INTERNATIONAL COUROFJUSTICE
PLEADINGS, ORAL ARGUMENTS, DOCUMENTS
SOUTH WEST AFRICA CASES
(ETHIOPIv.SOUTHAFFUCA;
LIBERIAv.SOUTH AFFUCA)
VOLUME IX
COUR INTERNATIONALDEJUSTICE
MÉMOIRES, PLAIDOIRIES ET DOCUMENTS
AFFAIRES DU SUD-OUEST AFRICAIN
(ÉTHIOPIEcAFRIQUEDU SUD;
LIBÉFUACAFRIQUEDU SUD)
VOLUME IX The present volume contains the continuation of the oral arguments
on the merits in the South West Africa cases and covers the period
27 April to15 June 1965.The beginning of the oral arguments on the
merits (15 March to 26 April1965) is published in Volume VIII, pages
105-712. The proceedings in tkese cases, which were entered on the
Court's General List on4November 1960 under numbers 46 and 47,were
joined by an Order of the Court of 20 May 1961 (SouthWestAfrica,
Order of 20 May 1961, I.C.J. Reports 1961, p. 13). Two Judgments
were given, the first on21 December 1962 (South West Africa, Preli-
minary Objections, Judgment, I.C.J. RePorts 1962, p. 319). and the
second on 18 July 1966 (South West Africa, Second Phase, Judgment,
I.C.J. Reports1966p ,. 6).
Cross references correspond to the pagination othe present edition,
the volume being indicated by a roman figure in bold type.
The Hague, 1966.
Le présent volume contient la suite des plaidoiries sur le fond reIatives
aux affaires du Sud-Ouest africain, et porte sur la période allant27u
avril au 15juin 1965.La première partie des plaidoiries sur le fo(15
mars-26 avril 1965) est publiée dans le volume VIII, pages ro5 à 712.
Ces affaires ont étéinscrites au rôle généralde la Cour sousnos46 et
47 le 4 novembre 1960 et les deux instances ontétéjointes par ordon-
nance de la Cour l20 mai 1961 (Sud-Ouestafricain, ordonnancdu 20 mai
1961, C.1.l. Recueil1961, p. 13). Elles ont fait l'objet de deux arrêts
rendus Ie 21 décembre 1962 (Setd-Ozieslafricaila,exce$fiom $rélimin.aires,
arrêtC,.I.J.Recueil1962p ,.319) et l18 juille1966(Sud-Ouest africain,
deuxième phase, arrêtC.I.J. Reczlei1966, p. 6).
Les renvois d'un mémoire à l'autre ont étémodifiés pour tenir
compte de la pagination de la présente édition. Lorsqu'il s'agit d'un
renvoi à un autre volume de la présente édition, un chiffre romain
gras indique Ie numéro de cevolume.
La Haye, 1966. CONTENTS - TABLE DES MATIERES
PART II. ORAL ARGUMENTS (colztinued)
DEUXIEME PARTIE. PLAIDOIRIES (suite)
ANNEXES TO THE MINUTES (continued)
ANNEXES AUX PROCÈS -VERBAUX (suitej
Page
9. Argument of Mr. Gross (Ethiopia-Liberia), 27-28 IV 65. . . .
Premature submission of the proposa1 . . . . . . . . . . . 4
Purposes asserted by Respondent tu underlie its proposa1 - . 8
Applicants' contentions in respect of issues of fact . . . . . 16
No purpose would be served by inspection in Eocoor by calling
witnesses . . . . , . . . . . . . . . . . . . . . . .
Task of the Court should it be called upon tu examine al1the . .
facets of the factualsituation. . . . . . . . . . . . . .
Respondent's obligations pursuant to Article 22 of the COV-
enant and Article z of the Mandate . . . . . . . . . . .
Political questions and legal questions . . . . . . . . - . .
International supervision over the Territory . . . . . . .
Thepurpose. of. . . . . .ad ..a.t. . . . . co.c. . .f .u. . . .d
International legal noms and international standards . . . .
Reply to Judge Sir Gerald Fitzmaurice's questions (28April) .
Areas proposed to be examined . . . . . . . . . . . . . .
Inspection in the Republic of South Africa. . . . . . . . .
The Applicants' submission . . . . . . . . . - . . . . .
IO. Argument of Mr. de Villiers (South Africa), 28 IV65. . . . .
If no value judgrnent asked,factual enquiry would be irrelevant
Ir. ~r~urnent of Mr. Gross (Ethiopia-Liberia), 28-30 IV 65. . . .
Reply to the President's question concerning Submissions. . . 3
and4 ........................
Method suggested by the Applicants for taking evidence from
witnesses . . . . . . . . , . . . . . . . . . . . . .
"Value judgment" by the Court , . . . . . . . . . . + .
12. Argument of Mr. de Villiers (South Africa), 30 IV65. . . . .
Whether inspection irrelevant depends on Applicants' case . .
AGood intentions or results irrelevantrd. . . . - . . . . .
Do factual allegations in the pleadings still stand? + . . .
Paragraphs 187-190of Chapter V of the Mernorials . . .
Allegations in the Reply , . . . . . . . . . . . . . .X SOUTH WEST AFRlCA
Page
Nom refers to relativelyfew adverseaspects of Respondent's
policy .......................
Training of engineers ................
Number aflectedicti...................
Necessary to draw dividing lines ...........
Applicants rely also on standards ............
What are standards? ................
Wow should Court apply them? ............
Contents of norm ...................
What is the distinction between differentiation and dis-
crimination? ...................
Does such distinction depend on fact? .........
Summary of eventualities which would render inspection
necessary ........................
(a) If an alternative factual charge remains ......
(6) If existence of norm justified on a factual basis ...
Weight of scientific authority ..........
.(d) If a qualificationredin the norm requires a factual
enquiry ....................
Respondent not prepared to concede that inspection un-
necessarv .....................
Argument of M; .G~OSS (Ethiopia.Liberia). 3 v 65 ......
Reply to Mr .de Villiers .................
Apartheid is a per se violation of the provisions of Article 2.
paragraph 2.of the Mandate ...............
The "value judgment" ..................
Divergence of views between the Applicants and the organized
international community .on the one hand. and Respondent
on the other .....................
14 . Argument of Afr .de Villiers (South Africa). 3 v 65 .....
Basis of Applicants' case relevant to inspection proposa] ...
Do factual allegations still stand? ............
Submissions 3 and 4 still unamended ..........
What facts are admjtted ...............
Explanations ...................
Education ..................... ...
Land ownership .................
Influx control ...................
. 'Advantages of separate development ........
.. Disadvantages of alternative policy ...,.....
Respondent'ç state of mind ............
The population of South West Africa is in favour of
. separate dcvelopmcnt ..............
. The necessity of interim measures .,........
Applicants' apparent case as at present formulated (assuming
that above facts admitted) .............. CONTENTS XI
Standards involve a factual enquiry ...........
Witnesses to be called ................
Purpose of evidence .................
Can be avoided only ifApplicants rely solely on judgments
of international bodies...............
Judgrnent on legal questions could render inspection redun-
dant ....................... 104
Application for inspection not too early and not too late ... r06
Not too late ..................... 106
Not too early ..................... 106
Some reasons for opposing inspection are frivolous ..... r08
Real reason for opposition ............... 108
Hearing of witnesses on inspection ........... 109
Petitioiicrs.................... 110
Motivation of Applicnnts not relied upon by Respondent . II0
What the Court will see in South West Africa ...... III
Whether the norm could apply ............ 112
Nursing Act ..................... 114
Whether useless for a conimittee to go ......... 115
How could impressions be recorded ......... 115
Whether States outside Africa should be viçited .... 116
Conditions on visit to South Africa .......... 116
Court would virtually become administrative supervisory 117
organ ......................
Conveniencc. expense and time ............
Practical arrangements ..............
Certain decisions of the Court would avoid necessity of
factual enquiry ..................
Extent to which factual enquiry necessary for issues under
Article 6.....................
Proposa1 re depositions by witnesses not acceptable ...
15. Statement by hlr . Gross (Ethiopia-Liberia), 4 v65 .....
Agreement that might be reached between the Applicants and
the Respondent with regard to the depositions ......
16. RepIy by Mr. Gross (Ethiopia.Liberia). 7-19 v 65 ......
Reply to Judge Jessup's question (of 19 April) .......
Question of the survival of international supervision ....
Historical circumstanccs iipholding the Applicants' general sub-
missions .......................
Mr. Nicholls' statement .................
Proposal for a temporary trustecship cornmittee ......
Question of the survival of interiiational supervision(co$at.).
Pledge given by Respondent in 1946 ...........
Respondent's dcsire to incorporate the Territory ......
Interpretation of Article80.paragraph I.of the United Nations
Charter .......................
Consequences of the lapsing of Article6 and of the first para-
graph of Article7 of the hIandate ............ CONTENTS XII1
Page
C .Enurneration of thc laws and measures. etc . (cont.).... 285
I.Economic aspects .................. 285
2 . Political lif.................... 288
3 .Civil iiberties ................... 289
4 . Educational advancement and social development ... 294
Reply to questions propounded by Judge Sir Gerald Fitz-
maurice (7 May)-Summary of the Applicants' attitude in
the matter of legnlissues (norms. standards, authoritative and
ofonvard by Respondent) con................onary powers put
I. Character of the legal obligation contained in the second
parngraph of Article z of the Mandate ........
z. Legal criteria applicable to the interpretation of Articl2
of the Mandate ..................
3. Arguments Respondent might advance in rebuttal of the
charge of violating Article 2of the Mandate ......
D . Evolution, content and applicability of the standards and
the norm ......................
Reply to Judge Sir Gerald Fitzmaurice's questions I.z .3. 4
and g of 7 May ...................
Norrn and standards; resemblances and differences ....
Discussion of the norm and standards: general observations
Criticism of the Respondent's contentions as to the intention
and role of the norm and standards recognized by the orga-
nized international community .............
Processes by which the standards were evolved by the compe-
The United Nations Charter....................
The resolutions .....................
The Trust Territories Agreements-declarations and draft
declarations .....................
The International Labour Organisation ..........
The standards now qualify as legal norms in accordance with
Article 38 of the Statute of the Court ..........
Factors influencing the development of international law . .
The unanimous consent of aII States is not essential to the
formation of an international norm or of international
standards ......................
The norm and Article 38 (1) (a) of the Statute of the Court .
The norm and Article 38 (1) (bj of the Statute of the Court .
The norm and Article 38 (1) Id) of the Statute of the Court .
Replies to Judge SirGerald Fitzmaurice's series of ten questions
(7 May) .......................
Introduction .....................
Question I ......................
Question n ......................
Question 3 ......................
Questions 4.5.6 and 7 ................
Question 9 ......................
Question 8 ...................... CONTEN T XV
Page
Background of establishment of Preparatory'Comrnission and
its Executive Committee ...............
Itsrecommendations regardingtee mandatesecut........ittee .
Recommendations of Executive Comrnittee regarciing tmst-
.eeship system-proposai for temporary trusteeship com-
mittee .......................
Suggested functions of temporary tnisteeship cornmittee .
Suggested duration of temporary trusteeship comrnittee .
Its interim powers .................
.C~nclusion-no supervision regarding mandates ....
American suggestion that supervisory powers over mandates
be exercised ....................
Treatment of matter in Preyaratory Commission .....
Djscussion on ag November 1945 ...........
.Objection by U.S.S.R. ..............
Nicholls' statement-its content, meaning and signif-
icance .....................
Did not refcr to South West Africa ........
Djd not contemplate an obligation to report ....
No other delegate spoke in favour of a supervisory
function for temporary trusteeship committec ...
No niche for Nicholls-Applicants have not relied upon
him before ...................
. . 1962 Oral Proceedings ..............
Proposal by United States for interim reporting ....
Never discussed ..................
System of pledges ....................
Pledges to put territories under tmçteeship fell away ....
Reasons for rejection of proposa1 for temporary truçteeship
committee .....................
Contention re compromise pledge unsubstantiated and
unfounded ....................
References to staternents of United Kingdom and Autralia .... in
Executive Committee of Preparatory Commission
Contention re compromise pledge (cont.).........
Fraser's statement at San Francisco.' .........
Declarations iiifact made in the General Assembly by
mandatories ..................
Declarations before final League Assembly ......
~pplicants' interprctation based upon submissions
regarding pledge systern ............
Use of tlie word "pledge" ............
Australia ..................
Switzerland .................
No pledge perceived by other delegates ......
Chinese draft proposais ................
Summary of facts showing lack of consent on Respondent's
part to transfer of supervisory powers .........XVI SOUTH WEST AFRICA
Page
Respondent's conduct after dissolution of the League ... 417
Proposa1 for incorporation .............. 418
Relationship bet~veen Article6 and Article 7 (1) ... 418
Legislative argument .............. 41'3
Consent cannot always be associated with supervision
examples .................. 419
Other methods of modification of status ...... 420
Opinion of Judge Mch'air ............ 420
1950 majority opinion does not support Applicants . 420
Letter of23 July 1947 to Secretary-General ...... 423
Where previously dealt with ............ 423
Extent of refance rbyoCourt in 1950r............. 424
427
Summary-limited material nowrelied upon by Applicants 427
Attitude of other States ................. 427
What is meant by "superviçory power" ......... 427
To be relevant. must be counterpart of accountability by
virtue ofan obligation under the Mandate ...... 428
Applicants misconstmed Respondent's contention .... 428
Respondent's contention consistent and clear...... 429
Distinctionnbetween power exercisable to tbye the United 432
Nations. and allocation of function among its organs ..
432
Effect of ArticleIOof the Charter............ 433
ArticleoIOArdoes not define powers or functions of the 434
United Nations .................. 434
1950 Opinion ...................... 435
Applicants' contention regarding Article IOnot clear .... 435
Palestine question .................. 436
U.N.S.C.O.P.erreport cleare.................. 437
Certain passages never dealt with by Applicantç .... '437
United Nations cornpetence based on consent of Mandatory 438
Mandate regarded as in existence ........... 440
British statement at final League Assembly ...... 440
Discussions in Ad Hoc Cornmittee ........... 44'
References to Article IO of the Charter......... 443
Attitude of British Government ............ 443
Tnisteeship Council-treatrnent of 1946 South West Africa
report ....................... 444
Purpose of dealing with this rnatter.......... 444
Resumé of circumstances ............... 444
Reçpondent's subrnission in chef ........... 445
Applicants did not reply thercto ........... 446
Applicants no longer relyon consensus among Members of
the Council ................... 447
Activities of CounciI do not support inference as to obli-
gation to report ................. 447
List of25 States ................... 448 COSTENTS XVII
Page
Background and purpose of examination ........ 448
Certain attitudesby States irrelevant......... 449
Theyear1947..................... *. ... 449
Moore's argument i~ichief .............. 45O
Respondent's answer thereto ............. 451
Applicants' reply limited to contending that confusion and
inconsistency existed ............... 451
Signatories of Palestine report............ 452
Cuba, India and Uruguay .............. 452
United States of America .............. 452
States which stated that United Xations empowered to
consider South West Africa report or Palestine question
. (China. Philippines. New Zealand and U.S.S.R.) ... 454
France ...................... 455
Pakistan ..................... 455
South Africa (Nicholls' statement)........... 456
States which voted against advisory opinion re Palestine. 456
Summary-attitude of States inconsistent with consent by
Respondeiit in Aprilrg46 ............. 456
Resolutions of the General AssembIy (141 (II).227 (III)and
337 (IV))...................... 457
Reaction of United Nations after discontinuance of reports. 458
Attitudes of delegateswho voted to hear petitioners... 459
Cuba ...................... 459
Brazil ...................... 460
Thailand and Mexico ............... 460
Belgium ..................... 460
Support for Belgium ................ 461
Philippines. India and China ............ 461
Reason why States supported draft resolution .... 461
Conclusion-acid test fails to provide support for Ap-
plicants ..................... 463
No understanding by other States that an obligation to report
existed ...................... 463
The "Organized International Community" ........ 464
History of refercnces ................. 464
Charter cannot grant powers to which Respondent did not
consent ...................... 464
Becessity of international accountability.......... 464
Mandate jurisprudence ................ 465
Further grounds of neceçsity of supervision raised in oral
reply-legislativearguments ............. 465
Other territoriesay requise supervision ....... 466
1950 Opinion ...................... 466
Respondent's analysis not dealt with .......... 467
Applicants' attitude contributes to the need for reconsid-
eration ...................... 467
Applicants do not say on what basis they rely on 1950 Opin-
ion ........................ 468 CONTENTS XIX
Respondent's interpretation of Article2 (2)........
Largely academic ..................
Whether Article 2 (2)justiciabk at al1.........
Applicants have not suggested any general basis of ad-
judication ...................
No .5 of Judge Sir Gerald Fitzmaurice's questions reinter-
pretation of Article 2 (source of discretionary power) .
Derived from interpretation of Article 2 .......
Couand logicing...................eneral principles of law
Grounds upon which a court may find that an abuse of
discretion has occurred .............
Under the Mandate ................
Generally in municipal systerns ...........
French law ....................
Power defined with reference to purpose .......
Good or bad faith .................
Meaning of term ................
Effect of....................
Not almays required ..............
Incorrect assumption or finding of fact .......
No reasonable person could have arrived at the
findjng....................
Bona fide contravention of Article 2 (2)unIikely ...
Direct reply to question 5 .............
Judge Sir Gerald Fitzmaurice's question NO . 6 (relationçhip
between intentions and results of policy) ........
