go back, for the purpose of analysis; the existence of the Mandate
rests inter alia upon the continued vitality of the rights of the commu-
nityandits Members to ensure proper administration of the Mandate.
So that again the suggection is that there can be no existence of a Man-
date unless there is a continued vitality ofa right on the part of States
to ensure compliance with the Mandate.
And, finally, at page 443 (1), we find:
"Although they have been succeeded or replaced by other organs,
the Court in its 1950Advisory Opinion ruled that the Mandate
survived, and consitquently, that international supervision of the
Respondent, as hlandatory, endures."
By that "international supervision" in the context, read with the pre-
viousportion ofthe page, they refer both to "administrative" supervision
and to the so-called "judicial" supervision.
So again, the suggestion here also-the second step in the reasoning
in this succession contention-is that this judicial supervision was a
necessary, indispensable, inseverable element.
The third step is what has already appeared from the passages 1
have read, and that is i:hat the competence to invoke the jurisdiction
of the Court for the purposes of such judicial supervision was conferred
upon Mernbers of the League, not as &Iembersof the League, but in their
capacity as membcrs for the time being of the "organized international
community", the further consequence of this submission tl-ienbeing that
competence was intended to be available to al1States of the capacity of
members, for the time being, of the "organized international commu-
nity"-just as the conterition, for purposes of Articl6, was that admina-
istrative supervision was vested in the League as the appropriate inter-
national institution atthe tirne of the "organized international commu-
nity" and was intended i:obe avai1abIe to any later institution of that
,capacity as long asthe Mandate existed. 1 need hardly read the passages
on this particular point.The point emerged to some extent from the
passages 1 have read. Icould, in addition, refer, at page 441 (1) of the
Observations, to the thi1.d paragraph from the end of the page:
"The 'legal intere.;ts' of the Members embraced the fulfilment of
; their duties as members of the organized international community
and were not confint:d to tli~eirpossibilities pf material advantage in
an irnmediate and narrow sense. The Mandate agreement, like
Article 22 of the Covenant of the League upon which it was based,I74 SOUTH WEST AFRICA
conceived ofthe 'interests' ofthe Membersin tems ofthe fundamen-
ta1interests of the international community in the achievement and
maintenance ofinternational peace and security andthe promotion
of human rightç and fundamental freedoms."
The passage at the bottom of page 432 (1), running on into page 443,
which 1 have read, ispertinent on tliis point also. Then at page 443 we
fmd that the text goes on:
"The only question is, which representative of the organized
international community does one look to, the League of Nations
or the United Nations, the organ in existence when the Mandate
was conferred or the organ now in existence?"
I proceed to the next section on that page, headed "Membership in
the United Nations", and there we find that the passage begins with;
"Administrative and judicial supervision of the Mandatory by the
international community, as has been noted by Applicants, is a key
fe+ure of the Mandates System. It represents the 'securities for the
performance of this trust' required under Article 22...Necessarily,
the frarners of the Mandates System entrusted such supervision to
the appropriate international institutions created at the time the
System itself was devised."-(0bservatio~ts, p. 442(I).)
"administrative" to the League and "judicial" to the Permanent Court,
and Members of the League then, for that purpose, got the necessary
competence to invoke the jurisdiction of the Court-that is the line of the
argument being put there.
And finally, at page 446 (1)) we find in that paragraph after the
quotation from Judge Lauterpacht :
"Hence, the authors of the Covenant endowed the members of the
League of Nations, the Organ then representing the international
community ofcivilized nations,with the right to institute the judicial
proceedings."
So that then is thethird step in the-reasoning in supportofthe succession
contention relative to Article 7,
The fourth step follows upon the third, and that is, that the United
Nations has replaced the League of Nations for purposes of the Mandate,
the United Nations now being the "appropriate internationalinstitution"
of the "organized international community" and, as such, vested with
the administrative supervisory power in-succession to the League, and
the Members of the United Nations, consequently, being vested with the
competence to invoke the judicial supervision insuccession to Members
of the League. And that we find stated at these various pages to whlch I
have referred. At page 442 (1), where there is that reference to "the four
sides of the quadrilateral jura1system", we find there is a reference to the
replacement of the various organs by others, and in the case of (b) we see
that :
"TheLeague of Nations hasbeen replaced by the Unite d ations";
and
"(c) Members of the League, including Applicants, are today
Members of the United Nations." ARGlJMENT OF MR. DE VILLIERS I75
At page 443 (X) after posing the question "which [organ] ofthe organized
international community does one look to? ",Applicantç proceed :
"The majority Opinion applied the doctrine of succession and
looked to the United Nations."
There is a reference to the minority Opinion and then:
"Applicants have urged confirmation of the hlajority Opinion ...
since such view appears more responsive to the purposes of the
Mandate." (Obseniatr'onsp,. 443 (I).)
And then at page 445we find this stated, in the second paragraph:
"The Court, in detrirmining that the International Court of Justice
has replaced the Permanent Court and that the United Nations has
replaced the League c.fNations for purposes of the Mandate, similarly
applied the principle of succession, explicit in one case and implicit
in the other, in order to give ef£ectto the purposes of the Mandate.
The Court recognized that the failure of the League of Nations
and the Permanent International Court, as such, to endure in their
original forms, is irr~levant to the fundamental principle that Kes-
pondent asMandatory remains responsible to the organized inter-
national community for the discharge of the 'sacred trust of civil-
ization'."
And finally, at page 446 towards the end of the reasoning:
"Even though 'civilization' in the form of an organized internatio-
nalcommunity isno ll~ngerernbodied in the League, the same powers,
objectives and principles are now represented by the United Nations.
United Nations Memberç have the same essential attributes as did
Members of the League, namely, membership in the organized
international comrnunity and, thereby, parties to a Charter, or
governing territories, including trust territories and mandates.lf-
Put in the form of theanalysis of Judge Lauterpacht stated above,
a holding by the Cour that United Nations Members have succeeded
to the functionç of League Members vis-d-vis the Mandate wodd be
'no more than an example of legitimate application of the principle
of effectiveness tobasic international instruments'."
That, then, is the line of reasoning-the four steps: judicial supervision;
intended to be an indispensable feature of the Mandates system; that
supervision was intended to be vested in League Members in their
capacityas members of th,: "organized international cornmunity" ; and it
therefore now vests in the Members of the United Nations asmembers
of that "organized international community".
of the line ofreasoning.which,I.have just examined; first of dl,-as to the
basic premise that Article 7 was intended to provide for judicial super-
vision, and for that pirrpoijeto relate to the interests of the inhabitants.
That, as I have indicated already, isattacked in OurThird Objection, and
if that attack should be soiind, then that would really dispose also of the
whole premise for this Iini:of reasoning of the Applicants for purposes
of the First and Second Objections. The Applicants virtually concede
that in the passage to whii:h 1 have referred, where they Say that if the f76 SOUTH WEST AFRICA
narrower view is taken of the legal interests of Members of the League,
one couId understand and possibly even admit a contention that such'
legal interests lapsed with the termination of the League's existence.
That isat page 443 (1) of the Observations. But wemeet them aIsoon the
common ground of the assumption that the wider interpretation is, for
this purpose, to be given to Article 7. We do that for the purposes of the
First and Second Objections, and for record purposes 1 might state that
that is particularly clearly stated in the Preliminary Objections at pages
363-364 (1).
The next point I want to emphasize in regard to this line of reasoning iç
that it seems evident, both by the way in which it is presented by the
Applicants and from its very substance, that the contention ofsuccession
relative to Article 7 is dependent upon the contention of succession
relative to Article 6. It must in the nature of things be so. The contention
about Article 7 appears to be that the United Nations or ifs General
Asse~nblyhas now become the appropriate organ of the "organized inter-
national community" for purposes of supervision-administrative super-
vision-of Mandatory administration; that happened by virtue of a
succession for purposes of Article 6; and thus it is because of the United
Nations now being that appropriate organ of the "organized international
community" that Members of the United Nations are to be regarded as
Thus we find also that the Applicants state, in a passage which 1 haveon.
already read in the Observations at page qzg (1), that:
"The interconnection, then, between Articles 6 and 7, is this:
according to the Majority view of Article 6, Applicants have stand-
ing to invoke Article 7 by virtue of membership in the United
Nations. .."
1 stress, Mr. President "according to the Majority view oJ Article 6,
Applicants have standing to invoke Article 7 by virtue of membership
in the United Nations", the second flowing from the first. They state
at page q45(1), in a passage which I have also read, that "the United Na-
tions has replaced the League of Nations for purposes of the Mandate",
and there is tliat long passage at page 446which 1have read, where they
indicate that Members of the United Nations have the same essential
attributes as did hlembers of the League. Nowwhat, on analysis, are those
essential attributes? We look at the passage again, at page 446; they are
said to be:
"... membership in the organized international community and,
thereby, parties to a Charter, or Covenant, the purposes of which
include supervision over non-self-goveming territories, including
trust territories and mandates".
And why "including mandates", Mr. President? Because in that same
passage there is suggested that the same powers embodied in the League
powers relative to Mandates could betionsaidnto be embodicdin theUnited
Nations unless it were by someprocess of succession relative to Article 6,'
in the caseof this present Mandate, and similar articles in the case of other.
Mandates.
Therefore, Mr. President, because both in its essence and its manner of
presentation, this contention of succession regarding' Article 7 is'depen-' ARGUMENT .OF MR. DE VILLIERS
=77
dent on that regarding Atticle 6.Itis thus formy purposes really sufficient
to refer the Court back, .~ith respect, to the fullargument which 1 have
addressed to the Court zoncerning Article 6, whereby 1 dernonstrated
with submission that tlie contention of succession in that regard is
completely unfounded. l'hat being so, al1premise is removed for a con-
tention of succession reprding Article 7. 1 will, however, proceed to
deal with certain of the crucial aspects of the argument pertaining to
succession as regards Article 7.But this is, with respect, to be viewed as
being additional to the argument regarding succession which 1 have
already addressed to the Court for purposes of Article 6.
First of au, then, for ihat purpose 1 refer again to the suggestion of
inseverability or indispensability of the judical supervision, which is
one of the crucial stagei~ithe reasoning of the Applicants. My submission '
is thatthat proposition is,inregard to Article 7,even more demonstrably
unfounded than in the case of Article 6, where the same suggestion of
inseverability was made. The same suggestion was made regarding
Article7 in the Mernorial:;(p.gr) ; it was there suggested that there could
not bea Mandate withouf this judicial supervision, and we dealt with that
suggestion very fully in oiir Preliminary Objections, at pages373-375(1).
We analyzed it, and we siated our contentions there as to why that sug-
gestion was unsound. But we find that the Applicants, in their Observa-
tions, do not refer at al1 to the arguments which we propound ai those
pages in the PreLiminary Objections; they do not atternpt to meet them;
they merely repeat their assertions of inseverability in different phraseo-
logy frorn that which has already been contained in the Memorials.
Mr. President, Isubmit that, when we look at the basic provisions in
the Charter, in Article 22, and we find there that the authors of the
Charter themselves did ntit findit necessary to provide for judicial super-
vision regarding Mandate administration, then it becomes very difficult
for anybody to assert that this was intended to be a key feature, an
indispensable part of thi: Mandate system. The Court will recall that
there is nothing regarding compulsory jurisdiction, let alone judicial
supervision of the Manda.te, in Article 22 itself; the provision was made,
specifically by agreemen,: between the Council of the League and the
various hlandatories, and for that reason, the historians tell us, we find
that Article 7,the second portion, begins with the words "The Mandatory
agrees that ...". That is th.e significance of that phraseology which is em-
ployed in this instance and not in the others. That is a special voluntary
agreement entered into b-2tween the Mandatories and the Council of the
League, not provided for in Article 22 itselfAnd it becomes difficult to
see how there could then be any suggestion of indispensability. So, for
instance, let us assume tkat during the lifetime of the League,.the exist-
ence of the Permanent Coiirt had for some reason or other come to an end,
so that Article 7 of the Mandate became incapable of performance. CouId'
anybody then haveseriou~ly suggested thatthat meant the endof thewhole
Mandate? 1 submit not. .\nd yet, if this contention as to inseverability
were to be regarded as sc~und,if it is correct to Say that judicial super-
vision in terms of the coinpromissory clause must survive if any one of
the portions of the Mandz.te isheld to survive, then that must have been ,
the consequence, namely that upon the rendering impossible of perform-
ance of the compromissoi~yclause, Say, for instance, because the Court
referred to in it went out of existence, then the whole Mandate system178 SOUTH WEST AFKICA
would fa11to the ground andthe Mandates would all have to be regarded
as terminated.
And then we find this very significant thing. Where it is the Applicants
who stress that one finds in the trusteeship system of the United Nations
principleç analogous to those of the hfandate system of the League, and
where the arrangements as between administering authorities and the
United Nations which correspond to the Mandates are called trusteeship
agreements, then, if there was any conception of indispensability of
judicial supervision in a system of that kind-in a system of supervision
over the government of backward territories, with a view to performance
of a sacred trust of civilization-tliesurely one wouId have expected that
that judicial supervision would have been provided for in each and every
one of these various trusteeship agreements under the United Nations.
What do we find in fact? We find in the case of the present United
States trusteeship of the Pacific Islands formerly held by Japan under
mandate. that in the Japanese Mandate Agreement there was a .
provision corresponding to Our Article 7-1 think it was Article 7,too,
in that Mandate. When the trusteeship agreement was proposed to the
Security Council by the United States in regard to those same islands,
there was no provision for such compulsory jurisdiction, and nobody
commented about it. Nobody raised the point: "But surely this must be
regarded as a key feature of this type of system of trusteeship over
territories and peoples of this kind."
Similarly, Mr. President, when Australia submitted-trusteeship agree-
ments in regard to Nauru and in regard to New Guinea, we find that the
corresponding Mandates in respect of these territories had contained
cornpromissoryclauses, the same as Article7, but these draft trusteeship
agreements did not contain such clauses and they were eventuallyadopted
without anyone raising any point about thiç at all. This was in the General
Assembly. And the omission is the more significant because of the fact
that other trusteeship agreements, submitted in regard to other previous
Mandated territories at about the same time as these, did contain com-
promissory clauses. It becomes the more significant then that nobody
raised the point that: "Here are two cases of submission of trusteeship
agreements and sornething which is to be regardcd as indispensable, as
a key feature of the whole system, as inseverably connected up with it,
but that is omitted from these trusteeship agreements. We deal with
that point in the PreIiminary Objections at page 374 (1), and we deal also
with the point of the omission of judicial supervision from Article 22
itself, but yet we find no reply to that in the Observations of the Appli-
cants.
1submit, Mr. President, that the Applicants fail to distinguish between
the existence and the justiciabili- of international legal relationships. It
is a very cornmon feature, as al1the Members of the Court would know,
of international legal relationships, that they could exist as matters of
rights, duties and obligations between -States-nithout- there--being
justiciability of those legal relationships-special agreement, special
consent to the jurisdiction of an international tribunal being required
for the additional element of justiciability. And the Applicants, in sug-
gesting that there rnust necessarily be juçticiability of legal relationships
pertaining to a Mandate, miss the point completely and their suggestion
is,in my submission, without any foundation. ARGUMENT OF MR, DE VILLIERS 179
1 deal next, Mr. Pre:,ident, with a portion of Applicants' argument
'<ich seeks to equate membership in the League with membership in the
organized international community", and thus to build abridge towards
United Nations membe;:ship as a substitute qualification for invoking
Article7. That argument, in my submission, is a mere device, and it is a
fallacious device. 1 have demonstrated, with submission, the similar
fallacy in the similx argument pertaining to Article 6. Here it is not
difficult to demonstrate the same fallacy. We find that in the express
words of Article7, if we [;ivethem their natural meaning in the context-
indeed, ifwe give them any meaning of which they as words may be
capable-they do not refer, and they are incapable of being read as
referring,to anything other than another Member of the League of
Nations; they do not rcfer as Ianguage to anything else. If they are
therefore to be taken to have the significance contended for by the
Applicants, then, Mr. Pr~sident,it wouId mean that one would have to read
something by implication into Article 7,something which is not there.
Therefore the argument, if it is to be sound at al], must rest on an
implication as to the tacit comrnon intent of the parties, and it must
rest on a proper investigation as to such intent. The words that would
have to be read inby imgilication would have to be something like these-
perhaps somebody can think of a shorter formulation, but even though
shorter the concept wo.lild have to be something of this nature: the
clause would have to re;id-instead of "another Member of the League
of Nations", one wouId jind "another Member of the League of Nations
in its capacity as a menlber of the organized international community
for the time being, and r.ny later rnernber of the organized international
community for the timt:being, whether or not such a State then is,
or ever was, a Member -3fthe League of Nations". That would be the
concept to be read into Article 7 if the contention of the Applicants
were to be sound. Mr. President, indeed that contention, because it
includes and necessarily must include States that never were Members
of the League, that concIilsion is really not only a suggestion of something
additional to the explicii: text of Articl7; it conveys a notion which is
indeed contrary to the te.rt, in opposition toit, because thetext, given its
natural connotation, confines the ambit of potential adversaries in Court
proceedings to League Members; it draws the line there-it provides for
a numerus clazrsus,if1 m;iy put it that way-a closed circle of States who
could potentially take a Mandatory to court; and the line is drawn with
reference to League membership, and League membership alone. Now, if
we are to read into it a.n implication which provides for States other
than League Members to be able to invoke Article 7,that is.a notion
which is really contrary .:;the notion conveyed by the natural meaning
of the text, and the contention then in effect means that the text must
be taken as not giving :in accurate expression of the intentions of the
parties. We have seen in the analysis of the principles of interpretation,
particularly those of act~iality and of natural, ordinary meaning, that in
order to demonstrate a .,?roposition of this kind very special and very
convincing reasons w0u:l.dhave to be established. On analysis, Mr.
President, what reasons ;ire advanced by the Applicants, what do they
attempt to establish by way of special or convincing reasons? I submit,
far from the reasons whj.ch they do advance being either good or con-
vincing, we find that they rest in the first place on the false premise of
inseverability or indispensability of judicial supervision, with which 180 SOUTH WEST AFRICA
1 have dealt ; they involve an artificial and fallacious device of equating
"Member of the League" with "member of the organized international
community", and that again with "Member of the United Nations",
without any enquiry into the intentions of the parties in that regard.
Igave the Court examples when dcaling with this same point relative
to Article 6,examples demonstrating, with submission, that the mere
fact that one can have a label which fits two things, one common label
.for the two, does not mean that when there is a contract which refers
to one, that contract can also be taken as referring to the other. Because
that must always remain a question of intent, and without reference
and enquiry into the intent, one can have two results which are poles
apart: one which obviously is within and one which obviously is outside
the intentio of the parties. I donot have to repeat those examples.
The Applicants do not enquire into intentions; the nearest they corne
to that is to refer to the principle of effectiveness, and that, in the
circumstances, Mr. President, in rny submission cannot assist them.
They cannot invoke that principle in the sense of assisting in a choice .
between alternative meanings of a text because, as 1 have demonstrated,
what they are contending for is not in the text at all, on any reading of
the text.They are.seeking to invoke that principle as a factor of proba-
bility to assist, together with the other evidential material, towards
an implication of tacit intent; although they don't cal1it so, that is the
effect of their argument on analysis. And when we have these other
factors as to the actual contemplation of the authors of the Mandate
system, the indications of actual intent, tiien this general suggestion
regarding effectiveness cannot be of much açsiçtance.When we have the
direct evidence afforded by the fact that there is nothing in Article22
itself concerning compulsory jurisdiction; when we have the contem-
iplation of hlernbers of the United Nations at the time of the trusteeship
agreements to which 1 referred, then it must be difficult to Say that there
was a necessity even for purposes of effectiveness of this so-called judicial
supervision, or that therewas any comrnon intent regarding that element
as being of such importance, even from a point of view of efiectiveness.
When we find, hlr. President, that we have a Mandate institution
which is brought into existenceby contract but which, according to the
Opinions of the Court in 1950, could have operated internationally as
between the Mandatory and al1 States that gave recognition to that
special status of the territory and to theMandatory'çtitleinthat regard-
a circle thereforeof potential interested parties extending beyond the
circle of Members of the League-tlien we find that nevertheleçs, in the
cornpromissory clause, the circle of potential adversaries in court pro-
ceedings is limited to Members of the League. That being so, how could
one then attnbute to the parties to the Mandate Agreement acontem-
plation that there may one day be a new international organization
.which may replace the League after its asyetuncontemplateddissolution,
and that there must now be a tacit agreement iipon the fact that if that
new organization would resemble the League to the extent of possibly
fitting the name of "representative of the organized international com-
munity", then members of that organization must be regarded as being
,included in the consent to jurisdiction contained in Article 7; surely it
is a most far-fetched proposition, totally unrelated to any realistic view
as to the probable intent, the probable contemplation, of the parties
to the Mandate Agreement. 1 cannot imagine how the bystander, to ARGLIMENT OF MR. DE VILLIERS 18I
which we have referred, could possibly have expected any positive ans-
wer, any harmonious an:;wer, from the parties to the Mandates Agree-
ment if he had posed a question of this kind to them. Jurisdiction cm
exist by virtue of consent, actual consent, on the part of the respondent
State. and there is no substitute for it. This suggested application
of the principle of effet:tiveness in this instance would reaily, if ac-
ceded to, result in a sii:uation whereby jurisdicti~n is found to exist
in a case where there is iio satisfactory demonstration of actual consent.
These are my submissions regarding this Iine of contention of the
Applicants.
Mr. President, in the: development of their contentions regarding
succession, the Applican ts make a submission, apparentIy by way of
analogy, regarding ArticI1.e37 of the Statute of the Court, on the question
of succession as between ~Zourts-between the Permanent Court and this
Court-and they appeal, to suggest that whereas that succession was
expressly provided for in Article 37 of the Statute of the Court, and that
that express provision vas relied upon by this Court in its Opinion in
1950, the Court might well have corne to the conclusion that there
was implicit succession vihich would have operated even in the absence
of Article37. That is hovi 1 understand what they suggest at the bottom
of page 443 (1) of the C~bservations.They say :
"The Court held that the refcrcnce in Article 7 of the hlandate
to the Permanent Court of International Justice should be replaced
by reference to the I~~ternationalCourt of Justice. Although stressing
Article37 of the Statute of the Court, which makes specificprovision
for the substitution there is excellent authority that even in the
absence of Article37 the Court might well have ruled thesame way."
That "excellent authority" is said to be two-fold. One is an extract
from the Report of Committee 1 of the San Francisco Conference: the
extract being cited atpage 444 (1) of the Observations; and the other 1san
extract from the separate Opinion of Judges Sir Hersch Lauterpacht,
Wellington Koo and Sir Percy Spender in their joint dissenting Opinion
in the Aerial Incident case. Now, Mr. President, as a matter of fact, the
extract from the Report: of the Committee is also quoted in that very
joint dissenting judgmerLt in the Aerial Incident case, but it is quoted
more fully than by the Applicants. The Applicants quote the second
portion of the passage as;cited in the joint Opinion, and they also omit
a word after the words "in a sensc". On reference to the original, one
finds that the word omi1:tedis "therefore". They indicate that there is
an omission, but I am mrrely stressing that the word omitted is "there-
fore". The word "thereiore" is found in the context to refer back to
what is stated in the previous paragraph, that paragaph being one which
is quoted in the joint Opinion in the Aerial Inciden case. Now I would
like to read that to the 1:ourt. The previous paragraph states:
"The creation of 1:henew Court will not break the chain of con-
tinuity with the pa:;t. Not only will the Statute oi the new Court
be based upon the :Statute of the old Court, but this fact will be
expressly set down in the Charter. In general, the new Court will
have the same organization as the old, andthe provisions conceming
its jurisdiction will follow very closely those in the old Statute ...
To make possible the use of precedents under the old Statute, the182 SOUTH WEST AFRICA
same numbering of the Articles has been followed in the new
Statute." (Aerial Irtcidentcase, p. 159.)
One sees then the significance of the word "therefore" in the next
passage, which is:
"In a sense, therefore, the new Court may be looked upon as the
successor to the old Court which is replaced." (Aerial Iwcident case,
P 159.)
The "therefore" indicates what that sense is, and it becomes perfectly
plain from the previous paragraph that there was no suggestion of any
general succession in law. It was only in the sense of having a Statute
which is based upo~i the old one, having the same organization, having
provisions following very closely those of the old Statute and having the
same numbering of articles; it is in those particular senses that the new
Court may be looked upon as a silccessor of the old Court, but in those
alone, as is emphasized by the vcry final sentence:
"The succession wiil be explicitly contemplated in some of the
provisions of the new Statute, notably in Article 36, paragaph 4
(which subsequently became paragraph 5), and Article 37," (Aerial
Incident case, p.159.)
In other words, what the Committee intimates here is that in these
general,practical,broad respects it will be possible to look upon the new
Court as, in a çense, a successor of the old one, and in addition, there
willin certain other respectsbe express provision for succession in terms of
those express provisions. The Committee quite clearly saw that there was
no question of a general succeçsion in the sense, for instance, that
declarations relating to the jurisdiction of the old Court could, without
new agreement in that regard, be regarded as relating to the new Court,
or that provisions in treaties or conventions in force referring to juris-
diction of the old Court could now be read as referring to jurisdiction of
the new Court. The Cornmittee stressed in its Report the necessity in
that regard of having the express provisions of Article 36, paragraph 5,
and Article 37.Indeed, by the wording of those two Articles, the Court
will recall that the fresh consent given to those Articles by the signatures
to the Charter, that that would bring about fresh consent only as between
Rlembers of the United Nations, and nnly to the extent provided for in the
Articles, and it is for that reasonthat in the Report of the Rapporteur
of the Committee we find the foilo\ving:
"Acceptances of the jurisdiction of the old Court over disputes
arising between parties to the new Statute and other States, or
between other States, should also be covered in some way, and it
seems desirable that negotiations should be initiated with a view
to agreement that such acccptances will apply to the jurisdiction
of the new Court. This rnatter cannot be dealt with in the Charter
or the Statute, but itmay later be possible for the General Assembly
to facilitate such negotiationç."(U.N.C.I.O. Docs., No. 13, at pages
384 to 385 (also cited in the Aerial Incident case at p. ISO).)
It is therefore quite clear what the contemplation ofthis Committee
was. There was no contemplation of an irnplicit succession; on the ARCrUMENT OF MR. DE VILLIERS 1~3
contrary, there are a11thesc proposals for ~naking explicit provision for
succession where succession was desired.
The second authority relied upon is a passage from the joint Opinion
in question in the Aerial Incident case. There too, MT. President, if
that extract is read witli other aspects of the Opinion, it becomes quite
clear that there was no suggestion on the part of the learned Judgcs that
there could be a succession in the absence of express provision therefor.
One finds, for instance, in a passage of the Opinion at page 165, dealing
with the provisions of i\.rticle 36, paragraph5,concerning declarations,
that they said that Cornnittee IV/I was "concerned with the drafting and
adoption of a formula which would provide for [the] continuing validity"
of declarations relating to the Permanent Court. I skip somewhat, and
1 read further at that page:
"It was the atts.chment of the declarations to the new Court
which was considered essential and it was that object which prompt-
ed the adoption of the formula provided in paragraph 5 of Article
36 in order to ensure the continued validity of those declarations."
(Aerial Incident case, p. 165.)
It is a clear indication of the necessity of the express provision in
Article 36, para. 5,in the contemplation of the learned Judges. Further,
at page 168. we find it çtated again that:
"The object of paragraph j[of Article361,cIearly expressed in the
course of the preparatory work as cited, was precisely to prevent
these declarations irom lapsing with finality for al1 piirposes."
And further, at the Sam? page:
"The object of paragraph 5 was to secure succession in the
sphere of the obligatory jurisdiction of the Court."
There is not the least suggestion of a contemplation that the succession
could have been irnplicii, could have taken place in the absence of the
express provision. The sxme contemplation regarding Article 37 is shown
in the passage which we read at page 181 of the Opinion, which is as
follows :
"In particular, it is useful to draw attention to the siiccessive
drafts of Article37, which was intended to serve a general purpose
similar to that und-rlying paragraph 5 of Article 36." (Aerz'alIPZ-
cidentcase, p. 181.)
And then, at page 182 of the Opinion, we find this:
"In relation to lioth provisions [Articles 36 (5) and 371 the re-
quirement of conse~it is supplied by the State concemed accepting
membership of the United Nations-an event which makes it a
party to the Statutt:-and by itsforma1 undertaking to observe the
obligations of the Charter, of which the Statute is an integral part."
(Aerial Incident case,p. 182.)-
that, therefore, being the express acceptance of the provision for the
succession. It is quite clear therefore that the authorities cited by the
Applicants do not bear out their proposition regarding Article 37. may
just add a reference to the separate Opinion of Judge Carneiro in the
Ambalielos case, 1952. At page 54, he stated:1~4 SOUTH WEST AFRICA
abolished, its powers cannot be regarded as automatically transfer-
red to the new organ whichreplaces it. Thus, in order that this Court
might inherit the powers of the Permanent Court of International
Justice, it was neceççary that this should be expressly laid down in
Article 37 of the Statute."
[Publi hearing ofg October 1962, aftenaoon]
regarding Article 7 of the Mandate.al with the 1950 rnajority Opinion
That Opinion contained a finding to the effect that Article 7 must still
be regarded as being in force. The only reasoning specifically indicated
as being applicable on this point is to be found at pag138 of the Opinion
and is stated ina single sentence. The sentence reads:
"Having regard to Article 37 ofthe Statute of the International
Court of Justice, and Article 80, paragraph r, of the Charter, the
Court is of opinion that this clause in the Mandate is still in force
and that, therefore, the Union of South Africa is under an obligation
to accept thecompulsory jurisdiction of the Court according to those
provisions." (1950 Opinion, p. 138.)
The expression "those provisions" in the context in the Engliçh, is
sornewhat ambiguous. It might refer either to the provisions of Article 7
itself or to the other provisions-Article37 of the Statute and Article 80
of the Charter-to which the Court referred. But the intent appears
to be to refer to the provisions of Artic7:that seems to be the meaning
borne out by the French text.
This, Mr. President, js the only reasoning expressly directed to this
that the Opinion in 1950 regarding Article 7 has to be understood as
being based upon the finding which the majority of the Court had
already made as regards succession for purposeç of Article 6. The
Court did not specifically indicate whether that was the ïafio for its
finding, but on analysis it seems that the suggestion may well be cor-
rect. 1 cannot Say it is; i~ay be. The two provisions that are referred
to in this one sentence of reasoning, Article 37 of the Statute of the
Court and Article 80, paragraph 1,of the Charter, do not deal at al1with
the question which is posed by the phrase "another Mernber of the
League"in Article 7, or with the difficulty that arisesfrom the fact that
there now are no longer any Members of the League. Article 37, as the
Court knows, provides for a substitution of the Courts, and Article 80,
paragraph I, is to the effect that nothing in Chapter 12 of the Charter
shdl be construed as in or of itself altering the rights of any States or
peoples or the terms of certain instruments. So that neither of them bear
directly, or even indirectly, on this question afsubstitution of anybody
else for "another Member of the League of Nations" in Article 7 of the
Mandate Agreement. It may conceivably, therefore, have been the under-
lying idea in this Opinion that the succession,which the Court hadalready
found in regard to Article6, could also supply an answer in regard to Ar-
ticle 7,although the Court didnot Say sospecifically. If that shouId be the
correct interpretation of the rnajority Opinion, then it follows that al1 ARGUMENT OF MR. DE VILLIERS
1~5
the argument which 1 addressed to the Court regarding Article 6, and
particularly the argurnen.t addressed to the Court relating to the material
now before the Court wI;.ichwas not before the Court in 1950 relative to
Article 6,becomes of the utmost importance also in the evaluation of the
1950 Opinion regarding Article 7, and in considering the question
whether this Court ought now to depart from the conclusion amved at
in 1950 regarding Article 7.
The Applicants Say, irLtheir Observations at page 439 (I), as follows,
at the top of the page:
"Respondent has failed to set forth any arguments not previously
advanced by it in tIie proceedings leading to the Advisory Opinion
of 1950 which shou1.j alter the Court's ruling that Article7 remains
in effect and the necessary corollary that to be effective there must .
exist States with tlie capacity to invoke it."
But if Applicants are right in their own suggestion that the Court's
finding regarding succession for purposes of Article6 underlay its finding
regarding Article 7,the11al1 the new information 1 brought before the
Court for purposes of Article 6is relevant also to the Opinion in regard
to Article 7. In any eveiit, we point out in the Preliminary Objections,
and this is nowhere specifically dealt with or disputedby the Applicants,
that in the first place thi:re was hardly any argument in 1950 about the
question of Article 7, That may well have been because of the fact that
no question pertaining io jurisdiction was specifically formulated asa
question for the Court's attention. The Court eventualiy found that that
was a matter with which it ought to deal as being covered by the generai
question pertaining to fhe status of South West Afnca and the inter-
national obligations of the Union of South Africa in that regard, and
it answered this questioil as being covered by those general questions.
But it was not formulated as a specific question; and indeed we find
in the argument that DI. Steyn stated, as ifitwere a self-evident pro-
position, that on dissolr~tion of the League there were no longer any
Members of the League alid therefore Article 7 could no longer be invoked.
And that was the sum total of the argument on that particular point.
Dr. Steyn was not confronted with any suggestion of a succession for
purposes of Article 7. HI:was not confronted with any contention of a
"descriptive meaning" tc.be assigned to the expression "another Member
of the League of Nation:" in Article7, and he was not confronted with
any suggestion of a "carry-over" for purposes of Article 7,and therefore
it was quite impossibIe foi-him to deal witany of those suggestionswhich
had never been put to him,
The issues in that regard, therefore, were never canvassed, and the
Court was not put in the position in which this Court isnow, of having
a full and a detailed analysis of the meaning and of the implications of
the expression "another Member of the League of NationsJ', not only'
in Article7 itseIf but in al1the other Mandate instrumentsand throughout
the Covenant of the Leape. It was not in the same position as fepds
a full analysis of the concept of succession and the underlying principles
which are invoked in support of it.
Moreover, as we have noted, and we stress in the Preliminary Ob-
jections, the majority -3id not indicate any reasoning other than
that contained in the one sentence relative to its findingforthe purposes
of Article 7. The Opinion was, to the extent we indicated in the Pre- 186 SOUTH WEST AFRICA
liminary Objections, aIso on this point critically received by schoIarly
writerç. We deal with these matters fully in the Preliminary Objections
at pages 368 (1) and 373.
Therefore, Mr. President, in al1 these circurnstances my submission
is that also in regard to Article 7 we have made out a case not only
for de novuconsideration of the whole question regarding jurisdiction
in terms of Article 7-locus stalzdi in terms of Article 7-but also,
that having regard to al1the evidential material now before the Court
and the full argument, full examination of al1 the legal propositions
in regard thereto, this Court could now follow the exceptional course
of coming to the conclusion that it is not to regard itself as bound
in any way, in la~vor as a matter of precedent, by the Advisory Opinion
of 1950, and that it should corne to itsown conclusion in that regard in
'order to do justice between the parties.
My submission will be that the Court willfind that it will not follow
the majority Opinion in that respect, or the minority Opinion with
which 1 dealt before and which was based on the "descriptive meaning"
interpretation.
Mr. President, although I have dealt very fully and thoroughly with
the 1950 Opinions in regard to the various issues now before the Court,
the Court would have noticed that I have hardly referred at all, except
on two isolated points, to the Opinions of 1955 and 1956. That is be-
cause of the fact that botli the later Opinions were, by the form of
request addressed to the Court by the General Asçembly, based on the
prior assumption of the correctness of the 1950 Opinion regarding suc-
cession-r, shall1 Say, regarding the obligation on the partof the Man-
datory now to report and account to the General Assembly of the United
Nations in substitution for the Council of the League. That is so very
evident from the wording in respect of both the requests addressed to
the Court. First, in the case of the 1955 Opinion on Vuting Procedure
(1 am reading from the officia1report, at page 69), the operative portion
of the Assembly resolution reads:
"Requests the International Court of Justice to give an advisory
opinion on the following questions:
(a) 1s the following rule on the voting procedure to be followed
by the General Assembly a correct interpretation of the advisory
opinio nf the International Court of Justic ef 11 JnIy 1950 ..."
Then follows the suggested rule, and the second question is:
"(b) If this interpretation of the advisory opinion of the Court is not
correct..."
Then follows a further question as to what voting procedure should be
followed. In fact the Court, in each instance-al1 the Members of the
Court-found an affirmative answer relative to the first question,and
the second therefore fell away. The very basis of the question to the
Court was therefore to interpret the 1950 Opinion of the Court in this
particular respect and to determine whether the rule on voting procedure
corresponded to a correct interpretation of that Opinion. The Court in
fact said so in itç majority Opinion, at page 71, that it was to confine
itself to that basis: ARC-UMENT OF MR. DE VILLIERS
187
"The scope of Qriestion (a) is thus limited by the wording used
and by the reference to the General Assembly's acceptance of the
Opinion previously given by the Court. It is therefore essential
that the Court shoiild keep within the bounds of the question put
tu it by the Gener.11Assembly," (1950 Opinion, pp. 71-72.)
The same applies, even more specifically as far as the wording is con-
cerned, to the Advisory Opinion of 1956 on the Admissibility ofHearifigs
O/ Petitioners by the C~~mmitteeon South West Ajrica. The operative
portion of the resolution readsaç follo~vs(atp. 24 of the I.C.J.Report) :
"Requests the International Court of Justice to give an advisory
opinion on the fol10~~ingquestion :
'1s it consistent with the advisorÿ opinion of the International
Court of Justice of 11 July 19 jo for the Committee on South
West Africa, estilblished by General AssembIy resolution ...to
grant oral hearings to petitioners on matters relating to the Ter-
ritory of South M'estAfrica?'."
Again, thequestion issimply :"1s it consistent with the advisory opinion?"
And although there wai; a division of opinion in the Court-between
the Members of the Court-as to the correctanswer to this question, the
opinions in both respect.^proceeded on the basis of the correctness of
the 1950 Advisory Opinion and on the necessity of interpreting it for
the purposes of answeri~ig this question.
The fact that that wzu so is particularly forcibly illustrated by the
position of Judge Kead. It wiUbe recalled that Judge Read was one of
the two Judges who gav.2 a minority opinion in 1950 on the question of
administrative supervision of the Mandate. He came to the conclusion
that that supervision hzd come to an end with the dissolution of the
League, and that there liad been no succession or any other process by
which the United Nation:;, or any organ thereof, was substituted for the
Council of the League ar; a superviçory organ. That was his opinion in
1950. But in 1956, when the Court divided on this question as to oral
hearings of petitioners and as to how it should be answered, the majority
of the Court gave an ansu.er which might be regarded as, in practice, more
favourable to the oral hiiarings of petitioners and the minority gave an
opinion which was less favourable in that regard. But Judge Read
joined themajority. In oiher words, to him it was quite clear that his
function now was not to reconsider the question whether there had been
any succession os any si~nilar procesç whereby there waç a substitution
of supervisory organ and an alteration in our obligation in that regard;
his function was purely to interpret the majority opinion on a particular
point raised in the requi:st of the Assembly. Therefore, fils. President,
both the opinions havin!; proceeded on the basis of the correctness of
the 1950 Opinion in that ~.espect,it does not, imy respectful submission,
serve any usefuI purpose to analyze these opinions,except on the specific
points that 1 have discussed here and there. 1may point outfurther that
in the 1956 Opinion there appears to have been a difference of opinion
as to the correct interprctation of the 1950 Opinion on the question of
Article 6 of the Mandate. The majority indicated in their reasoning that
they considered that the 1950 Opinion on that point was founded on an
idea of succession, ofpoviers going over to the United Nations-powers
of supervision-whereas the minority considered that that was not SO,188 SOUTH WEST AFRICA
that it was rather a question of a maintenance of a status quo, of an
existing situation,and that for the purposes of maintaining that existing
situation it was important to have regard inte rlia to the willingness
expressed by the Union of South Africa to regard itself as continuing
to exercise its Mandate, to continue to adrninister the territory in ac-
cordance with the provisions of the Mandate, and to "continue to render
reports to the United Nations". I have already pointed out that in this
latter respect the reference rested on a wrong factual premise, that there
was in fact never an expression of willingness on the part of the Union
Govemment to continue to render reports to theUnited Nations, if by
that is understood reports in pursuance of Article 6 of the Mandate
relative to cornpliance or othenvise with the Mandate obligations.
Othenvise, that difference of opinion was purely reiated to the parti-
cular issues in the case before the Court and does not appear to be of
assistance to the reasoning or the argument in the present case.
Ihave corne, therefore, to the end of the issues regarding the suggested
succession for purposes of Article 7, and I submit that, for the reasons
that have been stated, those contentions of the Applicants regarding
suggested succession for this purpose are not sound and should not be
accepted by the Court.
1proceed now to deal xvith the second ground advanced by the Appii-
cants as to why cornpetence to invoke Article 7 could still exist on the
part of States who are not possessedof the qualificationprescribedtherein,
namely membership of the Leagie. This second ground which the Appli-
cants advance is the so-called 'carry-over principle". Wefind that dealt
with at pages 446-448(1) of the Observations.
Now, Mr. President, may I first read at page446 the broad concept
of this carry-over principle as it is stateby the Applicants themselves
in application to the case of the League and its Members:
"There is at the very least a de jactocarry-over of the League's
responsibiiities to the extent that an important function of the
League continues beyond the League's formal existence."
The Applicants do not Say here what function they mean, but ostensibly
they mean the function of supervising Mandatory administration.
"Such a de Jnda carry-over not only justifies the presence of
Respondent in the Mandated territory, but it also keeps alive the
legal interests of the League and its Members in the Mandate.
Hence, States, such as Ethiopia and Liberia, which were members
ofthe League at the time of the League's dissolution, remain within
the description of 'another Member of the League' for purposes of the
Mandate." (Ubserwations,pp. 446-447.)
The next paragraphç proceed to explain what is meant by this so-calIed
principle of "de jactocarry-over"4e facto survival of an entity which
has been formally dissolved. The Applicants point there to the statutes
of certain of theStates of the United States of America, by which statutes
express provision is made to enable a dissolved corporation to continue
de factoin existence untilithas wound up its corporate affairçThat is the
first group of statutes referred to; the description of it is in the Observ-
ations: "Thus, in many States of the United States of America, a dissolved
corporation remains de factoin existence until it winds up its corporate
affairs." Secondly, the Applicants state: "Other States of the United ARGUMENT OF MR. DE VILLIERS
1~9
States enable perçons who were corporate directors at the time of a
corporate dissolution to sue as trustees on any daim of the corporation."
Again there is a referencc:to a nurnber of specific statutes. And the Appli-
cants proceed:
"This is but another way of recognizing the continuing vitality
ofthe rights and obligationscreated by the corporation prior to its dis-
solution.The 'carry-over' principle of dissolved corporations isim-
plicit in the rule thit suit may be brought on behalf of the defunct
corporation only bj, former directors." (Observati pon44,7 (I).)
Now, Mr. President, in niy subrnission the briefest study of these statutes
to which reference is mxde by the Applicants by way of example, very
clearly shows the follow.~.ngi:n the first place that this so-called "carry-
over principle" does not rxist; that in so far as one can speak of a "carry-
over", it operates by vjrtue of express provision to that effect in each
one of these statutes : that is why it is possible to have a "carry-over".
It is a similar provision as we know, providing for clairns of a company
to be brought by a liqujdator, for instance, for purposes of liquidation.
In some cases in these sxatutes one finds the arrangement that a former
director fulfils the function which a liquidator might fulfil under other
circurnstances. There arc:various arrangements pertaining to the various
types of companies, conkained in the various specific types of 1egisIatton
for the regulation of conipany affairs. But in so far as there is a keeping
alive of rights and obligs.tions on the part of the defunct company, that
is so, not because of any principIe which recognizes a continuing vitality
of those rights after the corporate existence has corne to an end, but
because of specific and 1)rcciseprovision in a statute to the effect that
that will be so for the pnrposes of liquidation: so that in so far as there
may have been a dissoIu.tion of the company to a certain extent before
the liquidation process has been completed, the liquidation process itself
is protected from the eff.:ct of that dissolution.
That is the first point that emerges. The second point is that in each
case the provision enables actç to be performed "on behalf of the defunct
corporation"-not on behaIf of its former rnembers, but on behalf of the
corporation itself, in pursuance of rights that had been held by the cor-
poration, and not in pursuance of individual rights of its former members.
And thirdly, we find that in each case the provision hasa Limitedpurpose;
it exists purely for the l~urpose of the winding-up of the affairs of the
corporation, and for no other purpose whatsoever.
Therefore 1 submit that the analogy which the Applicants seek to
draw from these provisions and the case to which they seek to appIy itF
the case of the exercise of a competence to invoke compulsory juns-
diction of a court in ternis of Articl7 of the Mandate Agreement-that
that analogy is cornpletely without foundation.
1coilld now refer-on the points of distinction that 1have mentioned
-to the provisions of th,: statutes. We find on the first one, namely that
in each case there is express provision for the so-called carry-over-we
find that there are, broaàly speaking, two methods of providing for liqui-
dation. One is this: thai: what is envisaged in the Iegiçlation is that a
certain event occurs-lagse of time, or an order of court, or sometbng
sjmilar-which has the effect of dissolving the corporation. But then
there is specific provisioii to exempt from the effect of that dissolution
the corporate existence for the purposeç of liquidation ; there is an express SOUTH WEST AFRICA
190
saving, then, of the corporate existence of the corporation, and provision
is made for the necessary steps to be taken for purposes of liquidation.
In other instances there is not deemed to be a dissolution at the liqui-
dation stage; there is merely a cessation of ordinary business. There may
be what is called a "provisional dissolution", but the final dissolution
does not occur until there has been a complete liquidation. I could refer
the Court to exarnples of al1these classes of provision.
1refer to the California statute, the very first one in footnotr at page
447 (1) of the Observations. Here we have, on the first page, Chapter V,
Section 5400, headed "Purposes for which Continued", and the Section
provides :
"A corporation ~vhichis dissolved by the expiration of its term
of existence, by forfeiture of existence, by order of court, or other-
wise, nevertheless continues to exist for the purpose of winding up
its affairs, prosecutingand defeiiding actions by or against it, and
enabling it to collect and discharge, obligations, dispose of and
convey its property, and collect and divide its assets, but not for the
purpose of continuing business except so far as necessary for the
winding up thereof ."
Clear and express provision, therefore, that despite dissolution in other
respects, it nevertheless continues to exist for the purpose of winding
up its affairs and attendant matters, but not for the purpose of continuing
business, except so far as is necessary for the winding up thereof.
There is a rather interesting annotation, a reference to American case
law in a footnote at the next page; it is an annotation to this Section
5400, and the reference is to a case of Defence Supplies Corporation v.
Lawrence Warehouse Company. There the court is reported to have said:
" ... But a time-honoured feature of the corporate device is that a
corporate entity may be utterly dead for most purposes, yet have
enough life remaining to litigate its actions. Al1 that is necessary
is astatute so providing."
That emphasizes the point, Mr. President, that what is required here
"is a statute so providing", ernphasizing the complete absence of a
"carry-over principle" such as is contended for by the Applicants.
That was an example of the type of case where there is a prima facie
dissolution but then an exemption as regards the processes of liquidation,
the Company being kept corporately in existence for that purpose and
arrangements being made for that purpose. An example of the other class
will be found in the Louisiana statute, also cited in a footnote-West's
LozcisianaStatutes,referred to infootnote No. 2at page 447 (1). There we
find provision for liquidation by the court on petition based on a resolu-
tion, a resolution authorizing directors or shareholders to sign and present
in the name of the corporation a petition to court praying for dissolution.
And there isspecific provision that where a corporation is being liquidated
-it is said that thereafter the liquidation proceedingç shall be conducted
under the supervision and ordcrs of the court. Where a corporation is
being liquidated and dissolved out of court,the liquidator appointed by
the shareholders, unless so forbidden by the resolution appointing them,
may at any stage of the proceedings by a petition apply to court.So what
we can have here isthat in some cases directors may be authorized to ARGUMENT OF MK. DE VILLIERS Igl
act as liquidators, or a c.hareho1deror shareholders, and in other cases a
liquidator may be appointed by the court.
And then there is this specific provision in Section62, page 319 of this
photostat which is filed with the Court:
"Corporate existc:nce continues until the certificate of dissolution
is issued by the. Secretary of Statc. At any time before termination
of corporate existenze, a voluntary dissolution rnay be revoked in the
following manner ..."(West's Louisiana Stat~tesAnnotated, p. 319.)
But the specific provision is that corporate existe~icecontinues until this
certificate of dissolution is issued by the Secretary of State, and that,
according to these other provisions, takes place only at the end of the pro-
cess of liquidation. Indi:ed, earlier on in that same Section 62 the pro-
vision is "ihen a corporation has been completely liquidated ..." ;it says
"A. If the proceeding is jubject to the supervision of the court, the court
shall make an order declaring the corporation to be dissolved". In other
words, this is a case ~vhere the dissoIutjon itself is withheld until the
process of liquidation ha:;been completed. And secondly : "If the proceed-
ing is out of court, the liquidator shall sign and acknowledge a certificate
stating that the corporation has been completely liquidated and is dissolv-
ed"-so that at that stagc:only does the dissolutionproperly takeeffect, and
in the meantime there has been a corporate existence because it has
never bcen terminated for purposes of the liquidation.
The Statutes to which 1 have referred, of California and Louisiana,
merely serve as examp1t:s of the various types of .ses which we find.
They also serve as exaniples out of the first two groups referred to by
the Applicants at page 447 (1). The same situation, as dealt with in them,
emerges from al1the othm Statutes ; one gets the same types of variations
-sometimcs a provision is for a trustee, sometimes it is for a sharehoIder,
sometimes for a director, sometirnes for a liquidator, but in al1 cases
the keeping alive of the corporate existence of the corporation for the
purposes of liquidation i:;exfiresslynchieved. The third type of legislation
to which reference is niade by the Applicants is this-we find itat
page 447, They Say:
"Civil law counti.ies have similar legislation, which keep alive
and carry-over the legal existence of rights and duties of dissolved
entities." (Observations,p. 447 (I).)
There too, merely as an example, I refer to the Argentina Code of
Commerce, Article 43j. VJefind that in footnote No. 3; it reads as follows:
"The [dissolved] corporation is considered existent, only for the
purpose of its liquitlation. The use of the corporate name by the
liquidator empower:; him only to liquidate and to contract obhga-
tionç which are a iiatural and immediate consequence of the li-
quidation."
So, again, express provision for the corporation to be considered existent
but only for the purposes of its liquidation. And, there again, that type
of example is found rept:ated in al1 the other statutory provisions, not
in exactly that form but the principle remains the sarne, in the sense
that there is no principle, as contended for by the Applicants: the
"carry-over", where neci:ssary, is achieved by express statutory enact-
ment, and the very fact. that so many different forms exrst, different
formulas, different ways of dealing with such matters specifrcally andIg2 SOUTH WEST AFRICA
expressly in the Statute, indicates the total absence of any principle
in that regard.
Secondly, Mr. President, even if, by any stretch of legal adaptation,
one could formulate a principle of international law from these municipal
legislative provisions,then surely the circumstances to which the legis-
lative provisions apply must show some analogy with the circumstances
to wkich it isnow sought to apply such a principle. The analogy, in
my submission, fails altogether for various reasons. In the first place,
as 1 have already stated, each one of those provisions to which the
Applicants refer enabie acts to be performed on behalf of the defunct
corporation only, and they do not embrace acts in furtherance of the
interests of former members of the corporation or of some other cor-
poration. Now let us see what the Applicants seek to do here. Here, in
instituting these proceedings, they do not claim to be acting on behalf
of a defunct League of Nations. On the contrary, they claim to be
exercising their oivn rights, as they Say, as members of an "organized
international community"; rights which are at the same time duties to
see that a sacred trust is performed ;but their rights, not those of a
defunct League. And, indeed, in the Observations at page 456 (1), they
introduce also further rights and interests which they claim to be
representing. In dealing there with another aspect of Our Objections,
they Say in the second paragaph, at page 456:
"In disputing and negotiating uith Respondent in the United
Nations during the past several years, Applicants, therefore, have
been upholding their own legal interests in the proper exercise of
the Mandate; but they have been doing more than that. They have
also been upholding the collective Iegal interest ofthe lllembers of
the United Nations and the interests of the Organization itself.
In instituting these proceedings, Applicants have moved to protect
not only theirown legal interests but the legal interests of the United
Kations (which, itself, may not be a party to a contentious pro-
ceeding), as well as the legal interests of every other Member state
similarly situated."
So there the analogy fails. The next aspect in which it fails is that the
legislation provides for the carry-over of the special powers, the special
extension of corporate existence for, one purpose, and one purpose only,
and that is the winding up of the afîairs of a dissolved corporation so
as to bring it completely to an end, and not the indefinite continuation
of the activities of the djssolved corporation as if there had been no
dissolution. In other words, the idea is to bring about a liquidation of
legal rights and interests of such corporations and not to keep them
dive. But now, what are the Applicants seeking to do? They are not
seeking to perform an act with a view to liquidation of the League so
as to bring its corporate existence and its affairs completely to an end;
they are seeking to keep alive indefinitely supervision of a particular
kind over Mandatory administration; they want to keep alive that
supervision as if there had been no dissolution of the League; they
want to go on beingregarded as Members of the Leaguefor that particular
purpose, although there has for a long time been no League and although
there have for a long time been no Membersof a League. It is an activity
during the lifetime of the League, that is what they wish to carry on;em ARGUMENT OF MR. DE VILLIERS I93
they are not seeking to liquidate, to bring to an end League activities.
Therefore, again, the analogy fails.
<<Mr. President, 1 subinit that when we go to the foundation of this
carry-over" suggestioii, it comes down to the same principle that
we have been discussiiig before, and that is the question of the effec-
tive intent of the pan:ies that brought about the relevant arrange-
ments. A "carry-over'.' of the nature contended for by the Appli-
cants could operate orily if there was an effective intent in law to
bnng that about. The "carry-over" in the case of these municipal
law provisions operatec by reason of the effective intent of the legis-
lature in those particuk2.r cases, theffective intent to which expression
is given in the legislatjon, so as to have effect in law. That is what
brings about such a "carry-over". In the case of an organization like
the League which did not have legislation governing it,but whose
Covenant was derived from an international agreement, as a constitutive
instrument, there the effective intent would have to be cither that of
the founders of the Lesgue as expressed in the Covenant itself, or, in
the absence of specific provision of that kind in the Covenant, there
would have to be ad hoc resolutions and arrangements by Members of
the League, by its competent organs, to bring this about. We know that,
in fact, there was in the case of the League no provision in regard to
liquidation-no detailetl provision at any rate-in the Covenant, and
that special provision therefore had to be made at the last session of
the League. It is, therefore, to the arrangements made at that stage
that we have to look iri order to find whether there was any effective
intent ta bring about su(:h a carry-arrer is suggested by the Applicants.
And we find, Mr. Presiiient, that although very specific provision was
made for al1 the practical aspects of the. liquidation, although express
provision was made for funciions and activities to be carried on after
the League's dissolutioii, to be carried on by another organization,
namely the United Nations, and although express provision was
made in regard to the -iuture of Mandates after the dissolution of the
League, in not one of these instances was there any provision which could
eflectively bring about a carry-over of the nature contended for. And
the omission is n very significant one. Indeed, from the very wording
of the last resolution of the League regarding Mandates, it is clear that
there could have been r;.osuch intent because there, in the third para-
graph if 1remember correctly, it isrecorded that the Assembly rccognizes
that the League's functjons with regard to Mandates have corne to an
end. Surely one wouId not expect such a recording in that resolution
if there was any inteni: to provide for a continuation, for a lirnited
purpose and a limited tirne, of a function with regard to Mandates, for
that to be exercised by way ofa carry-over by ex-Members of the League.
One finds indeed, Mr. President, in the very final resolution of the
League, as adopted on 18 April 1946, that there is express provision
for dissolution of the League and for liquidation, and then for a carry-
over of a limited natur? for the purposes of that liquidation. 1 refer
to the Lelpue ofNatiofrs, Oficlal Journal, Special Supplement 194, at
page 269. The first clansmf the resolution reads :
"With effect froin the day following the close of the present
session of the Assenibly, the League of Nations shall cease to exist
escept for the sole piirpose of the liquidation of its affairs as provided
in the presentrcsoliition ."194 SOUTH EVESTAFRICA
So there we have an example of a dissolution of the corporation, with
the express exception for the purposes of liquidation. The second
sub-paragraph of the first clause reads:
"The liquidation shall be effected as rapidly as possible and the
date of its cornpletion shall be notified to al1 the members by the
Board of Liquidation provided for in paragraph 2."
Paragaph 2, then, reads:
"The Assembly appoints the perçons named in the Annex to
form a 'Board of Liquidation', hereinafter called the Board, which
shall represent the League for the purpose of effecting its liquidation.
Subject to thc provisions of this resolution and other relevant
decisions taken by the Assembly at the present session, the Board
shall have full power togive such directions, make such agreements
and take al1 such measures as in its discretionit considers appro-
priate for this purpose."
So here we have a complete provision for a real carry-over for the
purposes of the liquidation of the League, but nothing relating to Man-
dates or functions in regard to Mandates; and one would, indeed, not
expect it herebecause there was a special resolution regarding Alandates.
The final Article of this resolution, No. 21, is to be found at page 284
of the SfiecialSupplement, and it reads as follows:
"On completion of its task, the Board shall make and publish
a report to the governments of the members of the League giving
a full account of the measures which it has taken and shall declare
itself tobe dissolvedOn the dissolution of the Board, the liquidation
shall be deemed to be complete and no further claims against the
League shall be recognited."
There we find éverything provided for in regard to liquidation and a
closing date on which that liquidation of the Leaguc shall be deemed
to be complete.
Mr. President, 1 subrnit that the Applicants really therefore are
begging the qucstion when they Say that there is at least a de facto
carry-over of the League's responsibilities to the extent that an im-
portant function of the League continues beyond the League's formal
existence. If they mean by that "important function" the exercise
of supervision through this form of competence to invoke the compulsory
jurisdiction of the Court, in order to substantiate their proposit~on
they would havc to refer to effective intent on the part of the League
to bring that about, and they do not even attempt to do so. Al1 the
indications of whattook place at the last meeting of the League Assembly
militate against there having been any intent to achieve such a carry-
over. Such a carry-over with regard to cornpetence to invoke Article 7
was obviously not regarded as a fit subject for a carry-over in terms of
the resolution to which 1have just referred dealing with the actual liqui-
dation. The resolutions designed to facilitate the future exercise of powers,
functions and activities previously exercised by the League were con-
fined to non-political functions and they were confined to possible
assumption thereof by the United Nations. The resolution on Mandates
made no provision regarding future supervision of Mandatory admini- ARGUMEXT OF Ml?. DE VILLIERS
195
stration, contained no rt:ference to it at all, or to rightin general then
vested in the League Mcmhers. or the competence in particular of such
Members to invoke conlpulsory jurisdiction. Ail those things rcrnained
unsaid. And particularly in view of the recognition that the League's
functions with respect to Mandates would come to an end with its
dissolution, it seems inconceivable that if there had been any intent to
achieve such a carry-ovc8rit would not have been expressly provided for.
1proceed, therefore, tr, the next statement of the Applicants in support
of their carry-over argument. We find that in the Observations at page
447 (1):
"An analogouç principle of municipal law may be found in the
widely held doctriiie that legal relationships established under a
statute by statutorr7 authority survive the expiration of the statute
or statutory authority in the absence of provision to the contrary.
Particularly is this so when a saving clause is employed in the
legislation repealint; the statute or dissolving the statutory author-
ity."
Now those two statements, Mr. President, in rny submission, are logically
inconsistent. If there should be a widely-held doctrine that Iegal re-
lationships established iinder a statute by statutorÿ authority survive
the expiration of the statute or statutory authority, then why would a
saving clause be necessary to bring that about, to bring about their
continued existence? A saving clause may sometimes by employed ex
abundanti cautela, through a surfeit of caution, in order to make quite
sure that a certain res~ilt does not follow. But its normal purpose is
exactly to prevent, in ilspecific instance, a consequence which would
otherwise follow frorn.the statute. And, therefore, if the normal conse-
quence ofrepeal,or expi.ation, of a statute is to leave alive relationships
established under that :;tatute, then one would never require a saving
clause to keep those reiationships alive. Therefore, the very fact that
saving clauses are employed for such a purpose tends to refute the
existence of any such principie as is suggested.
In fact, there is no such principle. It is quite true that in municipal
law the repeal of a statute, or the termination of a statutory authority,
does not aiways result in termination of legal relationships which have
been established in purruance of the statute or through the agency of
that statutory authority. Very often vested rights do come into existence
and they are not affected by repeal of the statute or the termination of
the authority. One can have a statute providing for expropriation for
certain purposes and for a board that would supervise the expropriations,
decide whether they were warranted and determine compensation. There
may be expropriations w-hichare completed, the compensation may have
been paid, transfers ma:r have been registered in countries where there
is a system of registration, or conveyances may have been made in the
other countries, and tht: whole transaction rnay have been completed.
Then that would certainly not be interfered with by the eventual repeal
of the statute or the termination of the existence of the statutory
authority.
But whether that wouid be so or not must depend on the circumstances
of each particular case.It must again be a result of appIying the effective
legislative intent to the particular situation with which one is dealing.
For that purpose, it is riecessary to have regard to the nature and the 19~ SOUTH WEST AFRICA
content of the existing relationship on the one hand and to the intent
and the effect of the repealing statute on the other hand. Ifone finds
that the nature of the existing relationship is such that it is completely
dependent upon the operation of the statute or the existence of the statu-
tory authority, then obviously the repeal of that statute, or the termina-
tion of the existence ofthat statutory authority, must automatically resuIt
in the end of that legaI relationship, unless it is specially kept alive-just
as the opposite may be true, that if there is no dependence upon the
continued existence of the statute or the authority, then the repeaI or
dissolution would not affect the continued existence of the particular
relationship, again in the absence of specific provision to the contrary.
Tlierefore one cannot generalize in the mannes-in which the Applicants
suggest. The question is one for interpretation in.each particular instance.
If there is a provision in a statute, for instance, obliging the citizens of
a particular region, or of a particular age group, to. submit themselves
for active training every Saturday then they are under an obligation
-that is the legal relationship-to offer themselves for training aithe
particular institute, on every Saturday. But as soon as that is repeaIed
then that obligation faI1saway-that is the end of the legal relationship,
unless it should specifically be kept dive for a group that hâs just been
formed and has not cornpleted a certain course of training.
One can quote al1 these examples, but there is no principIe involved
except the principle of giving effect to the legislative intent.
And when we look now at the situation regarding Article 7 of the
Mandate, itcorresponds to the type of case that is dependent upon the
continued existence of the organization, in this particular case.By reason
of the agreed content of Article 7,its operation was made dependent
upon there being another Member of the League to invoke it, and there-
fore dissolution of the League and cessation of al1 memberçhips must
necessarily result in that clause becoming inoperative, in the absence
of some specific provision, some special provision, keeping it alive in
some other form than before, or on a new basis. Therefore that generali-
zation does not assist the Applicants.
Nor does the folIowing one assist them, Mr. President. 1 read again
from page 447 (1) :
"Rights and obligations-according to which property may have
been exchanged, or upon which promises may have been made, or
by which a fiduciary may have been entrusted with property not
his own-are not considered to disappear merely because an entity
or authority goes out of existence and is not sukceeded by anothér
entitv which explicitly assumes its rights and obligations. Modern
civilhed systems are ?oo sensitive tojustice to permit so illogical
and inequitable a result." (Observatio~s, p.447 (I).)
Mr. President, I know of no justification for any such generalization.
Again the question must be one of effective intent in each particular
case; the intent of the iegislature, the intent of contracting parties,the
intent of a testator, or whatever the situation may be with which we
are confronted. If in the light of such intent we find that the dissolution
of an entity or authority leaves an existing right or obligation unafiected,
then caedit questio. But if we find in the light of such intent that the
right or obligation is rendered incapable of continued existence by the -
dissolution of the entity or authority, then that right or obligation must AR(;UMENT OF MR. DE VILLIERS
197
necessarily disappear on such dissolution unless there is specificprovision
for the contrary. And tbere can, in my submission, be nothing illogical or
inequitable involved in thus giving effect to the intent which creates
and ~vhichcontrols legal rights and obligations.
Finally, Mr. Presideiit, we find that the Applicants state, at the
bottom of page 447 (1)) that:
"With xespect to the Mandate, the legal relations established by
the League continue to esist. In addition to the reasons already
set forth to support this conclusion, there is an act of the League
of Nations which iii effect constitutes a 'saving clause' of the kind
referred to above. This act of the League is the adoption of its
Resolution of Aprii 18, 1946, and particularly paragraphs 3 and 4
thereof..." (Observa!ions,pp. 447-448.)
And then those paragraphs 3 and 4 are set out. Now how this could be
said to be a "saving clause" relative to competence to invoke Article 7
1 do not know, Mr. President. It does not mention that subject. It
recognizes that on terrriination of the League's existence its functions
with respect to Mandatitd territories would come to an end. It refers to
possible future arrangements that may be agreed between the United
Nations and the respective Mandatory Powers. But it makes no reference
whatsoever to any continued relationship in regard to Mandates between
a Mandatory and other Members of the League, let alone any reference
to a continued possible competence to invoke Article 7.
Ifthere were to be found an effective saving clause, as contended for
by the Applicants, it would have had to provide to the effect that,
notwithstanding dissolu.tion of the League, and notwithstanding loss of
al1League memberships, States that were Members of the League at the
date of dissolution woulrl nevertheless continue to retain the competence
to invoke Article 7. Arid there is nothing which is contained in this
resolution which could, even remotely, suggest tbat there was any such
contemplation involved in it.
1 submit, therefore, AIr. President, that there is no substance what-
soever in any of tliese so-called "carry-over" arguments of the Applicants,
and that, as far as theiir merit is concerned, they are to be rejected. I
wish to refer to only two further aspects of the "carry-over" argument.
One of them is that although the Applicants refer to the dissenting
Opinions of Judges McNair and Read in 1950,to the fact that they found
a basis for saying that Mcmbers-States that were Members of the League
at the time of the dissoli~tion-could still have the competence to invoke
ArticIe 7-although thaf. is referred to, and ostensibly supported by the
Applicants as their secor~dstring, their "carry-over argument", in actual
fact, on analysis is totali y different from the line of reasoning employed
by Judges McNair and Ilead. It does not support that Iine of reasoning
of a "descriptive" meaning and, in fact, jettisons that line of reasoning.
Tt assumes that there would be a loss of competence to invoke Article 7
but for a special arrangement, a special contemplation of this carry-over.
Secondly, Mr. Presidtmt, the Applicants state that they rest their
contentions as to Article 7 on "either or both bases". At page 443 of the
Observations they Say:
"Applicants, nevi:rtheless, rest their submission on jurisdiction
on either or both bases."
1 submit that they cannot rest them on both bases, Mr. President,19~ SOUTH WEST AFRICA
because the bases are mutually inconsistent, and if they are both to be
advanced they would have to be advanced as alternatives. If there
should be a succession, as contended for by the Applicants, which took
this competence now from Members of the League to Members of the
United Nations, then there would be no occasion, no necessity, no scope
whatsoever, for inferring any intent as to a carry-over. The two things
are, as conceptions, mutually inconsistent with one another. "Carry-
over" would surely only be provjded for in respect of ,anactivity which
would otherwise corne to an end, and if there is provision, tacitly or
otherwise, for a succession as contended for by the Applicants, then
there would be no occasion for a "carry-over".
Finally, hlr. President, if the majority Opinion regarding Article 7
in rg5o is to be regarded as resting upon a succession regarding Articl6,
by reason of a tacit understanding or agreement arrived at during the
transition period, then that finding in the majority Opinion would be
totally inconsistent with this suggestion of the Applicants as to "carry-
over", and to that extent tl-ien the Applicants contention would be in
conflict also-in direct confiict-with the majority Opinion on this point,
Thisis quite apart from the variance to which 1 have referred before,
namely that inregard toits actual findin ingregard tuArticle 6 the ma-
jorityopinionappeared to rest that findingon a tacit understandingwhich
itinferred from the events during the transition period,whereas the Appli-
cants do not attempt to support that; they attempt to found the succes-
sion for which they contend on something to be read into Article 6 of
the Mandate Agreement as originally agreed upon.
Mr. President, 1 will conclude in a few minutes. I merely wish to
refer to page 438 (1) of the Observations relative to these last rernarks
which 1 made. There the Applicants state in the second paragraph:
"It follows from either the majority or minority analysis that
Applicants are competent to invoke Article 7, and that Respondent's
contention is inconsistentwith the view of errery member of the
Court."
The analysis that 1 have put forward to the Court, with submission,
shows that the boot is somewhat on the other foot :that this "carry-over"
contention advanced by the Applicants is not supported either by the
majority or the minority view in 1950 ,nd thatthe succession advanced
by the Applicants is something different from the succession found in
the majority Opinion in 1950. This is particularly significant becsuse of
the fact that the new information and facts not before the Court in
1950, and now presented by us, deal particularly with the transition
period, and indicates that there could be no basis for finding tacitssent
there, as the Court apparently did in 1950.