Uiscretion to assess results of policy rests with Mandatory
Judge Sir Gerald Fitzmaurice's question No . 7 (whether
discretion amounts to more than initial presumption in
Mandatory's favour) .................
Respondent need oniy show proper exercise of discretion .
Relationship between intentions. purpose and good faith . .
Whether good or bad faith used in different senses ...
Whether the objects of mandate become whatever Re-
spondent defines them to be ............
Questions 8-10 ....................
Respondent relies on wording of Article ........
Question 8-relationship between two texts ......
General approach .................
Application of this approach supports Respondent's
contention ...................
Question 9-whether one could balance advantages and
disadvantages ...................
Applicants' case based on qualitative breach ......
In SouthWest Africa laws necessarily affect different people
differently ....................
Advantages and disadvantages to be weighed up ....
Particular measures to be seen in their context, including
South Africa ............. ; ..... CONTENTS XXI
Page
Still covered by norm .............. 541
Abandonment of attempt at definition-rganized inter-
. national community has decided .......... 542
The role of the Court-apply judgment of organized inter-
national community .................. 544
Organized international community will enforce judgment . 545
Role assigned to Court in earlier part of the proceeding. . 545
Memorials-judiciai supervision ........... 545
Observations-independent function of Court ..... 546
Standards then referred to ............. 548
Summary of preceding argument ............. 548
Even at inspection proposa1 stage Applicants recognized ne-
cessity of defining norm ............... 549
Observations-supervisory function of Court ...... 550
1962 Oral Proceedings-supervision .......... 551
Reply-difference of opinion between Council and Court . 551
Matcrial upon which Court couId draw ....... 552-
Views of'governments expressed in United Nations . . 552
Main oral argument ................. 553
Judicial review .................. 553
Material drawn upon ............... 554
No longer relied upon ............... 555
Reason-eIiminate factual enquiry ......... 555
Applicants have now reached conclusion that Court not
intendcd to adjudicate on Article 2 (2........ 556
1962 opinion of Judge Jessup ............- 557
If supervisoryorgans were not intended in1920 to lay down
binding standards. Court would on Applicants' argument
never have had jurisdictio............. 557
Summary and conclusion ............... 559
Afterthought .................... 559
19. Rejoinder of Mr .de Villiers (South Africa). IO-rVI 65 ... 561
Applicants' case restç only on nom and standards ..... 561
Ilrording of Submissions 3 and 4 ............ 561
Forma1 interpretation ................. 562
No case brought on the basis of purpose or effect of Re-
spondent's policy .................. 563
Reçpondent will proceed to ansver Applicantç' case on this
basis ....................... 568
The standards ...................... 569
Do not in themçelves have legal force .......... 569
Interpretation of the Mandate on the basis of current stan-
dards rather than intentions of authors ........ 570
Confusion bctwecn interpretation and application .... 570.
Possible relevance of standards........... 571
Applicantç now rely on an implication in the Mandate tobe bound
by changing standards .................. 572
Now based on presumed intentions of authors of Mandate 573 SOUTH WEST AFRICA
Page
Standards laid down by organs vested with duty of supervi-
sion ........................
Difference in formulation ..............
The Mandate as a constitutional-type document ....
Standards can become binding onlyupon basis of intention
of authors of Mandate. ..............
Norm distinguished ................
What is the relevance of pronouncements of organs other
than those said to be vested with supervisory powers? .
Whether Respondent bound by authoritative interpretations
of Charter and International Labour Organisation Con-
stitution ......................
League resolution of 18 April 1946 ..........
Summary of Applicants'apparent contention .......
Suggested standard creating capacity of the supervisory
organ. or alternatively of the organized international com-
muiiity ......................
Based on intcntions of authors ............
Effect of ordinary meaning of words .........
Purpose to promote well-being-fiduciary responsibility .
Mandate an international regime ...........
Need for internationally 'determined criteria ......
Mandatory to have regard to tlie needs of the inhabitants.
not the needs of international life..........
Inipractical tohave international bodies dictate mcthod of
administration ..................
Analogy with tmstee ...............
Language of instrument indicates that Mandatory is to
decide ......................
Progress a variable concept .............
The word "safeguard" in Article 22 (6) .......
Interpretation of Article z (2)cannot providc the result
contended for by Applicants ...........
If the authors intended to provide for standard-
creating procedure. why did they not Say so? ...
Unusual in Covenant for State to be bound without
its consent ..................
Article 15 of Covenant ..............
Article 5 ....................
Article 6 ....................
Article 74.....................
Article 22 (8)..................
Article 8 ....................
Provisions of Article 22 ..............
History of compromise Ieading up to Covenant ....
Provisions of mandate instruments .........
How tiie rnatter was viewed in League circles ....
Wymans report .................
Quincey Wright ................XXIV SOUTH WEST AFRICA
Page
Difierentiation accepted in League times ........
Suggested undertaking by Mandatory to comply ivith inter- 627
national law ................... 628
What is meant by international law? ......... 629
Why agree to be bound by iaw which is binding in any
event? .................... 630
Mandate cannot be amended without Mandatory's consent 632
1950 Opinion ................... 632
Even if norm existed. Court would not have jurisdiction to
determine alleged vioIation thereof ......... 632
Norm does not exist in international law. at any rate as
binding on Kespondent ............... 632
Scheme of argument ................ 632
Norm-creating processes in generaI .......... 632
Forma1 acts of international institution........ 632
Applicants commence by giving reasons why a new law-
creating process shm4ld exist-relevant international
context ..................... 633
Court does not possess legislative power....... 634
Article by Judge Sir Gerald Fitzmaurice ....... 635
Applicants attempt to impose obligation on Respondent
without itsconsent ................ 635
Article3s (1) {a)-conventions ............ 636
Applicantç rely on "authoritative interpretations" of
Charter and InternationalLabour Organisation
Constitution .................. 636
Extent to which practice in international bodies could
assist in interpretatio.............. 637
Omission of provisions in Charter regarding inter-
pretation.................... 638
Pollux in Britis Year Book O/Iliternatimal Law ... 639
Exfieases case................... 640
Schachter .................... 641
Summary of preceding argument ............ 642
Expenses case (cont.) ................ 643
Views of U.S.S.R. ................ 643
Debateç in Committee on Peace-keeping Operations . . 644
Interpretations of Article73 ............. 650
Applicants do not rely on actual meaning of the provisions
but on extensions thereof-not treaty interpretation. 650
Special provision for interpretation of International
Labour Organisation Constitution .......... 651
Conclusion-interpretation cannot give rise to thesuggested
norm ..................... 65'
Reference by Applicants to ~rticie 38 (1) (a)an after-
though t ..................... 652
Article 38 (1)(b)-international custorn ......... 652
Applicants' contention ............... 653
Norm may become binding despite objection ..... 653 CONTENTS XXV
Page
Collectiveacts of internationai instituti...... 653
Organizations do notpossess law-makingpowers ..... 654
Oppenheim ................... 655
Judge Jessup ................... 655
Security Council-Kelsen ............. 655
General Assernbly................. 656
Kelsen .................... 656
Goodrich ................... 657
Trusteeship Council................ 657
International Labour Organisation ......... 657 PART II (continued)
SECTION B
ORAL ARGUMENTS
PUBLIC WEARINGS
Izdd/rom r5March dorq Jzrly20Septemberto
15November and29 Novemberr965, 21March and
on i8July 1966, thePr~sidenf,Sir PercySpendcr,presiding
(continued)
PARTIE II (stdite)
SECTION B
PLAIDOIRIES RELATIVES AU FOND
AUDIENCES PUBLIQUES
tenuesd215 mars a.14 jttilld220 septembre
az1- 5ovembre,le 2novembre:965,lea~~mars
elLe18jtcillet1966,soZaprésidencde
sirPercySpender,Président
(suite) ANNEXTO THE MINUTES (costinrted)
ANNEXE AUX PROCÈS-VERBAUX (suite)
g. ARCURIENT OF MR. GROSS
AGENT FOR THE GOVERNMENTS OF ETHIOPIA AND LIBERIA AT THE PUBLIC
HEARINGS OF 27 AND 28 APRIL 1965
3fr. Presidcnt and hlembers of the honourable Court, on 30 March 1965,
prior to commencing itsstatement concerning legal issues involved in the
casesat bar, Respondent addressed to the honourable Court a proposai,
or application, whichin Respondent's phraseology envisages: "an inspec-
tionilzlocoas a means of assisting this Courtincomiiig to a just conclu-
sion on the factual aspects of the case"(VIII, p.271).
Pursuant to leave granted by the honourable President the Applicants
reserved the right to deal with the matter at a iater stage, as appears from
page 280 of the same verbatim record. As the Applicants stated at that
time, Respondent's proposa1 requires consideration of issues concerning
the merits, or certain of them, with which the Parties have not dealt in
the light ofilleagreed procedure of treating at tliis stage of the Oral
Proceedings essentially with questions of law. The justification advanced
by Resporident for raising atthe outset of arguments addressed to legal
issues a proposa1 describedby Respondent as-in its words-"canvassing
of the factual sidc of this case" was that, in the event the Court were to
accept the proposal, arrangements would have to be made, and again 1
quote from Respondent's language. "well in advance in order to serve
their purpose and inorder to avoid unnecessary delay", and in that con-
nection Respondent referred to several weeks or more of possible delay
which might otherwise ensue. Mr. President, the purported justification
for submitting the proposal out ofcontext accordingly presupposes that
the Court could and should decide, In limine,prior to hearing or consider-
ing the merits, ~hether the suggested procedure would in fact assist the
Court, or could do so, in reaching a judgment concerning the validity of
the submissions. As will readily appear from an exrimination of the pro-
posa1 itself, however. such a presupposition isnot founded in the Appli-
cants' respectful submission. Indeed, unless the Applicants misconceive
the terms upon which Respondent has submitted its proposal, Respon-
dent itself suggests that certain previous decisions of an unspecified nature
ï\70uldhave to be made by the Court before Respondent's proposai would
become relevant for consideration or ripe for decision.
Before turning to an analysis of Respondent's proposal, however, cer-
tain prelirninary observations may be inorder. It isassumed by the Appli-
cants that no adversarial issue appropriately could arise, in respect of
the proposition which seems elemental to the Applicants, that any
method, or any measure, ~vhichthe Court might consider to be an ?id-to
the performance of itç function would fa11without the ambit of its JU-
dicial power. Equally axiomatic is the premise that the Parties-al1
Parties-would wish to CO-operatewith each other and with the Court
to assure that al1 requisite means and facilities wouldbe placed at the
Court's disposa1 to effectuate such a purpose. The Applicants according!~
fail to understand the significance of Respondent's comment made in
the course of the oral argument in the verbatim record of 14 April rg65
that Respondent has great difficulty, that Respondent attributes to the4 SOUTH WEST AFKICA
Applicants "great difficulty with a proposition that there is to be an in-
spection to compare comparable standards", in Respondent's phrase at
VIII, page 625. The Applicants, as a rnatter of fact, have not hitherto
expressed views concerning this matter. Furthermore, the Court in evalu-
ating the rnerits and feasibility of the proposa1 would no doubt, in the
Applicants' assumption, weigh in the scales of justice the factors of dclay,
expense and undoubted inconvenience which the Respondent's unusual
proposa1 would entail, and one of the elements to be weighed in such
scale would of course be the time and manner of its presentation, as
well as a consideration of the issues of factand law which enter into the
Court's decision thereupon.
With respect to the manner of Respondent's presentation, it seems to
the Applicants pertinent to recall that the Applicants' Reply was filed
with the Registry of this Court in June of 1964. Respondent's Rejoinder
was filed in December of the same year. No mention \vas made, eitIier in
correspondence ivith the Court on the part of Respondent or in its Re-
joinder, of a proposa1 which Rcspondent iiow assertç would be essential
to an adjudication by the lionourable Court of the validity or otherwise
of the Applicants' submissions. On tlie contrary, the first mention of the
proposa1 so far asthe Applicants are aware-ccrtaitily the Iirst mention
which was brought to their notice-was in the form of a Ietter from Re-
spondent's Agent following a meeting with the honourable President of
the Court earlier the same day, on 12 Marcli 1965, two dayç prior to the
scheduled commencement of Oral Proceedings in this case; and in the
course of that letter, and pnrsuant to the information receired by the
Applicants, Respondent's endeavour at that time was to present its pro-
posa1 as s matter of the ~avest haste and urgency to the honourable
Court, even prior to the commencement by the Applicants of the presen-
tation of their case. Ilihether the proposa1 submitted in this manner by
Respondent reflects an afterthought on its part, or a change ofposition
with respect to a necessary element in its submission of proof in this case
or of evidence thereon, isbeyond the realm of the Appticants' speculation ;
but it does, with respect, appear strange that a matter thus proposed for
the first time, under such circurnstances and out of context, should be
indeed as important to Respondent's case as it maintains.
Respondent's proposal, Mr. President, comprises four essential and
interrelated elements. The first is the timing of its presentation; the
second, its asserted purposes; third, the areas proposed to be inspected;
and fourth, the conditions implied or suggested. For the sake of conve-
nience each of these may be treated separatcly, keeping in view, howerrer,
their essential interrelationship.First, the timing of the presentation of
the proposal-indeed, the first aspect of the proposa1 arising for consider-
ation is its timing.
In addition to the factors I have already mentioned relating to the
precipitate, ostensibly urgent, manner in which it has been placed before
the Court,there is,with respect tothe question oftiming, a dual question
of whether the Respondent has introdiiccd the matter prematurely, cven
from the standpoint of its own theory of the case, and whether the hon-
ourable Court could at this stage of the proceedings, in any event, reach
a valid and reasonable conclusion other than perhaps to defer a decision
as to methods or measures, if any, which the Court might consider help-
ful to an adjudication of the issues in these proceedings. Respondent it-
self has interposed pre-conditions to action by the Court upon the pro- ARGUMENT OF MR. GROSS 5
posa1for the so-called inspection. In its address to the Court on 30 March
196j ,espondent, referring to the alleged violation of the sacred trust
provisions of the Covenant of the League of Nations and of the Mandate,
declared :
"There are of course certain legal issues to be dealt with before
this fundamental, crucial issue is reached [referring to the sacred
trust]. Depending on the outcome of those legal questions, it rnay
be that this particular charge rnay not arise for decision at all."
(VIII, p. 270.)
Although. Respondent did not specify the legal issues which it had in
mind in this context, it may be appropriate to speculate concerning this
matter in the light of Respondent's written pleadings and oral argument.
Respondent, no doubt, will clarify the matter further ifthe Applicants
have misconceived its actual intention.
On the basis suggested, several Iegal issues appear to cal1 for determi-
nation prior to decisionby the Court upon the proposa1 under discussion.
The first of these is the issue posed by the Respondent's contention,
presented as an alternative argument in the Counter-Memorial and Re-
joinder, that the Mandate, as a whole, has lapsed onthe basis that Article
6 and ilrticle 7 (1) providing for international accountability allegedly
have lapsed. In this connection it will be recalled that Reçpondent haç
contended that the 1950 Advisory Opinion should not be followed, and
the 1962 Judgment on the prelirninary objections reversed, in this respect.
Acceptance by the Court of Respondent's contention, with respect to
total lapse of the Mandate, would, of course, carry with it the demise of
Article 2 of the Mandate itself. In that event, no issue of fact or law
with respect to Article 2would arise for decision, again qupting Hespon-
dent's phrase. Moreover, Respondent's alternativecontention, in respect
of lapse of the Mandate, would not itself arise for decision unless the
Court should hold, contrary to the Applicants' submission, lhat the pro-
visions of the Covenant and of the Mandate regarding international
accountability themselves have lapsed. The foregoing contentions.and
counter-contentions are, at the present phase of the Oral Proceedings,
stillinthe course of presentation to the honourable Court. With respect
to the legal issues relating to the asserted lapse of international account-
ability furthermore, the Applicants have sought to point out that the
issue of survival, or otherwise, of provisions regarding international
supervision is related to a consideration of thfactsPursuant to arrange-
ments readily agreed for the Court's convenience, presentation and full
treatment of such facts has been resewed for subsequent +presentatlon
by the Parties at a Iater stage. As the Applicants stated, in the course
of their address to the Court on 18 March 1965:
"The Applicants will set out, at a later stage of these proceedings,
the facts, and related considerations, lvhich make clear, in Our re-
spectful submission, the practical neceçsity for administrative super-
vision. Such practical necessity, as we believe will emerge clearly
from the facts, reinforcesand confirms the legal considerations SUP-
porting the Applicants' submission, that administrative supervision
isof the essence of the Mandate and müst continue so long as the
Mandate itself endures." (Vm, p. 122.)
A simiIar relationship between fact and law inheres in the legal issue
joined by the Parties in respect of the survival, or otherwise, of Article SOUTH WEST AFRICA
7 (1)of the Mandate, whch requires the consent of the supervisory organ
for any modification of the terrns of the hlandate. As the Applicants
sought to make clear, the consent to which Article 7 (1) refers inust be
an informed consent, only the same organ charged with administrative
supervision over the Mandate could be in a position to exercise an in-
formed judgment in respect of proposab for modification of the Mandate's
terrns.
The link between Article 6 and Article7 (1 1c,ordingly, as perceived
by the Applicants, is made clearby the logical nexus between the two, as
well as by the Advisory Opinion of 1950, from whicli.relevant passages
have been quoted in VIII,pages 216-218. The references to the Advisory
Opinion of 1950, are at pages 141-143.
Respondent contends that Article 7 (1)was dependent for its operation
on organs of the League, and that it has become inoperable and, conse-
quently, haç lapsed. That is the contention subrnitted to the Court by
the Respondent in VIII, page 523. The Applicants, to the contrary, sub-
mit that Article 7 (11remains in effect and that, in accordance with the
unanimous holding of this honourable Court inthe 1950Advisory Opinion :
".. .the Union of South Africa acting alone has not the competence
to modify the international status of the Territory of South West
Africa, and that the competence to determine and modify the inter-
national status of the Territory rests with the Union of South
. Africa actingwith the consent of the United Nations".(I.C.J. Reports
19.50P. 144-1
Hence, Rlr.I'residenta legal issue has been joined betrveen the Parties,
the resolution of which has a direct bearing upon Respondent's conten-
tion that the Mandate, asa whole, has lapsed, along with Articl2 thereof,
a contention which would require adjudication prior to the proposa1 of
Respondent for an inspection becoming a live question for consideration
or decision.
Itwill be noted that in the foregoing discussion the Applicants have
searched Respondent's written pleadings and oral arguments for in-
dications concerning the possible speculative nature of the unspecified
"legal issues", which is the only way Respondent characterized them,
upon which decisions are said by Respondent to be necessary before the
issue of alleged violations of Articlz of the hlandate, inits language,
'lisreached", and which otherwise, as Respondent said, "might not arise
for decision at all". That, I have said, is from the verbritim recorVIII,
page 270. But, hlr. President, the matter does not rest tliere.
Equally relevant to the question of prematurity, or otherwise, of Re-
spondent's submisçion, at this time, of its inspection proposaland, con-
sequently, of the question whether the proposal is ripe for consideration
or decision, is yet another pre-condition interposedby Respondent to a
decision upon the proposal, but this tirne, however, in more specific
form than in the case of its earlier reference merely to "certain legal
issues", aç I have previously mentioned. In esplaining its proposal,
Respondent summarized, in çelective and truncated fo~, certain argu-
ments it intended to present to the Court at an appropriate stage of the
proceedings. In respect of factual and related issues, Respondent'ç sum-
mary distorted the Applicants' position on the merits, possibly because
of the perceived necessities of the occasion, or possibly for other reasons,
perhaps inadvertcntly. Such distortions will be dealt with shortly, in ARGUMEXT OF h1R. GHOSS 7
connection with a consideration of the second aspect of Respondent's
proposal, to wit, the purposes ~vhich Respondent asserts might be served
by the production of expert testimony and by the proposed inspection
in loto.
In the course of its presentation, however, Respondent referred to the
alleged violation of Article2 of the Mandate and stated, in the course of
its presentation of the proposa1 under discussion:
"As the Court knows, our first contention in that regard, aç to
the basis or criterion for adjudication, is that onaproper constmc-
tion of the Mandate, and on viewing the probabilities in that regard,
this Court was not intended to adjudicate on issues of that nature at
ail. Of course[said Respondent], if that proposition is to be accepted
then no further question as to a decision of disputed facts, or of
evaluating those facts, or of applying policies to those facts, would
arise for thiç Court."(VIII,p. 275.)
111other words, if the Court should accept Kespondent's first alternative
contention, to wit, that issues concerning alleged breaches of Article 2
of the Mandate are not justiciable, then its proposa1 under discussion
would not arise for consideration or action.
Respondent has thus interposed another, and this time specific, pre-
condition to the necessity or timeliness of a decision by the Court whether
the taking of testimony, either at the seat of the Court or elsewhere,
or the exerciscin some other form by thc Court of its functions elsewhere
than at the seat of the Court,whether such a decision would be relevant
or appropriate at this time, pnor to the accomplishment of the pre-con-
dition, or satisfaction thereof, to which 1 have just referred.
Under these circumstances, it is far from clear why Respondent in
fact deemed it necessary, at this stage of the proceedings, to submit its
proposal for a so-called inspection in respect of issues which its first con-
tention holds to be non-justiciable. The only justification advanced by
Respondent for introducing the question of an inspection, prior to the
completion of argument either on legal issues or on facts, or thepresenta-
tion of the latter, is thathe matter should not be delayed unduly, as 1
have already said, and1 have just quoted from the verbatim record, VIII,
page 271.
Xeedless to Say, the AppEcants share wiih Respondent the conviction
that there should be no undue delay in any phase ofthe present litigation.
As the Applicants pointed out at the commencement of these proceed-
ings-and 1 take the liberty of quoting from the verbatim record,
VIII, page 109:
"Few, if any, legal issues undcrlying ail international dispute
referred to this honourable Court or to the Permanent Court of
International Justice .. . as well, for resolutioby judicial means,
can have consumed so much of this honourable Court's time and
attention during the course now of almost 15 years."
And 1 refer, Mr. President and Mernbers of the honourable Court, to
the commencement, the antecedents of the present litigation in the form
of the Advisory Opinion of 1950. As the record of these proceedings must
make clear, the Applicants always have sought to CO-operatetoivard the
end that the issues herein might he juçtly and expeditiously determined.
They have faithfully observed self-imposed, stringent time limits, always
subject to the Court's consent, upon the preparation and filing of written8. SOUTH WEST AFRICA
pleadings. They have hoped and continued to hope that decisions by
this honourable Court will not be the subject of continuous and repeated
re-argument of the same issues, often in the same form. In short, the
Applicants adhere to the conviction that although litigants have a right
to a day in Court, there must some time be an end to litigation.
These cornments, as to which there can be very little difference of
opinion, are occasioned by Respondent's course in submitting to this
honourable Court prematurely and out of context, a proposa1 which
Respondent an the one hand contends is not ripe for decision until
certain specified and unspecified legal issuesare firçt djspwed of and on
the other hand, which Respondent asserts should now be decided to avoid
what would cause undue delay in making arrangements for procedures,
which would not be relevant or appropriate if Respondent's legal con-
tentions and premises are sustained by the Court.
1 should now like to turn to the second aspect of the matter, the
purposes asserted by Respondent to underly its proposal. The Appli-
cants have referred to the axiomatic premise that the Parties would
wish to assure full and expeditious CO-operationin respect of any measure
or any method which the Court might consider appropriate to the
exercise of its judicial function in these cases. Toward that end, and
assuming that to be al1a part of the reason forthe haste and the timing
of Respondent's proposal, there may be, todo full credit, an assumption
implicit that although premature the Court might wish to set in train
certain prelirninaries, at leastwith respect to the poçsibility that the
Court might, at some later stage and on sorne assurnptions nowhypothet-
ical and contingent, decide that the arrangements rnight lead to facil-
itating and expediting actions or measures by the Court which it might
corne to conclude at that future time are relevant to and in aid of the
exercise of its judicial function. Sucan assumption would, of course, be
based upon the contingency that the Court decided adversely to Respon-
dent's legal contentions relating to the lapse of international supervision,
ineffectiveness of the compromissory clause, lapse of the Mandate as a
whole, and the asserted non-justiciability of Article 2 of the Mandate.
On the basis of the foregoing assumptions or pre-conditions, it is
necessary then to examine the purposes wliich Respondent asserts
would be served by production of expert testimony and more specifically,
in the context of the present discussion, the proposed exercise by the
Court of certain of its functions, elsewhere than at the seat of the Court.
Consideration of Respondent's proposa1 at this stage of the Oral Pro-
ceedings, Rlr.Prcsident, poses something of a dilernrna in confining the
discussion to matters strictly relevant to an appraisal of Respondent's
proposal without, at the same time, anticipating issues which are still in
the course of rebuttal and response. The Applicants have adverted to the
fact that Respondent itself found it necessary to anticipate some such
issues prior to their having been reached in the regular order and in
doing so has, unfortunatcly, not wholly been able to resolve the dilemma
of selection and tmncation without distortion, which the Applicants
would be very anxious to avoid. It seems, hlr. President, that in atternpt-
ing to present the proposai for the sake of avoiding undue deIay, Respon-
dent has indeed created a risk of undue confusion. With respect to the
Appljcants' submjssion of considerationsrelevant to the djscussionunder
proposal, it appears to the Applicants that there are three principal
grounds which Respondent advances in support thereof. Taking these in ARGUMENT OF MR. GROSS 9
order, the first is the aiieged motivation underlying the Application filed
in these proceedings in Xovember 1960; the second, the contentions of
the Applicants in respect of fact issues as describedby Respondent and
thirdly, the asserted legal basis of the alleged violations of the Mandate
and the Covenant of the League, again as ascribed by Respondent to the
Applicants. Each of these three factors or reasons advanced in support
of the Kespondent's proposal will, with the President's permission, be
considered in turn.
First with respect to the dleged motivation of the Applicants, which
figured largely in the presentntion by Kespondent in support of its
proposa1 in its address on30 March 1965.Charges launched at impeach-
ment of theApplicants' motive in seekjng judicial recourse echo a therne
often voiced by Respondent's highest officiab. The charges gain neither
dignity nor weight nor credibility by repetition before this honourable
Court. In the language employed by Respondent in addressing the Court
on 30 March 1965:
"The proceedings, as the Court would know from the pleadings,
are the culmination of a vehement campaign which has been waged
against the South African Government for a long period and persis-
tently in the international political arena, particularly in the United
Nations ...
From the South African point of view we see that campaign as
being one of abuse and vilification, motivated on the part of its
leaders by purely political objectives with very Little,if any, bearing
on the real merits of administration ofthe Territory of South West
Africa, or the real interests and needs of the population of that
Territory." (VIII, pp.272-273.)
Mr. President and Rlembers of this honourable Court, characterization
of recourse to judicial process as the culminating act of a "political
campaign" as it is called, is more than a contradiction in terms. Such a
charge strikesat the heart of the judicial process itself. Public confidence
in the rule of law and in theinstitutionsessential to the maintenance of
a just and peaceful order should not be corrodedby recriminatjon con-
cerning the motives of those who seek resolution of legal disputes in
accordance with international law.
There is no room for doubt that weighty social, economic, political and
moral questions underly the issues joined in these proceedings. We must
al1 anticipate and hope, Mr. President, that this honourable Court will
continue to be the forum for arbitrament of legal issues which inhere in
many clashes of view affecting the lives and welfare of men and of nations.
Parties to the Charter of the United Nations have undertaken no less an
obligation than this. In this very case, the United Nations General
Assembly by an overwhelming majority has seen fit to refer to this
pending litigation. The resolution has been quoted in the Mernorials
(1) at pages 84-85 and the Court's attention is respectfully addressed to
the substance of that resolution from which 1 should Iike to take the
liberty of reading for the record at this point. It is resolut1565 (XV)
of 1950:
"TheGenernlA ssembly,
Recalling its Resolution 1361 (XIV) of 17 November 1959, in
which it drew the attention of Member States to the conclusions of
the special report of the Cornmittee on South West Africa con-IO SOUTH WEST AFRIC.4
cerning the legal action open to Member States to submit to the
International Court of Justice any dispute with the Union of South
Africa relating to the interpretation or application of the provisions
of the Mandate for the Territory of South West Africa, ifsuch
dispute cannot be settled by negotiation,
"Noti+zg withgraveconcem that the administration of the Territory,
in recent years, has been conducted in a manner contrary to the
Mandate, the Charter of the United Nations, the Universal Declara-
tion of Human Rights and the resolutions of the General Assembly,
including [certain resolutions which are then set forth, and then
skipping several paragraphs]
I. "Notes withnpproval the observations of the Committee on South
West Africa concerning the administration of the Territory as set
out in the Cornmittee's report to the General Assembly at its fif-
teenth session, and finds that the Government of the Union of South
Africa has failed and refuçed to carry out its obligations under the
Mandate for the Territory of South West Africa;
z. Concludes that the dispute which has arisen between Ethiopia,
Liberia and other Member States on the one hand, and the Union of
South Africa on the other, relatingto the interpretation and applica-
tion of the Mandate has not been and cannot be settled by negotia-
tion;
3. Notes that Ethiopia and Liberia, on 4 November 1960, filed con-
current applications in the International Court ofJustice instituting
contentious proceedings against the Union of South Africa;
4. Conameltdsthe Governments of Ethiopia and Liberia upon their
initiativein submitting such dispute to the International Court of
Justice for adjudication and declaration in a contentious proceeding
in accordance with article 7 of the Mandate."
Mr. Yresident, the course of this very litigation and its alitecedent
proceedings during the past 15 pears demonstrates how one-sided indeed
has been the remission of such issues to the judicial process and it is
difficult to see what more eloquent, if mute refutation, there could be of
Respondent's charges of political motivation than recourse to judicial
settlement of a protracted dispute which has not found solution through
the processes of debate and negotiation. And this honourabIe Court has
held that the issues in dispute are of a legal nature, that they involve
interpretation and application of an international agreement and that
the Applicants have an interest of a legal nature in their resolution.
This honourable Court as long ago as 1950held with unanimity that
Kespondent's contention that thc hlandate over South West Africa has
lapsed and I quote:
". ..is based on a misconception ofthe legal situation created by
Article 22 of the Covenant and by the Mandate itsetf".
That is from the 1950 Opinion, page 132.
In 1962,the honourable Court reaffirmed its prior opinion holding that
"the hlandate as a whole isstill in force"-that is from the 1962 Opinion
at Page 335.
In the teeth of these repeated decisions, Respondent persists today in
its contention that the Mandate is not in existence andasserts a right of
administration and possession over the Territory unfettered by inter-
national obligation and unanswerable to international accountability and ARGUMENT 0% MR. GROSS TI
at the same time Respondent levels against the Applicants accusations of
improper motive in seeking judicial recourse.
Mr. President, it is distasteful to deal with charges which cal1more for
disdain than for denial, but denial there must be of the charge and denial
must justly be recorded at thispoint.
Several comments rnay be additionaily relevant to a true perspective
of the position of the Parties to these proceedings. The first is that, so far
as is relevant in the context of this discussion of Respondent's proposal,
and the weight and significance to be attached to evaluation of etidence
herein, as well as of the practicability or suitabilitof proposed proce-
dures by which the Court should exercise its functions elsewhere than at
the seat of the Court, the first of these consideratio~is to whi1hrefer is
Respondent's practice-indeed, one rnay Say tradition-of applyjng two
vardsticks for measuring the views of the rnany governments, organiza-
lions and individuals who criticize or, more accurately, express revulsion
conceming the policy and practice of apartheid.
Those whom Respondent asserts lack first-hand knowledge ofwhat it
variously describes as, in its words, "African circumçtances" "African
realities" and "African standardsH-and 1shall have more to Say about
this in a moment-are measured by a yardstick of ignorance and dis-
credited for that reason.On the other hand, those critics who are admit-
tedly and undisputedly knowledgeable are measured by a yardstick of
hostility, a rather unworthy perspective or motive and discredited on
that ground. Both yardsticks, indeed, are often brought into play at the
same tirne: it does not matter so long as the result is impeachment.
il striking illustrationand it is, in the Applicants' respectful view,
relevant to a consideration of al1 the circumstances and implications of
the Respondent's proposal under discussion-a striking illustration of
Respondent's rnethod and approach in the respect just described is to be
found in Respondent's comments concerning the views of governments
in respect of the policyof apartheid, which the Applicants have cited in
the form of illustrative examples in the Reply, IV, at pages 295 and
following. It is not the intention of the Applicants to burden the record
at this point with more than a reference to the citation. Further reference
has been made in the earlier proceedings at this stage.
Governments whose views are there recorded are: the United States,
the United Kingdom, France, Nonvay, Ireland, Poland, Japan, Alalaya,
Greece,China , exico, the Netherlands and Pakistan. Many more could
have been cited. So far as the Applicants are aware, none of these are
African States.
Now Responclcnt's comments with respect to the views expressed
by these Governments, officially before international bodies, may be
found in the Rejoinder, V, at pages 382-383 and at pages 389-390,
inter alin. Respondent takes as a point of departure the alleged "hos-
tility of the non-White worldW-to use its own characterization-and
"particularly many of the newly independent States of Africa towards
South Africa". Such "hostility", in Respondent's phrase, Reçpondent
goes on to aver-
". .. has increasingly and avowedly been directed towards alien-
ating the Western nations from South Africa, and in the process the
new nations have made full use, as bargaining factors, of their
voting strength in the United Nations, as well as of their actual and
potential economic and strategic importance". (V, p. 382.)Proceeding from this conspiratorial premise, and this is the way the
facts and circumstances of this case appear to be evaluable, in Respon-
dent's subrnission, advanced in support of this proposa1 under discussion,
Bir. President-proceeding from this conspiratorial premise Kespondent
continues :
"In the result theAfrican States [and here it is to be noted par-
enthetically the qualifying word previously used 'many' is omitted
by Kespondent] have rnanaged to obtain a long list of condem-
nations of Respondent's policies even by nations with close tieç
with South Africa." (Ibid.)
The apparent relevance of these references, al taking place in the
context of the presentation by Respondent of its proposa1 under discus-
sion, the apparent implications and significance of these comments, and
comments simjlar to them-l have quoted from the Rejoinder, 1 am
referring to Respondent's cornments concerning hostility-are that they
have sorne bearing of an unspecified nature, left to innuendo and im-
plication, with respect to the so-called "African reality" witli which 1
shall deal.