Mr. President, the conclusion to which the portion of the argument
with which 1 have just dealt lcads,is that stated by way of alternatives
in Our second and third contentions, namely, that by reason of there
no longer being any Members of the League, Article 7 has ceased to be
in force as a treaty or convention, or alternatively, if it is still in
force, then there are no States competent to invoke it. That by itçelf,
stated in these two alternatives, is an objection to jurisdiction and we
submit it is sound. That, taken in conjunction with our argument re-
garding Article 6,and our argument regarding Articles 2 to 5,leads to ARGUMENT OF MR. DE VILLIERS 199
the other conclusion, u*hich we submit is also sound and which is our
first contention, namely, that the Mandate as a whole has ceased to be
a treaty or convention in force within the meaning of Article 37 of the
Statute of the Court. Nxturally, success on one or the other of these
wouId be suficient for oilr purposes.
1 wish to expressmy appreciatiori to youMr. President, and to al1the
Members of the Court, for the patience and the courtesy accorded to
me during the argument. bOUTH WEST AFRICA
3. ARGUMENT OF Rlr. MULLER
(COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA)
AT THE PUBLIC HEARINGS OF IO AND II OCTOBER 1962
[Public heuring of IOOctober 1962, morning]
Mr. President and Honourable Members of the Court.
Before proceeding with my argument 1 would like to associate myself
with the remarks of my learned fnends, Dr. verLoren van. Themaat
and Mr. de Villiers, in paying respect to this Court. It is ivdeed an
honour for me to appear before this Court. I intend now, ifit pleases
the Court, to present our argument on the Third Objection.
For the purposes of this Objection it is assumed that, despite the
dissolution of the League of Nations, Applicants would still be entitled
to invoke the provisions of Article 7 of the Mandate for South if7est
Africa in an appropriate case-that is, in a case where there exists
. between the Applicants and Respondent a "dispute" as envisaged in
Article7.
This Objection raisesthe question whether the conflictor disagreement
alleged to exist between Applicants and Respondent constitutes a
dispute asenvisaged in the Article.
The Applicants contend that there is such adispute. Their contention
inthis respect issetforth at page 91 (1) of the Memorials, where they Say
that they for their part allege, and Respondent for its part denies, that
Respondent has violated and is violating Articles 2, 4, 6 and / of the
Mandate.
We, on the other hand, Mr. President, contend that the alleged
conflict or disagreement is not a "dispute" envisaged for adjudication
by the Court in terms of Article 7 of the Mandate-more particularly,
in that the çaid conflict or disagreement does not affect any material
interestsof the Applicant States or their nationals. That, then, is the
crisp issue between the Applicants and Respondent.
In stating Our case, however, with regard to this Objection, it is
necessary at the outset to deal with certain general rernarks made by
the Applicants at page 450 (1) of theirObservations. In the first place
they say that the Third Objection is devoted to "an attemptto insert into
Article 7 a requirement which does not exist". Now, Mr. President,
this comment on the part of the Applicants is, we submit, without
substance. We rely for our contention not on an insertion in.Article 7
of words not appearing in the text, but on a proper construction ofthe
word "dispute" in the context in which it does appear. It is therefore
not a case of reading something into the text, but of reading properly
what in fact already appears in the text.
In a broad sense the word "dispute" may embrace a difference of
opinion, disagreement or conflict of views between perçons or States.
It may in that very broad sense include disagreements or confiicts
concerning matterç in which the dispntants themselves have no legal
interests or rights. In a compulsory juridiction clause, hourever, such ARGUMENT OF MR. MULLER SOI
as Article 7, there is ZLqualification inherent in the meaning of the
word "dispute", and that qualification is a confinement of the subject-
matter in dispute to something in which the disputants themselves
have legal rights or intzrests. We submit that this limitation flows as
a legal conception and as a matter of logic from the intended functions
of courts of law. In international law, as in municipal law, courts exist
for the adjudication and settlement of daims arising from legal rights
or legal interests; the courts are not there for judiciai expression on
differences of opinion clr on conflicts of views unrelated to the legal
rights or legal interests of the litigants.
It follows in Our submission, Mr. President, that in the absence of
any contrary direction or indication in Article 7 of the Mandate, the
word "dispute" must be given its generaliy accepted meaning in the
context of a compulsorj. jurisdiction clause, and that is a disagreement
or conflict between the hlandatory and another Member of the League
concerning the legal ri€hts or interests of such other Member in the
matters before the Coui't. Such matters must of course, in cornpliance
with Article7, relate to ;Lninterpretation or application of the provisions
of the Mandate.
Mr. President, we are mindfuI of the fact that in Article 7 the word
"dispute" is flanked b:~ the words "any" and "whatever", the ex-
pression being "any ditpute whatever". It could, however, not have
been intended by the use of these two words "any" and "whatever"
to render justiciable at the instance of a Member of the League a dis-
agreement or difference of opinion with the Mandatory regarding a
matter in which such Member was not meant to have a legal right or a
legal interest.
We submit that the Judgment in the Mavrommatis case furnishes
clear support for that proposition-that is, that in order to invoke
the compulsory jurisdiciion clause in any mandate, an applicant must
have a legal right or an .interest in the matter intended for adjudication
by the Court. The majority of the Court in the Mavrommatis case
defined a dispute ai page II of the reported Judgment as "a disagreement
on apoint of law or fact, a conflict of legal views or of interests between
two persons". But, Mr. President, the majority was careful in dernon-
strating that the app1ic;mt in that particular case had a legal interest
in the matter in dispute. A legal interest on the part of the Governrnent
of the Greek Republic u.as involved, so the majority held, on the bais
of a principle in international Iaw that a State is entitled to protect
its subjects when injured by acts contrary to international law com-
mitted by another Stattiwith the result, then, that in taking up the
case of its subject the a1)plicant State was "in reality asserting its own
rights". (P.C.I.J.,Series A, No. 2,30 August 1924p ,. 23.)
It is also clear, as we i~idicated at pages 377-3(1)of the Preliminary
Objections, that also in the five dissenting opinions in that case a legal
right or interest was regarded as necessary for locus standi on the part
of the applicant. We have set out, at pages 377-379 of the written
Objections, quotations from the opinions of the dissenting judgments
in the Mavromlnatis case, and there is no need for me to read them
again. But it is clear that the views of al1the Judges in that case with
regard to this aspect of jurisdiction reçt on a sound legal basis, and
that can easily be demonstrated. Let us assume, for instance, that
instead of the Greek Gcvernment, some other Member of the League202 SOUTH WEST AFRICA
of Nations at the time had atternpted to espouse the cause of Mr. Ma-
vrommatis. Would the Court have had jurisdiction in such a case?
Surely the answer must be an emphatic "No"! And why would the Court
not have had jurisdiction when such other Member of the League fitted
the description of States entitled to invoke the compulsory jurisdiction
clause, and when the matter in conflict was one concerning the inter-
pretation or application of the provisions of the Mandate? The reason,
of course, is that in the hypothetical case that 1 have postulated the
applicant State would have had no legal interest in the disagreement
or conflict between the Mandatory and Mr. hlavrommatis, who was
not its subject. In such a case there would not have been a dispute
as envisaged in the compulsory jurisdiction clause, and therefore no
locus shndi on the part of the applicant State.
If the word "dispute" in Article 7 embraced al1 disagreements or
conflicts, irrespective of any legal right or interest on the part of the
State seeking to invoke the Article, then surely there would have been
no cause for the Court in the Mavrommatis case to have enquired, as it
in fact did,into the legal rights of the applicant State.
At page 457 (1) of their Observations, the Applicants refer to our con-
tention that no dispute is envisaged by Article7unless the subject-matter
affects a material interest of the Applicant State or its national. Then
they go on to say that, in support of its contention, Respondent cites,
inter alla,the Mavrommatis case; and they submit later, at the same
page, that the opinions in the Mavro~îzmatis case do not in fact support
Respondent's view. At pages 446-467(1) of their Observations tlie Appli-
cants deal with the Mavrommatis case,but nowhere do they state a denial
of Our contention that that case is clear authority for the proposition
that a State, in order to invoke the compulsory jurisdiction clause,
must have a legal right or interest in the matter submitted for adjudi-
cation to the Court.
At page 450 (1) of their Observations, the Applicants quote the defini-
tion ofa "dispute" from the Majority view in the Mavrommatis case, that
is,as defined by the Majority, "a disagreement on a point of law or fact, a
conflict of legal views or of interests betweentwo perçons". The Applicants
then Say that "this definition ... is in complete accord with a number
of subsequent definitions of the term 'dispute' rendered by the Per-
manent Court as well as by this Court", and they state that "the only
disagreement [in the cases to which they refer] appears to have centred
upon the question of when a disagreement or conflict must have been
manifested". (Obsevvations,pp. 450-451 (I).)
That statement is correct as far as itgoes. But in none of the cases
referred to by the Applicants, nor in any other case that we are aware
of, has there ever been an attempt to bring to Court as a dispute in
contentious proceedings a matter in which the Applicant State had no
legal interest or right,either directly or through its subjects.
Zn fact, Mr. Yresident, the Applicants themselves seek to found
their case as to locus standi on the contention that they (as fofmer
Members of the League of Nations or as Members of the United Nations)
have a legal interest in the matterç presently before this Court; they
Say, at pages 91-92 (1) of their Memorials, as follows:
"The Applicant has a legal interest in seeing to it through judicial
process that the sacred trust of civilization created by the Mandate
is not violated." rl:'3GUMENT OF MR+ MULLER 203
This contention is repi:ated at page463 (1) of the Observations, where -
we find the following :
"... it was indeed ;:he intention of the founders of the Mandates
System to grant to each Member of the League a 'legal interest' in
the observance by 1:heMandatory of its obligations for the benefit
of the inhabitants of the Mandated territories".
Now, this contention of the Applicants, that is, that they have a legal
interest in seeing to it, through judicial process, that the sacred trust
of civilization isnot violated, can be sound only if, upon a proper
construction of Article 22 of the Covenant and the Mandate instrument,
certain conclusions fo1lc.w.And the first conclusion must be that the
Mernbers of the League urereintended to have individually a legal interest
in the observance by the Mandatory of the conditions imposed in the
Mandate for the benefii of the inhabitants of the territory, even in
cases where the breach of these obligations by the Mandatory did not
affect the material interests of individual League hlembers, either
directly or through their nationals. And the second conclusion that must
follow is that, in view of such a legal interest, if it is held to exist, each
Member of the League, if it considered that the Mandatory waç not
observing its obligations towards the inhabitants, was entitled not only
to raise the matter in the League for its consideration and attention,
but also to take it up directly with the Mandatory and, failingsatisfaction,
to institute contentious yroceedings against the Mandatory with regard
thereto.
The answer to both the ahove questions must depend on the intention
of the parties.Of course:, the intention of the parties must, primarily,
at least, be ascertained from an interpretation of Article22 of the Cove-
nant and the Mandate instrument.
With regard to the first of the propositions that 1 have stated as
conclusions which must follow from the Applicants' contention, a con-
sideration whether indivi.dua1 League Members were intended to have a
legal interest in the observancc by the Mandatory of its duties towards
the inhabitants is necessary, not because there miist he read into ArticI7
a requirement which is r~otincluded in the text, but because the word
"dispute" in the very context of a compulsory jurisdiction clause bears,
as 1 have indicated, an inherent qualification, that qualification heing
a disagreement or conffict relating to a matter in which the Applicant
who moves the Court has a Iegal right or legal interest.
If, after due considerationit is found that individual League Members
were not intended to have such a legal interest, then itfollows that the
Applicants have no legal interest in the matters which are presently
before the Court, and c~nsequently there urould then be no dispute as
envisaged in Article 7,fol adjudication by the Court. That in itself would
put an end to the matti:r in that this particuiar Objection must then
succeed, with respect; and that is so without reading into Article 7 a
requirernent which is not included in the tevt thereof.
If, however, it were to bc found that League Members were intended
to have a Iegal interest in the observance by the Mandatory of its
obligations towards the ùihabitants, then, and then only, docs itbecome
necessary to consider the second of the propositions which 1have stated,
that is, whether that 1eg;ilinterest was intended to be exercised by the
League Aiembers collectiïrely, that is, by raising of matters for discussion 204 SOUTH WEST AFRICA
' in the League itself, or whether it was intended for individual League
Mernbers to be taken up in the form of disputes with the hlandatory
to which the provisions of Article 7 could apply.
The second general rernark made by the Applicants concerning our
contention that no dispute can exist unless the subject-matter of the
dispute affects the material interests of the Applicants States or their
nationals, is to be found at page450 (1) of the Observations. There the
Applicants Say:
"Applicants submit that Respondent's contention is not only
erroneous in substance, but also misconceived in logic. Ifrelevant
at aI1, Respondent's contention relates not to whether a 'dispute'
exists, but to whether or not the dispute relates tothe 'interpretation
or the application' of the Mandate. Applicants accordingly will dis-
cuss the contention under that heading in this Chapter."
Now, Jlr. President, this submission of the Applicants, we submit,
attracts to itself the very label which they seek to fix to Respondent's
contention, namely a misconception in logic. Our contention is not con-
cerned with the question whether the subject-matter of the dispute falls
within the category interpretation or application of the Mandate. We
assume, for the purposes of our argument, that it does so fall. Our
contention is concerned with the question whether the Applicants have
a legal interest in the matters complained of by them and if so whether
that interestwas intended to be enforceable by judicial process intems
of Article7 of the Mandate.
Both these questions, as 1 have already indicated, turn upon the
meaning of the word "dispute" in the compulsory jurisdiction clause.
To illustrate the correctness of this view we can again have regard to
the Mavrommatis case.
Let us assume that instead of the Govemment of the Greek Republic
another League Mcmber at the time had attempted to espouse the cause
of the Greek citizen Rlavrommatis. The Court surely would havehad no
jurisdiction-not because the subject-matter of the claim would have
been any different from what it in fact was, that is one concerning the
interpretation and applicatioii of the Mandate, but because of the absence
of any legal right on the part of the Applicant and therefore the absence
of a dispute as envisaged in the compulsory juriçdiction clause.
Nre wiil therefore deal ivith the rnatter under what we conceive and
contend to be the correct rubric, namely whether there is a dispute, and
not under the heading chosen by the Applicants, namely whether the
dispute concerns the interpretation or application of the Mandate.
Having clarified the issues, 1 will now deal first with Our contention
that it was not intended that League Members should individually have
iegal rights or interests in the observance by the Ilandatory of the
conditions imposed in the Mandate for the benefit of the inhabitants of
Mandated territories, so far as the non-observance thereof would not
affect the material interests of individual Lcague Members either directly
or through their nationals.
This contention raises, in the first place, the question whether the
League of Nations was a legal persona or not.
At page 308 (1) of Ourwritten Objections, we cited weighty authority
for the view that the League of Nations +vas a corporate body endowed
with legal personality. ARGUMENT OF MR. MULLER 205
Nowhere in their Observations do the Applicants contest the propo-
sition that the League was a legal fiersona. On the contrary, at page
448 (1) of their Observrltions, the Applicants state as follows:
"Respondent's argument misses the central point. If the League
still existed as such, anda State withdrew from membership, there
would still rernaina corporate bodyand a membership thereof which
could assure cornpliance with the Mandate."
A recognition then on the part of the Applicants that the League was a
corporate body.And, in kt, they propound an argument at page 446 (1)
of their Observations wliich seeks to apply to the League the operation
of a so-called carry-ove;: principle, a principle which, according to the
Applicants, is, byvirtu~ of certain statutory provisions in the laws of
various States, applicabie to corporations.
We have already dealt with the carry-over, or so-called carry-over
principle, but 1 mercly refer to it at this stage of my argument as proof
of the Applicants' accqitance of the proposition that the League was
a legal persona.
Now, with the League as a legal $ersona, it'is only naturd and logical,
we Say, that the obligations imposed for the benefit of the inhabitants
would have been owed to the League on whose behalf the Mandatory
undertook to exercise t'he Mandate. League Members would then, by
virtue of their membership, be entitled to participate in the League's
supervision of the Mandate, but would individually, vis-à-visthe hlan-
datory, have no legal right or interest in the observancby the Mandatory
of itç duties to theinhalrtitants.
It may be argued thal: in contracting with the Mandatory the League
obtained rights not only for itself but also for the individual Members,
either by way of a contract of agency or a contract for the benefit of
Members as third partie!;.
That the League in so contracting obtained for its individual Members
a legal interest in the provisions of the Mandate in so far as the non-
observance thereof coulil affect the material interests of the Members
or their nationals is not disputed by us.
With regard to the provisions of the Mandate which were intended
solely for the benefit oii theinhabitants, the non-observance whereof
could not affect the material interests of individual League Members or
of their nationals, the position, we submit, is, however, entirely different.
The provisions of Article22 of the Covenant and those of the Mandate
itself appear to exclud? the possibility that League Members wTe
intended to have a legal interest in matters notaffecting their material
intereçts, that is in mat.ters which could affect only the inhabitants:
Thus, in paragraph 2 of Article22 of the Covenant, there is a provis~on
in explicit terms that th(: Mandate should be exercised "on behalf of the
League". It did not prolidc that it should be exercised on behalf of the
League and its Members. This provision was repeated in the preamble
to the Mandate instnim~nt.
Then Article 7 of the Mandate made provision for modification of the
terms of the Mandate with the consent of the Council of the League.
Article 7 reads as fol10w:~:
"The consent of the Council of the League of Nations is required
for any modificatiorr of the terms of the present Mandate ..." 206 SOUTH WEST AFRICA
There was no provision which required that the consent of individual
League Members be obtained, nor even that individual League Members
be consulted with regard to any proposed change of the terms of the
Mandate.
Another point is that paragaph I of Article 22 of the Covenant
provides that the securities for the performance of the sacred trust of
civilkation were embodied in the Covenant itself. And the only securities
mentioned in the Covenant were those prescribed in paragraphs 7 and g
of Article22. These paragraphs read as follows:
''7.In every case of mandate. the Mandatory shall render to the
Council an annual report in reference to the temtory committed to
its charge..
g. A permanent Commission shall be constitutcd to receive and
examine the annual reports of the Mandatories and to advise the
Council on al1rnatters reIating to the observance of the mandates."
The Covenant did not providc, or contemplate, any accounting by a
Mandatory for its administration of the Mandate to individual League
Members, the only provisions, as 1 have indicated, being paragraphs
7 and 9 providing for accounting to the League itself. Moreover, the
hfandatory'ç annual report had to be to the satisfaction of the Council.
Individual League hlembers had no say with regard to the nature and
scope of the contents of such a report.
When, therefore, the Covenant of the League, in Article 22, provided
in explicit terms that the Nandate would be exercised on behalf of the
League and not on behalf of the League and its Members; when Article
22 was intended to embody the securities for the performance of the
sacrcd trust and provided for accountability to the League only and not
also to its Members, and when iii addition the Council, in framing the
Mandate instruments, retained for ifseithe right to consent, nithout
reference to individualLeague &lembers, to any modification of the terms
of the Mandate, surely then it would be strange if in the Mandate in-
struments it was intended to confer on individual League Members a
legal interest in the observance by the Mandatory of its obligations, in
so far as such obligations affected only the inhabitants of Mandated
territories. Surely if that were the intention, it would have been stated
in explicit terms.
Mr. President, having tested the Applicants' contention against the
provisions of the Covenant and the Mandate instrument, let us have
regard ta the probabilities of thc matter, because Our submission will be
that Applicant's contention also nins counter to the probabilities.
Supervisory functions with regard to Mandates were, in express terms,
reserved not for the AssembIy of the League but for the Council-a
particular organ of the League with limited mernbershipacting aith
the assistance of another particular body, the Permanent Mandates
Commission. We Say that it could hardly have been the intention that
in addition to the superviçory functions of the Council each and every
Member of the League wouId, by virtue of an individual lcgal interest,
stand in the position of a custodian of the rights of the inhabitants of
Mandated territories.
One cannot conceive of the Council intending, and the respective
Mandatories agreeing, that despite the express reservation of superviçory
. functions to the Council, individual League Members would be entitled AILGUMENTOF >IR. MULLER z07
to assert legal rights with rcgard to the Mandatories' legislative acts
and administrative meajures concerning the inhabitants of Nandated
territories. This could bring about interference by individual League
Members in al1 aspects of Government policy and political situations
involving the peoples of Mandated territories.
Surely the position of a Mandatory would, to Say the least, have been
extrernely invidious under such circurnstances. In accounting for its
administration to the Ccbuncilof the League it may have satisfied that
body on al1 matters affecting the inhabitants, but still an individual
League Member, disagrecing with the Mandatory and with the unanim-
ous views of the Mernber!;of the Council, and perhaps even with al1other
Members of the League, could, by virtue of its legal rights, seek to impose
on the Mandatory its own particular views as to the proper administration
of the Mandate. And the Council's position in such circumstances would
have been equally invidious: the very conferrnent, we subrnit, on indivi-
dual League Members ofpowers equal to,and concurrent with, thoseof the
Council relative to Mandate administration would have tended to under-
mine the Council's authority in that field.
One needs but look at the functions entrusted to the various organs
of the League to realize tliat a right such as claimed by the Applicants for
themselves as individual League Mernbers could never have been in-
tended.
A League of Nations publication-The Mandate System-Origin-
Principles-Application--makes it clear that the right to take decisions
in regard to Mandate qiiestions belonged solely to the Council of the
League. We cite from tfiis publication at page 385 (1) of the written
Objections :
"Thus the role oi the Assernbly consists in the exercise of a
certain moral and very general influence in this domain. [That is
relative to mandate administration.] Its function may be said to be
to rnaktain touch btttween public opinion and the Council.
The right torake aecisions in regardto mandate questionsbalongs,
however, tutheCo~ncil. It exercises its supervision with the aidofthe
Permanent Mandate:; Commission, instituted by the Covenant itself.
The Covenant provides that this Commission is 'to receive and
examine the annual reports of the Mandatories and to advise the
Council on al1 matters relating to the observance of the mandates'.
It is therefore essentially an advisory body-a body whose duty it
isto examine and report-designed to assist the Councilin carrying
out its task.Its worlc is prelirninary in character. Constitutionally,
ithas no fiower to taXedecisionsbinding on the mandatoryPowers or
to address direct recolnmendationsto tkem. Its conclusions are not
final until they have been approved by the Council."
It is clear, then, as we read from that pubIication, thatthe Permanent
Mandates Commission-a body of experts-provided for in the Covenant
as an important cog in the system of Mandate supervision, was not
even entitled toaddress a recomrnendation to a Mandatory ; and even the
Assernbly cornposed of al1the Mernber States could take no decisions in
regard to Mandate questions. Surely, then, it could not have been in-
tended that an individuil League Member would have the right to
decide for itself what meaisures should be adopted by a Mandatory, or208 SOUTH WEST AFRICA
should not be adopted, and then to assert aright against the Mandatory
in that regard.
The Applicants' contention must result in at Ieast the acceptance of
the possibility that an individual League Member could assert rights
against a Mandatory with regard to matters of policy in Mandate admin-
istration.
But even more, it must result also in the acceptance of a possibility
that in the exercise of its individual rights a League Member could,
on its own, seek to dictate to a Mandatory the adoption of a particular
policy, and that so, despite the fact that such a policy may have been
consideredunwise bythe Mandates Commission, outvoted by the General
Assembly and even rejected by the Council of the League.
Furthermore, the Mandatory could stand in the midst of conflicting
demands upon itby different Memberswho do not seeeye to eye with the
Mandatory and with each other as to policies to be applied in Mandate
administration. One Member could favour a particular policy, another
Mernber an entirely different policy.
Surely the question whether such a situation could ever have been
intended need but be asked to answer itself.
We therefore contend that individual Members of the League were not
intended to have a legal right or interest in the observance by the Man-
datory of conditions imposed in the Mandate for the benefit of the in-
habitants of the Mandated terntory, the non-observance of which could
not affect thematerial interests of the individual League Members, either
directly or through their nationals.
That League Members were meant to have certain legal rights in the
administration of Mandated territories is clear. Each of the Mandate
instruments contained provisions apparently intended also for the benefit
of Member States and their nationals. We have, for example, the open
door provisions appearing in al1the -4and the B Mandates and we have
provisions in the C Mandates relative to the rights of freedom of move-
ment of missionaries who are nationals of League Members. Then there
were also contained in the Mandate instruments other provisions,
primarily intended for the benefit of the inhabitants, but the non-
observance of which could, however, affect also the material interests of
individual League hlembers. To mention, as examples, the provisions with
regard to the slave trade, provisions with regard to traffic in liquor if
these provisions were violated by a Mandatory it could perhaps affect a
neighbouring State which, being a Member of the League, would then
have a right to object and would have a legal right to assert in that
respect. But inour submission it foIlows,not only from a proper construc-
tion of Article22 of the Covenant and the Mandate instrument, but also
frorn a consideration of al1 the probabilities that League Members
were not intended to have a legal interest of the kind contended for by
the Applicants, namely a legal interest to see to it that a Mandatory
observed its obligations to the inhabitants, and that so even where a
League Member was unable to point at any matter affecting its own
nationals or itself.
We Say that, inasmuch as the Applicants do not, and in truth cannot,
contend that they or their nationais are affected by thematters in conflict
in these cases, their legal interests are not involved and there is accord-
ingly no dispute as envisaged in Article 7 of the Mandate for adjudica-
tion by the Court. AFLGUMENT OF MR. MULLER Zog
But, Mr. President, if,contrary to what 1 have just submitted, it
should be held that individual League Members were intended to have
a legal interest in the obc,ervance by a Mandatory of al1 its obligations,
including also the obligations intended soleIy for the benefit of the
inhabitants, the non-observance whereof could not affect Member States
either directly or throughtheir nationals, then the further question arises,
and that is,whether such interest, in so far as it concerned the welf
being of the inhabitants, waç intended to be exercised only by partici-
pation in League procec~dings regarding Mandates, or also by direct
action against a Mandatory and invocation of Article 7.
Individual League Mernbers could have had such a broad interest as
1 have indicated, only if it should be held, contrary to the weighty
authority relied on by us, and apparently accepted by the Applicants,
that the League was noi a legal fiersona and that al1 the Mandatory
obligations were consequently intended to be on?edto the individual
League Members; or, ithe League should be regarded as a legal $ersona,
that, despite the provisions of Article22 of the Covenant and the Man-
date instrument, and despite the anomalies and implications which 1
have mentioned, it was iiitended that a legal interest in the observance
ofal1the provisions of the Mandate shouId vest not only in the League as
a corporate body but alsc.in the individual League Members.
Again, in that respect, the enquiry centres around the provisions of the
Covenant and the Mandate instrument and around the probabilities af
the case.
Looking first at the Cclvenant and the Mandate instrument, we find
that according to paragraph I of Article 22 of the Covenant securities
for the performance of the sacred trust of civilization were embodied
in the Covenant itself. With regard to supervision of the Mandatories
in the exercise of their Mandates, the Covenant made provision only for
supervision by the Council of the League.
There was no mention inArticle 22 of the Covenant, or in any other
part of the Covenant, of a :formofjudicial supervision, or, for that matter,
any form of supervision other than that to be exercised by the League
itself.
We Say, then, that it is unlikely that, in the absence of any provision
to that effect in the Cove~iant, Article7 of the Mandate was intended to
establish a form of judicial supervision. If it were so intended, one would
surely have expected it tc. be expressed in very clear terms.
Moreover, where provii,ion was made for supervision by the League
itself,what need was there for an additional and independent supervisory
body? The League was enpowered to deal with al1matters pertaining to
Mandate administration. Individual Members could raise for discussion
in the organs ofthe Leagiie any matters pertaining to Mandate admin-
istration and, in thatrnanrier, they could assert whatever legal rights they
had in the observance by the Mandatory of its obligations in so faras the
inhabitants were concerned. In any matter which involved a legal ques-
tion concerning the interpretation or application of the provisions of the
Mandate, the League could have had resort to the Court for an advisory
opinion.
We Say that it is unlik~ly that the Council of the League could have
considered that there would be need for judicial supervision ofthe nature
contended for by the Applicants. In Our submission such a view on the
part of the Council would have been tantamount to an acknowledgrnent210 SOUTH WEST AFRICA
in advance of a possible failurof its supervision; and,surely,the Council
must have foreseen the danger of conflict or interference with its own
supervision.
In this respect attention is again drawn to the anomalous situations
which could arise if, in addition to the League's supervision, individual
Member States were entitled to interfere with the exercise bya Mandatory
of its legislative and administrative powers.
The position becomes al1 the more anomalous if such interference
was armed with the right of subjecting the Mandatory to legal procee-
dings.
A Member of the League, being dissatisfied with the Mandatory's ad-
ministration, and not being content with the Councii's approval thereof,
could demand a change under threat of legal proceedings. The position
could arise where different States make different and even conflicting
demands on the Mandatory which, if not resolved by negotiation, could
be submitted to the Court.
Now, how could a Mandatory whose administration carried the appro-
val of the League negotiate for a change which could conAict with the
views of the Council? Concessions made to one Member could still be
rejected by another, or the others; and the Mandatory's willingness to
effect changes andto negotiate a settlement would have been of no avail,
resulting in its having to defend judicial proceedings at the instance of
one or other, or perhaps even both such States.
The very idea of such negotiation sounds unreal-not only in the com-
plicated circumstances that 1 have just mentioned, but in any case
involving matters of policy, as applied in legislative measures and
administrative acts.
Furthemore, as we have indicated at pages 386-388 (1) of Ourwritten
Objections, the Court could then be called upon to function as an
umpire in matters of a purely political nature, namely, to pronounce
upon the soundness of a Mandatory's legislative acts and administrative
measures involving the material and moral well-being and the social
progress of the inhabitants of a Mandated territory.
In our submission, such a role could not have been intended for the
Court ; we Say it is a role outside the normal functions of Courts of law.
The compulsory jurisdiction clause was meant, we submit, for the
protection of Member States, that is, to obtain judicial pronouncement
on matters which affect their material interests, either directly or
through their nationals. 1 have already mentioned examples of the
material interests of States that could be affected.
In Our submission, the Applicants' contention that the purpose of the
clause was to eçtablish a judicial supervisory organ in the Mandates
system, is not only in conflict with the provisions of Article 22 of the
Covenant, but, as 1 have indicated, is also against a11the probabiIities.
To invoke the clause, as the Applicants attempt to do, with the
intention, as they Say, of. benefiting only. the inhabitants of South
West Africa, and without being able to point at any matter affecting the
material interests of the Applicants themselves, or of their subjects,
is, in our submission, an attempted application of the provisions of the
clause towards a purpose for which they were not intended.
In the premises, Mr. President, we submit that the Applicants have
no locus standi in the present proceedings and it follows then, in Our
submission, that the Court accordingly has no jurisdiction. ARGUMENT OF YR. MULLER 211
Mr. President, 1 deal next with the Applicants' reply to the con-
tentions raised by us iri regard to this Objection. They deal with it
at pages 456 (1) to 473 of the Observations, under the heading: "The
Dispute Relates to the 1;lterpretation and the Application of the Provi-
sions of the Mandate." New, as 1 have already stated, this is an inap-
propriate mbric for consideration of this Objection.
The AppIicants start off by qtioting from the majority view in the
Mavromnzatis case, that idispute covered by the compulsory jurisdiction
clause in the Mandate instruments
"may be of any nature; the language of the article in this respect
is as comprehensiv~: as possible (any dispute whatever ...) ; buin
everp case it must relate to the interpretation or the application
of the provisions of -iheMandate". (Observations,p. 456 (I).)
The Applicants then proceed to restate the matters with regard
whereto there exists a conflict or disagreement between them and
Respondent, in order to demonstrate that these matterç concern the
interpretation and the anplicatior1 of the provisions of the Mandate.
Now, for the purposes of this Objection we have, of course, assumed
that the matters now bi:fore the Court are covered by the provisions
of Article7 of the Mandate, inso far asthat Article requises that matters
for adjudication must relate to the interpretation or the application of
the provisions of the Mandate.
Our contention, as aclvanced in the written Objections, and as 1
have already dealt with iiargument, is that the confiict or disagreement
between the parties does not coastitute a "dispute" as envisaged in
Article 7 of the Mandate.
Our case in this respitct is very tersely put by the Applicants at
page 457 (1) of their Obr;ervations, where they Say as follows:
"Respondent, ho~.ever, coritends that no 'dispute' is envisaged
by Article 7 unless the subject-matter affects a material interest
of an Applicant Stat* or of itsnational."
Now, correct as this :,tatement may be, it does not bnng out the
grounds underlying Our contention. Theçe grounds are: firçtly, that the
word "dispute" in a jurisdiction cIause such as Article 7 connotes a
conflict or disagreement concerning matters in which the Applicant
has a legal right or interest. The second is that the Applicants as in-
dividual League Members were not intended to have a legal right or
interest in matters such as those now before the Court unless their
material interests were affected either directly or through theirnationals;
and inasmuch as their nlaterial interests are not affected, their legal
rights or interests are not involved, and therefore it cannot be said
that there is a dispute in tems of Article 7.Finally, that even if ican
be said that the Applicants have a legal right or Iegal interest in the
matters presently before the Court, we Say it was not intended that
such right or interest coilld, in the absence of anything affecting the
material interests of the Applicarits or their nationals, give rise to a
dispute envisaged in ArticIe 7 for the adjudication by the Court.
In proceeding, the AppIicants state that Respondent cites in support
of its position the "Mavrowzmatis case, the case of Jerusalem-Jafla
District Governorand anot1;erv. Sul~kan Murra and others,and the views
of four writers, Feinberg,Judge McNair, Wessels and Schwarzenberger".212 SOUTH WEST AFRICA'
(Obserwalions p,.457 (11.) That this statement is not entireIycorrect will
be shown later when 1 deal specificaiiy with these authonties.
A further statement by the Applicants is that "Respondent also
asserts general principles, including its view that the framers of the
Mandates system did not intend that a dispute of the sort involved
here [i.et.e proceedings presently before the Court] would be covered
by Article7". (Obsematioîzs p,. 457 (1).)
Now, this statement is correctas far as it goes, but it conveniently
omits any reference to the fact that for our contention bverely to a very
great extent on the provisions of Article 22 of the Covenant and on
the provisions of the Mandate instrument.
The Applicants follow up,in their Observations at pages 457-458, with
certain subrnissions. Those subniissions are: that "the opinions in the
Mavrommatis case and the Jerztsalem case do not ...support Respondent's
view"; secondly, that "two of the scholarly authorities cited by Res-
pondent do not support Respondent's contention, and a large number
of other scholars, expert in the Mandates system, support Applicants'
view"; thirdly, that "the framers of the Mandates system intended
that the type of dispute involved in the instant cases should be covered
by Article 7 of the Mandate"; and in the fourth place, that "even if
Article 7 were interpreted as requiring a so-called 'material interest',
such an interest is present" in the cases now before the Court,
1 will deal with each of these four submissions in the same order in
which they are dealt with by the Applicants in their Observations.
In regard to the first part of the.Applicantsl argument, there appears
under the heading: "The Purpose and History of the Compromissory
Clause in the Mandates System", the following passage, at page 458 (1):
"The announced intention of the founders of the Mandates
Systern, the circumstances surrounding the creation of the System,
and the nature of the structure they created, demonstrate that the
Permanent Court of International Justice was designed to be an .
integral part of the supervisory rnachinery of the system. It was
intended to adjudicate, at the instance of any Member of the League,
disputes affecting the interpretation and application of the Mandate
with respect to the well-being of the inhabitants of the Mandated
territories."
That is a statement in general of the Applicants' contention. Now,
on what is that contention founded?
First, the Applicants at that very page point to a so-caiied "overriding
concern demonstrated by the founders of the Mandates system forthe
well-being and development of the inhabitants" of Mandated territories.
They refer in this respect to Sresident Wilson's expressed view that
the "purpose [of the systern] was to serve the people in undeveloped
arts,and to safeguard them against abuses"; the Applicants Say that
'the concept of the 'sacred trust', the enplicit norms and standards
imposed on the Mandatory, and the unprecedented machinery of inter-
national supervision, al1 had their a~iimating principle inthe desire of
advanced nations to protect and assist peoples not yet able to stand
for themselves". (Observationsp,.458 (I),) Theygo on to quote this Court
in its Advisory Opinion of rg5o to the effect that "the Mandate was
created, in the interest of the inhabitants of the territory, and of hu-
manity in general, as an international institution with an international AEGUMENT OF MR. MULLER
213
object-a sacred trust of civilization". (1950 Opinion ,. 132.) They
then draw the conclusioii that "inasmuch as the well-being of the in-
habitants of Mandated territones constitutes the essential purpose of
the Mandates systern, it is impossible to accept Respondent's contention
thatthe Court may not entertain disputes which are primarily concerned
with the well-being of such inhabitants" (Observations, p.458 (1)) their
contention then being that it is impossible to accept Respondent's
contention that the well-being of the inhabitants may not be protected
by contentious proceedings.
But supposing, for the purposes of argument, that the Appiicants are
correct in saying that th,: well-being of the inhabitants constituted the
essential purpose, or an essential purpose, of the Mandates systern, how
does the conclusion foiLw that such well-being was intended to be
protected by judicial proceedings at the instance of individual Members
of the League?
Surely the question as to whether there was meant to be a form of
judicial supervision depends upon the intention of the authors of the
Mandates system, that is, the authors of the Covenant; and their
intentions must, primariIy at least, be gathered frorn an interpretation
of the provisions of the Covenant,
Let us then look at the provisions of the Covenant to see what was
the intention of the authors of the Mandates system. Article 22 of the
Covenant provided that the tutelage of the inhabitants should be exer-
cised on behalf of the Lrague, and there is no provision, as 1 have in-
dicated, for it to be exercised on behalf of individual League Members,
as one would have expected if the intention were to confer on individual
League Members rights eqforcible by judicial process with regard to the
well-being of the inhabit~nts.
Article 22 recorded that the securities for the performance of the
sacred trust, that is the ;ecurities for the protection and promotion of
the well-being of inhabit.ants of Mandated territories, were embodied
in the Covenant, and as 1have indicated, Article 22 prescribed securities
only in the form of certain supervisory machinery to be found in the
Council of the League and in the Permanent Mandates Commission.
No other form of supervision was either mentioned or contemplated in
Article 22, or, for that nlatter, in any other part of the Covenant.
The Couneil of the League was empowered, in terms of paragraph 8
of Article 22, to define iri each case the degree of authority, control or
administration to be exei'cised by the Mandatory. The Council was not
authorized tocreate additional supervisory machinery not provided for
in the Covenant.
In the light of these uxplicit provisions of Article 22, how can it
then be said that Article 7 of the Mandate was intended to create an
additional security or safeguard in the forrn of judicial supervision?
The Applicants, however, with remarkable facility, we submit, disregard
entirely the express provisions of Article22 of the Covenant and, more-
over, they avoid the argument propounded by us with reference thereto.
Nowhere in their Observations do they take us up on Our contentions
that, by reference to the Covenant and the provisions of the Mandate,
itisclear that the intentions of the authors of the system did not include
an idea of a judicialsupei-visory organ.2 14 SOUTH WEST AFRICA
[Publi heariwg ofIO October1962, ajternoon]
Mr. President, 1 am still dealing with the Applicants' reply to aur
contention that Article 7 of the Mandate was not intended to introduce
a form of judicial supervision into the Mandates system. The Applicants
at page 459 (1) of their Observations make the statement that "It is
significant that the authors of the Mandates system included a suprerne
judicial power within the organic structure of that system". But this state-
ment, we say, is far removed from the realities of the situation. As 1have
already indicated, the authors of the Mandates system described the
structure of that system and prescribed the supervisory machinery for
the system in Article 22 of the Covenant, which, as I have indicated,
makes no mention of a judicial power, supreme or otherwise. In fact,
as far as we are aware there was not even any discussion with regard
to judicial power or judicial supervision when the Mandates system was
planned, that is,before and at the time of drafting of the Covenant.
If the compulsory jurisdiction clause in the Mandate instruments was
intended to introduce a form of judicial supervision, it would indeed
mean that the CounciI of the League, which body was empowered to
define only the degree of authority, control or administration to be
exercised by the ilfandatory in each case, and which body purported,
according to the preamble in each of the Mandate instruments, to do
only that, in factwent further;that it excceded its authorityand created
supervisory machinery for the Mandates systetn not conternpiated by
the authors of that system;and moreover, as Applicants wish to see it,
machinery of superior authority to that prescribed by the authors of
the system, namely, as the Applicants tcrm it, a supreme judicial
authority. Surely such a suggestion cannot be accepted as a matter of
probability.
How do the Applicants proceed further in their argument? They Say
at page 459 (1) of their Observations that:
"Mandatories were required to agree when a Mandate was confer-
red that disputes conceriiing the Mandate between themselves and
another Member of the Organization to which they belonged would
be submitted to the Permanent Court of International Justice."
Now of course the respective Mandatories did agree to thc comyulsory
jurisdiction clausein each Mandate instrument. If that is what the
Applicants intend to convey. we have no quarrel with regard to the
statement. If, hotvever, they intend something more than that, then we
say it is without any justification.
Next, at page 459 (1) of the Observations, cornes the statement of the
Applicants that "The Court, itself, was, like the Mandates system, a
creation of the Covenant". Now, how this fact supports the Applicants'
contention is not clear to me.
They go on at page 459 to say that:
"Far from objecting to the establishment of a supreme judicial
authority, the Council not only accepted it as an ancillary of the
Mandates System by 'confirming' the instrument in which it ap-
peared, but also amended the original draft so that the Mandatory,
and only the Nandatory, would be subject to compulsory jurisdiction
at the instance of another Member of the League." AI:GUMEKT OF MR. MULLER z15
Now let us analyze th- contentions wrapped up in this statement.
The fact that the Couricil confirmed each of the Mandate instruments
with a compulsory jurisdiction clause in the text shows, of course, that
it did not object to such a clause; but that the Council saw the purpose
of that clause as the establishment of a supreme judiciaI authority or
that it regarded the judicial authority provided for in the clause as an
ancillary of the Mandates system is, of course, a view expressed by the ,
Applicants without advancing any basis for it. The amendment by the
Council of the draft conipulsory jurisdiction cIause referred to by the
Applicants at that page is dealt with in the report submitted to the
Council by Viscount Ishii. At page 459 (1) of the Observations there is a
refcrence to this reportaiid, with respect, 1 think it is a wrong reference.
The first footnote at page 459 of the Observations is "See Report to the
Council of thc League of Nations submitted by Viscount Ishii, February
20, 1922, League of Natjons Off. J., No. 7 (1922), p. 849 at 8j4". We
find the report in the eigh.tfiO@cialJournal of that year at the very page
to which the Applicants refer, and Iwant to quote from that report the
portion that is material. It deals with Article 13 of what was proposed
as the British draft Mandate for East Africa; and that portion of the
report reads as follows:
"The Council will perhaps dcsire to alter thc hrst paragraph of
this article so that jt shall read as follows:
'The Ma?zdatoryagreesthat any dispute whateverwhich naayarise
befween himself a7,d another Member of the League of Nations,
relaling tu the intej$retation or afiplication of the provisio?thef
present mandate, zl~hichcannot be settled by negotiation, shallbe
submitted to the Permanent Couri O/Interfialional Justice provided
for in Article 14 oj'the Covenant of the League of Nations.'
A similar a1teratio.n has been made by the-Council in the draft C
mandates. It was inçired by the consideration that Members of the
League other than the Rlandatory could not be forced against their
will to submit their differences to the Permanent Court of Inter-
national Justice."
Now although the report does not record the wording of the relevant
clause as originally draftt:d, the reasons advanced in the report for the
suggested amendment are clear. The intention was that only Mandatories
should, by virtue ofthe cI:~use,be subject to the junsdiction of the Court;
but that doeç not indicatt: any intention to subject thern to jurisdiction
in the form of supervisorj. machinery. And the further conclusion which
the Applicants draw from the fact that there was such an amendment,
narnely a conclusion that it was consistent with their fiduciary role that
Mandatories were requireil to consent to the Court's jurisdictionwe Say
is unfounded, that is if is intended to convey a notion of judicial
supervision imposed for i.he benefit of the inhabitants of a Mandated
territory. The Applicants, in fact, advance nothing in support of such
a notion.
Also at page 459 (1) of the Observations the Applicants go on to Say
that "Compulsory jurisdic:tion in Mandate matters was instituted, then,
for the same reason that the Mandatory was required to submit annual
reports to the Council". New this statement, advanced in the form of a
conclusion; and presumably based upon what the Applicants had stated216 SOUTH WEST AFRICA
in their Observations up to that point, is not only in conflict with the
express provisions of Article 22 of the Covenant and with the other
provisions of the Mandate itself, but we Say it is not supported by any
historical fact or circumstance-it rests purelyand simply on the Appli-
cants' own views as to the purpose of the clause in question.
Applicants develop their conclusioi~further by saying that the League
"was not content to depend solely upon the conscience, or, indeed,
the cornpetence of the Mandatory for the proper exercise of the
Mandate. Rather, it devised a system whereby the Mandatory's ad-
ministration of the Mandated territory was made subject to the
authority of the League and its Members to require the hlandatory
to report, account, and, if necessary, submit to adjudication."
(Observations,p. 459 (1).)
Mr. President, this of course is a convenient way of teleçcoping certain
provisions of Article 22 of the Covenant and certain provisions of the
Mandate instrument. We submit, however, that there is no justification
for doing so. In terms both of the Covenant and the Mandate instrument,
the Mandate Ras to be exercised on behalf of the League and the Man-
datory was obliged to report to the Council of the League. No authority
or right of interference was conferred on individual League Members
with regard to the Mandatory's duty to report and account. On the other
hand, the compulçory jurisdiction cIause specjfically provided that the
Mandatory would submit to the jurisdiction of the Court at the instance
of another Member of the League, and then only in respect of disputes
between the Mandatory as such and that other Member. No provision
was made for the League to resort to judicial proceedings against the
Mandatory, or to refer iis disputes with the Mandatory for adjudication
by the Court in contentious proceedings. Ry so telescoping the provisions
relative to accounting to the League and the provisions of Article 7 of
the Mandate, the AppLicants attempt to claim rights for League Members
which they were not intended to have. And they extend the provisions
of Article 7 to the League as an organization. Again that is something
which was not intended or expressed in the Mandate.
The Applicants also state that the Permanent Court was intended as
an integral part of the system's supervisory machinery protecting the
inhabitants, and that the authorities so classify and regard it; and
further that each Member of the League, under the defined circumstances,
was empowered to invoke the jurisdiction of the Court to ensure that
the basic purpose of the Mandates system-the well-being and develop-
ment of the inhabitants-would be fulfîiled. Now, Save for the reference
to the views of the authorities, judicial and scholarly, which 1 will deal
with Iater, this statement is a mere repetition of the Applicants' con-
tention which 1 have already dealt with, and there is nothing advanced
in support of it.
As an indication ofthe intention ofthe authors of the Mandate system,
the Applicantsdraw attention at page 459 (1) of their Observations tothe
fact that in one of the Mandate instruments, namely that for the Man-
dated temitory of Tanganyika, there appeared an additional paragraph
which provided that Members of the League coiild bring before the
Court claimson behaIf of their nationals for infractions of their rights
under that particular Mandate. AFGUMENT OF MR. hlULLER 217
Xow the Applicants say that as a matter of history this additional
paragraph appeared in z-11the Mandate instruments and that at some
stage before the final co;~firmation of the Mandates-though it cannot
be established at what particular stage-the additional paragraph was
excised from al1the Mandate instruments Save that of the Mandate for
Tanganyika. "This history ", the Applicants Say further, "creates pro-
found difficulty for Resyondent's contention that a 'matenal interest' of
a State, or its nationals, must be affected before the compromissory
clause rnay be invoked silice it demonstrates that there was at least some
original thought that the general paragraph did not provide for the
claimç of nationals at all."(Observations,p. 460(1).) In this respect the
Applicants also refer to 1he views expressed by two Judges of the Per-
manent Court in the Mszvrommatis case, the Judges being Judge de
Bustamante and Judge Oda, their view being that "Members of the
League were not empowtired under the compromissory clauses, Iacking
the addidional paragrapl-Lcontinued [sic] in the East Africa Mandate,
to protect the rights of their own nationals before the Court, but could
protect only interests of a general nature". (Obsemations,p. 459 (I).)
Now, in the first place, we Say that the history of the additional
paragraph found in the Tanganyika Mandate is not clear. It is not even
clear whether the additional paragraph was originally inserted inal1 the
Mandates, including the (3Mandates, and later excised from al1but the
Mandate for Tanganyika, or whether it originally appeared only in the
B Mandates, or for that matter only in the Mandate for Tanganyika.
It will be noted that the Applicants do not refer to any writings or any
record of history for their statement at page 460 (1) of the Observations
to the effect that the additional clause originally appeared in athe Man-
dates and was later exciscd from al1except the Mandate for Tanganyika.
However,even if the Applicants' statement iscorrect in so far as the
history goes, we çubmit that no conclusion which supports the Applicants'
general contention can bc:drawn therefrom.
Iwill deal later with the Mav~olamaiis case and the views expressed
by the majority, as welI as the dissenting judgeç, in that case. At this
stage 1 wish merely to niention the fact that the majority decision in
that case was to the effi:ct that the compulsory jurisdiction clause in
the Mandate for Palestine, which did not include the additional para-
graph, allowed for the protection by Members of the League of therights
of their nationals.
But even if it isconcedetl that there may have been someoriginal thought
to the contrary, that dot:s not mean that the compulsory jurisdiction
cIause in the form in which it appears in al1the Mandates, and without
the additional paragraph found in the Mandate for Tanganyika, was
intended to be invoked for the protection of the interests of the in-
habitants of Iblandated ti:rritories, Apart from the individual rights of
their nationals, States,as such, also have rights. Although the chapter
of history referred toby fhe Applicants rnay have a bearing on the ques-
tion whether it was iritended that Member States should be entitIed to
enforce the claims of thei:: nationals, it has no bearing on, and does not
refute, Our contention that Member Stateç were intended to invoke the
compulsory jurisdiction clause in assertion of their own rights in matters
affecting their material interests, andthat the clause was not intended
for espousing the cause of the inhabitants of Mandated territories.218 SOUTH WEST AFRICA
Also under the heading "The Purpose and History of the Compromis-
sory Clause in the Mandate System" Applicants comment, at page 460 (1)
of their Observations, upon certain arguments advanced by us insupport
of the contention that the probabilities are againstthe creation by means
of the cornpulsory jurisdiction clause of a system of judicial supervision.
In response to our submission that to assume a need for judicial
supervision would have been tantamount to an acknowledgment in
advance by the Council of the League of probable failure by it to perform
adequately the supervisory functions entrusted toit, the Applicants Say
that "judicial recourse implies no distrust of administrative supervision.
On the contrary, its purpose in the Mandates system is to enforce the
Mandate througli contentious proceedings, a power not vested in the
administrative or executive organs". (Observatioms, p. 460 (I).)
This line of reasoningby the Applicants proceeds on their assumption
that the authors of the Mandate system must have considered it essential
that Mandates be enforceable through contentious proceedings. Working
on this assumption, the Applicants point tothe fact that the onIy method
of initiating contentious proceedings is through States, for, as they Say,
only States rnay be parties to such proceedings; and thereiore, Say the
Applicants, the purpose of the compulsory jurisdiction clause in the
Mandate is to enforce the Mandate through contentious proceedings.
Building further on their iniîial premise, Applicants Say that States are
not custodians, that their right to institute judicial proceedings is not an
interference with the policies adopted by the Mandatories, that the
"State does not supervise; the State, rather, requests the Court to ad-
judicate a dispute. In doing so it may act as the instrumentality by
which the Supervis~ry Organization as a whole may obtain a binding
decision by a contentious proceeding ." (Observations,p. 460 (1) .)
How far is this argument not removed from the realities of the legal
situation as provided for in the Covenant and the Mandate instruments?
In the first place, as regards Applicants' assumption, Article 22 of the
Covenant, which prescribed the securities for the performance of the
sacred trust, made no provision for enforcement of the Mandate through
contentious proceedings, nor does the Mandate instrument.
Secondly, the compulsory jurisdiction clause made provision for ad-
judication ofdisputes existing between a Mandatory and another Mernber
of the League of Nations; it made no provision for differenceswhich could
exist between the Mandatory and the organs of the League.
And finally, there is no provision indicating an intention that the
League, as the supervisory organization, should be entitled to obtain a
decision in contentious proceedings through the instrumentality of a
Member of the League of Nations.
The compulsory jurisdiction clause did not subject individual League
Members to the Council's decjsions concerning Mandate administration,
and if that clause brought into existence a form of judicial supervision,
then we say there is justification in our comment that individual League
Members would stand in the position of custodians of the rights of the
inhabitants of Mandated territories, that they could interfereinMandate
administration, and that so, even in disregard of the decisians of the
Council.
The Applicants' reply to oilr argument that if there was a form of
judicialsupervision a Mandatory might satisfy the Mandates Commission
and yet be attacked judicially by individual Members on the same point AIXGUMENT OF MR. MULLER 219
is that this underliiies the importance of the judicial jurisdiction in order
to obviate unresolved disputes between the Mandatory, on the one hand,
and Member States on the other.
This, of course, is no argument in answer to our complaint. Nor is it
an answer to Say, as tht: Applicants further do, that ifthe hlandatory's
position in such a dispui:e were to be based upon decisions or policies of
the Council and the Coinmission, the Court would no doubt give due
weight to such a record. No doubt the Court woztld take into consider-
ation the decisions of tlie Council and/or the views of the Cornmiçsion,
but that would not resolïw the difficulty foreseen by us.
The Court would, in such a case, still have to decide between the
opposed contentions, and the possibility of a decision against the Man-
datory, even though its policies may be favoured by the Council, cannot
be ruled out. And furthermore, even though the Court may, in such a
case, find in favour of Mandatory, there would still have been the
expense and inconvenierice involved in contentious proceedings.
Mr. Preçident, in our written Objections it was contended, at pageç
384-385 (1), that on anaIysis of the functions of the various organs of the
League in its supervision of Mandateadministration, and the implications
resultirtg therefrom, theri: is support for Ourdenial of the contention that
the Court was intended i:o act as an independent superviçory authority
at the instance of individual League Mernbers. In this respect, we drew
attention, as I have also done in the present argument, to the limitation
of powers of the Mandates Commission and of the General Assembly of
the League relative to Mandate administration, and we indicated that
ifthe cornpulsory jurisdiction clause was intended to provide a form of
judicial supervision, tlien, with regard to Mandate administration, it
would mean that the pourers of individual League Members far exceeded
those of both the Mandates Commission and the Genersl Assembly.
How do the Applicantsreact to that contention? We find their reaction
at page 461 (1) of the Observations where they Say:
"So far as concerns Respondent's implied criticism that the Court
might be induced 'icact as an independent supervisory authonty',
the fact is that only one contentious case, prior to the instancases,
was instituted under the compromissory clauses of the several Man-
dates, and that the instant cases were brought only after years of
unavailing negotiations with Respondent."
Now the prior case referred to by them is, of course, the Mavrommatis
case, a case in which a Member State eçpoused the claim of its own
national and did not appear in the role of a custodian on behalf of the
inhabitants of a Mandatml territory.
The fact that, in addition to the Mavrommatis case,the present cases
are the only ones yet broilght to Court under the compulsory jurisdiction
clauses of the several Mandates is no proof of judicious exercise of the
alleged right to invoke juilicial supervisionNo State, other than the Ap-
plicants in the present c*se, have ever claimed locus stand; before the
Court as the protector and custodian of the rights of inhabitants of
Mandated territories.
A further reply by the Applicants, on the very same page-46r (1) of
the Observations-is:
"Respondent's fear that the Court would be irnproperly used, or
that the threat of proceedings would be used, minimizes the im-220 SOUTH WEST AFRICA
portance of the requirement that under Article 7 the Court may
entertain only disputes that 'cannot be settled by negotiations'.
This is an explicit bar to improper or excessive use of the com-
prornissory clause."
1 must Say that Respondent's own experience with regard to negotia-
tions in the resent conflicthardly bears this out. Though invited to
negotiate witi?regard to the position of South West Africa, it has, atthe
sarne time, been made clear to Respondent that the majority of States in
the United Nations would not be satisfied with any settlement of the
conflict which would not result in the territory being brought within the
United Nations Trusteeship system;and, hlr.President, that is so despite
the Court's Opinion that Respondent was not obliged to do so. This is
a matter which 1 wil develop fully in connection with our Fourth Ob-
jection; I merely mention it here relative to the suggestion that nego-
tiation, or the requirement for negotiation, would be a bar to the im-
proper use of the compulsory jurisdiction clause.
At page 461(1) of the Observations, Quiacy Wright is relied upon by
the Applicants for the proposition that the League organs were not al1 .
eventually responsible to a supreme authority, but were mutually inde-
pendent. This, 1 must Say, is rather in discord with the Applicantç' own
description of the Court at page 459 of the Observations, where they refer
to the Court as the "supreme judicial power", and the "supreme judicial
authority, within the organic structure of the Mandates system".
In any event, even accepting Wright's statement of the position to be
correct, how does that justify the conclusion drawn by the Applicants,
at page 461 of their Observations, that the "principal role of the Court
is to adjudicate disputes brought to it, within the terms of the com-
promissory clauses by Members of the League, when administrative
resources have been fully, and, as in the instant cases, exhaustively
employed ''.
That clause itself does not refer to administrative resources at all, nor
is there any indication in the Mandate instrument that the right to
invoke the clause wasto be dependent in any way upon prior adrninis-
trative action. The clause, of course, requires prior negotiation, but
negotiation with regard to disputes existing between the Mandatory and
another hlember of the League of Nations, and not with regard to a
possible difference between the Mandatory and the Council, or, for that
matter, any other organ of th&League.
Upon the Applicants' contention, the compulsory jurisdiction clause,
in order to ensure for the Court the role which Applicants ascribe to it
in the Mandates system, would have to be construed as if it provided
something Iike this-1 have formulated the words which 1think would be
required to meet with the Applicants' description of the functions of the
Court-it would read this way, I think:
"If any dispute whatever should arise ljetween the Mandatory and
the Council of the League of Nations relating to the interpretation or
application ofthe provisions of the Mandate, such dispute, if it cannot
be settled by the administrative resources of the League of Nations,
shall be submitted to the Court by any Member of the League acting for
and on behalf of the League."
Now, with respect, &Ir.President, the clause does not so provide. ARGUMENT OF MR. MULLER 221
In support of our contention that the Court was not meant to function
as a supervisory authoritl. in Mandate administration, we stated, at pages
386-387 (1) of our Objeciions, that it is unlikely that the Council of the
League and the Mandatc-ries intended that the Court should pronounce
on matters ofpolicy affecting the material and moral well-being and social
progress of the inhabitants as this could involve decisions of a purely
political character norrnally considered to be outside the functions of
courts of law, This is a point of particular importance in the instant
cases,where the matters zilleged to be in conflict centre around political .
issues, and where the Court is invited to pronounce on Respondent's
policies of government iii South West Afnca. The Applicants' reply to
Our contention is at pages 461-462 (1) of their Observations, and it is to
this effect, that "while Articl2 [ofthe Mandate] is broad in scope, it must
be remembered that in interpreting and applying it the Court would have
the advantage of the particular standards set forth in the other Articles
of the Mandate and in the Covenant". They Say, further:
"These standards were the distillation of a century or more of
experience in colonial administration and were included in the consti-
tutional documents of the Mandates System, because the ideals they
expressed were being put into practice by the System itself. The
Court, therefore, woi~ldhave, in interpreting and applying the Man-
date, a framehvork of law, doctrine, and practice upon which to
rely." (Observatio p.s6,2 (I).)
Now, the Applicants have omitted to state where these particular
standards, or norms, are to be found in these documents. Article 23 of
the Covenant did contain provisions with regard to the treatrnent of
native inhabitants. We find the provisions there to read as follows
(Article 23, paragraph (t.)of the Covenant):
"Subject to,and in.accordancewith the provisions of international
conventions existing or hereafter to be agreed upon, the Members of
the League :
(b) undertake to secure the just treatrnent of the native inhabi-
tants of territories under their control."
Surely these wide provisions could, in no sense, serve as norms or stand-
ards in determining whether particular legislative measures or adminis-
trativeactsare in conflict with the provisionsof Articlez of the Mandate.
The Mandate instrument:., like Article 22 of the Covenant, aIso contained
provisions intended to operate as safeguards in the interests of the in-
habitants of Mandated ttsritories. We frnd such provisions relâting,for
instance, to the prohibition of the slave trade, forced labour, traffic in
ams, traffic in liquor, aiid the like. Ifthese provisions constitute the
standards referred to by the Applicants, then it is difficult to see how
these so-called standards couId be of any assistance to the Court in a
consideration of the propriety, wisdom or soundness of legislative rnea-
sures and administrative acts which do not touch upon and, are not in
conflict with, the provisions intended to prevent particular named abuses
and vices.
If, however, these pro~~isionsin the Mandate instruments are not the
standards to which the fipplicants refer, then, with respect, we wodd
liketo know what are those standards which, in the AppIicants' language,
constitute a "framework ciflaw, doctrine and practice", and we would like222 SOUTH WEST AFRICA
to know where they are to be found in the Mandate instrument or in
the Covenant.
The Applicants go on to say that, although the words "material and
moral well-being" in Article 22 of the Covenant are broad in scope, they
embody meaningful norms in the context of the subject to which they
pertain. They say that "in the international society, the norms applicable
to the 'administration of territories whose peoples have not yet attained
a full measure of self-government' reflect the consensus of al1 the Mem-
bers of the United Nations" (Observations, p. 462 (1)) and they Say that
these norms include principles and doctrines recorded in Articles 73 and
76 of the United Nations Charter. Now, if one looks at the Articles refer-
red to,as theyare dealt with and quoted at page 462 of the Observations,
one finds that they provide for the following:
"...to promote to the utmost ..the well-beingof the inhabitants of
these territories, and, to this end:
a. to ensure, with due respect for the culture of the peoples
concerned, their political, economic, social, and educational ad-
vancement, their just treatment, and their protection againstabuses;
b. to develop self-government, to take due account of the political
aspirations of the peoples, and to assist them in the progressive
development of their free political institutions, according to the
particular circumstances of each territory and its peoples and their
varying stages of advancement ..."
Of course, Mr. President, the answer to this line of reasoning presents
itself. In considering as a matter of probability whether the Council of
the League and the respective Maiidatories intended, when the Man-
dates were framed in the year 1920, that the Court should be involved
in political disputes, it is, of course, out of place to have regard to the
Articles of the United Nations Charter which were framed some 25 years
later. They can be of no assistance to interpret or to ascertain the in-
tentions of the authors of the Mandate system. In any event, the provi-
sions of the Charter to which the Applicants refer are broad statements
of policy which can hardiy serve as standards or norms in considering
the propriety or expediency of legislative measures or administrative
acts of a Mandatory.
Mr. President, at page 384 (1)of the written Objections we stated that
a form of judicial supervision was not necessary inasmuch as the League
was fully empowered to deal with al1matters pertaining to the adminis-
tration of Mandated territories, and that the League could, with regard
to any legal question concerning the interpretation or application of the
provisions of the Mandate, have obtained an advisory opinion from the
Court. The reaction of the AppIicants to that statement is found at
page 462 (1) of their Observations, where they say this:
"In the light of itç refusa1 to accept and implement this Court's
Advisory Opinion of 1950, Respondent's argument that compulsory
jurisdiction is not needed for disputes involving thc welfare of the
inhabitants becailse the Council of the League could itself request
an advisory opinion from the Court, has a somewhat ironic ring."
NOW,Mr. President, the Court's 1950 Opinion was obtained with
regard to the international status of South West Africa as a result of
the happening of events not foreseen by the authors of the Mandates ARGUMENT OF MR. MULLER 22 3
systein. Respondent ha:$advanced reasons, and in Our respectful sub-
mission, valid reasons, u-hy it could not accept thrggo Opinion in toto-
surely a right which Rcspondent has in terrns of the Charter and the
Statute of the Court. Respondent's conduct does not detract from the
argument that in the foresight of the authors of the Mandates system,
there was no need for judicial supervision, and that such a form of
çupcrvision was not intended.
The Applicants procei:d, at pages 462-463 (1) of the Observations, to
Say:
"The caçcs at bar are perhaps the strongest vindication of the
foresight of the fouriders of the Mandates System in providing for
contentious proceetlings against a Mandatory to énforce the pro-
visions of the Mandates for the benefit of inhabitants of Mandated
territories."
Of course, this is a -question begging argument formulated on the
prior acceptance of the -sorrectness of the Applicants' contention. Their
case is that the Court his jurisdiction in the present proceedings. They
conveniently accept that their case is made out; and if the Court has
jurisdiction, then there must be attributed to the founders of the
Mandates system a foresight of the events following upon the dissolution
of the League. Once having attributed such foresight, then of course the
present cases serve in vindication of the attributed foresight.
Finally, say theAppli1:ants at page 463 (1) of their Observations :
"The purpose of the Mandates Syçtem, itsorganizationalstructure,
and its experience support the judgment of Norman Bentwich to
the effect that the Court ...",
and they quote Xorrna~; Bentwich:
"[The Court] stands there, behind, as it were, the Mandates Corn-
mission and the Council of the League, as the sup~erneguavdzan of
the rights of nations in the fulfilment of the international trust
which is conferred on the Mandatory, and as the embodiment of
international justicc:It is the Palladium of justice in the develop-
ment of the Mandai.ed countries, just as the Mandates Commission
is the Areopagus."
Against that, Mr. President, we submit that an analysis of the AppIi-
cants' argument reveals that nothing in fact has been advanced in their
Observations, eitlier as a matter of historyor as a matter of probability,
which lends support to the contention that individual League Members
werc intended to have a legal interest in the observance by Mandatories
of the obligations irnpoi.ed for the benefit of inhabitants of Mandated
territories, or, that the 1,ourt was intended to serve at the instance of
individual League Memlr.ersas a supervisory authority, or, in the words
of Bentwich, as a supreme guardian in the structure of the Mandates
system. On the contrary, not only the probabiIities point the other
way, but also the very provisions of the Covenant and the Mandate
instruments. In terms oî these documents, as 1 have indicated, there is
no provision for nor any contemplation of a form of judicial supervision
as one of the securitics €or the due performance of the sacred trust of
civilization.
1 corne now to a part of the Applicants' Observations headed :"The
Weight of Authority", and there they dcal with judicial and scholarly
authority, in that order, as from pages 463-471 (1) of the Observations.224 SOUTH UTEST AFRICA
Under judicial authority they first refer to the Mavrommatis case.
Before dealing with that case 1 must draw attention to a misstatement
at page 457(1) of the Applicants' Observationswithregard tothe reliance
placed by Respondent upon the judgment in that case. At that page
of their Observations (457).we find this statement: "In support of its
position, Respondent cites the Mavrommatis case...",and they refer to
another case and other writers-also. In any event. in so far as the ref-
erence is to the Mavrommatis case, that that is cited by Kespondent in
support of its case, we Say the statement is not correct. To put the matter
in its tme perspective, it is necessary forus toturn back to the Applicants'
Memorials, at page 92 (1).There the Applicants ventured the bald state-
ment that "in the Mavrommutis case, the Court took it for granted that
Article 26of the Palestine Mandate ...ernbraced disputespertaining to the
welfare of the inhabitants of the Mandated territory".
We could not agree with that statement, and took the matter up at
page 390 (1) of our written Objections. We pointed out there that "no-
where in the written Judgment of the Majority of the Court [in the Ma-
vromwzatis case] is there the least indication of suppfor the Applicants'
statement that the Court took it for granted that the compulsory juris-
diction clause embraced disputes pertaining to the welfare of the in-
habitants of the Mandated territory".
We indicated there also that indeed a contrary view on the part of
the majonty is suggested in a portion of the judgrnent where itwas
accepted that Member States could renounce the rights conferred on
them in the Mandate instruments, and presumably therefore also the
right to subrnit disputes to the Court, which, aswe went on to show, in
the opinion of Schwarzenberger conflicts with the idea that the com-
pulsory jurisdiction clause was intended to serve the interests of in-
habitants of Mandated territories.
Attention was also drawn by us to the fact that out of the five dis-
senting Judges, only two, namely Judges de Rustamante and Oda,
expressed views in their separate Opinions which can be regarded as
supporting the contention of the Applicants.
TheApplicants again take up the matter at page 463 (1) oftheir Obser-
vations, where they discuss the Mavvomwzatis case. There it wiIl be
noticed that they expound the issues in that case, and Say:
"...one of the key issues before the Permanent Court was whether
jurisdiction was defeated because the Applicant was espousing the
claim of one of its nationals against the Mandatory". (Observations,
P. 463
We agree with that statement regarding the issues expounded in the
case. They go on to say that in holding that the dispute was subject to the
comprornissoryclause, the Court ernphasized that as the language of the
clause was as comprehensive as possible, the dispute may be of any
nature provided it related to the interpretation or application of the
provisions of the Mandate.