Respondent does not, however, stop ivith a mere blanket indictrnent
of the motives of the many governments which have long condernned
the policy and practice of apartheid on legal, moral and humanitarian
grounds. Again, the yardsticks of impeachment are brought into play by
Respondent in this context as follows:
"However, on analysis, the list [that is the list of condemnations,
selectively but representatively quoted in theReply] becomes con-
siderably less hpressive. In the first place, even a cursory exarnina-
tion shows that most of the statements, if sincerely meant, were
based on entirely faUacious açsumptions . . .In the second place it is
questionable to what extent the expressions of views really represent
the considered opinions of the governments expressing thern, in
particular since thestatements quoted by Applicants are al1negative
in charactcr-they oppose or condemn a policy, without indicating
or suggesting that the s okesmen have given any real thought
to possible alternatives."[V, pp. 382-383.)
The full import and implication of Respondent's comment concerning
fallacious assumptions is made explicit in a subsequent passage in the
Rejoinder, to ~vhich the comment just quoted is linked by a footnote.
In the latter passage Respondent wields the yardsticks of bias, as well
as of ignorance, in appraising the views of governments, as follows:
". . . in the passages quoted by Applicants, it is apparent that the
speakers concerned either had no accurate conception of the true
nature of Respondent's policies, or deliberately exaggerated, rnisrep-
resented, or distorted them". (V, p. 389.)
In respect of the significancc attributed by Respondent to failure to
indicate or suggest alternatives, that too, Mr, President, is a factor
involved, apparently, in Respondent's theory of this litigatiotiand is
asserted to be relevant to the Court's judicial function, the proposition,
as the Applicants understand it, being that unless the Court is in a
position to suggest aIternatives then the Court cannot judge the merits;
and that the Court, by reason of the very nature ofthe judicial process,
cannot be expected to be and is not in a position to consider mattcrs in ARGU3fENT OF &IR.CROSS 13
sufficient detail and with sufficient continuity to suggest alternatives
better tlian the policies and practices in the Territory of South West
Africa, speciiically the policy and practice whicli are characterized by
the Applicants as "apartheid", in Respondent's own phrase.
In respect of the significance attributed by Respondent to failure to
indicate or suggest alternatives, as1Say. the Respondent has, to say the
least, itself scarcely created a climate conducivto such a course. As will
be made clear shortly, Respondent itself concedes, and this appears from
the statements already made by Respondent, that this is precisely the
function properly to be served through processes of international super-
vision, notwithstanding the fact that Respondent persistently and ener-
getically has rejected such processes and has denied its obligation to
subrnit to international supervision of any character. That has been its
position since 1950 in the teeth of the repeated opinions and judgments
of this Court to the contrary.
Respondent's liighest officials, indeed, have stressed the unilateral
character of Respondent's approach towards this matter, and if the views
and expressions of Kespondeiit's highest officials are to be taken at face
value, they present aspects which appear ta be relevant to the judicial
task which the Court would confront in the acceptance of the proposa1
under discussion and the exercise of itç iiinctions, as proposed, elsewhere
than ai the seat of the Court. One exarnple may suffice of what 1 think
might fairly be called the unilateral character of Respondent's approach
towards its authority over the Mandate.
Thus, in esplanation of its concept of the so-called "spirit of the
Alandate" as applied to the Territory, Respondent's Prime Minister has
recently stated-and I quote from the House of Assembly Debates of
4 May to 8 May 1964, at columns 5636-5637-the follouing:
"It is perfectlv clear that the Government adopts the trusteesiiip
principle; the Government accepts its position as trustee; it acts in
the spirit of the mandate, and in accordance with that spirit it has
tnken certain obligations upon itself; it has taken upon itscll the
obligation to promote the well-being and the progress of tliose
people [referring to the inhabitants of South West Africa]. It has to
do what it regards as being in the best interests of the inhabitants.
It was appointed as trustee and itsduty is not to ask what others
want or how it can secure peace for itsell with other States; the
question which it has to ask basically is this: How can 1promote the
best interests of the inhabitants? Our policy is based on Our belief
that whatever others may Say, the on1y way in which we can test
Our policy and our actions is by asking ourselves whether we are
honestly and sincerely doing whnt a Cliristian guardian can be
expected to do for the peoples entrusted to his care."
In its written pleadings and oral argument, Respondent has elevated
this thcme to the status of a legal principle. Respondent indeed has
adopted the concept of self-enquiry and self-appraisai as the essential
measure ancltest of itscompliancewith the obligations of Article22 ofthe
Covenant and Article 2 of the Mandate, assuming, against its contention,
that such obligations ha\-e legal existence at au, which Respondent
continues to den)' in the face of this Court's repeated holdings to the
con trary.
Mr. President, in terms of Respondent's presentation to the Court of SOUTH WEST AFRICA
14
its proposed inspection in locothere appears to be an inter-relationship,
although of a somewhat elusive character, perceived as linking the
Applicants' alleged political motivation in seeking judicial protection of
the Mandate, a true appreciation of so-cal1ed African "circumstances,
realities and standards", to use the Respondent's phrase, and Respon-
dent's asserted motive, state of mind, or purpose with respect to appro-
priate policies for promoting to the utmost the welfare and progrcss of
the inhabitants of the Territory.
Each of these three factors and elements appears to be relevant, in
Respondent's submission, in some connected, or disconnected way that
is far from clear. Al1of these elernents are involved in and part of the
presentation of Respondent of its proposal for an inspection in loco and
that is why it is necessary, and has been necessary, for the Applicants
to refer to matters which, on their face, might seem to be uiirelated and
indeed logically would also seem to the Applicants to bc very question-
ably related indeed to the proposal under discussion, yet which are
asserted bp Respondent as major purposes or reasons uriderlying the
proposal.
The first of these reasons, or purposes, the one which irnpugnes the
Applicants' motivation in bringing the proceedings at all, has been
referred to and little Inore need be said about it. Respondent's effort to
portray the litigation as a subversion of judicial process rnther than a
recourse to judicial protection is, as 1 have said, rieither credible nor
worthy of the important issues which rernain unresolved despite years of
frustrated negotiation, and Respondent has not shown any relevance of
this groundless charge in any event to the proposa1 under discussion,
although it asserts it asa prirnary reason for the Court exercising these
functions,whatever the? may be, elsewhere than at the seat of the Court.
The second factor, &Ir. President, which might be for convenience
described as the appreciation of African reality, will be considered
briefly here and then again in relation to the areas proposed to be
visited and the considerations underlying this aspect of the proposal.
The third factor, to wit the alleged desirability for the Court to exer-
cise certain of its functions elsewhere than at the seat of the Court in
connection with its determination of Respondent's motive, or state of
mind, rcmains for consideration.
Proper appraisal of this asserted justification of the proposa1 requires
elucidation of the true nature of the Applicants' contention with respect
to factualand Iegal issues presented by the alIeged violations of Artic22
of the Covenant and Article 2 of the hiandate. Although argument upon
these matters, and their legal aspect, is still under way in another
context, an effort must be made to select for discussion those questions
of factand law which are directiy relevant to full and tirnely considera-
tion of Respondent's inspection proposal.
The Applicants' objective is avoidsncc of the necessity for undue
repetition of the same points at later stages of the Oral Proceedings,
while at the same time dispelling error and confusion introduced, or
which might be sought to be introduced, by Kespondent's mis-statements
of the Applicants' actual contentions and theories.
Before turning to an appraisal of the fact and law questions actually
in issue in the context of the discussion of the Respondent's proposal,
a preliminary comment is in order concerning an inherently inconsistent
aspect, among others, of Respondent's proposa1 itself. ARGUMENT OF MR. GROSS 15
One of the puzzling features of the proposal, as prcsented to the Court,
arises from Respondent's alternative suggestion that "an inspection be
undertaken, either by the Court, or by a comrnittee of the Court, which-
ever may be preferred". That is the way in which the proposa1 is formu-
lated in the verbatim record at VIII, page 278.
.4t the same time Respondent asserts, as a reason, and apparently an
important reason, for such an inspection being held at all, that "African
reaiity requires to be seen in order to be appreciated properly and
effectively". (VIII,p. 272.)
Respondent asserts further that persona1 inspection is particularly
desirable because of "the importance of seeing African reality, as dis-
tinct from just reading or hearing about it". (Ibid., p. 278.)
The alternative suggestion that a committee of the Court, rather than
the full Court, might wish, or prefer, to exercise judicial functions outside
The Hague, elsewhere than at the seat of the Court, pays due deference
to the Court's possible wishes and preference in the matter. That is clear.
At the same time, it is dificult to see how the purposes asserted by
Respondent, and the importance attached to persona1 observation of
African reality, could be served by a procedure of a committee of the
Court engaging in such an experience. The result could only be that those
hlembers of the Court who nid not have the opportunity to obtain
first-hand appreciation of African reality ~ould perforce have to reacii
conclusions about the matter from reading or hearing about it from
others, however respected.
Ry Respondent's hypothesis, however, such a procedure of appre-
ciating African reality is notpossible and the reliabilitgof the source js
irrelevant.
Even if, for reasons yet to bc explained, such a procedure, however,
of a committee of the Court conducting the inspection for the purpose of
witnessing African reality, would satisfy the requirement of first-hand
knowledge, apparently not for that purpose necessary to be appreciated
through visual evidence, a still more formidable obstacle would arise
after the processes of observation and appreciation Iiave taken place.
Upon Respondent's premise that persona1 inspection of the African
reality is a pre-condition toa full appreciation, how could the Court, or
aiiyCourt,appropriately record, or explain,the part which such personal
inspection has piayed in arriving at its judgment?
As a phenomenon which cannot be understood merely on the basis
of reading or hearing, there would appear to be no practical method, in
other words, by which the Court could accomplish the mission, in the
sense described by Respondent, and for the purposes assigned by it,
unless al1 Members of the Court participating in the decision were to
do so.
This is a feature of the proposal which may perhaps justify clarification
in due course.
For reasons which \vil1more fully appear, and baçjcally striking now
at the heart of the matter, the Applicants do not consider that resolution
of the issues actually and truly joined in these proceedings requires, or
.justifies, exercise by the Court, elsewhere than at the seat of the Court,
of its functions.
.iforeover, as will be shown, the undoubtedly dilatory, inconvenient,
cumbersome and expensive project to which reference has already been
made is, in the Applicants' respectful view, wholly unnecessary, inasmuch16 SOUTH WEST AFRICA
as the legal issues before the Court can, and sl~ould, in Our view, be
resolved upon the basis of the undisputed facts of record.
The Applicants' contentions in these respects obviously justify and
require at least summary analysis of such legal and fact issues in this
context. In turning to a consideration thereof, the Applicants may be
permitted to advert once again to the difficulty of assuring that al1
relevant law and fact questions are adequately and fairly presented in
the limited, though important, contevt of the inspection proposa1 itself.
Renelved reference to this problem appears to be doubly justified: first,
because the terms of Respondent's proposa1 on its face indicate its
prematurity, for reasons already discussed, and secondly, becailse of the
very reason that al1Parties would wish to do al1 in their power to assist
the Court inarriving at a timely decision concerning the proposal, on the
basis of full consideration of al1 issues, fact and law, germane to the
proposa1 for an inspection.
And 1 turn now, with the President's permission, to the contentions of
the Applicants in respect of fact issues, as such contentions bear upon
tlie proposa1 under discussion and the purposes asserted bp Respondent
to justify it.
Respondent's characterjzatjon of the Applicnrits' contentions in re-
spect of fact issues is distorted to a degree which not only justifies, but
requires attention. In its version of the Applicaiits' contentions with
regard to fact issues, Respondent appears totally to have ignored the
Applicants' directly relevant submissions embodying the cause of action
in which judicial relief is prayed, For the Court's convenience, sucli sub-
missions and prayers for relief may be set forth at this point of the
record-1 should like to read Submission No. 3:
"the Union, in the respects set forth in Chapter V of this hlemorial
and summarized in Paragraphs 189 and gotkereof, has practised
apartheid, Le., haçdistinguished as to race, color, national or tribal
origin in establishing thc rightsand duties of the inhabitants of the
Territory; that siich practice is in violation of its obligations as stated
' in Article z of the Mandate and Article 22 of the Covenant of the
League ofNations; and that the Union has the duty forthwith to
' cease the practice of apartheid in the Territory;"
Submission No. 4:
"the Union, by virtue of tlie economic, political, sociaI and educa-
tional policies applied within the Territory, which are described in
detail in Chapter V of this Mernorial and summarized at Para-
graph 190 thereof,has failed to promote to the utmost the material
and moral well-being and social progress of the inhabitants of the
Territory; that its faiiure to do so is in violation of its obligations as
stated in the second paragraph of Article 2 of the Mandate and
Article 22 of the Covenant ; and that the Union ha the duty forth-
with to cease its violations as aforesaid and to take al1 practicable
action to fulfillits duties under such Articles;". (1,p. 197.)
Mr. President, at least two saIient points emerge with inescapable
clarity from these submissions.
The first of these is that Submission No. 3, which 1 have just read.
relatesto and describes Respondent's factual conduct complained of,to
wit, the practice and measures of irnplementation of the policy of apart-
heid; furtherrnore, that the essential character of the practice is ex- ARGUMENT OF BIR. GROSS l7
plicitly described, to wit, distinction as to "race, color, national or
tribal origin in establishing the rights and duties of tiie inhabitants of
the Territory".
Secondly, Submission No. 4 refers to generally enumerated policies,
more apecifically described in the sections of the Nemorials citcd in the
submissions, and the submission alleges that, by virtue of such policies,
Respondent has failed to promote the well-being and progresç of the
inhabitants of the Territory.
Mr. President, even the most cursory reading of these submissions
must make it crystal clear that the basis of the Applicants' contention
with respect to the alleged breach and abuse of Article 2of the Mandate
and of Article zz of the Covenant consists in the policies and practices
of Respondent in the Territory. NThatever the explanation may be for
Kespondent's efforts-they have been persistent efforts-to construe
the submissions in a different sense, there ino real basisin the Appli-
cants' respectful view, for confusion whatever concerning this rnatter.
Neither submission rests, in whole or in part, directly or by implication,
and this has been repeatedly stated, upon the premise of Respondent's
good faith, purpose, motive or state ofmind with respect to the policies
and practices therein described. The Applicants' contention that such
policies and practices violate Respondent's obligations in accordancc
with and pursuant to the relevant provisions of the Covenant and of the
Mandate does not place at issue Respondent's motive or state of mind
and such subrnissions do not, explicitly or implicitly, request the Court
to take such motive or state of mind into account, nor to adjudge and
declare with respect thereto. On the contrary, as the Applicants repeat-
cdly have sought to make clear, the basis of their case with respect to
the alleged breaches and abuses of these articles rendcrs any such con-
siclerations irrelevant and foreign to the cause of action truly embodied
in their submissions.
Respondent's persistent and indeed Iaboured effort, in its written
pleadings and in its oral arguments, to distort or alter thetrue meanivg
and significance of these subrnissions will be examined in more detail in
the course of Applicants' subsequcnt response to the Respondent's
arguments which have just been completed as of last cvening. In the
contest relevant here, in respect of the Respondent's proposa1 for in-
spection which is under discussion, it is necessary forthe Applicants to
clear up confusion engendered by Respondent's misconstruction of the
submissions in order that the Court may consider and pass upon Respon-
dent's proposal-if not now, then in due course-in the light of the
subrnissions as they actually are, rather than as Respondent represents
them to be.
For the purpose of such clarification, and in the light of Respondent's
effort to reconstrue the Applicants' submissions, reference must be made
to Chapter V of the Memorials and to the surnmarization in paragraphs
169and 190 thereof which are referred to in the submissions themselves.
Chapter V concerns the policies and practices which are the subject of
cornplaint, and the continuance of which is asserted to be in violation of
Respondent's obligations in terms ofthe relevant articles of the Covenant
and of the Mandate.
Respondent's distortion of the intentand meaning of such submissions
rests upon the device or procedure of selecting certain words and phrases
in the chapter of the Memorialç in question. It is, accordingly, pertinentI 8 SOUTH WEST AFRICA
now to cal1to the Court's attention the nature, purpose and effect of the
hlemorials in this respect so as to establish a true perspective thereof.
Mr. Presidcnt, at the close of the early part of the session this morning
1u-as referring to the Respondcnt's distortion of the Applicants' sub-
missions, through the device or procedure of selecting certain words and
phrases, usually out of context, from Chapter V of the Memoriais, and
that it is, accordingly, pertinent now to cal1to the Court's attention the
nature, purpose, and effect of the Memorials in this respect, so as to
estabiish a true perspective thereof.
Chapter V of the Memorials (1) commences at page 104 thereof, and
the chapter opens, as the Court wiil note, with a statement of law on
pages 104-108 The true significance of the legal propositions set forth
therein, as disiinguished from Respondent's characterization of tliem,
has been noted in the Applicants' written pleadings and in their oral
arguments, and this matter will be subject to further considcration in
the context of the Applicants' response upon resumption of the argument
onlegal issues. It is sufficient to note here, we believe, that the Applicants
contended in the Memorials, as they continue to contend, without any
change of position, addition of any so-called new cause of action, or
otherwise, that in the words of the Mernorials, "clear and meaningful
norms marking the duties of the mandatory exist", and these are "legal
norms", again 1 quote from the Memorials, and that Respondent's
policies and practices should be adjudged on the basis of such existent,
clear and relevant legal norms.
Chapter V of the Mernorials tliereupon sets out, in considerable detail,
relevant facts establishing how Respondent's policies are applied in
practice. This section of Chapter V is headed: "B. Statement of Facts:
Policies and actions relating to the second paragraph of Article 2 of the
Mandate.'' (1, p. 108.) It will be notedthat no reference is made in the
caption to Respondent's purposes, motives, or state of mind. The omis-
sion of any such reference iinot inadvertent; the Applicaiils,iri for-
mulating the Memorials did not, never have, and do not now consider
that Respondent's policies and actions are to be weighed and rneasured
against the stateof mind of Respondent, as a Government, to the extent
that a Government has a state of mind, or to the intentions, motives,
purposes, or sincerity of Respondent's governmental officiaiswho may
be in office from time to time. The true purport and significance of
Chapter V in this respect clearly appears from the Memorials themselves,
and is not left to conjecture.
Evidence of the accuracy of the statement just made to the Court is
found in the opening sentence of Chapter VI of the Memorials thern-
selves, which may be quoted here for the Court's convenience:
"Chapter V of this Mernorial setsout facts establishing the Union's
violation of its duty to 'promote to the utmost the material and
moral well-being and the social progress' of the inhabitants of the
Territory. Tliese facts have been derived principally from officia1
sources, including laws, proclamations, and administrative decrees
in force inthe Territory. As stated in Chrtpter Ir,the interlocking
and al1 pervasive nature of the above laws, proclamations and
decrees establish their regular and systematic irnplementation in
the Territory." (1p. 167.)
That quotation from the llernorials stands as a clear, unequivocal inter- ARGUMENT OF MR. GROSS 19
pretation of tlie meaning and purpose of Chapter V, in the respect
relevant to tliis discussion.
The attention of the Court is respectfully drawn to the last sentence
of the paragraph which 1 have just quoted from page 167 of the Memo-
rials. The Applicants therein set forth their conclusion that the laws and
practices complained of "establish their regular and systematic imple-
mentation". hluch of Respondent's effort to fashion the submissions in
its o\rn image, rather than to accept them in their true and intended
form, rests upon the Applicants' use in certain contexts in Chapter V
of words and phrases such as "systematic", "deliberate", or other
characterizations to the sarne effect, or having the same purport. One
instance thereof, cited repeatedly by Respondent in the course of its
effort to portray the Applicants' tfieory of the case in a sense different
from that in which the Applicants themselves visualize the matter,
occurs in the concluding paragraph of Chapter V, in the following
context :
"The rneaning of the Rlandatory'ç conduct revealed in the fore-
going factual record is clear, as is the meaning of Article 2 of the
Mandate in this case. When the latter [that is,Article 21 is applied
to the former [that is, the factual record], the legal consequence is
clear and unmistakable. It isan understatement to Say that the
Mandatory has violated its obligations. In its administration of the
Mandate over the territory of South West Africa, the Union, as
Mandatory, has knowingly and deliberately viofated the letter and
spirit ofthe second paragraph of Article z of the Mandate and of
Article 22 of the Covenant upon which Article 2 of the Mandate
was based. In respect of its obligations thereunder, there is a polar
disparity between the dutics of the Union under the foregoing
provision of the Mandate and its conduct in the administration
thercof." (1,p. 166.)
It will be noted that, in the context,the Applicants have set out their
own characterization, conclusion, inference or judgmeiit, that the undis-
puted facts of record set forth in thc hlemorials, in considerable detail,
so clearly demonstrate the pervasive, consistent and systematic appli-
cation and implementation of tlie admitted policy of apartheid in the
Territory, that it would be, again in the Applicants' view, "an under-
statement to Say that the Mandatory has violated its obligations", upon
the basis of the Applicants' view of the applicable, legal criteria which
we have submitted to the Court for its judgment and adjudication. Even
a brief survey of the factual material, Mr. President, set out in the
relevant section of the Memorials, makes it unmistakably clear .how
systematic and pervasive is, indeed. the application of the admitted
policy of apartheid in the Territory, and with what rigid and thorough-
going consistency it is effectuated throughout the entire life of the
Territory. The intention, the motive, the state of mind of Kespondent's
officiais from tirnto time have nothing to do with the case. The factual
analysis commences by reference to the terms in which Respondent
classifies the inhabitants of the Territoryrigidly and systematically into
four groups. It is on the basis of this classification that the status, rights,
duties, opportunities and burdens of the population are undisputedly
determined and allotted in factual respects set out in the Memorials.
The so-called groups are classified ancl categorized by Respondent as
follows, in terms of its census: SOUTH WEST AFRICA
"(a) I.IJhites.-Perçons who in appeacance obviously are, or who
are generally accepted as white persons, but excluding persons who,
altliough in appearance are obviously white, are generally accepted
as Coloured personç.
"(b) Natives.-Perçons who in fact are, or who are generally accep-
ted as members of any aboriginal race or tribe of Africa.
"(c) Asz'atics.-Natives of Asia and their descendants.
"(d) Co1ozireds.-AI1 persons not included in any of the three
groups mentioned above." (1, p. 109.)
Foc purposes of these cases, the category "Asiatics", althougli, no
doubt, of interest to the persons directly concerned, is relatively unim-
portant inview of the fact that, as of the 1960 census, only two persons
in tlie Territory appear to have fallen within this description. That
appcars from the Counter-Mernorial, II,page 401.
The rigid and thorough-going systematic qualities inherent in the
policy and practice of apartheid, which is the admitted policy, emerge,
inter alia, from the de-personalized formulas which exclude from the
so-called "?VhiteH group individuals "who, although in appearance are
obviously white, are generally accepted as Coloured persons", as well
as what may be called the basket clause, which classifies as "Coloureds",
"al1 persons not included in any of the ... groups mentioned above".
The word "obviously", in this contest, in terms of appearance, indicates
and reveals the basic factor, and assumption, and prernise, which could
not be varied by an inspection gn loco,that it is appearance that enters
into the detemination dong with the acceptance, whatever that rnay
mean.
The legal, moral and political significancc of such methods of categori-
zation arises from the z~ndisputedfact that life-long and important per-
sonal consequences attend them. lndividual rights, privileges, burdens
and duties flow from them, from birtli to burial. Choice of schools and
methods of education depend upon t hem. Degree of participation in the
political life of the cornmunit- is determinedif not conditioned, by them,
and economic opportunities are substnntially affected by them,and thcre
is a procedure by which a person in one category can, with permission
of a certain bureau or agency, be changed to another category, ttiere-
upon obtaining a different allocation of rights, burdens, etc.
Now, Mr. President, the fact that all, or any, of such consequences
could, as a result of officia1policy and practice,be visited upon a person
reason of the circumstance that, although "obviously white", he is
b&-tera-allyaccepted as a Coloured porson", ta quote again, illuminares
the admitted premiçes of apartheid with Iightning cIarity. The matfer
does not rest there;as is shown by the undisputed facts of record herein,
individual status, rights, duties, opportunities and burdens, are determ-
ined and conditioned even more drastically in the case of "Natives",
that is. those "who in fact are, or who are generally accepted as mem-
bers of any aboriginal race or tribe of Africa".
Chapter Vof the Mernorials deals with the facts, none of which in aiiy
material respect is disputed, which relate to Respondent's policies and
actions in the implenientation systematically, as described, of the adrnit-
ted policy of apartheid. The Applicants have made clear that tlieir pur-
pose of setting forth in considerable detail the facts concerning the mea-
sures ofirnplernentation, the Iaws,regulations, administrative practices-
none of which isin dispute, and if any için dispute, tlie Applicants do ARGUMENT OF MR. GROSS 21
not rely upon them-that tliese facts, systematically applied,in the
Applicants' submission, do establish a violation of the international legai
norm, for which the Applicants contend, and if the Applicants' views
in that respect are not correcifthe .4pplicants' case upon its own theory
is not made, the result must be obvious.
Al1 facts set forth in this record, which upon the Applicants' theory
of the case are relevant toits contentions of law, are undisputed. There
have been certainimmaterial, in our submission, allegations of facts, data
or other materials which have been contravcrted by the Respondent and
such contraversion has becn accepted by the Applicants and those facts
are not reiiedupon. The Applicants have gone further in order to obvjate
any plausible or reasonable basis foan objection that the Applicantshave
not painted the whole picture in their own written pleadings. The -4ppli-
cants have advised Respondent as well as this honourable Court that al1
and any averments of fact in Respondent'ç written plcadings will be and
are accepted as true, unless specifically deniedAnd the Applicants have
not found it necessary and do not find it necessary to controvert any
such averments of fact. Hcncc, for the purposes of these proceedings,
such averments of fact, although made by Kespondent in a copious and
unusually volurninous record, may be treated as if incorporated by refer-
ence into the Applicants' pleadings,
Nor does the matter rest there. The Applicantshave cited public state-
ments by Respondent's highest offrcials, for the purpose of dernonstrat-
ing how Respondent, not Applicants, in its own terins formulates the
premises, purposes and objectives of the policy of apartheid. There is
no question of fact concerning the premises underlying the policy upon
which the Applicants rely, those premises are stated in the statements
set forth in statements by Respondent's highest officiais-no dispute
about the fact that they were made and even further, where the Respon-
dent has contended that Applicants have taken excerpts out of context,
or othenvise distorted, unwittingly or othenvise-and it is not othenvise.
the Court need not be assured-in any such cases, the Applicants accept
Respondent's own context. In some instances indeed the context, the
full context, impresses the Applicants as even more strongly persuasive
of the validity of its conc~usionsand characterizations of the facts than
were the original shorter excerpts as included in the Applicants' written
pleadings.
On the basisof the avermentç of thefacts in ChapterV of the Alemorials,
added to in the Reply, together wjth the averments of facts in Respon-
dent's written pleadings, including the officia1statements as aforesaid
in the context in which Respondent sets them forth in its own words and
with its own imprimatur, the Applicantsrepeat and reaffirm the following
legal conclusions set forth in the hlernorinls, 1, par61:
"187. The factual record of the Mandatory's conduct, as hereinabove
more particularly set forth, has a desolate but remarkable consis-
tency. \hatever segment or sector of the life of the Territory rnay
be examined the import of the facts is identical.Each part of the
record supports and confirms every other part. The record as a
whoIe supports and confirms the record in detail. Indeed, the record
taken as a whole has an impact greater than that of a rnere arith-
meticaI sum of the several parts. The record as a whole reveals the
deliberate design that pervades the several parts."
1 pause there for a moment-the Iast sentence if 1 rnay repeat "the22 SOUTH WEST AFRICri
record as a whole reveals the deliberate design that pervades the several
parts". The word "deliberate" is selected out of this context and is made
to appear as the essence of the Applicants' charge or cornplaint. It is
clearly-and those who wrote the section in question presümably know
what was intended by it-it is clearly a conclusion, characterization
or judgment in the context of, and under a heading of, legal conclusions.
Paragraph 188 of the bIemorials then goes on:
"It might be possible for the Mandatory to explain or extenuate
this or thatdetail of the factual record, if it were rnerely an isolated
event or phenomenon. As a matter of speculation, such a possibility
rnay be acknowledged. But the details are not isolated events or
phenornena. They are significant not only in themselves but in their
mutual and multiple relationships and their cumulative effect. Taken
as a whole, the weight of the factual record cannot be materially
diniinished by attempts at extenuation. Particular laws and particu-
lar practices, particularorders and particular acts are al1parts of a
cohesive and systematic pattern of behaviour by the Mandatory
which inhibits the well-being, the social progress and the develop-
ment of the ovenvhelrning majority of the people of South West
Africa, in all significant phases of the life of the Territory."
And Mr. President, 1 pause there for a moment and refer to the refer-
ence in the sentence "cohesive and systematic pattern". Out of this con-
text Kespondent selects the word "systematic", holds it up triumphantly
as evidence of its strenuous contention that the Applicants' case is based
essentially on the use of words in such a contest, the use of words such
as "deliberate" or "systematic". Paragraph 189 reads as follows:
"As the Applicants have previously pointed out, the policy and
practice of apartheid has shaped the Mandatory's behaviour and
permeates the factual record. The ineaning of afiavtheidin the Terri-
tory has already been explained hereinabove. The explanation war-
rants repeating. Under rrparllteid, the status, rights, duties, oppor-
tunities and burdens of the population are fixed and allocated ar-
bitrarily on the basis of race, colour and tribe, without any regard
for the actual needs and capacities of the groups and individuals
affected. Under apartheid, the rights and interests of the great ma-
jority of thepeople of the Territory are subordinatcd to the desires
and conveniences of a minority. We here speak of apartheid, as we
have throughout this Mernorial, as a fact and not as a word, as a
practice and not as an abstraction. Aparlhaid, as it actually is and
as it actually has been in the life of the people of the Territory is
a process bp which the Mandatory excludes the 'Natives' of the
Territory frorn any significant participation in the life of the Terri-
tory except insofar as the Mandatory finds it necessary to use the
'Natives' as an indispensable source of comrnon labour or menial
service."
liow, Rlr. President, and BIembers of this honourable Court, if from
this context and if on the basisof the fair construction, the intended con-
struction of the excerpts in question and other related excerpts with
which 1 have burdened the Court's patience do not establish that the
Applicants rely upon and rest their case upon the record of fact herein,
and if these statements ~vhich 1 have quoted and similar ones appearing
in theApplicants'pleadingsdonot make clearthat the Applicants subrnit ARGUMENT OF MR. CROSS 23
andiiideedcontend that the applicationof these factssoset forth tothe legal
norms for which the Applicants contend, pursuant to Article 23 of the
Covenant and Article 2of the Mandate, if these propositions do not clearly
emerge fromthe words and phrases used in the Meinorials, the Applicants
again reaffirm that intention, as they have sought to do in the Reply,
although not to Respondent's satisfaction.
The Applicants likewise repeat and reaffirm that neither their Sub-
missions 3 or 4,nor the legal conclusions, which 1have just quoted from
the Mernorials, nor any-other statements or arguments made by Appli-
cants, that neither Submissions 3 or 4, nor the legal conclusions which
flow frorn the undisputed facts of record,directly or indirectly, cxplicitly
or irnplicitly, place in issue Respondent's motive, purpose, objectives
or state of mind or that af any of Respondent's officials from time to
time in office.
As stated earlier, Mr. President, the Applicants have deemed it neces-
sary to cal1these matters to the attention ofthe Court in order to reduce
or eliminate confusion engendered by the terms in which Respondent haç
presented its inspection proposal, since the Applicants have endeavoured
not to lose sight of the fact that this is the matter under discussion at
the moment rvith due regard to the difficultof selection posed by antici-
pation of similar or even indeed identical material which is relevant to
the uncompleted discussion upon the legal issues.
The Applicants refer. more specifically, in the context of the terms
in which Respondent has presented its inspection proposai, to Respon-
dent's comrnents, arguments or statements made to the Court during
the course of the presentation of the proposa1 under discussion on 30
hfarch as follows:
I. Respondent's erroneous statement that-
". .. theonly possible basis upon which there could be an allegation
of an abuse of power would be of the nature which appears to be
suggested in the Applicants' pleadings, namely that of bad faith
on the Respondent's part". (VIII,p. 275.)
2.Respondent's erroneous characterization of the Applicants' "charge",
as thep cal1it-by which it is assurned Respondent intended to refer
to the submissions-as invalving an issue of bad or good faith onRespon-
dent's part. (Ibid.)
3. Respondent's erroneous construction of the same submissions, re-
peated at ibid.pa,ge 276;
4. In general, the Applicants would take the same position, and do,
with respect to any other comment, statement, argument or implication
which may be found in Reçpondent's presentation of its proposal, or else-
where,involvinga similarmisconstruction ofthe Applicants' subrnissions.
Respondent's repeated and unwarranted characterizations of the Ap-
plicants' submissions and pleadings in the foregoing respect have been,
apparently, relied upon heavily by Respondent as a reason for and justi-
fication of the inspection proposal now under discussion.
The Applicants, on the other hand, have sought to make it clear, at
al1stages of these proceedings, commencing with the filing of the Appli-
cations embodying the relevant siibmissions in the identical form in
which they stand today, that the validity oftheir submissions rests upon
two central contentions, which were stated at the opening of the Appli-
cants' presentation tothis honourable Court on 18 March 1965 as follows:24 SOUTH WEST AFRICA
"r. The policy of apartheid, as practised in South West Africa,
is repugnant to the Mandate.
2. The incompatibility of apartheid with the Mandate, in terms
of Article 2 thercof, is judicially determinable on the basis of ob-
jective legal criteria."(VIIT,p. 113.)
As the Applicants likewise have consistently sought to make clear, in
the words of the fifernorials:
"Since this section of the hlemorial [that is, the section of Chapter
V headed 'Statement of Facts', to which 1have referred] is concerned
with the record of fact, it deaIs witapartheid as a fact and not as a
word. It deaIs with afiartheid in practice, as it actuallyisand as it
actually has been in the life of the people of the Territory, and not
as a theoretical abstraction." (1, p. 108.)
And 1might add at this point, hlr. President, "and not as perhaps Re-
spondent's officials from time to time may view it in their own state of
mind".
On the Applicants' view of the cases, and upon the basis of the legaI
propositions which they assert support their submissions, therefore, no
purpose would or could be served, of which theyare aware or which they
can perceive, inaid of the Court's adjudication upon these submissions,
by reaçon of the exercising of its functions elsewhere than at the seat of
the Court. hloreover, and for the same reasons, no purpose would be
served, in the Applicants' view, by the production of witnesses at the
seat of the Court, or the taking of testimony, expert or othcrwise, either
at the seat of the Court or elsewhere.