Now, again we agree with this statement, but we must at the same
time draw attention to the fact that in the judgment of the Court in the
Mavronzmatis case a legal right or legal interest on the part of the Appli-
cant in the matter in conflict was regarded as a necessary requirement
for a dispute tobejusticiable as such.
This aspect, though fully dealt withby us atpages 377-379 (1) of our ARGUMENT OF MR. MULLER 553
Objections, is not toucht:d upon by the AppIicants in their Obscrvations.
We must therefore conc:lude that our subrnission in that respect is not
contested by the Applicants.
AppIicants Say further, with regard to the Mavrommatis case, at the
bottom of page 463 (1) of the Observations:
"The significance of the Court's holding is not that the right of
Greece to espouçe t'heclaim of her national wasrecognized, so much
as that the right oc:spousatwas strongly resisted and the Permanent
Court was divided on the question. In other words, there was doubt
on the part of certah Members of the Court that the compromissory
clause was applicable at al1 to disputes conceming nationals of
Member States. Kespondent, on the contrary, contends that this
is one of the two m:ajorpurposes for the clause."
First ofall,for the pui.poses of Ourcontention,no significance attaches
to the question whether the interests of Member States alone or of
Member States and their national5 are conternplated by the clause. In
any event, the Mavrommatis case at least, in so far as the majority
opinion is concerned, i:;clear authority for the proposition that the
compulsory jurisdiction clause was intended to serve the interests of
the nationah of Member States and a jortioriwe Say, the interests of
Member States themsel.~es. Respondent contends that these were the
only purposes for the clause, and not, as the Applicants reproduce
Respondent's contention, nameIy, the two major purposes for the clause.
The Court in the Ilffivvommatiscase was not called upon to decide
whether any other purpose was intended for the clause: for instance
whether, in addition to the purposes which I have just stated, it was
intended to embracedisputespertaining tothe welfare of the inhabitants;
and the majority in the Mavrommatis case did not express themselves
thereon.
The Applicants submié,nevertheless, at page 464 (1) of their Observa-
tions: <
"from a reading of the Minority Opinions and the broad scope of
the Majority Opinion, Applicants submit that it was taken as
axiomatic by the Court that Article 26 of the Palestine Mandate
(the counterpart to Article 7)embraced disputes pertaining to the
welfare of the inhatiitants of Mandated territories".
I repeat what we have contended in the written Objections, that
nothing in the majority cipinionin that case permits of such a conclusion,
but that on the contrar~,, the fact that the majority regarded the rights
of individual States undt:r the Mandate as renounceable, suggests a view
that the compulsory jurisdiction clause was not intended to introduce
a form of judicial supervision. And incidentally, this last point 1snot
touched upon by the Applicants at al1 in their Observations.
As to the minority in the Mavrommatis case, there were five dissenting
opinions. Lord Finlay, at pages 42 to 43 of the reported judgrnent,
indicated the clasç of case which in 'his opinion the compulsory juris-
diction clause was, primarily at al1 events, intended to meet, and he
did not include therein actions in the interests of the inhabitants. Judge
Moore did not deal with the question now under consideration, and
Judge Pessoa, at page ,38of the report, expressed the view that the
Court could not in terms of the compulsory jurisdiction clause "be called 226 SOUTH WEST AFFiIC.4
upon to protect the rights of individuals, but only those of States";
and that is a view which does not support the Applicants' contention.
Only two of the Judges in the Mavrommatis case, namely, Judges
de Bustamante and Oda) expressed views in the passages from their
opinions cited at page 464 of the Observations which can be regarded
as supporting the Applicant's contention. But Mr. President, even that
is doubtful, because these Judges refer to applications with a view to
the protection ofgeneral interests, and acts ofa general nature affecting
the public interest, without mention at al1 of the inhabitants of the
Mandated territory.
Blr. President,ifregard is then had to what is said in the pleadings
regarding the Mavrommatis case, that is in the Memorial of the Applicants,
and our written Objections, it will be clear that we did not cite the Mav-
rontmatis case in support of our conteiltion. It was the Applicants who, in
the first instance, referred to the case in support of their contention,
and we dealt with, andrefuted, that proposition by the Applicants.
In their Observations, in further support of their contention, the
Applicants also quote at page 465 (1) of their Observations an extract
from the dissenting Opinion of Judge Nyholm in the third Mavrommatis
case, that isthe case of "TheReadaptationof the MavrommatisJerusalem
Concessions-the reference of the report is SerieçA, No. XI of October
roth, 1927-and this is what the Applicants Say with regard to a
certain passage appeanng in the Opinion of Judge Nyholm; the Appli-
cants Say, at page 465 (1) :
"Speaking in the third Mawrommalis decision, Judge Nyholm
em hasized that the Court's supervisory jurisdiction constitutes
a Porm of 'guarantee' that Mandatories would 'act in accordance
with the principles adopted in the interests of the community of
nations by the Covenant'. He said:
'Mandatories were not to infringe the rights either of States
or of individuals. Each State therefore has a right of control
which it may exercise by applying to the Court.' "
If regard is had to the Opinion of Judge Nyholm, one finds that
he nowhere speaks of supervisory jurisdiction. What the Applicants have
done, in Our submission, is to extract from Judgc Nyholm's Opinion
certain words and sentences which, read out of context, could bear the
meaning contended for by the Applicants and could be read in support
of theircontention ; but if these words and phrases, or ~~ordsand sen-
tences are put back into context, and are read in the context, they do
not support the Applicants' contention, On the contrary, 1submit they
underwrite the Respondent's contention. This is what Judge Nyholm
said, if one starts reading the Opinion at a stage before the passage
extracted by the Applicants. He was dealing with Article 26 of the
Mandate for Palestine, the jurisdiction clausein that Mandate, and said,
(at page 25 of the Report) :
"In order to determine the scope of the jurisdiction obtained
by the Court from the Mandate for Palestine, which is the sole
source of the Court's jurisdiction to consider the Mandate, regard
must be had (1)to the character of the Mandate and especially to
the reasons which led the League of Nations to insert in the Mandate
'
a clause giving jurisdiction to the Permanent Court ofInternational ARGUMENT OF MR. MULLER 227
Justice, and (2)to tlie structure of the Mandate in order to ascertain
in what manner, by which Articles of the Mandate, and within
what limits, this jurisdiction has been established ...as regards
the first point, the historical development of the Mandate system
shows that the mrndatory Powers were to carry out this task
under the control of the League of Nations to which they were
bound to submit annual reports." (P.C.I.J., Senes A, No. II,
10th October, 1927 ,.25.)
It is to be noted thzt with regard to the controI over Mandates
the learned Judge mentioned only the League and not the Court.
The Opinion goes on as follows:
"The institution of this control was due to the fact that the
Powers did not wish to leave a mandatory at liberty to govem a
mandated territory entirely at its discretion. Certain limits were
to be fised, not ofily with a view to harmonizing the principles
established under the various 'mandates, but also with a view to
establishing special rules in regard to each country, that isto say,
a guarantee that the administration shouId act in accordance
with the principles adopted in the interests of the community of
nations by the Covenant." [P.C.I.J., SeriesA, No. II,10th October,
1927p ,. 26.)
It is to be observed tllat Judge Nyholm was speaking of a guarantee
not with regard to the interests of inhabitants of Mandated territories
but with regard to the interests of the comrnunity of nations, i.e. the
Members of the League. He went on to Say:
"The guarantee which offered itself consisted in conferring on
the Court a new iiiternational institution-jurisdiction to decide
any questions regarding the interpretation and application of the
Xandate." (P.C.I.J.,SeriesA, No. 11, 10th October, 1927, p. 26.)
And then follows the extract quoted by the Applicants:
"Mandatories were not to infringe the rights either of States or
of individuals.Eack: State therefore has the right of control which
it may exercise by applying to the Court." (P.C.I.J.,Series A,
No. II, 10th Octob~r, 1927, p. 26.)
Now Mr. President, the quotation should not have stopped there if
one is to understand co:~ectly what the learned Judge was expressing
as his view because the Opinion goes on to say:
"It is true that th.ere is no provision giving the Court jurisdiction
as regards the re1ai:ions between individuals and the Mandatory,
but itis to be presumed that, if a subjectofa certain State suffered
injury, his governrnent would, ifnecessary, takc action on his
behalf." (P.C.I.J.,5eries A, No. II,10th October, 1927, p. 26.)
In the language then of Judge Nyholm, the purpose of the compulsory
juriçdiction clause was to serve the interests of States and of their
subjects. Nothing in his Opinion suggests that the Court's jurisdiction
was meant for supervisic~nof Mandate administration in the interests of
inhabitants of Mandated territories.
We turn ncxt to the case of Jerzcsalem-Jafa Distri c tvernor and
anotherv. SuleimanMut,ra and others. At pages 386 and 387 (1) of the228 SOUTH WEST AFRICA
written Objections, we advanced an argument with reference to this
particular case,ndthis is what we said, at the bottom of page386 (1):
. "The functions of Courts of Law do not normally extend to
the realm of politics; and where a legislature or an administrative
body acts within the scope of powers conferred upon it, it is not
the function of Courts of Law to enquire into the policy or soundness
of its acts.
This general principle was recognized in the case of Jerzcsalem-
Ja@a Distri Governor and another v.SuleimaltMurrd and others,as
being applicable also in regard to the administration of the Mandated
Territory of Palestine under that Mandate. In regard to certain
measures of expropriation applied by the Mandatory, the Privy
Council stated:
'Their Lordships agee that in such a case, and in the absence
of exceptional circumstances,justice requires that fair provision
shalI be made for compensation. But this depends not upon any
civil right, but (as the Chief Justicesaid) upon principles of
sound IcgisIation; and it cannot be the duty of the Court to
examine (at the instance of any litigant) the legislative and
administrative acts of the Administration, and to consider in
every case whether they are in accordance with the view held
by the Court as to the requirernents of natural justice'."
NOW the Applicants' comment at page 465 (1) of their Observations is
that we have "not read the Jerusalem decision correctly. In fact, the
case standsfor the opposite of the proposition advanced by Respondent",
because they Say in that case the Court was called upon to pronounce
on an administrative act of the Mandatory and did so after interpreting
Article z of the Mandate for Palestine.
As to the articular passage in the judgment which 1have just now
read, and w Rich was cited by us in the Preliminary Objections, the
Applicants Say the following, at page 466 of their Observations:
"Only after finding that there was no statutory basis for reversing
the administrative act did the Court employ the language quoted
by Respondent. That language has no special significance; it is
the expression ofa policy followed by al1courts,namely, that courts
of law do not legislate. But where legislation exists-as in the
Mandate-ourts will examine challenged administrative acts to
determine whether such acts violate the legislation."
Mr. President, with respect, 1submit that we have ~zotmisread the
Jerusalem case. 1 submit that Our understanding of the issues in that
case, and of the Court's finding, is correct as we dealtwith the case
in our Preliminary Objections. The Court, in that case, was called upon
to decide whether a particular expropriation ordinance operating in
Palestine-an ordinance called the UrtasSpring Ordinance-was withrn
the scope of powers conferred by an Order in Council. That Order In
Council authorized the High Commissioner to promulgate ordinances as
might be necessary for the peace, order and good governnient of Pales-
tine, subjectta a condition that no ordinance should be promulgated
which should be in any way repugnant to or inconsistent with the
Mandate. ARGUMEKT OF MR. MULLER 2zg
In order to decidr' n,hether the particular ordinance fellwithin the
conferred powers, the Court had to interpret and apply a particular
provision in the Mandate for Palestine. The Court having done so, found
that the ordinance wiis not repugnant to. or inconsistent with the
provisions of the Mandate and there fore, wlthin the powers conferred
by the Order inCouncil. Having so found, the Court used the language
which we quoted at pagl: 387 (1) of our Objections and which 1 have just
read.
We assert that, contr xry to the Applicants' statement, this particular
passage from the judgment has significance, and that it supports our
proposition that where a legislature or administrative body acts within
the scope of powers co~iferred upon it, it is not the function of courts
of law to enquire intothe policy or soundness of its acts-that is whether
such acts are conducive to peace, order and good government.
Although the Court vras in a position to decide in the Jerusalem case
that the expropriation ordinance in question was not repugnant to a
particular provision in i:he Palestine Mandate which required the Man-
datory to safeguard the civil and the religious rights of the inhabitants
of Palestine irrespective of race and religion, that does not, 1 submit,
detract from our argunient; Our argument being that as a matter of
probability it was not iiitended by the authors of the Mandates systern
that the Court should, al the instance of a nilemberof theLeague, enquire
into the policy and soundness of the Mandatory's legislative acts and
administrative measure:; in order to decide whether they conformed
with the general provizions in the Mandate, those general provisions
requiring that the Mandatory shall promote to the utmost the material
and moral well-being and social progess of the inhabitants of the terri-
tory. And 1 submit that the passage quoted by us from the case which
1 have just referred to supports the proposition which 1have just stated.
[Public hearing of II October 1962, morning]
Mr. President, 1 am still busy with the Applicants' Observations
relative to Our third Objection. At page 466 (1) of the Observations the
Applicantç pass to a consideration of scholarly authonty and they make
the following statement :
"Kespondent cites four writers to support its limited view of
'interest' asa basis for invoking judicial supervisi:Feinberg, Judge
NcNair, Wessels, aiid Schwarzenberger."
Now, hlr. President, this statement is not entirely correct. We did
refer to these writers in the written Objections at page 390 (1), but the
submission there made .was this, and 1 read from that page; referring
to the four writers thal: the Applicants have mentioned, we said the
following :
"Other scholars vrho have written on the subject either hold the
view that the provision in question does not confer jurisdiction in
a matter inwhich the particular Mernber State has neither personally
nor through its sub,jects a material interest, or raise doubts there-
anent."
And secondly, we have tlot conceded, but on the contrary have denied,
that any form of so-called judicial supervision exists by virtue of the
compulsory juridiction (:lause.230 SOUTH WEST AFRIC.4
Now, in the Observations, at page 466 (1), the Applicants deal first with
the views of the author Feinberg, who they Say takes the position that a
Member State can invoke the jurisdiction clause against the Mandatory
only when the interest of a Member State or its nationals has been
harmed by a violation of the terms of the Mandate. But, Say the Appli-
cants, Feinberg has a broader concept of interest than Respondent, in
that he quotes, with approval, Salvioli, tothe effect that it is not possible
to determine in a precise manner the nature of an interest sufficient to
justify proceedings before the Court and that the sufficiency of interest
must be decided in each case. And, Say the Applicants, Feinberg also
quotes Salvioli with approval for discussing and underlining the case
of The S.S. Wimbledon, in which connection Feinberg says that the
Court there conceded that even a moral interest could be suficient to
found jurisdiction; and he suggests that the same liberal view should
also be adopted in the application of the jurisdiction clause of Mandates.
Now, from Feinberg's treatment of the matter, one thing is clear, in
our submission, and that is that he viewed the compulsory jurisdiction
clause as a provision securing the interests of hfember States and their
nationals, and not as the Applicants wish to see the clause interpreted,
that is, as existing, primarily in any event, for the benefit of the in-
habitants of Mandated territories. The very example Feinberg uses in
the quotation found in the Observations is demonstrative of that view,
namely the concern displayed by a Member State for the interests of its
own Jewish population, and by reason of having a large number of Jews
in its population, also its own interest in the administration of the
Mandate for Palestine which contained provisions relating to a Jewish
National Home in Palestine.
In any event, in so far as Feinberg relies on the case of TheS.S. Wim-
bledon as authority for the proposition that a fairly wide interpretation
of the conception of interest should be adopted, even so wide as to
embrace a moral interest, we say that the Judgment in the case of
The S.S. Wimb1edo;izdoes not stand for that proposition.
In the case of The S.S. Wimbledon, the Court allowed certain States
who were not irnmediate parties to the dispute to participate in the
proceedings; but not on the basis of merely a moral interest. The basis
on which the Court allowed such States to participate was dealt with
by the Court at page 20 of the reported Judgment, and there the Court
said :
"The Court has no doubt that itcan take cognizance of the
Application instituting proceedings in the form in which it has been
submitted. It will suffice to observe, for the purposes of this case,
that each of the four Applicant Powers has a clear interest in the
execution of the provisions relating to the Kiel Canal, since they
al1 possess Aeets and merchant veçsels flying their respective flags.
They are,therefore, even though they may be unable to adduce a
prejudice to any pecuniary interest, covered by the terms of Article
386, paragraph 1, of which is as followvs:
'In the event of violation of any of the conditions of Articles
380 to 386, or of disputes astothe interpretation of these articles,
any interested Power can appeal to the jurisdiction instituted for
the purpose by the League of NationsJ." .IRGUMENT OF MR. MULLER 231
Certain States, then, were allowed to appear as CO-Applicants by
virtue of the fact, as tbe Court said, that they each had a clear interest
in the execution of the provisions relating to the Kiel Canal, since they
al1possessed fleets and rnerchant vessels flying their respective flags and
therefore,although una.ble to adduce actual prejudice to any pecuniary -
interest, they were covered by Article 386 of the Treaty of Versailles.
The interest of such States, as the Court saw it, was not moral but in
fact material. Although they suffered no pecuniary losses as a result of
the breach complained of, tliey were at least potentially afiected intheir
material interests.
In that same case, another State, namely Poland, was allowed to
intervene in the procerdings by virtue of the provisions of Article 63
of the Statute of the Permanent Court. That Article enabled States
who were parties to a c.3nvention to intervene in proceedings where the
construction of theconi.ention was in question. And again that was not a
case ofa moral interest,
The Applicants deal next with the writings of Judge hlcNair. We
had referred at page 390 (1) of the Objections to an article by him in the
1928 Cambridge Law Journal. We pointed out that in the article the
learned author deaIt wjth the jurisdiction clause in the Mandates, and
thiç is what he said witll regard thereto, in a footnote at p157 of the
article in the Cambridga Law Journal, Volume III, of the year 1928:
"Al1theMandate:; contain a clause which provides that any dispute
between a Mandatory and a Member of the League which cannot
be settled by negotiation, shall be referred to the Permanent Court
of International Justice: see the Mavrommatis Palestine Concessions
Case, Publications of the Court, SeriesA, No. 2."
and the learned author tlien proceeded:
"1s this righ-hto'f 'bringing a dispute with a Mandatory before the
Court onIy available when the interests of the other party, or its
nationaIs, are affected, or can it be used altruistically by a Member
of the League having no such interest to protect, but rnerely seeking
the faithful observ5,nce of the terms of the Mandate?"
The Applicants say Ihat whatever doubt the learned Judge might
have entertained as to the purpose of the compulsory jurisdiction clause
when he wrote on the Mandates in1928, had obviously been reçolved in
his mind when he rendered his separate Opinion in the 1950 Advisory
Proceedings. In that Opinion, the Applicants Say, he stressed that every
State which was a Mernber of the League at the time of its dissolution
still had a lepl interest in the proper exercise of the Mandate, and stated
that this legal interest may be invoked to effectuate the judicial super-
vision of the Mandate.
In the Objection nou. being dealt with, we are not concerned with
Judge McNair'ç view that the interests of Member States survived the
League because the expression "another Member of the League of
Nations" in Article 7 ot: the Mandate, as the Judge held, was merely
descriptive. We have already dealt with that aspect of the Judge's
Opinion and for the prr:sent argument it is assumed that States who
were Members of the Ee;xgueat its dissolution may still invoke the pro-
visions of Article7. In this Objection we are concerned only with the
type of case for which the provisions of Article 7 were intended. SOUTH WEST AFRICA
Now, the kind of disputes justiciable under Article 7 of the Mandate
was not a matter specrfically raised in the questions submitted to the
Court for the Advisory Opinion in 1950, and it was not canvassed in
argument. Judge McNair did not advance any reasons in his separate
Opinion for the vietv tthatthe cornpulçory jurisdiction clause involved
ju$cial supervision of the administration of the Mandate-a matter
which he had left open and in doubt when he wrote the article in 1928
that 1 have referred to.
Also at pages 468-469 (1) of their Observations,the Applicantç quote
from the writings of Bentwich, Quincy Wright, Hales, Judge Lauter-
pacht, Miss van Maanen-Helmer and Chowduri, in support of the Appli-
cants' contention that the Court was meant to function as a judicial
supervisory argan in the structure of the Mandate systern. A proper
study of the writings of these authors, we submit, reveals that only
Bentwich and Chowduri appear to state that view with conviction.
The quotation from Wrightappearing at page 468(1) ofthe Applicants'
Observations is but one of the several passages in the book devoted to
the purpose of the jurisdiction clause, and we have indicated at page
389 (1) ofour Objections that, following on thatparticular quotation,the
learned author went on to deal with the fact that there was an additional
clause inthe Mandate for Tanganyika, and then ended the whole enquiry
on the note that itzeiozclseem broad enough to cover clairns presented
by League Members on behalf of natives of the Mandated territories.
Also Hales in his work The Creatioltand Application of theMandates
System, which is referred to at page468 (1) of the Observations, puts the
matter no higher than that it would appear that a State Member of the
League need not have any interest inthe dispute except that of wanting
to see a proper application of the provisions of the Mandate.
Judge Lauterpacht deals with the matter in a footnote at page 226
of his edition (that is the 8th edition) of Oppenheim'sInternational Law
~vhere he states-and 1 read the footnote:
"Although two Judges dissented from this part of the Opinion,
the Court was unanirnous in holding that judicial supervision con-
tinued and that, having regard to Article 7 of the Mandate and
Article37of the Statute of the Court, the reference to the Permanent
Court of International Justice was to be replaced by a reference to
the International Court of Justice. It follows that at Ieast those
Members of the United Nations who were Members of the League
of Nations are entitled to bring before the International Court of
Justice any dispute relating to the interpretation or application of
the pravisions of the Mandate."
Though the learned author there used the words "judicial supervision",
he was merely restating the Court's findings in the 1950 Opinion. We
submit it would have been more correct if he had stated that the Court
was nnanimous in holding that Article 7 of the Mandate for South West
Africa is still in force, because the majority of the Court expressed no
viela with regard to the kind of disputes justiciable under Article 7,
nor did the majority use any expression conveying a notion of judicial
supervision.
With regard to the views of Miss van Maanen-Helmer, the Applicants
quote, also at pages 468and 469 (1)of their Observations, a passage from
her book on the Mandates system. This passage, we submit, in no way ARGUMENT OF MR. MULLER
233
supports the Applicants' contention that the jutisdiction clause intro-
duced a form of judicial supervision. Al1 that the learned author said,
and I read from the passage quoted, is the following:
"The fact that a case involving the interpretation of a mandate
has been brought before the Court [she was referring tothe Mavrom-
matis case] is an important precedent in that it shows that the
status of a mandated territory is safeguarded by international law
as well as by the supervision of the political institutions of the
League of Nations." (van Maanen-Helmer, E. The Mandate System
in Relatioît toAfri:a and the Pacific Islands, p. 155.)
Indeed, in the very same chapter of her book, at pages 169 to 170,
Missvan Maanen-Helmer analyses supervisory functions in the Mandates
System, and she makes no mention whatsoever of the Court or of the
rights vested in individiial League Mernbers with regard to supervision.
She concludes the chap ter with a paragraph, at page 170, which reads
as follows:
"Thus the mandates systern, with its two fundamental charac-
teristics of the responsibility of the mandatories for administration
and the responsibility of the League for supervision is essentially
part of the system of international government instituted by the
League of Nations."
So that there is nothing in her book at al which can be interpreted
as a recognition of judicial supervision.
In our written 0bject.ions at pages 393-394 (1), there appeared the
following statement :
"Although the Court's function, under Article 7 of the Mandate,
has colloquially been referred to as 'judicial supervision', it is not
an exact legal description of that function."
In reply thereto, the iipplicants say, at pag469 (1) of their Observa-
tions, that the expressicln "judicial supervision"was used, not only by
Judges Lauterpacht, McNair and Read, and çome of the other writers re-
ferred toby the Applicants, but waseven used by Respondent's own repre-
sentative before the United Nations forum, and they quote from a report
of an address by the South African representative to the Fourth Com-
mittee in the year 1953. The AppIicants Say that there the Respondent
dernonstrated a broader appreciation of the need for, and significance
of, judicial supervision.
Now, it is not correci: to Say that Respondent saw a need for, and
significance of, judicial supervision. The South African representative
was explaining to the 1;ourth Cornmittee the negotiations which had
taken place with the ad iioc Committee on South West Africa. According
to his explanation, thesriggestion to submit to judicial supervision came
about, not because Respondent saw a need for süch supervision, but
because the ad hoc Corrimittee desired that çome provision should be
made forinternational siipervision. In fact a reference to the discussions
with the ad hoc Cornmittee, reported in United Nations Document A/AC
49/SR7, shows that Respondent saw no need for any form of international
supervision, judicial or otherwise. If one refers to that United Nations
Document, one finds the following statement made by the South African
representative, and 1 will only read an extract from this statement. SOUTH WEST AFRICA
234
At page 4 of the document, to which 1 have referred, the following is
found :
"It was, however, the Union Government's view that no specific
provisions for irnplementation were required since, in terms of inter-
national law, it would be impossible for the Union to evade the
obligations assumed and since there would be adequate remedy for
breackes of the agreement in existing international machinery.
Moreover, civil contracts generally containcd no provisions for com-
pliance." (U.N. Doc. A/AC. qg/SR. 7, p. 4.) '
And the South African representative went on to expIain that if some
form of supervision was desired, then South Africa would be prepared
to accept judicial supervision.
Now, the fact that Respondent offered, in the course of those nego-
tiations, to submit to judicial supervision and to accept, in that con-
nection, the compulsory jurisdiction of the Court, must, we say, be
viewed in its proper perspective. The offer, as explained by Respondent
to the ad hoc Cornmittee, entailcd a legal obligation to submit to the
jurisdiction of the Court, but not at the instance of any one of a large
number of States, but at the instance of two out of three States, namely
any two of the remaining Principal Allied and Associated Powers of the
First Ii'orldWar, with whom the proposed agreement was to be con-
cluded. And, secondly, there would be no concurrerit supervision by
an organization such as the League or the United Nations. In those
circumstances, we Say, most of the anomalies and implications which
could arise under a system of dual supervision, that is a system of
administrative and jiidicial supervision, as the Applicants ascribe to the
Mandates systeni, would be avoided.
Finally,under the heading of scholarly authority, the Applicants in
thc Observations, again canvass the address of Respondent's reprc-
sentative, Dr. Steyn, to this Court in1950, in support of their contention
that Respondent, through Dr. Steyn, conceded that Article 7,if in force,
entitled League Members to institute proceedings to uphold the rights
of the inhabitants of South West Africa.
Mr. President, this matter was first raised by the Appiicants at page
93 (1) of their Memorials, where the following two passages were cited
from Dr. Steyn's address, and 1 read the passages:
"It was only in their capacity as RIernbers of the League that
third States were competent to i~pholdthe rights of the inhabitants
of mandated territories or to claim rights for themselves in those
territories."
And
"Kor have individual Members of the United Nations any locus
stand n respect of the administration of South \?'est Africa. They
could have had such a locztsstand only asMembcrs of the League."
We dealt with that matter at pages 391-39( 31)of the written Objec-
tions.
There we referred to various passages in Dr. Steyn's address from
which it is clear that he used the expression locus standi in relation to
Members of the League as their right ofparticipation as hIembers in the
League's supervisory functions and not as Locus standi in judicial
proceedings before the Court-indeed Ur. Steyn referred to the League ARGUMENT OF MR. MULLER 235
as having locus dandi in respect of supervision, whereas of course, as
we know, the League h.ad no rights under the cornpulsory jurisdiction
clause.
In the light of this consideration we contended that where, in the
passages cited by the Applicants, Dr. Steyn said that it was only in their
capacity as Members of the League that third States were competent to
uphold the rights of th. inhabitants of Mandated territories, and that
so after he had stated that Members of the League had lost their loczls
standiwhen the League dissolved itself, he was referring not to judicial
process but to the partizipation in the exercise of supervisory functions
of the League itself.
When Dr. Steyn later remarked tliat individual Members of the United
Nations could have had a locus stand in respect of the administration
of South West Africa onIy as hlembers of the League, he was again
referringnot to judicial proceedings but to participation as Members
of the League in the Leiigue's supervisory functions.
In taking this matter up again in their Observations, at pages 470-471
(1),the Applicantscite 2further passage from Dr. Steyn's address, under
the heading "Rights of 1)eoplesof South West Africa", where Dr. Steyn
referred to ArticlesII (2)and 19 of the Covenant and immediately there-
after used the following language :
"Moreover, any dispute between a Mandatory and another Mem-
ber of the League ~elating to the interpretation or the application
of the provisions oi the Mandate couId be çubmitted to the Per-
manent Court of Iiiternational Justice."
Now, the Applicants' comment thereon is formulatcd in the following
questions, at page 471 (1) of the Observations:
"IfDr. Steyn did not consider that Article 7 was for the benefit
of inhabitants, why did he discuss it under the heading 'Rights of
Peoples of South-IVcst Africa'? Ifal1 hc meant was that League
Members could participate in League proceedings to uphold the
inhabitants' rights,;ts Respondent now contends, why did Dr. Steyn
mention Article 7 at all? And why did he mention Article 7 right
after mentioning ArticIes II (2) and 19 of the Covenant, which
provide for participation in League proceedings, and begin the
reference to Article 7 with the word, 'moreovcr'?"
Mr. Presidcnt, the anr;u7erto al1 this is simple. Although the portion
of Dr. Steyn's argument in question is headed "Rights of Peopies of
South West Africa", he dealt in that piece not only with the rights of
the inhabitants, but, by way of contrast, also with the rights of States
unconnected with the interests of the inhabitants. In the very paragraph
after that cited by the A.pplicants in thcir Observations, Dr. Steyn said
that it was only in their capacity as Members of the League that third
States were competent ;:Ouphold the rights of the inhabitants, or to
claim rights for thernselves in those territories. That Dr. Steyn mentioned
Article 7right after he mentioned Articles II (2)and 19of the Covenant,
and that he began the reference witli the word "moreover" has no signifi-
cance in view of the fact that despite the heading to that portion of his
argument, he had in mind and he mentioned not only the rights of
inhabitants, but also the rights of Member States. It lias as rnuch
significance as the fact that under that -very heading and in the very236 SOUTH WEST AFRICA
next paragraph Dr. Steyn said that Members of the League, in their
capacity as such, were competent to claim rights for themselves in
Mandated territories, and that so immediately after he had said that
Member States were competent to uphold the nghts of inhabitants of
Mandated territories.
With regard to the summary appearing at page 471(1) of the Appli-
cants' Observations, under the heading "Summary", xve have already
demonstrated that our contention doea not rest on an attempt to irnport
into Article7 a furtherunstated requirement. Our contention isformulated
upon a proper construction of the word "dispute" in Article 7 of the
Mandate, and upon the likely intention of the authors of the Mandate
system, as gathered from the terms of Article 22 of the Covenant and the
Mandate instrument, having due regard also to al1 the probabilities.
Having dealt, in particular, with the views of each of the authorities,
judicial and scholarly, relied upon by the Applicants, Mr. President,
we refute the allegation by the Applicants that the two writers who
support Kespondent's contention, naniely \liessels and Schwarzenberger,
are in square disagreement with Judges Bustamante, Nyholm, McNair
and Read, and al1 the other authors relied upon by the Applicants, as
well as with Respondent's so-called "previous position", a statement
which was made by the Applicants in the summary at page 471 (1).
Applicants conclude their contentions with regard to the third Ob-
jection under a heading "Applicants have a material interest in the
instant cases". We find that at page 472 (1) of the Observations. They
Say there firs:
"Respondent devotes much attention to 'material interest' and
'legal interest'in its Preliminary Objections, but does not define
or analyze those terms.
'Legal interest' does not require extensive discussion. As Appli-
cants have dcmonstrated herein, they corne within the descriptive
category of States entitIed to invoke Article 7 in accordance with
its terms. Thus they have a legal interest because Articl7, to which
Respondent agreed to be bound, endowed them with such an
interest."
Now this line of reasoning, Mr. President, demonstrates the fallacy in
Applicant's argument with regard to this Objection. Instead of having
regard to the provisions of the Mandate as a whole, read in the light of
Article22 of the Covenant, in order to ascertain what rights were intended
for Member States of the League with regard to the Mandate adminis-
tration and then to construe Article 7 as applicable in the assertion of
such rights, the Applicants, in disregard of the accepted rules of inter-
pretation, ignore Article 22 of the Covenant and the provisions of the
Mandate other than Article 7. Looking at Article 7only, they find that
it refers in terms to any dispute whatever relating to the interpretation
or application of the provisions of the Mandate, and then they assume,
erroneously so in Our submission, that Article 7 itself was intended to
confer on individual League Members legal rights in respect of each
and every provision of the Mandate.
We Say that this assumption is erroneous inasmuch as Article 7 does
not in itself purport to confer legal rights; it merely provides for ad- ARGUMENT OF MR. MULLER 237
judication of disputes, :ind by the tcrm "dispute" was rneant, as I have
demonstrated, a conf1ic.tor disagreement in matters in which a Member
State has a legal right. The matters in which they were meant to have
legal rights cannot bc gathered from Article 7, but must be gathered
from the whole of the Mandate instrument and Article zs of the Cove-
nant.
With regard to the term "material interest", it istrue, as the Appli-
cants say, that we havi: not furnished a definition thereof. In the first
place we consider it urinecessary to do so-there is as little need for
defining that term as tliere is for defining the expression "material well-
being" which appears in the Mandate instrument, an expression with
which Applicants apparently have no difficulty as to its meaiiing. We
use the expression "mat erial interest" not todenote a substantial interest
but in the same sense a:;the word "material" was intended to qualify the
word "well-being" in tlie Mandate instrument, namely, as pertaining to
matter, for instance safety, health, wealth and the like. It would be well-
nigh impossible to for~nulate a definition to ernbrace each and every
matter which in the course of Mandate administration could have af-
fected Member States of the League of Nations or their nationals.
Whether a Member State could validly contend that it was affected
either directly or throui;h its subjects by a particular act afMandatory
must be a matter for dixision in each casc. 1 have already, in thc course
of my argument, giveii examples of rnaterial intérests of States that
could be affected by acts of a Mandatory.
It is sufficient to say that in the present cases the Applicants do not
and indeed cannot mt.ke the point that they as States are affected
directly or through thcir nationals by any act of the Mandatory. At
most thcir case is that they are concerned about the ~velfare of the
inhabitants of non-ind-2pendent territories and that they regard that
concern as of great importance. Indeed, that js a staternent made by
them at page 472 (1) of their Observations, where we find this:
"Contrary to Rei;pondent's position,most States, in the increasing-
ly inter-related coinmunity of nations, today regard the problerns
of less developed areas as amatter of great importance to their own
weIfare."
Now, of course, States in the contemporary world are, in the broad
sense, interested in, or should one Say concerned about, the welfare of
peoples not yet able tc stand by thcmselves. The establishment of the
Mandates system under the League and of the Trusteeship system under
the United Nations bear evidence of such concern. But the mere fact of
being so concerned does not determine the role intended for individual
States within either of the two systems. The fact that mernbers of an
organization are entitled to participate in the decisions of that organiza-
tion surely does not confer legal rights on the individual members in the
subject-matter of sucli decisions.
The functions of individual States in the Mandates system, and their
legal rightsvis-&vis the Mandatories, can only be determined by reference
to the instruments by urhich that system came into force-into existence238 SOUTH WEST AFRICA
-namely the Cotrenant and the Mandate instruments. The same holds
good for the present day Trusteeship system where regard must be had
to the Charter of the United Nations and the Trusteeship agreements.
To say that States in the conternporary world have considered their
interests to be involved in the welfare of the inhabitants, first of the
Mandated territories, and later of Trusteeship territories, does not
provide an answer to the question before the Court. No matter how
much they may have considered their interests invoIved in the wel-
fare of such peoples, that in itself, surely, could not confer on them
any rights as against Mandatories under the League, or as against
administering authorities of trust territories, under the United Nations.
No doubt during the lifetime of the League some States, not being
Members of the League, were also concerned, Iike League Members,
about the welfare of inhabitants of Mandated territories, but could they
for that matter claim any rights as against the Mandatories7 Surely
the answer is no. And the same question can be put with regard to States
who are not Members of the United Nations today, but may be as
concerned as the Applicants are about the welfare of peoples of tnist
territories.
Furthermore, Applicants are no doubt asmuch concerned about the
welfare of the peoples of the trust territories in Nauru, New Guinea,
and the former Japanese Mandated islands as they are concerned about
the welfare of peoples in other trust territories. Rut are their rights
and recognized interests identical in respect of al1 such territories? A
study of the respective trusteeship agreements shows clearly that the
answer is in the negative. Although inost of the trusteeship agreements
make provision for compulsory jurisdiction, the agreements for the trust
territories ofNauni, New Guinea and the former Japanese Mandated
islands do not. Ully is that so?It is so by reason of the relevant treaties
and conventions which prescribed the rights of States with regard to
hlandated territories and later with regard to trust territories.
There is,Mr. President, no attempt on our part to define, as Applicants
suggest in their Observations, the permissible scope of interests of other
States. We have,as we conceive it Ourduty andfunction before the Court,
endeavoured to demonstrate by proper construction of the relevant
instruments, what rights and interests were intended for Members of
the League with regard to the administration of Mandated territories
and which of such rights and interests were intended to be assertable
by judicial proceedings.
The Applicants, on the other band, attempt to establish that they
have certain rights, not by reference to the instruments in which such
rights, if they did exist,would have been recorded, but by advancing
their own views as to the importance to them, in the increasingly inter-
related community of nations, of the problerns of less developed areas,
and of their concern about the welfare of the peoples of such areas. There
is no justification for the linefreasoning adopted by the Applicants.
However important Applicants rnay regard their concern for the
weIfare of the peoples of South West Africa, that surely, in itself, can
not confer on Applicants the rights or vest in them a material interest,
in the sense under discussion, which they in fact do not possess. The
question is not whether Applicants consider their material interests to
be involved, but whether their material interests are, in fact, involved. ARGUMENT OF MR. MULLER 239
Nor can their participation with other States in debates in the United
Nations concerning South West Africa, however often that may have
occured, endow them urith rights not contemplated by the Covenant
and the Mandate.
Mr. President, 1 repeat Our contention that the material interests of
the Applicants are not xffected by the matters complained of by them
in the present proceediiigs, and that being so, the Applicants, in our
submission, have no 1eg:ilrights or interestsin the matters now before
the Court and there is ccmsequently no dispute, as envisaged in Article7
of the Mandate, for adjudication by the Court.
But even if it could be said that Applicants have a legal right or
interest in such matterfi then, in Our submission, it was not intended
that Article7 could be ir*vokedin the assertion of such rights or interests
and therefore there is no dispute as envisaged in that Article.
Mr. President, that is the end of my argument on the third Objection.
Mr. President, may it please the Court,1 intend proceeding now with
argument on our Fourth Objection.
For the purposes of this Objection, two assumptions are made.
The first assumption iç that despite the dissolution of the League the
Applicants, as former Members of the League, have retained the rights
conferred on them by Article 7 of the Mandate-in other words that
they may still invoke th.c Article, but, of course, provided the require-
ments of the ,4rticle are satisfied.
The second açsumpti.m is that the subject-matter of the alleged
conflict or disagreement in the instant cases concerns the interpretation
and/or the application rif the provisions of the Mandate.
But then, in order to ir-vokeArticl7,it still remains for the Applicants
to satisfy this Courttha-i there exists as between them and Respondent
a dispute, and that that dispute cannot be settled by negotiation.
Before dealing with the Applicants' allegations in this connection, it
is necessary to consider two questions that arise with regard to the
essential requirements for jurisdiction under Article 7.
The first question is, when does a conflict or disagreement become
justiciableas a dispute; and the second question is, under what circum-
stances can it be said l.hat an existing dispute cannot be settled by
negotiation?
Both these questions came up for consideration in the Mavronzmatis
case, where the Court W;LSconcerned with Article 26 ofthe Mandate for
Palestine, the provisions of which Article were identical to those of
Article 7 of the Mandate for South West Africa. At pages 396-399 (1) of
our wntten Objections, we quoted at length from the Judgment and
dissenting Opinions in the Mavrommafis case, to demonstrate that from
the views expressed by the majority of the Court and certain of the
Judges in the minority, two propositions would appear to be clear. 1 am
not going to read the extracts again as they appear in our written
Objections, 1 will just refer to the conclusion which we drew at page
399 (1), the conclusion b-ing that :
"Before a dispute can be justiciable
(a) its subject-matter must have been clearly defined; and
(6) the Mandatory must have been afforded an opportunity to
negotiate with the object of settiing the dispute. And, except
in the rare type of case where from the very circumstances or240 SOUTH WEST AFRICA
the nature of the dispute it is clear that the dispute cannot in
fact be settledby negotiation, either the Mandatory must have
failed to avail itself of an afforded opportunity to negotiate, or,
the Mandatory having so availed itself, the negotiations must
have resulted in a deadlock, before itan be said that the dispute
is one which cannot be settled by negotiation."
The Applicants, at page 450 (1) of their Observations, citethe Judg-
ment in the Mavromlnatis case fora definition of the word "dispute" in the
context of the compulsory jurisdiction clause, that definition being as
follows, "a disagreernent on a point of law or fact, a conflict of legal
views or of interestç between two perçons". Again, at pages 463-465(1) of
the Observations, there appears an analysis of the issues and findings
in the Mavrommatis case. But nowhere in their Observations do the
Applicants refute the conclusionwhich we drew at pages 398 and 399 (1)
of our written Objections from the Mavrommatis case and the other
decisions there referred to, ive., the propositions which 1 have cited
in the extract just read from our Observations, to the effect that
before a dispute can be justiciable in termç of the cornpulsoryjurisdiction
clause, its subject-matter must have been clearly defined, and the ,
Mandatory must have been afforded an opportunity to negotiate in the
sense which 1have stated-unless it can be established that the dispute,
from its very nature, or by reason of the particular circumstances, is
one which cannot possibly be settled by negotiation. We must therefore
conclude that the Applicants concede the carrectness of these general
propositions.
Proceeding now to the subject-matter of the dispute alleged to exist
in the instant cases, we find that Applicants formulate that dispute, and
1 quote, as "a disagreement on points of law and fact as well as a conflict
of legal views and interests", and itis particularised by the Applicants
as follows, at page 89 (1) of their Memorials where the Applicants Say:
"The record of the present case makes clear that, for more than
ten years, the Applicant herein ha had a disagreement on points
of law and fact, as well as a conflict of legal views and interests,
with the Union. The Applicant bas maintained at al1times that the
Mandate is in force; the Union, that the Mandate has lapsed. The
Applicant has insisted that the Union has violated the Mandate;
the Union has denied doing so. The Applicant has contended that
the United Nations has supervisory powers over the Union as
hlandatory; the Union has repeatedly rejected its contention. The
Applicant has asserted a legal interest in, and the right to object to,
the manner in which the Union administers the Territory; the
Union insists that it alone has a legal interest in what occurs in
the Territory."
The matters so alleged tobe in confict fa11into two separate categories
by their very nature. The first category comprises disagreements purely
on points of law, namely whether the hlandate is still in force, whether
the United Nations has supervisory powers in respect of South West
Africa, and whether the Applicants have a legal right or interest in the
administration of that territory, The second category comprises alleged
disgreements which are not concerned only with points of law but also
involve a conflict on facts, namely whether Respondent has violated
the Mandate. ARGUMENT OF MR. MULLER 241
For convenience and i:larityas to Our contentions with regard to this
Objection, these two catcgories will be dealt with separately, commencing
with the category compi-ising points of law only.
In the first place iisclear from our written Objections, and 1 refer
here again to page399 (1),that we donot deny the existence of a dispute
concerning the aforesaid points of law, that is of course, Mr. President,
assuming in the Applicants' favour on the third Objection. The AppLi-
cants, in participating iii debates in, and resolutions of, the organs and
agencies of the United Nations, have contended that the Mandate is in
force, they have conterided that the United Nations has supervisory
powers over Respondent as a Mandatory, and that they, the Applicants,
have a legal nght and interest in the administration of South West Africa.
The Respondent, on the other hand, has in the debates in the organs
and agencies of the Uaited Nations and in correspondence with the
United Nations, rejectcd these contentions of the Applicants. The
subject-matter of the disagreement concerning these points of law
can therefore be said tobe defined with çufficient clarity to constitute
a justiciable dispute.WC: ,owever, deny the allegation that the dispute
concerning these points of law cannot be settled by negotiation.
Applicants do not sug.gest that thedispute concerning points of law
is one which, by its very nature, or by reasonof special circumstances,
cannot possibly be settl2d by negotiation. On the contrary, they base
their case with regard thrreto on alleged frustration of efforts at negotia-
tion on the part of orgms of the United Nations and agencies of the
United Nations appoinied for the very purpose of negotiating with
Respondent, these 0rgar.s and agencies being the Fourth Committee of
the General Assembly, the Ad hoc Committee, the Good Offices Com-
mittee, and the Committee on South West Africa. The AppIicants'
statements relative to these negotiations are to be found in their
Mernorials at page 93 (1) , and also in their Observations at page 473 (1).
Eow we do not deny that there were these efforts at so-called negotia-
tion, but we make the case that Respondent has never been afforded
any real opportunity of negotiating with the object of settling the
dispute. IVith regard to that contention, we draw attention inthe first
place to the restrictivenature of the terms of reference of the various
cornmittees appointed a; agencies of the United Nations to negotiate
with Respondent. Thus we point out that the Ad hoc Committee es-
tabliçhed in 1950 was to confer with Respondent on, and 1quote from
page 273 (1) of the Preli~ninary Ob'ections, the "procedural measures for
implementation of the iidvisory dpinion of the Court". These terms of
reference were modihed in 1952 to conferring with Respondent "concern-
ing means of implementjng the Advisory Opinion".
In Igj3 the Cornmittee on South West Africa was appointed to
continue negotiations wilh Respondent, and I quote from page 280 (1) of
the Preliminary Objections, "in order to implement fully the Advisory
Opinion."
The terms of reference of the Good Offices Committee established
in 1957 were onginally less restrictive, and they were, as we find at
page 286 (1) of the Preliminary Objections, to discuss with Respondent
"a basis for an agreement which would continue to accord to the Territory
of South West Africa ai international status."
These wider terms of reference of the Good Offices Committee re-
sulted in at lest one proliosal, suggested by that Cornmittee and accept-242 SOUTH N'EST AFRICA
able to Respondent, being formulated for consideration by the General
Assembly. That proposa1 was that Respondent should carry out an in-
vestigation of the practicability of partitioning South West Africa,
but this proposa1 was rejected by the General Assembly. At the same
time the General Assembly altered the terms of reference of the Good
Offices Committee to find a basis for an agreement which would "con-
tinue to accord to South West Africa as a whole aninternational status
and which would be in conforrnity with the purposes of the United
Nations", and added to that, "bearing in mind the discussions at the
Thirteenth Session of the Generd Assembly". The terms of reference
which 1have just read are to be found at page 289(1) of the Preliminary
Objections.
Now, with its terms of reference so circumscribed, the Good Offices
Committee had eventually to report that it, and1quote from page 291 (1)
of the Preliminary Objections, "ha not succeeded in finding a basis
for an agreement ztnder itsterms O#referelzce"Nie Say that by limiting
the power of these agencies in the manner aforestated, the compass
of their respective fields of negotiation was restricted and correspondingly
the opportunity for negotiation afîorded to Respondent was also limited
to that extent.
This was a matter ofparticular importance inasmuch as Respondent
felt strongly thatthe problem of international supervision ofitsadmini-
stration of South West Africa required special consideration, with
a view toavoiding more onerous obligations for Respondent than those
which pertained during the lifetime of the League. And this, Mr. Presi-
dent, was the very point on which the negotiating agencies were left
inadequate freedom, their terms of reference directing at insistence on
United Nations supervision.
Mr. President, in negotiations through ordinary diplornatic channels
parties are unfettered in their exploration of al1avenues which may
present a solution to their differences. Where, however, as in the present
case, negotiations are in advance restricted to a narrow field, the pos-
sibility of settlement is substantially reduced, if not excluded altogether.
Respondent's repeated objections in the Uriited Nations to stulti-
fication of negotiations in the manner which 1 have stated was not
heeded.
Another objection voiced by Respondent at the time, as we have set
out at pages279 and 280 (1) of the Preliminary Objections,was that while
the Ad HOCCommittee insisted that Respondent should in principle
accept United Nations supervision asa basis for negotiation, the Com-
rnittee declined, despite Respondent's requests, to show how machinery
for United Nations supervision could be devised without subjecting
Respondent to obligations morc onerous than those açsumed under
the Mandate. Nor did the General Assernbly suggest a solution to this
difficulty.
It will be recalled that this Court in its50 Advisory Opinion stated
as follows:
"The degree of supervision to be exercised by the General AS-
sernbly should not ... exceed that which applied under the Man-
dates System, and should conform as far as possible to the proce-
dure followed in this respect by the Cauncil of the League of Na-
tions." (195O 0pinion p,. 138.) ARGUMENT OF MR. MULLER 243
In this regard Respondent repeatedly drew attention to two very
important difficulties.l'he first was the Constitution of the Permanent
Mandates Commission iinder the League as compared with the organs
of the United Nations and with the Committee on South \Vest Africa
which was appointed in 1953 "th the function, inter alia, of exercising
supervision over the administration of South West Africa. The Perma-
nent Mandates Commission was a commission of experts, indepen-
dent of their governmf:nts. There is no corresponding body or organ
in the United Nations. The Committee on South West Africa was
composed of political representatives of Member States, the selec-
tion of individuals beiag left to the discretion of the States elected
to serve on the Cornmittee. This applies also to al1 other councils, com-
mittees and agencies of the United Nations. Thus, unlike the members
of the Permanent Maridates Commission, the members of the Corn-
mittee on South West Africa, in exercising their supervisory functions,
did not stand apart from the political views of their governments.
In the second place, the ultimate supervisory body in the League
was the Council, a body of limited membership and the voting procedure
whereof was subject to the unanimity rule. The corresponding organ in
the United Nations contemplated to exercise ultimate supervisory
functions in respect of ?#outhWest Africa was the General Assembly, an
organ with much broader membership than the Council of the League,
and in the voting proceclure of which the unanimity rule does not apply.
Article 18 of the Charter provides only for decisions by a rnajority or, in
the case of certain matters, by a two-thirds majority.
IfRespondent had acquiesced in the supervision of its administra-
tion by the Committee on South West Africa and the General Assembly
of the United Nations, its task would definitely have been more onerous
than it was under the League of Nations. In effect, therefore, the insistence
upon prior acceptance by Respondent, in principle, ofUnited Nations
supervision meant the insistence upon acceptance by Respondent of more
onerous obligations as a prerequisite for negotiations.
Another frustrating feature of these so-called efforts at negotiation
was the conferment on the agencies appointed to negotiate with Res-
pondent of powers, the exercise of which was in direct conflict with their
office of negotiation. Thus, in addition to its powers of negotiation, the
Ad Hoc Committee was to examine reports and petitions with regard to
South West Africa and report thereon to the General Assembly. We draw
attention to that aspect at pages 273 and 276 (1) of the Preliminary Ob-
jections. Likewise, in thi: case of the Committee on South West Africa, it
was appointed to negotiate with Respondent and also to exercise super-
vision over South West .9frica. Later its functions were even extended to
ernbrace also the study of legal action against Respondent. These
are mattersto which we drew attention at page 280 (1) of the Preliminary
Objections.
By the purported conferment of such powers of supervision and the
exercise thereof, against which Respondent had repeatedly protested,
there was created this peculiar position that while Respondent was
invited to negotiate a si:ttlement ofa dispute, the very nature ofwhich
involved a manifest denial by Respondent of United Nations supervisory
powers, these agencies .ivere, at the same tirne, exercising supervisory
powers and attempting to subject Respondent thereto as ifthe dispute SOUTH WEST AFRICA
244
with regard to supervision had already been settled against Respondent's
contention.
Rloreover, the organ to which these agencieç reported on the results
and developments of efforts at negotiation, i.e. the Fourth Committee
of the General Assembly, was also the organ to which these agencies
accounted with regard to their supervisory fiinctions.And this state
of affairsas not conducive to fruitful results in negotiation, inasmuch
as the debates in the Fourth Committee were invariably marred by
disturbine features. such as. for instance. the oral hearing of petitioners.
How couid ~es~ondent bi expected to negotiate undgr sich circurn-
stances : circumstances which tended to fmstrate the verv obiect of
negotiations, the very object, as we see it, being the settïemeit of a
dispute?
The prospects of successful negotiations were further limited by
the repeated requests of the Generai Assembly that Respondent should
subrnit South West Africa to United Nations Trusteeship, and that
so despite the Court's1950 Opinion that Respondent was not obliged to
conclude a Trusteeship agreement. The General Assembly passed annual
resolutions urging the Respondent to do so. Ive give a summary of
those resolutions at page 402 (1) of the Preliminary Objections.
These resolutions clearly suggested that the majority of Members of
the United Nations would not be satisfied with any settlement of the
dispute which would not result in South West Africa being brought
within the Trusteeship System. In fact, Mr. President, the last Generai
Assembly resolution offeringnegotiations before the present cases were
brought to Court, that is a resolution of 17 November 1959, invited
Respondent-and 1 quote-to:
"...enter into negotiations with the United Nations through the
Committee on South West Africa, which is authorized under its
terms of reference to continue negotiations with the Union, or
through any other cornmittee which the General Assembly may
appoint, with a view to placing the Mandated Territory under the
International Trusteeship System". (General Assembly Resolution
1360 (XIV), 17 November 1959.)
This is a clear indication of what the majority of Members would be
satisfied with.
Of particular significance is the role played by the Applicants in
this connection. Not only did they sponsor and/or support the resolu-
tions of the General Assembly calling for a Trusteeship agreement, but
they madeit quite clear that they would not be satisfied with anything
but a Trusteeship agreement forSouth West Africa. Thus, for example,
at the Second Conference of Independent African States held at Addis
Ababa in June of 1960, the Liberian Representative, Mr. Rudolph
Grimes, said-and we find what 1 am going to quote now recorded at
page 82 (1) of the Applicants' Memorials; this is what he said: that his
Government had
"...already indicated its determination on behalf of al1the Afri-
can States, to pursue further action to get this territos. [South
West Africa] placed under the Trusteeship Provisions of the
Charter". ARGUMENT OF MR. MULLER 74
In this regard, I also wish to refer to a statement of the Ethiopian
Representative, Mr. Gebre-Egzy, speaking as a member of the Com-
mittee on South West Africa in the Fourth Cornmittee on the rg
October 1959. He dealt with the General Assembly resolution No.
1143 (XII) of the 25 October 1957. This resolution appointed the
Good Offices Cornmittee-and 1 quote-to:
".. discuss with th<:Government of the Union of South Africa a
basis for an agreement which would continue to accord to the
Temtory of South West Africa an international status".
Clearly, the resolutionmerely refers to a status but does not prescribe
a particular status: and this is what the Ethiopian Representative had
to Say with regard to this resolution:
O...when the Cominittee was discussing the wording of the text
which was later adopted as General Assembly resolution 1143
(XII) several delegritions-among them, Ethiopia-had made clear
that the words international status meant trusteeship status. The
General Assembly had been entirely right to oppose, at its rgth
session both the '.Temtory's partition and any solution which
offered less than the full trusteeship régime as it was applied
in dl the other territories administered by Member States of the
United Nations."
And further :
"Mr. Louw had, c.nbehalf of his Government [the Union of South
Africa], renewed th(: offer to enter into an agreement which wodd
accord some international status to the territory; in that connex-
legally acceptable :;tatus for the Territory wouId be trusteeship
status. Nothing lets would be in accordance with the Charter
and the Advisory Opinion of the International Court of Justice."
(U.N. Doc. A/C. 4/L;R914, p. 164.)
Now this statement i; significant not only in so far as it i?dicates
clearly the position takm by Ethiopia, but also in that it attempts to
justify that position by :ceferenceto the Advisory Opinion of the Court,
whereas the Court had held that Respondent waç not obliged to submit
the territory to United Nations Tmsteeship.
Mr. President, in the premises can it ever be said that Respondent
was afforded a real opportunity to negotiate with the object of settling
the dispute, when members of the negotiating agency, such a.Ethiopia,
serving on the Committre on South West Africa, viewed their task as
one to insist on the extreme of a Trusteeship agreement, and when it
was clear from the attitude of the majority of Members of the General
Assembly that a Trustership agreement would be the only arrangement
acceptable to them? Mr. President, we subrnit that it can never be said
that a reasonable opportunity for negotiation was afforded.246 SOUTH WEST AFRICA
[Public hearing ofII October1962, afternoan]
Mr. President, I am still dealing with the confiict between Respondent
and the United Nations regarding the status of South West Africa. We
Say that Respondent's willingness and desire to find a solution to the
disagreement which would be acceptable to al1parties concerned is amply
demonstrated by the record of events over the years 1946 to 1g60 as
deaIt with in Chapter II,Part B, of our written Objections, that is from
pages 256-297(1). Now, it will notbepossible in argument totraverse the
whole field of history. 1will however mention those rnatters which are
important for the purpose of my argument, and will, as 1 proceed,
mention for the purpose of the record the pages in the Preliminary
Objections where such matters are dealt with.
Now, although Respondent had throughout maintained its juridical
position it nevertheless put forward concrete proposals involving im-
portant concessions with a view to finding a solution.
It had in 1951 declared its preparedness to negotiate a new inter-
national instrument embodying the substantive obligations of the Man-
date, and, ifconsidered necessary, also an obligation to submit to the
jurisdiction of this Court. When these proposals did not satisfy the
ad hoc Committee, because the Committee felt that the United Nations
was not given a suficicnt role, Respondent went further and declared
that it was prepared to accept a compromise whe-rebythe idea of a fresh
agreement be sanctioned by the United Nations prior to the negotiation
of such an agreement. This matter is dealt with in the Prelirninary
Objections, pages 274-275(1).
Kow, this still did not satisfy the Comrnittee and, after further con-
sideration, Respondent intimated its willingness to have the actual
agreement submitted to the United Nations for confirmation.
AU these proposals involved concessions on the Respondent's part,
but the Comrnittee found these proposals unacceptable because, as it
indicated :
"it did not allow for a full implementation ofthe advisory opinion"
(of the Court),
those were the words of the Committee, and also that they
"could not therefore be considered as within [the Comrnittee's!
terms of reference".
Inthis respect,1 refer to the Preliminary Objections, page275 (I), where
the reaction of the Committee is dealt with.
When these proposals were resiibmitted to the Comrnittee in 1952,
the Respondent, upon enquiry froin the Committee, undertook that
under the proposed agreement the Respondent would supply annually,
to the Powers with whom the agreement was to be concluded, information
on South West Africa as complete as that furnished to the League of
Nations.
Stili the Committee waç not satisfied as it insisted on United Nations
supervision and considered that the proposed agreement should be con-
cluded withthe United Nations or with an agency of the UnitedNations.
That matter is dealt with ai pages 277-278 (1) of OurPreliminary Objec-
tions.
With the hope that an acceptable solution could still be found, Res-
pondent discussed various possibilities with the Good Offices Commit- ARGUMENT OF MR. MULLER 247
tee in 1958 when the Committee suggested that a partitioning of South
West Africa (and 1 quoi:e their own words) "might provide the basis for
the solution". Respondmt intimated that it would be prepared to in-
vestigate the practicability of partitioning and, iffound feasible, Res-
pondent would submit proposals to the United Nations.
The suggestion of the Good OfficesCommittee that such an investi-
gation be made was, h~wever, as we indicate in the Preliminary Ob-
jections at pages 348-349 (I), rejected by the General Assembly.
Respondent nevertht:less reiterated its preparedness to negotiate
furthcr and stated its position in clear Ianguage to the Fourth Committee
on the 26 October 1959. In this respect, 1 refer to page 351 (1) of the
Preliminary Objections, where towards the middle of the page one has
the reply of the Resporident in the following terms:
"The South African Government remained ready to enter into
discussions with an appropriate United Nations ad hoc body that
migkt be appointed after prior consultation with the South African
Government and which wouId have a full opportunity to approach
its task constructi~rely, providing for the fullest discussion of al1
possibilit ies."
This offcr was repeati:d in a letter to the United Nations on 29 July
1g60, but elicited no reaction.The letter is dealt with at pages 353-354
(1) of the Preliminary Objections.
On 4 Novernber 1960, these proceedings were instituted by the Appli-
cantsand the Respondejit has since followed a course of conduct strictly
in observance of the su5 fudicl rule, despite the fact that the matters
in issue in these proceedings have since formed the subject of debate in
the United Nations.
Although Respondent, in its written Objections at pages 401-405 (1),
clearly stated its reasons for contending that it had not been afforded ,
a real opportunity of nesotiating, as is contemplated in Article 7of the
Mandate, with regard to the legal points in issue, the Applicants in their
Observations do not deal with that contention at all. They do not
refute Respondent's conclusion that negotiations were frustrated by
the following circumsta~lces:
(i) the restrictive terms of reference of the agencies appointed to
negotiate with Respondent ;
(ii)the purported c~nferment on, and the exercise of supervisory
powers by, the lrery agencies appointed to negotiate, and the
resultant creation of an atmosphere not conducive to negotiation;
(iiithe requirement of prior acceptance by the Respondent of United
Nations supervision as a basis for negotiation;
(iv) thepersistent urging that Respondent submit South West Africa
to United Natioras Trusteeship, and the expression of views by
the majority of States in the United Nations, which suggested
that they would not be satisfied with any other arrangement than
a trusteeship agreement.
Now, the Applicants, a.tpage473 (1) of their Observations, merely refer
a ain to what they terni frustrated efforts at negotiation over a period
Ofmore than IO years, alid to the conclusion by the General Assembly in
its resolutionof 1960, which they quote:248 SOUTE WEST AFRICA
"the dispute which has ansen between Ethiopia, Liberia and other
Member States on the one hand, and the Union of South Africa on
the other, relating to the interpretation and application of the
Mandate has not and cannot be settled by negotiation".
And, Say the Applicants, this is afinding of fact by the highest adminis-
trative organ of the United Nations, embodying a conclusion amply
warranted by ail exceptionally full record.
Elsewhere in the Observations we find the Applicants stating as fol-
lows (at page 455 (1), second half of the page):
"Further, the dispute concenis the United Nations itself as an
institution, inasmuch as Respondent disputes that the Organization
is vested with supervisory powers over the Mandate",
and, on the next page, 456 (1), the top half of the page:
"In instituting these proceedings, Applicants have.moved to pro-
tect not only their own legal interests but the legal interests of the
United Nations (which itself, may not be a party to contentious
proceedings), as weil as the legal interests of every other Member
State similarly situated."
We do not deny that the United Nations is, by reason of its claim to
powers of supervision aver the Mandate, concerned in the dispute; indeed,
if it had not been for the claims put forward by the United Nations it is
unlikely that there would have been any dispute at al1 and therefore
any legal proceedings.
The conclusion embodied in the resolution of the General Assernbly
must therefore be seen in its correct perspective and appraised as such.
Although described by the Applicants as "the highest administrative
organ of the United Nations", the General Assernbly is in fact also a
political body. The resolution of the General Assembly is nomore than
the expression of a collective opinion by the States who voted for the
resolution, such States being, as the resolution shows,.involved in the
dispute as Members of an organization which is itself directly concemed
in the dispute. It inot an objective appraisal of the situation by a body
not a participant in the dispute.
The Applicants go on to Say, at page 473 (1) of the Observations,
that Respondent professes the view that the dispute can be settled
by negotiation. Now, this is a distortion of Respondent's contention,
which is formulated in clear and plain language at page 403 (1) of
the written Objections. Referring there to the unsatisfactory features
of, and the circumstances surrounding, the past efforts of negotiation,
allof which had been fully set out in the written Objections, we submitted
that inthe premises Respondent had not been afiorded a real and genuine
opportunity to negotiate with an object of settling the dispute. And, for ,
that reason, we denied that the alleged dispute concerning di5agreement
on points of law is one which can not be settled by negotiatron, or that
contained in the Applicants' Memorials, as qualified and amplifiedf events
in Respondent's written Objections.
Respondent's case is simply this, that until it has been affordeda real
and genuine opportunity to negotiate it cantzotbe said that the dispute
is one which cannot be çettled by negotiation. Respondent's willingness
to negotiate with an appropriate United Nations body, with a view ta .\RGUMENT OF MR. MULLER
249
exploring aLi possibilities, stili stands, but haç never met with any
reaction from the United Nations. Given such an opportunity, we say
that the dispute need ~zotbe incapable of solution by negotiation.
The Applicants Say further, at page 473 (1) of their Observations,
round about the middle of the page, that Respondent:
"... omits to state ... the unspoken qualification show by the
lengthy record: [~amely] negoiiation tan succeed only upon ac-
ceptance of Respoi~dent'sconditions and interpretationç".
But, Mr. President, we submit that the very record to which the
Applicants referputs tIie boot on the other foot. Respondent haç never
attempted to circumsc:ribe the compass of negotiations with condi-
tions. It has to the very last reiterated its readiness to enter into negotia-
tions which would allow for the fullest discussion and exploration of
al1possibilities.
Tt was the Applica~ts and other Members of the United Nations
who by majority vote in that Organization imposed conditions, in the
nature of restrictive terms of reference, on the agencies appointed to
negotiate with Responiient and thereby limited the compass of nego-
tiations proffered to Respondent.
Nor did Respondent limit its proposals to faU within the juridical
position as interpreted liy it. Des ite Respondent's contention that since
the dissolution of the League o3 ations it alone had a legalinterest in the
administration of South West Africa, Respondent proposed without
prejudice toits legal position to negotiate a new internationalinstrument
sidered necessary, an obligation to submit to jurisdiction of this Court. It
even propoçed thatthe idea of a new agreement be first sanctioned by the
United Nations, and tliat the agreement should, after conclusion, be
confirmed by the United Nations. Later Respondent also declared its
preparedness to investigate the practicability of partitioning South West
Africa as suggested by the Good Offices Comrnittee.
It was the AppIicants and other Members of the United Nations
who were adamant that. no concessions should be made on their part-
nay even more, who wi:re adamant that Respondent should submit to
something which they knew Respondent was not legallyobliged to-
and that içto submit Sriuth West Africa to United Nations trusteeship.
At pages 473-474(1) of their Observationç, the Applicantscite, in sup
port of their contentior~ that Respondent has frequently avowed the
failure of negotiations, extracts from three letters written by Respondent*
Most certainly Respondent avowed the failure of such negotiations
as there were, but at the same time Respondent made it clear why
Respondent thought the negotiations did not, and could not be expected
to, lead to any positive results. The three letters quoted from by the
Applicants were written in the yearç 1954,1955 and 1956in response to
invitations by the Comniittee on South West Afnca that the Respondent
should negotiate with it. In the first Ietter Respondent made it clear that
doubtful whether negotiations would Iead to any positive results. This
prediction proved to be correct. And in the subçequent two letters
Respondent reiterated that while the Committee's terms of reference
stood unaltered, there w;tsno hope that negotiations could lead to positive
results.250 SOUTH WEST AFRICA
In concluding their contentions with regard to this Objection, at
page 474 (1)O£ their Observations the Applicants Say, and 1 quote from
page -474 of the Observations :
"As the General Assembly has repeatedly found in Resolu-
tions...by ovenvhelming majorities, Respondent has refused, and
continues to refuse, to act on the basis of its internationarespon-
sibilities under the Mandate, in the teeth of the Advisory Opinion
of this Court. This remains the center and core of the dispute be-
tween Applicants and Respondent. The very contentions advanced
by Respondent in its Preliminary Objections clearly demonstrate
that its continuous, historic position persists. By ils own conten-
tions it proves, if proof is needed, that the dispute cannot be
settled by negotiation."
Mr. President, instead of atternpting to answer our contention that
Respondent has not been afforded a real opportunity of negotiating a
settlement of the dispute, Applicants rely on the resolutions adopted
by the majority vote in the General Assembly of the United Nations.
As I have already stated, these resolutions must be considered in
their proper perspective. They are no more than the expression of
a collective opinion of the majority of States in the United Nations,
which States, in Applicants' own submission, are parties to the existing
dispute. Their finding, by voting forresolutions in the General Assembly,
that Respondent has refused and continues to refuse to act on the
basis of its international responsibilities under the Mandate rests, of
course, on their own conceptions of what these responsibilities are.
We have contended, and have fully argued our contention, that the
views of these States as to Respondent's international responsibilities
are legally unsound. If Our subrnrission as to the juridical position is
correct,as it is contended tobe, then it would follow that the criticisms
contained in the resolutions to which the Applicants refer are equally
without foundation. Admittedly Respondent has not accepted in full the
Court's Advisory Opinion of 1950 ,ut it has refused to dosoon grounds
which, we respectfully submit, are sound in law.