If Respondent deems it necessary for any reason which is sufficient
to itseIf to introduce additional factualmaterial, or evidentiary material,
into the record of theçe already voluminous proceedings by reason of
some factor not yet apparent to the Applicants, in the form of witnesses,
then, subject to the permission and consent of the honourable President
and the Court, the Applicants would be prepared to stipulate, with the
Respondent, that any material, statements, matters which could be
testified toby persons if physically present in the courtroom, could be
taken in the form of depositions and submitted to this honourable Court,
in extension and amplification of the already bulky record thereof. But
if the Court should deem it necessary, or desirable, to observe the demea-
nor of such witnesses, or to asli questions of'thern on the basis of any
material which might be included in depositions, taken at the time upon
the time of Kespondent rather than upon the Court's time, then of course !
it would be undersîood, naturally, that the Court couId cal1 such wit- I
nesses, ask for their appearance, or take whatever other action or mea-
sures the Court deems necessary.
So far as the Applicants are concerned, and so far as they are aware,
on the basis of any information yet supplied to them with respect to the
nature of the witnesses ûpparently proposed to be brought before the
Court, or the nature of the points apparently proposed to be covered,
there would be no basis and no reason for cross-examination on the part
of the Applicants with respect to such rnatters.
The Applicants would waive any right they othenvise might have,
pursuant to the rules, practice, or pleasureof the Court. not to be present
at the taking of such depositions, not to request the right of examination
in the form of interrogatories or otherwise. ARGUMENT OF MR. GROSS 25
But, having said al1thiç, Mr. President, 1should like to revert to the
essentid point at issue, of which this is another illustration to support
and confirm, that the Applicants rest their submissions, hence their case,
upon the legal theory for which they contend and which underlies their
submissions, upon thc record of fact as made and presented to this hon-
ourabie Court in the pleadings and documentation now before it, sub-
ject to such addition as might be made, for example, by depositions,
subject to the Court's approval, on the basis 1 have suggested. There
would of course, needleçs to say, be no need or justification for the
Applicants to stipulate other than with respect to the proposition and
the fact that had the witness or witnesses in question appeared before
the Court personally, they would have stated what is set forth in their
depositions, prepared, as 1 Say elsewhere, outside the time of the Court.
However, to revert now to the proposa1 specifically under discussion,
which is, of course, the proposition to make an inspection in loco,it seems
to the Applicants that the same conclusion, with respect to the non-
suitability,the inappropriateness, the unfeasibility of the proposal made,
would apply equally, if not more so, ifone procceds from Respondent's
misconstruction of the Applicants' submissions and the factual and legal
considerations on which they rest, or from Respondent's own contention
that its obligations under Article 22 of the Covenant and under Article
2 of the Mandate are adjudicable, if indeed justiciable at all, which Re-
spondent denies, upon the basis set forth in its explanation of the second
alternative contention.
It will be recallcd that the second alternative contention, to which
reference is made, which has been summarized and described in the
written pleadings and in the Oral Proceedings, is based upon the proposi-
tion that if the obligations under Article 2,parngraph z, and Article 22
of the Covenant are justiciable, they are justiciable, they are adjudjcable,
only on the basis, as understood by the Applicants, that the conduct of
the Respondent must be viewed and reviewed in terms of the purpose
with whch it approaches, or pursues, the task of achieving the objectives
stated in Article z, paragraph 2.1 shall refer in a few moments to Re-
spondent's own explicit, agreeable characterizations of its proposition
in that respect, and if 1 have distorted itç mcaning-it is not clear from
the Oral Proceedings, it is not clear to the Applicants in any event, for
reasons which I will explain, wliyitis not easy to be certain whether one
is rnisconçtruing the intentions or not-then, of course, the words will
have to be re-examined-the ivords 1vhicIithey used.
Mr. President, it appears to be relevant, and indeed inescapably rele-
vant, to a consideration of Respondent's proposa1 under discussion for
the inspection in loco, to consider the judicial task which inevitably
would confront theCourt, or Mcmbers thereof ifthe alternative proposa1
were accepted, if the Court or Members thereof were to embark upon
an inspection trip for the purposes apparently envisaged by Respondent's
legal theory of its obligations under Article 22 of the Convenant and
Article 2 of the Mandate.
The Applicants will endeavour to appraise that judicial task without
reference, in this context,directly to the in any event elusive relationship
apparently perccived by Respondent to exist between a judicial deter-
mination of its purpose, on the one hand, with the aleged political mo-
tivation of the Applicants on the other, and an appreciation of African
reality açstill a third element.26 SOUTH WEST AFRICA
Looking at the matter from the standpoint of the task which the Court
would confront in respect of the legal theory upon which Respondent
apparently rests its case, what would be the task of the Court? Several
problems leap to mind which appear to have generated sorne perplesities
for Respondent as well.
It may be convenient to the Court to refer, as a preliminary matter,
to Respondent's own formulation of the proposed task in this respect.
After adverting to the Applicants' alleged untoward motivation, to
understate the matter, and the need for persona1 appreciation of African
reality, Respondent contends:
"We submit that in the practical considerations which apply to
this case, the only possible basis upon whch there could be an
allegation of an abuse ofpower would be of the nature which appears
to be suggested in the Applicants' pleadings, namely that of bad
faith on Respondent's part-bad faith in thesense that the Kespon-
dent has been granted powers with a trust purpose, with a purpose
of promoting well-being and progress of the inhabitants, and that
that power is now being abused and applied nlth a different purpose,
namely the purpose of oppressing certain of the inhabitants of the
Territory for the benefit of other inhabitants." (VIII, p. 275.)
Needless to Say, this is a wliolly incorrect reading and distortion of the
Applicants' case.
Then, ornitting a passage irrelevant in this context, Respondent
continues :
"The question whether, in the sense 1 have described, a govern-
mental power is imbued with good faith directed at the authorized
objective of the powers given to it, or whether it is imbued with bad
faith directed at an unauthorized objective, that surely, Mr. Pres-
ident, must under al1 circumstances be a question of jact." (Ibid.)
This then is a question of fact which would confront the Court in
exercising its judicinl task autside, and away from, the seat of the Court.
After further elaboration of the point, that motive or purpose is a fact,
a self-evident proposition to which any psychiatrist would attest, Respon-
dent falls into somewhat deeper waters. Respondent takes up for con-
sideration the basis upon which a Court conducts an enquiry into good
orbad faith, which is the task obviously envisaged by Respondent which
would confront the Court in the implementation of the proposa1 for an
inspection in loco.
"It [that is, the task] calls for the determination of diçputed
issues of fact, where necessary. It calls also, and under al1 circum-
stances, for a proper understanding, for a proper evnlelation, for a
proper assessmelzt, of allthe facts involved in a given situation.
Now, that is particularly the case where the allegation ofthe party
alleging bad faith takes a particular form, which it very often does
in proceedings of such a nature." (VIII,p. 276.)
I pause here to remind the President, and the hfembers of the Court,
there is no allegation of bad faith on the part of the Applicants. This is
merely an inverted form of statement, that this is the form in which the
issue is actually posed by the Respondent itself and the theory upon
which it rests its case.
"The form of the allegation is ver)* often this, that the action, ARGUMENT OF MR. GROSS
27
or decision, of the person or body concerned, is so manifestly wrong,
so obviously unfair, so clearly inhumane, or something similar, that
that authority could not honestly and genuinely have come to its
conclusion; that as a matter of inference there must have been
something of the naturc of bad faith, or an ulterior motive on the
part of such an authority or person. That is the form that an allega-
tion of this type very often takes." (Ibid.)
There follows in Respondent's statement, which may or may not be
related to what 1 have just quoted-I will admit that the statement
itself is highly conlusing+assim references to the necessity for "evalua-
tion of the facts", "knowing al1aspects of the facts involved in a partic-
ular situation" (ibid., p277) understanding "al1 facets of the factual
situation" (ibid.}and comrnents of a similar nature, al1appearing in the
context of Respondent's presentation of its proposa1 under discussion,
and presurnably related thereto in sorne rnanner.
3lr. President, several propositions of a legal nature are tangledup in
the foregoing comment, which require unravelling.
Before turning to these, however, it may be well briefijr to clear up one
point of confusion injected by Respondent's apparent misconception
that any of the AppIicants' reasons, or arguments, reflect their assunip-
tion that state of rnind, motive or purpose is somethingother than a fact.
This seerns to have been dragged across the trail of the proceedings.
Many situations of course are known to the law in which motive, or
intent, is not merely a relevant fact but, indeed, rnay be a decisive one.
This was precisely the point of the Applicants' references earlier in these
proceedings to the well-known doctrine of mens raa and the part which
it plays in criminal law. Furtlier discussion of so elementary a matter as
to whether motive, or state of mind, is a fnct, and provable as such,
would be a waste of the Court's time. In any errent, it is completely wide
of the mark.
The point at issue here iç a wholly different one. Assuming for the sake
of argument the validity of Respondent's submission, or proposition,
which, in the Applicants' respectful view, is wholly untenable, that the
only issue of fact which could arise for adjudication in respect of asserted
violations of Articlez of the Mandate, and Article 22 of the Covenant,
must be based upon an examination and an evaluation of Respondent's
purpose, in terms of state of mind in connection with the purçuit or
accomplishment of its objective: on what basis could the Court arrive at
a judicial decision concerning the legal significance and character of
Respondent's state of mind with respect to the facts, undisputed facts,
of record in these proceedings.
The facts, in the Applicants' subrnission, speak for themselves and are
beyond dispute. The inferences which have to bedrawn from them have
nothing in common with whether or not the Respondent's governmental
or public officials intend to accomplish certain results or know, indeed,
what the results are that they are actually said to intend. The objective
criteria must be applied to the purposes of the Mandate itself. The answer
to this question appears to the Applicants to be not merely relevant to,
but dispositive of, the Respondent's proposa1 that the Court esercise its
functions elsewhere than at the seat of the Court.
Respondent's analysis of this matter casts more sliadow than light
upon it.
In the first place, Respondent's statements, which 1have quoted, in28 SOUTH WEST AFRICA
presenting its proposa1 that such adjudication would involve evaluation
or assessnlent of "al1 the facts involved in a given situation" begs n
niajor question: what facts are involved in, or relevant to, "a given
situation"? Clearlÿ they are not al1the facts which any Party, fancifully
or otherwise, asserts are relevant and therefore must bc enquired into.
Judicial administration, the normal operations of judicial process, do
not turn rnatters of that sortover tu the parties,
The Applicants contend that al1facts relevant or neccssary to adjudica-
tion upon its submission are not only in the record of the proceedings but
are, indeed, undisputed. That 1 have sought to make clear.
Respondent accordingly draws a falsc issue, or at least evades the
real one, by the very forrn of its staterncnt "the Court must asscss or
evaluate al1 the facts involved in a given situation". 1s the weather
relevant? Clearly this Court, or any court, cannot reasonably be ex-
pected to esercise its functions, either at the seat of the Court or else-
where, merely on the basis ofassertions, by one or more parties, that the
Court should take certain testimony, adopt certain evidentiary proce-
dures, or exercise its functiotis ia certain way, a11on the hasis that it
must assess al1 the facts involved in a given situation. The Applicants
fail to see the feasibility, or cven the common sense, of such aproposal.
Who is to determine ~vttat al1the facts are, except on the basis of what
facts are relevant. The question what facts are relevant obviously and
necessarily involves the determination of the nature of the submissions
and the legal issues upon which the57are grounded.There is no other way
to tell what al1the facts are or, as Respondent says in another context,
al1 facets of the situation.
The Court must clearly adopt the normal posture that any court
would, and it is inevitable, it is inherent in the nature of the judicial
process, to consider what the Applicants' submissions stand for, what
legal propositions they are grounded upon, what facts are contended by
the Applicants to be relevant, in order to sustain their submissions, and,
acting upon that basis, to decide whether the submissions are, or are iiot,
well founded.
The selection of procedures, the designation of what facts are aithin
the preview of the litigation, is essentially, aI Say, a matter for the
excrcise of judicial discretion, in the lioftthe factors1 have mentioned
and weighing in the scales of justice the requirements of expedition,
expense, to the Court as well as to the parties, and the burden of cum-
bersome procedures which are contended for here and which would repre-
sent such a radical departure from the practice of this Court and its
predecessor.
A survey of thehistorg of the Court in this respect lias revealed only
one situation of which the Applicants have been able to find record in
which the Court exercised its function elsewhere than at the seat of the
Court, and that was in the case of DiversiottO/ Water from the Meuse
(P.C.I.J.,SeriesAIB, 28 Jecne 1937) n which the Court with the consent
or aquiescence of both parties visited the river and took a tripon the
river to esamine the workings of the locks.
In the terms of the proposal, which is tmly unprecedented, and
revolutionary, if 1 may use that word, one must consider what "al1 the
facts" implies in the task of judicial selection, either here ai the seaof
theCourt or elsewhere, in Eoco,to use Reçpondent's phrase.
Itis a little too easy to say, with a sweep of the hand, that the Court ARGUMENT OF MR. GROSS 29
should enquire into al1 the facts and al1 facets of the factual situation,
But such questions arise, as where the Court should go in pursuit of so
elusive a mission as that defiiied in the task of examining "al1 tlie Iacets
of the factual situation". There are many facets of the factual situation,
although that is hardly a legal term of art, which emerge from the
pleadings, and particularly Kespondent's form of pleadings, whicli involve
areas other than any mentioned or suggcsted in the Respondent's
proposal.
The question arises not only where the Court should go, but what is
the Court, or Members thereof, to look at; what is the Court, or Ricrnbers
thereof, to look for? Let us assume, for example, just as an illustration,
that the Court, or Members thereof, should decide to visit Windhoek,
the capital cityof the Terri toryofSouth West Africa, in order tenquire
into "al1facets ofthe factual situationthere, in the words of Respondent.
Let us assume further, by way of example, that the particular facet
under enquiry involves the legal inferences to be drawn from the undis-
puted, and unquestionably relevant, fact or Iacet that a "Kative",
however capable he might otherwise be, iç not permitted to receive
training, or to qualify as an engineer in the Territory; and that, in any
event, ifhe should succeed in reaching that status, perhaps by being
able to leave the Territory for that purpose to çomplete his education,
government policy would prohibit him from having a so-called "White"
assistant; and that, if he qualifies as assistant engineer therefore, this
sets his lifetime ceiling of opportunity in the profession, whatever his
merit or capacity-this is from the Mernorials (1) at pages 157-158; that
is based upon undisputed facts of record, facts appearing from an
uncontroverted and uncontrovertible statement by Respondent's Min-
ister of Bantu Education made in 1960.
Now let us assume further that the Court, in Windhoek or elsewliere
in the Territory, desires to evaluate this facet of the facts of apartheid
as applied in the Territory in the Iight of Respondent's own explanation
thereof-that is set out in the Counter-Xemorial, III,at page 528 as
folloï~s, and the whole context is respectfully drawn to the attention of
the Court-it will be found atIII,pages 527-53 of the Counter-hlemorial,
and the Court, with respect, deserves to read it in full in order to assure
itself that, as the Applicants believe, whatI shnll rcad is not quoted out
of context. This is the explanation advanced by Kespondent in respect
of the paragraph of the hlemorial which sets out the undisputed fact to
which 1 have referred, that a "Native" may not quaïify as an engineer,
and that if he should succeed in doing so, by circumvention of the policy
and practice in the Territory, he would not be permitted if he returned
to the Territory to have the services of a "White" assistant engineer.
Now let us look at the expIanation advanced by Respondent to,attempt
to see what the Court's function would be, what the Court's judicial task
wolild be, if it sought to evaluate this facet othe factual situation, and
T read frorn page 528-(c) :
"A fact of which Respondent must, and does, take cognizance, is
that there has, throughout South Africa'ç history, been social sepa-
ration between the White and Bantu groups; that the members of
each group prefer to associate with members of their own group;
and that certain kinds of close contact between members of the two
g-roups, particularly in the more intimate spheres, tend to create
friction."30 SOUTH WEST AFRICA
Paragraph (d) :
"The aforementioned factors, accentuated in al1 probability in
the case of the European group bythe fact that they have for a long
time occupied a position of guardianship and leadership over the
Bantu groups, also in the economic field, have limited relationships
between Europeans and Bantu largely to those of tutors and em-
ployer~, on the one hand, and pupils and employees, on tlie other,
and have, furthermore, as at the present stages of development of
the respective groups, resulted in the factual situation that many
Europeans, in al1probability the vast majority, are not prepared to
serve in positions where Rantu are placed in aposition of authority
over them."
And (e) :
"A further important facet of the aforemcntioned factors is that
a Bantu who qualifies himself for a profession in which he ïvill,
because of the stage of advancement of his own group, have to
depend for his livelihood on the services of European employees, or
on European patronage, runs a grave risk of total frustration."
This latter partof the explanation the Applicants have, for convenience,
referred to as the doctrine of inevitable frustration.