Whatever the centre and core of the dispute between the Parties
may be, Respondent has demonstrated its desire and willingness to
find a solution to the dispute, but the Respondent contends, for the
reasons advanced in argument, that it haç not been afforded a real
opportunity of negotiation, and that the record of events inthe United
Nations does not iustif~ a conclusion that the dispute cannot be settled
by negotiation. a
1deal next, Mr. President, with the alleged conflict or disagreement
which is not concerned purely with questions of law, that isthe alleged
violation by Respondent of the substantive provisions of the Mandate.
In this respect, the Applicants Say, at page91 (1) of their Memorials,to-
wards the bottom of the page :
"The Applicant deges, and the Union has denied, that the
Union has violafed and is vidating Articles z, 4, 6 and 7 of the
Mandate. There is therefore a dispute concerning both the mter-
pretation and the application of these Articles of the Mandate." irRGUMENT OF MR. MULLER
2.51
In support of their contention the Applicants refer to their partici-
pation with other Merntiers of the United Nations in debates and resolu-
tions in that Organization concerning the administration of South West
Africa. Now, in these debates and resolutions, certain aspects of admini-
strationinSouth West A.fricahave been criticized. Participation in these
debates, and in the resolutions of the organs and agencies of the United
Nations, was not confiried to States which, as Members of the League
of Nations, had, prior to the dissolution of theLeague, a legai interest
in the administration of South West Africa. States which had never
been Mernbers of the Lt:ague, and at no time had a Iegal interest, took
an active part in discussions in the United Nations on South West Africa
and in sponsoring and ~roting on resolutions concerning the administra-
tion of that territory.
From the inception ,sf the United Nations Respondent had made
clear itsjuridical position with regard to South West Africa, namely,
that it was not obliged to submit a trusteeship agreement for the terri-
tory, and that in the allsence of such an agreement the United Nations
had no supervisory authority in respect of the territary. This attitude
Respondentmaintained ;:hïoughout, and refused to submit reports onthe
basis of accountability.to the United Nations. Respondent had under-
taken in1946, asa purelj. voluntary act, to submit reports for information
purposes only, but this iindertakingwaswithdrawn when the conditions
under which it had been given were not observed by the United Nations
in dealing with the repoi t for the ye1946.
There was not the .same consistency in attitude on the side of
other Members of the United Nations with regard to South West Africa.
During the year 1947 a great number of States participated in debates on
South West Africa in the orgms of the United Nations. Particulars
of such debates were f~rnished by my learned friend, Mr. de Villiers,
in addressing the Court on the First and Second Objections. We find
there that, although some States considered that Respondent was obli-
ged to concIude a trustee~hip agreement for the territory, and some expres-
sed the view that South IfTestAfrica was a non-self-governing territory,in
respect whereof inforrna1:ionwas in terrns of Chapter XI of the Charter
to be submitted to the United Nations, not one State denied Respon-
dent's contention that in the absence of a tnisteeçhip agreement and
unless Respondent conjented to some other arrangement whereby
the United Nations woilld be endowed uith supervisory powers over
South West Africa, the United Nations did not have any nghts of
supervision over the administration of that territory. In fact, quitea
number of States expressed views clearly implying consensus with
Respondent's contention.
During the years 1948 and 1949 a few States did take up the attitude
that, even without a trusteeship agreement, the United Nations was
entitled to exercise supervisory powers with regard to South West
Africa. The reasons advanced by these States for their point of view
was either that the provisions of Articl80 oEthe Charter had the effect
of endowing the United Nations with sups:rvisory authorit y-in that
instance we refer to the attitudes adopted by Belgium and India-or
that the United Nations as representative of the international commu-
nity had replaced the League, which in its day had represented that
community-we refer in that respect to Erazil, Cuba and Uruguay.2.52 SOUTH WEST AFRICA
But the attitude then adopted by some of these States was in conflict
with views expressed by them in the year 1947.
However, it was only after the Court's Advisory Opinion had been
issued in 1950, and adopted by a majonty vote in the United Nations,
that there was uniformity in the conduct of a majority of Mernbers in
the United Nations who sponsored and, by majority vote, passed reso-
lutions demanding observance by Respondent of United Nations
supervision over South West Africa, and creating machinery for the
exercise ofsupervisory powers. As mentioned by us at page 272 (1) of the
Preliminary Objections, Respondent explained at the time, particularly
with reference to the Chinese proposa1 at the last Session of the League,
why it could not accept the Court's opinion in so far asit held that the
United Nations was vested with supervisory powers over the adminis-
tration of South West Africa, andRespondent maintained its attitude
of non-accountability to the United Nations.
In conformity with that attitude, Respondent throughout refused
to deal in the United Nations with complaints regarding, and criticism
of, its administration of the territory. Respondent did on occasions
participate in debates conceming the administration of South West
Africa. But this was done without prejudice to its legal position, and
merely for the stated purpose of dernonstrating that the complaints
and criticisms were based on unreliabIe information, ,and without a
proper conception of conditions prevailing in the territory:
By reason of Respondent's attitude of non-accountability to the
United Nations, it has not stated its case in opposition to the allega-
tions conceming the administration of South West Afnca, nor have
there been any negotiations whatsoever concerning the cornplaints
involved in-such allegations. Now, if Respondent was right in its atti-
tude of non-accountability to the United Nations-and wecontend that
for the reasons stated and fdy argued, relevant to the First Objection,
that it was right in that attitude-then it follows in Oursubmission that
Respondent was also correct and justified in its conduct of refusing
to deai in the United Nations with dlegations or complaints concerning
the administration of South West Africa or to enter into negotiations
thereanent on the basis of accountability to the United Nations.
In the premises we contend that whatever differences may, from de-
bates in the United Nations, appear to exiçt as to certain aspects of
administration of South West Africa, these differences are not defined
to such a degree as to constitute a dispute in terms of Article 7,of the
Mandate, and that, in any event, there have in fact been no negotiations
regarding such differences, so that even if it can be said that there is a
dispute in existence, it cannot be said that that dispute is one which
ca1 proceed now to dealegotwithonthe Applicant's Observations in reply
to our contentions on this part of the Fourth Objection. Before at-
tempting to deal with our argument on this part, Applicants in their
written Observations, ai pages 451 and 452 (I),create confusion for
thernselves as to what our argument in fact is, by speculating on the
exclusion of contentions not embraced in the argument.
After much unnecessary speculation, the Applicants say, at page 452:
"Possibly Respondent seeks to imply that there is no dispute
because it has not joined issue with every one of Applicants' con- ARGUMENT OF MR. MULLER 253
tentions, although, asit admits, Respondent has denied the general
allegations. If inde2d this is RespondentJs position, it is erroneously
conceived."
In the first place, tllere isno need to seek any implication in our
argument. Our contention was clearl formulated at page 304 (1)of the
written Objections. 1 -xi11not read? what is stated there, but 1 will
.briefly repeat our contention, namely that by reason of Respondent's at-
the contentions put foiward in the United Nationsions ibysthe Applicants
and other Member States. Respondenf's attitude in this respect was
justified and necessary so asto prevent submiççion to United Nations
supervision. In the result, no disputehas been generated from the aliega-
tions and contentions raised in the United Nations concerningthe adminis-
tration ofSouth West Ai'rica;and the raisingof such rnatters in the United
Nations did not, in vii:w of Respondent's juridical position, aflord a
reasonable opportunity fornegotiation. Though Respondent has generally
denied that it has vio1a;:edthe provisions of the Mandate, it has refused
to join issue with the 1iarticu1a.rallegations and contentions advanced
in the United Nations rt:garding its administration of South #WestAfrica.
But, Say the Applicants, also aipage 452 (1) of their Observations:
"...it is sufficient, byway of illustration, that Applicants allege
that apartheid violates Article z of the Mandate, and that Res-
pondent categorically denies the allegation. It is not .anecessary
characteristic of a 'dispute' that antagonists engage each other in
direct debate on each and every factual point constituting their
differences."
Now in whatsoever manner a dispute is rnanifested-whether in
direct debate, or by cor:espondence, or othenvise-at least this much is
necessary and that is that the subject-matter of the dispute must be
clearly defined before it canbe justiciable.
To demonstrate this requirement, let us consider the very example
which the Applicants cite by way of illustration. If the alleged dispute
had consisted of a disagreement merely as to whether "apartheid" as a
theoretical conception violates Article 2 of the Mandate, then provided
thereis clarity.on both sides as to whatafjariheidactually means, then it
would perhaps have sufftced if the Applicants had alleged that apartheid
violates Article2 of the Mandate and Respondent had denied that allega-
tion. But that, of course, is not the alleged dispute presented by the
Applicants for the Court's adjudication. The Applicants make clear in
their Mernorials at pages 108 and 161(1)what the alleged dispute is
about. At page 108, we hnd the following, at the bottom of the page :
"Since this section of the Mernorial is concemed with the record
of fact, it deds witli apartheidas a fact and not as a word. It deds
with apartheid in ractice, as it actually is andas it actually has
been in the lifeofRt2people ofthe Territory, and not as atheoretical
abstraction."2.54 SOUTH WEST AFRICA
At page 161 (1) wefind a statement to the same effect,also towards the
bottom of the page:
"We here speak of a?artheid,as we have throughout this Me-
morial, as a fact and not as a word, as a practice and not as an
abstraction. Apartheid, asitaclually isand asit actuaily has been
in the life of the people of the Territory ia process..."
Now, the alleged dispute, clearly then, as advanced by the Applicants,
is not concerned with apartheid in theory but with particular legislative
acts and administrative measures applied in South West Africa; and
Respondent, by reason of its juridicd position, has not stated its case
with regard thereto, with the result that the subject-matter of the
dispute has not been clearly defined.
Another argument propounded by the Applicants at page 67 (1)oftheir
Mernorials is that they have since 1954 voted to approve and adopt the
annual reports of the Committee on South West Africa, which have set
forth detailed criticisms of Respondent's exercise of the Mandate; and
the Applicants go on to Say this, at page452 (1) of the Observations:
"If dunng al1 the time since 1954 Respondent has not seen fit
to respond to these contentions, but has continued to exercise
the Mandate without regard to the criticism supported and adopted
by the ovenvhelming number of the members of the international
community, it would appear that Respondent disagrees with the
criticisms.In the circumstances, Respondent's deeds have been its
words."
Again, this hypothetical argument departs from the realities of the
situation in this particular case. If there had been no response by
Respondent to the criticism contained in the reports of the Committee
on South West Africa, then there could possibly be somejustification for
the conclusionwhich the Applicants seek to draw. Respondent, however,
repeatedly demonstrated that the criticisms contained in the reports of
the Committee were based on unreliable information and on misconcep-
tions of conditions prevailing in South West Africa. and thus rendered
clearthat its conduct in proceeding with its administration of theterntory
as before could not justify the inference now suggested by the Applicants.
Indeed, Mr. President, in the very next paragraph at page 453 (1) of
their Observations, the Applicants refer to occasions on whichepresenta-
tives of South Africa. addressed the United Nations on various aspects
of administration in South West Africa. The Applicants Say there, at
page 453 of the Observations, that in so doing: "Respondent stated its
position and voiced its contentions strenuously."
The records of the debates in the pears 1948, 1954 and 1959 relied
upon by the Applicants, however, show clearly that Kespondent's
participation in çuch debates was not with the object of stating its
case in opposition to the allegations and criticisms concerning the
administration of South West Africa, but was for the sole purpose of
demonstrating that the compIaints and cnticisms were based on un-
reliable information and misconceptions.
Thus, Mr, Louw, in addressing the Fourth Committee at its 78th
meeting on 9 November 1948 on certain aspects of the administra-
Document Aj603, that is, the document referred to in the firsl footnote ARGUMENT OF MR. MULLER
255
on page 453 (1) of the Observations, to have prefaced his statement with
the folIowing:
"He intended to dealwith certain pointsrelating to the administra-
tion of the Temitory of South West Africa by the Union of South
Afnca, but he wished to make it clear that, although hisGovernment
was willing to supply information, that did not mean that it rec-
ognized that the United Nations had any right of supervision
over the administ::ation of the Territory in question."
And later at page 310:
"Altogether, his delegation hoped that the information it had
just supplied, quite:voluntarily, would help to give a better picture
of his Government's administration in the Territory of South
West Africa."
Again at the 407th mt:eting of the Fourth Committee on the 15 Oc-
tober 1954, Mr. D. B. Sole isreported in United Nations Document
A/C.~/SR/~O~to have said :
"As the Fourth C:ommitteewas aware, his Government recognized
no obligation to provide the United Nations with information on
South West Africa or to comment on information obtained from
other sources. His delegation was in fact in a position to correct
al1 the errors of fai:t or interpretation in the report, but it had no
obligation, and dici not propose, to do so. The report had been
submitted by a conimittee which his Government did not recognize
and it wouId therei'orebe incorrect for hirn to deal with it chapter
by chapter. Nevertheless, and solely for the purpose of indicating
how dangerous anc misleading such a report could be and how it
could be used to give the world an unreal picture of the situation,
he would give a few illustrations of the Cornmittee's errors in fact
and judgment." (P. 68.)
The document that 1 have just read from is that referred to in the third
footnote on page 453 (1) of the Observations.
During the year 1959 ,oth Mr. Louw and Mr. van der Wath addressed
the Fourth Committee on behalf of Respondent.The basis on which they
were to participate in debates on affairs in South West Africa was clearly
outlined by Mr.Louw at the 900th meeting ofthe Committee on 8October
1959.Mr.Louwrepeated. that the juridical position taken by South Africa
was that the supervisoiy functions to the League of Nations had not
passed on to the United Nations and stated further, interalia-1 am
reading now from Unitcd Nations Document A/C.~/SR/~OOat page 85
(that isthe document referred to in the second footnote on page 45(1)of
the Observations) :
"The Union of South Africa did not recognize the United Nations
Committee on Sou4.h West Africa, for reasons that it had stated
many times. While the Union Govemment considered that it was
not obIiged to respond to the reports of that Committee, he would
on the present occasion deal with certain aspects of it which related
more directly to tie Union Government. Ah-.van der Wath, a
Member of Par1iarnt:ntwho had been associated witfi the Territory's256 SOUTH WEST AFRICA
administration for many years, would later provide the Committee
with information on what had been done in South West Africa, par-
ticularly with regard to the welfare of the indigenous inhabitants."
, And Mr. Louw concluded his statement by saying (at p. 87 of that
document) :
"He had dealt with only a few of the more outstanding mis-
statements and unjustified conclusions appearing in the report
A/~I~I but they were sufficient to show to what extent the Com-
mittee on South West Africa had been misled by information
from unreliable and prejudiced sources which did not represent
the Non-European inhabitants in the Territory."
Itwas on the same basis that Mr. van der Wath addressed the Fourth
Committee at its gqth, 915th and 916th meetings in 1959. These
meetings are dl referred to in the footnotes at page 453 (1)of the Obser-
vations.
Now the fact that Respondent has consistently diçputed the general
aliegation that it haç violated the provisions of the Mandate-a rnatter
to which the Applicants draw attention at page 453of their Observations
-does not detract from our contention that the subject-matter of the
disagreement or conflict which in the present proceedings is alleged to
exist is not sufficientlydefined asto be justiciable under the compulsory
jurisdiction clause.
From pages 453-456 of their Observations the Applicants devote
attention to the question what is a dispute, a point which, they Say, is
alsa relevant to the question, what is negotiation?
In the first place, the Applicants, at page 454of the Observations,
may be generated, or negotiations conducted, in the United Nations.tes
They put it in these terms:
"Respondent does not deny that disputes may be generated, or
negotiations conducted, in the United Nations. Indeed, ashas been
show above, Respondent concedesthat a dispute does exist between
itself and Applicants, which dispute has been generated in the
United Nations, at least on issues of law."
They Say further at that page:
"It is difficult to conceive that Respondent would seriously
forum. Indeed, the subject-matter ofthe dispute in the instant cases
is ço particularly appropriate for discussion and consideration in
the United Nations that unilateral attempts to deal with the dispute
through channels unrelated to that body wouid engender confusion
and undermine the very purposes of the Mandate and United
Nations' supervision thereof."
In this respect the Applicants cite scholarly authority and state their
ownviews with regard to the objects and purposes for which the United
Nations was established.
Now the Applicants are correct in saying that we do not deny that
disputes rnay be generated in the United Nations; nor do we contend
that negotiations between States cannot take place in a muitilateral
forumsuch aç the United Nations. IIRGuMENT OF MR. MULLER 257
What we do contend is that for a dispute to be properly generated,
and for negotiations to be properly conducted, in a particular forum
(that is foran opporturlity for negotiation to be afforded in such forum)
both the subject-matte of the dispute and the conduct of negotiations
must fa11within the competency of that forum. A State, being a member
of an international organization, cannot, against its own will, be drawn
into a dispute in that organization on a matter beyond the competency
of the organization; nor can such a State be expected to negotiate in that
organization when the professed negotiations are subjected to conditions,
the imposition of whicf~is outside the competency of the organization.
Now, we concede that in fitcircumstances it might be possible for the
subject-matter of the alleged disagreement or con£lict in the present
cases to be properly rai~iedin the United Nations and for disputes there-
anent to be generated in that forum, but then, we Say, it must happen
with due observance of the constitution of the organization, that is the
Charter of the United Nations. For instance, matters of the nature
brought into cornplaint against Respondent in the present proceedings
couId competentlybe raised for discussion in the United Nationsrelative,
for instance, to a Trust Territory, on the basisof accountability to that
organization by the administering authority. The Charter makesprovision
for such accountability, in the case of a trust territory. But the Charter
makes no provision for accountability to the United Nations by a
Mandatory in respect oI the administration of a Mandated territory not
converted to trusteesh&, and there is, in our respectful submission, no
legalbasis for the exerci:;eby the United Nations of supervisoryfunctions
in respect of such a ten iiory.
When, therefore, criticism of Respondent's administration of South
West Africa was raised in the United Nations on the baçis ofaccount-
ability by Respondent for its administration to the United Nations,
Respondent was, we submit, in view of its juridical position that the
United Nations had no supervisory powers in respect of that territory,
entitled to resist being iirawn into disputes on that subject and to refuse
negotiations thereanent.
In order to maintain its position, a position which we contend was
justified in law, Respondent was obliged to refrain from stating its case
1n opposition to the cornplaints and allegations made in the United
rault that the difference; which arose onthat subjecthave not manifested
themseIves into a dispute, nor have there been negotiations thereanent.
Now, instead of meeting the crisp point made by us in this regard,
the Applicants Say, at page 455 (1) of their Observations:
"In disputing anclnegotiating with Respondent, Applicants have
set forth their views in the General hembly and in its Cornmittees,
and have likewise acted through the organs established by the
United Nations ta deal with the dispute and negotiate with
Respondent. "
ASwe have shown, upon a proper analysis of the eventsin the United
Nations, Respondent ha:;throughout avoided a disputation of allegations
concerning particular acts of violation of the Mandate, and there have,
in fact, been no negotia1:ionson that subject.258 SOUTH WEST AFRICA
That a dispute has been generated on other matters which are purely
matters of law, and that abortive negotiations were conducted in that
regard, has not been denied by us. 1have already dealt with that matter
in the first part of the argument on this Objection.
Other arguments put forward by the Applicants on this part of the
Fourth Objection also avoid the point in issue. Thus, at page 451 (1)
of their Observations, the Applicants Say that the subject-matter of the
dispute-the alIeged acts of violation of the Mandate-covers one of the
major undertakings of the United Nations Members, and they go on to
cite the provisions of Article73 of the United Nations Charter. Now,
if the criticism of Respondent's administration of South West Africa
had been put fonvard on the basis of alleged violation of the pro-
visions of Article 73 of the Charter, then entirely different considera-
tions would have arisen. But that did not happen: the allegations
regarding Respondent's administration were made on the basis of
accountability by Respondent to the United Nations, as if the United
Nations had succeeded to the powers and functions of the League of
Nations under the Mandate, tvhich is an entirely different matter, and
not the same as a matter under Article 73 of the Charter.
Further, Say the Applicants, the dispute concerns the United Nations
itself, as an institution,inasmuch as Respondent disputes that the
Organization is vested with supervisory powers over the Mandate.
Of course that ispart of the whole conflict. We do not deny that
Respondent disputes the United Nations claim to supervisory powers
over the Mandate. In that respect we concede that there is a dispute,
but that does not justify a conclusion that there is also a manifested
dispute on the other matters in conflict, namely, an alleged violation of
the substantive provisions of the Mandate.
Finally, the Applicants take up their stand on the sacred trust of
civilization and they Say, at page451 (1)of their Observations:
"The dispute is of concern and interest to al1 States, at least
those which are Members of the United Nations. This is manifest
from the above-quoted portions of the United Nations Charter, as
well as the history of proceedings regarding the Mandate in the
United Nations. It wouId have been inappropriate, therefore, for
Applicants to attempt solely through their own diplomatic channels
or unilateral offices to determine with Respondent the future
course of the Mandate, 'aninternational institution withan inter-
national object', especially in view of the fact that the United
Nations had established Organç and procedures through which
Member States could act to express their views, malce their con-
tentions known, and seek to resolve points ai issue between them-
selves and Respondent."
Now, we do not contest the allegation that matters of Mandate
administration may be of concern to al1Members of the United Nations
and that the UnitedNations wouId be an appropriate forum fordiscussion
of such matters; but then such discussions must proceed upon a pro-
per legal basis and within the cornpetency of the United Nations.
We contend that the United Nations has no supervisory powers over
the administration of South West Africa, and Member States of that
Organization, who were not Members of the League of Nations at its .4RGUMENT OF MR. MULLER 259
dis01ution, have no legal interest in the administration of that territory.
The Applicants, on the other hand, have contended, asthey also do
in the present proceedingç, that the United Nations bas sçuchsuper-
visory powers and that al1Mernbers of the United Nations have aIegal
interest in the administration of South West Afnca.
This conflict is the crux of the whole issue asto whether, frorn the
events in the United Nations, it can be concluded that with regard to
allegations of violation of the substantive provisions of the Mandate,
there exists a properIy defined dispute between the Applicants and the
Respondent, and whe1:her there ha been a proper opportunitp for
Respondent to negotiate thereanent.
Respondent has throiighout taken its stand on what it contends to be
the juridical position and has refused to be drawn into disputes regarding
its administration of South West Africa, on the basis of accountability
to the United Nations whereas, on the other hand, the Applicants and
other Members of the United Nations have, at least since the issue of the
1950 Advisory Opinion, raised in the United Nations cornplaints con-
cerning the administration of South West Africa on the basis of ac-
countability by Respondent to the United Nations for such administra-
tion.
At page 456 (1) of their Observations, the Applicants in fact say:
"In disputing and negotiating with Respondent in the United
Nations during the past several years, AppIicants, therefore,.have
been upholding thitir own legal interests in the proper exerciçeof
the Mandate; but they have been doing more than that. They have
also been upholdinz the colIective legal interest of the Members of
the United Nations and the interests of the Organization itself.
In instituting thest proceedings, Applicants have moved to protect
not only their owil legal interests but the legal interests of .the
United Nations (wliich, itseIf, may not be a party to a contentious
proceeding), asweil as the legal interests of every other Member
State sirnilarly situated."
Mr. President, we, I submit, have demonstrated that with regardto
the matters raisedin tlie United Nations concerning Respondent> ad-
ministration of South W+stAfrica, Respondent has, in viewof its jundical
position refused to accoimt to the United Nations and to join issue with
other Mernbers of the IJnited Nations on such matters.
We, therefore, repeat our contention that in that regard it can ?zol
be said that there exista dispute, or, that if it can be said that a dispute
exists, thatsuch disputa: cannot be settled by negotiation.
Mr. President, that concludes my argument on the Fourth Objection
and rny address to the Court. 1 thank the Court.
Le PRÉSIDENT: Je voudrais maintenant demander à M. l'agent de
l'Afrique du Sud s'il dksire lirelesconclusions de son Gouvernement.
Dr. VERLORE NAN THEMAAT Y:es, Mr. President. May it please the
Court. 1 now have the honour to read the submissions of the Govem-
ment of the Republic oi South Africa in these proceedings. They are
follows:
Sztbmissions
For allor any one or more of the reasons set out in its written and
oral statements, the Government of the Republic of South Africa260 SOUTH WEST AFRICA
submits that the Governments of Ethiopia and Liberia have no locus
standi in these contentious proceedings, and that the Court has no
jurisdiction to hear or adjudicate upon the questions of law and fact
raised in the A$plications and MernoriaEs,more particularly because:
Firstly, by reason of the dissolution of the League of Nations,
the Mandate for South West Africa isno longer a "treaty or conven-
tion in force" within the meaning of Article 37 of the Statute of the
Court, this submission being advanced
(a) with respect to the said Mandate Agreement as a whole, including
Article 7 thereof, and
(b) in any event, with respect to Article 7 itself ;
Secondly, neither the Government of Ethiopia nor the Government
of Liberia is "another Member ofthe League of Nations", asrequired
for locusstawdi by Article 7 of the Mandate for South West Africa;
Thirdly, the conflict or disagreement alleged by the Governments
of Ethiopia andLiberia to exist between them and the Government
oftheRepublicof South Africa, is by reason of itç nature and content
not a "dispute" as envisaged in Article 7 of the Mandate for South
West Africa, more particularly in that no material interests of the
Governments of Ethiopia and/or Liberia or of their nationals are
involved therein or affected thereby ;
Fourthly, the alleged conffict or disagreement is as regards its
state of development not a "dispute" which "cannot be settled by
negotiation" within the meaning of Article 7 of the Mandate for
South West Africa.
Thank you, Mr. President. ARGUMENT OF MR. GROSS
4. ARGUMENT OF Mr.ERNEST A. GROSS
(AGENT FOR THI: GOVERNMENTS OF ETHIOPIA AND LIBERIA)
[PzcbEichearing of 15 October1962, rnornifig]
Mr. President artd honourable Members of the Court.
Al1 who are concerned in the field of international law must regard
the privilege of appearing before this Courtas the climax ofprofessional
aspiration.Theirs is the knowledge that it is possible to achieve tRule
of Law only because this Court sits, and they weli know that the redity
will be fully achieved only when nations corne to regard it as a wise
exercise of sovereign responsibility to accord submission of disputes
to justice a higher pnority than they do resistance to jurisdiction.
Aware of this responi;ibility, the Applicants seek recourse to this high
Court. Frustration of patient effort tosettle a grave international dis-
pute through negotiatil~n makes it al1 too clear that if relief is not to
be found through resort to judicial process, it is indeed difficult to find
a just and orderly reniedy anywhere.
For the purpose of tliese proceedings,I have the honour to represent
the Applicants as Agent and Counsel. I am privileged to have as col-
leagues the Honourable Edward R.hloore, Assistant Attorney-General of
Liberia, and Mr. Leomrd S. Sandweiss, a member of the Bar of New
York, both of whom ;ire appearing as Counsel. The first oral argu-
ment will be made by ..Kr.Moore thiç morning, and I shd follow.
Ifit please the Court[should like at this time to make a few prelim-
inary observations and, for the convenience of the Court, briefly to
indicate the scheme of our argument.
Respondent's Counsel, referring during the course of his argument
to the Advisory Opinion of II July 1950 ,onceded the difficulty Res-
pondent faces by reason of the fact that the major contentions which
it now advances are, and 1 quote learned Counsel, 'in important respects
at variance or in conflict with conclusions arrived by the Court, or by
Members of the Court, in the Adviçory proceedings of 1950"-the Ver-
batim of 2October at paFe 33,supra. Counselhas also conceded, and again
I quote, that "The sole question here is, what weight is tbe assigned to
the previous Advisory i3pinion as a matter of authority", and he goes
on to Say, in his own words, "Now clearly, if the factual material before
the Court now was sulistantially the same as the factual material in
1950 when the Advisory Opinion waç considered, then that aione would
mean that the Advisory Opinion would be granted strong prima facie
weight as being of precedential value as an authority ...", ai page 100,
supra, of the same Verl~atim of 4 October.
As we understand it, the fundamental and, indeed, the sole, basis
for Respondent's conti:ntion that the Court should reconsider and
revise the 1950 Advis0r.y Opinion is that, again in Respondent's words,
"the question now befq~rethe Court is, although the same in form,
very different in çubst;mce now because of, the presentation of new
facts..."-I quote frorn .theVerbatim of 4 October at page IOO.262 SOUTH WEST AFRICA
At an appropriate place in our oral statement, if it please the Court,
we shali endeavour to show that there is no valid, or even plausible,
basiç for requesting reconsideration and revision of the 1950 Advisory
Opinion. Under these circumstances it would, perhaps, be sufficient for
Applicants to confine Our argument to a demonstration that the facts
which Respondent has characterized asboth "new" and "crucial" axe,
indeed, neTther.
Nevertheless Reçpondent has, in its Preliminary Objections, and in
its oral statements before the Court, argued the entire case on the
rneritsde novo. In the process of doing so it has, in Our submission,
distorted the rneaning and the reasoning of the 1950 Advisory Opinion.
We think that Opinion means what it says. We submit that there is no
Opinion of 1950 with respect to the Mandate for the territory of Souths
West Africa. The Republic of South Africa is,asthe Court held, under
an obligation to submit to supervision by the United Nations and
to render annual reports to it, as welias to submit disputes concerning
the interpretation or application of the Mandate to the arbitrament
of the International Court of Justice.
In view of the grave and historic issues raised by the charges in out
Applications concerning Respondent's asserted violations of the Mandate,
it seems irn ortant to restore to the record of these oral statements a
balance an 8 a perspective ïvhich we feel has become distorted in the
course of Respondent's oral staiements.
Responsibilities assumed by South Africa in the Mandate were based
upon its pledge to discharge a "sacred trust of civiiization" and to
give "securities for the performance of this trustu-these are the
words of the Covenant of the League. Phrases of such weight and
dignity tend to lose their lustre with the passage of tirne, but never
their significance.
Respondent contends that the Mandate survives, if it survives at
aii, only on a basis ïvhich leaves Respondent with al1 the rights and
privileges of possession and of administration without international
accountabdity. Respondent does not find it appropriate to respond
to the Court's conclusion in the 1950 Advisory Opinion that precisely
such a result would not, in the Court's words, "be justifiedJ'-page 133
of the Advisory Opinion.
This dispute, which has subsisted for many years between Applicants
and the Republic of South Africa, involves basic issues of interpreta-
tion and application of the Mandate. The dispute relates not only to
wthe Mandatory misconstrueç the narrower requirements of the Man-ether
date, but whether if defies the very essence of the Mandate and de-
prives it of ail significant effect.
Patient efforts to negotiate an end to the dispute have met with
repudiation in the administrative bodies.These efforts are now rebuffed
by denial of the jurisdiction of this high Court to hear and adjudicate
the merits of the dispute.
Mr. President, the distinguished Agent for the Respondent, in his
opening remarkç, properly stressed the importance to thiscase of+an
evaluation of,and 1 quote his words, "of the circumstances surrounding
the creation of the Mandates system and the conclusion of the Mandate
Agreement, as well as the conduct of the parties concernedM-end of ARGUMEMT OF MR. GROSS
263
quote. A substantial portion of the Preliminary Objections, as the
Court will have observcd, addresses itself to this matter.
Ifthe Court pleases rily colleague, the Honourable Edward R. Moore,
will surnmarize for the Court the origins and nature of the Mandates
system, and will trace the evolution of that system briefly and the
major developments in the history ofthe Mandate involved in the case
at bar. FoUowing Mr. 18oore's presentation 1 shallifthe Court please,
examine and reply to Respondent's contentions in its Preliminary
Objections and in its oral statements; 1 shall endeavour to show that
Respondent offersno fa.ctua1bais for re-openingand revisingthe 1g5o
Advisory Opinion, and that Respondent's arguments de novo lack merit
and should be rejected.
Mr. President and honourable Members of the Court, this concludes
my introductory statement and, ifthe Court please, the Honourable
Edward R. Moore will now address the Court. SOUTH WEST AFRICA
5. ARGUMENTOF Mr.EDWARD R. MOORE
(COUNSEL FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA)
[PubEicheuring ofIj October 1962,mo~ning]
Mr. President and Members of the Court.
Permit me first to açsociate myself with the assurance of my colleague
of our feeling that we are being very highly honoured today by this
opportunity to appear before you, and to present the arguments of the
Governments of Ethiopia and of Liberia in their dispute with the Govern-
ment of the Republic of South Africa. The esteem in which we hold this
Iionourable Court, and its judgments and opinions, is particularly demon-
strated by the manner in which we, together with other United Nations
Members, have consistently attempted to resolve Our disputes with Res-
pondent bythe rule of law which,in the internationalcommunity, receives
its definite exposition by this Court. After the dissolution of the League,
and after the United Nations refused to consent to incorporation of the
Mandated territory by Respondent. when Respondent began to allege
that its duties under the Mandate had lapsed, and that no one else had
any legal interest in the Mandate whatever, controversy naturally arose
with respect to the Mandate. Since there was no agreement under Iaw,
it was decided to pursue the obviotisly logical course, to tathe matter
to Court and to receive a definite staternent of what the law is, and this
Court ruled on the law.
Having received, then, an authoritative statement of the relevant
law and being determined to settle the issue by the rule ofEaw, Appli-
cants and other United Nations Members again, logically enoiigh, nego-
tiated with Respondent on means whereby to implement the Court's
opinion. These negotiations have obviously failed.
When the question subsequently arose as to whether a rule of voting
procedure in the General Assembly, relating to the Mandate, uvascon-
sistentwith the Court's opinion, again itwas decided togo to Court for
the answer, which was given.
Finally, when discussion ensued on the question of whether oral
hearings to petitioners on matters relating to South West Africa was
consistent with the Court's opinion, the rnatter was taken to Court to
obtain a definitive answer, which also was given.
These proceedings, therefore, represent the fourth attempiat judicial
settlernent of questions relatinto the Mandate, and I am honoured to
be part of this delegation which is here in an effort to have the dispute
with Respondent settled finally and irrevocably, again by the rule of
law, ina contentious proceeding which will be formally binding not only
upon Applicants but upon Respondent as ïvell.
What 1 shall endeavour to do at this stage of Our oral submissionis
to preçentthe factsof thi sase. After reading the Preliminary Ohject~ons
and listening to the arguments of the Respondent, we consider that the
history of the Mandate and of this dispute must be restated, however
briefly, since in significant areas they have either been ignored or. in our .4RGUMENT OF MR. MOORE 265
submission, not properly characterized by Respondent, and since a
proper appreciation of tliese facts is vital in assessing the legal arguments.
The historical propositions which we are here to present are not novel,
but already constitute an important part of international jurisprudence.
This honourable Court, in its Advisory Opinion of II July 1950, has
already affirmed the validity of certain basic histoirical truths, and 1
quote from the Court's Opinion on pages 131 and 132:
"The Territory of South-West-Africa was one of the German over-
seas possessions in respect of which Gerrnany, by Article 119 of the
Treaty of Versailles, renounced al1 her rights and titles in favour
of the Principal Allied and Associated Powers. When a decision
was to be taken with regard to the future of these possessions as
well as of other tei-ritories which, as a consequence of the war of
1914-1918, had ceased to be under the sovereignty of the States
which forrnerly govr:rned them, and which were inhabited by peoples
not yet able to assume a full measure of self-government, two
principles were considered to be of paramount importance [may 1
repeat, of 'paramoiint impportance']: [these were] the principle of
non-annexation ancl the pdnciple that the we!l;being and develop-
ment of such peop1t:sform 'a sacred trust of civilization'."
After characterizing the Mandate, the Court surnmed up by stating,
at page 132:
"The terrns of thij Mandate, as well as the provisions of Artic22
of the Covenant aiid the principles ernbodied therein, show that
the creation of this [new] international institution did not involve
any cession of territory or transfer of sovereignty to the Union of
South Africa. The Union Governrnent was to exercise an internation-
al function of administration on behalf of the League, with the object
of prornoting the well-being and deveIopment of the inhabitants."
With the foregoing basic truth conceming the Mandate in mind, 1
should like now to sketch briefly the nature and origin of the Mandates
system.
By the beginning of R'orld War 1, there had developed agreat pressure
for the reforrn of co1oni:ilpolicies which had existed prior thereto, not
onIy with regard to the 50-called "scramble for Africa" which had been
going on during the nineteenth century, but with regard as well to other
colonial areas.
At the Peace Conference following the termination of hostilities, how-
ever, two opposing poin1:sof view speedily became evident.
There were those who were determined on outright annexation of the
German overseas colonies; others were so suçpicious of colonial adminl-
stration that they wishe.d to make the League of Nations, which was to
be established, the administrator of the territories in question.
The ensuing disputes regarding the former Gerrnan colonies were re-
solved, finally, largely o;l the basis of propoçals formulated by General
Smuts and others, and 1 read now a part of the proposa1 of General
Smuts, which had the rnost effect in the final result of the Mandates
system:
"(2) That so far at anyrate as the people and territories forrnerly
belonging to Russia, Austria-Hungary, and Turkey are concerned 266 SOUTH WEST AFRICA
the League of Nations should be considered as the reversionary in
the most general sense as clothed with the right to ultimate disposa1
in accordance with certain fundamental pnnciples.
[3] These principles are: first, that there shall be no annexations
of any of these territories to any of the victorious powers, and
secondly, that in the future government of these territories and
people the rule of self-determination or the consent of the governed
to their form of government shall be fairly and reasonably applied."
Although General Smuts himself, and his Government, did not at first
favour the application of the Smuts proposal to colonies in the Pacific
and Africa, as explaincd above, nevertheless South Africa's undertaking
in assurning the Mandate conformed, basically, to the principles of the
proposal. Indeed, the record would indicate, in our subrnission, that
without such an undertaking Respondent would probably not have been
permitted to adrninister South West Afriça at all. As Temperley puts it,
"a general application of the Mandates system was insisted upon".
Thus the result of disputes, debates andnegotiations was acompromise.
The victoriaus Powersagreed that instead of implementing either of the
opposing views above rnentioned, either autright annexation on the one
hand, or direct administration by the League on the other, the former
German colonies would be put under a mandate system, with modern
States as Blandatories, under the supervision of the new international
organization, the League of Nations. The two majorfeatures of the system
constituted the compromise, ~vhichwas that there was to be no annexa-
tion and the undertaking that the Mandate should be for the benefit
of the people of the ïerritory. In order to ensure these features, Article
22 of the League Covenant called for "securities of the performance of
this trust". As Applicants have noted at page 459 (1) of their Observa-
tions, the authors of this formula were not content to depend solely upon
the conscience, or, indeed, the cornpetence of thehlandatory forthe prop
er exercise of the Mandate;rather, they devised a system which was made
subject to the authority of the League and its Members to require the
Mandatory to report, acconnt and, ifnecessary, submit to adjudication
consistent with their fiduciary role, and Mandatories were required to
consent to the Court's jurisdiction in advance.
Thus it has been shown, though one should think it unnecessary to
do so cxcept for the curious arguments of the Respondent, it has been
shown that the formula arising from the compromise was intended to
bind all conccrned to its terms, not to be used as proof that originally
one or other of the parties to the Mandate Agreement, based upon the
compromise, should be allowed to convert his original ambitions into
a right.
As to the second point that not the Mandatory but the inhabitants
of a territory should bc beneficiaries of the arrangement, Article 22 of
the Covenant of the League of Nations provided in paragraphs I and 2
the following :
"1. To those ... territorie...there should be applied the principle
that the weli-being and development of such peoples form a sacred
trust of civilization and that securities for the performance of this
trust should be embodied in this Covenant.
2. The best method of giving yractical effect to this principle is
that the tutelage of such peoples should be entrusted to advanced ARGUMENT OF MR. MOORE 267
nations who by reiison of their resources, their experience or their
geographical position can best undertake this responsibility, and
who are willing to kiccept itCIrepeat, and who are syiIlingto accept
it], and that this tutelage should be exercised by them as Manda-
tories on behalf of the League."
ArticIe2, paragraph 2,of the Mandate for South West Africa reiterated
the emphasis upon the question who were to be the beneficiaries:
"The Mandatory shaii promote to the utmost the material and
moral well-being aïld the social progess of the inhabitants of the
territory subject to the present Mandate."
Briefly, it may safeljr be stated that the extent of power granted a
Mandatory was based n.ot upon how much the League or the Principal
Allied Powers desired t~ award the Mandatory, but upon the needs of
the inhabitants.
Such was the compromise, the formula, for a new type of relationship
between peoples of difl'erent cultures and institutions. In the case of
Mandates, the principlc of "sacred trust" succeeded to the doctrine of
rights of conquest, and history records that the principle-though neces-
sarily writ large and br.oad in scope-has borne fruit and has evolved
into practical realities.The following includes a list of all the original
Mandates, or at least most of them, Mr. President, and their disposition
as of this time:
I. The French Mandate for Syria and the Lebanon which has resulted
in independence for both of these countnes.
z. The British Mandate for Palestine, which has resulted in independ-
ence.
3. The British Mandate for the Cameroons (British Cameroons) has
also resulted in independence.
4. The French Mandatt: for the Cameroons hasresulted in independence.
5. The French Mandate for Togoland has resulted in independence.
6. The Belgian Mandat.: for Ruanda-Urundi has also just recently re-
sulted in independeilce.
7. The Japanese Mandate for the German possessions in the Pacific
Ocean lying North c.fthe Equator has been converted into a United
States trusteeship.
8. The Australian Mandate for the German Possessions in the Pacific
Ocean situated South of the Equator other than German Samoa and
Nauru (referring, mainly, to New Guinea) has been converted into
a trusteeship.
g. The New Zealand h![andate for German Samoa has been converted
into a trusteeship.
IO. The Birtish Mandate for Nauru has been converted into a trusteeship.
But, and this is the c.ne exception,Mr. President, the South African
Mandate for German South West Africa has resulted in neitherindepend-
ence nor trusteeship.
In spite of the historical record 1 have just presented of Mandates
and what has happened. to them, the consistent histoncal position of
South Africa since the early post-war years has been that the Mandate268 SOUTH WEST AFRICA
has lapçed and that it isaccountable to no-one with respect to it. Thus
with respect to every Mandate, as 1 have noted, except foi the one
questioned here in the sense of Respondent's attitude toward it, the
ideal of "sacred tmt" has maintained its vitality for more than forty
years, rnanifesting itself in some instances in independence, and in
other instances continued tutelage in the form of trusteeships. History
can only confirm that the so-called compromise arising from the Peace
Conference in Paris has had a rneaningful, creative, and, with only one
possible exception, eminently çuccessful existence.
Applicants' çtateme~it of the history of Respondent's administration
of the tenitor up to the beginning of World War 11 bas been set forth
in their Mernorials at pages 37-43 (1). No further comment is required
at this tirne, except to point out that the policy of "closer assimilation",
to use Respondent's words at page 223 (1) of his Objections, which Res-
pondent continuously sought to apply with respect to the Mandated
territory,was amatter of frequent concern to the Permanent Mandates
Commission during that period.
Illustrative of such concern is a statement by the Permanent Mandates
Commission, which 1 should now like to quote, in part, for the Court's
convenience :
"The Permanent Mandates Commission notes with regret that,
in spite of al1 its previous discussions on this subject and dl the
correspondence exchanged between the Council of the League of
Nations and the Government of the Union of South Africa in
1927and 1928, it has never received an explicit answer to its
repeated question on the meaning attached by that Government
to the term 'full sovereignty' used to define the legal relations
existing between the mandatory Power and the territory under
its mandate.
That question may be fomulated as foliows: In the official
' view of the Government of the Union of South Africa, does the
term 'possesses sovereignty' express only the nght to exercise
full powers of administration and legiçlation in the territory of
South West Africa under the terms of the Mandate and subject to
its provisions and to those of Article 22 of the Covenant, or does
it imply that the Government of the Union regards itself as being
sovereign over the territory itself?
As long as no clear reply to this question is received, the Com-
mission fears that a regrettable misunderstanding will subsist,
mhich it therefore hopes the Council may succeed in finally cleanng
up."
The foregoing takes us to the period of World War II, and the ensuing
dissolution of the Leape and establishment of the United Nations.
1 çhould like now to discuss the relevant events during this period of
transition.
In March 1945,al1 States parties to the United Nations Declaration
of 1942, and al1 other Allies were invited to take part in a conference
at San Francisco (that is the United Nations Conference on International
Organization) to agree on a Charter for the United Nations.
The problem of colonial territories was considered by Committee 4
of Commission II of the San Francisco Conference, andon II May 1945
Dr. D. L. Smit, the South African delegate, informed the Committee ARGUMENT OF MR. MOORE 269
that South Africa later intended to seek approval for annexation of
South West Africa. This statement was made for the information of the
Comrnittee only, Dr. Srnit said, and his submission was as follows:
"The Delegation of the Union of South Africa theref'ore claims
that the Mandate should be terminated and that the territory
should be incorporated as part of the Union of South Africa.
As territorial questions are however reserved for handling at the
later Peace Conferencewhere the Union intends to raise this matter,
it is here only meritioned for the information of the Conference in
connection with the Mandate question."
Meanwhile, Five Power discussions, on the basis of Australian and
British proposals made in Committee 1114,were taking place, and by
15 May 1945 a workin;: paper could be presented to that Committee,
but not as the proposals of the major Powers, or indeed of any State,
asfull agreement with regard to non-self-governing territories had not
discussion of the colonial question, and Section A thereof developedr
into Chapter XI of the Charter, while the Tmsteeship system grew out
of Section B. The full history of the evolution of these Charter pro-
visions is quite compiex, but for present purposes, only the history of
paragraph B, 5, which in its final form became Article 80 of the Charter,
need be considered indetail.
Paragraph B, 5, the basic purpose of which appears from a heading
of a section of the Report of Committee 4 of Commission II, that is
"Maintenance of Existing Rights", was aptly referred to during dis-
cussions asthe "Conservatory Clause" and as originally presented to
the Committee providetl:
"Except asmay be agreed upon inindividual agreements placing
each territory under the trusteeship system, nothing in this Chapter
should be construed, in and of itself, to alter in any manner the
rights of States orany peoples in any territory."
At the ninth meeting; of Committee 4 of the same Commission, the
delegate of the United States amended the original draft of the proposed
Conservatory CIause so that it specifically preserved the provisions of
the Mandate instrume~.t. The paragraph then read as follows:
,'
5. Except as rriay be agreed upon in individual arrangements,
made under paragraphs 4 and 6, placing each territory under the
trusteeship system, nothing in this Chapter shall be construed in
and of itself to alter in any manner the rights of any States and
peoples in any teriritory, or the terms of any Mandate."
The Conservatory Chuse was adopted in this first form at the tenth
meeting of the Committee at which the United States delegate furnished
an explanation of the ~~rovision.
The Surnmary Record of that meeting notes that:
"The delegate for the United Statesstated that paragraph B, 5,was
intended as a cons2rvatory or safeguarding clause. He was willing
and desirous that the minutes of this Cornmittee show that it 1s
intended to mean that al1 rights, whatever they may be, remain
exactIy the same :is they exist-that they neither increased nor 270 SOUTH WEST AFRICA
diminished by the adoption of this Charter. Any change is left
asa matter for subsequent agreements. The clause should neither
add or detract, but safeguard al1 existing rights, whatever they
may be."
An amendment to paragraph 5 was proposed at the Thirteenth Meeting
by the United States to meet Soviet fears that a provision which pre-
served rights under the Mandate system indefinitely might be seriously
abused b Mandatory Powers. (See Russel and Muther, A Histovy of the
United &tons charte^,p. 829.) This in substance stated that nothing
in the paragraph should afford grounds for delay in conclusion of Trustee-
ship Agreements, and this became Article 80,paragraph 2, of the Charter,
In introducing the amendment, Commander Stassen stated:
"Then we add a new sentence:
This paragraph should not be interpreted as giving grounds for
delay or postponement of the negotiations and conclusion of the
agreements for placing mandated and other territories, as provided
for in paragraph 3, under the Trusteeship System.
Now, there are a number of factors that corneinto the amendment
that we are proposing. Let me state, in the first instance, that this
does not change the conservatory nature of the clause as we orig-
inally proposed it, but it does clarify and take away some ofthe
possible rnisinterpretations that have been raised.
It is clear that paragraph 5 is intended to preserve the rights
during that in-between period ftom the tirne thiç Charter is adopted
and the time that the new agreements are negotiated and co~npleted
with the new Organization. And it isnot intended that paragraph 5
should be any basis of freezing eternally the situation affecting any
territory." (See the Verbatim Minutes of Thirteenth Meeting,
8 June 1945, Nos. 24, 25, U.N. Achives, Vol. 70.)
Finally, at the Thirteenth Meeting of Committee 4, Commission II, a
further United States amendment was adopted which extended the
operation of the Conservatory Clause to dl international agreements
with respect to Mandated territories.
At the same time that the United Nations Charter waç signed, States
agreed by separate instrument to establish a preparatory commission to
make provisional arrangements for the First Session of the General
Assembly, the Security Council, the Economic and Social Council, for the
- establishment of the United Nations Secretariat andfor the convening
of the International Court of Justice. Among the many matiers con-
sidered by the Preparatory Commission, in this regard, were the as-
sumption of functions of the League of Nations by the United Nations,
the transfer of assets to the new body and the setting up of the Trustee-
ship system. The Executive Committee of the Preparatory Commission
proposed the creation by the GeneraI Assembly of a temporary Trustee-
ship Committee to carry out certain of the functions assigned in the
Charter to the Trusteeship Council pending its establishment. (U.N.
document TC 1131.)
Thecentral purpose ofthe proposed TemporaryTrusteeship Committee
was explained by the Chairman of Committee 4 of the Preparatory
Commission. Said he : iiXGUMENT OF MR. MOORE 271
"The basic task of the Temporary Trusteeship Committee, as it
was contemplated, vmsto assist the General Assembly in expediting
the establishment ~fthe Trusteeship System and was to remain in
existence until a srrfficient number of trusteeship agreements had
been concluded to :promote of the Permanent Trusteeship Council
in accordance with Article86 of the Charter." (General Preparatory
Commission, FourtIi PIenary Meeting, p. 125.)
A certain delay in thr completion of trusteeship agreements seemed
probable, some delegates stated, and until a sufficient nurnber of such
agreements were concluded the Trusteeship Council could not be estab-
lished so that the General Assembly tvould not have an expert body to
assistit incoIonial problems, particularly those in regard to the estab-
lishment of the new systern. Kowever, the Soviet delegate, supported
by other delegations, wiis of the opinion that the proposed Temporary
Trusteeship Committee ~nightdelay rather than accelerate the establiçh-
ment of a Trusteeship Council and that its çreation was not authorized
by the Charter of the United Nations. Thenature of the Soviet objection
should be understood. 1.t was not argued that the General Assembly
was incompetent to supt:rvise performance of Mandate Agreements, nor
was it contended that .the General Assembly might not establish an
auxiliary organ to assist it in regard to colonid territories. The objection
was rather that the Temporary Trusteeship Committe~ envisaged by
the Executive Committee was not in fact an auxiliary organ which
might be set up under Article 22 of the Charter.
At the same meeting of Committee 4 of the Preparatory Commission,
South Afnca supported the view that creation of an interim body might
expedite the estab1ishmi:nt of a Trusteeship Council and added a pro-
posai, not discussed by any other delegation, that a Temporary Trustee-
ship Committee might s~ipemise administration of Mandated territories.
The summary record of the second meeting of Committee 4 reports
the South Afncan de1eg.xteas follows:
"Mr. Nicholls of the Union of South Africa said that he had
foiiowed the argurni:nts against the establishment of a temporary
organ most closely. It seemed to him that they were based on the
one hand on constitutional grounds; on the other, on expediency.
The delegation for Ihe Soviet Union might be right, but that was
a legd question. The Committee might seek IegaI judgment on a
question ifdoubt existed amongst some of the delegations.
On the question of expediency, ,it seemed reasonable to create an
interim body as th<: Mandates Commission was now in abeyance
and the countries holding Mandates should have a body to which
they couId report. 'l'hedelegate for Yugoslavia found difficulty in
interpreting the phrase 'States directly concerned'. Mr. Nicholls took
this to mean that any colonial power which would place colonies
under the trusteeship systern. wasat.liberty to do so. There.could
be no other way to urge them to do so than by setting up an interim
Committee."
Now, the nature of the Soviet legd objections to the establishment
of an interim body has dready been indicated. More importantly on a
practical level, theSoviet Union believed that tnisteeship agreements
could be concIuded and the Trusteeship Council established far sooner272 SOUTH WEST AFRICA
than plans for creation of aTemporary Trusteeship Committee 'seemed
to imply. Such a body was unnecessary and might diminiçh the incentive
of States to enter into Trusteeship agreements at an early date. It waç
pointed out that in the event of undue delay in completion of trusteeship
agreements it was open to the General Assembly at any time to establish
any body which seemed necessary. The Soviet delegate is reported as
arping, with reference to a Temporary Trusteeship Committee or an
ad hoc Committee, that he was not surprised that the Mandatory powers
were in favour of substitute organs, but if the problem were dealt with
dong these lines, discussion could continue for months or years without
any action being taken.
The Temporary Committee would, in fact, delay these provisions of
the Charter (that is the Trusteeship provisions) ratherthan speed them
up. His Government considered it would not be advisable to establish
an artificial organ, as other more practical and more speedy means
existed.
The practical steps referred to included the making of declarations
by Mandatory Powers that they intended to place their territories under
trusteeship, and the presentation of draft trustee*ip agreements.
Yugoslavia, during the ihird meeting of the Committee, presented
written proposais as to the coursewhich should be adopted. It suggested
that :
"Frorn that moment until the second part of the first session, the
States directly concerned should conclude trusteeship agreements.
If these agreements covered strategical areas, they should be sub-
mittedfor approval of the Secunty Council, but if these agreements
concerned only non-strategical areas, they could be submitted to
the General Assembly during the second part of the first session. An
ad hoccommittee of the General Assembly to examine these decla-
rations of the present mandatory powers could usefully be formed."
The ençuing two chief matters of debate were (1) the time within
which trusteeship agreements could be submitted, and (2)the question
of whether an ad hoc committee should be established. With respect to
the desirability of an ad hoc committee the Chinese delegate took the
view at tlie tenth meeting of the Fourth Comrnittee that the whole
problem of transition was one of a short duration, and that even an ad
hoc cornmittee was unnecessary.
"He" (that's the Chinese delegate) "pointed out that the Corn-
mittee was divided on the question of setting up a temporary or
ad hoccommittee. Those who were opposed to a temporary organ
considered that one agreement would suffice for bringing the
Trusteeship Council into being. He doubted the soundness of the
suggestion.
However it was not absolutely necessary to set up the temporary
ad hoc committee in view of the fact that the General Assembly
would have a main trusteeship committee dealing with trusteeship
matters in any case. If trusteeship agreements were submitted in
the interval between the first andsecond part of the first session
of the General Assembly, that maincommittee could decide what
was the best thing to do at the second part of the first session of
the General Assembly. It could also decide what was to happen if ARGUMENT OF MR. MOORE 273
it were not possible to create the Trusteeship Council until after the
end of the first sesr;ioofthe General Assembly.
He therefore urged that use should be made of the main trus-
teeship committee of the General Assembly, thus leaving the
question of a temporary or ad hoc committee for the General
Assembly itself to decide. If this plan coiild be adopted, it would
answer al1 questions."
Following a reference of the whole matter to a sub-committee, Com-
mittee 4, and later th? Preparatory Commission, it was decided not
to make a recommend;rtion with respect to the establishment of an
auxiliary body, proposhg simply that the General Assembly should
adopt those methods \ilhich appeared most appropriate.
As has been mentioned earlier, the Respondent strongly supported
proposals for establishment of a temporary truçteeship committee,
and even suggested that. it might supervise administration of Mandated
temtories. However, tlie Respondent found greater difficulty in ac-
cepting the alternative proposals for speedy completion of trusteeship
agreements, which were adopted in the final report. At the tenth meeting
of Committee 4 of the Preparatory Commission the Respondent pointed
to the problems smalIer States might experience in quickly submitting
trusteeship agreements because of the restricted staff at their disposal,
and mentioned also that in some instances it would be necessary to
consult inhabitants of Mandated territories as to their future. At the
fifteenth meeting of Committee 4 that State madecertainstatements.
It is to these statements 1 now desire to turn.
The Summary Record of the tenth meeting of Committee 4 reads as
follows :
"Mr. Nicholls (Union of South Africa) stated that on all mate-
rial points the proposals çeerned to be indentical. But the time
factor had not been sufficiently considered, not only because of
the difficulties of the restricted staff available inall countries
but also in view of the need for consultation of the native popula-
tion, notably in su3h a territory as Palestine.The time limit in
the Yugoslav prop72sal would be insufficient. He preferred that
the United Kingdom modification, 'at the earliest possible op-
portunity thereaftei.', should take the place of the original Yugo-
slav wording, 'the second part of the first session of the General
Assembly'."
The Summary Recorcl of the fifteenth meeting of Committee 4 of
20 December 1945 repo,ks that:
"Mr. Nicholls (Union of South Africa) reserved the position
of his Delegation ;mtil the meeting of the General Assembly,
because his country found itself in an unusual position. The man-
dated temtory of South West Africa was already a self-governing
country, and last year its legislature had passed a resolution asking
for admission into .the Union. His Government had replied", he
said, "that accepta:.lce of this proposal was impossible owing to
their obligations under the Mandate. The position remained open,
and his Delegation could not record its vote on the present OC-
casion ifby so doing it would imply that South West Africa was
not free to determin.e its destiny. His Government would however274 SOUTH WEST AFRICA
do everything in its power to implement the Charter. For these
reasons South Africa abstained from voting on the Report of
Committee 4 in that Committee."
Advancing to some positive steps taken Jater in the General As-
sembly adopted a resolution with respect to non-self-governing terri-
tories and trusteeship agreements which, with respect to Chapters XII
and XII1 of the Charter, noted that:
"The Generd Assembly ...
Welcomes the declarations made by certain States administering
territories now held under mandate, of an intention to negotiate
trusteeship agreements in respect of some of those territories and,
in respect of Transjordan, to establish independence.
Invites the States administering territories now held under
mandate to undertake practical steps, in concert with other States
directly concerned, for implementation of Article 79 of the Charter
(which provides for the conclusion of agreements on the terrns
of trusteeship for each territoryto be placed under the trusteeship
ably not later than during the second partts fof the first session of
the General Assembly."
Intent upon securing completion of trusteeship agreements at an
early date, the General Assembly had preferred not to establish an
interirn body to receive reports from Mandatory Powers, at least for
the tirne being.
On 12 April 1946 the Chinese delegation introduced a draft resolu-
tion with respect to the Mandate system which was ultimately adopted
bythe Assembly of the League. The minutes state:
"Dr. Lone Liang (China) recailed that he had already drawn
the attention of the Committee to the complicated problems
axising in regard to mandates from the transfer of functions from
the League of Nations. The United NationsCharter in Chapters XII
and XII1 established a system of trusteeship based largely upon
the principles ofthe mandate system, but the functions of the League
in that respect were not transferred automatically to the United
Nations. The Assembly should therefore take steps to secure the
continued application of the pnnciples of the mandates system.
As Professor Bailey pointed out to the Assembly on the previous
day, the League would wish to be assured as to the future of man-
dated territories. The matter had also been referred to by Lord
Cecil and other delegates."
It is noted that:
"It was gratifying to the Chinese delegation, as representing
a country which had always stood for the principles of trusteeship,
that dl Mandatory Powers had announced their intention to ad-
minister the territories under their control in accordance with
their obligationsunder the mandates system until other arrange-
ments wereagreedupon. It was hoped that the future arrangements ,
to be made with respect to those territories would apply in full the
principle of trusteeship underlying the mandates system." !.RGUMENT OF MR. MOORE 275
However, as it had ~~reviouslystated it would, Respondent placed
before the Generd Assembly of the United Nations "for judgment",
asit said, its plan to incorporate South West Africa. On 14 December
1946 the United Nations General Assembly considered Respondent's
plan for incorporation and, by resolution, the Assembly found itself
"unable to accede to ille incorporation of the territory", and recom-
mended a trusteeship for the territory.
In spite of the reconimendation of the General Assembly that Res-
pondent place the Maiidated territory under trusteeship, as well as
an earlier recommendation to the same effect, Respondent declined to
do so and, obviously, has consistently declined to do so.
Respondent to this day views recommendations to negotiate atrustee-
ship agreement as, to use their word again, "extreme".
Respondent in 1947 jubmitted a report to the General Assembly
for the year 1946. Respondent's report was reviewed by the Truçteeship
Council which, in rgqS, icsued its comments on the report. The comments,
it may be noted, were highly critical of Respondent's administration
of the Mandated territory. Two illustrative comments which are included
in the Mernorials at pages 45 and 46 (1), were as follows:
"(1) The Council, being convinced of the desirability of increased
participation by indigenous populations in the direction of their
own affairs, notes tliat the indigenous inhabitants of the Territory
have no franchise, iiocligibility to office and no representation in
the governing bodies or in the administration of the Territory."
And, later on:
"(3) The Council is opposed, as a matter of principle, to racial
segregation. The Ccuncil, while lacking precise information as to
the reasons for thi: urban segregation policy in the Territory,
considers that great efforts should be made to eliminate, through
education and other positive measures, whatever reasons may exist
that explain segregs.tion."
Respondent never again submitted a report to the United Nations on
conditions in the Mandated territory.
By the end of 1949 K<:spondent Iiad refused to follow further recom-
mendations from the General Assembly that it conclude a tmsteeship
agreement. It was at thi: same tirne openIy avowing that the Mandate
had Iapsed, and consequently, that itsduties with respect to the Mandate
had lapsed. It was evidimt that a definitive statement of the law re-
garding the Mandate w>-s required and, accordingly, the General .AS-
sembly deerned it advisable to ask this Court for an advisory opïnlon.
After receiving both wrii ten and oral arguments from the Respondent,
as well as argument froin other interested parties, the Court gave its
Opinion. Having received the Court's Opinion as to the law of the case,
and being determined to :;ettIethe dispute with Respondent on the basis
of law, Members of the United Nations attempted, throughout the en-
suing years, to negotiate, through various cornmittees and agencies
of the United Nations established for that purpose. Such a basis has
consistently been characferized by Respondent as being "in the nature
of restrictive termof reference", employing their phrase. Throughout the
years following the Advisory Opinion, Respondent not only disputed the
Court's Opinion by unear thng so-called new facts concerning the original276 SOUTH WEST AFRICA
Chinese intention to which it alIudes in its proceedings, but it also
proceeded to re-argue the case before the United Nations. Illustrative
of this argument was Respondent's statement in the Fourth Committee
of the General AssembIy, which reads as foIlows, in part:
"..the Internationaicourt also expressed the view that the obliga-
tions which South Africa had assumed originally urith regard to
the sacred trust remain legaliy in force, i.e. that South Africa con-
the sacred trust. This view was subscribed to by the majority in to
the United Nations. My Governinent, on the other hand, did not-
and in fact does not-agree with this view-holding, that since
one of the two parties to the original contractual arrangement had
disappeared, the mandate had lapsed and that it could no longer
be regarded as a legally binding contract."
During this same period, Respondent's disregard of the Court's
opinion found further expression on numerous occasions. One such
occasionwas a speech by Respondent's Prime Minister in 1956before the
Senate of South Africa, in which the Prime Minister stated:
"It is well within our power, and fuIly within our power, to
incorporatc South West Africa as part of tlie Union. Up to now
we have declared unto the world that legally and otherwise that
is the position, but that in the meantime we arcprepared, although
we do not for one moment recognize the rights of the United Na-
tions Organization, even should we one day incorporate South
West Africa, ta govern South West Africa in the spiritof the old
Mandate. So whether we will proceed at a later stage to carry out
and put into effectwhat weregard as our rights, over which nobody
hasanything to Say, that will depend on how circumstances develop
in the future."
With such divergent views, it is no wonder, Mr. President, that ne-
gotiations have failed to settle the dispute between Applicants and
Respondent. Applicants have consistently negotiated on the basis of
the Court's Opinion, and Respondent has consistently negotiated on the
basis that the Court's Opinion was wrong and that, indeed, Respondent
has the right to incorporate the Mandated territory and no one else has
any right to object. Examples of Respondent's frequent avowals that the
dispute could not be settled are set outon pages 472and 474 (1) of the
Observations, and there is no need to repeat them here.
Following the Court's Opinion, and after it became evident that
Respondent would not abide by the Opinion, the General Assembly
nevertheless considered it its duty to afford supervision without which
the "inhabitants of the territory are deprived of the international super-
vision envisaged by the Covenant of the League of Nations", and there-
fore established the Committee on South West Africa with the mission,
inter dia, to "examine, wjthin the scope of the questionnaire adopted
by the Permanent Mandates Commission of the League of Nations in
1926, ~uch information and documentation as may bc available in res-
pecEthiopia, one oforthe Applicants herein, has been a Mernber of that
Committee. The Committee on South West Africa, in its annual report,
has sharply criticized Respondent's administration of South West ~LRGUMENT OF MR. MOORE 277
Africa. An example of cuch criticism, and the deep concern fclt by the
Committee, may be foiind in the Cornmittee's concluding rernarks in
its report for 1956, whii:h reads as foIlows:
"For the third year in succession, the Committee has been unable
to escape the con(:lusion that conditions in the Territory after
nearly four decades of administration under the Mandates System
are for the most part-and particularly for the 'Native' rnajority-
still far from meeting in a reasonable way the standards of either
endeavour or achie1,ement implicit in the purposes of the Mandates
System and in the attitudes prevailing generally today in respect
of peoples not yet able to stand by themselves. The 'Native' of
South West Africa still has no part whatsoever in the manage-
ment of the Territciry's affairs; he lives and works in an inferior
and subordinate stat us in relation aoprivileged 'European' minority
and his op port uni tirfor advancement inhis ohm right are lirnited
not only by the inadequacy of technical facilities but also by a
restrictive system O!law and practice. The Committee deplores the +
existing conditions of the 'Native' and other 'Non-European'
inhabitants and the slow rate of their improvement. It is even
more seriously distarbed by the absence of any sign of the radical
changes which musi: be made in these policies if they are to con-
form with the principles which led to the establishment of the
Mandates System. :i:tfinds no grounds for altering its belief that
the main efforts made in the administration of the Territory are
directed almost exclusively in favour of the European inhabitants,
often at the expense of the native population."
[Public heuring O/ 15 Octobe~ 1962, afternoofl]
MT. President, before i;he noon recess 1 undertook to set forth to the
Court an extract from a report of the Committee on South West Africa.
As you know, andas we have noted in the MemoriaIs of the Applicants.
this is not the only report of its kind from the Committee but is mereIy
representative of several reports of the same nature. Now 1 should like
to read the conclusion clf the same report for 19j8 of the Committee
on South West Africa:
"The Committee feels that it should point out that its present
assessrnent of conditions in the Territory is the result not of an
isolated study of thcfseconditions but the continuation of a process
in which it has been engaged for five years. The new information
corning before it in each of those years has served to confirm,
not to cast doubt upm, its conclusions as to the main lines of policy
in the administratic-n of the Territory and as to the manner in
which that policy has been applied.
No important changes have appeared in the situation previously
described by the Coinmittee. The life of the Territory continues to
present two distinct and separate aspects. On the one hand, the
Cornmittee has beeii able to report the continued free political
activity of the 'Eurcpean' section of the population, the influential
role which it playsin the institutions of government, and the further
expansion and prospcrity of the mining, agricultural and commercial
enterprises which it owns or controls or which otherwise provide278 SOUTH WEST AFRICA
it with livelihood. On the other hand,the Committee has shown that
the vast majority of the population, classified as 'Non European',
continues to be deprived on racial grounds of a voice in the admini-
stration of the Territory and of opportunities to rise freely, accord-
ing to rnerit, in the economic and social structure of the Territory.
The 'European' comrnunity, which alone enjoys political rights,
shares with the hlandatory Power, to the exclusion of the 'Non
Europeans' control over the allocation and development of the
principal resources of the Territory, reserving fortselfa dispropor-
tionate interest in those resources. The inferior political, economic
and social status of the 'Non Europeans' results form arbitrary and
racially discriminatory laws. By means of discriminatory legislative
and administrative acts, authority and opportunity are retained
as a. matter of policy in the hands of the 'European' population,
whiie the 'Non European' majority is confined to reserves except
to the extent that its manpower is needed in the 'European' eco-
nomy in the form of unçkilled labour and under strict regulation.
The Committee therefore reaffirms its conclusion that existing
conditions in the Territory and the trend of the administration
represent a situation not inaccord with the Mandates System, the
Charter of the United Nations, the Universal Declaration of Human
Rights, the advisory opinions of the International Court of Justice
and the resolutions of the General AssembIy. "
During the period to which I have been referring, the Liberian Dele-
gate to the Fourth Co~nmittee had occasion to express the views of his
Government with respect to the admiriistration of the Mandate. At the
575th meeting of the Fourth Committee, on December 14,1956, he
stated :
"In view of the fact that the Union of South Africa was a Member
of the United Nations and a signatory to the Charter, under which
it had certain obligations as well as rights, that South West Africa
was a Mandated Territory which the South African Government
had held as a sacred trust, and that the Charter of the United
Nations provided for the protection of the fundamental rights of
the indigenous inhabitants, it was clear that the abuse of the
international mandateby the South African Government could not,
and rnust not, be perpetuated."
And at the 659th meeting on October 2, 1957, the Liberian delegate
stated:
"The Union of South Africa had violated the Mandates System,
the Charter of the United Nations, the Universal Declaration of
Human Rights, the advisory opinions of the International Court
of Justice and the resolutions of the General Assembly. Some ac-
tion should be possible if al the Members of the United Nations
were to CO-operate.The contention of the Union Govemment that
the Mandate had lapsed with the demise of the League of Nations
was neither Iegally nor morally valid."
Ry the end of 1957, it became obvious that further legal action with
respect to the Mandate might be required. Indeed, the General As-
sembIy, by Resolution, requested the Comrnittee on South West Africa
to study the question of: .4RGUMENT OF MR. MOORE 279
"What legal action is open to the organs of the United Nations
or to the Members of the United Nations, or to the former Mernbers
of the Leaguc of Nations, acting either individually or jointly to
ensure that the Uni.9nof South Africa fulfils the obligations assumed
by it under the Mandate, pending the placing of the Territory
of South West Africa under the International Trusteeship System?"
Latér the same year the Committee submitted a special report con-
taining its answers. Appropriate citationare set forth atpage 75 (1) of
the Memorials.
In Junc of 1960 the Second Conference of Independent African States
met at Addis Ahaba. Stai:esparticipating in the Conferencewere Ethiopia,
Ghana, Guinea, Liberia, Libya, Morocco, the Sudan, Tunisia, and the
United Arab Republic. At that Conference, the Secretary of State of
Liberia noted in part:
"In the light of the resolutions passed at the last session of
the United Nations AssembIy, rny Government, as a former Mem-
ber of the League of Nations at the time of its dissolution, has
already indicated its determination on behalf of al1 the African
States, to pursue fiirther action to get this territory placed under
the Trusteeshiy provisions of the Charter. We are pleased to know
that in this we hav.: the support and CO-operationof other African
States. This mattei. will be discussed at this conference and it is
hopcd that final decision for further action wilbc taken before we
adjoiirn."
The Conference thercafter gave full consideration to the question
of South West Africa. IL resolution was unanirnously adopted on Jiine
23, 1960 setting forth,;?)tealia, that the Conference:
'$1.Concludes that the international obligations of the Union
of South Africa concerning the Territory of SouthWest Africa should
be submitted to the International Court of Justice for adjudication
in a contentious proceeding;
2. Notes that thr Governments of Ethiopia and Liberia have
signified their interition to institutsuck a proceeding ..."
Thereafter, on November 4, 1960, Ethiopia and Liberia filed Applica-
tions with this Court ir,. which, in effect, the Applicants requested the
Court to re-affirm its Ac..visoryOpinion and in addition to adjudge and
declare that Respondent had violated the Mandate. Applicants have
alleged, inter alia: first, Ihat Respondent practises its policy of apartheid
in theMandated Territ01.y and that such practice is in violation of the
Mandate; and second, tliat Respondent has treated South West Africa
in a manner inconsisteni: with the international status of the Territory.
At the close of 1960, following fourtcen ears of frustration of efforts
on the part of numerous agencies of the & nited Nations to negotiate
with the Union, the General Assembly, in resolution 1565 (XV), con-
cluded that :
"... the Government of the Union of South Africa has failed and
refused to carry oiit its obligations under the Mandate for the
Territory of South West Africa, [that] the dispute which has
arisen between Etliiopia, Liberia and other Member States on
the one hand, and t:he Union of 5011thAfrica on the other, relating 280 SOUTH WEST AFRICA
to the interpretation and application of the mandate has not been
and cannot be settled by negotiation, [and that] the General As-
sembly ... Commends the Governments of Ethiopia and Liberia
upon their initiativein submitting such dispute to the International
a Court of Justice for adjudication and dedaration in a contentious
proceeding in accordance with Article 7 of the Mandate."
Mr. President, tliisbrings me to the conclusion of my part of the
Applicants' presentation. 1 have attempted to relate to the Court
that Applicants believe that the most significant aspect of the Mandates
system is the "sacred trust" for the well-being of hundreds of thousands
of human beings. 1 have also attempted to present accurately the
events ofthe period of transition between the demise of the League and
the establishment of the United Nations, showing that the goal was
trusteeship with the hope of eventual self-government on the parts of
the inhabitants of that territory.
Finally, I have attempted to present the facts which show how, and
why, Applicants have a dispute with Respondent, and why, in our sub-
mission, the dispute cannot be settled by negotiation.
1 thank you very much for this opportunity, Mr. President. My col-
league, the Honourable Emest A. Gross, will present the rest of the
arguments on the part of the Applicants. .4RGUMENT OF MR. GROSS 281
6. ARGUMENT OF Mr. ERNEST A.GROSS [CONT.)
(AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA)
AT THE PUBLIC HEARINGS OF 15 TO 17 OCTOBER 1962
[Public her;:rinof15 October1962, afternoon]
Mr. President, ara.dMembers of the Court.
If the Court please, 1:;hallcontinue and conclude Applicants' response
to the Oral Statements ~iresentedto the Court by Respondent's Counsel.
The distinguished Agent for the Respondent took occasion, in his
opening remarks, to note the statement in our Observations, at pag421
(11, to the effect that tfie account of relevant historical facts set out in
Applicants' Mernorials had "not been materially dtered in the Res-
pondent's version", thatis,the version in their Preliminary Objections.
From this staternent, Respondent's Agent drew an inference that
Applicants "do not dispute Respondent's analysis of the relevant
histoncal facts".
My colleague's presentation has, 1 think, made clear the distinction
that is to be drawn between a substantially similar acco~nt of facts,
on the one hand, and a substantially differing anlrlysisof the same facts,
on the other.
In the respective analyses of the facts,as between the Applicants
and the Respondent, involving interpretation and inferences to be
drawn from the same facts, there exists a wide gulf between the position
of the Parties.
We sought to make clear Our conviction that Applicants and the
Respondent entertain quite different notions as to the true nature of
the Mandates system, asweli as the significance of Respondent's under-
takings with respect to .the Mandate.
Immediately following:Our comment in the written Observations, to
the effect that Respon6.ent's version of the facts had not materially
altered or differed from Durown, we refer to the undue emphasis Res-
pondent gives to statements of certain authors whose point of view is
that the "C" Mandates were, in effect, as they Say, "not far removed
fromannexationJJ. Furtherrnore, atpage 423 (1) of OurObservations, we
note the stress Respond-nt lays upon the so-called "political compro-
mises'' whichoccurred in fashioningthe Mandates system. Wenote further
the significance of the reasoning of Respondent's andysis (onpages 216-
223 (1) ofthe Preliminary Objections) in this respect: for example, asto
the implications whichma.ybedrawn fromRespondent's comment, at page
223 (1), expressing reseni:ment at what are characterized as ourattempts
(asApplicants' attempts)to "repudiate the compromisewhereby Respon-
dent was iadzsceddoagreeto the Mandates system being rendered appli-
cable utal1to the case of South West Africa". In that same context, Res-
pondent characterizes oiir contention as involving "a unilateral im-
position upon it of sugg.ested duties which were excIuded from those
undertaken".
Mr. President and Mentbers of the Court, Ouranalysis of the historicaI
factsdoes not lead us to agree with Respondent that South Africa was282 SOUTH WEST AFRICA
"induced" to accept this undertaking. And the implication ofthe phrase
"ut all"reinforces what seems to US an implication ofa grudging accept-
ance of the international responsibilities which Respondent undertook
in ~gzo.
The Mandate itself, in its First Article, as well as in its Preamble,
reminds us that the Mandate was "con#e~redJ'-not inzfiosed-upon the
Mandatory. And the Court, in its Advisory Opinion of 1950, noted that
by virtue of Article 22 of the Covenant of the League of Nations, the
Territory was "entrusted" to the Mandatory, rather than thrust upon it.
Indeed, the history is quite clear that the Respondent would have
preferred to annex the Territory outright, and this was no secret at
the time. Applicants' Mernorial, at page37 (1), quotes from an article ap-
pearing In the Cape Times of September 18,1920, in whrch the great
war-time leader of South Africa, Marshal Smuts, was reported to have
said: "In effect, the relations between the South West Protectorate and
the Union amount to annexation in al1 but name."
Several instances in which the Permanent Mandates Commission
expressed anxiety concerning Respondent's clairns to "full sovereignty"
over the Territory are noted in OurMernorials at pages38-39 (1) and have
been referred to by Mr. Moore in his presentation. Accordingly, we can
not take it as accurate to attribute to Applicants an admission that
Respondent's analyçis of the history of the Mandate cornports with Our
own. Nor would we agree, in the light of this history, that Respondent's
Agent is on sound ground in contending, as he did, that annexation-
when viewed in the light of Respondent's historic attitudes towards the
matter-is "entirely irrelevant to the instant cases". We submit that
the Respondent's attitude towards the question of annexation is relevant
to an understanding of the history of this Mandate.
On the contrary, Respondent's attitude towards the Mandate and its
relations with, and its authority over, the Territory, is highly relevant,
as 1 have said. It marks their approach, not only to the Territory and to
the United Nations, but also to the Advisory Opinion of 1950.
When Respondent speaks in its PreliminaryObjections, at page 220 (1),
of the "compromise" on which the Mandate was founded, it refers, and
accurately so, to the clash of views which arose from the secret agree-
ments between some of the Allied and Associated Powers made during
World War 1, envisaging post-war annexation of certain colonies (in-
cluding the annexation by South Africa of German South West Africa)
as contracted with international control of these territories under a
Mandates system. My respected colleague has discusçed this point.
Respondent proceeds from the point of departure of this asserted
reluctant acquiescence in, or gnidging acceptance of,the Mandate, in
order to lead into its major contention that the Court lacks jurisdiction
to adjudicate the dispute in the cases at bar because Respondent's
original undertaking to submit such disputes to judicial process lapsed
with the dissolution of the League for lack of tacit, or fresh, consent to
the 'urisdiction of this Court.
de contention isenmeshed in conriderable verbiage but that seems
to be the essence of the point. The contention serves Respondent as the
basis for a conclusion that it owes no duty whatever to report or account
to the United Nations, or to anyone else, while at the same time pre-
serving full rights of possession and administration. The contention,
which, with its ,extraordinary implication might be described as the .ARGUMENT OF MR. GROSS 283
doctrine of "convenient partiaI lapsen-will be examined more closely
ai a later stage of my argument.
In the course of the Preliminary Objections, aswell as in its com-
prehensive Oral Staterrients, Respondent has offered to the Court an
entire argument de nov.3 That argument is addressed, in effect, not to
the merits of the issues now before the Court, so much as it is to the
merits of the1950 Advisory Opinion.
Respondent's concedcdly difficult task is to .persuade the Court to
reconsider and basically revise the Advisory Opinion of 1950. The bais
of this request is the proposition that if the Court 1950 had known of
certain so-called "new facts", the Court could not have reached the
concIusions it did.
The Preliminary Objections of .Respondent-so far as it lay within
Our competence to give them the most painstaking and thoughtful
consideration-appear t.o us, with respect, to involve circular, repe-
titious and elusive arguments. In Our Observations we atternpted,
again within the limits of our competence, to comprehend, reformulate,
clarify and respond to, the argumentation. Moreover, we sought to do
so with an economy of words.
Applicants assumed, as has indeed I think proved to be the case,
that the Oral Statement would be perhaps more than usually revealing.
If the Court please, th(: Oral Statements Applicants now respectfully
submit to the Court, taken together with our written Observations,
combine to reflect Our bi:st effort fully andclearly to meet Respondent's
arguments as we now comprehend them, in the light of the Oral state-
ments which Respondent's able and learned Counsel has submitted.
The scheme of that portion of Applicants' Statement, which 1 now
,have the honour to prizsent, rests upon three, and only three, basic
propositions, each headrd by a roman numeral.
1.The "new facts", so called, sought to be adduced by Respondent
do not justifyreconsider:ition and revision of the 1950 Advisory Opinion.
II.The Advisory Opinion is sound and should govern the cases at bar.
III. Respondent's de novo argument is in conflict with the Advisory
Opinion, is not sound, and should be rejected.
Mr. President, 1turn now to roman numeral 1, the first of the three
basic propositions,whicIi is that the new facts sought to be adduced do
not justify reconsideration and revision of the 1950 Advisory Opinion.
It appears that Respondent's entire justification for asking this
Court to reconsider and :.:evisethe1950 Advisory Opinion rests upon the
contention that certain so-called "new facts" of "crucial importance"
-1 quote-were not kliown to the Court in 1950 and that, if they
had been-again 1 quots-the Court "could not possibly have arrived
at" its conclusions. Hence, Respondent argues, the Opinion isiinsoundly
conceived and reasoned, with consequently erroneous holdings.
In the face of so unrisual, ifnot extraordinary, a request, with so
many grave and far-reaching implications, it is noteworthy that .Res-
pondent's Preliminary Objections do not introduce this vital issue
untiI page 345 (1), following an exhaustive de novo argument on the
merits.
So striking a reversal of the logical and, it would seem, appropriate,
order of presentation nlight be taken to have possible significance.
It is fair'to comment th:at this manner of dealing with the matter may
reflect either one or two approaches.284 SOUTH WEST AFRICA
Respondent rnay have injected the "new facts contention", if 1 may
cail it that, as an afterthought, as an effort to find a cushion against
the admittedly difficult and sornewhat delicate task of inviting the Court
to reverse a unanimous Advisory Opinion; or Respondent might have
displayed a merely casual attitude toward meeting the burden of satis-
fying the most minimal conditions which should govern a request for
revision of judicial holdings.
Nor are Respondent's reasons for invoking so drastic a judicial
procedure clearly or consistently stated, even when the time cornes to
discuss them in its Preliminary Observations. Indeed, the reasoning is
highly confused and inconsistent.
At page 345 (1) of the Prelirninary Objections, Respondent notes the
Court's reference to the League of Nations Resolution of18 April 1946,
which the Court viewed (together with Article 80, paragraph I, of the
United Nations Charter) as confirming the "general considerations"
set forth by the Court in its Opinion, at page 136; this holding, as 1Say,
1 shall address myself to the Advisory Opinion in detail under Major1).
Proposition II, and shaii comment at that time on the significance of
these same general considerations in the Court's Opinion which are
in no way impugned or impaired by Respondent's contentions.
At the present stage of my statement 1 shall address myself directIy
to what I have called Respondent's "new facts contention" as a basis for
revision of the Advisory Opinion.
In the Preliminary Objections, at page 345 (I), Respondent states, and
1 quote:
Reason, No, (iii), for amving at its conclusion under considera-ial
tion, the Court inferred that the League Assembly Resolution
conceming Mandates, adopted on 18th April, 1946, 'presupposes
that the supervisory functions exercised by the League would be
taken over by the United Nations'. Thereby", continues Respon-
dent, "the Courtpresumably rneant that there must have been
a tacit agreement to that effect between the parties to the Resolu-
tion."
Continuing to read from page 345 (1) of the Preliminary Objections:
"SimiIarly, as observed above, the factors involved in the Court's '
Reasons Nos. (i) and (ii) were apparently relied upon towards
infemng a corresponding tacit agreement on the part of United
to submit to United Nations supervision pending or failing Trus-
teeship or other agreement."
StiU quoting Respondent's language at page 345 (1):
"It seems quite evident that, with knowledge of certain crucially
important facts that were not placed before the Court in 1950,
the Court could not possibIy have arrived at these conclusions by
. inference. Of particular importance amongst the facts and material
not presented to the Court in 1950, were the following (in time
sequence) :..." . ARGUMENT OF MR. GROSS 285
That is the end of the quote at page 345 (1).
The reference in Respondent's statement to so-cailed "crucial Reason
No. (iii)" in the Court's Opinion relates back to the paragraph begin-
ning at the bottom of page 338 (1) of the Preliminary Objections. If the
Court will foLtowthis fiish-back, it appears in a sequence of four para-
graphs, beginning at page 338-that is, "crucial Reason No. (iii)" appears.
As the Court wu observe from a reading of page 338 of the Prelirni-
nary Objections, Respondent introduces these four paragraphs with
the comment that the Court itself characterized them as "decisive
reasons".
In purporting to summarize these reasons, it wiIl be noted that the
first so-calied "decisiv~?reason" referred to by the Respondent in
fact is a summary of arl entire paragraph on page r36 of the Advisory
Opinion embodying five important sentences to which I have referred,
and which the Court on the same page descnbes as "general considera-
tions".
Respondent's second "decisive reason" attributed to the Court-
I refer çtill to page 338 (1) of the Preliminary Objections-the second
"deciçive reason" assunimarized by the Respondent at that page, refers
these general considerations which appear in the full paragraph on pageg
136.
The third so-called "decisive reason" attributed to the Court by
Respondent purports to summarize the paragraph of the Adviçoy
Opinion at page 137 relating to the Resolution of the League of 18Apnl
1946, which the Court said gave a view corresponding to that of Ar-
ticle 80, paragraph I. Respondent underscores the comment by the
Court that this Resolution, that is, the 18April ReçoIution, "presupposes
that the supervisory functions exercised by the Leape would be taken
over by the United Nations". This, then, 1 think, IS a fair analysis of
the "decisive reasons" ;is presented and summarized by Respondent
at page 338 (1) of the PreIiminary Objections.
Reverting now to the contention of Respondent on page 345 (1) which
1 quoted earlier, the Respondent says as follows, at page 345-1 re-
peat: "...with knowledge of certain crucially important facts that were
not placed before the Court in 1950t, he Court could not possibly have
arrived at" the conclusions derived from these decisive reasons set
forth aipage 338. Respondent then goes on to Say: "Of particular im-
portance amongst the fiicts and material not presented to the Court
in 1950 ..."and then Re;pondent lists four items; these are to be found
on pages 345-346 of the Preliminary Objections.
It is therefore entire1.y on the foundation of this contention that
Respondent requests the: Court to reconsider and reverse its holdings
in the Advisory Opinion of1950 , herein the Court held that Respondent
remained under the obiigation of international accountability, including
compulsory jurisdiction alithe Court, in accordance with the compro-
.misçory clause of Articlt: 7 of the Mandate.
quest of this far-reaching nature should be submitted to the cIosestre-
scrutiny; the nature and the accuracy of the premises upon which the
request by Respondent is laid must be exarnined, aswell asthe relevance
and the weight of the ma.teria1sought to be relied upon. In the light of
such a scrutiny. the Court.shodd, we submit, consider whether minimal286 SOUTH WEST AFRICA
standardsoflaw and logic justify action by the Court so grave and far-
reaching in its consequence.
Mr. President and Members of the Court. 1 have reached the point
in which I was venturing to analyse the nature and accuracy of the
prernises upon which the Respondent's request for revision is laid. I
should like to begin that study with a reference to pages214 and 215 (1)
of the Preliminary Objections of Respondent and, in particular, cal1the
Court's attention to paragraph E on page Zr+ This is in the introductory
material. The Court will note that at that point, which is the first mention
of the "new facts contention" in the Preliminary Objections, Respondent
says as follows:
"Certain of the submissions advanced by Respondent in support
of the Preliminary Objections are not in accord with conclusions
arrived at, or views expressedby, the Court or sorne ofits Members
in the Advisory Opinion of 1950. Respondent recognizes that,
although advisory opinions have no binding force, they are entitled
ta the greatest respect. Respondent submits, however, that where
good reasons exist therefor, an advisory opinion may be departed
from in subsequent contentious proceedings."
And then, on page zrg (1) of the Preliminary Objections, in the last full
paragraph Respondent-and 1 quote-says:
"In every instance in which Respondent in these proceedings
urges a de arture from conclusions stated or views expressed in
the 1950 &inion, it submits that good reaws enist therefor.
The said reasons are dealt with çeparately in Respondent's argu-
ment relative to each instance of suggested departure. In the main
they will be found to relate to features of the 1950 proceedings,
such as the lack of preçentation, or of adequate presentation, to the
Court of material information of vital importance, factual and
otherwise. Moreover [says the Respondent], the issues cannot, in
any true sense, be regarded as "identical in every respect to those
in the prior proceedings", either as regards the fac2sor as regards
the conclusions of law to be drawn therefrom. The Court's jurisdic-
tion was not the issue in the 1950 Opinion, which was prirnarily
intended for the guidance of the General Assembly in respect of a
general question submitted to the Court."
This then seems to be the basic premises upon which the request for
revision of the 1950 Opinion is laid. 1 said a few moments ago that
the subject itself was not introduced for discussion until page 345 (I),
after a rather exhaustive argument on the merits in connection with
the First Objection.
At the bottom of page 344 of the Preliminary Objections, Respondent
defines its major premise in somewhat more precise terms. It is in
paragraph (flon Page 344:
"When regard is had to the considerations set out in the above
quotations, it is self-evident that in the absence of knowledge of
certain relevant facts, a conclusion arrived at in reasoning by
inference may be vitally different from what it would be if al1 the
facts were known and considered."
As a general proposition this is, ofcourse, self-evident. ARGUMENT OF MR. GROSS 287
Nevertheless, it ian entirely different thing to assert, as Respondent
does in the next paragr:iph, at page 345 (1), that the Court must be pre-
sumed to have lacked kilowledge as to certain facts merely on the ground
that, as is asserted, such facts"were not placed beforethe Court", or, as
it is aIso put by Respoildent, were "not presented to the Court".
Moreover, the confusion between the two premises, that is, of what waç
presented to the Court :ind what was known to the Court, the confusion
between the two premises was compounded by Respondent's Counsel
in the course of his ora! statement before the Court.
In the Verbatim of z October, at pages 33 to34,supra, Counselconceded
that the contentions now advanced by Respondent are in important
respects at variance or in conflict with the Advisory Opinion. Counsel
then went on to say:
"Now tkat is,ofcourse, a difficulty which wehave to face squarely,
and we do so, Mr. 13resident, with the greatest respect, by contend-
ing that we are riow presenting to the Court certain material,
factual and othenvise, of very great importance which was nol
beforethe Court in 1950 and which, had it been before the Court
in1950, could have made al1the difference to the conclusions even-
tually arrived at iil the majority Opinion. [Respondent's Counsel
continues] We sub~nit, therefore, that this is one of those highly
exceptional cases where although the issues may now in forrn appear
tobe stillthe same ~s they were in 1950, they are in substance really
different-[really] alifferent questions for this Court to decide,
because [says Coil~isel]the factual matenal to which this Court
ha to apply the lti~ is different from the factual material lhat was
before lheCourt in :950, and 1 need not ask this Court to perform
the invidious funcfion of preferring its own reasoning to that of
an earlier tribunal because, as 1 have said, in essence and in sub-
stance [because of Ihe difference in the factual material] the issues
are now different. The task to be performed by the Court is in
substance a differeiit one." (Italicsadded.)
Reverting to the sanie proposition two days later, Iearned Counsel
said at the Verbatim of .+Ocfober, at page 99, supra, and I quote:
"The sole question here is, what weight is to be assigned tothe
previous Advisory ilpinion as a matter of authority. Now clearly,
if the factual material bejore the Court now waç substantially the
same as the factual inaterial in 1950when the Advisory Opinion was
considered, then that alone would mean that the Advisory Opinion
would be granted çtrong prima facie weight as being of preceden-
tial value as an aui:hority, but when it is found that the question
now bejorethe Court is, although the çame in form, very different in
substance now because of the presentation of new facts, then that
must affect the value that cauld be given to the Advisory Opinion
as a matter of precedent, as a matter of authonty. That is the
only logical proposii.ion that is before the Court [said Respondent].
We Say it goes so fxr that the real question to be decided now by
application of the law to the facts is in substance different from
what it was in Igjo, althougll the form of it stilI remains the same
and, therefore, that the Adviçory Opinion, has under these peculiar288 SOUTH WEST AFRICA
circumstances virtually no precedential weight in the psesent
circumstances--T-at is Our contention as we advance it and w--- -
subrnit- that that contention re&%ç sound whatever the reason
may have been that the facts were not presented to the Court
in 1950 when they might well have been presented." (Italics added.)
If the Court please, 1 should like now to turn to an examination of
the four ço-called "new facts" which Respondent characterizes in its
Preliminary Objections, at page 345 (1) as 1have said, as "crucially im-
ortant", so crucial indeed that, if they had been "placed before the
[ou* in 1950. the Court could not posiiibllyhave arrived" at its con-
clusions, and so "crucially different", that a matter of "substance"
arisesnow which was not in effect "before the Court" in 1950or decided
by the Court. The first of these refers to what is termed "Respondent's
expressreservationJ' at the San Francisco Conferenceduring the drafting
of the Charter. That is at page 345 of the Objections.
In our Observations we pointed out that in fact Respondeat had
itself made explicit reference to tkis matter in its own written statement
to the Court in 1950,at the place cited in footnoteI on page 431 (1)of our
written Observations.
Respondent corrected the record before our written Observations
had been received. That is correct, as Respondent justly points out.
Respondent's Counsel, during his oral statement to the Court on
4October, at page 97,s.zaprao,fthe Verbatim, refers tothefourfactorsliçted
at page 345 (1) of the Preliminary Objections. With respect to the first
point, the one under discussion, Respondent's Counsel said:
"The first one [that is the first point] is not redy important-1
will not deal with it for the moment-1 wdl revert to it later."
Then he went on, asbe said, to "emphasize the importance of the
second, third and fourth".
As he had promised, Counsel did subsequently revert to the first
point, but not until after he had completed his effort to show the im-
portance of the other three.
When he reverted to thefirst point, at pages ror to rosztpra,of the Ver-
batim record of4 October, conceding that the Preliminary Objections
were in error in respect of the first point and explaining how the error
took place, Counsel says, at page xoa, secpra:
"But the whole question is realiy unimportant ..the rnatter is
for my purposes not important-that is why 1said before.1 was not
placing particular reliance on it because, in efiect, there 1sirnplicit
in the body of the statement as it is in the text at pages 25-26
[referring to the pages in the Preliminary Objections at which is
quoted the text of the South African statement at San Francisco-
there is irnplicit in the body of that staternent, [says Counsel] the
same asis conveyed explicitly in this further paragraph in the foot-
note, and 1 am prepared to leave the matter at that."
1 have tned to Say, Mr. President, that 1 do not understand the
implications or the logic of that contention, but 1 fail to see how it
bears upon the question of why the point had ceased to be important.
Counsel does not explain the contradiction between the Preliminary
Objections, which describe Respondent's express reservation at San
Francisco as "crucially important" to the Court's findings-one of the ARGUMENT OF MR. GROSS 289
four facts which conve~t the "substance" which was before the Court in
1950 to that which is liefore the Court today. He does not explain the
contradiction between the reference in the Preliminary Objections to this
as a crucially importani: point, and his wiliingness, in his oral statement,
to dismiss this point 2sunimportant and, as he said to "leave it at
that".
Inasmuch as the "nt:wfacts" comprise Respondent's entire case for
a revision of the 1950 Clpinion,Respondent's omission of an explanation
as to how and why this point lost its "crucial significance", suggests
that this change might have taken place upon Respondent's discovery
that the point had, after all,been presented 1950 to the Court. In any
event, this first point ic Respondent's first casualty in the carnpaign for
revision of the Opinion.
Mr. President and Members of the Court, 1have concluded my dis-
cussion of the first point by commenting that the first point the first
casualty.
1should now like toturn to the second point. This is called in the Pre-
liminary Objections "crucially important" and Respondent's Counsel
-includingththis one-as ha "new fact". The Preliminary Objections, atints
page 345 (1),cite the scicond"crucially important" fact, as it is terrned,
which was assertedly not placed before the Court inrg50 ,nd contend
that, with the knowledye of this fact, and of course the other threas
well,in Respondent's words, the Court "could not posçibly have amved"
at its conclusions.
Now this second new fact, Mr. President, concernç the rejection by the
Preparatory Commissio~iat London of its Executive Cornmittee's propo-
sal for a temporary tn~steeship comrnittee. Respondent comrnents, at
Rage345 (1)of the Prelirninary Objections, that such action, and 1quote,
negatives a tacit intemion on the part of the United Nations that such
functions would be transferredor assumedJJ. It will be noted that this
comment does not relate to the 18 April ResoIution of the League of
Nations but to the asserted lack of "tacit intention" on the part of the
Unite Ndlrtiolasto assume the functions.
With respect to the second so-called new fact, Respondent is in error
in two major respects.In the first place, the point was indeed explicitly
presented to the Court in 1950 .econdly, the true significance of the
action taken Iikewisewzfiexplicitly presented to the Court 1950.
Mr. Preçident, one of those who made statements before this honour-
abIe Court in 1950was tlie late, and greatly respected, Dr. Ivan S. Kerno,
the legal officer of the YJnitedNations. Appearing before the Court on
16May 1950 as representativeof the Secretary-General of the United
Nations, he made a stal:ement, the first part of whicwas delivered in
French, the second part in English. With our leave, Mr. President, in
view of my regrettably :laulty command O7 the French language, may 1,
the language in which it was spoken, the passage in which Dr. Kernourt, in
discusses this point1 refer to the first full paragraph at page 161of the
Volume of Pleadings,OrcE ArgunzentsalzdDocumentson the International
Status of SouthWest Africa and the Advisory Opinion of 11July 1950.
With the President's permission, couIthe interpreter read that passage,
in its originaI texasdelivered to the Court?290 SOUTH WEST AFRICA
[Read by theFrenchirztevfiueter]
<La Commission préparatoire, où se trouvaient représentés tous
les Membres des Nations Unies, se réunit à Londres, en novembre
. 1945, dès l'entrée en vigueur de la Charte. Elle ne retint pas la
proposition tendant à créerun comitétemporaire de tutelle en raison
des objections d'ordre constitutionnel exprimées par certains de ses
membres et de la crainte qui fut formulée que l'établissement d'un
organe temporaire n'ait pour effet, non pas de hâter, mais au con-
traire de retarderla constitution du Conseil de Tutelle. La Commis-
sion préparatoire décidadonc de présenter à l'examen de l'Assemblée
généraleun projet de résolution qui soulignait lesinconvénients d'un
délaide l'entrée en vigueur du régime international de tutelle que
l'organisation des Nations Unies avait pour tâche d'établir. Le
projet déclarait que, des trois catégories de territoires auxquels le
régime de tutelle pouvait s'appliquer en vertu de l'articl77 de la
Charte, seuls les territoires sous mandat pouvaient êtredéfinisavec
exactitude. En conséquence, la Commission préparatoire recomman-
dait que l'Assembléegénérale adresseun appel aux Etats adminis-
trant des territoires en vertu d'unmandat de la Société desNations,
afin que ceux-ci prennent, de concert avec les autres États directe-
ment intéressés,lesmesuresnécessairespour la mise rapide en appli-
cation del'article79 de la Charte tendant à la conclusion d'accords
de tutelle pour chacun des territories à placer sous ce régime."
["The Preparatory Commission on which all the Members of the
United Nations were represented, met in London in November 1945
assoon asthe Charter came into force. Idid not accept the proposal
for the establishment of a temporary trusteeship committee in view
of the objections of a constitutional nature expressedby some of its
members and of the fear expressed thctt the creation of a temporary
organ might have the effect of delaying rather than of expediting
the constitution of the Trusteeship Council. The Preparatory Com-
mission accordingly decided to submit for the consideration of the
General Assembly a draft resolution which emphasized the undesir-
. able consequences of delay in putting into effect the system of
International Trusteeship, which it was the duty of the United Na-
tions to establish. The draft stated that of the three categories of
territoriesto which the Trusteeship System could be applied under
Article 77of the Charter, only Mandated Territories could be defined
with certainty. Consequently the Preparatory Cofnmfssion recom-
mended that the General Assembly çhould cal1on the States admin-
istering Territories under League of Nations Mandate to undertake
practical steps, in concert with the other States directiy concerned,
for the early implementation of Article 79 of the Charter with a
view to the conclusion of agreements on the terms of trusteeship
for each territory to be placed under the Trusteeship System."]
hlr. President, Dr. Kerno, representing the Secretary-General of the
United Nations, brought this matter explicitly to the attention of the
Court, as appears fromthe statement just read, and hc did so in the
course of an exposé of an argument before the Court in which he was
submitting,and with which argument the Court agreed, that the United
Nations had assumed the supervisory functions of the League of Nations
in this respect. ARGUMENT OF MR. CROSS 2gx
The fact that the action taken by the Preparatory Cammission was
explicitly mentioned ai.the 1950 proceedings, might, indeed, produce
the same chernical reaction on Respondent's part which neutralized
the significance of the first crucial point when it was discovered that
it had been introduced.
1 turn now to Respo~dent's third alleged "new fact".
During the discussion in the First Cornmittee of the League of Nations
Assembly, on 9 April 1946, of the main draft resolution concerning
assumption by the Unitcd Nations of functions and powers of the League,
the representative of China announced that he desired to submit a
resolution :
"... recommending that the Mandatory powers should continue
to submit annual reports on Mandated territoriesto the United
Nations, and that they should agree to inspection by the latter,
pending constitution of the Tmsteeship Council".
This was from the Miriutes of the First Committee at page 76. The
Chairman, however, rulrd that this was out of order at that particular
stage of the proceedings,.
Three points should be noted with regard to Respondent's contention
with regard to this thiril point, which now moves up to the position of
the first "new fact".
In the first place, the so-called "Chinese proposal" was never intro-
ducedorvoted upon. Al1that happened in this respect was that the delegate
expreçsed a wish to make such a proposal.
In its Preliminary Objections, at page 253 (1), Respondent states:
"Dr. Liang [the representative of China] wished to propose for
discussion the following draft remlution, which he read out :"
Then Kespondent quotes the text of a draft resolution, but without
giving any citation to ariy document in which the resolution appears. If
the Court will refer to page253 (1) it will note that the end of the text
of the draft resolution ~vhichthe Chinese delegate expreçsed a wish to
introduce there isno citation to a document which one rnay consult to
examine the text of the ~esolution itself. On a point to which Respondent
seeks to attach such criicial significance, and one, indeed, of only two
points Ieft which might be called new facts, it is surely relevant to enquire
why no such citation is made. This is not intended, of course, in any way
to cast the slightest doubt upon the veracity or credibiliofthe assurance
that the text was read out. We are prepared to accept that, of course.
However, the text is only before the Court on the authority of the
Preliminary Objections and the point, 1submit, is that a matter to which
such crucial importance is assertedly attached and at which the accuracy
of documentation is asseitedly at the core of the matter, that this might
well have been dealt with in a mosr punctiiious manner. This, indeed,
seems to be no more or 11~sthan is the clear intent of Articles 43 and 62
of the Rules of Procedurr: of the Court.In particular,1 refer the Court to
the second paragraph ofArticle 62, which provides :
"The Preliminary Objections shall set out the facts, and thelaw
on tvhich the Objection is based, the submissions and a list of the
documents in support. These documents shall be attached. It shall
mention any evidence which the Party may desire to produce."292 SOUTH WEST AFRIC-4
No such document is attached to the Preliminary Objections, so far as we
have been made aware, in which appearç the text of the draft resolution
quoted by the Respondent, nor, it rnust be confessed, have we found any
published, or publicly available, document containing such a text. It is
not in the Minutes ofMeeting as published.
[Public Itearifiof 16 October1962, morning]
May it please the Court, At the close of my statement yesterday
afternoon 1 had been speaking of Respondent's third alleged new fact.
Thiç relates to Respondent's contention that, if the Court had known of
certain transactions which were alleged to have taken place during the
discussion in the First Committee of the League of Nations Assembly on
9 April 1946, the Court could not poçsibly have reached its conclusions
regarding Respondent's international obligations. 1 had pointed out
that the text of the draft resolution, which the Chinese Delegate at the
League of Nations Assembly expressed a wish to propose, that the text
of the resolution is quoted atpage 253 (1) of the Preliminary Objections
without citation. Respondent, at pages 345 to 346 of the Preliminary
Objections, asserts that the so-called original Chinese proposal-and 1
quote the sentence beginning at the bottom of page 345 of the Preliminary
Objections-"had to be withdrawn because it becarne pIain that certain
of the parties would not agree thereto". There is no specification as to
who the "certain parties" might have been. And again, in this context,
we find no citation in the Preliminary Objections to this highly charged
sentence to which Respondent attaches sufficient importance to under-
score. In the sentence immediately following the quoted sentence, that
is that the resolution draft had to be withdrawn because it became plain
that certain parties would not agree thereto, in a sentence immediately
following Respondent draws an important inference from this unsup-
ported statement :
"Hence this history by itself renders plain that there was no room
for a tacit intention as inferred by the Court; and together with
the other factors dealt with in paragraph 32 (dj and (e)above. it_
shows that the tacit understanding was the reverse, vi7. that pending
'other arrangements' there would be no obligation to report and
account ."
1 have just quoted from the Preliminary Objections at page 346.
'EVethus find here yet another regrettable instance of the lack of
documentation of a fact, or in this case an important inference of fact,
as to the reason for the withdrawal of the proposal, which is highIy
relevant indeed to the conclusion drawn by the Respondent as to the
so-called lackof "tacit consent". The omission of any citation to support
the asserted reason for the withdrawal of the Chinese draft proposal,
which as I shall show in a moment is a misnomer because the resolution
was never proposed and therefore was not withdrawn, the asserted
reason for the so-called withdrawal of the Chinese draft proposa1 is al1
the more regrettable because there is serious reason to doubt the accuracy
of the statement so far as anything goes which appears in the record.
The records of the sessions of the First Committee of the Twenty-first
Session of the League of Nations at which the events in question here
took place are in the documentation and these records merit attention. ARGUMENT OF MR. GROSS 293
They show that on 12 April 1946, three days after the Chinese Delegate
had expressed a wish I:Ointroduce a draft proposa1 and had been ruled
out of order, he introdiiced another draft resolution and this became the
resolution of 18 April 1946. The Committee Minutes state:
"Dr. Lone Lian,; (China) recalled that he had already drawn the
attention of the Committee to the complicated problems arising in
regard to mandates from the transfer of functions from the League
of Nations. The United Nations Charter in Chapters XII and XII1
establisheda system of trusteeship based largely upon the principles
of the mandate sptem, but the functions of the League in that
respect were not i.ransferred automatically to the United Nations.
[Dr. Liang continued:] The Assembly should therefore take steps to
secure the continued application of the principles of the mandate
system. As Professor Bailey Cho, of course was the Rapporteur of
the Comrnittee] hztd pointed out to the Assembly on the previous
day, the League would wish to be assured as to the future of
mandated territories. The matter had also been referred to by Lord
Cecil and other dtlegates. [And the Chinese Delegate continued:]
It was ~atifyir~g to the Chinese Delegation, as representing a
country which haii always stood for the principles of trusteeship,
that al1 Mandatory Powers had announccd their intention to ad-
minister the territories under their controinaccordance with their
obligations under the mandate system until other arrangements
were agreed upon. It was hoped that the future arrangements to
be made with regard to those territories would apply in fuIl the
principle of trustectship underlying the mandatc system.
The Chinese Ditlegation had pleasure in presenting the draft
resolution now before the Committee, so that the question could be
discussed by the AssembIy in concrete form and the position of the
League clarified."
This is from page 78 of the Minutes.
1cal1 the Court's attention to the fact that the Minutes refiect the
gratification and the 1Aeasure expressed by the Chinese Delegate in
tabling the draft resolution which was accepted by the Assembly. The
implication of Respondent's position is that the Chinese Delegate under
threat,or pressure, orinference that the resolution he originally expressed
a wish to propose could not be adopted, that the Chinese Delegate
thereupon retreated both from position and, if the Court please, from
principle. And 1 submit that the Chinese Delegate would not have
expressed his gratificationand his pleasure in submitting the draft
proposa1 which was accepted by the Assembly if he had beaten a retreat
from the pnnciple whicIi he was expounding. In any event, my inference,
which is purely an infcrence, seems more probable than the contrary
inference drawn by Rejpondent and unsupported in the record.
But the Minutes of tlie First Committee go on, and they show further
that the Chinese draft was seconded by the Delegate of the United
Kingdom, who isrepori:ed as saying :
"... that the draft had been scttled in consultation and agreement
by al1 countries interested in mandates.and he thought it could,
therefore,be passt:d without discussion and with complete una-
nirnity".294 SOUTH WEST AFRICA
The reference to "unanimity" might, indeed, refer to the fact that
under the procedures of the League the Dclegate of South Africa might
have cast a veto. That iç possible. 1 am referring, however, to the
Minutes of the Meeting which are before the Court and the inferences
to be drawn from the Minutes in so far as they show actions taken and
statements made at the sessions in question.
This report of the British Delegate's seconding statement is quoted in
Respondent's Preliminary Objections at page 254 (I),1 cite that merely
for the convenience of the Court. No statements on the part of any
other delegations at the session of the Committee appear in the Minutes
of the Cornmittee. Thcre is nothing whatever to justify Respondent's
inference that the Chinese Delegate had-1 quote again-"withdrawn"
an earlier draft proposa1 because it had become pIain that certain of
the parties would not agree to it, and as 1 have pointed out, the u>e of
tlie word "withdrawn" is inaccurate inasrnuch as the proposa1 had
never been introduced.
It would seem that the "crucial importance", as the Respondent
describes it, of Respondent's third alleged new fact hinges upon a care-
lessly worded, undocumented, unsupported and probably inaccurate
inference as to why the Chinese Delegate in fact decided not to con-
summate his wish to propose a resolution. In concluding my comrnents
on the third SO-callednew fact, 1 must point out also that Dr. Steyn,
who was Respondent's able Counsel in 1950, made full written and oral
arguments in these proceedings. Itseems incredible that he should have
been ignorant of what Respondent now describes as a "crucially
important" fact in the history of the Mandate. And if he was aware of
the matter, it seems reasonable to assume that he did not regard it as
of crucial importance at all; in fact, not even of sufficient importance to
mention it in the course of his extended pleadings and arguments.
Before turning now to the fourth, and final, new fact, 1 think itmay
be appropriate to refer to Counsel's comment, in the course of his oral
staternent, that our Observations make an ambiguous comment about
this matter. He referred, and 1 think quite properly called the Court's
attention, to the sentencebeginning at the bottorn of page431 (1) in our
Observations in which we state that:
"The facts concerning the Chinese proposal were before the Court
in 19.5i0n,the Witten Statement of the United States ofAmerica."
1 regret if this form of words, this formulation, is misleading. In
extenuation I should like to point oiit that on the same page of the
Observations, page 431, we quote in full the excerpt frorn the written
Statement of the United States to which we refer so that its actual
signification is readily ascertainablby inspection of the text.
1 turn now to the fourth new fact referred to at page 346 (1) of the
Preliminary Objections: Reçpondent there describes two sets of materials
in a rather confusing context. One relates to the report of the United
Nations Special Committee on Palestine. The other refers to what
Respondent describes as "statements by representatives of various States
during various debates at the United Nations". 1 refer to page 346 of
the Preliminary Objections. More specifically, Respondent refers to
statements, or excerpts from statements, set out in the Preliminary
Objections at pages 394-397 or,in accordance with Respondent's method ARGUMENT OP MR. GROSS 295
of citation, Sectio34 (bJ to34 (0 .hese are at pages334-337 (1)of the
Preliminary Objections.
Turning to the statements cited ai pages 334-337,we find that para-
graphs (6) and (c) relate to the Report on Palestine itself, and this will
be considered in a few moments. The only other three references to the
so-calkedpractice of States in this context occur in paragraphs (e)and
(f ln pages 334-337.
Paranra~h (dl is a ~ortion of a statcment bv New Zealand made on
22 ~ovërnber'1~~6, in;L debate concerning a drift trusteeship agreement
for Western Samoa. A? the end of the quotation, incidentally, on page
336, Respondent erro~ieously cites footnote 1, whereas the reference
shouId be to footnote 1of that Darre.
Now, paragraph (ej'&fers to a Gatement by the Soviet DeIegate to
the United Nations Security Council on 2 April 1947 ,uring a debate
on the Japanese Mandates.
And paragraph (j) refers to a statement made by the United States
representative on 19 &rch 1948 in the Security Council during a.debate
on Palestine.
1cal1 the Court's attention to these paragraphs which are, as 1 say,
under the heading "Praîtice of States", which is the heading of Section 34,
on page 334 (1) of the Objections.
&Ir.President and Members of the Court, the references to the state-
ments by the Delegate of New Zealand in 1946,of the Soviet Delegate
in 1947, and the United States Delegate in 1946, represent therefore
three neatly spaced examples of statements made by Delegations during
a period of some two aiid a half years. These references, plus the Report
of the Special Committee on Palestine, comprise the whole of the fourth
"crucially important" fact, asit is called. Respondent, at pa346 (1) of
its Preliminary Objections contends as follows:
"These comments and statements show most unmistakably a
general (or at least a very widespread) understanding amongst
Members of the United Nations that no supervisory functions
regarding Mandat-2s (not converted into Trusteeships) had heen
taken over, and thus refute any suggestion of a general tacit in-
tention to the contrary.
Had the above tacts been known to the Court in 1950, it seems
inconceivahle that the Court could have arrived at its conclusion
regarding an obligation on Respondent's part to submit to United
Nations supervision."(P. 346 (1).)
It is fair to add tha.t Respondent's reference to the "above facts",
in this quotation, refer~ al1four sets of "new facts," not merely to the
fourth fact. As we ha.ve seen, however, the first two actually were
presented to the Court explicitly and have dropped out of cornpetition,
so to speak.
It is difficult to d;ttlength with Respondent's contention regarding
thisfourth "new fact" without dignifying it beyond its desserts.
In the first place,F:espondent's contention with regard to the im-
portance of this fourth point ignores the weight which was given by
the Court in its Advisory Opinion to the significance of Article 80.(1),
as confirming the inteiit of the authors of the Charter of the United
Nations that there should be a continuance of United Nations
supervision over Mandates. That is, of course, the explicit inter-~9~ SOUTH WEST AFRICA
pretation of the Court in its Advisory Opinion. Respondent, in its
argument, does not even consider it relevant enough to refer to Article
80 (1) in this connection.
Secondly, the premise upon which Respondent lays its request for
revisionof the 1950 Advisory Opinion, in this respect, is that thecourt
misconstrued the force and effect of the 18 April1g46 Resolution of the
League of Nations General Assembly. This seems to be the key propo-
sition, although it is not expressly and clearly stated as such in the
Preliminary Objections. To the extent that it relies upon evidence to
show that the Court misconstrued the 18 April 1946Resolution of the
League, it does not appear how statements made one or two years later
in the United Nations General Assernbly could help overcome the
clear meaning of statements made contemporaneously with the League
Resolution of 18 Aprii 1946.
Thirdly, the contention that the United States policies supported
ReThe history of ArticlegSo (1)is replete with evidence-as was dem-
onstrated by my colleague, Mr. Moore, in his statement before the
Court yesterday, which appears at pages 269-270, SU ru,of the Verbatim
-is replete with evidence of the leadership ta ken by the United
States in the formulation, the steering and the adoption of Articl(1).
The clause, ashe pointed out, was originally and significantly entitled
the "conserr7atory clause", and I will noi trespasç upon the Court's
time to repeat the history which he sets forth at pages 269-270,supra,
of the transcript. Al1 this occurred-all this history occurred-with
regard to Article80 (1)at the time of the adoption of the Charter in San
Francisco; it was part of the transactions from which the Charter
itself resulted. Respondent has contended elsewhere that contemporary
views and acts are of higher probative value than are those of a period
which is not contemporaneous. The logic of Respondent's contention
howeveris not applied to this situation and does not preclude Respondent
from citing, among crucially important new facts,a statement made by
the representative of the United States some three years after the
San Francisco conference, in a highly politically charged debate on
Palestine. Moreover, if iisappropriate for Respondent to cite a state-
ment made by the United States delegation three years afterits leader-
ship at San Francisco in the adoption of the "conservatory clausen-
if that bears upon the interpretation to be placed upon that event-
it is appropriate for us to refer to the fact that in the Proceed1950 in
before this Court,in connection with the Advisory Opinion, the United
States tooka clear and carefully reasoned decision on the same matter,
a position which was wholly consistent with the United States policies
ernphasized at San Francisco in 1945.t would seem thatthe implication
sought to be drawn from the statement of the United States delegation
the historic record.on with the Palestine debate, is not borne out by
With regard to the Palestine Committee Report itself, the United
States written Statement stated explicitly:
"This Committee [the Palestine Committee] reported to the Second
Regular Session of the Assembly in the fall of 19and on the basis
of its report the General Assembly adopted Resolution ~og (III)
containing recommendations concerning the future of Palestine." ARGUMENT OF MR. GROSS 297
This is quoted from th: United States statement before this Court. It is
therefore obvious that the Court's attention was drawn to the Report
itself. In fairness to 5:espondent's contention, 1 would point out that
Respondent has nowhere contended that the Palestine Report itself waç
not called to the Court's attention during the1950 proceedings,nor that
it was not directly referred to. Respondent's narrower and, 1 submjt,
much more questionable thesis, is that because specified portions of the
Report were not placcd before the Court or presented to the Court,
in Respondent's subniission the Court must be presumed to have
reached its conclusion in the absence of knowledge ofthese facts. These
are two wholly differe~itpropositions.
Moreover, the construction Respondent places upon the Palestine
Report isitself open to i:hemostserious question. Ttwould be unnecessary,
1 believe, to dwell upon the highly charged and widely publicized
debates of the United Fations and its cornmittees regarding the Palestine
question in 1947 and 1948, these are not really relevant to the case at
bar. But in the climate of controversy at that time it was not surprising
that the Report of the Palestine Committee itself did contain vague
and contradictory language regarding the asçumption by the United
Nations of supervisory powers over the Mandate. Thus, the Committee
commented :
"The essential/t.atureof the Mandates System was that it gave
an international si:atus to the mandated territories. This involved
a positive element O/ international ~.es$onsibilitfor the mandated
territories and of international accountability to the Council of the
League of Nations"
This is quoted from the Committee report at p. 335 (1) of the Prelimi-
the reference to "international accountabilityast to the Council of the,
League of Nations". Respondent does not underscore references to the
phrase "the essential feature" or to the "positive element of international
responsibility".
The Palestine Comrnittee recommended that Palestine be granted
independence and that, in the interim, the United Nations should super-
vise the Mandate. The Committee was obviously without the slightest
doubt concerning the competence of the United Nations to exercise
supervision over Mandates. The Committee quite understandably, how-
ever, did not regard tliis as a satisfactory permartwzt solution; United
Nations Members todaj, take precisely the same view with regard to the
Mandate for South West Africa.
Mr. President and Tdembers of the Court, I should like to express
regret ifmy rather detailed analysis of the "new facts" has ovenvhelmed
the Court with detail. 1 have now concluded the examination of the
precise elements involvrd in the four new facts.
1 should now like, .vith the Court's permission, to corne to some
considerations which stem to flow from the surgical analysis to which
1 have subjected these iacts in view of their admitted importance to the
quest for a reopening c.the Court's Opinion of 1950.
Respondent's conten.tion, it seems to us, cornes to this. If the Court
in 1950had known of i.hese excerpts, or facts, or material, and there is
no evidence to suppori: the pure speculation that it did not know of
them, although it iscle;u that twv of them were not specificdy referred2g8 SOUTH WEST AFRICA
to, if, as Respondent contends, the Court did have knowledge of those
facts, the Court could not possibly have interpreted the 18 April 1946
Resolution as confirming, dong with Article 80, paragraph 1, of the
United Nations Charter, the decisive reasons set out by the Court at
page 136 of its Opinion for concluding that the supervisory functions
over this Mandate are to be exercised by the United Nations. That is
their contention.
It is difficult, we submit, to take such a contention seriously. Public
records, many of which were included in the documentation of the
proceedings, are replete with instances of contradictory and confusing
expressions of view, at different times and in different contexts, by
Members of the United Nations, sometimes by the same Member at
different times. Respondent has selected from among these several
which were not documented in Igjû by the Secretary-General, in applic-
ation of Article 65 of the Statute, in submitting documentation to the
Court. These carefuliy selected excerpts are labelled "new facts", and
the Court is asked to reverse its Advisory Opinion on their account.
The fact is that in the period 1947 to 1949 strenuous efforts were
being made by United Nations Mernbers to induce the Respondent to
follow what this Court, in the Advisory Opinion; called-and 1quote-
the "normal course indicated by the Charter".
During this period vague, inconsistent and contradictory views were
expressed on the subject of United Nations supervision over the un-
converted Mandates. Mr. President, 1 have borrowed these adjectives,
Ivague", "inconsistent", and "contradictory" from Respondent's
Counsel, who thus described the same matter on 5 October at page
133, SU~WU.
Of course, it was precisely because of the confused, vague and contra-
dictory, and often shifting, statements by Members of the United
Nations, that the Members, through the General Assembly, requested
this Court for its Advisory Opinion. And now Respondent relies upon
that very confusion and vagueness to induce the Court to reverse its
Opinion.
It is respectfully submitted that Respondent's contention is a parody
of logic and history, not without, perhaps, some overtones of cynicism.
UTe feel, therefore, and respectfully submit, that Respondent has
not laid a basis for requesting the Court to revise the 1950 Advisory
Opinion.
Counsel for Respondent, in his oral statement before the Court
at page 106, supra, commented on the discussion in the Applicants'
Observations in which we attempt to demonstrate that the alleged "new
facts" are neither new, nor crucial. Respondent contended at this point
in his argument that we had not dealt, "as a matter of merit" as he said,
with Respondent's contention that these factsare of crucial importance.
hlr. President, 1 hope that the Court's reading of Our Observations,
together with Ouroral statements, may persuade the Court that we have
indeed attempted, to the best of Our ability, to deal "as a matter of
merit" with Respondent's contention in this respect and to show that
its contention is without merit.
Scrutiny of Respondent's method of presenting and analyzing the
"new facts", and the analysis of the facts themselves-and this is
the main significance, 1think, of the point-clearly reveals Respondent's
basic strategy in supporting its submissions to this honourable Court. ARGUMENT OF MR. GROSS
299
In the case of each "new fact", the alleged elernent of "crucial im-
portance" assigned is that of so-called "tacit agreement" or "consent"
as it is alternatively called. .
The first fact, laidin 1945, was intended-abortivcly, because it
was actually before the Court-to show that Respondent did not ac-
quiesce in "supervision by the United Nations" in 1945. I quote from
thePreliminary Objections at page 345 (1).
The second fact, laicl in1946, was intended to show that there was
no such "tacit intentiori" on the part of the United Nations. This second
fact also has aborted, because it was before the Court, presented by
Dr. Kerno.
The third fact, also laid in1946,is offered as showing that there was 4
no "tacit intention" oii the part of the League of Nations to transfer
responsibility. This relates to the interpretation of the 18 April 1946
Resolution. At page346 (1) Respondentimputes tothe Court-1 think er-
roneously-the intention to infer "tacit consent", as the language of
the Respondent goes. Respondent speaks of "a tacit consent inferred
by the Court". The Court inferred no such "tacit consent", imy reading
of the Opinion.
And the fourth fact, laid in 1947, is presented as refuting "anysug-
gestion of a general tacit agreement", by which Respondent means
a "general understanding amongst Members of the United Nations"
that the Charter had iiitended the Organization to supervise Mandates
until or unless they wi:re converted into tmsteeships or granted inde-
pendence.
Now, the fact is thai none of the four decisive reasons found in the
Court's Opinion, and they are termed this by Respondent in its Pre-
liminary Objections, none of the decisive reasons underlying the Opinion
of 1950 rests on a premise of "tacit consent", whether on the part of the
Respondent, the Leaguo of Nations, or the United Nations. The "general
considerations", as the Court itself describes them in its Advisory Opinion
at page 136, which in fact underlay the Court's conclusion, proceeded
from the very legainature and legal consequences of the Mandate in-
stitution itself. These "general considerations",1 repeat they are to be
found on page 136 of the Court's Opinion, these "general considerations"
involved the most basic concepts of the authors of the Covenant and
the authors of the United Nations Charter. These "general consider-
ations", as the Court further said, "are (and Iquote) confirmed by Ar-
ticle80, paragraph 1".
Respondent's abortive first "new factH-the reservation made by
Respondent at San Fi.ancisco, could, at best, be relevant only to a
construction of the Charter in general and to Article 80, paragraph I,
in particular. Precisely the same thing is true of the second abortive
"new fact", which relates to the proceedings of the United Nations
Preparatory Commissic~nand purports to bear upon the construction
of the Charter and the intentions of the authors of the Charter on this
matter.
The third incident, c+rfact-that is the incident of the Chinese pro-
posed draft resolution--could not possibly or reasonably, be taken to
bear upon the intention of the authors of the Covenant of the League,
as manifested clearly in Articl22 twenty-five years earlier.
And the fourth fact--the so-called practice or views of United Na-
tions Members-is anotlier variation on the theme of the first two, 300 SOUTH WEST AFRICA
because this relates again to the intention of the United Nations Charter
in general,and Article 80, paragraph I, in particular.
Mr. President, and Members of the Court, in the light of this anaIysis,
the basic strategy of Respondent's entire argument is fully revealed.
It is a strategy which, indeed, marks and-1 reçpectfully suggest-
confuses its entire argument. Respondent cannot hope to demonstrate
that if the Court had known of these facts-as it actually did in the case
of the first two of them-it could not possibly have construed Article
22 of the Covenant, the Mandate instrument, and the United Nations
Charter the way it did. One has only to look at the "general consider-
4 ations" adduced by the Court at page 136 of its Opinion to establish the
validity of that proposition.
Kespondent's entire effort in this proceeding, and this, Mr. President,
is why 1 have insistently attempted to submit these facts to surgical
analysis, the Respondent's entire effort is directed at assailing and re-
pudiating the validity of the Court's rationale, in the guise of re-inter-
preting and, 1 believe, distorting in the process, that rationale. Respon-
dent's strategy, 1 think, is exposed. Respondent does not interpret the
"new facts" in a manner consistent with the true significance of the
Court's reasoning, or "general considerations". The Respondent, on
the contrary, interprets, or rather misinterprets, the Court's reasoning
so as to give a false significance to the "new facts".
This will appear even more dearly, 1 submit, from an analysis of the
Court's Opinion itself, to which I tum under my second major proposi-
tion, and of the Respondent's contentions on the merits, which is my
third proposition. But before turning to the second and third proposi-
tions, with the Court's permission, I should like to make one final
comment with regard to the "new facts" contention as I have called it,
as well as its method of presentation to the Court.
Article 61, paragraph r, of the Statute of the Court states-and this
was quoted by learned Counsel in his oral argument:
"An application for revision of a judgment ['a judgment now
in contrast with an Advisory Opinion' he said] may be made only
when it is based upon the discovery of some fact of such a nature
as to be a decisive factor, which fact was, when the judgment
was given, unknown to the Court and also to the party claiming
revision, always provided that such ignorance was not due to
negligence,"
That is the quotation of Article61, paragraph I.In Our submission there
is no reason in justice or logic to ignore, in the casof request for revi-
sion, and in this case a reversal, of the basic holdings of an Advisory
Opinion, there isno reason in logic or justice to ignore even the most
mininial standards laid down in Article61of the Statute of the Court,
which-as Counsel himself conceded in his oral statement of 4 October,
at page 100, supra,-conform to the generally accepted principles
favouring the stability of judgments.
Article 68 of the Statute of the Court provides that the Court, in the
exercise of its advisory functions :
"shall be guided by the provisions of the present Statute which
appiy in contentious cases to the extent to which it recognizes them
to be applicable". ARGUMENT OF MR. GROSS 301
Article 82 of the Rules of Procedure similarly provides that the
Court:
"shall also be guicled by the provisions of these ~ules which apply
in contentious cases to the extent to which it recognizes them to be
applicable".
The facts which Rejpondent failed to present to the Court in 1950
al1 related to mattersof public knowledge, al1were contained in public
documents, al1 these documents were thernselves referred to in written
.or oraI staternents, even though excerpts referred to by Respondent
were not, in some cases, precisely quoted, or quoted at all.
Respondent has noi: contended, and cannot plausibly assert, that
itwas ignorant in 1950 of the facts now sought to be adduced. Nothing
Respondent has contei~ded even implies that it was ignorant of these
facts, so faras 1have been able to discover in the record. Respondent
has, moreover, not assi:rted, so far as1have seen, that such ignorance,
if it existed, was not due to negligence. Indeed,given Dr. Steyn's con-
ceded competence, the probability is that his faiiure to make explicit
reference to such facts-and this relates only to the last three-re-
flected his calculation that they were of relative unimportance to the
scheme of his argurneiit.
Nor are the facts th+mselves of "such a character as to lay the case
open to revision", in tlie words of paragraph 2 of Article61 of the Sta-
tute. Their unsubstantial nature has, 1 liope, been manifest in the
course of my oral statement.
It is submitted accordingly, Mt. President and Members of the Court,
that the Court should give due weight to the fact that Respondent has
failed to advance any reason whatever for not meeting even the most
minimal requirements of Article61 which Respondent, itself, concedes,
embody principles widely accepted in municipal legal systerns.
Respondent's request for reconsideration and revision of the 1950
Advisory Opinion should, it is submitted, be rejected.
Mr. President, and Members of the Court, by referring to Article 61
of the Statute and the relevant Rules of the Court, 1 would like to make
clear that it is not suhmitted that the Court should, or indeed, could
appropriately,apply 1itl:rally and in text these Articles and these Rules
as such, in the case of Advisory Opinions. 1 am referring specificallyto
the minimal standards rvhich the Article in question embodies, and which
standards conform to .::hegenerally accepted principlesof law. For it
remains true, as Couns.:l himself has conceded during the course of his
argument that, but for these new facts, the Court's Opinion would be
granted strong firima f.zciweight as being of precedential value as an
authority.
In turning now to rriy second major proposition, the Advisory Opin-
ion we submit issouncl and should govem the case atBar. Our second
major proposition isof course, based on the assumption that if, contrary
to Our submission, the Court should decide to reconsider the Advisory
Opinion of 1950, then sn analysis of such an Opinion is highiy relevant
to an appraisal of Res~iondent's de novo contentions. I have submitted
that an analysis of th,: Advisory Opinion is indeed also pertinent to
an appraisal of Resporident's new fact contention as xvell, although 1
submit, Mr. President, it would not be necessary on that base alone to
go into an extensive analysis which 1 shall venture to undertake of the302 SOUTH WEST AFRICA
Advisory Opinion of 1950. If it is an invidious task for Respondent's
Counsel to challenge the Merits of the 1950 Advisory Opinion, as indeed
he must seek to do, it is perhaps a presumption on my part to attempt,
if 1 may say, to defend or expound the Advisory Opinion of 1950; 1
am aware of the delicacy of the position in that respect, and yet the
1950 Advisory Opinion is, and must be, the yardstick by which Res-
pondent's contentions, on their merits as well as with respect to the
new facts, must be measured.
As was expressed earlier in my argument, in my oral staternent, we
do not think that a de +zovo argument iç really called for in this case.
Therefore, in turning to an analysis of the Advisory Opinion, 1 would
like to state ernphatically, though1 do not do so with any implication,
that the Opinion requires restatement or clarification but we think it
is clear, sound, and that it means what it says.
Turning now to the Opinion itself, we take it that the Advisory Opin-
ion lays down as the law of the case that the rnachinery for implemen-
tation of the Mandate, together with al1 its other substantive rights
and obligations, survived the dissolution of the League. The holding in
no way distinguishes between the Mandatory's rights and itsinternation-
al duties. On this aspect only was the dissent partially at variance with
the majority opinion. The dissenting Judges found some difficulty
with the notion that continued administrative supervision might sur-
vive a defunct administrative organ in this context, the majority found
no such difficulty. The learned Judges in the dissent nonetheless joined
the full Court in upholding the survival of compulsory jurisdiction, where
the same problem, of course, did not ariçe since the Court has never been
defunct.
The Court rejected Respondent's contention, first made to the Court
in 1950 andnow repeated in different form, that the Mandate as a whole
had lapsed. The Court found that the contention misconceived-
1 quote from page 132of the Opinion-"the legal situation created by
Article 22 of the Covenant". The reference to Article 22 ishighly signi-
ficant inasmuch as that Article embodies the concepts both of sacred
trust of civilization, from which substantive rights and obligations are
derived in the Mandate, and the concept of securities for performance
of the trust, from which obligations to account and report, as well as
to submit disputes for adjudication, are derived in the Mandate. Ana-
lyzing the legal nature of the Mandate, the Court considered, and 1
quote, that a "new international institution"had been created, "the
objects of which far exceeded that of contractual relations regulated by
national iaw". "It is not possible", said the Court at page 132, "to
draw any conclusion by analogy from the notions of mandate in na-
tional law or from any other legal conception of that law."
With respect both to the machinery for implementation and substan-
tive rightsand obligations, the Court (at pages 132-133 r)ferred to the
"international rules regulating the Mandate", which "constituted an
international status for the Territory". The functions entruçted to the
Mandatory possessed an "essentially international character", said the '
Court, as appears particularly from the fact that by Article 22 of the
Covenant and Article 6 of the Mandate, the exercise of these functions
was subjected to the supervision of the Council of the League of Nations.
This fact of subjection is what the Court took as showing the essentially
international character of the Mandate institution. Respondent, as we ARGUMENT OF MR. CROSS 303
shall çee1 believe distorts the meaning of this by assuming or contending
that this sentence in the Court's opinion in effectans that it was only
the Council of the Leape that was entitled to supervision.
It iç to be noted thal the Court, by this language (at page 133) ~ ade
clear that the functions, as they are called, comprise boththe internation-
al machinery for implementation andthe substantive rights and unilater-
al obligations of the Mandatory.If this were not so, the Court's reference
to Article 22 would be meaningless, since it contains both sides of the
equation.
In confirmation of the factthat the "essentially international charac-
ter" of these functions included the machinery for implementation the
Court, in the same contcxt (at page133)refers to Articl7 of the Mandate,
relating to submission f disputes to judicial process. This reference to
Article 7 precedes the subsequent mention of Article 7 in connection
with the Court's holdinz that Article 7 has survived. At this page of the
Opinion (page 133)~the Court refers to Article 7 of the Mandate as con-
firming the fact that i:hese functions had an essentially international
character. Going on frorn itsfinding thatthe international riiles regarding
both substantive rights and accountability, and again 1 quote, "consti-
tuted an international status for the Territory", the Court said (at page
133) and, 1 think, reaclied an inescapable conclusion by saying so, with
respect :
"If the Mandate lapsed, as the Union Government contends, the
latter's authority vrould equally have lapsed."
This proposition, which seemed to the Court sufficiently axiomatic
as a matter of justification, is not referred to so far1ahave discovered
on any place in Respondent's Preliminary Objections or in their oral
staternents. 1will corne to that in considering their contentions.
In order to dispel an:? possible doubt that by reference to the Iapsing
of the Mandate, the Court was speaking of international machinery for
implementation as well as of unilateral rights and duties, the Court-in
the very next sentence on page 133-pointed out that "to retain the
rights derived from the Mandate and to deny its obligations would not
be justified". Again, so far asIhave been able to discover, this,1 would
submit, most obviously ienable proposition is not referred to or comment-
ed upon at any stage in the Preliminary Objections or in the oral state-
ments before this Court.
The term "justified", used by a Court of law in such a context surely
has a legal as well as a moral connotation, and 1 shall revert to this in
discussing Respondent'r; contentions. As clearly appears from the fore-
going discussion, there isno room for doubt, 1submit, that the Court's
phrase, "to deny the otlligations", on page 133,could have no meaning
other than the obligatioiis to account andreport, as well as such unilateral
obligations and rights aj may exist.
The Court, as 1have ventured thus farto analyze the Opinion, laid
down as the law of the case that the machinery for implementation,
together with the substantive rights and obligations, survived the
dissolution of the League. That was an explicit clear holding. The Court
thereupon turned to a consideration of the two kinds of "international
obligations assumed by the Union" and, for the sake of convenience,
analyzed each kind sep~rately.It is worthy of repetition to note again
that, in the earlier portic-nof its Opinion, the Court had already concluded 304 SOUTH WEST AFRICA
that both kinds of obligations had survived the League's dissolution. The
discussion by the Court of each of these two kinds of surviving obligations
embodies and elaborates the rationale of its holding.
The firs troup of obligations directIy related tu the administration
of the Territory; the second group related to the machinery for imple-
mentation (that is found at page 133of the Advisory Opinion) ; the latter
group of obligations was, as the Court pointed out on the same page,
"closely linked to the supervision and control of the League". And it
should be noted that, although the Court did not make explicit reference
to the matter at this point of its Opinion, the obligation was also linked
with international judicial supervision or, as1think it might more accu-
ratelybe called, the duty to submit to compulsory process under the com-
promissory clause. This clearly appears from the Court's explicit reference
tu Article 7 on the same page of the Opinion, to which 1have referred,
that ispage 133, in describing the essentidry international character of
the functions entrusted to the Union.
Mr. President and hlembers of the Court, in listening to the French
translation of my comments regarding the expression used by the Court
at page 133regarding the two kinds of international obligations assumed
by the Union, 1 did not, although with faulty French misunderstanding
may have missed, 1 did not hear the French translation refer to the
qualification1had made regarding the sentence in question. 1think that
itwas my fault, and an unpardonable advocate's fault, in not quoting
the whole sentence, and I should like to quote the whole sentence so that
the English and French versions will be exactly the same. As a matter of
fact 1 fear that what 1 said in my original remarks is inaccurate, or at
least ambiguous. The sentence in question appears on page 133and
1 read it in full:
"These international obligations assumed by the Union of South
Africa were of twokinds."