Theattention of the Court respcctfullyis drawn, as 1have said, to the
full context at III, pages 527-53 of the Counter-Nemorial from which
these excerpts are derived. The facts in this case, and the purported
explanation thereof, accordingly-both are set out in the record of these
proceedings upon the basis of direct and indisputable sources. Reverting
now to the questions relevant to a consideration of the Rcspondent's
proposal, what would the Court look at,what would the Court look for,
in aid of an evaluation of this facet, assuming that the Court chould
embark upon the task which is suggested by the Respondent? Upon
completion of the tour of the city of Windhoek and its environs. the
receptions of officials, inspection of selected or representative public
facilities or other installations and enterprises, parks and so forth, the
question still remains: how does the Court meet the judicial task posed
in respect of the most important facet of all, i1 may cal1it a facet-to
wit, the effect of Respondent's policy and practice of apartheid, on the
undisputed facts, upon the well-being and progress of the individual
person who iç affected by the admitted policy, and who is told, presum-
ably: "It is a temporary disadvantage; itmay belife-long, but it is
temporary, trnnsient; some day something else will be done in the
Territory" ?
The Applicants find genuine difiiculty, hlr.President, in perceiving in
what respects-and ask for clarification, invite clarification, upon this-
the so-called "inspection" of the city of Windhoek and environs, for
example, or other areas of the Police Zone ofthe Territory as a whole,
could aid in a judicial evaluation of the degree or quality of frustration
which is either avoided or inflicted, depending upon the point of view, by
a policy which for any reason based upon race, or tribal accident, inhibits
or forbids the realization of individual capacity, merit and potential.
In the Applicants' submission there iç no intention, there is no purpose,
there is no state of mind, there is no circumstance which could justify
such a policy any~vhere in the world, South \Vest Africa or othenvise.
Respondent's contention that such evaluation inherently is not a proper ARGUMENT OF MR. GROSS 3I
judicial function at all, or that,if it is, the only applicable test is the
measure of the intent, or purpose, or state of mind with which Respon-
dent's officials from time to time seek to achieve a broadly defined
objective-that is at least, although wholly erroneous, a proposition of
law at least intelligible. The reasons underlying the Applicants' sub-
mission that the Court should reject Respondent's contention in thiç
respect have been, and will be, more fully discussed in another context
upon the resumption of the legal issues. The Applicants are, of course,
aware that Reçpondent's proposa1 under discussion is based upon a
so-callecl alternativecontention, which would arise for consideration
only if its first alternative contention should be rejected, that is, that
asserted breaches and abuse of the devant provisions of the Covenant
ancl JIandate are not justiciable. The point relevant in the present
contest, Jlr. President, however, is that consideration of Respondent'ç
proposa1 under discussion could be materially affected by the Court's
reason for rejection of Respondent's first alternative contention, as well
as the possible decision on the part of the Court that it be rejected.
Apart from that conclusion, the reasoning upon which the Court should
base such a conclusion, if that indeed should be the Court's conclusion
with respect to Respondent's first alternative contention,. would be,
and might be, highly relevant to a consideration of the suitabiIity or
feasibility or relevance of Respondent's propoçal for an inspection. It is
not quite as easp as Respondent would like to make it appear to be
merely to Say that its proposa1 would fa11to be considered only in the
event the Court should reject itç first alternative contention; although
the statement is undoubtedly a correct one, it does not fully meet the
problem. The principal basis advanced by Respondent in support of itç
first alternative contention, that is to Say "non-justiciability of its
obligations under Article z of the Mandate and Article 22 of the Cove-
nant", has already been analysed by the Applicants at an earlicr stage
of these proceedings, and the basis advanced by and the theory upon
which the Respondent supports its first alternative contention will be
dealt with again upon resurnption of argument upon legal issues.
[Public hearing of 28 April19651
Mr. President and Mernbers of the honourable Court, at the coiiclusion
of the session yesterday 1 had referred to the fact that it was not quite
as easy as Respondent would like to make it appear to be merely to say
that the proposa1 for the inspection would fa11to be considered only
in the event that the Court should reject its first alternative contention.
Although the statement is undoubtedly a correct one, as 1 rernarked
yesterday, it does not fully meet the problern, because there is also to
be considered as an aspect of the problem the matter of the reasons
which might underlie the Court's rejection of the first alternative con-
tention. Tt was for that reason that it was necessary to refer to the
principal basis advanced by the Respondent in support of its contention
of non-justiciability,that is to Say, its first alternative contention. An
analysis of the basis advanced by Respondent has been made at an earlier
stage of these proceedings and will be dealt with again upon resumption
of argument upon the legal issues.
In the light of the relevance in this context of Respondent's reasoning,
homever, in support of its first alternative contention, that is of non-32 SOUTH WEST AFRlCA
justiciability of obligations under Article2 of the Mandate and of Article
22 of the Covenant, it rnay be convenient to refer, in the context of the
proposai under discussion at this point to Respondent's argument, or a
portion thereof, in support of its first alternative contention of non-
justiciability in terms of the Respondent's own formulation, and for that
purpose 1 quote from the Counter-hlemorial, II, pages 384-385. Respon-
dent there says:
"... it is foreign to the essential nature and purpose of a Court
of Law to entertain matters of a purely political or technical nature,
such as rnight well arise ifthe Court were required to adjudicate
on disputes arising from an alleged breach of the obligation to
'... promote to the utmost the material and moral weH-being and
the social progress of the inhabitants of the territory . . .'."
That argument, or point, is repeated in the Kejoinder, V, at page 144.
The Applicants have already referred to the question-begging nature
of the assertion and use of the term "purely" in the context of the quoted
passage. What is a purely political questionis,of course, a major element
of the answer to the question itself.
Apart from this, however, the point of major reIevance in this context
is the legal and logical consequence which would necessarily flow from
the Court's possible conclusion that, contrary to Respondent's reasoning,
disputes arising from alleged breaches of Article 2 of the Mandate in-
volve matters essentially of a legal nature as well as those of a political
or technicai nature. In other words, the matters involved here are not
purely of a political nature.
Such a conclusion, it is submitted, involves the consideration of, and
decision upon, the very nature of Respondent's obligations pursuant to
Article 22 of the Covenant and Article 2 of the Mandate. This in turn
bears directly upon the principal inatter nt issue in the context of the
present discussion, to wit, would procedures suggested by Kespondent in
aid of the Court's adjudication upon the legal dispute, involving the
interpretation and application ofsuch obligations, would such a course of
inspection aid, or would it not aid, adjudication of such issucs. That is
the question before us at the moment.
As haç been said, and must be assumed as an axiomatic premise, the
Parties to the present proceedings share in common a desire to assist the
Court in respect of any measures or procedures the Court may conclude
to be helpful to such an adjudication. Ttis on the basis of such an assump-
tion that the Applicants have confessed difficulty in understanding Re-
spondent's earlier reference to the dificulty alleged to be perceived by
Respondent with respect to our position on the natter.
A major source of doubt and confusion implicit in Respondent's for-
mulation of its first alternative contention does arise, as I have said, from
the ambiguity of the phrase "purely political". Thus Respondent con-
tends that :
"... it could never have been the intention of the authors of the
Mandate to vest the Court with jurisdiction relative to matters of
a purely political nature ... undcr Article 2, paragraph 2, of the
Mandate. .." (V,p. 147).
It would seem clear that it could not very well have been the reasonable
intention of anybody to vest the Court with jurisdiction over matters of
a purely politicaI character. ARGUMENT OF MR. GKOSS 33
This honourable Court, however, has held that the questions at bar
and the interest of the Applicants in the obligations of the Mandate in-
volve questions of a legal character and are, therefore, adjudicable.
And now, reverting for a moment to the illustration to which 1 have
referred of the problems arising of frustration or otherwise in connection
with the educational policies and economic policies of apartheid under-
lying limitations placed upon levels of accornplishment, regardless of
individual merit or capacity, 1referred to the fact that inhabitants of the
Territory classified as Natives do not qualify to become engineers because
of the inevitable frustration which such a qualification would import into
their lives: reverting to such an illustration, which we believe is charnc-
teristic of the policy, the premises underlying it and its method of im-
plementntion, would consideration by the Court of the facts and ex-
planations in terms of visual observation of phenomena and facts in the
Territory itself assist the Court in evaluating the Iegalconsequences to
be drawn from this particular aspect, or facet, of the matter, in Respon-
dent's terminology? 1s it a purely political question, is it a purel!? politi-
cal matter in terms of Respondent's formulation? 1sit open to inspection?
Is it within the Court's jurisdiction to consider? If not, the question
~~~ould be on what basis could the Court adjudicate tlie issues at bar.
There would be, it seerns to the Applicants under hypothesis, no issues,
indeed this is the way the formulation readç, no rnatters, except those
of a purely political character, which would underlie the decision with
regard to this question and, therefore, it is on that basis that the Re-
spondcnt argues there isno possibility that the authors of the Mandate
could have intended thcse obligations to be justiciable at all.
The question of sorting out political matters from legal matters with
respect to the proper ambit of thc Court's enquiry should it accept
Respondent's proposal, docs not, unfortunately, receive much clarifica-
tion by reference to the Respondent's written pleadings. In fact, the
comrnents made by Respondent in its written pleadings regarding its con-
cept of the distinction between politics and law, in this contest, rnther
add to the perplexities and do not carry the question any distance dong
the road to solution.
Other possible logical methods of çorting out the distinction which
Respondent may perceive in this respect, for such bearing asitmay have
on the analysis of the task, the judicial task, which the Court would con-
front in carrying out an inspection of the sort proposed, would be to con-
sider the respective tasks which, for example, would confront the Court
in an enquiry of this nature and what sort of tasks would confront an
internationaladministrative superviçory agency embarked upon the same
mission.
Such a method of analyçing the significance çought to be drawn by Re-
spondent between political and legal considerations, however, is not il-
lumiiiated by Responderit in its written pleadings. To the contrary the
pleadings merely compound the confusion.
In Respondent's discussion of the references made by Applicants to
reports and resolutions of the United Nations organs, in the course of
which discussion parenthetically Respondent incorrectly charactenzed
the purpose for which the resolutions had been cited by the Applicants,
Respondent stated :
". ..it rather appears as if Applicants now wish to use these reports
and resolutions as authority on the crucial question at issue, namely,34 SOUTH WEST AFRLCA
whether Kespondent's policies are indeed deliberatelp directed at
the purpose allegedby Applicants. This is a question involving coii-
tested facts and disputed inferences therefrom, on wliich resolutioris
of a political body, which has in the nature of things never attemp-
ted a judicial enquiry inta the matter, cannot be of any assistance
to the Court." (V, p. 113.)
The Applicants' citation of the United Xations resolutions in question,
of course, was not directed at al1to the purpose described by Respondent.
Hom-ever,Kespoiident's mis-staternent in tl-iisrespect is irrelevant in the
present context.
The point here lies in Respondent's contentions, or apparent conten-
tions. that judgments of a political body, \rrith respect to what Respon-
dent has described as the crucial question at issue, cannot be of any as-
sistance to the Court on the grourid that such a political body has had
"in thenature of thirigs never attempted a judiciaI enqiiiry into the mat-
ter". It is of course,by definition, truc that a political bodydoes not in
the nature of things conduct judicial enquiry. Rut jtwould be new doc-
trine indeed to say that political bodies do not, or cannot, take into ac-
count and reach judgments upon the basis of questions involving matters
of a legal nature.
On the other liand, courts frequently do and must rcnch judgrneiits
upon issues which include inatters of a political nature.
The attempt to distinguisli, without definition, betwcen matters of
a political and lcgal naturewhich underlies Respondent's first alternative
coiitention, imports a confusion, or at least perplexity, into an analysis
of the task whicli u-ould confront the Court inan inspection on the basis
of the reasoning advanced by Respondent in support of its first alterna-
tive contention. The Court's view with respect to such reasoning ïvould
be, therefore, relevant to the nature ofthe task which the Court might
envisage it would confront in carrying out an inspection in loco.
Another illustration may be cited in respect of the same question from
a broader standpoint. The -4pplicants have set out in tfieir Mernorials at
1, page 150 a series of laws, rcgulations and practices hearing upon the
factor of freedom of movemcnt of persons classified as "non-lnite7'in
the Police Zone, the economically developed 50 per cent. or more of the
Territory. The catalogue of such restrictions is introduced by the Appli-
cants for the purpose set forth cxplicitly in the Mernoriab, as follows:
"In their ciirnulative effect, the rnuitiple restraints upon the move-
ment of 'Natives' andthe vulnerability of the 'Natives' to arbitrary
arrest press upon the individual 'Xative' with an almost suffocating
weight. To appreciate the burden, it may be helpful to try to en-
visage the situation from the angle of vision of any individual
'Xative'." (1, y. 150.)
It may be relevaiit to mention 31 this point, Mr. I'rcsident, tIiat it is
indeed difficult to understand the true nature of the preniises and effects
of the policy of apartheid in the daily lives of the inhabitants, escept on
the basis of envisaging the situation fro~ntlie angle of the individual.
There follows on the same page of the Xemorialç an enumeration of
the restraints in question to which the Court's attention is respectfully
directed.
In terms of Respondent's first alternativecontention, or the reasoning ARGUMENT OF MR. GROSS 35
underlying the formulation, including the allegation that these are mat-
ters of a purely poiitical nature and not therefore legal, would the Court's
evaluation on the basis of an inspection trip, on the spot or elsewhere,
involve matters of a purely political nature, or of a legal nature, or of a
combiiiatio? of the two, inrespect of the observation and inferences of
la~vto be drawn from the series of restrictions whicfi are undisputed and
set forth in the record as facts?
It may be pertinent at this point to advert to a feature of the present
discussion which has implications both serious and ironic. For many
years Respondent has engaged in a dispute with the Applicants and
numerous other States throughout the world, similarly situated, cen-
tering on the question of the relevance of, and necessity for, international
supervision over the mandated territory. Respondent's failure and refusa1
to admit, or to submit to, obligations of international accountability, is
a major reason for recourse on the part of the Applicants to judicial
protection in terms of Article 7 of the Mandate. Although disclaiming a
legal obligation to submit to international supervision, Respondent none-
theless concedes that such international supervision over its administra-
tion of the sacred trust was intended by the authors of the mandates
system to be an essential and integral element of the system itself.
Itcites this in support of its second alternative contention in another
context, to wit, that ifinternational supervision has lapsed, as Kespon-
dent insists, the Mandate as a whole must be deemed to have lapsed for
that very reason.
The importance of continuing supervision, including the consultations
between a supervisory agency and the Mnndatory on a continuing basis,
is conceded in principle by Respondent in contexts which will be referred
to in the course of rebuttal, when that is resumed on the legal issues-
such importance, the importance of such inspection, or relationship, or
consultation, or supervision, is conceded by Respondent. In addition,
Respondent asserts tliat,in the light of the nature and importance of
such continuing international supervision tothe scherne of the mandates,
the authors of the system could not have intended to engage the judicial
process in respect of the mandatory's obligations under the sacred trust.
They are non-justiciable-Respondent's first alternative contention. A
fuller examination of these theories and bases upon which Respondent
rests its conclusions will bexamined in the course of resumed discussion
of legal issues.
In the light of the history of the dispute regarding the necessity and
obligation of international supervision over the Mandate, it seerns need-
lesç to Say that questions raised by the Applicants concerning the suit-
ability, feasibility and relevance of Respondent's proposa1 under dis-
cussion, for an inspection, obviously are not in any way intended to re-
flect a modification or weakening of the Applicants' hiçtoric position,
sti1l maintained, on the matter of the vital importance of international
supervision over the Mandate. On the contrary, the Applicants perceive
that Respondent's proposa1 for inspection byits very nature confirms the
Applicants' long-standing conviction that unilateral and unsupervised
administration of the 'Territory is not compatible with the objectives of
the Mandate itself, or that questions involved in disputes concerning
the administration of the Mandate cannot be resolved on the basis of
unilateral and unsupervised analysis of the consequences thereof.
The Respondent's proposal, as well as the terms in which Respondent36 SOUTH WEST AFRICA
has presented it, not only supports the vaIidity of the Applicants' sub-
missions xvith regard to the essentiality of international administrative
supervision on a continuing basis; it also underlines the full weight and
significance properly to be attached to the holding of this Iionourable
Court in its 1962 Judgment, in which the Court referred to the 1950 Ad-
visory Opinion and concluded in the following words:
"The hdings of the Court on the obligation of the Union Govern-
ment to submit to international supervision are thus crystal clear.
Indeed, to exclude the obligations connected with the Mandate
would be to exclude the very essence of tlie Mandate." (I.C.J. Re-
Ports1962, p. 334.) .
As the Applicants have pointed out at an earlier stage ofthese pro-
ceedings, acceptance of Reçpondent's contention that the provisions of
the Mandate relatiiig to international administrative supervision lapsed
upon dissolution of the League, such a contention, if accepted by the
Court, would confront the Court with the necessity-unforeseen and un-
intended by the alitliors of thmandates system-to serireas the first and
only means of international supervision or protection over the Mandate,
rather than as the final bulwark to safeguard against breaches and abuse
of the Mandate.
Ifdisputes should arise in the future concerning the administration or
interpretatio~i of tlic Mandate, in the iight of constantly changing cir-
cumstances, in the light of constantly shifting officials concerned with
the pursuit of the objectives of the sacred trust-and it seems inevitable
that such disputes could only be expected ifthe processesof international
administrative supervision were not in force and faithfully complied with,
in termç of their intended purposes-the Court frequently might be con-
fronted then with the recurrent task of judiciai protection of theMandate.
If resolution of such disputes, which it is to be hoped will not arise, were
not adjudicable on the basis of factual issues and legal contentions set
forth in the written pleadings and oral arguments, but necessitated the
exercise of the Court's function elsewhere than at the seat of the Court,
it wouId follow that the Court's judicial function would be converted into
that virtually of a continuing administrative supervision over the Man-
date, a function indistinguishable in decisive aspects from that envisaged
in the mandates sptem to be performed by the administrative organ,
as what this Court has called the "normal security".