1had perhaps left the impression that the Court did not make it clear
that they were of two kinds but 1was referring to this exact quotation,
and should have quoted the whole sentence. The fact is that the Court did
hold specifically that the obligations tvereof two kinds.
Returning then to my argument. In considering the first kind of obli-
gation, thatisthe obligation of administration, the Court reiterated that
these obligations were of such a nature that, and 1quote: "they could not
be brought to an end merely because" the League of Nations had ceased
to exist, as Respondent had frankly contended before the Court in 1950.
1 say "reiterated" in this context because the Court had earlier in its
Opinion, on the preceding page, had already rejected the Respondent's
contention that the Mandate had lapsed. On page 133, as a necessary
corollary, the Court reiterated that the obligations were of such a nature
ceased to exist.not be brought to an end merely because the League had
In thiç context, the Court significantly, and for the firit time in its
Opinion,refers to Article 80, paragraph 1,of the United Nations Charter.
The significance of the Court's referenceto Article 80,paragraph I,of the
Charter clearly appears from the stress of phrases used by the Court,
such as :"under al1circumstances" and "in dl respects", phrases charac-
terizing the Article's pervasive intention to safeguard the rights, al1the
rights, of the inhabitants of Mandated temtories.
,- ARGUMENT OF MR. GROSS 305
The Court's emphasi:; concerning Article 80. paragraph r, its scope
and force and meaning, :isreinforced bythe Court's subsequent references
in the Opinion to that pxagraph ofArticle 80, particularly in the light of
the context in which th: subsequent references appear.
The first reference to Article80, paragraph I,is, as 1have said, at the
bottom of page 133and relates to the group of obligations entrusted to
the Respondent in Articles 2-5of the Mandate readin the light of Article
22 of the Covenant. It is these obligations which, as the Court said,
represent the very essence of the sacred trust of civilization, and the
Court went on to Say:
"Their raison d'êtreand original object remained. Since their
fulfilment did not depend on the existence of the League of Nations,
they could not be brought to an end merely because this supervisory
organ ceased to exi:;t. Nor could the right ofthe population to have
the Territory administered in accordance with these rules depend
thereon."
It was precisely this conclusion which the Court held was confirmed by
Article 80, paragraph I,of the Charter, with the striking emphasis and
language to which 1 have referred. Tt is with reference to the survival of
these obligations on thepart of the Mandatory, together with these rights
on the part of the popu1;~tionof the Territory, that the Court interpreted
Article 80, paragaph 1.
Thenext reference in the Opinion to Article 80, paragraph 1,occurs at
the bottom of page 136of the Advisory Opinion. In this context of the
Opinion the Court is referring to the "second group of obligations" of the
Mandatory, that is to Say, the obligations which "were closely linked to
thesupervisory function:; ofthe League of Nations, particularly the obli-
gation ofthe Union ofSouth Africato submit to the supervision and control
of the CounciI of the League". That is quoted from the Opinion. The
Opinion immediately thereupon, still referring of course to the second
group of obligations, the rnachinery for implementation, the Opinion
thereupon immediately answers the question which the Court itself has
' posed and that is whether these supervisory functions are to be exercised
by the new international organization, that içthe United Nations, and
whether the Kespondenl: is obiiged to submit to United Nations super-
vision and to render annual reports to it. The Court holds, answers its
own question, in the affi~,mative,and it holds, on the basis of reasons set
forth on page 136, decisive reasons, which the Court on the same page
refers to as "general considerationsJ' as well as decisive reasons, the Court
holds on this basis that the question must be answered in the affirmative
and that the obligations to account and report exist and that the United
Nations is to exercise th.em. Now these reasons, these decisive reasons,
general considerations, are crucial to the Court's holding, are not in any
way irnpaired by Kespondent's "new facts" contention, as 1have sought
to make clear, and they are not impaircd, I shall submit under the next
heading, they are not inipaired by the de nowo argument made by Kes-
pondent.
The reasons, set forth ;ipage 136of the Opinion, the "general consid-
erations" or "decisive r<:asons" as they are alternatively called by the
Court, comprise a paragraph of five sentences, in substance asfollows.
Each is, 1think, pregnarit witb meaning:30~ SOUTH WEST AFRICA
First, the obligation to "accept international supervision and to
submit reports is an important part of the Mandates System". As
a matter of fact it has been regarded generally,1think the history shows,
as an essendialpart.
Secondly, the authors of the Covenant, said the Court, and I quote,
"considered that the effectiveperformance of the sacred trust of civiliza-
tion by the Mandatory Powers required that the administration of
Mandated territories should be subject to international supervision".
Parenthetically the Court did not Say that it required that they be
subject to international supervision by the Council of the League of
Nations, or by any other specific or designated agency. In this context
the Court is talking about a "general consideration". The Covenant re-
quired that the administration of Mandaied territories should be subject
to international supervision.
Third sentence: "The authors of the Charter had in mind the same ne-
cessity when they organized an International Trusteeship System."
Fourth sentence: "The iiecessity for supervision continues to exist
despite the disappearance of the supervisory organ under the Mandates
System." The insistent emphasis on the word "necessity" is significant.
Fifth and last sentence in this paragraph of general considerations,
or decisive reasons 1 shall likewise quotein full:
"It cannot be admitted that the obligation tosubmit to supervision
has disappeared merely because the siipervisory organ has ceased
to exist, when the United Nations has artother international organ
performing similar, though not identical, supervisory functions."
Hence the Court, on the basis of its analysis of the legal nature of this
new international institution, concluded that international supervision
was an essential feature of the institution and that this had been the
view of the authors of the Covenant and the authors of the Charter, and
the Court goes on-and 1 quote from page 137:
"These general considerations are confirmed by Article 80, para-
graph 1,of the Charter",
and, says the Court, the League "gave expression to a corresponding
view on 18 April 1946.
[Public hearing of 16 Octobev 1962, afternoon]
Mr. President and Mernbers of the Court, at the close of the morning
session,1 had referred to the analysis of the Court and my last remarks
were that the Court, on the basis of its analysis of the legal nature of
this new international institution, concluded that international super-
vision was an essential feature of the institution and that this had been
the view of the authors of the Covenant and of the authors of the Charter,
and then that the Court goes on to say (page 137):
<,
These general considerations are confirmed by Article 80 (1) of
the Charter and [says the Court] the League gave expression to a
corresponding view in its Resolution of 18 April ~~46."
1tisin this context, relating to the survival of Respondent's obligations
to account and report to the United Nations, that the Court makes its
second reference to Article 80 (1).And in doing so, it not only holds ARGUMEXT OF MR. CROSS 307
that Article 80 (1) confirms the reasons for the affirmative answer to the
question the Court has posed itself. but that such confirmation is based
upon the interpretatioii which the Court had already given to Article
80 (1) in its first refer-nce to that clause. In other words, the Court,
as it seems to me, inc~rporated by reference its interpretation of Ar-
ticle 80 (1) into this s~:condreference to it, and this in the context of
the survival of Respondent's u.bligations to account and report to the
United Nations. The Court says, at the bottom of page 136, that the
considerations supporting its holding with respect to the survival of
Respondent's obligaticns to account and report are controlled by
Article 80 (1) "as this clause has been interpreted above". The Court
obviously isthcreby coristruing Article 80(1) in a sense which safeguards,
for the people of Mandated territories, the right to have the protection
of international judicial supervision, in the sense of compulsory juris-
diction of disputes arising under the compromissory clause.
The third reference I:OArticle 80 (1)in the Court's Opinion appears
at page 137. At this point, the Court is discussing the question whether
the right of petition had survived the dissolution of the League. Be-
.ginning at the bottom of page 137, the Court held that this right "is
maintained by Article 80 (1) of the Charter, as this clause has been
~Interfirefedboue", again incorporating by reference the interpretation
given to the clause in its first mention earlier in the Opinion.
It wili be noted thai: the Court thereby attributes to Article 80 (1)
the positive quality of "maintaining" the right of the inhabitants to
petition to an intemati.r>nal agency. Moreover, in exactly the samc way
as the Court had done in its second reference to Article 80, at page 136,
which relates to continued United Nations supervision-the Court
reaffirms, in the context of the right of petition, the interpretatiowhich
it had earlier given to Article 30, in such sweeping and, if Imay Say,
striking emphasis.
Finally, the Court makes its fourth reference to Article 80 (1) in the
context of the discussicin of the compromissory clause of the Mandate
itself,which is of courje the clause at issue in the cases at bar. The
precise question in issiie, at this point of the Opinion, was whether
Article 7 remains in fo:.:cewith the consequence that Respondent con-
tinues to be under an obligation to accept the compulsory jurisdiction
of this Court. The Court answers the question in the affirmative, and
says in doing so:
"Having regard .to Article 37 of the Statute of the International
Court of Justice, and Article 80, paragraph 1, of the Charter."
That is at page 138.
These four successive references to Article 80 (I),each in a different
though related context, and each based on the same interpretation of
the clause, have accumulative significance in our judgment. They
demonstrate, it seems to us, that the Court was defining Article 80 (1)
so as to give a full scope and an enduring vitality to the "international
functions" which had heen entrusted to the Respondent, to the "new
international institutioo" which had been created hy Article 22 of the
Covenant and the Mafidate and to the "international status for the
territory", which had been created by the "international rules regulating
the Mandate". 1 have cluoted each clause from the Court's Opinion.30~ SOUTH WEST AFRICA
Having thus established the confirmatory sign-nifcanceof Article 8(11,
the Court refers, ai page 137,to what it calls the "correspanding view"
expressed by the League of Nations with regard to the purposes of
Article Bo (1).Specifically, the Court describes it to be the purpose of
Article 80 (1)"to provide a real protection" for the rights of the people
of Mandated territory, and concludes that thoçe rights could not "be
effectively safeguarded without international supervision and a duty
to render reports to a supervisory organ". That is the way the Court
has construed Article 80 (1).
Now, the Court speaks of a "corresponding view" embodied in the
18 April 1946 Resolution. It sayç that that resolution, the League
resolution:
"firesupposes that the supervisory functions exercised by the
League would be taken over by the United Nations".
1 think it is relevant, Mr. President, at this point, to inject a brief
reference to Respondent's contentioii-with which 1 have dealt fully
under the first major proposition-concerning the Respondent's argument
-that if the Court had been aware in 1950of certain so-called "new
facts", the Court wonld have taken a different view of the 18April
Resolution and would have reached the conclusion that Respondent's
obligation of international accountability terminated upon the disso-
lution of the League. 1 have, as E Say, met head-on Respondent's con-
tention in that regard, with al1its grave and far-reaching implications.
With the Court's permission, 1 cal1to the attention of the Court the
precise terms in which the Opinion treats of 18 April 1946 Resolution,
the context in which it does so, and (as it seems to us) the inescapable
inferences which are to be drawn from both the treatment and the
context.
As in the case of Article 80 (11 the Court refers to this Resolution
in multiple, although closely related, contexts, which are mutually
reinforcing.
The first reference to the18 April Resolution is at page 134 of the
Opinion. In this context the Court is discussing the first group of "inter-
national obligations" assumed by the Respondent, that is to Say, the
ones "corresponding to the sacred trust of civilization referred to in
Article22 of the Covenant", as the Court said at page 133.
The Court concluded, at the same page (133) that these obligations
"could not be brought to an end merely because the supervisory organ
had ceased to exist. Nor could the right of the population to have the
territory administered in accordance with these rulesdepend thereon".
It is this view, regarding the obiigationç defined in Articles2-5 of
the Mandate, that the Court, in this context, finds is confirmedby
Article 80(1) of the United Nations Charter and by the 18 April 1946
Resolution. They are both confirmatory of "general considerations"
reached- by the Court after study of the Covenant of the League of
Nations and of the United Nations Charter.
On page 134of the Opinion, after quoting relevant excerpts from the
Resolution, the Court says:
"Aswill be seen from this resolution, the Assembly said that the
League's functions with respect to mandated territories would
corne to an end; it did not çay that the Mandates themselves came ARGUMENT OF MR. GROSS
309
to an end. In corifining itself to this statement, and in taking
note, on the other hand, of the espressed intentions of the mandatory
Powers to continue to administer the mandated territoriesin
accordance mith tht:ir respective Mandates, until other arrangements
had been agreed -upon between the United Nations and those
Powers, the Assetnbly manifested its understanding that the
Mandates were to continue in existence until 'otller arrangements'
were cstablished."
It wiIl be noted that the Court refers to the expla'citlanguage of the
Resolution and to the expressed intentions of tlie Mandatory Powers
to continue to adrninister the hlandated territories in accordancc with
their respective Mandales.
Now, the Court's second reference to the Resolution of 18April1946-
the only reference, incidentaily, to which Respondent refers in its
presentation-appears in the context of its discussion of Respondent's
second group of obligai:ioris, that is those which the Court says are
"related to the machintlry for implementation ...closely linked to the
supervisory furictions othe League". That is at page 136 of the Opinion.
After analyzing the ;laturc and purposes of the functions of inter-
national supervision aiid accountability, in this context, the Court
again finds confirmatioriof its views in Article 80 (1), which, as 1 Say,
the Court had interpreted earlier in its Opinion.
The Court, then, finds additional confirmation once more in the
"corresponding views" expressed in the 18 April 1946 Resolution. The
Court did so in the foilowing words, ai page 137of the Opinion:
"It recognized, a; mentioned above, that the League's functions
with rega~d to the mandated territories would corne to an end,
but noted that Ch~ipters XI, XII and XII1 of the Charter of the
United Nations ernbody principletj corresponding to those declared
in Article 22 of the Covenant. It further toolr note of the intentions
of the mandatory !;tates to continue to administer the territories
in accordancc with the obligations contained in the Mandates until
other arrangement:; should be agreed upon bctween the United
Nations and the niandatory Powers. This resolution presuppoçes
that the supervisory functions exercised by the Leaguc would be
taken over by the United Nations."
Now, just as in the case of its prior reference to the Resolution, the
Court refers in this paragraph to the clear and explicit language of the
text of the Resolution which it quotes and interprets authoritatively.
At the end of the paraéraph I would repeat the Court commeiits that
the Resolution "presz~pjoses that the supervisory functions exercised
by the League would l~e takeii over by the United Nations". They
(League Members) had access to Article 80 (1)of the Charter and they
interpreted it exactly a:; this Court does in its Advisory Opinion.
Mr. President, Membi:rs of the Court, in this context it seems to us
the word "presuppose" is a strong one, since it emphasizes a premise,
or supposition, on which the Reçolution isbased, that the United Nations
would take over the League's supervisory function. In this context it
seems that it has a greater significance than if the Court had rnerely
said that the Resolution declareç, or iniplies, or used other similarwords
of interpretation of intention. The Resolution "presuppoçes" that the31° SOUTH WEST AFRICA
supervisory functions exercised hy the League would be taken over by
the United Nations. But for such a presupposition the League rnight
well have taken different and other action to ensure the continuity and
survival of the Mandates until they had been converted into trusteeships
or had been otherwise tertninated in accordance with their provisions
and those of the Covenant.
The Court completes its chain of reasoning on this aspect of the case
by pointing out that by Article IO of the Charter, the General Assembly
of the United Nations had been endowed by the Charter with competence
"to exercise such supervision and to receive and examine reports" and
that Respondent "is under an obligation to submit to supervision and
control of the General Assembly and to render annual reports to il",
that is at page 137.
I have already referred to the Court's holding with respect to the
right of petition and to the significance given by the Court to Article 80,
paragraph 1, in connection therewith.
And, finallywith regard to question (a), the Court-as 1have mention-
ed-oncluded that the compromissory clause of Article 7 is "still in
force" having regard to Article 37 of the Statute and Article 80, para-
graph I,of the Charter, and the significance of this fourlh reference to
Article 80, paragraph I, and the reference in this context, has been
noted earlier in my argument.
In summary, hlr. President and illembers of the Court, it is sub-
mitted that the following conclusions must inevitably be drawn from
the Opinion of 1950:
(1)Disputes regarding interpretation and application of the Mandate
are subject to the compulsory jurisdiction of this Court. Such
disputes include, inter alin, those which might arise concerning the
interpretation of Article 6 of the Mandate, orany other provision of
the Mandate, and the extent and nature of Respondent's obligations
nnder the Mandate; and
(2) That if the Applicants, who were Members of the League of Nations
at the time of its dissolution and are now Members of the United
Nations, if Applicants,under these circumstances, do not fd within
the class of States competent to invoke the jurisdiction of this Court,
no State does.
Under such circumstances the compromissory clause would be a dead
letter; Article 80, paragraph 1, of the Charter, the League of Nations
Resolution of 18 April 1946, as both of these documents liave been
authoritatively interpreted by this Court, would be utterly frustrated.
In leaving this respectful analysis of the Advisory Opnion of 1950 1
should like to repeat the sense of presurnption under tvhich I feltcon-
strained to çpeak in attempting to analyze, to expound to the Court,
the interpretation of an Opinion of the Court involving the issues
precisely of the case at Bar.
1 turn now to the third major proposition urhich relates to the Re-
spondent's de novo argument, and which submits that the Respondent's
de novoargument, on the merits, is in conflict with the Advisory Opinion
and should be rejected.
We have endeavoured to show that there is no basis for reviewing
and reversing the Opinion and that the basis deged, in connect~on with ARGUMEXT OF MR. GROSS 31 =
the "new facts" contention, is not valid, the facts being neither new
nor crucial nor possessing, indeed, any othermaterial significance.
We have sought, mcmreover,to show, even if we are wrong in these
contentions, Responderit has not complied with even the most minimal
standards widely reflecied in municipal legal systems, and embodied in
the Statute of the International Court itself, to lay a basis for adducing
alleged new facts in seeking a reconsideration and reversa1 of, in this
case, a unanimous Opi,nion.
However, in turning to the Respondent's de novo argument Ido ço
essentially in a respectiiul effort to reçtore to the record of these state-
ments a balance and a perspective which the grave issues merit, even
though it is, as1 conl:ede, an argument alternative to my first two
major propositions ancl one in which we do not regard ourselves as
necessarjly involved.
Itrnaybe tliat lightjç shed on the arguments which Respondent now
offers to the Courtby a brief referencetothe arguments propounded to
the Court by Respondent in 1950. Although the 1950and the 1962 sets
of arguments are couched in different form, cornparison of the two
reveals,I think, one esscntial difference, and one only.
1 think it fair to saIr that the difference is that, in 1950, the same
major fallacies regarding the nature of the Mandate were presented to
the Court, but with gre:~terclarity and concision than is the case today.
In itsoral argument and written Pleadings before the Court in 19.50
Respondent explicitly and with candour declared that it had ceased to
be under any international obligation whatsoever with respect to the
Mandate on the ground ihat the Mandate had lapsed with the dissolution
of the League of Nation:;. Respondent at that time stressed the follou~ing
contentions, which 1 should like to summarize.
During the life of the League, Respondent contended, it had owed
duties to the League, but then when that organization dissolved, these
duties could no longer 11eperformed vis-d-vis the League. Inasmuch as
the United Nations had not succeeded to the functions of the League in
respect of Mandates, Respondent contended that the duties previously
owed to the League had lapsed. Respondent had owed certain other
duties in respect of Maridates to Members of the League, but when the
League dissolved there were no longer any Members of the League, and
therefore, contended F:espondent, these duties to other States had
lapsed.
In 1950, Respondent t.esorted to the municipal law concept of Mandate
in order to establish thzt the Mandate had lapsed. As Respondent then
viewed the Mandate, it was basically an institution requirina mandator
and a rnandatory, and itone of the two parties, as it said, fell away, the
institution lapsed. Resp,mdent contended in 1950 that since the League'
had dissolved and the IJnited Nations, in its opinion, was not qualified
to exercise the powers of supervision forrnerly exerciseby the League,
there was no longer a niandator and therefore the Mandate lapsed.
Respondent 's use of "mandator and rnandatory" appeared to imply
only a two-party relationship, but it nevertheless conceded that League
Members, and 1 quote from the oral argument made by Respondent
in 1950 ,age 289, that l:he League Members "had legal rights in respect
of mandated territories"; but Respondent urged then, "with the dis-
appearance of the League, the rights of third States who were Members3IZ SOUTH WEST AFRICA
of the League, must necessarily have ceased to exist". That contention
appears at page 290 of Dr. Steyn's argument before the Court.
In support of its contention concerning the extinction of the rights
of League Members, Respondent in 1950 invoked the exarnple of
Germany's unsuccessful effort to assert rights with respect to Beigium's
administration of Rwanda-Urundi, since Germany was not then a
Member of the League it no longer possessed such rights. Respondent
cited this as showing that present League Membership, as Counsel has
said, Leape Membership at the time the action isbrought,is a necessary
prerequisite for the assertion by States of rights vis-&-vishlandatories,
and sought to apply a parity of reasoning to the situation in which the
League itself no longer existed.
Mr. President, I come now to the close of my summary of the 1950
contentions. It wiUbe seen, I thinkt, hat the echoes of the same con-
tentions are being heard in the corridors of the Court today, twelve
years later. To conclude, however, Respondent went on to contend in
1950 ,hat even if it could be said that the Mandate still existed, the
Respondent would nevertheless have, and 1quote, "no obligations which
are international under the Mandate". Respondent at that time, in 1950,
argued asfollows, and 1 quote now from page 258of the Argument:
"Even if the Mandate still exists, there is now no international
organ competent to exercise the supervisory functions and control
of the League. There is no international organ to which the Union
Government are obliged to submit reports. There is no international
organ whose consent is legally required for modificatio ofsthe
terms of the Mandate. The League having expired, there are no
Members of the League who can claim rights in respect of the
administrationof the Territory. And finally, there içno State legally
competent to refer disputes relating to the interpretation or the
application of the provisions of the Mandate to the International
Court of Justice, the cornpetence to do so having been limited by
Article 7 of the Mandate to Members of the League."
These were Respondent's contentions to the Court in 1950and they
were rejected inevery respect. The contentions currently being advanced
have been skilfdy contrived in the light of, or perhaps it would be
more accurate to say in spite of, the Advisory Opinio nf 1950.Res-
pondent haç fashioned a new train of reasoning, one which is more
intncate and has more moving parts. In the face of the unanimous
opinion of the Court, Respondent seeks to give a different form to the
çame basic premises which underlay Respondent's contentions in 1950.
Respondent contended in 1950, as 1 have çhown, that because of the
Mandate's contractual origin, or consensual origin, that Mandatory's
consent, tacit or express, was prerequisite to the survival of its duty i?
account to an international body other than the League, or to submrt
to the compulsory jurisdiction of the Court in pursuance of the com-
promissory clause of Article 7.
The 1962 mode1 contention is that ali of Respondent's rights are
preserved, but none of its obligationsof international accountability.
Such a proposition, which 1 have charactenzed g the doctrine of
convenient and partial lapse, 1 think deserves thorough ex~ination.
The Advisory Opinion itself, at page 133,d. escribed precisely th^ ARGUMENT OF MR. GROSS 313
result as, and 1 quote the Court's word, "unjustified", I have noted
this earlier in my argument. Respondent has not taken direct or ex-
press note of this obviously just proposition of the Court, either in its
Preliminary Objection:. or in its Oral Statements.
Respondent seeks to support its doctrine of convenient and partial
lapse by means of an artful and self-serving misinterpretation of cer-
tain legal analysis appcaring in the separate Opinion of Judge McNair.
At page 299 (1) of t'he PrelirninaryObjections, Respondent purports
to interpret the majorjty Opinion asfollows:
"In the 1950 Advisory Opinion the Court in effect held that,
in addition to its operation as a treaty or convention, the institu-
tion known as the Mandate for South West Afnca acquired an
objective, or 'real: existence, as constituting a special statuç for
the Territory and that in this objective or 'realJaspect the Mandate
survived the dissoiution of the League."
That is the Resporident's contention and interpretation of what
it says the Court in effect held. 1findno such implication or inference
to be drawn from the A.dvisoryOpinion as we have read it. At page zgg
(1) of the Objections, Eootnote 2 gives three citations to the Advisory
Opinion to support this very important proposition. Theçe citations
are presumably intendtd to indicate the portions of the Opinion which
justify Respondent's vcry novel interpretation of the Court's reasoning.
One citation in the footnote on page 299, is to the separate Opinion of
Judge McNair. Another citation is to the separate Opinion of Judge
Read.
to the majority Opinion ifself, cites pag132.ehlr. President, one searches
page 132 in vain for stiitements of the Court which furnish a plausible
basis for Respondent's .ingeniousinterpretation of the holding. Respon-
dent, as 1 have reminiled the Court, at page 299of the Preliminary
Objections says that the Opinion "in effect" held that in addition to
its operation as a treai:y or convention, the institution known as the
Mandate for South West Africa acquired an objective or real existence, as
constituting a special si:atus for the terntory, and that in thisobjective
m reaLaspect, the Mandate survived the dissolutionof the League. It is
the last clause to which Respondent no doubt attaches the moçt sipi-
ficance.It is this last clause which i find unsupported by anything on
page 132 of the Opinion. Perhaps fair analysis of Respondent's meaning
in its contention as to .what the Court in effect held, wouId have been
aided by reference to the langu~e at page 132, to any language which
Respondent regarded as supporting its interpretation of what the Court,
"in effect, held". At page 132, as the Court will note, the Opinion re-
jects Respondent's 1950 contention that the Mandate had lapsed
because the League had ceased to exist. The Court points out that the
League was not a "Mandator" in the municipal law sense, but "had
only [1 quote] assumed. an international function of supervision and
control". The Opinion goes on, at the same page:
"The object of the Mandate regulated by international law
law."xceeded that of contractual relations reguiated by national
.The phrase "far exceeded", in this passage s,erns to be notewortby.3I4 SOUTH WEST AFRICA
After commenting upon the international object of the new inter-
nationalinstitution,the Court found that theinternational rules regulating
the Mandate constituted an international status for the Lerritory, and
accordingly the Court concluded at the next page, page 133:
"The authority which the Union Governrnent exercises over the
Territory is based on Mandate. If the Mandate lapsed, as the
Union Government contends, the latter's authority would equally
have lapsed. To retain the rights derived from the Mandate and
to deny the obligations thereunder could not be justified."
It is this line of reasoning and conclusions, together with rationale,
in the Court's Opinion (or somewhere in the reasoning and conclusions),
in which Respondent has searched for, or discovered, that in the Opinion
the Court had held that it was in this objective or real aspect, in which
the Mandate survived the dissolution of the League.
The Court itself goes on to Say that the Union remained "under
an obligation to submit to a supervision by the new organ, that is,
the UnitedNations, andto render annual reports toit". Itwasinthat sense,
of course, that the Mandate survived-the Union was under an obliga-
tion to carry out its promises in the Mandate and to respond to inter-
national supervision and control. It was in that sense, and in that
sense onIy, that the Court found that the Mandate had survived, and
it found it explicitly.
Respondent's single citation to page 132 of the Majority Opinion to
support its contention, therefore, refers to a page of the Opinion which
sets forth a rationale contrary to Respondent's thesis. Moreover, page
132,in a lawyer's sense, embodies no holding whatever; mereIy two
paragraphs of relevant history, followed by two paragraphs of impeccable
reasoning. If Respondent's contention to what the Court "in effect
held" implies the reference to the last sentence on page 132, then Res-
pondent, 1 submit, is rnerely making a play on the words, "international
status" in that sentence.
Having thus injected into its argument a dichotomy between the
real or objective status on the one hand, and the contractual statuç on
the other, which is the Respondent's and not really that of the Court,
Respondent goes on to Say, and Iquote from the Preliminary Objections
at page zgg (1) :
"The correctness or othenvise of this proposition does not Te-
quire ta be reviewed for the purpose of Respondent's Objection
to jurisdiction,.."
Standing by itself, this statement might well arouse curiosity as to
why, then, so doubtful a proposition is brought into play in the first
place. But the mystery is solved almost at once. Respondent's Prelimi-
nary Objections proceed to do precisely what the Respondent has
said is not necessary to its argument. Respondent accepts, or does
not deny, the notion that the Mandate survived in an objective or real
sense, although it submits this only arguendo; it rejects the notion that
the Mandate survived as a Convention or Treaty in force for the purpose
of founding jurisdiction under Article 37.
By contrast, judge McNair, in his separate Opinion, says:
6'
In my opinion the new regime established in pursuance of this
principle has more lhan a purely contractual bais." (Ital. added.)316 SOUTH WEST AFRICA
cants is qualified to invoke it as'another Member of the League
of Nations' within the meaning thereof. And [said Respondent's
Counsel] it is mainly because of the overlapping between the se-
cond contention-which is really stiIIpart of Our First Objection-
and this third contention which is our Second Objection-it
is mainly because of that overlapping that I trust the Court will
find it convenient if 1 carry on as 1 propose and that is to deal
with those two Objections together and not to separate them
entirely."
Candour compels us to confess to the Court that te had precisely
this difficulty in dealing with the Preliminary Objections in sorting
out what are stated as alternative or different theses, but which, as
Counsel frankly described in his oral argument, is really another way of
saying the sarne thing, or in his own words "an alternative way of put-
ting the same argument". 1 will deal with this in a moment.
As Respondent concedes, aipage 32, supra,ofthe Vertiatim to which 1
have just referred-that is the Verbatim of 2 October-the contention
that neither of the Applicants is qualified to invoke Article as "another
Member of the League" is, as 1 have just said and 1 repeât, according
to Counsel merely an alternative way of putting the same argument,
that is that Article 7 is not in force, if 1 understand him correctly.
That these contentions .are rnerely two ways of making the same
point is logically inescapable. It is, indeed, possible to establish ias a
quod eral denzonstrandurn in terms of the 1950 Advisory Opinion. 1 have
ventured to point out at the outset of my oral statement that Res-
pondent's de novo argument is necessanly directed at the merits of
the Advisory Opinion and particularly must be directed at, or considered
asan attack upon, or a questioning of, the soundness of its rationale. 1
have also earlier in my statement ventured to analyse that opinion and
point out the rationale of the Court's holdingthat Article 7ofthe Statute,
referring in this context to the compromissory clauçe, is still in force:
"having regard to Article 37 of the Statute and Article 80 (1) of
the Charter and that therefore the Union of South Africa is under
an obligation to accept the compulsory jurisdiction of the Court
according to those provisions".
1 shail state my quod eraf demonstrandum.
Proceeding then from the Court's holding that the compromissory
clause is a treaty or convention in force withing the meaning of Article 7
of the Statute, the following sequence of propositions may be set out:
r. If the clause is in force there must be States capable of invoking it
in an appropriate case.
2. If Applicants lack the capacity to invoke the clause, ail States do.
Respondent ha not contended otherwise.
3. If no State has the capacity to invoke the clause,it would be a nullity
and Respondent wodd not be under the obligation to accept the
Court'scompulsory jurisdiction as the Court held it to be;and
4. The concIusion must be that Applicants have a locus sstandito in-
Court reverses thele1950oholding in this regard.rne to the point, the .\RGUMENT OF MR. GROSS 3I7
Tkere is no basis acserted by Respondent which would justify the
Court reversing itsholding with respect to the validity and continuing
effectof the compromi:sory clause, at least in our respectful subrnission,
no contention which ic.worthy of the Court's consideration.
[Public hearingof 17October1962, nzorning]
If it pIease the Cour?,1 should like at the outset of rny remarks this
morning to make a corrixtion of my statement of October 16 in the Ver-
batim at page 294, sufi:taThere 1 stated, and1 quote from the Verbatim,
and this is a correct reflection of whatIdid say, quote, "No statements
on the part of any otl~er delcgations at the session of the Comrnittee
appear in the Minutes .3the Committee". That refers to the session of
the First Committee of the twenty-first session of the League of Nations
General Assembly in A.pri1of 1946, that was the third meeting of the
First Cornmittee. On ro:-checking the record, in order to be certain of
the accuracy of my Vei-batim, 1did discover an error in my statement.
There are reflected in the minutes of the third meeting of the First
Committee two additional statements made by honourable delegates
at the session, one bgr the Australian delegate who announced the
intention of his Goveniment to administer the Mandate, and I quote
"in accordance with th,: provisions of the Mandates" (at page 79 of the
Minutes), and the second, a statement by the delegate of France in
which he announced th~t his Governrnent would continue to administer
al1of the Mandated territories, and 1quote, "in the spirit of the Covenant
andof the Cha~ter". 'l'hose two statements were made in addition to
Sir Wartley Shawcross' statement in which he seconded the proposa1 of
the Chinese delegate. The only other action reflected in the third session
of the First Committee was the abstention on the part of the delegate
of Egypt in the vote on the Resolution of 16 April. That ends my
correction.
Mr. President, may 1 refer now to a photostat copy of an excerpt of
Minutes of the second meeting of the First Comrnittee, which 1 reccived
at my residence througli the good offices of the distinguished Registrar
Iast nighti A scanning of the photostat copy of the excerpt reveals the
text of a draft resoluti.~n, as it is described. This is the Chinese draft
proposa1referred to in tlie Preliminary Objections at pag253 (1). point-
edout in the course of niy argument that the text quoted, at page 253 of
the Preliminary Objections, waç not cited in any document. This then rs
the document to which the irnpIicit reference is made. The document,
as 1 understand, was transmitted by the Head Librarian of the United
Nations headquarters in Geneva, and it is in the form of an excerpt,
as 1Say. Mr. Presidcnt, Itkink the Court should note that the text of the
draft Chinese proposal, as it is setforth in the document to which 1
refer, is not identical with the text of the resolution quoted at pa253.
I do not contend -that the difierences in ianguage are substantial ,in
meaning, at least my reading of them does not indicate any substantial
difference inmeaning. Ilowever, it isafter al1 the Respondent that has
introduced into this dehate the question of accuracy of documentation,
and it therefore seems a puzzling aspect of the matter that the text,
which is quoted at pag? 253, does not correspond inlanguage with the318 SOUTH WEST AFRICA
text in the document now seen by the Applicants for the first time. 1 do
not want to trespass on the Court's time to dwell at length upon this, but
just asan indication, in the second paragraph of the text, as it is quoted
at page 253 (1), the words appear "after the dissolution of the League".
Those words do not appear in the text of the draft resolution in the
document which has been furnished by the Head Librarian of the United
Nations, and there are three or four other similar differences. Therefore,
it is not clear, on the basis of anything which is known to us, exactly
what is the source of the so-called text which is quoted at page 253 of
the Preliminary Objections.
llr. President and Members of the Court, at the close of the session
yesterday I had undertaken to establish, in the form of a quod evat
demonstrandum, that unless Applicants have a locus standi in this
procedure, no one else does. If no State has the capacity to invoke the
compromissory clause it would become a nullity, and, unless the Court
reverses its holding that the Article is in force, it would follow that the
Applicants must have a standing.
The Respondent itself, speaking through its Counsel, at page 198,
s~fira, of the Verbatim, said as follows:
"Mr. President, the conclusion to which the portion of the
argument with which 1 have just dealt is that stated by way of
alternativ iesOur second and third contentions, namely, that by
reason of there no longer being any Members of the League, Ar-
ticle7 has ceased to be in force as a treaty or convention, or alter-
natively, ifit is still so in forcethen thereare no States competent
to invoke it."
Respondent has insisted, in another context, upon according a literaï
interpretation of the phrase "another Nember of the League", as it
appears in Article 7, on the ground that words should be given their
"normal and natural rneaning".
IfArticle 7 is "in force", to quote the language of the Court, there
must be States competent to invoke it or it is not in force. Hence,
Respondent, contrary to its own principle, of strict and literal inter-
pretation, failsto apply thc same standard to the language of the Court.
Itmay be appropriate now to clear up a confusion which cuts across
much of Respondent's reasoning relative to its First Objection. Both
in the Preliminary Objections and in oral statements, Respondent has
made an elaborate argument de lzovowith respect to Article 6 of the
Mandate Agreement.
In Ourwritten Observations, at page 428 (1), we comment upon the
fact that more than one half of Respondent's First Objection is devoted
to a discussion of the question whether Article 6 of the Mandate is in
effect. We remark at this point in Our Observations, page 428, that the
Preliminary Objections fail to indicate:
"what relevance the question of United Nations supervision has
to jurisdiction, whick is the sole issue in these...proceedings".
Respondent's Counsel, himself, made the same point at page 35,
sufira, of the Verbatirn. He said, and 1 quote:
"You will have noted, Mr. President, that in our original Obser-
vations @y which he was referring to the Preliminary Objections] ARGUMENT OF MR. CROSS 319
wedeal veryfully with a contention to the effect that the Respond-
ent's obligation of report and accountability to the CounciI of
the Leaguc in tcrms of Article 6 of the Mandate Agreement has
lapsed, and that lias not been replaced by, or modified into, any
obligation of repoit and accountability to any organ of the United
Nations. We deal, as ISay, very fully with that proposition. [And
then Counsel conctudes:] That, of coztrse,is~zotinitself an objection
to jurisdiction-we fully ~ealziethat."
That is in the Verbatitn of 2 October at page 35, sztfira.
Counsel, however ,then proceeds to argue that the question regarding
Article 6 is nevertheless important because, as we understand him,
he says it is really the Applicants who are seeking to establish the
relevance of Article 6 to the question of jurisdiction. Counsel appears
to base thisattributiori to us on the ground that the Applicants, as he
says, "rely on" Unite.1 Nations succession-I quote from the z Oc-
tober Verbatim at pagi 35,sztpra.
But, bZr. President, it is not the Applicants who "rely on" United
Nations succession. The Court itself decided that issue in the Advisory
Opinion of 1950 We draw the necessary inference from the Court's
Opinion. We do not bear the burden of sustaining the validity of the
Opinion of the International Court of Justice.
Respondent's arguments, in this respect as in others, should be
addressed to the merits of the Advisory Opinion, not to the merits
or demerits of our ar~~urnentswhich seek to support it and to draw
logical inferences fromit.The comment in our Observations at page 429
(1) conceming the interconnection between Articles 6 and 7 to which
Respondent's Counsel has referred, likewise proceeds from the Advisory
Opinion. Our arguments are in the lightof the Opinion. Respondent's
arguments are in the tdh of the Opinion.
Respondent has ais+)engenderetl some confusion, u7e think, with
regard tu a comment in our Observations at page 446 (1).We Say there :
"There is at the very least a de facto carry-over of the League's
responsibilities to the extent that an important function of the
League continues lieyond the Leagiie's forma1 existence."
As 1 have demonstr-ited, it follows inescapably from the 1950 Ad-
visory Opinion that Applicants have a locztsstandi, as United Nations
hlembers, in the cases at bar, In the event, however, that the Court
should, for reasoris vrhich arc not apparent-reçpectfully-to the
Applicants, if the Couri: should reverse its holding that Article6 is still
in force, then we would contcnd, as we do here, that Applicants must
have a locztsstanrli as former Members of the Leaguc of Nations because
if they do not, the unanirnous holding of the Court that Article 7 is in
force is reduced to a niïIlityIt is a perfectly logical proposition, and it
is precisely in tkis sensc:that we have referred to the point. If the lan-
guage iselliptical 1 express our regret and welcome this opportunity
to clear up what seems to be an inescapably logical deduction.
Respondent does not address itself, at any point so far as we have
observed, to the merits and soundness of the Advisory Opinion. Its
entire argument seems to be based upon the premise that, because of
alleged "new facts", the Advisory Opinion should either be reversed
or presumably ignored, as has been Respondent's practice for the past
twelve years.320 SOUTH WEST AFRICA
1 have trespassed on the patience of the Court in an effort to show
that the Advisory Opinion was not a product of ignorance of fact, and
that there is no basis for reopening it.
Whether Respondent is correct in what may be an implicit contention,
that the Opinion of the Court was the result of faulty reasoning, or
unsound rationale, is a matter which-1 respectfully submit-must be
decided, and can only be decided, by the Court itself.
I have thus far, in the course of my Statement, under the heading of
major proposition 3, attempted to show that unless Applicants have a
locztsstand;,no State does, and the compromissory clause would accord-
ingly be deprived of life, despite the Court's holding o1950,unanimous
holding, that it is stiil "in force".
1 turn to the alternative argument by which Respondent seeks ta
rob Article 7 of its life. Respondent contends that the phrase "another
Member of the League of Nations" in Article 7 should be given a literal
interpretation.
Respondent concedes that such a literal interpretation would nullify
the Court's hording with respect to the cornpromissory clause being in
force. 1have quoted from the Verbatim at which that concessionis made,
Accordingly, Respondent's contention necessarily implies a rejection of
the merits of the Court's holding on this issue, as well as the rationale
of its holding.
But Respondent does not address itseIf to a demonstration that the
Court's holding, that Article 7is in force, is untenable or that the Court's
reasoning in support of that holding is not sound. Respondent makes a
de novo argument, as is clear, to justify a reversa1 of the Opinion, but
the Court in 1950 as 1 Rhavenattempted to show in my analysis befofeRes-
pondent's 1950contentions and of their current 1962 model. Thf:
contention that "new facts" present "new issues of substance" to the
Court now, as Counsel has put it (at page 33, s~fira),has, 1trust, been
exposed.
Mr. President, what then does Respondent have to Say about the
Court's reasoning and holding with regard to the crucial Article ?-the
validity of which is the soleissuein these proceedings-and,in particular,
the compromissory clause of Article 7? 1 have shown that unless Res-
pondent succeeds in persuading the Court to reverse its unanimous
holding at Article 7, the compromissory clause is in force and Applicants
must have a locus siandi.
During the course of his oral statement on 9 October, Respondent
had sornething to Say on the subject of the Court's Opinion with re ard
to the compromissory clause. The Court's attention is respect ully
directed to the Verbatim of that day, beginning at page 184. supra,
Counsel introduced the subject with something of an understatement.
He said:
"That Opinion contained a finding to the effect that Article 7
must std be regarded as being enforced."
With respect, 1 think an analysis of the Opinion wiii show that the
Court made a quite explicit holding on the point, and not an irnplicit
"îinding", asthe Respondent characterizes it. Then Counsel goes on: ARGUMENT OF MR. CROSS 32
"The only reasoning specifically indicated as being applicable on
this point is to be found at page 138 of the Opinion and is stated
in a single sentence."
The "single sentence" to which Counsel refersis the sentence at page138
of the Advisory Opinion, which reads as follows, and 1 quote:
"Having regard to Article 37 of the Statute of the International
Court of Justice, :ind Article 80, paragraph r,of the Charter, the
Court is of opinio~ithat this ciause in the Mandate is stillin force
and that, therefore, the Union of South Afnca is under an obligation
to accept the conlpulsory jurisdiction of the Court according to
those provisions."
However, the ration,zle of the Advisory Opinion regarding Article 7
embodies more, very rriuch more, than the "single sentence" quoted by
the Respondent. The ratiolaalein the Opinion pertinent to the Court's
holding that Article 7 is in force beginson page 132of the Opinion. 1
refer to the Court's analysis in the last fullparagraph on page 132of
the Advisory Opinion concerning, in the Court's language, the "...legal
situation created by Asticle 22 of the Covenant and by the Mandate
itself". Obviously the tegal situation createdby the Covenant and the
Mandate extends to Article 7 of the Nandate as well as to any other
provision.
Ratioltdb pertinent Io Article 7 is found in the Opinion also at the
next page, on page 11i3,where the Court describes the international
obligations of the Respondent in the light of the legal situation created
by the Covenant and ihe Mandate. Indeed, at the top of page 133 is
found an explicit refertmce to Article7 itself, and the Court says that
Article 7 shows, and 1 quote, "The essentially international character
of the functions which had been entrusted to the Unionw-that is in the
first full paragraph on page 133.
Above ail, however, emerging from the Opinion with a force that
cannot be denied, stands the si ificanceof Article 80, paragraph I,of
the Charter which the Court reTers to in this "single sentence", to use
Kespondent's characterization. As 1 have pointed out, the Court, in its
Opinion, has three timej prior to this point cited Artic80, paragraph I,
as having been designed to conserve al1 rights of peoples of Mandated
territories to international supervision and judicial protection.
Respondent does not adduce any arguments or facts, except the SO-
called "new facts", th<: effect of which I have dealt with, tending to
impair the Court's reasi~ning with regard to Article7 or to impeack the
Court's conclusion with regard thereto. The significance of the reference
in this "sentence" to Article 80, paragaph 1, seems to have escaped
Respondent .
Another illustration c.fRespondent's failure directly to scek to irnpugn
or raise doubt concerning the soundness of the Court's reasoning, in
another context, may b: found in connection with the Court's conclusion
at page 133of the Opinion that-1 quote-"To retain the rights derived
from the Mandate and to deny the obligations thereunder could not be
justified."As 1 have shown, the "obligations" to which the Court here
refers incIude the obligation of international reporting and accounting,
including submission to the compulsory jurisdiction in appropriate cases
arising under the compromissory clause.322 SOUTH WEST AFRICA
Respondent nowhere in its Preliminary Objections or oral statements
frankly or explicitly adverts to the Court's conclusion with respect to
this unjustified result which would follow, despite the fact that Kes-
pondent's analysis of its own legal position leads precisely to the result
condemned by the Court in the sentence just quoted from page 133. In
this respect itissubmitted that Respondent's1962 argument is somewhat
less forthright than the contentions which Respondent submitted to the
Court in 1950 The Court's attention is directed to the Written statement
submitted at that time at pages 83 and 84 of the volume of Pleadings,
where-Dr. Steyn, the able Counsel for the Republic of South Africa, said
as follows:
"The Government of the Union ofSouth Africa would close this
statement by expressing their view that the Territory of South-
West Africa falls, at present, under no known category in inter-
national law. It wasaken by conqucst by the Union of South Africa
during the 1914-191 W8ar and subsequently placed under mandate
which has now lapsed. It is not a colony, or an independent State
or part of the territory of the Union of South Africa. Its status in
internationallaw is sui generis, and it is being administered in
accordance with a system which is sui generis, but which is never-
theless not inconsistent with the objectives ofthe Charter of the
United Kations."
And Counsel went on, in 1950:
"It is the considered view of the Government of the Union of
South Africa that there is no international legal limitation upon
their cornpetence in respect of the territory and that their inter-
national obligations, arising fromthe status of the territory, are
to be determined accordingly."
That's the end of the quote, of the frank and explicit contention made
in 1950. It was the "considered view" of the Government of the Union
that this resuit follows.
In the 1962 argument, Mr. President and Mernbers of the Court,
Respondent makes no statements of that explicit nature; al1of Res-
pondent's contentions, and this in particular, are submitted as con-
tentions forthe purposes of argument onIy, submissions arguendo; there
is no "considered view" presented frankly to the Court at this stage.
But the import of Kespondent's argument, without regard to the
string ~hlch is attached to it, the import of Respondent's argument
seems to be that the only sense in which any obligations may have
survivecl-and, as1 Say, thisisonly contended arguendo-that the on1
sense in which any obligations may have survived is on a basis whic g
involves no internationalobligations to report and account for itself,
while at the 'same time retaining dl of its rights of possession and
administration. This is precisely what the Court said in its Advisory
Opinion could not be justified. Yet, instead of answering the Court's
comment, Kespondent merely takes a position which makes a mockery
of it.
It remains only to add that Respondent's theory of partial lapse, the
theory submitted arguendo, wholly ignores universally accepted principles
governing fiduciary responsibilities. The law of no civilized nation with
which Applicants are familiar accepts as a consequence of the dis- ARGUMENT OF MR. GROSS 323
appearance of dissolution of a supervisory or accounting authority that
tbe property ends up i.n the pocket of the trustee.
The doctrine of "unjust enrichment" or, in French, "enrichissement
sans cause", is a gener2.1principle of Iaw recognized by civilized nations.
It is prevalent, of cour.se, in the civil Iaw and the common law.In the
United Kingdom and i~ithe United States it receives frequent expression
in the application of the rules of "money had and received", "quasi-
contract", "constructi~re trust" and the like.
The principle of unjust enrichment was applied in an arbitral proceed-
ing, notably in "The Lena GoldfieZdsArbitration in 1930" which is cited
in the Annual Diges 1t,29-193 0ase No. x and 258, cited by Lord
RlcNair in the 1957British Year Book of InternationalLazv at page IO.
The Lena Gold$eZdsArl~itration proceeding is discussed at length in the
article which 1 have j-1st quoted, and which is entitled "The General
Principles of Law Kecognized by Civilized Nations". The arbitrators in
Lena Goldjeld applied .grticle 38, paragraph r (c)of the Statute of the
Permanent Court of IilternationalJustice as a basis for holding that
the doctrine of "iinjust enrichment" or "enrichissement sans caase" is
a "general principle of law recognized by civilized nations".
Mr. President and liIs?mbersof the Court, in the coursof the French
translation, if 1 undi:rstood correctly, reference was made to the
"1egisIation" of civilized States in connection with the principle. That ,
of course, is undoubtedy true, but 1would point out that, in my sense
of the use of the word i:he "law" of civilized StateIof course included
"judicial" deusions as well as legislation.
The cureof this principle of "unjust enrichment"("enrichissement sans
cause"), especiallyas [~pplied to fidzrciary undertakings, received its
full affirmation, it scerns tme, in the Court's holding in 1950 in the
conclusion to which 1 have addressed myself. The use of the term
"justified" in a legal opinion, as1 have said earlier in my statement,
must undoubtedly refei: to legal as well as moral concept.
It remains now onljr to deal with Respondent's Third and Fourth
Objections. There is 1ir:tlethat needs to be added by way of detailed
discussion tothe considerations we have set forth at page450-74 (1) of
Our written Observations,
Coiinsel for Kespond1:nt have not, so far as we have observed, raised
any points of substano: which are not covered in the Observations.
Mr.van Muller, speak-ingfor the Respondcnt, correctly summarized the
AppIicants' position in the Verbatim, at page 203, sap~a,when he said,
and 1quote, that it was our position, and it is:
"... that the Members of the League tvere intended to have indi-
vidually a legal interest in the observance by the Mandatory of the
conditions imposed. in the Mandate.. .".
That indeed is Our contention.
However, it does seeni that learned Counselbegged the question when,
ai the same page of 1:he Verbatim, he attributed to Applicants the
contention:
"..that is so everi in cases where the breach of these obligations
by the hlandatory .3idnot affect the material interests of individual
League Blembers, cither directly or through their nationals ...".324 SOUTH WEST AFkIGA
Our actual contention, Mr. President, as 1 think appears from the
Observatioils, is that the test of "material interest" is irrelevant, but
that in any event we insist upon a more realistic interpretation of "ma-
terial interest" than does Respondent. ive feel that we qualify under
both or either. Respondent's narrower conception predates the Covenant
of the League. It reflects a perspective which was rejected in 1920.
It is surprising tohear it restated in1962.
Moreover, much of Respondent's argument involves an effort to find
a definition of "dispute" which means something other than "dispute".
Respondent and Applicants both cite the Mlrvrommatis case. We cite it
because of its clear definition of "dispute", emphaçizing as it does thata
dispute "may be of any nature", so long as it relates to the "interpreta-
tion or the application of the provisions of the Mandate". Respondent
nowhere denies, nor can it deny, that this is the subject-matter of the
dispute in the cases before the Court.
Respondent appears to rely onïîlavrommatis as supporting the propo-
sition that a dispute must be of a "material nature", in order to be judi-
cially cognizable by thk Court under this article.Ifthis were to be accept-
ed, there would be no method of compelling-as distinguished from ex-
horting-the Mandatory to discharge its responsibilities under the
Mandate.
As we note in our Memorials, at page 93 (1), Respondent's Counsel in
the 1950 proceedings canceded that in their capacity as hIembers of the
League :
"... third States were competent to uphold the rights of the inhabi-
tants of mandated territories or to clairn rights for themselves in
those territories".
That is atpage zgo of the volume of the Pleadings.
Respondent's contention in this respect is but one more method of
evading the clear force and rneaning of the Advisory Opinion. It nuilifies
the clear intent of the Court in upholding the compromissory clause, in
the light of Article80, paragraph I, of the Charter. That paragraph, as
the Court said, is intended to preserve the rights of the inhabitants
of the temtories "in al1 respects". Respondent never lacks ingenuity
in its search for detours around the "natural and normal" meaning of
words in the Advisory Opinion.
Counsel stresses the fact that the League Covenant makes no explicit
mention of judicial supervision over the Mandate. That is tnie, but he
draws the conclusion that therefore it is, in his words, "unlikely" that
"Article 7 of the Mandate was intended to establish a form of judicial
supervision". (Verbatim of IO Oct.)
But, as we attempt to show, at pages 463-469 (1) of Our Observations,
judicid and scholarly authority combine to refute this inference.
Mr. President, we submit that the restrictive, artificial construction
given by Respondent ta the words "any dis$uk whafever" which appear
in Article 7 again involves the application by Respondent of a double
standard of logic which is difficultta comprehend.
When it suits Respondent's purpose-as in the case of the phrase "an-
other Member of the League" in Article 7-Respondent contends that
words should be given their natural and normal meaning. What Respon-
dent really means is that they should be given a literal signification ARGUMENT OF MR. GROSS 325
regardless of the resuit which might deprive the instrument of effect-
iveness.
Nevertheless, when it cames to interpreting the phrase "any disPute
whtever" in the same .article, Respondent forsakes its principle of giving
words their literal meaning. Indeed, Respondent in this case does not
even accord the wordc their "normal and natural meaning". Instead of
meaning "any dispute .uhatever" the phrase, Respondent submits, means
any "dispute involvin[; a material interest", and Respondent admits to
the Court that the noti.on of "material interestis not capable of precise
definition. May 1 adopt Respondent '3,or borrow Respondent 's, style of
presentation, skilfula:;it is? It would in this case then have been the
words of the language of the authors, if they had intended to reach the
result contended for by Respondent, that instead of "any dispute what-
ever", their words woiild have been "my dispute involving a material
interest of a third State, as that material interest may be defined from
time to time by the Rl:spondent".
However, Respondent leaves until last the most extraordinary con-
tention of all R.espontlent argues that it is not correct to say that this
dispute "cannot be settled by negotiation".
And how does Reçpondent suggest that the dispute can be settled by
negotiation and that i:heCourt should accordingly refuse to hear and
adjudicate the merits of the dispute?
Respondent bases this contention on the ground th& the Applicants
have, in effect, not ri:ally negotiated in good faith; that they have,
through the agency of the United Nations, been taking a peremptory,
arbitrary, inflexible ~losition, thereby thwarting genuine efforts to
settle the dispute by negotiation. That, as we understand it, is the essence
of Respondent's conteiition.
And what is the Applicants' peremptory, inflexible position? Tt lies
in its insistence that Respondent comply with this Court's Advisory
Opinion! One might understand the argument if itwere turned the other
way around. Ifthe Applicants, or the agency through which the Appli-
cants deal-that is, the United Nations-were insisting that the Respon-
dent take action incol;..siste~wtith an Advisory Opinion, there might be
some plausibility in Ri:spondentJs argument in this respect.
Respondent shows, by the very contentions it makes before this
Court, why the Generzrl Assembly of the United Nations, after twelve
years of frustrated effo,:t to induce Respondent to comply with its judi-
cially established obliga.tionç,found,by Resolution of December 18, 1960,
that the dispute-and 1 quote from the language of the United Nations
Assembly's resolution--"cannot be settled by negotiation". Lest there
be any possible doubt concerning the fact, 1think it may be fair to Say,
Mr. President and Members of the Court, thatthe deadlock is now being
enacted before the eyes of the Court, in thearne tems and withcontinued
adherence to the same tiiscredited position which Respondent manifested
in the proceedings of 11250and has manifested ever since.
If it please the Court, I shall now summarize the conclusions srhich,
we submit, are justifie13by the considerations ~vhichhave been placed
before the Court in our oral statements:
I. Respondent haslaid no adequate basis for reopening, reconsideration
or revision of the Advisory Opinion of 1950.
2. The Court's ABvii,ory Opinion of 1950 is valid and sound and the326 SOUTH WEST AFRICA
principles and holdings embodied therein are relevant to, and should be
applied in, the cases at bar.
3. Respondent's contentions with respect to the merits of the issues
at bar are not sound, are not valid; they are iconflictwith the rationale
and holdings of the Advisory Opinion of July II,1950, and, accordingly,
should be rejectedby this honourable Court.
Mr. President, I now have the honour to read to the Court the Sub-
mission of the Governments of Ethiopia and Liberia in these proceedings.
The Submission is as follows :
MAY IT PLEASE THE COURT to dismiss the Preliminary Objections
raised by the Government of the Republic of South Africa in the South
West Africa cases, and to adjudge and declare that the Court has juris-
diction to hear and adjudicate the questions of law andfact raised in the
A$plications and Mernorials of the Governments of Ethiopia and Liberia
in these cases.
Respectfully submitted.
Thank you, Mr. President and Members of the Court, for your cour-
teous and attentive consideration.
Le PRÉSIDENT:Deux Rlembres de la Cour, M. le Président Basdevant
et sir Percy Spender, désirent poser des questions aux Parties et j'in-
vite le Greffier à donner lecture de la question poséepar M. le Président
Basdevant.
Le GREFFIER :ans ses conclusions soumises à la Cour le II octobre
1962 ,e Gouvernement de la République sud-africaine «conclut à ce que
les Gouvernements de 1'Ethiopie et du Libéria n'ont pas de locus standi
dans la présente procédure contentieuse et à ce. que la Cour n'a pas
compétence pour connaître des questions JIqui lui ontété sopmiçes par
les requêtes des demandeurs, cela notamment parce que I'Ethiopie et
le Libéria ne sont pas membres de la Société desNations (ainsi que
l'article7 du Mandat pour le Sud-Ouest africain l'exige pour qu'il y ait
locus standi 1).
L'expression locus standi ici employée ne se trouve ni dans le
Statut ni dans le Mandat. L'agent du Gouvernement de la République
sud-africaine est prié d'expliquer quel est le sens et quelle est la portée de
cette expression.
L'attention de l'agent des demandeurs est également attirée sur
l'emploi qu'ila fait decette expression à la fin de l'audience 16octobre.
Le PRÉSIDENT: Je donne la parole à sirPerey Spender.
Sir Percy SPENDER:Mr. President, there are some matters to which 1
would be glad if the Parties would direct specific attention.
The jurisdiction of the Court is sought to be founded upon a treaty
or convention within the meaning of Article 37 of the Statute of this
Court, by virtue of which treaty or convention a Mandate was conferred
upon and accepted by the Respondent upon the terms or provisions set
outin Annex B to both the Preliminary Objections and the Observations.
Annex B recites that the Principal Allied and Associated Powers had
agreed, in accordance with Article 22 of the Covenant, that a Mandate
should be conferred upon the Respondent and had proposed that it
should be formulated in the terms which followed. It further recited that ARGUMENT OF MR. GROSS 327
the Respondent had ~r~dertaken to exercise the Mandate on behalf of the
League of Xations in accordance with the provisions set out thereiinder.
Annex B is a copy of a "Declaration" of the Council of the League
which purports to co~ifirm the Nandate in accordance with the said
terms or provisio~is arid to define the degree of authority, control, or
administration pursuailt to Article 22 (8) of the Covenant, and bears
date the 17th Decembcr 1920. The Mandate presumably commenced to
operate asfrom that day.
I would appreciate j.if the Parties to these proceedings would give
attention to the folloiving questions and afford their answers in as
summary and as preci~e a form as possible:
The firstquestionis: IIad the terms or provisions of the Mandate as they
appear in that Declaration, and the designation of the Respondent as
Mandatory, already been agreed to between the Principal Ailied and
Associated Powers and His Britannic Majesty onbehdf of the Respondent
prior to any action taken thereon by the Council of the League, subject
however only to the approval by the Council of these terms or provisions
to theextent it was retluired to define the degree of authority, control,
or administration to be exercised by the Mandatory under Article 22 (8)
of the Covenant, and to satisfy itself that these provisions and terms
were not inconsistent with the provisions of Article 22 of the Covenant?
If so, in what document or documents is such agree-ent recorded?
Question 2: Did the Council of the League, in relation to the creation
of the Mandate, have under the Covenant or otherwise any power or
authority
(a) to determine the terms and provisions of any mandate other than
those which definell the degree of authority, control or administra-
tion to be exercisetby the mandatory and to ensure that the terms
and provisions weri:not inconsistent with the provisions of Article22
of the Covenant?
or (b)did it have any power or authority to designate a mandatory
or confer a manda1.e on any Power?
And did it ever puqiort to exercise any such power or authority in
relation to the Mandait:?
Qzlestio~3: Does any party to these proceedings claim that the Decla-
ration by the Council (Annex B) isin itselfa treaty or convention?
Question4: If this Declaration was not in itself a treaty or convention,
what were the constituent elements ~vhichcomprised the treaty or con-
vention; inparticular, ~vhatother agreements, if any, or what other acts
on the part of any Stat~.or States estabiished the treaty or convention in
relation to theMandate on the terms or provisions set out in the Decla-
ration?
Mr. President, in the: light of such answers as may be given to the
above questions, 1 ask xnswers to these final questions:
A. Who in rgzo were the parties to any treaty or convention by virtue
of which the Mandate was conferred upon the Respondent upon the
terms or provisions set out in the DecIaration?
B. If States, Rlernbei.~of the League, were parties to such treaty or
convention :328 SOUTH WEST AFRICA
(1).as the treaty or convention registered under the provisians
of Artlcle 18 of the Covenant and the machinery for registration
establisliedby the Leqpe? If so, by whom was it registered and to
whom was the certificate of registration issued?
(2)If not registered, what significance, if any, is to be attached
to the fact of non-registration? .
C. Finally, would the Agent for the Applicants be good enough to
state who, atthe date of the Application in these proceedings, were the
parties to the treaty or convention?
Thank you, Sir.
Le PR~SIDENTM : M. les agents des Parties trouveront le texte de
ces questions dans le compte rendu de l'audience de ce jour. Il est
entendu qu'ils n'ontpas àdonner Ieur réponseimmédiatement. Ils pour-
ront le faire au cours de leur répliqueet dupliqueen toutcas avant la
cl6ture de la procédure orale.
Maintenant je me tourne vers M.l'agent de la Républiquesud-africaine
pour lui demander quand il pourra commencer la répliqueorale.
Dr. VERLORE VAN THEMAAT i:r.President and Honourable Members
of the Court, we would be able to reply to Applicants' contentions, his
OralStatement, on Friday, but these questions involve someresearch into
history. We do not know to what extent; these are new matters brought
before us ancit is difficult for uSayohow much time we need in order
to give a satkfactory reply. We willbe able to Sayon Friday, if the Court
pleases, but then on Fridaywe may ask the Court for some further time
in order to reply to these questions.
Le PRÉSIDENT D:ans ces conditions on peut admettre provisoirement
que la prochaine audience aura lieu le vendredi à IO heures 30. Si
M.l'agent se trouve dans l'impossibilitéde répondre surtout 2 la ques-
tion poséepar sir Percy Spender, ils'adresseraà la Courpour demander
un délaisupplémentaire. REPLY OF MR. DE VILLIERS
\
7. RE;PLY OF Mr. DE VILLIERS
(COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA)
AT THE PUBLIC HEARINGS OF 19 AND 22 OCTOBER 1962
[Publi haring of rg October 1962, monzing]
Mr. President, Iionourable Members of the Court:
In replicating to the Applicants' Oral staternent,1 am sure it is not
expected of me to deal with each and every one of the points that have
been raised in the couise of a two-and-a-half day statement, and 1do
not propose to do so.I do not think it would serve any useful purpose.
In many respects our ;mswers to what has now been stated in the oral
statements on behalf of the Applicants are fully on record, either in
the Preliminary Objections or in the verbatim record of our Oral state-
ment, or in both, and itwould really be unnecessary, possibly even
odious, to have further repetition in that regard.1 will gladly leave the
evaluation of those arguments and counter-arguments to the Court. In
some other respects also there are arguments with which 1 will not deal,
and where specific ans.wers might not be found on the record; 1 am
thinking, for instance, :Ur. President, of such flightç of faasywe had,
in the suggestion that where a matter is of crucial importance it ought
not first to be dealt with at length at page 345 (1) of Preliminary
Objections,-and if iti;,that there must be something sinister attached
to it ; and thaso despiie the fact that the matter is properly introduced
at page 214 of the PreEminary Objections, that that is followed upby a
chapteron history up to page 214, and that there then is adevelopment
of an argument which serves inter dia as a foundation for a proper
appreciation of the sipificance and the implications of the matters
dealt with at pages 34:;and 346. Really, Mr. President, when we have
suggestions of that kind, my attitude is that they carry their own
answers within themselves, and that it would be an imposition on the
time of the Court to dcal with them. So 1 will leave also those matters
aside.
But there are certain questions that do require some attentioby way
of replication.They fa11in different categories. The first large division
that occurs is as between matters that are relevant to the issues of
jurisdiction and thoçe that are irrelevant. Again, Mr. President, with
regard tothose that are irrelevanI,donot propose to Saymuch; 1am sure
that is not expected of me; but 1 would nevertheless like to Say
something.
There has been a very obvious attempt ai the creation of atmosphere
by reference to matters of a tendentious, political and emotional nature.
There has been a reading at very gieat length from reports of various
poIitical committees and bodies containing critical comment, and often
scandalous comment, about certain aspects of administration of the
Mandated territory. That, Mr, President, we found regrettable in itself.
But it was the more so in the circumstances of this case, where we are
dealing with Preliminary Ob jectionç to jurisdiction, where those are330 SOUTH WEST AFRICA
matters pertaining to the merits in regard to which the issue is whether
the Court has jurisdiction, and where perforce, under the circumstances,
we have been compelled by reasons of relevancy and propriety to
refrain from answcring those allegations as to their rnents as we have
stated very clearly on the Pleadings before the Court. In fact, 1 cannot
see what other course we could properly have adopted. But that did
not restrain the Applicants. On the contrary, itseems that their attitude
was that the victim was now securely bound and gagged, and that it
could be pilloried with complete abandon.
That, Mr. President, followed on a number of statements-perhaps 1
should Say misstatements-regarding the historical development of this
question. Al1 those misstatements had already been dealt with by us
very fuliy and very painstakingly in Chapter II A of our Prelirninary
Objections, where we gave chapter and verse for corrections to those
rnisstatements. But those corrections-we find in the oral statements
presented-are simply ignored, as if they do not exist; and the original
misstatements are again presented as iftheÿ were gospel.
Al1this, Mr. President, appears to have been advanced as a basis and
in support of a statement which we find at page 262, supra, of the
Verbatim' record, to the effect that "...efforts to negotiate an end
to the dispute ...are now rebuffed by denial of the jurisdiction of this
high Court to hear and adjudicate the merits of the dispute". In other
words, Mr. President, the Court's displeasure isinvited at the fact that
we have had the ternerity to raise any objections to jurisdiction.
1 must Say that 1 am not used to thistype of thing in a court of law,
and the least I Say about it, probably, the better. 1 would merely like
to Say this, very briefly.As appears from the record, the Respondent's
representatives have often had occasion to point out that criticisms of
Mandatory administration have resulted from wrong, and often from
false, factual information. Experience has shown that where observers
have taken the trouble to corne and see for themselves they have almost
invariably found that the Mandatory government's version of the facts
ha proved to be the correct one, and that the version of its political
accusers has often proved to be fantastic to the point of being ludicrous.
And, hlr. President, under those circurnstances, 1 know that itwas a
matter of almost temptation to the Respondent Government to forgo
objections to jurisdiction and to accept the apportunity of having the
facts investigated and recorded by an internationalcourt of justice.But
then, Mr. President, it will immediately be realized what major difficulties
attacli to that line of thought, particularly in tliis respect: that the case
as presented on the rnerits would require this Court not merely to make
an investigation into fact; it would also require this Court to pass
judgment, as a court of law, on the soundness or otherwise of policies
which are applied to those facts. That would be the implications of
adjudication on the merits in this case: passing judgment on po!icies
which are in many respects the subject of red-hot controversy, emot~onal
and political, in the international political arena. And, Mr. President,
xvhen under those circumstances we ask the Court to forgo juridiction
on grounds which we submit to be sound, then we do not think that
we are thereby doing a disservice either to this erninent Court of law
or to the advancement of the rule of law 'in international society.
1 think 1 have said enough on that subject. REPLY OF MR. DE VILLIERS 33I
Mr. President, it is zlrnostwith a sense of relief that1 turn now to
matters which could be considered more relevant to the jurisdictional
issues before the Court, The first one in that regard is the manner in
which the Applicants have sought to represent certain basic aspects of
our case. For that purpose, I shodd like to invite the Court's attention
to the Verbatim record at page 261, supra, very near to the beginning
of the oral statement on behalf of the Applicants. There, my learned
friend, Mr. Gross, put the matter as follows:
"As we understand it, the fundamental and, indeed, the sole,
basis forRespondent's contention that the Court should reconsider
and revise the 1950 Adviçory Opinion is that, again in Respondent's
words, 'the question now before the Court is, although the çame in
iorm, very differe~it in substance now because of the presentation
of new facts ...'."
We find a statement .rery much to the same effect at page 283, s~flra,
of the Verbatim, rg October:
"It appears that Respondent's entire justification for asking this
Court to reconsidi:r and revise the 1950 Advisory Opinion rests
upon the contention that certain ço-called 'new facts' of 'crucial
importance'-1 quote-were not known to the Court in 1950 and
that, if they hadbten-again 1quote-the Court 'could not possibly
have arrived at' its conclusions."
And we find sometliiiig simiIar again at page285,supra:
"It is therefore entirely on the foundation of this contention that
Respondent reque~ts the Court to reconsider and rever se..."
On the buis of that, Mr. President, if1may revert to page 262, sztpra,
of that record, the Applicants' learned Agent went so far as to Say:
"Under these cii:cumstances it would, perhaps, be sufficient for
Applicants to coniine our argument to a demonstration that the
facts which Respmdent has characterized as both 'new' and
'crucial' are, indee?, neither."
Now, Mr. President, it should hardIy be necessary for me to emphasize
thaf that is a complete inisrepresentationof the case which1 did advance
to the Court in this parl.icu1a.rrespec1;can hardly imagine that 1 could
have expressed myself so badly as to be so misunderstood. 1 will, in
answering this represeni.ation, also use the phrase "new facts", although,
as I have explained before, I am not suggesting that they are new in
the sense of first arisinj; aft1950 or that they were not available for
use in 1950; but 1 willuse that as an expression which rnay be con-
venient in the circumst:ülces-the Court knows what we mean thereby.
We have from the start .jubmitted two propositions, and,1 think, clearly.
We submitted firstly tliat a Court would never refuse to reconsider a
previous Advisory Opiriion, except of course where the request should
be entirely frivolous or vexatious, and secondly, that it would not
hesitate to depart frorri a previous Advisory Opinion if good reasons
should be shown therefor. That we did in the Preliminary Objections,
at pages 214 and 215 (1). We put it quite clearly there, and again in the
Verbatim record of our Oral statement by my learned friend, Dr. ver-
Loren van Themaat, ;~t pages 21 and 22, sztpva.We advanced the332 SOUTH WEST AFRICA
argument in this form; we stated at page 215 (1) of the Preliminary
Objections, that the good reason on which we would rely for a departure
from the Opinion would be found to rest largely on features of the1950
proceedings, such as :
"...the lack of presentation, or of adequate presentation, to the
Court of material information of vital importance, factual and
otherwise".
Not only a lack of presentation of certain facts, aHo a lofkadequate
presentation, andnot of facts only, but of matenal information, factual
and otherwise. Indeed I used a similar description in thOral statement
to be found in the Verbatim at page 33, szkpra.And in the develop
ment of the argument, hlr. President, 1 emphasized repeatedly, and
particularly in regard to my argument on. Article 7 of the Nandate,
the importance of new arguments, as distinct from new facts, which
have now been fully presented to the Court, and which were not can-
vassed at al1in 1950 T.hat is to be found in the Preliminary Objections,
at pages 368 and 373 (11-1 am not going to read from it now-and again
in the Verbatim record of my Oral statement at pages 184-186, supra.
1 emphasized there, for instance, that in 1950 there was no sugges-
tionduring the argument of a "descriptive meaning" that could be
attached to the phrase, "another Member of the League of NationsJJ
in Article 7, and that thereforeitwTasimpossible for Dr. Steyn to deal
with that. There was no suggestion of a "cary-over" which might
affect the meaning or effect of that expression, anDr. Steyn could not
deal with that. There was no suggestion of a "successionJJ relative to
Article 7 in the arguments in 1950, so it was impossible for Dr. Steyn
to canvass and deal with that question. 1 emphasized the absence in
1950 of the full analysis that is now before the Court of the meaning
and the implications of the expression, "Member of the League of
Nations" wherever it occurs, not only in our Mandate, but also in the
other Nandate instruments and throughout the Covenant of the League.
And, on top of itall, Mr. President, if there should still have been any
misunderstanding, 1 made a very express statement on this subject on
the 5th October, to be found in the Verbatim on page 133. s@ra. This
was at the conclusion of the argument relative to the suggested SUC-
cession concerning Article 6. 1stated there:
"1 have in this regard stressed the importance of the facts which
have now been placed before the Court, and which were not before
the Court in1950. .. Where 1 have stressed thatI must not be taken
to suggest that, had it not been for new facts or new information,
it would not have been competent for this Court to depart from a
conclusion earlier arrived at in an advisory opinion. It WOU*
certainly have been competent for the Court to do so,and 1 submit
that if the Court was satisfied, that justice required it to do that,
it would not hesitate even in the absence of any new information.
But 1 subrnit that in this case it would be much easier for the
Court to corne to its own conclusion because of the fact that there
is this new information which in substance makes the task of
applying the law to the facts in this regard a different one from
urhat it was in1950." REPLY OF NR. DE VILLIERS 333
That has always been our attitude, and it stdl is, hlr. President, with
the greatest respect. R'e submit that, even if there had been no new fact
at ail, then on a recorsiderationof the matter on its merit, the Court,
with respect, will con-ie to the conclusion that we contend for. But
we do contend, and 1 rnaintain the contention with even more emphasis
than before, that there are these vital new facts, thisvital information-
factual and otherwise--but particularly relating to factud information
which waç not placed before the Court and the significance of which
could therefore not bi: dealt with in argument, or considered by the
Court in its deliberalions-which considerations, in my submission,
make the task of app1:ring the law to the facts substantially a different
one from what it was il1 1950.
The Applicants, as a result of this wrong conception of our argument-
this wrong presentation of the basic aspects of Our argument-have
limited themselves to a very narrow basis of replying to that argument.
That does not hurt me, Mr. President; my argument stands on record
in regard to both of itt, aspects in its full perspective, that is on the one
hand, relative to these new facts and, on the other hand, based on full
reasoning on merit in :mpport of the conclusions for which we contend.
But, on the contrary nciw,we find byway of contrat that the Applicants'
Oral statement lias, in effect, been lirnited to an attempt to knock out
these new facts, asmy learned friend called them, an atternpt which in
my submission, as 1 shall endeavour to show, failed lamentably. The
Applicants' argument is confined to that, and for the rest, my learned
friend refrained almoiit entirely from even attempting to meet any
of the arguments on the merits of the questions before the Court.
My learned friend, Mr. Gross, didpromise, at thestart of hisargument,
that he would endeavo-lr to show, and 1 quote his words in the Verbatim
of 15 October, at pag- 263,supva, "that Respondent's arguments de
novo lack ment and shl~uldbe rejected". Istress, he would endeavour to
show that Respondent.'~ arguments de novo lack merit and should be
rejected. But that resolution, Mr. President, seems to have wavered the
nearer it came to the .ictual event. Because we find on ïj October, at
page 283, sufiruthat rny learned friend set out the three propositions
which he would endeilvour to establish, and the third one reads as
follows: "Respondent's. de novo argument is in conflict with the Advi-
sory Opinion, is not somd, and should be rejected." So the further ele-
ment introduced is: "j.n conflict withthe Opinion"; but still we find:
"is not sound, and should be rejected". And then, Mr. President, when
it came totheactual event on 16October where this third lieading was to
be dealt with, what do we find at page 310, supra? We find it now put in
thisform:
"1 turn now to the third major proposition which relates to the
Respondent's de novo argument, and which submits that the
Respondent's denovo argument, on the rnerits, is in conflict with
the Advisory Opiriion and should be rejected."
No further reference to being unsound, to lacking merit, but purely
that it is in confliwith the Advisory Opinion and should be rejected.
Mr. President,this is ncit a mere rnistake in recording, and it is not a mere
slipof the tongue; because if we analyze under that heading what was
said in support of this third proposition, we find that the whole portlon
of the argument was devoted almost entirely to a comparison of our334 SOUTH WEST AFRICA
argument with what was found or held in the Opinion, and to point out
points of conflictin that regard, imaginary and real. And it ended up
on this note, towards the end of that exposition under the third heading
on 17 October, at page 319, su+ra:
"We do not bear the burden of sustaining the validity of the
Opinion of the International Court of Justice."
Not a single arpnient addressed to the merits of our contention,
attempting to meet them in any wap. After al1 the drum and fife at
thestart, Mr. President, really one could hardly imagine suca complete
anticlimax. Certainly imy experience 1have never come across anything
of the kind.
Mr. Fresident, 1 turn nextto the Applicants' argument concerning the
so-called "new facts". It wiil bmy endeavour to show that even on the
artificially narrow bais which the Applicants chose for attempting to
meet our case, they have failed completely to break down the important
material on which we rely, even the important "new facts", as they so
narrowly conceived them and de& with them. My contention will be
that, on the contrary, after this abortive onslaught of the Applicants
upon those "new facts", the material stands confirmed with even more
vigour and significance than before.
The Court will recall that we listed four factors in the Preliminary
Objections, at pages 345-346 (1)) and that that listing served aa basis
for dealingwith the matter by the Applicants' Agent. The fourth factor
is really a group referring to practiceof States, and it was amplified
later in the verbal statementon behalf of the Respondent on 5 October,
by what one might almost cal1 a fifth group, also under the heading of
"Practice of States". It is an analysis of the attitudes of Members of
the United Nations over the years 1947 to 1949 specifically regarding
the South West Africa question. That, then, is the basic list.
Now, as far asthe first factor page 345 (1)of the Preliminary Objec-
tions is concerned-the express reservation at San Francisco, on behalf of
Respondent-the Court wilI recall that in my Oral statement 1virtuaii
abandoned that in SI far asits significance asa "new factJJwas concernez
My learned friend, in reply, had a good deaof fun on the question why
it should suddenly now cease to be of importance. The answer, of course,
is simple. The point never ceased to be important as a factor in our
argument on the ment-in other words, as a factor militating against
any tacit understanding on the part of the United Nations founders
that there would be a transfer of powers of supervision frorn the League
to the United Nations in regard to unconverted Mandates. In that sense,
the matter still remained of importance, and1 dealt with it and empha-
sizeditin that form in the Verbatim at page 78, szcpïa.The Court wili
find the matter dealt with there, 1 need not read it. It was only as
regards the newness of the point-the difference between what was
before the Court in 1950 and what isbefore the Court now-it is only
in that regard that 1,as Counsel, did not feel that Icould impress the
Court with the importance of that difference; because what was before
the Court in 1950 already implicitly contained what was explicit in
the further portion quotedin the footnote at page238 (1) of the Prelimi-
nary Objections.
That is the answer, of course, to al1 this play on the question why
the matter had ceased to be important. I do not begrudge my learned IiEPLY OF MR. DE VILLIERS
335
friend the bit of fun b: had in this regard-he certainly needed some
reward for al1 his pains-and 1 will make him a present of that one.
But then, he must not take it amiss when 1Say that this was the very
last one of the so-calleil "casualtiesin the campaign for revision", if 1
may borrow his phrase. In respect of al1the other "new facts" he had no
success whatsoever, as 1 shaI1 endeavour to demonstrate.
He did claim success in regard to the second factor, but that is com-
pletely illusory-the second factor being, and 1read from OurPreliminary
Objections at page 345 (1) :
"The rejection by the Preparatory Commission of its Executive
Committee's proposal for a Temporary Trusteeship Committee,
without substitution of anything regarding possible transfer to, or
assumption by, the United Nations of any 'functions under the
Mandates System'."
Mr. President, we hacl never advanced this particular subject as being
important purely in so far as a proposai for a Temporary Trusteeship
Committee was concerned, and the rejection of that propoçal by the Pre-
paratory Commission. The importance lay in the adjunct tothat proposal,
the adjunct namely, that thcre was to be something express about
a possible transfer of fiinctions regarding ~Mawdate s that there was to
be an investigation by this Committee of possibilities in that regard.
so that here there was a proposa1 for express provision on that point;
That has always been the brunt of this point which we advanced, which
we said the Court was riot made aware of; and that, in the totality of
factors bearing on the question of intent, is an important factor. But
that was not how the matter waç presented to the Court by my learned
friend when he dealt wilh it inhis argument. But before Icome to that,
may 1 just, in support of what 1 have stated, refer the Court to the
passages where we dealt with this matter, and refer to the way in whichit
was put there. First, in ?he Preliminary Objections at pages 327-328 (1).
At page 327, the Court \vilsee under the heading (d) there is a reference
to a portion of the Executive Committee's report which dealt with the
establishment of the Trusteeship system:
"It will be recalIed that arecommendation was made therein for
the establishment clfa Temporary Trusteeship Committee, one of
whose functions would be to 'advise the General Assembly on any
matters that might arise with regard to the transfer to the United
Nations of any func tions and responsibilities hitherto exercised under
the Mandates systein'."
And then we go on ;:OSay that that proposa1 was rejected in the
Preparatory Cornmissio~i,
I<
... and no other proposa1 regarding investigation of, or machinery
for, the possible 'transfer to' or 'assumption by' the United Nations
'of any functions aiid responsibilities hitherto exercised under the
Mandates system', was substituted for the rejected proposal".
That was the brunt of the point. And we find it dealt with as follows
inthe argument at page 32%(1) ofthe Preliminary Objections, about one-
third down the page:336 SOUTH WEST AFRICA
"A specific proposa1 envisagmg investigation and recommen-
dation concerning possible 'transfer' of 'functions ...under the
Mandate system' was rejected and nothing substituted for it."
We find the matter dealt with in the same way in our Oral statement
in the Verbatim. \Ve find at page81, supua, the matter is put with refer-
ence to the proposa1 for a Trusteeship Committee and with the
function to advise the Assembly about this possible transfer. And the
comment in the argument is:
"So here, tben, was a specific, express proposa1 to do something
in regard to the possible transfer to the United Nations of functions
of the League regarding mandates."
That is the way in which the argument is developed there. We find
the same thing at page 82, supra:
"The mere fact that there was such a proposa1 shows that there
was a contemplation that if there was to be a transfer of functions
in this regard it would have to be specially provided for."
And then, particularly significant is the statement at page 102,supra:
"The point on which we rely is that there was in this history of
resolutionXI a specific proposa1 for express provision in regardto
arrangements for a possible transfer of functions, but that that
express proposal could not muster support.. ."
SO,Rlr. President, it is no answer then to that argument to Say that
from Dr. Kerno's staternent the Court knew that there had been a
proposa1 for aTemporary Trusteeship Committee and that that proposal
was not adopted. That is no answer at all. That is quite obvious, and 1
need not labour the point. The way in ~vhich the Applicants' learned
Agent dealt with the matter on 15 October was to omit any reference
to that aspect of the matter, to the aspect of a specific proposa1 for a
possible transfer of functions. He referred to this point as if its complete
significancelay in a proposa1 for a Temporary Trusteeship Committee
and in the rejection of that proposal. We find that at page 289, supra,
of the Verbatim for 15 October, and 1 quote from the fourth paragraph:
"Now this second new fact, Mr.President, concerns the rejectionby
the,Preparatory Commission at London of its Executive Cornmittee's
proposal for a Temporary Tmsteeship Committee",
using virtually the same words as at page 345 (1) of Our Prelirninary
Objections, but stopping short of the crucial portion; and then the
statement continues:
"Respondent comments, at page 345 of the Prelirninary Obi$-:;
tions, that such action, andI quote, 'negativesa tacit intentio....
We never presented that as the action that would negative any inten-
tion.
The claimed successwas therefore no success atall. 1wish to apologize
to the Court for not rnentioning the fact that to that extent the matter
was mentioned inDr. Kerno's argument. 1was not aware of it as Counsel;
certainly the members of my team were; they realized it was not
important for argument. Still, if1 had known 1 would have mentioned REPLY OF MR. DE VILLIERS 337
that fact, but it does not affect the essence or the substance of the
argument in the slightest.
Nr. President, in regard to the last point,1 am reminded that study
of the documentation in 1950 shows that the report of the Preparatory
Commission \vas not put before the Court. The only information the
Court was given regartiing the proposa1 for a Temporary Trusteeship
Cornmittee and the rej~ction thereof, was the bald statement in the late
Dr. Kerno's argument.
1 pass then to Appli.;ants' argument concerning the third of the so-
called new facts, that is the fact regarding the original proposa1 by
China at the last session of the League Assernbly. Here, Mr. President,
my learned friend did riot even ciaim success in the sense that he could
knock this out as a new fact. On the contrary, in the Verbatim record
at page 297, szr$ra, he made the admission that "it is clear that two
of them were not specifically referred to", this being one of the "two
of them" of which he was speaking. But my learned friend did try
everything in his poweI to discredit this argument, this factor, in other
ways. In my ~ubrnissio~~e ,ach one of those attempts failed completely
in its purpose of robbing this factor of its value and its significance, what-
ever value the points raised by him might have had in other respects.
So, for instance, the first two points which my learned friend raised,
were entirely technical. They are to be found in the Verbatim of 15 Oc-
tober at page 291, sup~a.
The first one was th:it this proposa1 was never formally introduced
and voted upon, and that it was thus wrong technically to speak of it
as something that was "withdrawn". Well, hlr. President, 1 make my
learned frienda present of that point also. That is quite correctItwas
never formally introduced, it was never formally withdrawn. 'IVherewe
said "it had to be withdrawn because it could not muster sufficient
support", it would ha1.e been more correct to Say "it could not be
proceeded with and anc.ther one had to be substituted for it". But the
argument remains the same. 1 don't know what success my learned
friendclaims from that point. 1 notice, incidentally, that when I put
the argument in the Oril statement in the Verbatim at page 97, supra,
1 used the expression "it could not be adopted". So it does not seem
that that point raised by the Applicants could affect the value of this
factor as tve rely upon it.
Secondly, at the samt: place, at page291, supra, the second technical
point was that there wa; no citation of a document at page 253 (1) of
ouï- Preliminary Objections where the text of this proposa1 was set
out. Mr. President, that as a statement is quite correct. But how far
it bringsthe Applicants, as a point of substance for the purpose of
discrediting this facto^,,1 don't know. What actually happened in
that regard was this. VSiat we had, and from what we quoted in the
text at page 253 of the Preliminary Objections was adocument in our
files. Itwas an informa1 document, it was a copy of draft minutes
obtained at the last session of the League by our Representative there
and that we still had inour records. But it was not an official document
which we could file with the Court. We made attempts even before the
filing of Our Pre1iminar.y Objections, and again renewed thern at that
stage, toget a forma1 dccument which we could file. Eventually we had
success with the assistance of the Secretariat of the United Nations.
They obtained a pfiotostat for us of the original from the archives of338 SOUTH WEST AFRICA
the League at Geneva, and they forwarded that directly tothe Registrar
of this Court in January of this year. In the meantime the Kegistrar
had made his own enquiries with us and with United Nations Agencies
for purposes of having a document for translation. We were under the
impression that the fonvarding of the document at Our request by the
Secretariat to the Registrar mould comply with our duty of forrnally
filing the document. The Registrar however took the document to have
been forwarded merely for his purposes of translation,and that apparent-
ly explains why the document was not fonvarded to the Applicants as
something that had been formally filed by us. ire didn't realize that;
we only gathered that during the statement by my learned friend in
Court-on 15 October. We rectified the mattcr immediately afterwards,
on the next day, by a forma1 letter under cover of which we submitted
a photostatic copy of the document and the document is now properly
filed. The Registrar on 16 Octoberexplained the rnatter to the Applicants
in a letterof that date. So 1 hope that that position is fully clearediip.
1 don't know why my learned friend raised it in the first instance.
Perhaps it was quite fair to raise the query: but if he hadhad difficulty
about it 1 don't know why it was not raised in the first instance in the
Observations. At that stage the Applicants did not appear to have any
dificulty in this regard, because they accepted-at pages 431-43 21)-
the facl of there having been such a proposal and they had no difficulty
about the text. In fact they said at the bottom of page 431of the Ob-
servatioils: "TIie facts coiicerning the Chinese proposal were before the
Court in 1950"-a statement of coursewhich they could not substantiate,
but nevertheless that was the attitude then adopted. If the rnatter had
been raised then it could have been cleared up much earlier.
1may add that the text as we have it at page253 (1) of the Preliminary
Objections, appears also in a United Nations document which was filed
by the Applicants in support of their Memorials. It was document
AlC.41185, setting out a speech by Dr. Donges in 1951, and that speech
contains a full quotation of the proposa1 as we set it out at page 253 of
the Preliminary Objections. It is referred toin the Memorials at page 93
(1) in a footnote. But of course thereitmay bc said that the source was
secondary-the source was the same as we had for the citation at
page 253 of our Preliminary Objections. In any eirent, theoriginal inow
on record, and 1 dori't know that anything further arises from that
point, except that the technical cornplaint has now shifted to something
else, and that is the so-called discrepancies between the text quoted
at page 253 of our Preliminary Objections and the photostat before the
Court as obtained from Geneva. hlr. President, in fact, ifone looks
closeiy at that photostat one will find that there is no discrepancy.
Corrections were made in ink to this document, which, as we know, was
a draft Minute, and every time my learned friend refers toa discrepancy,
we find that really the discrepancy is removed by the ink note; the ink
note apparently being intended to bc a correction. So, for instance, in
the very first line which reads: "The Assembly, considering that the
Trusteeshjp Council", the correction inserted in ink is "of the U.N.".
That is one of the so-called discrepancies. In the third line there is the
word"transferred" in the original text which is altered in ink to "trans-
formed". The one to which my learned friend drew attention was "after
dissolution of the League" which was not contained in the second para-
graph, but that we find in the photostat is also inserted in ink. So if we ItEPLY OF MR. DE VILLIERS 339
take into account thesi: corrections in ink, we find the two are exactly
the same. 1 don't know what point arises in that regard as far as the
discrediting of our argument relative to this particular matter is con-
cerned.
Those, then, were the firsttwo, or shall we Say three points in regard
to this particuIar matter.
The next point of ati:ack \vas to cal1into question Our statement that
this proposa1 "had to lie withdrawn", or shall we now correctly put it,
could not be proceeded with, and another one had to be substituted for it
"becauseit becameplair,:thal certainO/the$dies would not agreetherstu"
-this last portion of thestatement is drawn into question by my learned
friend; we find that in the Verbatim at page 292, mpra. And, he
said, there was"no citation" atpage 346 (1) of ourPreliminary Objections
for that statement. Of course there was no citation, Mr. President, but
the statement is not uiimotivated; it relates back to the full argument
which we presented to the Court in that respect in the Preliminary Ob-
jections at pages329-332 (I), where we dealt fully with al1the facts of the
matter, with al1 the comparisons that are significant, and where we
pointed out that there is no other inference that could be drawn from
the circumstances but t.his one, namely that the original proposal could
not have mustered tht: unanimous support which was required for a
League resolution.
1do not have to cov3r that ground again; 1did do so in my original
oral statement, on 4 Odober. It willbe found in the Verbatim of thatday
at pages 83-84, sz@ra, where I covered that ground, and 1think 1
covered it fully.
Salient featureç, Mr. President, are these: in the first place, when we
make that statement wl: do not do so as an outside observer who knows
nothing of what took place. South Africa was represented ritthe last
Assernbly of the League, and our representatives know what took place.
\men they Say there were negotiations, they know there were negotia-
tions. But we do not have to rely purely upon what they Say, we can
refer tothe text of the record and the statement by Sir Hartley Shawcross
as cited in OurPreliminary Objections at page 254 (1) where, in seconding
the ultimate proposa1 vilhichbecame the Assembly's resolution, he said
that the proposa1
"had been settled in consultation and agreement by al1 countries
interested in manda.tes, and he thought it could, therefore, be passed
without discussion :ind with complete unanimity".
Surely, Mr. President, from that alone it becomes clear-if wecompare
the resolution as adopted with the original proposal, tentative proposal,
containecl in the originz.1Chinese draft,it becomes clcar that resulting
frorn discussions and cc~nsultations thcre had to be a switch from one
proposa1 to another. If .ne compare the two one finds that the elements
that ivere eventually omitted were the very elements pertaining to a pas-
sible transfer of League functions relating to Mandates, andthe inference
then becomes clear that there must have been opposition io that aspect
of the original proposal.
But we do not have to leave the matter there. We can have regard, as
we do in this argument, tothe various circumstances which pertained to
the different Mandated i:erritories and to the various Mandated Powers.
Frorn that there arises a verystrong probability that those Powers tvould34" SOUTH WEST AFRICA
not al1have assented to a proposition like that contained in the original
Chinese proposal. JVe knorv rvhat those various circurnstances were from
the statements that had already been made at that stage on behalf of
the various Ifandatory Powers. We know, for instance, in the case of the
United Kingdom that it had declared at the United Nations that it waç
willing to place the tei~itories Tanganyika, the Cameroons and Togoland
under the United Nations Trusteeship System, but subject to the nego-
tiation ofsatisfactory terrns. That we find in the staternent as cited in
the Preliminary Objections at pages 246 and 250. Page 246 relates to the
statement at the United Nations, and page 250 to the staternent at the
last session of the League.
In the case of France, its statcrnent relative to the Carneroons and to
Tagoland-its willingness to place those territories under United Kations
trusteeship-was qualified with reference to the approval of the peoples
of the territories. That we find in the Preliminary Objections at pages
246-247(11, and again at page 251. So there were, even in those respects,
contingencies.
We find that in regard' to Palestine, the United Kingdom had '
made itperfectly clear that the future of that temtory was reserved
for the time being, and that nothing definite couldbe stated about plans
for the future, or about intentions. We find in the case of South West
Africa the Union had stated its intention of seeking recognition for
incorporation in the Union. And we find that in the case ofthe former
Japaizese Mandate in the Pacific the Mandatory was not even represented
at the last session of the League. LVe iïnd aIso thaf, in regard to the
Palestine Mandate, therc was eventually a reservation by the represen-
tativc ofEgypt. This reservation is cited in the Preliminary Objections ai
pages 254-25(5 I), and it reads:
"The opinion of my Government is that Palestine has intellec-
tually, economically, and politically rcachedastage where it should
no longer continue under mandate or trusteeship or whatever other
arrangements may be considered.. .It is thc view ofmy Government
that mandates have terminated with the dissolution of the League
of Nations,and that, in so far as Palestine is concemed, there should
be no question of putting that country under trusteeship."
Soit does not seem probable that the representative of Egypt could,
under those circurnstances, have supported the original Chinese proposal.
lire take into account further, Mr. President, the actual statements
made on behalf of Mandatory Powcrs to the organs of the League, to the
League Assembly, al1 of whch avoided any reference whatsoever to .
reporting and accounting after dissolution of the League, and some of
them, as I have dealt with before, very pointedly indicated that there
would be no such reporting and accounting.
So, under al1those circumstances, itbecomes absolutelyclear: tlre only
inference that can be drawn is that the original proposa1 could not be
proceeded with because it would noi have mustered iinanirnous support.
Those arguments arc not dealt tvith by my learned friend-he does not
attempt to meet them at ail. He refers instead to the gratification ex-
pressed by the representative of China, and he says that would not have
been possible if the representative of China had had to beat a retreat
on a point of principle. Now surely, Mr. President, 1 don't know why
anybody should think that he had to beat a retreat on a point of principle REPLY OF MR. DE VILLIERS 34I
when there is a requirement of unanimity for a resolution, and after ne-
gotiation he finds thai. certain aspects of an original proposa1 are not
acceptable to other delegates, and eventually they arrive at an agreed
solution which pleaseri everybody, and which he then proposes-the
representative of ChirLastill being the proposer of the agreed draft
eventually. 1 have never heard that the expression of gratification on an
occasion of that kind cc-uldserve as a bais for the drawing of an inference
in the teeth of such cogent and conclusive evidential material asI have
referred to.
The fifth point, Mr. :i?resident,of attack on our argument in regard to
the history regarding the original Chinese proposal, isthat it seems in-
credible that Dr. Steyn would not have raised the matter, if he had known
about it, and that he must therefore have considered it unimportant.
Now, we al1have the highest respect for Dr. Steyn's competence; but 1
don't know why this Court should be asked to decide the value of any
particular consideratioii with reference to what Dr. Steyn may or may
not have thought of i-!:as Covnsel, if he knew of it. There is no basis
whatsoever on the record for inferring that Dr. Steyn must have known;
that we know that he addressed a cornmittee,Mr.theesadehoc Comrnittee, of
the United Nations ori this subject on g July 1951 ,nd I quote from
page 9 ofthe document A/AC.qg/SR.7 of 17 October 1951 :
"He Pr. Steyn] then referred to the history of the resolution
çubrnitted by the (:hinese delegation to the League, which contained
a specific proposa1 that the League's function of consideration of
reports should pas to the United Nations. When first submittcd,
the Chairman had ruled the resolution technically out of order at
that stage. As a result of subsequent informal discussion of the re-
solution,in which South Africahad indicated that itcould not support
it, it had been redrafted in a considerably different form and the
references to the c.snsideration of reports had been deleted. Events
connected with tf:e consideration of that resolution appeared to
provide a definite negation of the idea that the supervisory powers
were to pass to the United Nations and it would appear that the
League had Ieft th,: question to the declared intentions of the man-
datory powers and to possiblc subsequent agreement by them with
the United Nation:;."
It does not look as if he then regarded this as unimportant, Mr.Presi-
dent .
I conclude, therefortt,Mr. President, in regard to the third of the
so-calIed "new facts", that the Applicants' onslaught in their verbal
statement failed completely ; the technicalities boomeranged and, as a
matter of substance, our argument stands confirmed stronger than ever
before.
the heading of "Praci:ice of States". Were, the Applicants' learnedunder
Agent advanced three s.rguments which are to be found in the Verbatim
at pages 295 and 296, szt#ra.The first and the third of these have
a point in common, relative to Article 80,paragraph 1,ofthe Charter.
1 will, therefore, deal viith them together, after a reference first to the
second, of which I can dispose fairly quickly, The second was to the34z SOUTH WEST AFRICA
effect that, for purposes of construing the Resolution of 18Apnl 1946
of the League of Nations GeneralAssembly:
"...it does not appear how staternents made one or two years later
in the United Nations General Assembly could help overcome the
clear fact of statements made contemporaneously with the League
Resolution of 18 April 1946". (P. IO.)
Now that rather puzzles me, Mr. President, 1 don't know which
contemporaneous statements made in the League Assemblyin April1g46
are intended to be referred to. Does my learned fnend mean the state-
ments which indicated the intentions of the Mandatory Powers as to
the future? Because, if so, there is no conflict whatsoever invoIved.
Those statements intimated as clearly ascould be that there wodd,
in the interim, be no reporting or accounting. Perhaps my leaned friend
has in mind the gratification expreçsed by the Chinese representative.
If so, then that is a rather flimsybasis for suggesting a conflict. He does
not Say anywhere what those contemporaneous statements are that
he refers to. So we pas on to his firstand his third contentions in this
regard.
The firstwas stated at page 295,supra,of the Verbatim and it is put
in this way; 1had better read the wording so as to make sure 1 have
its true significance:
"In the first place, Respondent's contention or conclusion with
regard to the significance of this fourth point ignores the weight
which was given by the Court in its Advisory Opinion to the
significanceofArticle 80 (1)as confirmingthe intent of the authors
of the Charter of the United Nations that there shouldbeacontin-
uance of United Nations supervision over Mandates."
That appears to be the first point, and it goes on to Say:
"This is of course expressly the interpretation of the Court in its
Adviçory Opinion. Respondent, in its argument, does not consider
it even reIevant enough to refer to Article 8(1)in this connection."
The third point we find at page 296, supa
"Thirdly, the contention that the United States policiessupported
Respondent's thesis verges on the ironic."
Then there is a discusçion with reference to the Ieadership taken
by the United States in the formukition, the steering and the adop-
stand it correctly, is that having regard to the action there taken bythe
United States in regard to Article 80 (I),the statement later made in
the debate on Palestine to the effect that the United Nations did not
stand heir to the League responsibilities regarding Mandates, should
be regarded asbeing in conflict with the policy adopted by the United
States relative to ArticI80 (I),and that that conflictshould be resolved
on the basis that the later statement should be regarded as something
said in a highly politically charged debate, and therefore ruled out of
the picture. I do not understand that form of reasoning, Mr. President.
There is a distinction in the first place between the significance which
my learned fnend in his argument attaches to Article 80 (1) of the
Charter, and that apparently attached to it by the Court in 1950. 1will REPLY OF MR. DE VILLIERS 343
deal with the Court's interpretation and use of that Article at a later
stage. Let me refer ficit to the Applicants' Agent's use of that Article.
He regards the Article apparently as resdting in a position that there
should be a continuance of United Nations supervision over Mandates.
Well, perhaps one should paraphrase it to say that there should be a
continuance of supervision over Mandates, and that that should now
be by United Nations agencies instead of League agencies, and that there
should be an obligaticin on the part of Mandatory Powers to submit
thereto. That would really be a proper statement of the proposition.
Of course, Mr. President, Article 80 (1)does not Say anything of the
kind. It is, and it purports to be, nothing more than an interpretation
clause, affording a guide to the interpretation of a certain chapter of
the Charter. It says th.at:
"Except as majr be agreed upon in individual trusteeship agree-
ments, made undcr Articles 77, 79 and 81,placing each territory
under the trusteeship system, and until such agreements have been
concluded, nothin{: in this Chapter shall be construed in or of itself
to alter in any ma.nner the rights whatsoever of any States or any
peopIes or the terrns of existing international instruments to which
Members of the United Nations may respectively be parties."
Mr. President, we have a reference, at pages 269 and 270, supra, to
on these pagesd we hdolethat the DeIegate stated as foilows (andthis, as
1 understood it, was particularly relied upon by the Applicants):.
"The Delegate ior the United States stated that paragraph B. 5,
was intended as :iconservatory or safeguarding clause. He was
willing and desiroi~sthat the minutes of this Committee show that
itisintended to mean that al1rights, whatever they may be, remain
exactIy the same as they exist-that they neither increased nor
diminished by the adoption of this Charter."
Mr. President, in this whoIe explanation those still remain the key
words. It does not appear that the United States made itself a party to
this magic interpretation now attempted to be placed upon the Article
by the Applicants. A~id if we accept that simple prernise, that the
United States Delegate did not conçider that this Article could be
applied outside its apparent scope and object, namely, to serve asa
means and an auxiliary measure for the interpretation of the Charter, if
we accept that basic proposition, then there is no conflict aal1between
the attitude adopted b'rthe United States at that stage-the adoption
of Article 80-and at the later stage to which we refer in our argument
an the practice of States. Then it becames quite unnecessary totry to
explain away what was stated later on the rather unworthy basis of
something said in the heat of a highly politically chargea debate. When
we read thestatement, Mr. President, at page 337 (1) of the Preliminary
Objections, it does not ceemto me there was much heat in thisstatement.
The statement was that "the United Nations does not automatically fa11
heir to the responsibilities 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 Mandates system." Nor, Mr. President, couid we344 SOUTH WEST AFRICA
detect much political heat in the statement by >Ir. Gerig, to which
we have already referredand whjch js to be fonnd in the Verbatim
at page 127, supra, if 1 remernber correctly, in the Trusteeship Com-
mittee dealing with the question of South West Africa. He stated:
"It was said here earlier this afternoon, and 1did not hear any
member object, that while we al1 hope-my delegation as much
as any delegation feels that way-that there will be a trusteeship
agreement for this territory, we do not, in the absence ofa trustee-
ship agreement, have supervisory functions over this territory .
Therefore, I do not think we ought to imply that we do have
supervisory functions to ensure that the Union Government disl
charges its duties under the present Mandate, admitting that it
exists."
1 do not think my learned friend need be so concerned about the
prospect that the United States in 1945 and 1946 had a view of Article
80 (1) which did not extend it beyond its apparent scope and object.
Mr. President, 1 said we are to distinguish between the Court's con-
templation in regard to Article 80, paragraph I,and the interpretation
sought to be placed upon it by our learned friend, on behalf of the
Applicants. That interpretation, which attributes to the Article an
effect upon existing rights as safeguarding or protecting those rights
also against events outside of the adoption of the Charter, that inter-
pretation wouId rnake the effect of the ArticIe run counter to what
it says, and it would run countei to the explanation given by the re-
presentative of the United States, when he said that it was intended
to mean that "al1 rights whatever they may be remain exactly-the same
as they exist-that they are neither increased nor diminished". If,
for instance, Mr. President, there should be a right which would ter-
minate for some cause or other outside of the adoption of the Charter,
for instance a period of time which would bring effluction of the right,
or an agreement inter partes, or something similar; if then, Article 80
should have the effect of nevertheless keeping that right alive, then
Article 80 would not be maintaining rights exactly as they were, exactly
the same as they existed: it would be changing the existing rights. It
would then have the effect that, despite a cause inherent in the right
itself which brings it to an end, this clause nevertheless keeps it aBve.
That would be changing the right, and it would be changing the corre-
sponding obligation pertaining to that right. And, therefore, that inter-
pretation would run counteraltogether towhat any basis of interpretation
of the Article might justify.
hlr. President, my learned friend went so far, if 1 understood him
correctly, to Say that the mere fact that the Court referred four times
to Article 80, made its significance very much more than it would have
been otherwise. I really do not understand that kind of magic, and
that is why 1 said I distinguished between the use which my learned
friendtries to make of the Article and the use which the Court appeared
to have in mind.
The Court, if I understand correctly the Opinion of 1950, had this
in mind. It referred not to the express provisions of Article 80, because
it emphasized in that regard that the clause merely says that nothing
in Chapter XII shall be constnied to affect existingrights orinstruments.
It emphasized that. But the Court went on to refer towhat the Article :REPLY OF MR. DE VILLIERS 345.
could be taken to have presupposed. There was the conception of a
presupposition. The Court apparently had this in mind, that al1 this
trouble to protect the rights against the effect of the adoption of the
have been taken if there had been a contemplation
Chapter would not
that those rights in regard to Mandates would come to an end with the
dissolution of the Leigue. And therefore, that indicated a probable
contemplation firstly tliat Mandates would survive the League. And the
Court went further when it referred to the Article again. On the basis
of that presupposition the Court went on to argue that there was a
probability of afurthei contemplation that if Mandates were preserved,
then supervision over h[andates would be preserved, otherwise the rights
would not be effective. And that isall. The Court referred to nothing
more than what it regarded to be a general consideration of probability :
that is therefore a factor to be weighed in conjunction with a11other
factors,'of probability zmd othenvise, which bear upon the relative intent
of the contracting parties, being in this case the authors of the Charter.
In that sense then, the factor is met by the argument which 1 have
adduced to the Court: the reliance placed by the Court on Article 80,
paragraph I, is met t.y the other evidential material which directly
indicates what the actiial intent in this regard was.
[Publi htsariîzgof 1Ocfober1962, afternoon]
Mr. President, before1continuewith the argument, 1have a correction
to make, with apologies. It appears that thereas yet another rnisunder-
standing about the photostat copies of the original draft Minutes of the
League containing the original Chinese proposal. Ireferred this morning
to corrections in ink. They were, in fact, on the copy before me and we
had assumed that that was the way in which the photostat had been
received from Geneva a.nd that the corrections had been made there by
some officia1for minutjng purposes. It appears now that in fact those
alterationsin ink were na dein this buildinby an officia1for translation
purposes, and that it ison only some of the photostat copies andnot on the
others. It is not on the copy which was submitted to my learned friends
for the Applicants, and that is why they were not aware of it. Of
course that means then that there are slight discrepancies between the
copy that was in Ourpoi;sessionand the copy that we have obtained from
Geneva. My learned fricind himself indicated in his argument, he admit-
ted, that they were completely insignificant, they did not affect the
meaning or the significance of the text. They are probably to be ex-
plained on the basis of c.orrections made at various stages of minuting of
what took place. That is the only inference oncandraw from that aspect
of the matter. My 1eami:d friend dealt with the matter in the Verbatim
at page 317, supra, where he adrnitted quite frankly that no significance
can be attached to any of the differences.
1 revert, then, to our replication to the Applicants' argument concern-
ing the fourth new fact-so-called-the Practice of States.1 had dealt
before the adjournment with the three arguments advanced by the
Applicants in that regar.d and 1hope that 1have demonstrated that they
are entirely without merit.
The first one referred to a conflict, a so-called conflict, between the
attitudes adopted by States in the years 1947-194 an d something that SOUTH WEST AFRICA
would have been said contemporaneously with the League Resolution in
1946. What that something waç that was said co~temporaneousIy we
don't know; it is a mystery.
As regards the other two arguments-the first and the third-they
concem a suggested conflict between Article 80, on the one hand, and
the attitudes adopted by various States in the years 1947-194 o9n the
other hand. But again, Mr. President, that suggested confict arises only
on this highly artificial and, in my submission, erroneous meaning
attempted to be assigned to Article 80 by my learned friend. On the
assumption, the very naturaland reasonable assumption, that that is not
the meaning assigned toit by the States in question, then al1suggestion of
inconsistency or contradiction inthat regard falls away. That is the logi-
cal and the reasonable way of explaining away this suggested inconsisten-
cy in that regard, because in fact there was none.
The only other comment that my learned friend had in regard to this
fourth new fact-the Practice of States-was in regard to the Special
Cornmittee's Report on the Palestine Mandate. He suggested in the
Verbatim at page 297,sztpra, that the language of the report on
which 1reliedwas in someway or other "vague and contradictory". Now,
Mr. President, 1 am.not going to read.that language to the Court again.
1think it would be presumptuous on my part to attemptto demonstrate
to the Court how clear and how unambiguous that Ianguage in fact is,
and how precisely it accords with the submission 1 am addressing to the
Court on behalf of the Respondent asto what the legal situation was in
the interim period regarding possible supe~ision over Mandates. It is
in exact accordance, and my learned friend haçnot attempted to indicate
in what respect he suggests that there could be said to be any element of
vagueness or contradiction about it. ,
He said further, at page 297, supra,that :
"The Palestine Committeerecommended that Palestine begranted
independence and that, in the interim, the United Nations should
supervise the Mandate."
And his comment was:
"The Committee was obviously without the slightest doubt con-
cerning the competence ofthe United Nations to exercisesupervision
over Mandates."
Mr. President, that, of course,does not follow in the least. As appears
from the report itself, as cited in the Preliminary Objections, and as
is a well-known historical fact, the United Kingdom had voluntarily
submitted the matter of Palestine to the United Nations for action in
terms of Article IO of the Charter. And what was being recommended
by the Committee wouId, if accepted, become a recommendation of the
General Assembly, which again would have to be considered by the
Mandatory Power, the United Kingdom, md would have no binding
effectwhatsoever. How that could be said to demonstrate not the slight-
est doubt conceming competence to exercisesupervision over a Mandate
is a mystery to me. The report of the Committee is referred to in the
Preliminary Objections at pages 335-336 (1), and at thetop of page 336
one finds stated in the report: "The mandatory Power has itself now
referred the matter to the United Nations." REPLY. OF MR. DE VILLIERS 347
Mr. President, 1 conclude then that asregards this fourth factor
nothing has been advanced from the side of the Applicants to cast the
least doubt or to impiur in the least the weight to be assigned to this
factor-the weight to be assigned tothe clearunequi~ocalattitudestated
and adopted very shortly after the period of transitroninthe year 1947
by fourteen States, Mernbers of the United Nations, most of whom had
been League Mernbers.
We corne then to thi:fifth factor-the attitude expressed by Members
ofthe United Nations specifically on the South West Africa question
over the years 1947-1949,before the Advisory Opinion of the Court,
and very shortly after the period of transition. In this regmy learned
friend dealt with the niatter, as recorded in the Verbatim at page 298,
sufwa, and he tned to pass off the statements made by the various
States in this regard as ''vague,inconsistent andcontradictory". Heascnb-
ed that language to mc:,he said he got it from me, that 1 had used that
description. 1had used it, yes, but not for thestatements of the States in
general. I had used it only in regard to the attempt on the part of five
States during the year:; 1948and 1949to find some basis on which they
could Say that there was an obligation on the Union of South Africa to
submit to United Yations supervision in respect of a Mandate which had
not been converted into Trusteeship. That is tobe found in the Verbatim
at page 132, sztpra, which very clearly demonstrates that that was
theMy learned friend seeks not only to apply that language to ali theage.
attitudes and al1the satements and dl the views expressed over those
years by the various States, as1 relied upon them, but he added another
description; he described them as "often shifting". Mr. President, he
did not attempt to demonstrate how those descriptions apply to these
statements on which 1 placed special reliance. There was nothing
vague about the 1947 position, when the representatives of the Union
of South Africa clearly and unequivocally stated their understanding
that there was to be no United Nations powers of supervision in respect
of the Mandate, and wiien there was not a single contradiction from any
State despite the fact that 42 of them took part in the vanous debates
on the subject. There was nothing vague or contradictory or shifting
in that position.
There was nothing vague, or contradictory, or çhifting in the position
of 25 States, including the Union of South Africa, who, over the years
1947, 1948 and 194 , clearly expressed the same understanding that
there was, outside O4 a Trusteeship Agreement, no obligation to submit
to supervision, no lega1obligation, and no power of supervision on the
part of the United Nations in that respect. Nothing vague, nothing
contradictory, nothing inconsistent or shifting. My learned friend again
did not attempt to show how that language could in the least be said
to be applicable to thEse cases.
1 had, in my oral :;tatement, read those particular statements to
the Court, 1 had given full references to the United Nations records, I
provided an index for the purpose of checking on us, checking on Our
classifications and seeirigwhether they were fair, and we get no reaction
to that at all;the only reaction we get is the applying of these epithets,
the misappIying of them as if they had corne from me.
So this fifth factor, hlr. President, in rny submsion, also stands
completely unaffected tiy the ar~ment to which we have been listening.'348 .SOUTH WEST AFRICA
'. Finally, before leavingdthe subject of the so-called "new facts", the
Applicants made two general submissions in that regard in their oral
statement. The first one is contained in the Verbatim at pages 299-300,
supra, and, if 1 understand it correctly, it rests on two legs. The first
one is that the significance of the new facts as we advance them lay
in the premise that the Court's finding in 1950, concerning United
Nations succession to the League functions regarding Mandates, was
based on a tacit intent on the part of United Nations Members, and
a corresponding tacit intent on the part of the League Members at the
time of its dissolution. Now that is perfectly correct-that iça correct
appreciation of our argument in that regard. We advanced those new
facts as being of specialsignificance inthat regard, because they refute
any such suggestion of tacit intent. And they are even of the utrnost
importance if there should be any suggestion of a tacit intent that
originated at the time of the foundation of the League and of the Mandate
system; becauçe if there had been çuch a tacit intent-something that
was so clearly understood that it did not have to be recorded-then it
would surely have been brought to mind at the pertinent time of transi-
tion in 1945 and 1946. But now my learned friend goes further in his
argument, and he says his interpretation of the Coiirt's Opinion 'on that
point is that it did not rest on a finding of such tacit understanding or
consent, and that is where we corne into issue with each other.
Now what does he Say in support of this statement, that the opinion
did not rest on tacit consent? 1read from page 299,sufiru. It saps there:
"The 'general considerations', as the Court itself describes them
in its Advisory Opinion at page 136, which in fact underIay the
Court's conclusion, proceeded from the very legal nature and legal
consequences of the Mandate institution itself."
Now what that means, Mr. President, if not related to a question of
the intent of the parties that founded the institution by their agree-
ment, I don't know-unless the idea should be that there is sornething
of the nature of a principle of customary international law involved, or
a general principle of law recogniied by civilized nations-1 don't
know-that is not explained. It is "the very legal naturand legal conse-
quences of the Mandate institution itself", this novel institution which
was then for the first time brought into existence by international con-
vention.
We find some explanation when we go a bit further-the next sen-
tence is:
"These 'general considerations' (1 repeat they are to be found
on page 136 of the Court's Opinion) these 'general considerations!
involved the most basic concepts of the authors of the Covenant
and the authors of the United Nations Charter."
Mr. President, if that is so, if the legal nature and the legal conse-
quences are to be related to the basic concepts of the authors of the
Covenant and, later, to the authors of the United Nations Charter,
then we are dealing with one and the same thing, namely intention of
the original contracting parties. And then 1 don't understand this
submission that the Court's finding did not rest on a premise of tacit
consent, of tacit agreement. The Court made it clear that there was .REPLY OF MR. DE VILLIERS
349
nothing express to support its finding, and the Court did, as 1 pointed
out, refer repeatedly to the contemplations, the presuppositions and the
intentions of the authors of the Covenant and of the Charter, and of
the founders of the Mandate system; so that quite obviously what the
Court had in mind rnust have been the tacit intent of the contracting
parties; so that, dthoui;h there is at the beginning of this submission a
negation of that premise, the submission seems to develop itself into
an acceptance of that premise, that the Court founded its conclusion
upon a ground of tacit agreement, tacit understanding.
There may, of coursi:, be a difference in this respect, one to which 1
adverted in my argument in chief, as to when that tacit consent or
agreement could be sain1to have manifested itself in the contemplation
of the Court. My interpietation of the Opinion, which 1gave to the Court
in detail in that respect, is to the effect that that tacit agreement or
utiderstanding was found by the Court to exist at the time of transition,
1945 and 1946, becausc the general considerations related not only to
what the authors of the Covenant and of the Mandate system contem-
plated, but also to whai: the authors of the Charter contemplated, which
brings us into the perictd 1945-1946. They relate also, if the Court will
remember, to the consideration that at the time when the League fell
away-the original su~ervisory organ-then there was another super-
visory organ which, in the Court's finding, was competent to take its
place. That again relates to a consideration that could have applied
only at the time of tralisition, in the years 1945-1946,Again, when we
corne to the çupporting considerations, the first reference of the Court
was to Article 80, para.graph I, if the Court will remember, and that
again brings us to that ?eriod,1945 because the Court was dealing with
an underlying presuppcsition on the part of the authors of the Charter
relative to that Article. I'inally, the other supporting consideration related
to the presupposition of1:heMembers of the League when they adopted the
las1 resolution concerni~ig Mandates, again bringing us into that period.
And therefore, my subnlission is that al1 this evidence, the new facts
on which we rely,ail of them bearing very directly on what the inten-
tionsmust have been during that period-they are ofthe utmost relevance
in overriding the generd considerations, the general probabilities, upon
which the Court relied in 1950 in the absence of this specific evidence
to the contrary which u.as not then available.
1submit, therefore, that despite the Applicants' submission to the con-
trary in the passages to .chic1 have referred, the interpretation remains
correct, that the Opinion of the Court rested on tacit agreement or
understanding, and that this evidence is therefore of the utniost relevance
in that regard. And 1 repeat, Mr. President, just to avoid misunder-
standing, that that would be so even if, contrary to my submission, one
should consider the basic question to be what tacit intent there was in
1920, tvith the foundiné;of the Mandate system and the creation of the
Mandate; because, thert: again, even though ailthis evidence relates to
the transition period and to what happened shortly thereafter, if there
had been a clear-cut understanding as from 1920 relative particularly
to what would happen in the case of dissolution of the League, then
sornebodÿ at least mus! have remembered it and must have raised it
at the time of transitican, particularly in reaction, for instance, to an
incident such as occurred on 12 April 1946 when the representative of
China said that there was no automatic transfer of functions regarding35O SOUTH WEST AFRTCA
Mandates from the League to the United Nations. One would on such
an occasion, for instance, have expected a reaction. One would have
expected a reaction when Mandatory Powers indicated that there was
no intent on their part to have any reporting or accounting in an interim
period. And there are the other similar occasions to which I have referred
on which one would have expected that reaction. So all this evidence
remains of the essence and very relevant on that crucial point.
Mr. President, a further and finalsubmission of the Applicants regard-
ing the so-called "new facts", was that the Court ought in that regard
to apply, ifnot the letter, then at least the ratio or the minimum stand-
ards, as it was called, ofArticle61 (1)ofthe Court's Statute. Mylearned
friend sought to fortify his argument in that regard by saying that 1
had admitted that what was stated in that article conformed to "the
generally accepted principles favouring the stability of judgments".
We find this point developed in the Verbatim at pages 300-301, supra.
Mr. President, in my submission there is no substance in it what-
soever. 1 had put it to the Court-there was no question of "admit-
ting" it-that the type of requirements stated in Article 61 (1) agreed
with the type of requirements generally applied in various legal systems
where a principle of res judicata applies. But where that principle does
not apply, there is no basis, no ratio whatsoever, for putting any require-
ments of that kind. That was the proposition which 1 made then, and
that is the proposition which I still make. If we are to put it in terms
of the Statute of the Court, may 1 refer the Court to two articles which
are both very well known. Article 38 sets out the sources of law to be
applied by the Court in deciding international disputes. The last one of
these reads (paragraph d) :
"Subject to the provisions of Article 59, judicial decisions and
the teachings of the most highly qualified publicists of the various
nations, as subsidiary rneans for the determination of rules of law."
And if we read that with Article $9, we hd that that Article states:
"The decision of the Court ha no tinding force except between
the parties and in respect of that particular case."
Clearly then, this is where a previous Advisory Opinion would fail
in terms of the Statute of the Court. It would be one of the subsidiary
means for determination of rules of law. There is no question here of a
principle of res judicata applying, which prima facie makes the opinion
final so that it cannot be reopened except on special grounds. Nobody
need show any special grounds for raisirig an argument in conflict
with a previous Advisory Opinion. To put the matter in the proper pers-
pective: It was for the Applicants to corne and satisfy this Court that the
Court has jurisdiction. ~NaturaIly,in their legal argument in that respect,
if there is a previous Advisory Opinion which favours the contentions
rdy, if that previous Advisory Opinion isntincconflict with, or at variance
with submissions that 1advance, then 1 have to deal with it. But there
isno obligation to reopelta matter in that regard. The Advisory Opinion
1san authority, like any other authority, and the only question that
arises is a matter of its weight. And if ? could adduce to the Court
specialreasons why the weight that would normally be given prima facie 3EPL.Y OF MR. DE VILLIERS 3s
to anAdvisory Opinion does not apply in the particdar case, then I
ticle 61,or any similar principle of law applicable in circumstancesr-
completely different from those which now pertain. And it is only on this
question of the weight to be given, as a matter of authority, to the pre-
vious Advisory Opinion.that the question of the new facts assumes such
great importance. And not only the new facts, but as 1 have stressed,
also the new argument:;, the new material now placed before the Court
and not avdable in 1950.
That brings me to the end of a consideration of the Applicants'
arguments concerning the so-cded "new facts". My submission is
that they failed completely to break down any of the force of the argu-
ments which we advanccd to the Court in that regard. If 1may surnmarize
it in a few words, the significance of those new facts lies in the feature
that it has provided direct evidence, practicd, specific evidence bearing
on intent, which specific evidence overrides the general considerations
of probability on which the Court relied in 1950 in the then absence of
evidence to the contr:iry.
1 proceed, then, to deal with the Applicants' arguments regarding
the analysis of the xg'io Opinion, and, Mr. President, there is really
little for me to say about that. The Applicants' learned Agent spent
a long time on this aiialysis. We find it stretching in the Verbatim
over the pages 301-304, sspra, and later on, under the heading ofde rzovo
argument, we actually find more analysis of the 1950Opinion. And over
alithat analysis, the one feature that stands out is this, that nowhere do
the Applicants attempt 1.advance any argumentin support ofthat Opin-
ion. Their arguments, 2s they themselves Say, rest on the Opinion and
proceed from it. Now, j.n so fat- as they seek to interpret the Opinion,
there are just three points to which I would like to draw bnef atten-
tion. The first one is tilis, that at page 306, supra, of the Verbatim,
there is stated the submission that the analysishaç shown that interna-
tional supervision of .Mandatory administration was an "essential
feature" of the Mandatt: institution. The submission reads:
"Hence the Couri, on the bais of its analysis of the legal nature
of this new intern:rtional institution, concluded that international
supervision was an essential feature of the institution and that this
had been the view of the authors of the Covenant and the authors
of the Charter ..."
This submissionisrepeated onthe samepage,page 306, supra. The Cqurt
wiil recall I dealt with this very fuliyin my argument in chief, and this 1s
now the counter-argument on that point, Ifwe look back and see what
the submission rests on, we find one element at that page. There is a
reference to the five se~itencesofthe general considerations, the firstone
being-1 quote from that page :
"First, the obligation to 'accept international supervision and
submit reports is ;m important part of the Mandates Systern'."
That is what the Court said. Now the Applicants argument proceeds:
history shows, as an essential part."garded generally, 1 think the SOUTH WEST AFRICA
352
Mr. President, if that is interpretatioof the Court's Opinion and if
that is the basis upon which this conclusion is founded, then1 need Say
no more about it.
We find one other suggestion whicli might bear upon it, and that is
the one at pages 303-304, su$ra. It is one which is repeated at various
stages of the argument, 1should Sayabout five or six times iall,andthat
is to the effect that our contention in its ultimate consequences results
in what my learned friend has described as a "convenient, partial lapse",
which means that although the sacred trust of the Mandate institution
is still in force and effect, although the Mandatory's powers are con-
ditioned with reference to his substantive trust obligationas originally
set out in clauses z to 5 of the Mandate Agreement, aswe assume for
purposes of argument, there will be no international supervision of the
Mandate of the two classes, as he described it "administrative", in
terms of Article 6,and "judicial" in terms of Article 7.And he said on
a number of occasions that that was the very result which the Court
described as something which could not "be justified". If we look at the
Verbatim at page 262, supra, that is the first time where this state-
ment is made:
"Respondent contends that the Mandate survives, if it survives
at all, only on a basis which leaves Respondent with al1 the rights
and pnvileges of possession and of administration without inter-
national accountability. Respondent does not find it appropriate
to respond to the Court's conclusion in the 1950 Advisory Opinion
that precisely such a result would not, in the Court's words, 'be
justified'."
The reference there is to page 133 of the Advisory Opinion. I am not
going to read it all, hlr, President. We find something similar in the
Verbatim at pages 303 to 304, supra. We find it again on the same date
at page 315, where there was the reference to the Cheshire cat, which
the Court might recall. And then at page 321, supra, we find a repeti-
tion of the same point. Now in rny submission, there is no .tenable
basis for interpreting that particular portionof the Court's Opinion to
that effect. What the Court was dealing with there was the proposition,
the argument, as then advanced on behalf of the Union of South
Africa and stated at the previous page 132:
"It is now contended on behalf of the Union Government that
this Mandate has lapsed, because the League has ceased to exist.
This contention is based on a misconception ..The League was not,
as alleged by that Government, a 'Mandator' in the sense in which
this term is used in national law of certain States."
The contention was that because the Mandator, one ofthe essential
parties to the contract of Mandate, had fallen away, therefore the whole
Mandate had lapsed, and the conclusion waç stated at the end that the
Union was left with full title and with no obligationsand that is what
the Court referred to aipage 133, when it said that:
"The authority tvhich the Union Government exercises over the
Territory is based on the Mandate. If the Mandate lapsed, as the
Union Government contends, the latter's authority would equdy
have lapsed. To retain the rightç denved from the Mandate and to
deny the obligations thereunder could not be justified." 'REPLY OF MR. DE VILLIERS 353
What the Court wz; referring to there waii a suggestion of a total
lapse of aH Mandator]. obligations, but nevertheless a retention of the
rights under the Mandate. The Court said those two were inseparably
connected with one anCther, as the Court indeed repeated with reference
to the obligations set out in Articlez to 5of the Mandate-the essence
of the sacred trust, wii:hout which the Mandate could not exist at all.
But the Court never, in this passage, suggested that the taking away
of the two supervisory clauses-if Article 7 is to be regarded as super-
visory at ali-the taking away of those two particular obligations,
would bring about an end to the Mandate, or that the Mandate could
not exist in the form of the substantive rights and powers on the one
hand, conditioned on the other hand by the substantive trust obligations.
There is no tenable bxis for suggesting that that is what the Court
meant, or that the Conrt found that anywhere in its Opinion.
Mr. President, before1 leave this passage in the Opinion of the Court
to which 1 have just rcferred, at page133, 1 would liketo refer to one
other aspect of it. My learned friend came repeatedly on to the theme-
that the way in which our case is now presented isless "candid" than
it was in 1950, ancl he continually tried to assirnilate the argument now
submitted to the Court. to the 1950 contention on behalf of the Union
of South Africa.
Mr. President, of coursethe questions before the Court are different.
We are concerned here with an issue as to jurisdiction only, and 1think
1 have put my positioii in that regard quite clearly before, and quite
candidly. In order however to avoid any possible misunderstanding on
the subject 1 will put it again, and 1 wiil now put it in this form.
In regard to Our first proposition-the iïrst of the three contentions
falling under the heading of the First and Second Objections, namely,
that the Mandate is ncl longer in force as a treaty or convention-the
Mandate as a whole we advance that contention in regard to the Mandate
seen as an international,agreement, and we Say it can no longer exist as
an international agreernent.If that should have the effect that there
is no longer a Mandate at aIl, it does not affect my contention; it stiu
means that the Court has no jurisdiction. But 1 need not go so far
for the purposes of an argument concerning jurisdiction. 1 need not
contend that. There i: the alternative, which seems to me is to be
found in the Opinion of the Court of 1950, that is, that even in the
event of a total lapse of the Mandate seen as a treaty or convention, it
could still have an objective existence independently of treaty or of
convention. And I Say 1am perfectly prepared to accept that proposition
for purposes of argumint, because it does not affect my contention
relative to jurisdictionIneed not, at this stage, ask the Court to choose
between those two aItematives, because both have the same result as
far as jurisdiction is coacerned.
Alternatively, 1 hav? my second and third contentions which rest
upon virtually the sarnc:argument, that is, that, whatever rnight be the
position of the rest of the Mandate Agreement, Articles 6 and 7 are no
longer in force, or, atany rate, there are no States which can invoke
Article 7.When 1 conteild thatthe question can again arise: are Artic6es
and 7 severable from the rest of the Mandate, or are they not? Ifthey
are no longer in force, does that mean that the whole of the Mandate
must be taken to have lapsed? Ifthat should be so, Mr. President, if
we accept the basis of inseverability, then it does not hurt rny argument, 354 SOUTH WEST AFRICA
then .there is stilI no question of jurisdiction.It may then be, as the
Court suggested, that the Republic of South Africa could no longer
rely on a Mandate as being a source of title, of authority; in respect
of the Territory of South West Africa. That could be a cansequence
!of that situation, and that implication would then have to be gone
tinto. But it does not arise here, in an issue concerning jurisdiction
only. PEY contra, if, as 1 have suggested was the basis on which
the 1950 Opinions were decided, if the elements contained in Arti-
cles 6 and 7 are severable £rom the rest of the Mandate institution,
then. acceptance of my propositions concerning Articles 6 and 7 does
not result in a conclusion that the whole of the Mandate has lapsed. It
.means that the rest still survives as a trust without, however, inter-
national accountability or international supervision, and without com-
pulsory jurisdiction on the part of the Court. Neither of those two
alternatives hurts my contention as far as it concerns an issue of juris-
diction. And therefore 1 think 1have made it clear that 1am prepared to
premise my argument on an assump'tion that either of those two could
be correct.
It remains only for me, Mr. President, to refer to the Applicants'
contentions concerning what they called our de novo argument. 1 have
pointed out to the Court that initiaIly the suggestion was that Our
argument as to the merits of these Objections would be dealt with and
met, as to their merits, in this section of the Applicants' argument, and
eventually it came to nothing in that respect. This section of the Ap-
plicants' argument is therefore mare significant for what it did not
-contain than for what it does contain.
So, Mr. President, in regard to the first of the three contentions which
1 have just mentioned, namely, that the whole of the Mandate has
lapsed in so far as itwas a "treaty or convention in force", we still
have no answer from the Applicants as to who could be parties today
tosuch a treaty or convention, if it is still in force as is contended by the
Applicants. There was no attempt whatsoever to answer that question,
although itç significance-itscrucial significance-was stressed and fully
dealt with and analyzed in Our oral staternent. So that still rernains
unanswered. The Applicants are satisfied to leave iton the basis that
the Court found that Article 7 is still in force and miist have meant
that it was in force as a treaty or convention, and that for the Applicants
is sufficient. They do not attempt to justify that finding with reference
to the question now pertinently raiscd as to whether there can be said
to be a treaty or convention in force witkin the meaning of Article 37
of the Statute of the Court.
In regard to Our second and third contentions,.both of them are based
on the fact that thereisnow no longer a League of Nations, or a Member
of the League of Nations that could invoke Article 7. There the Ap-
plicants have failed entirely to deal with the interpretation which we,
as the result' of an exhaustive analysis, Say must be put upon the ex-
pression "another Member of the League of Nations". They failed to
deal with it. And whereas in their written Observations they suggest
that our arguments can be met on the two alternative bases of either
1succession" or "carry-over", and whereas, if Iunderstand them correctly
they try to argue in support of those two propositions in the wntten
Observations-after exhaustive analysis in Our oral statement of what IIEPLY OF MR. DE VILLIERS 355
they said in that regard, they come back with nothing further in sup-
port of either of those theories.
When it comes to siiccession, Mr. President, we see in the Verbatim,
at page 319, supra, that this is what it comes to eventually. 1 read
from that page:
"Counsel [referring to me] appears to base this attribution to us,
on the ground that the AppIicants, as he says, 'rely on' United
Nations succession-1 quote from the Verbatim at page 35, sufiru.
But, Mr. Yresidtint, it is not the Applicants who 'rely on' United
Nations succession. The Court itself decided that issue in the Ad-
visory Opinion of [gjo. We draw the necessary inference from the
Court's Opinion. IVedo not bear the burden of sustaining the validity
of the Opinion of the International Court of Justice."
That is what the succsssion argument has now been reduced to, Mr.
President. No attempt ~vhatsoeve~ toargue anything on merit in support
of that succession theory, the basis being the Court's Opinion of 1950 ,s
apparently some kind .sf "grundnorm" about which there is to be no
question or argument.
Finally, the alternative of a "carry-over", that u7ealso find dealt
with in one paragraph at page 319, supra, of the Verbatim. And what
is stated there? 1 think 1 had better read this, Mr. President, because
it is significant:
"The Respondent has also engendered some confusion, we think,
with regard to a coinment in our Observations at page 446 (I),and 1
quote, we Say theri::
'There is at th#:very Ieast a de facto carry-over of the Leaguc's
responsibilitiesto the extent that an important function of the
League continue:; beyond the League's formal existence.'
As 1 have demonstrated, it follows inescapably from the 1950
Advisory Opinion that Applicants have a Eocusstandi, as United
Nations Mernbers, in the cases at bar. In the event, however,
that the Court should, for rcasons which are not apparent-re-
spectfully-to the Applicants, if the Court shouldreverse its holding
that Article 6 is sri11in force, then we would contend, as we do
here, that Applicarits must have a Eocusstandi as former Members
of the League of Nations, because if they do not, the unanimous
holding of the Cour-tthat Article 7is inforce is reduced to a nullity.
It is a perfectly Iogical pro osition, and it is precisely in this sense
that we have rcfer.red to t !e point. If the language is elIipticaI I
express Our regret iind welcome this opportunity to clear up what
seems to be an ineiicapably logical deduction."
Mr. President, of the de factocarry over as a "principle", of that argu-
ment advanced in the Observations, and which 1 think, with submission,
we dealt with adequatelir in our oralpresentation, of that there is nothing
left. Nothing as a justification for coming to the conclusion that, in the
absence of the succession contended for, there could still be cornpetence to
invoke jurisdiction on thepart of ex-Members of the League. No legal ar-
gument advanced in order to arrive atthat concIusion, the only suggestion356 SOUTH WEST AFRICA
being that, starting from the basis that the Court found that Article 7is
stillin force,and from the further basis that there must be a State or States
that can invoke Article 7 in order to keep itin force, therefore it follows
that if there should be no succession regarding Article 6, then the only
possible States that could have been contemplated, that could bring
Article 7 in force, would be ex-Members of the League. That seems to
be the type of reasoning in this so-called "perfectly logical proposition".
The "logical proposition" leaves out of account, Mr. President, that the
Applicants themselves advance that the basis upon which the majority
of the Court in 1950 found that Article 7 was still in forcewas "success-
ion"; if that basis is taken away, what logic is there in attributing
alive on the basis of a "carry-over", so that ex-League Mernbers could7
still jnvoke it. 1 faito see the logjc of that proposition.
The Applicants do not attempt to justify the alternative of the
Ldescriptive meaning" interpretation found in the minority opinion of
Judge McNair in 1950.
Therefore, Mr. President, we hd again that there is absolutely no
attempt ai justification as a matter of legal argument, as a matter of
merit, as distinct from reliance upon the 1950Opinion for the con-
clusion that Article 7 is still in force. And in both respects in which
opposition was initially offered to Our contentions, both the succession,
and the carry-over, we find this ignominious retreat.
1 could, Mr. President, hardly ask for stronger support for our con-
tentions than this-this obvious inability on the part of the Applicants
to advance any argument on the merits in regard to these propositions:
an inability which must in al1 the circumstances be taken to be a self-
confessed one, because they could not have demonstrated that more
clearly than they have done in the way in which their argument has
been presented to the Court. In my submission the Applicants have
confirmed that in the light of the facts and the arguments that are now
before the Court, the Opinion of 1950 cannot stand in the three respects:
regarding Article 6, regarding Article 7, and also regarding the general
proposition that there is no longer a "treaty or convention in force"
within the meaning ofArticle 37 of the Statute of the Court.
Mr. President, that concludes my replication to the oral staternents
of theAp licants. Mylearned friend, Mr.Muller, has asked me to indicate
that he lnds nothing in the oral staternents to which he considers it
necessary to replicate regarding the Third and the Fourth Objections.
With the leave of my learned Agent, I want to indicate further that as
regards the questions that have been put to us by Members of the Bench,
we tried our very best to have our ançwerç ready today, but it involved
a certain measure of research outside of the precincts of this Court and
even outside this town, and we have not entirely completed that. We
should be able-we Xe trying our very best-to have those answers
ready on Monday, and we should like to present them then. 1 would,
therefore, with respect, Mr. President, suggest that for that purpose,
and for that purpose alone, we do not conclude our repllcation now.
The replication is completed as faras being a reply to the oral staternents
of the Applicants, but 1 would like to keep it open for the purpose of
dealing with those questions and anything that might flow therefrom.
1 thank the Court. REPLY OF MR. DE VILLIERS
357
Le PRÉSIDENT Je: rt:tiens donc de ce qui a étédit que vous serez prêt
à donner votre réponse aux questions poséespar les Membres de la
Cour lundi prochain.
Mr. DE VILLIERS:That is Our endeavour, Mr. President. We hope
to do so to the best of our ability on Monday.
Le PRÉSIDENTA : lors j'espkque ce sera possible11est donc décid4
que la prochaine audir:nce aura lieu lundA IO heures 30.
Et maintenant je m'adresse A M. l'agent de 1'Ethiopie et du Libéna.
J'ai étéinformé que votre duplique orale ne serait pas longue; mais,
vu l'heure avancée, vous ne pourrez pasIa terminer aujourd'hui. Alors
je vous pose la question: désirez-vous commencer ce soir pour terminer
lundi ou bien peut-être trouverez-vous plus convenable de commencer
et terminer lundi?
'Mr. GROSS:Mr. President, I wish to compIy with the convenience
of the Court. 1 would be prepared to commence now, but in view of
the President's gracious suggestion that it might be more convenient to
begin on Monday and conciude on hlonday, I should prefer that of
course.
Le PRESIDENT A:loi.s, il est ainsi décidé.Vous aurez la possibilité
de commencer votre duplique lundi. Encore un point: la réponse aux
questions qui ont étéposéespar MM.les Membres de la Cour, pourrez-
vous la donner aussi lundi?
Mr. GROSSM : r. President, 1understood that the distinguished Counsel
for the Respondent s~.id that he would make the best endeavour to
present the reply to the questions asked by the Honourable Members
of the Court, that he vrould try to do so on Monday. We shall, I think,
be in a position to an;wer the question addressed directly to us, and
I wouId then, I believ?, Saywith conviction thatwe shaiibe able to,
but I amnot certain as to exactIy when on Monday we wdl be able to do
that.
Le PRÉSIDENT: 11 el1est ainsi décidé. Les réponsessuivront lundi,
après la réponsede M. l'agent de la République sud-africaine et aprés
votre duplique orale.
Mr. GROSS:That is iinderstood, Mr. President. SOUTH WEST AFRICA
8. REJOINDER OF Mr. ERNEST A. GROSS
(AGENT OF THE GOVERNMENTS OF ETHIOPIA .+ND LIBERIA)
AT THE PUBLIC HEARING OF 22 OCTOBER 1962
[Public heuringoj 22 oc lobe1962, morningj
Le PRÉSIDENT:L'audience est ouverte, Je voudrais informer les
Parties de la procédure quia étéapprouvée par la Cour:
La parole sera donnée d'abord à l'agent de l'Éthiopie et du Libéria
pour sa duplique orale; lparolesera donnéeensuite à l'agentde IfAfrique
du Sud, puis à l'agent de l'Éthiopie et du Libéria, pour répondre aux
questions qui ont étéposéespar les juges; enfin, et dans le mêmeordre,
les agents seront invités à faire savoir si les questions des juges et les
réponses qui y ont été faites les amènent à amender leurs conclusions
respectives, et, éventuellement, à énoncerles conclusions amendées.
La parole est à Monsieur l'agent de 1'Ethiopie et du Libéria pour sa
duplique orale.
Mr. GROSS:Mr, President and hlembers of the Court. In order to
economize the time of the Court, 1 shall turn at once toan appraisal of
points of substance raised in Respondent's statement of replication.
We are not conscious of any endeavour on Our part to create an "at-
rnosphere by reference to matters ofatendentious, political or emotional
nature", in the language of Respondent's CounseI.
Surely, recital of the history of the Mandate and the origin and
nature of the dispute does not in itself justify attributionto us of so
improper amotive.
"In the task of ascertaining the true intentions of the parties
tothese instruments, the circumstances surrounding the creation of
the Mandates system andthe conclusion of the Mandate Agreement,
as well as the conduct of the parties concerned, bath at the time
and thereafter, are [mattersof geat importance."
Mr. President, I have just quoted a sentence from the opening state-
ment of the distinguished Agent for the Respondent. Consistently with
the importance of this material, Respondent quite appropriateiy devotes
more than 80 pages of its Preliminary Objections to what is entitled
"Historical Background".
It is said also to be "regrettable" that we have referred at some
length "to reports qf various political committeeand bodies containing
critical comment". f quote from the Verbatim at page 329,supra.
But, Mr. President, it is regrettably difficult to discover in the sad
history ofthis matter any other kind of comment.
Counsel for Respondent takes a long leap into the merits-\vithout
citation ofany document before the Court of which I am aware-that,
as Counsel says:
"...where observers have taken the trouble to corne and see for
themselves they have almost invariably found thatthe Mandatory's
[government's] version of the facts has proved to be the correct
one...".
f quote from the Verbatim at page 330, supra. REJOIXDER OF MR. GROSS '359
'Documents which are before the Court, many of which are cited in Our
Memorids, show that one of the major elements of the dispute is that
cornmittees and agencies of the United Nations have been denied dircct
access to information and have, àccordingly,. been forced to rely upon
secondary sources, often supplied at great trouble and risk on the part of
petitioners. Reference may be made to any report of the U.N. Cornmittee
on South West Africa, al1of which reports are cited in Our Memorials at
pages 62-83 (1) and are before the Court. TheSouth West Africa Commit-
tee perennially record; the Mandatory's failure to submit reports, trans-
mit petitions, orotheiwise CO-operatein the ascertainment of facts and,
despite its persistent refusa1 to CO-operate,representatives of South
Africa at the United Mations-as Respondent's Counsel has done here-
have attacked or criticized the validity of the Cornmittee's findingç,
often in sarcastic terms. An example is found in OurMemorials at page80
Cl).
1turn now, Mr. Prtsident, withthe leave of the Court, to a consider-
ation of the premises upon which Respondent lays its request for re-
consideration and revision of the 1950 Advisory Opinion.
," It is now stressed that in addition to what Respondent's Counsel
has called "new facts", there are also "new arguments" which, Respon-
dent contends, "have now been fully preçented to the Court, and which
were not canvassed ai dl in 1950" . quote from the Verbatim at page
332, supra.
Mr. President. the Ps~licants were well aware that in the Preliminary
Objections esi ion t'eadmade the point that its learned1950 Counsei,
Dr. Steyn, appears to have regarded the contention that there were no
,longer' any States which could invoke Article 7 of the Mandate-the
comprornissory clause-"as a legal proposition which did not require
further argument", in Respondent's words in the Preliminary Objections
at page 368 (1).
We were aware also of Respondent's assertion that, in the absence of
a full argument in 1950supporting its contention that aliteral significance
should be given to the phrase "another Member of the League of Nations",
in Article7, this point, as Respondent contends, "may not have been
present in the mind oi'the Court". That comment cornes £rom the Pre-
-liminary Objections, aipage 373 (1).
Among the many speculative possibilities which might explain why
Dr. Steyn did not rega.rd it pertinent to make an elaborate argument in
support of a literal interpretatioof the phrase "another Member of the
League of Nations", miy well be thatthe thought that such an argument
was untenable. Dr. Steyn may also have anticipated the admission made
by Counsel during'the course of his oralstatement of 2 October, and 1
refer to Counsel's comments, the logic of which is impeccable:
"So [said Counsel] our second contention is that even if thMan-
date could, in 0th-r respects, be said to be still in force as a treaty
or convention wiihin the meaning of Article 37 of the Statute,
Article 7 of the Mandate itself ceased to be so in force."
And Counsel continued. :
"Thirdly, Mr. President, on basicaZlthesame argument asapplies
io ou7 secondconterztionnamely that another Member of the League
of Nations is neceijsary for [the] operation of Artic7, theuefollows 360 SOUTH WEST AERICA
our third contention which is merely an alternative way of puttircg
the same argumentand that is..."
.And then he describes what it is. That is the Verbatirn at page 32,
sufiru. Respondent concedes that its argument regarding the phrase
"another Memberofthe League ofNations" is merely an "alternative way
of putting the argument", that Article 7itself had ceased to be in force.
Those are Respondent's own words. Now Dr. Steyn in 1950 mayhave
thought of this "alternative way of putting the same argument". With
allrespect ta Dr. Steyn's undoubted ability, however, it is unlikely that
even with some days at his disposal, he could have elaborated the point
,proceeding.ully than has been done by Respondent's Counsel at this
The point is, Mr. President, that the fact that Respondent's Counsel
in 1950 did not elaborate an argument which, we have submitted, is
inherentIy untenable, does not justify an inference that the reasoning
underlying the point was not in the mind of the Court when it came to
write its Opinion.
It seems to us, respectfully, that Respondent's first "new argument",
so to speak, has hardly more survival value than did Respondent's first
"new fact".
The secondso-called "new argument" appears to bethe doctrine ofwhat
1 have called "partial and convenient lapse", according to which ali of
Respondent's rights and privileges remain, but none of its obligations of
,international reporting, accounting or judicial supervision, in terms of
the cornpr~missory clause.
We have sought to demonstrate that Respondent erroneously attrib-
utes this doctrine of partial lapse to the Court and that, in anyevent, the
consequence of the theory, or doctrine, of partial lapse, is legally, Io@-
cally, and rnorally untenable. And that this is precisely what the Court
must have meant when, in its Opinion, it referred to such a resulasone
which "could not be justified", in the Court's words.
.attention is respectfully.drawn to the discussion in our oral statement
in which we sought to summarize the 1950 arguments and then to com-
pare them with what 1 described as the 1962 model. That attempt .of
sumrnarization and cornparison starts with the Verbatim at pages 311-
312, supra.
It is submitted then that no arguments have now been put fonvard
by Respondent which are either new in substance or valid in reasonin
and which support Respondent's request that the Court reconsider an a
revise the 1950Advisory Opinion.
Several brief comments now seem to be in order with regard to the
so-called "new facts", as distinguished from the "new arguments", in
the light of Respondent's statement in replication.
My first comment with regard to the "new facts" contention concerns
what may be described as Respondent's effort to rehabilitate the second
"new fact" relating to the proceedings ofthe United Nations Preparatory
Commission in London in 1946. The Court WU, if it please, recall that
Respondent in its Preliminary Objections refers to a fact which, among
others there enumerated, is so "crucially importantv-in Respondent's
language-that if it had been placed before the Court in 1950"the
Court could not possibly have arrived at its decisive conclusions". 1 REJOINDER OF MR. GROSS 361
quote from the Preliminary Objections at page 345(1).This "new fact"-
number ii at page 34.5-is descnbed by Respondent aç follows, and
1 quote:
"The rejection by the Preparatory Commission of its Executive
Cornmittee's proposal for a Ternporary Trusteeship Committee,
without substitution of anything regarding possible transfer to, or
assumption by, the United Nations of any 'functions under the
Mandates System' ..."
That is the essence of the description of the second "new fact" at
page 345 (1)of the Preliminary Objections.
Mr. President, in oicroral statement we cited to the Court the state-
ment made in the 1950 proceedings by the late Dr. Ivan S. Kemo,
representative of the 5ecretary-General of the United Nations, and this
statement is quoted iri our Verbatim at page ,300,su$ra.
In adverting to Dr. Kerno's statement,we pointed out that Dr. Kerno
had not only explicitiy referred to the Commission's rejection of its
Executive Committee':;proposal, but that Dr. Kerno had dso explained
to the Court the reasons underlying the Commission'saction and what
the Commission hud donehstead.
In his replication, learned Counsel for Respondent argues that our
showing that this second fact thus had been before the Court in 1950
was, ashe said, "completely illusory"(page 335, supra,ofthe Verbatim).
And why was it "illilsory"? Because, he says, the real significance
of this second fact is not that the Preparatory Commissionhad rejected
the Executive Committee's recommendation. Rather, what is "crucially
important", Respondent submits, is that in 1950 the Court was not
told that the Commisi;ion had not substituted anything regarding as-
sumption by the United Nations of functions under the Mandates system.
This, Respondent's Counsel describes as the "brunt of the point",and
he says:
"The only infonnation the Court was given regarding the proposal
for a Temporary 'Trusteeship Council and the rejection thereof was
the bald statement in the late Mr. Kerno's argument."
1 am citing the Verbatim, at page 337, supra.
If the Court will be pleased to read the exerpt from Dr. Kerno's state-
ment quoted in our 01-alargument in the Verbatim at page 290, supra,
1 think it will be apparent to the Court that Dr. Kerno's statement
Counsel.her bald, nor limited to the fact mentioned by Respondent's
Dr. Kerno's statemeilt set forth precisely what action the Commission
took instead, and why.
Respondent's point seems to be that if the Court had been told what
the Commission did not do-instead of what it did do-the Court could
not have reached the same decisive conclusions.
hlr. President, at the rfsk of being facetious, if anyone in 1950had
undertaken to tell the Court everything the Preparatory Commissiondid
not do, this honourable Courtwould stillbe hearing the 1950 arguments,
instead of merely hearing them again.
Mr. President and Members of the Court, before leaving the second
"new fact", brief atteation sh'ould be given to a matter which sheds
further light on the stress Respondent now lays upon the point that362 SOUTH WEST AFRICA
the 'Court was not explicitly told what the Preparatory Commission
did not do with respect to the question of United Nations .assumption
of a supervisory function over Mandates.
As I have pointed out, Dr. Kerno referred to the reasons why the
Commission had rejected the recommendation of its Executive Committee
for the establishment of a Temporary Trusteeship Committee. Dr. Kerno
referred, and 1 quote from his argument to the Court, Dr. Kerno re-
ferred to:
"...objections of a constitutional nature e>ipressed by sorne of itç
members and of the fear expressed that the creation of a ternporary
organ rnight have the effect of delaying rather than of expediting
the constitution of the Trusteeship Council".
That is the end of the quote from Dr. Kerno's statement to the Court.
The statement, as 1 Say, is set forth in text in the Verbatim at page
290, supra, for the Court's convenience.
One of these members referred to by Dr. Kerno was the Soviet Union.
The Summary Record of Meetings of Committee 4 of the Preparatory
Commission sets forth the views of the Soviet Government, expressed
by its delegate,Mr. Gromyko, as follows:
"Considering that there were at preçent no territories under the
trusteeship system, there would be no work for such a temporary
- body. In view of the solemn pledge conceming trusteeship in the
Charter, the members of the United Nations adrninistering mandates
could inform the General Assembly that they were willing to place
them under trusteeship. They coi~Id dso preçent drafts of agree-
ments. The General Assembly, if there was delay, could take certain
practical steps for speeding up these undertakings, even at the
first session.
' The temporary trusteeship committee would in fact delay these
provisions of the Charter rather than speed them up. His Govem-
ment considered it would not be admissible to establish any artificial
organ as other more practical and more speedy means existed."'
That is the end of the quote of the statement by the Soviet delegate
at the Preparatory Commission.
The significance of the action taken by the Preparatory Commission
is thus seen in its true light, as explained by Dr. Kerno.It reflected the
wish to speed up the process of conversion to trusteeship rather than
to terminate Mandatories' responsibilities.
Respondent's interpretation of the Commission's action-implied this
is-imputes to the Commission in London an attempt to stultify, if not
nullify, Articl80 of the United Nations Charter. In fact, as is ciear, the
Preparatory Commission's purpose vas to expedite the conversion of
mandates to trusteeships, not to relieve iklandatory Powers of inter-
'
national accountability, which is the precisely contrary result.It itrue,
of course, that the Court, in its Advisory Opinion, did hold, with six
Judges dissenting, that Article 80 did not impose an obligation to
convert mandates to trusteeships, butthat is not the point at issue here.
What 1 refer to is a reasonable interpretation of the intention of the
Preparatory Commission in London in taking the action it did.
With regard to the third "new fact": relating to the Chinese draft
proposal, as we said in the Verbatim, at page 290, supnr, the alleged REJOINDER OF MR. GROSS
'363
crucial importance of this third fact "hinges upon a carelessly worded,
undocumented, unsupported and probably inaccurate" statement in the
Preliminary Objections as to why the Chinese Delegate in fact decided
.not to consummate his wish to propose a draft resolution. 1 do not
think it neccssary to dwell on this point further in my rejoinder.
Nor is it necessary,1think, to comment at length concerning Counsel's
reference to the fact, as it is, that Respondent's argument that the
significance of what took place at the last session of the Generai As-
sembly should not be read in the light of-and 1quote Counsel's words:
*Iof an outside observer who knows nothing of what took place; South
Africa [as he truly szid] was represented at the last Assembly of the
League, and Our re~iresentatives know what took pIace ...".That is
at page 339, supra, o;ithe Verbatim.
Mr. President, I think it is enough to say,on behalf ofthe Applicants,
that so were we and so do we.
Nor need much bt: said about the fourth "new fact" which, by a
process of fission, has now generated a fifth fact as well.
The original No. 4 sought to combine, under the heading "Practice
of States", the views of eleven Members of the United Nations Specid
Cornmittee on Palestine, as reflected in the Committee's report of
September 3rd, 1947, combining theçe views, as I Say, with the views
expressed by three other States in 1946, 1947 and 1948 respectively.
This is in the Prelimiiiary Objections at pages336-337 (1). Respondent
cites these views of States to support a contention, and 1 quote Respon-
dent, that the "practice of States showed a general understanding
that the League supi:rvisory powers in respect of Mandates had not
been transferred to, .3r assumed by the United Nations". That is at
page 334 (1) of the I'reliminary Objections. One of the States referred
to is the Soviet Unioii; another the United States.
Respondent's interpretation of the Soviet position rests upon a state-
ment made by Mr. Gromyko in the Security Council on z April 1947,
during a debate on the draft trusteeship agreement for the former
Japanesc Mandated Islands.
Respondent quotes excerpts from Mr. Gromyko's statement, at page
337 (1) of the Preliminary Objections. A fair reading of these excerpts,
1 submit, shows clearly that Mr. Gromyko said-and quite correctly,
we submit-that "there is no continuity, either legal or otherwise,
between the Mandat.x-y system of the League of Nations and the
Tmsteeship system laid down in the United Nations Charter". And
Mr. Gromyko added, again, we think, quite correctly, that the "Security
Council is not competent to decide to what extent Japan may have
violated the conditions of the Mandate system and the duties involved
in the administration clfhlandated territories". These are excerptsquoted
in the Preliminary OI)jections, at page 337 (1).
Mr. President, the point at issue in the Security Council debates was
whether Japan'ç title i:othe Mandated Islands should be declared forfeit
by reason of asserted violations by Japan of the terms of the Mandate.
The Soviet delegate maintained that such a declaration by the Security
Council was not necessary; that title to the islands would be determined
in accordance with the Tmsteeship system, which, of course,was designed
to supersede the Mandates system. This was wholly consistent with the
Soviet position respeci.ing the relationship between the two systerns, as 364 SOUTH WEST AFRICA
.reflected in the Soviet delegate's cornments at the Preparatory Com-
mission in the preceding year, to which 1 have already referred.
1 think that this clarifies the Soviet position, if indeed clarification is
needed, and it would seem quite untenable to argue, as does Respondent,
that the Soviet Union took the position that Mandatories' responsibili-
tieç terminated with the dissolution of the League. On the contrary,
the Soviet position was that the Mandatory responsibilities would be
superseded by Tniçteeship responsibilities.
The United States views were exactly the same in this respect. .
In Respondent's statement in replication, Respondent's Counsel re-
verted to the United States' views regarding the question whether the
United Nations, as Counsel put it, "took over the League of Nations
Mandate system". This form of expression is, of course, arnbiguous.
1 refer to page 343, supra, of the Verbatim. The real issue is whether
the United Nations Charter, and in particular Article 80 (1) thereof,
contemplated that pending conversion of Mandates into trustee-
ships which was, as this Court said in 1950, the "normal course"
of Mandated territaries would be fully protected, again as the Courtants
said in 1950: "under al1 circumstances and in al1 respects". That is
the language of the Court relating to Article 80 (1).
. Respondent's Counsel referred by name to the United States delegate
to the Trusteeship Council and repeats an excerpt which Counsel had
previously quoted in his oral statement at page 117, sufiru.The
United States delegate, Mr. Benjamin Gerig, has long been known as
an outstanding authonty on trusteeship matters.
The debate in 1947in the Trusteeship Council concerned information
to be furnished by Respondent in connection with the South West
Afnca Mandate. A fair reading of the record of the debate will show,
1 believe, that Mr. Gerig was intent upon one major objective: to
obtain, as tactfully aspossible, assurance by South Africa that it would
transmit full information concerning its administration ofthe Mandate.
Other staternents made by Mr. Gerig, and 1shaIl quote one illustrative-
ly in a moment, other çtatements made by Mr. Gerig show that in the
course ofthis debate, and with thisobjective in mind, he was navigating
through some diplornatic shoals. 1 quote the following excerpt from a
statement made by Mr. Gerig during the same debate:
"I am among those who always have believedthat the mandate
does continue in force,but there are others who do not take that
view. Therefore, because of some doubt here, 1 raise ttiat question.
1 would add that even if it does remain in force, that thought,
narnely, whether the Union Government is discharging its duties
under the Mandate, looks asif we have certain supervisoryfunctions
to see to it that the Union Govemrnent discharges its responsibilit~es
under the Mandate."
the document cited-the's coMinutes of the Session of the Trusteeship
Council.
Mi- .erig's viewthatthe Mandate continued in forceso long asneces-
sary to protect the inhabitants of the temtories was, af course, entirely
consistent with the position of the United States taken at SanFrancisco
two years earlier, and 1shall revert to that point after the translation. REJOIN DER OF MF.. GROSS 3%
Mr. President, 1 reierred in some detail in my oral statement to the
leadership taken bythe United States in sponsoring and çteering through
to adoption the so-called "conservatory clause", that is toy,Article 80,
paragraph I, of the Charter.
In the course of his Statement in reply, Respondent's Counsel, at
pages 342-34 u.pra, of the Verbatim, undertook an extensive analysis
with respect to the clrigin and meaning of this clause of the Charter
and he attributed to the Court the intention to rule that supervision
over Mandates was nothing more than what the Court considered to be
a general consideratica of "probability".
In our own submission,respectfully, the Court's treatment of Articl80,
paragraph 1, the contexts in which the Court refers to the Article, and
the striking emphasis of the language with which the Court interprets
the clause, do not bear out Respondent's interpretation of the Court's
meaning. Our own approach to the point is set forth in the Verbatim at
pages 304-307, wfira.
Reverting to the views of the United States at San Francisco regarding
Article 80, paragraph 1, Respondent's Counsel quotes an excerpt from
the United States delegate. He omits the next foliowing paragraph
from the delegate's ~tatement at San Francisco, which I shall read
with the Court's perrriission:
"lt is clear [saicithe delegatethe United States] that paragraph
5 (that is, Article 80, paragraph I) is intended to preserve the
rights during thai: in-between period from the time this Charter is
adopted and the -tirne that the new agreements are negotiated and
completed with the new organization. And it is not intended that
paragraph 5 [thai: is, ArticSol should be any basis for freezing
eternally the situ:ition affecting any territory."
It seems clear that, just as in the caçe of the Soviet Union and most
other Members, it was assumed thatthe normal course would be folIowed
and that al1 Mandate:; would either be converted into trusteeships. or
would, as has happened with the rest of them, be granted independence.
Ifany doubt could ;-emain concerning the views of the United States
Government, they are put to rest by the position taken by the United
States during the Ig$C)proceedings before this honourable Court.
1should like now to i:urn briefly to the "fifth factor", as it is now called.
In his first reference to this factor, Respondent's Counsel qualified his
description of the factor andsaid it was that one might "almost" cal1a
fifth group also under the heading "Practice of States".
It is, accordingly, desirable to give brief attention to this fifthfactor,
and this can be done in a few sentences.
In the first place, th,: so-caIled "Practice of States" covering the years
1947 to 1949 is not, and cannot be asserted to be, new material not before
the Court in 1950, everr in the sweeping lnterpretation given by Respon-
dent to the phrase "bt:fore the Court".
Respondent contencls that there was nothing vague or shifting in
the position of25 States which, over the years 1947, 1948 and 1949, and
1 quote from Respond<:ntls Verbatim:
'espressed the understanding that there was, outside of a Trustee-
ship Agreement, rioobligation to submit to supervision ... and no
power of supervision on the part of the United Nations in that
respect".
This is from the rg 0ci.ober Verbatim.366 SOUTH WEST AFRICA
Putting aside for the moment the fact that this is not "new material",
Respondent's analysis of the views of States, under the heading "Practice
of States", is to be compared with the analysis of the United States
in its Wntten statement submitted to the Court in the 1950 Advisory
proceedings.
In its statement, at page 103 of the Pleadings, the United States says:
"The general tenor of discussion in the General Assembly from
1946 to1948 was that the mandate for South West Africa continued
in existence."
The United States statement then goes on, at pagerog ofthe Pleadings,
to cite the views of II Members, including tu70 separate statements of
the United States' views in these years, to that effect. These are two of
the years covered by Respondents in Respondent's analysis of the views
of States:1947 and 1948.
The United States statement then proceeds:
"A minority of the members of the Assembly took the posi-
tion that the Mandate had already expired; most of these prem-
ised their conclusion by contending that the trusteeship systehad
already in fact replaced the Mandate system since the placing of
Mandates under trusteeship was compulsory."
That of course mas the view at the time these States referred to.
Under this heading, the Written statement refers to the Soviet Unioii
position as well as that of five other States.
The United States statement goes on, this time at page 104 of the
volume of Pleadings of 1950:
"South Africa at the sessions of the General Assembly in 1946-
1947 by no means ernbraced the minority view but firmly supported
the view of the majority."
Finally, says the 1950 Written statement of the United States:
"Recent developme~its with respect tothe Union of South Africa's
administration of South West hfrica and the expressions of Union
representatives indicating partial or total termination of the Man-
date, although pcrhaps foreshadowed in 1947 ,irst clearly appear in
1948 Read beside the record of contemporary events and state-
ments, such bclated comments are not persuasive as tothe intentions
and understanding of the Union and other States when the League
was dissolved and the United Nations estabiished."
That is at page 104, from the United States Written statement of 1950.
And, Mr. President, it is remarkable to note that among the States
cited by the United States statement as holding the view that the Man-
date ~esponsibilitiescontinuedinexistelzce,six States are to be found on
Respondent's list of States which, according to Respondent's submission,
at the same time heldthe view thatthe United Nations had no su$ervisory
power. It is in this respect only necessary to compare, or one may Say
contrast, Respondent's analysis, as it appears in the Verbatim at page
127, suFra,with the United States analysis of 1950 as it appears at pages
103 to 104 of the Written statement submitted to the Court iii 1950. REJOINDER OF MR. GROS5 367
Comment is not necessary. 1 cd1 the Court's attention to the two sets
of analyses and leave it at that.
In conclusion, it seerns that this fifth new factor does not add much fuel
to Respondent's case j'orreopening the 1950 Advisory Opinion.
Applicants contendcd, in the Verbatim at pages 300-301, sufira,
that the Court shoulcl, in the exercise of its sound discretion, refuse
to reconsider the Advisory Opinion. We cited Article61, paragraph r,
as reflecting what Respondent itself asserts to be generally accepted
principles favouringthe stability of judgrnents. That isthe sense,ifnot
the language, of Respcindent's contention. We submitted that the Court
should apply the minimal standards embodied in Article 61,paragraph I.
Respondent in its :;tatement in replication reverts to this matter,
insisting that Article 61, and the general principIes it embodies, are
irrelevant, on the ground that the principle of res judicata does not
apply to Advisory Opinions.
That the principle oIres judicata does notapply to Advisory Opinions
iscorrect; but that is 1)esidethe point.
As Respondent's Criunsel conceded, Advisory Opinions are entitled
to what he termed-justly-"strong prima facie weight as being of
precedential value as aii authority".1 quote from the Verbatim at page
IOO.supra. In its Prelirninary Objections, Respondent Iikewise conceded
that only-and 1 quote-"where good reasons exist therefor", should
Advisory Opinions be departed from in subsequent contentious proceed-
ings-1 cite page 214 (1) of the Preliminary Objections.
And in his oral statcment in reply, Respondent's Counsel put it this
way :
"The Advisory ilpinion is an authority, like any other authority,
and the only question that arises is a rnatter of its weight, and i1
could adduce to the Court s$eciaE reasons why the weight that
would normally bt: given prima facie to an Advisory Opinion does
not apply in the particular case,then I give those reasons, I give
them without refei-ence to requirements of Article61, orany similar
principle of law r.pplicable in circumstances completely different
from those which aow pertain."
That is at pages 350-3:;1,supra, of the Verbatim.
The difference between the Parties, then, is very simply stated. By
what criterion or yartistick are the "special reasons" referred to by
Counsel to be evaluated? We submit that the minimal standards,
embodied in Article 61, paragraph I, of the Statute of the Court, and
general accepted principles of law, should be looked to to furnish a
criterion. Respondent, as we see it, suggests no standard or scale of
measurement whatever.
1s Respondent's owri evaluation of its "new facts" and "new argu-
ments" to govern?
We believe the question answers itself.
Mr. President, 1veni:ure the thought that at this time the Court may
perhaps wish a comment concerning thelength of the remaining argument
in Rejoinder. 1 shal1 endeavour to telescope the balance of what 1 have
to Say,in deference tothe important questions which have been addres-
sed to the parties by li:arned Judges and shall attempt therefore to con-
clude my remarks as briefly as possible so as to leave time at this session
forthe responses to those questions.368 SOUTH WEST AFRICA
Respondent's contentions, with respect to Our, as he says, failure to
deal with its arguments denovo , e feel reflect a misunderstandingof a
large part of the burden of our effort. did indeed attemptto deal with
the merits of the arguments denovo, even though we thought it was not
necessary to do so, in view of Our submission that there is no basis for
reconsideration of the Court's Advisory Opinion. We did, for example,
attempt to meet head-on the contention with respect to partial Iapse;
we did attempt to meet head-on the contention with respect to its
interpretation of the clause in Article7 relating to another Member of
the League of Nations; we did also attempt to evaluate the Court's de-
cision as to Article80,paragraph I, and its interpretation in the ligof
its historywhich we have cited, and in the light itsapparent reasons as
are to be inferred fromits history. Moreover, we have attempted to meet
head-on Respondent's argument with regard to partial lapse, by refemng
to universally accepted principles of fiduciary obligations which we think
demonstrate the inescapable validity of the Court's comment that the
result contended for by Respondent could not be justified. So far as
Respondent's interpretation of the Court's meaning with respect to the
point of "justfication", we believe that our contentions reflect a correct
interpretation of the Opinion andrespectfully leave it at that. Respondent
has attempted to reinterpret the Court's Opinion with regard to the legal
nature of the Mandate institution. Respondent does this by interpreting
the sentence on page 136 of the Court's Opinion relating to, what the
Court cailed, animpordant aspect of the international obligations assumed
by the Mandatory. In the general considerations appearing in that
sarne paragraph, at page 136 of the Court'sOpinion, will be found several
sentences which justify, we think, ozlrinterpretation that the Court was
indeed referring to these international obligations aessentiarather than
merely important and that can be found, 1 think, from an inspection
of the text itself, particularly of the third and fourth sentences, at
page r36 of the Opinion, in that paragraph.
Finally, if it please the Court, Counsei for Respondent have seen fit to
intirnate that complex and highly charged issues underlyng this dispute
should dissuade the Court from taking up the merits, that at any rate is
how the proposition sounded to us.The Court itself has supplied a short
answer to any such proposal, if that indeed is the intent of Kespondent,'~
point. In its Advisory Opinion of July 20, 1962, relating to Certazn
expensesof theUnitedNations, the Court said (page 155 of the volume of
Judgments 1962) :
"It has been argued that the question put to the Court is inter-
twined with political questions, and that for this reason the Court
should refuse to give an opinion.Itis true that most intcrpretations
of the Charter of the United Nations will have political significance,
great orsmall. In the nature of thingsitcould not be otherwise. The
Court, however, cannot attribute a political character to a request
which invites it to undertake an essentially judicial task, namely,
the interpretation of a treaty provision."
Mr. President and Members of the Court, may 1 conclude in thanking
the Court for its attention, with a statement with which 1opened my
comrnents:
"It 1s possible to achieve the Rule of Law only because this
Court sits."
Thank you. QUESTIONS PUT BY THE COURT
9. ANSWERS TO QUESTIONS PUT BY MEMBERS
OF THE COURT
Le P~SIDENT: Mairitenant je donne la paroleà Monsieurl'agent de la
République sud-africaine seulement pour répondre à des questions qui
ont étéposéespar de.<membres de la Cour.
DR.VERLORE NAN THEMAA T:onsieur le Président, la réponLla
question posée par M. le Président Basdevant est la suivante: l'expres-
sion tn'ont pas de Eoc~sstandi»employée dans le contexte indiqué par
hl. lePrésident Basdevant signifie une absence de compétence des de-
mandeurs à introduire ou soutenir la présente affaire conformémehtou
en vertu de l'article7 du Mandat. L'expression locus standi est une
abréviation de l'expression locustandiinjudicio c,est-à-dire littérde-
ment une place pour se présenter à la barre: Dans la pratique judiciaire
générale, l'expression signifie la compétence de recourira procédure
judiciaire.
Monsieur le Présidelit, si la Cour le veut bM.nde Villiers répondra
maintenant aux questions posées par sir Percy Spender. Quand M. de
Villiers aura fini sa riponse, je soumettrai urequête d'amender nos
conclusions. Merci Monsieur le Président.
Le PRÉSIDENT:La narole est à Monsieur de Villiers.
Mr. DE VILLIERS:h!i:r.President, in presenting this reply to the ques-
tions putby Sir Percy Spender, 1would like to state at the outset that
thisis the best we cari present within the limited time at Our disposal.
1 Say thatfor this purpose, that if the Court, or any Meofthe Court,
should feel that we could be of further assistance by further investigation,
further research,or b:~amplification of what we state in reply to the
questions, then we woiild naturdy be only too pleased to CO-operatin
that regard, and to pu.t before the Court anything furththat may be
indicated in a request to us. Whether that should be by further, oral
representation,or in vn-iting, would be a matter which we could leave
to the Court if it should wish to addreasfurther request to us.
The questions as put by Sir Percy Spender required answers "in as
summary and as precise a form 3s possible". For that reason, we have
prepared our answersin writing and, contrarto what 1have been doing
thus far,I shall more or less read the answers to the Court with a mere
deviation here and there for purposes of brief comment.
We suggest that thi: following historical facts furnish a background
for answering the questions put by Sir Percy Spender. Thfirstis, that
on 7 May 1919, the Cc-uncilof Three, represented by Monsieur Clemen-
ceau, President Wilson and Mr. Lloyd George, announced that they
had "decided on 6th Iday as to the disposition of the former German
colonies as follows:" ariden, one of the items followiwas: "Gerrnan
South lliest Africa: Tlie Mandate shall be held by the Union of South
Africa". The quotatioii, Mr. President, is from thLeague of Nations
O@cial Journal of Junr:, 1920, at pa206. We refer to that matter also
in our Preliminary Obji:ctions, at p220 (1), and1cm further refer the
Court in this regard to Kluyver, Docztmentsof the Leageteof Nations,37O SOUTH WEST AFRICA
pages 291and 292; H. Duncan Hall, Madates, Dependencies and
Trusteeshifispages 145 and 146; Quincy Wright, Mandates under the
LeagueofNations, page 43;Temperley, A History of the PeaceConference
of Paris,Volume II,page 241.
It will be noted, Nr. President, that this disposition occurred before
the Covenant of the League of Nations came into force, the date of this
latter event being IO January 1920, and even before the Treaty of
Versailles was siped, that date being 28 June 1919. Therefore, I
might add that, with a view to its significance in regard to the questions
put, this uras long before the Council of the League came into existence.
The next important fact, or group of historical facts, was the following.
A Commission of the Supreme Council of the Principal Ailied and
Associated Powers, under the chairrnanship ofLord Milner, prepared a
draft Mandate for South West Africa, together with other draft Mandates,
in the summer of the year 1919 W.e find references to this fact in Quincy
Wright, at page 47; in the work of E. M. House and C. Seymour, What
really happenedat Paris, pages 227 and 440; in the work 8fTemperley,
to which 1 have referred, Volume II,at page 237; in Duncan Hall,
at page 136.
We know fram these sources that a draft was prepared, but that the
transmission of the draft to the Council was delayed because ofadiffer-
ence of opinion regarding the question whether the open-door principle
was intended to be applicable in the case ofC Mandates. Further refer-
ence may be found to this point in Kluyver, at page 292 ; Ternperley,
page 239; Quincy Wright, pages 47, 48 and 50.
Still in connection with the drafting of the Mandates, the determi-
nation of the terms of the Mandates, we findthat the Council of the
League, on 5 August 1920, decided to request the Principal Powers to
do certain things. We find that in a resolution of the Council of that
date. Firstly, the request was to:
"name the Powers to whom they [the Principal Powers] have decided
to allocate the Mandates".
And further, inter alia,
"to communicate to it [the Council] the terms and conditions of the
Mandates that they propose should be adopted by the Council from
following the prescriptions of Articl22".
In other words, here \vas an invitation to the Principal Powers by the
Council to make proposals, but proposals only in regard to terms which
they proposed should be adopted by the Council, the indications being
that the definitive actionwaç intended to be that of the Council.
We find further (1will give the references in a moment) that the
Council also decided in that same resolution-at any rate on the same
day-that it would:
"take cognizance of the Mandatol Powers appointed and will
examine the draft mandates communicated to it,in order to as-
certain thatbey conforrn to the prescriptions of Article zz othe
Covenant.
The Council wd notify to each Power appointed that it is invested
with the Mandate, and will, at the same time, communicate to it
. the terms and conditions." Ç!UESTIOKS PUT BY THE COURT
37I
The reference is to fhe Hymans Report, which was approved by the
Council at its San Sebastian session. lf7efind it in the League of Nations
ilficijaournal, No. 4 of 1920, at pages 334 et seq. There iç a reference
also to the same rnatter in Quincy Wright, at pages rog to 112; and in
Duncan Hall, at page 146.
Next, Mr. Presiden t, we find that the minutes of the Council of the
14th December 1920, in other words, about four or five months after
the request of Augut;t, indicate that on that date Mr. Balfour, the
United Kingdom rep~esentative,
"handed in draft inandates proposed by the British Government for"
a certain number of territories, and that list of territories included,
inter alia, German Siiuth West Africa. The reference there is to the
League of Nations OQicialJournal, 2nd Year, No. 1, page II. And we
find that the minute; further reveal that the Council referred these
drafts to the Secretariat:
"to consider the Mandates and to conçult other legal experts on
any points they considered necessary".
Rlr. President, the next stage in the developments was that on
17December 1920, th,: Council of the League considered a membrandum
on the drafts, tvhich had been prepared (the memorandum had been
prepared) by its Secr.:tariat, and this memorandum contained certain
suggestions for arnendments which were subsequently accepted by the
Council. The fact that that was so, relative to certain amendments, is
referred to in the Lel~gue of Nations O@cial Journal of the 2nd Year,
No. 1, at page 12,and there isalso areferencein Duncan Hall, atpage153.
But those sources do riot reveal exactly what the amendments were. We
know what the ultimate result was; we do not know from those sources
what the Balfour draft was on the particular points in respect ofwhich
there were amendments.
We did not know-and 1 Sayweas representing the Respondent-did
not know that eithei,, until this furtherresearch resulting from the
questions put by Sir l'ercy Spender. We have now at last succeeded in
gaining access to the tlocument-the Balfour draft-in this regard, and
that reveals what these amendments were. But before 1 refer to them 1
must ask the leave of the Court to do so because of the fact that the
document itself which we canoffer in proof has not arrived from Geneva.
We have the assurana: of the librarian at Geneva that the document is
there and it is being forwarded. We know exactly what the textual
points of importance are as far as the amendments are concerned, and
1 am in a position to tell the Court what they are, if the Court would
accept them as being subject to proof and subject to Our filing of the
document when it an-ives from Geneva. Could that please be rendered
to the Court first?
May 1proceed, Mr. President? 1 thank you.
It appears that the amendments related to the following points.
Firstly, the fourth paragraph of the prearnble of the dedaration as .it
now exists, Annex B to our Pleadingç, that was added by the Council;
that is the fourth par~.ra.h of the preamble which reads:
"Whereas, by the aforementioned Article 22, paragraph 8: it is
provided that the degree of authority, control or administration to
be exercised by the Mandatory not having been previously agreed372 SOUTH WEST AFRICA
upon by the Members of the Leape, shall be explicitly defined by
the Council of the League of Nations."
The Council appears, if 1 rnay interpose,by the insertion of this portion
of the preamble, to have emphasized the need for definitive action on
the part of the Council and to have referred specifically to paragraph 8
of Article 22 as explaining the sense in which the Council would act,
the sense of defining the degree of authority, control or administration
to be exercised by the Mandatory.
Then, a consequential amendment, or what appears to be conse-
quential, was made in the last words of the preamble, or shall we ssy
the words following on the preamble, the last words before the operative
portion. There the original words were: "The Council hereby approves
the terms of the mandates as follows." For those words there were
substituted the present words, nameIy: "Confirming the said Mandate,
defines its terms asfollows."
The third alteration concerned Article 7. Perhaps one should Say the
third and fourth, because it entails alterations both in the first part of
Article 7 and in the second part. The original clause, ascontained in
the Balfour draft, read asfollows:
"The consent of the Council of the League of Nations iç required
for any modification of the terms of the present Mandate."
dition was this:s no difference; but then what the draft contained in ad-
"provided that in the case of any modification proposed by the
Mandatory, such consent may be given by a majority".
I do not know that any significance attaches to that point for our
purposes, but that was the point of difference in that regard.
Then asregards the second portion, the compromisçory clause in the
Balfour draft read as follows:
"If any dispute whatever should arise between the Members of
the League of Nations relating to the interpretation or the appli-
cation of these provisions which cannot be settled by negotiation,
this dispute shall be submitted to the Permanent Court of Inter-
national Justice provided for by Article 14 of the Covenant of the
League of Nations."
The Court will imrnediately see the significance.Where we nom have
a dispute between the Mandatory and another Member of the League
of Nations, the original idea was a dispute between the Members of the
League of Nations.
The Court will recall that my Iearned friend Mr. hluller, in dealing
with our third objection, on IO October referred to a report by
Viscount Ishii, commenting on the amendments which had been brought
about to the drafts in the Council of the League. At that stage we did
not know exactly what the formulation of the original draft was, but
one could get an indication of that from this report. !Ne find it in the
Verbatim dealt with at page 215, supra, and there is this citation
from the report by Viscount Ishii. 1 refer to the last paragraph of it.
Perhaps 1 should refer to the whole citation. It begins by setting
out that:
"The Council will perhaps desire to alter the first paragraph of
this article so that it shall read as follows:" QUESTIONS PUT BY THE COURT 373
and then the reading :followswith the comment:
"Asimilar alteration has been made by the Councilin the draft C
mandates. It wat inspired by the consideration that Mernbers of
the League other thanthe Mandatory couldnot be forcedagainsttheir
will to submit their differences to the Permanent Court of Inter-
national Justice."
I refer to this merely in passing as supporting the point made there
by my learned friend, Mr. Muller, in this regard, that that original
formulation contains no suggestion whatever of any judicial supervision
of the Mandate, It relates to prospective disputes between Members of
the League, and the reason for the alteration also indicates no intention
whatever of providing for judicial supervision. The reason was simply
the one as stated there.
Those then were, ;is far as we have been able to ascertain, the
alterations actually decided upon, the amendments decided upon by
the Council of the League after considering the draft as proposed by
Lord Balfour on behalf of Great Bitain.
Now, Mr. President, in the light of this historical survey, perhaps 1
should Say against its .~ackgound, we submit that the questions put by
Sir Percy Spender be answered as follows:
1 read out for the purposes of convenience the formulation of the
question and then the answer.
Questio I.nHad the terms or provisions of the Mandate asthey appear
in that declaration,ancithe designation of the Respondent asMandatory,
already been agreed Io between the Principal Allied and Associated
Pawers andHis Britainic Majesty on behalf of the Respondent, prior
to any action taken dhereon by the Council of the League, subject
however only to the approval by the Council of these terms or provisions
to the extent it was required to define the degree of authority, control,
or administration to ba exercised by the Mandatory under Article 22 (8)
of the Covenant, and to satisfy itself that these provisions and terms
were not inconsistent viith the provisions of Article22 of the Covenant?
If so, in what docum1:nt or documents is such agreement recorded?
Our answer is, Mr. President, that this question can best be answered
in two parts, separating;the designation of the Respondent as Mandatory
from the deterrninatio*~of the terms of the Mandate, since these two
matters were dealt with separately.
First, then, the desijpation of South Africa as Mandatory for South
West Africa was a fundion of the Principal dllied and AssociatedPowers.
Such designation was decided upon by them on 6 May 19x9 and notified
to the Respondent on 7 May 1919, for which fact we have already
cited the necessary prcof.
Then, çecondly, the terms of a draft mandate for South West Africa
were drawn up and aiiproved by the Principal Powers, subject to a
reservation by one of them on the question of omission of an open-door
provision. The terms of the draft differed in the respects which 1 have
already indicated from the declaration as now contained in Annexure B
to the Preliminary Objections and to the Observations.
Now, on the question whether there was any agreement to, or approval
of, the terms of this d::aft by the Respondent asMandatory, on that
question we, the Respc-ndent's representatives, can, on the information
available to us,take tf:e matter no further than to say that agreement374 SOUTH WEST AFRICA
or approval iç çuggested by certain factors. The firstisthe statement
which we find in the third paragraph of the preamble of the deciaration
that :
"...Hiç Britannic Majesty, for and on behalf of the Government
of the Union of South Africa, has agreed to accept the Mandate in
respect of the said territory and has undertaken to exercise it on
behalf of the League of Nations in accordance with the following
provisions ;"
Knowing, aç we do, that that was a provision which had already occurred
in the draft and was not arnended by the Council, it appears to show
that there must have been prior indication of approval or assent to the
terms of the draft by the Mandatory.
The second factor is that the United Kingdom was one of the
Principal Allied and Associated Powerç and that the Government of the
United Kingdom, under the designation "His Bi-itannic Majesty",
formally represented the Government of the Union of South Africa in
the acceptance of the Mandate, thus rendering probable that there would
have been consultation between the United Kingdom and South'African
Governments as to the terms of the draft.
And, thirdly, almost a corollary to the previous point, is the fact
that the draft was "handed in" to the Council by the United Kingdom
representative as one of the "draft niandates proposed by the British
Government". That was the phraseology used on the introduction of
.the draft.
Therefore, Mr. President, there is no question here of a forma1
document, in the sense of a treaty or convention, which can be referred
to as indicating an agreement as between the Mandatory and the
Principal Powers pnor to the matter being referred to the Council of
the League. There are these indications that there was probable agree-
ment as between the Mandatory and the Principal Powers as to what
these proposed terms should be, as to wha' the terms of the draft should
be. That isas far as the matter goes.
In Our submission, al1the available evidence as we have dealt with it
suggests that in so far as there may have been such agreement, that
agreement was not intended to be constitutive of a treaty or convention
to come into force between the Principal Powers and the Mandatory.
The agreement, which we infer must have been there, concerned merely
the terms of a drajt mandate to be submitted to the Council for its ap-
proval, in other words profiosed terms for definition by the Council.
The very submission to the Council implied an acknowledgment of a
right or power on the part of the Council to disapprove and/or amend
the proposed terrns, and we know that that power was in fact exercised
as regards amendment.
That submission to the Council also carried an acknowledgment, or
shall 1Say a contemplation, that only appropriate action on the Council's
part would legally bring terms of a Mandate into force, tliat appropriate
action being definitionin terms of, or in pursuance of,Article 22 (8)of
the Covenant.
We find also that the wording andthe contents of the proposed terrns
show that they were not designed or intended for operation as between the
Mandatory, on the one hand, and the Principal Powers as such, on the
other hand. They do not purport to set out a legal relationship which QUESTIONS PUT BY THE COURT 375
was to operate as between the Mandatory and the Principal Powers as
such. That is not the way in which they were designed, that isnot the
way in which they read, that is not their apparent purpose at all.
We find, therefore, that there was apparently in factno contemplation
that such agreement as there may have been between the Mandatory
and the Principal Powers prior to reference of the matter to the Council
of the League, could itself be regarded asbeing of the nature of a treaty
or convention. Action in accordance with that view of the situation, to
which reference may b; made, is that of the United States of Arnerica,
wkich was one of the Principal Powers that acted at the stage of alIocation
of the Mandates and ai.the stage of preparation of draft mandates, but
who later, because of the fact that the Treaty of Versailles was not
ratified on behalf ofth(: United States, entered into separate agreements
and conventions with the various Mandatory Powers in order to secure
rights in the Mandated territories such as a Member of the League would
otherwise have. That indicates an absence of a contemplation that by the
mere agreement with the Mandatory as a Principal Power at the time
any such treaty would have corne into operation.
We conclude, therefore, in answer to this question that there would
be no justification in law, in Our subrnission, for saying that a treaty
or convention came int~,force between the Mandatory and the Principal
Powers by reason of th[: probable agreement between them, prior to any
action taken by the Co:lncil, upon proposed terms for the Mandate.
[Publi ci!aringof22 October 1962, a/ternoon]
Mr. President, 1 proceed with question 2, which read:
"Did the Council of the League, in relation to the creation of the'
Mandate, have ur:der the Covenant or otherwise any power or
authority
(a) to determine the terms and provisions of any Mandate other
than those which defined the degree of authority, control or admin-
istration to be exercised by the Mandatory and to ensure that the
terms and pr0visic.n~ were not inconsistent with the provisions of
Article 22 of the Covenant? or
(6) did it have any power or authority to designate a Mandatory
or confer a Mandate on any Power?"
and then there is a further general question under 2:
"And did it ever purport to exercise any such power or authority
in relation to the Ilandate?"
Our answer is as to (69:Article 22 did not confer on the Council of the
League any power to determine the terms and provisions of any Mandate
apart from the defiriitio~iof authority, control or administration asset out
in Article22 (8).Under .Article 4,paragraph 4, of the Covenant, however,
the Council could deal vith:
"any matter withiri the sphere of action of the League or affecting
the peace of the world".
This gave the Council a.generaI power which it was possibly entitled to
use in relation to the creation of Mandates in so far as such actionmight376 SOUTH WEST AFRICA
be conducive to the achievement of the piirposes ofArticle 22 and was
not inconsistent with the terms of that Article or with the rights of the
Mandatory. We would not strenuously contest a suggestion to the effect
that, on that basis, the Council might be said to have power to make pro-
vision for matters ancillary to those expressly mentioned in Article 22.
As to (b), no power or authority to designate a Mandatory or confer a
Mandate on any Power was given to the Council of the League.
And then the general question as to what the Council purported to
doin this regard, our answer is: the Couiicil of the League never purported
to exercise any power or authority such as ireferred to in part(b) of the
question. In regard to a power or authority as referred to in part (a) of
the question, the Council might possibly be taken to have purported such
exercise with reference to the compromissory clause in Article 7 of the
Mandate, with the Mandatory's consent and in accordance with the
considerations which we have mentioned above at the conclusion of our
answer to part (a) of the question.
We corne then to question 3:
"Does any party to these proceedings claim that the Declaration
by the Council (Annex B) is initsela treatyor convention?"
Our answer is this: in its written Objections and oral statements
Respondent proceeded on the assurnption that the Mandate for South
West Afnca, as recorded in the Declaration by the Council (Annex B),
was during the lifetime of the League of Nations a treaty or convention
in itself, that is, an international agreement between the Mandatory
on the one hand, and, on the other, the Courzcilrepresenting the League
andior its Mernbers. We stated several times, Mr. President, that that
proposition could be taken to be common cause as related to the period
of the lifetime of the League.
The questions now raised, however, necessitate reconsideration
of this assumption. And we subrnit that the alternative view might well
be taken that in defining the terms of the Mandate, the Council was taking
executive action in pec~sztanceof the Coknant (which of course was a
convention) and was not entering into an agreement which would itself
be a treaty or convention.
This view-we put it no higher than aview that might be taken-would
regard the Council's Declaration as setting forth a resolution of the Coun-
cil, wkich would, like any other valid resolution of the Council, owe its
ïegal forceto the fact of having been duly resolved by the Council in the
exercise of powers conferred upon it by the Covenant. This view would
further regard the Mandatory's consent not as a constituent element of
an international agreement, but as something intended to assure the
unanimity required for a Council resolution or, possibly, something in-
tended to prevent possible prejudice on the part of the Mandatory, seen
as a League Mernber whose interests were affected within the meaning of
Article 4 of the Covenant, the Article which provided for special repre-
sentation of a League Member on the Councilin the event of consideration
of a matter affecting that Member's interests. We point out that the
Mandatory's assent, consent, or agreement could then possibly be
viewed on the basis of meeting with the requirements underlying those
provisions of the Covenant, as being something practically necessary
with a view to an effective Council resolution. QUESTIONS PUT BY THE COURT 377
We submitfurther that on the basis of this view the Declaration itself
would not be a treaty or convention, just as little as any other Council
resolution would be a treaty or convention; nor would it be part of the
convention .(the Cove~iant)in pursuance of which it was made, just as
little as any other Co~ncil resolution would be part of the Covenant.
Such a view might, however, possibly require qualification regarding
the comprornissory clause in Article 7 of the Mandate, which could not
subject the Mandatory to compuIsory jurisdiction without the Manda-
tory's consent thereto. Therefore, even on the basis on which we are
proceedingnow, the consent of the Mandatory may wellhave to be viewed
in a different light as?plied to Article 7than as applied to the rest of the
Council'sDeclaration. Possibly that provision in Article 7 would for this
reason nevertheless hiive to be regarded as being of the nature of an
international agreement.
On the other hand--we are trying to put the two points of view in
this regard, Mr.President-çupport for the view that no portion of the
Declaration was intended to be a treaty or convention 1s afforded by
certain considerations. These are, firstly that it was calIed a "dedara-
tion" and not a treaty or convention; secondly that it was ~ot signed by
any parties; thirdly tliat it contained no provision for ratification, and
was in factnot ratified by any State-the Declaration itself merely pro-
viding that certifiedco:gieswere to be forwarded to al1the signatories of
the Treaty of Peace with Germany; and fourthly that the DecIaration
was not intended to be registered under the provisions of Article 18of
the Covenant-as appe~rs fromitsown terms, inasmuch asit provides inits
concIusion that it was to be deposited in the archives of the League.
Perhaps 1could add a fifth consideration, to this effect:that there ap-
pears to have been a large measure ofuncertainty amongst the commenta-
tors, and historically on the part ofthe organs of the League themselves
on the question wheth;r the Council ever had treaty-making capacity at
all; and 1am told, although 1 cannot vouch for this statement-1 have
not made the investig;ations myself-that there is no case on record
where the Council pur;?orted to enter into a treaty, unless one regards
the present case as being such a case.
Then we corne to qiiestion number 4, which reads:
"If this Declaration was not in itself a treaty or convention, what
were the constituent elements which comprised the treaty or
convention; in particular, what other agreements, if any, or what
other acts on the part of any State or States established the treaty
or convention inrelation to the Mandate on the terms or provisions
set out in the Declaration?"
treaty or convention, in the sense as stated at the beginning of ourelf a
answer to the third qiiestion, then the Mandate cannot be regarded as
ever having been a treaty or convention at all-except that the possibk
qualificationregarding thecompromissoryclause in Article 7should again
.be mentioned here, aswe have discussed it above, in relation to the alter-
.native .viewstated in answer to the third question.
We say further in znswer to this question that the Covenant was a
treaty or convention; but on the alternative view in question-the
one stated in answer to the third question-Annex B would not be
part of such a convention, just as any other resolution of the Councd 378 SOUTH WEST AFRICA
or of the Assembly of the League could not be regarded as part of the
Covenant.
In the light, then, of the above answers to the questions put, our
answers to the final questions are as follows Mr. President:
QuestionA : "Who in 1920were the parties to any treat or convention
by virtue of which the Mandate was conKrred upon the
Respondent upon the terms or provisions set out in the
Declaration?''
Our answer is: if Annex B constituted a treaty or convention, the
parties were on the one hand the Mandatory and on the other hand the
League of Nations andior its Members as such (as set out in our oral
statements and Our Preliminary Objections, especially at pages 307 to
312 (1) of the latter) :that is on the qualification "if AnBexconstituted
a treaty or convention", the significance of that qualification appearing
from what we have stated before in answer to the other questions.
QuestioaB: "If States, Members of the Leagu<e,were parties to such
treaty or convention :
(1) Was the treaty or convention registered under the
provisions of Article 18 of the Covenant and the
machinery forregistration established by the League?
If so, by whom was it registered and to whom was
the certificate of registration issued?
(2) Ifnot registered, what significance, if any, is to be
attached to the fact of non-registration?"
' Our answer is (1):Annex B was not registered asa treaty or convention
under Article 18 of the Covenant, as is apparent from the League of
Nations Treaty Series, the officia1 name being Publication of Treaties
and Inlernational Engagementsregisteredzeiilh theSecretariatoftheLeague
of Nations. The publication is available in the Carnegie Library and we
have checked thismatter in that publication.
Secondly, that.is, as to question 2 under B, the fact that Annex B
w& not registered seems to indicate that it was neither intended to be
nor regarded as a treaty or convention when adopted by the Council
of the League, inasmuch as the effect of non-registration was, in terms
of Article 18 of the Covenant, that a treaty or convention would not be
binding .
In any event, we submit that the efiect of non-registration would
appear to be-we do not put it higher than that-that the Mandate,
either as a whole or as regards any portion thereof, for example, Ar-
ticle 7, could not have been "in force" at'any time as a treaty or con-
vention.
These, Mr. President, are our answers to the questions; and in the
light of those answers, and in order to enable the Court to give full
consideration to the alternative possibleviews set out therein, our Sub-
missions will require some amendment. That will be dealt with by my
learned friend and Agent, Dr. verLoren van Themaat.
1 thank the Court again for itç courtesy and consideration, which
has made the experience of appearing before it a very pleasant one. QUESTIONS PUT BY THE COURT 379
Le PRÉSIDEKT M:aintenant je donne la parole à Monsieur l'agent de
l'Éthiopie et du Libéria pour sa réponse aux questions posées par les
Membres de la Cour.
Mr. GROSSM : r. President and Members of the Court, first, the Agent
for the Applicants ha. taken note that on 17 October 1962, Judge
Basdevant drew the Agent's attention to the use he had made of the
expression locus standi at the end of the hearing on 16 October. The
Agent for Ethiopia an.1 Liberia would like to take this opportunity
to state that the phrase Eocusstandi was used as a convenient and
informal method by which we referred to the Applicants' right and
capacity, in these cases, to invoke the compromissory clause of Artic7e
of the Mandate. As M. le Président, Judge Basdevant, pointed out,
the phrase appearsneither in the Statute of the Court nor in the Mandate.
Our use of the phrase ~;LSnot intended in any sense or significance other
than as 1 have exp1ainc:d.
During the hearings on the South West Africa cases on 17 October
1962, Judge Sir Percy Spender addressed to the Parties certain questions
with the request that tkiey direct specific attention to them and answer
them in as precise a forin as possible.
Question I
The answer to both iiiquiries ernbodied in the first sentence is in the
affirmative. The answeI to the second sentence of Question I is that
the fact of prior agreement isrecorded in paragraphs 2 and 3 of the
preamble of the Declaration of the Council of the Leagve of Nations,
as set forth in Annex E of theApplicants' Memorials.
Cmment on theforegoin!:answeus :
Prior toany action taken by the Council of the League, the designation
of the Mandatory had ah-eady been decided upon. The decision was made
by the Principal Alliecl and Associated Powers, acting through the
Supreme War Council, and occurred on May 7, 1919.The fact ofthis
decision is recordedinteralia,in Part V, Foreign Relationsof the United
States (Paris Peace Conrierence1919, at pp 506-608.)
The Applicants are wqaware of any place in which the fact of prior
agreement or decision on the terrns or provisions of the Mandate is
explicitly recorded, othtir than in the preamble referred to above.
The agreement of the Mandatory to submit to the compulsory juris-
diction of the Court in accordance with the terrns of Article 7 of the
Mandate is set forth in .Articl7 itself, whicis the only Article in the
Mandate commencing with the words "The Mandatory agrees".
Questionz
The response to part (k) is in the negative.
The response to part (b) is in the negative.
With respect to the inquiry embodiedin the last sentence of Questi2,
the response isalso in the negative.38~ SOUTH WEST AFRICA
Question3
The response is in the affirmative.
Comment :
(a) It is agreed by the Parties to the present proceedings that the
Declaration by the Council (Annex B of the Memonals) is in itself a
treaty or convention. Relevant citations appear $assim in the Prelim-
inary Objections, Observations, and oral statements of Counsel for
al1 the Parties, as well asin Respondent's first submission that the
Mandate is "no longer" a treaty or convention in force.
(b) President Wilson's Third Draft Proposal for the Covenant of the
League of Nations, paragraph III, provided that the "degree ofauthority,
control or administration to be exercised by the mandatory State or
Agency shaU in each case be explicitly defined by the League (later
"Council" was substituted for "League") in a Special Act or Charter
which shali reserve to the League complete power of supervision and of
intimate control, etc." (This is quoted in the Verbatim, at page 26,
srspra.)
The reference to "Special Act or Charter" appears to be significant.
In thetext of many Mandates, it willbe seen that the word "declaration"
(orintheFrench text, "exem$laire")is replaced by the word "instrumentJ'
(or in the French text, "acte"). 1 remind the Court that in the draft of
President Wilson the reference is to a Special Act or Charter which is
to embody the undertaking.
Hence it is clear that the Mandate "instrument" or "declaration",
asthe terms are used interchangeably, corresponds to the "Special Act
or Charter" envisaged in the draft proposal of President Wilson, which
1have quoted.
The "declaration" or "instrument" waç the formal Act of the Council
of the League which embodied and evidenced the agreement between the
Mandatory Powers, on the one hand, and the other hlembers of the
League, on the other, the Council of course acting for the latter.
(c) The Permanent Court in the Mavrommatis case, at page 35, as
is clear from the context, described Article26 of the Palestine Mandate
as an "international agreement".
(d) As appears from the Court's Opinion in the Mavrommatis case,
at page II, Great Britain agreed that "Article 26 of the Mandate fa&
within the category of matters specially provided for in Treaties and
Conventions in force."
(e) Article 80, paragraph I, of the United Nations Charter refers
in its final clause to the "terms of existing international instruments
to which Members of the United Nations may respectively be parties".
The history of Article 80, paragraph 1, as well as the reference in
Article 77, paragraph I (a), of the Charter to "territories now heldunder
Mandate", show that the word "instrumentJ' in Article 80, paragraph 1,
refers to the Mandate "instrument" or "declaration" with respect to
the Mandates, as it is alternatively describeciin the Mandates themselves.
Article80. paragraph 1,shows that the Membersof theUnitedNatians
were regarded as "parties" .to these "instruments": Any "instrument"
which has "parties" is, ex hypothesi, an "agreement". QIIESTIONS PUT BY THE COURT
381
(f) In the Advisory Proceedings, the Separate Opinion in 1950 of
Judge McNair and th(: Majority Opinion-the former specificaily and
the latter inferentially-treated the compromissory clause of Article 7
of the Mandate as a "treaty or convention in force". The reference to
the inferential use by the Majority Opinion refers to the phrase "having
regard to Article 37 of ;:heStatute of the International Court of Justice"
which is the phrase used by this honourable Court: in referring to the
compromissory clause cnthe 1950 Advisory Opinion.
Question4
In the light of the response to Question3,s26$rat,he inq~y embodied
in the first sentence of Question 4 is not required to be answered.
QuestionA
Respondent, specificxlly, and al1other States who were at that time
Members of the Leaguf: of Nations were such parties.
Question B
(1) The response to the inquiry embodied in the first sentence of
Question B (1)is in th!: affirmative:
The response to the inquiry embodied in the second sentence of
Question B (1)is as follows: The Declaration contained in Annex B to
the hfemorials waç ordt:red by the Council of the League of Nations to
be deposited in the archives of the League of Nations. The Council also
ordered that certified copies were to be forwarded by the Secretary-
General of the League of Nations to al1Powers signatories of the Treaty
of Peace with Gerrnany,
Applicants have not received specificinformation concerning thedate
or circumstances of thi: actual deposit of the Declaration. That such
rleposit was in fact madi:, however, is evidenced by the fact that certified
copies were duly forwxacdedby the Secretary-General of the League of
Nations on 17 February 19zr to al1 Powers signatories to the Treaty
of Peace with Germany..
Applicants have not received information whether a "Certificate of
Registration" was issued.
Comment :
The Council of the L.eague of Nations established at least two pro-
cedures for the registrxiion of treaties. Special provision waç made.for
treaties which were placed under the care of the Secretary-Generd of
the League. (This may be seen from a memorandum approved by the
Council of the League of Nations, meeting in Rome on May 19, 1920,
.set forth in Leagueof fiutions TreatySeries, Vol. I,Number I, at p. 9.)
.Moreover, orders by the Council pertaining to the deposit of Mandate
Declarations (or Instruments) and the trançmittal of certified copies
thereof, in purpose and effect constituted a registration procedure
appropriate to the regktration of Mandates. The procedure which was .
followed made the Mandates public documents, thereby accomplishing
the objectives of Article: 18of the Covenant of the League of Nations.382 SOUTH WEST AFRICA
(2) In the light of the response to QuestioB (I),supra,this question
does not appear to require an answer.
QuestionC
Respondent, specifically, as well as al1 other States which were
Members of the United Nations at the date of the Applications in these
proceedings, andjor Members of the League of Nations at the time of
its dissolution were such parties.
Respectfully submitted. Thank you, $Ir. President.
Le PRÉSIDENT: Maintenant, je donne la parole à M. l'agent de Ia
République sud-africaine.
DT..VERLOREN VAN THEMAAT ?:lr.President, for the reasons indicated
in Our answers to the questions of Sir Percy Spender, and with the
leave of the Court, we hereby amend Our Submissions by substitution
of the following paragraph for the paragraph commencing with the
word "Firstly" :
"Firstly, the Mandate for South West Africa has never been, or,
at any rate is since the dissolution of the League of Nations no
longer, a 'treaty or convention in force' within the meaning of
Article 37 of the Statute of the Court, this Submission being
advanced
(a) with respect to the Mandate as a whole, including Article 7
thereof; and
(6)in any event, with respect to Articl7 itself."
We will hand over the full text of our amended Submissions to the
Registrar.
I thank the Court.
Le P~SIDENT: M. l'agent de l'Éthiopie et du Libéria voudrait-il
énoncer des amendements à sa conclusion?
Mr. G~oss: Mr. President, the Agent for the Applicants does not wish
to arnend its Submissions, but respectfully requests leave of the Court
to file the conclusions in written form withintime-limits fixed by the
Court on the subjects which have been introduced by the Respondent,
and in particular by reason of the amendment which Respondent has
made of its Submissions.
Le PRESIDENT : e toute façon ce délai, si la Cour l'accorde, ne sera
pas considérable.
M. l'agent de lJfithiopie et du Libéna voudrait-il lire ses amendements
ou ses conclusions amendées en audience publique?
Mr.GROSS : Mr. President, we do not intend to amend our Submissions.
We wouId like to reserve the right-to submit conclusions in the light
of the amendments which have now been made by the Respondeqt in
its Submissions. We do not ourselves intend to amend Our Subrnissions.
In reserving this right, Mr. President, it is our feeling that in view of
the fact that, by response to, or in the form of a response to, the questions
raised by Judge Sir Percy Spender, a substantive issue may be presented
which we should like to study.It is simply a reservation of the right
to submit comments and conclusions with respect to that Submission QUESTIONS PUT BY THE COURT
383
that Applicants respec:tfully request.If,upon study within a short time-
Iimit setby the Couri:,Applicants conclude that no such memorandum
t or comments are necessary, we shall advise the Court through the
Registrar and not take advantage of the right which we have reserved.
Le PRÉSIDENT:Alors, dans ces conditions-là, je ne déclare pas encore
la procédure orale clcse et je prierai lesagents des Parties de se tenir
pendant un certain temps à la disposition de la Cour pour le cas où
ellevoudrait leur deniander des éclaircissements supplémentaires.
Les Parties seront avisées de la décisionde la Cour en ce qui concerne
l'audience éventuelle.
Procès-verbaux des audiences publiques tenues au Palais de la Paix, La Haye, du 2 au 22 octobre et le 21 décembre 1962, sous la présidence de M. Winiarski, président