And the Court furthermore, as I have said, would under such circum-
stances confront a continuing necessity to mnintain on-the-spot contact
with Respondent's officials who, in the natural course of events, wouId
be replaced from time to tirne, and yet whose motives and states of mind,
in Respondent's theory, would be relevant to a judgment upon the ob-
ligations and disputes concerning thern.
Full analysis of the reasoning which underlies Respondent's contention
concerning the nature and scope of its obligations under Article 2 of the
Mandate wi11 have to await resumption of argument upon legal issues.
But certain aspects which do fa11to be considered in the present context
of the proposa1 under discussion will and must be referred to.
During the course of Respondent's presentation of its proposa1 on 30
March, after referring to its first contention regarding the non-adjudicâ-
bility of the alleged violationsof Article 2 of the Mandate, Respondent
stated as follows: ARGUMENT OF MR. GROSS 37
"But, kir. President, our alternative is thaifthe Court finds there
is a basis upon which it can adjudicate, that basis is, in Our submis-
sion, confined to testing whether there has been a legal use, a proper
use, of the discretionary powers conferred upon the South African
Government in that regard, or whether there has been an abuse of
power. We submit that in the practical considerations which apply
to this case, the only possible basis upon which there could be an
allegation of an abuse of power would be of thenature which appears
to be suggested in the Applicants' pleadings, namely that of bad
faith on the Respondent's part-bad faith in the sense that the
Respondent has been granted powers with a trust purpose, with a
purpose of prornoting well-being and progress of the inhabitants, and
that that power is now being abuçed and applied tvith a different
purpose, namely the purpose of oppressing certain of theinhabitants
of the Territory for the benefit of other inhabitants.
That is the nature of the charge as we understand it, as itwas
brought against us in the Mernorials of the Applicants; that is the
way in which we have analysed it .. ."(VIII, p.275.)
And 1 urould cal1the Court's attention to these words because, if 1may
insert parenthetically, up to this point this has been couched in the
customary manner applied by the Respondent, of attributing positions
to the Applicants becoming toits formulation of its position,and ignoring
for the moment its attribution of its position to the Applicants. Respon-
dent continues:
". ..that is what we suggest as a matter of law to be the only pos-
sible.basis upon which there could be adjudication on the question
whether the discretionary power, the discretionary function, the
discretionary obligation of the mandatory power has in this respect
been violated" (ibid.).
Ignoring, as 1 have said, the misrepresentation of views to the Appli-
cants, and the misstatement of the Applicants' legal theories, Respon-
dent's formulation of what would, as a matter of law, be the only pos-
sible basis upon which there could be adjudication ofthe question, would,
necessarily, constitute the jura1 framework within which the proposed
inspection in locou70uld have to be conducted. The true significance,
therefore, of the phrases used by Respondent, and in particular the
phrase "bad faith", niust be looked at carefuIly. This measures the judical
ambit of the Court's function with respect to this case, and, by necessary
inference, measures the nature, extent and ail other factors relevant to
the inspection and procedures which would be followed in connection
therewith.
Respondent employs the term "good or bad faith" in different senses
and contexts throughout the writ ten pleadings and oral arguments, and
this haç, as1 will show in amoment, produced confusion throughout the
course of this litigation, which confusion isreflected, unfortunately, in
the written pleadings of both Yarties, and it is diflîculto tell in which
set of pleadings the confusion is more compounded bj7the variant foms
of expression and meaning which are used by Respondent in respect of
the good or bad faith concept. That is a statement which obviously calls
for and dernands explanation and justification, and 1 should likenow to
proceed to demonstrate the basis upon which these statements have just
been made by the Applicants.38 SOUTH WEST AFRICA
Certain formulations of the concept of good or bad faith, in Respon-
dent's terrninology and usage, appear to have no intelligible meanirig at
al!.At least three variations of formulation inthis respect are to be found
in Kespondent's written pleadings and the oral arguments. Thus, iii
several instances, the formulation appears in the following form-in cach
case, Respondent's own language-"The question before the Court can
therefore in essence only be one of intentions, or purpose, or good faitli".
This is from the Counter-Mernorial, II,page 391.
The same formulation is repeated in the same volume at pages 392 and
477, inter aalia.
'I'hisformulation appears to equate or attribute synonymous sigiiif-
icance to the conceptions of intention, purpose and good faith. However,
this caniiot be the intended signification in reason, one must assume,
inasmuch as intention or purpose, on the one hand, is clearly a state of
mind, a fact, whereas good faith, on the other hand, is a legal character
or quality, attributable toastate of mind or intention in agiven context.
That seems clear. In the form of the expression used which Ihave just
quoted there is, as 1Say, an apparent equation of the words, "intention",
"purpose" and "good faith".
Since it is not the purposeof the Applicants toengage in a speculative
word game, this aspect of the anaIysis, indeed, should not be thought to
be a substitute for analysis rather than a gcnuine attempt to clarify the
meaning intended by Respondent in presenting the major thesis upon
which its legal case rests.
Another formulation, a variant presumably of the one I have just
quoted, rnay be found in scveral contexts in the written pleadings as
follows "good or bad faith, in the sense of an nuthorized or unauthorized
purpose"-Counter-Memorial, II,page 392.
Such a forniulation likewise is difficult to cornprehend and on its face
seems meaningless. The concept of bad faith on the,one hand and of
authorized purpose on the other relate to two entirely different things-
bad faith is a quality of mind, an attribute of conduct-authorized
purpose relates, if these words mean anything in this context, to the
objective of the Mandate itself to the purpose sought to be achieved by
conduct. Therefore, this formulation would seem to be unintelligible as
well as the first. Yet another formulation, a third variant, isto be found
in various portions of the written pleadings to the following effect:
" 'bad faith' in the sense of pursuing an unauthorized purpose" ; this may
be found, for example, in the Rejoinder, V, page 106,
In one formulation, bad faith seems to be equated to intention or
purpose. In another formulatio ba,d faith is used in a sense of an
authorized or unauthorized purpose and in a third formulation it is used
in a sense of pursuing an unauthorized purpose.
Now assessment of the judicial task which would confront the Court
in conducting a11inspection in locoor indeed, of course, in passing upon
thc validity of the Respondent's legal contention, necessitates a clear
unambiguous understanding, both of the judicial objcctive to which
such an inspection would be directed and the judicial, the juridical
elements which would measure and determine its scope. Appraisal of
Respondent's forrnuIation of good or bad faith in the exercise of duties,
the apparent judicial target aimed at by Kespondent's proposal, at once
raises the question of the meaning properly attributable in this third ARCUhlENT OF MR. GROSS 39
formulation, which seems at least on its face to be intelligible, to the
words "pursuing" and the phrase "unauthorized purpose".
In this formulation, as the Court will recall, Respondent speaks of
bad faith in the sense of purçuing an unauthorized purpose. Pursuit of
an objective or purpose could only mean, in the normal usage of the
word, the methods, the processes, the meaçures or the forms of conduct
by which a stated definable, recognizable purpose is pursued. Such
methods, measures and so forth only could be evaluated and appraised
in the Lightof the defined purpose at which they are directed, the objec-
tive which they apparently serve. Thc legal significance attributable to
conduct directed towards a stated objective must depend essentially
upon a legal evaluation of the objective itself. The evaluation of the
objective in turn presupposes the attribution of a rneaning, nature and
content to the objective, which makes possible judicial appreciation,
appraisal and application of legal principles to the conduct in question.
The objective caiinot be evaluated in terms of motive, or state of mind,
or purpose of the officials in charge of carrying out the taskwhich point
to the objective or Iead to its accomplishment.
On the assumption that the state of rnind, subjective motivation or
purpoçe of the individuals composing Respondent's Government isa
relevant fact at all, an assumption of a validity which the Applicants
deny, it u~ould he inipossible for the Courtto arrive at any conclusion
concerning the lcgal quality or charücter of such a state of mind or of
motive in any respect in connection therewith, except upon an objective
evaluation on the basis of definitely established and existing criteria of
the nature and scope of the objective, which Respondent's officials in its
formulation had in mind or assert they had in mind, or think they have
in mind in the pursuit ofthe objectives, whether those officials be legis-
lative, administrative or judicial or any other.
When we turn to Respondent's contention with respect to the Court's
proper function of evaluation of the authorized piirpose or the authorized
objective in terms of the formulation in question, we find the following
theory expounded by Respondent-1 am referring now to its conception
of the Court's relationship to the authorized purpose or authorized objec-
tive which is the object of pursuit bjr the conduct in question. The
Respondent commentç as iollows:
"The 'full power of administration and legislation' granted in
terms of the Article [thatiç to say Articlez of the Mandate] covers
the whole field of government, the only limitation (apart from
Articles 3 to5) being tlie element of purpose. Aridboth the power
and the prirpose are defined in such a manner as to preclude any
possibility of rnisunderçtanding ... The question before the Court
can therefore in essence onIy be one of intentions. or purpose, or
good faith."
This isfrom the Counter-Mernorial, II,at page 391. It will be notcd
that in the passage just quoted, clearly intended by Respondent as a key
one and preçurnably carefuliy formulated for that reaçon, the word
"purpose" appcars to be used in three entirely different senses, the third
of which seems to be nonsense.
The first use, that is to say, the element of purpoçe in the quoted
passage, appears clearly ta refer to the purpose of the Mandatory. The
second use of the word "purposc", in the context of "the power and the40 SOUTH WEST AFRICA
purpose", appears clearly to refer to the Jlandate's purpose. The third
use, which mistakenly equates purpose with good fsith, has been rcferred
to but is repeated again in this connection only to show that it makes
clear that the word "purpose", as uçed here the first time in this passage,
does indeed refer to the purpose of the Mandatory, the state of mind of
the Alandatory or its officiaiin pursuing the authorized objective.
Respondent's formulations, and its theory underlying them therefore
seem to osciilate between Kespondent's urpose and the Mandate's
purpose, iii the rnanner of a metronome. Vi~Ken one lmks at the purpose
authorized by Article 2 of the Mandate, one is told to look inçtead at
the purpose of the Respondent.Evaluation of the objective of the sacred
trust, according to the apparent meaning of Respondent's formulations
on the matter, does not properly involve a judicial appreciation or
judgment upon undisputed methods and procedures by which Kespon-
dent pursues its objective, but has some reference to the state of mind,
the intent or the purpose which animates Respondent's oficials, or at
least conclusions with respect to the matter have some connection with
Respondent's state of mind or purpose, otherwise why al1the references
to that-where is irelevant?
This brings us full cycle to the third of Respondent'ç "simple proposi-
tions" as it called them, on which the second alternative contention is
founded. This is paragraph (c) in the list of paragraphs which has been
the subject of previous discussion and which is found at the Rejoinder, V,
page 157, and which reads as follows:
"(c) The only limitation placed by Article 2, paragraph 2, on the
discretionary power vested in Kespondent was that such power
should be exercised for the purpose of prornoting to the utmost the
well-being and progress of the inhabitants of the Territory."
It is of particular importance to understand what significance is
attributed by Respondent to the use of the word "purpose" in this
context. equally a key passage in its analysis.
The Applicants have, it is true, referred to the phrase "for the purpose
of" in the paragraph 1have just quoted in "simple proposition" (c), as
a gratuitous gloss by Respondent upon Article 2, which contains no such
provision or qualification. The Applicants go further and characterize
the insertion of such a qualification as a unilateral amendment of the
article, a modification of one of its most important terms. The Appli-
cants contend that the definition and determination of the nature, scope
and content of the "authorized purpose", the authorized objective
envisaged by Article 22 of the Covenant and Article 2 of the Mandate,
depend upoii the application of objective legal criteria. Acceptance of
Respondent's theory would confront the Court with the necessity, in a
proposed inspection or otherwise, of exercising a judiciül task of evaluat-
ing evidence the relevance of which itself would presiimably have to be
determined on the basis of some relevance still dimly perceived by the
Applicants of Respondent's purpose, Respondent's intention, Respon-
dent's state of mind. The Applicants do not perceive how the Court
could exercise its functions elsewhere than at the sent of the Court, or at
the seat of the Court, on the basis of Respondent's legal theory of the case
first stated in the formulations which have been read to the Court in
Respondent's own languagc.
The Applicants contend that the "authorized purpose" in terms of ARGUMENT OF MR. GROSS 4I
these articles and their proper interpretation and application is to be
measured by the legal norrn, which the Applicants contend exists and
which the Applicants submit governs Respondent's conduct or the
methods by which it pursues the authorized objective.
Respondent, in another context, appears to suggest that the enquiry
would be designed to establish whether or not Respondent's administra-
tion of the Territory so far exceeded any reasonable concept of "full
power of administration and legislation" that it would be necessary to
conclude that Respondent's officials, from time to time, were motivated
by persona1 considerations or others of a character so outrageous or
othenvise that no reasonablc person could differ as to their mala fides,
and which indeed, would be of such a character as to disqualify them
from office in thefirst place and, no doubt, cal1for their impeachment-
I have not quoted Kespondent's language, 1have tried to distil what the
Applicants perceive to be its meaning.
If thisis acorrect analysis of Respondent's position, the Court's task
would be continuing and perpetual, as new officials succeeded to office
or became subject to irnproper influences or succumbed to irnproper
motives, but more particularly in the light of changjng circumstances in
which their motivation, or to which their intent or state of mind, would
be applied.
The legal scope and content of Respondent's obligations under the
sacred trust of both the Covenant and the Mandate, under Kespondent's
theory, would be measurable essentially by its own purposes, rather
than by objectively determinable purposes of a measurable nature, as
contended by the Applicants. The objectives of the Mandate would
become, in effect, whatever Respondent, in the exercise of its full power
of discretion, defines them to be, provided only that they are defined
and applied in a manner which does not arouse this sense of outrage of
the world. At least , this seems to account for the apparent inconsistency
between the statement by Respondent's Prime Minister, for example,
which has been quoted on aprevious occasion in these procecdings, and
the position taken by Respondent as litigant before the Court. In the
ivords of Reçpondent's Prime hlinister, which 1 have quoted, the only
test of Respondent's policy and action is whether, upon asking itself the
appropriate question, the aIismrercomes back that itis ,"honestly and
sincerely doing what a Christian guardian can be expected to do for the
peoples entmsted to his care".
If honesty of purpose is found to be present in such a self-examination,
the matter ends there, according to this viewpoint. The conduct is to be
evaluated in the light of the motive, not the otherway round. The grant
of power is to do what the guardian thinks right, and the exercise of
power is to be adjudged on the basis of the guardian's perceptions and
attitudes. The trustee, on the basis of the staternent publicly proclaimed
by Respondent's Prime hlinister, audits his own books. examines his
own conduct, and evaluates his own accomplishments.
The position taken by Respondent as litigant before the Court does
not appear to be entirely consistent, to say the least, with the position
Respondent announces publicly through its highest official. It is difficult
to conclude from an exarnination of Respondent's formulation of the
matter in its written pleadings, however, lvhere the distinction begins
and ends in respect of n pronouncement, such as I have quoted, and the
legal theory and its reasoning, as advanced by Respondent in its written42 SOUTH WEST AFRICA
pleadings. The oscillation betureen the use of purpose in different
senses-one pertaining to the Mandatory, the other pertaining to the
Mandate-is merely indicative of the confusion. The criteria of inter-
national standards which Respondent now appears to concede or contend
to govern its conduct presumably would have to be stated in terms such
as, what would a reasonably honest or genuinely sincere mandatory do
in al1 the circumstances? Weighed against such standards, the Court
would then condude whether Respondent's officiaisor their successors
from time to time in office could have"honestly and genuinely" come to
the conclusions to which they did come (1 quote those words from
Respondent's pleadings) or, whether to the contrary, they are, again in
Kespondent's words, "manifestly wrong" or "obviously unfair". For
example, in the verbatim record, VIII, page 271, these phrases are used in
connection with the judicial task wliich would confront the Court in
respect of the inspection proposal. The judicial task-without becoming
too facetious-sf evaluation would become even more complex if the
successors to those now in office should ask themselves different ques-
tions, or give thernselvesambiguous replies.
Further consideration of these matters will await resumption of argu-
ment dealing with legal issues and fact questions germane tliereto,
because we are here at the heart of an evaluation of Respondent's legril
theorp in support of its priiicipal contention. which we assume the
second alternative contention to be, without attempting to assign pri-
orities.
With the Court's permission, Mr. President, 1 turn now to the legal
basis of alIeged violations of the Ahtdate, in terms of the Applicants'
submissions, and with ernphasis thereon. As has been stated, the Appli-
cants' submissions, and the legaI contcntiolis upon which they are based,
are full and fairly adjudicable, in the Applicants' view, upon the bnsis
of the written pleadings and Oral Proccedings, in accordance with tfie
normal, traditional, practice of this honourable Court. The record is
more than a usually full one. The Parties have been accorded adequate
opportunity, during the course of more than four years since the Applica-
tions were fiIedin these proceedings, to submit and prepare their respec-
tive cases. In the absence of a clear showing that the procedures sug-
gested by Respondent couId reasonably be expected to aid the Court in
deciding whether the Applicants' submissions are well founded, the
AppIicants respectfull!. urge that the Court follow its traditional practice
of exercising its functions at the seat of the Court with a view to espe-
ditious consideration and determination ofthe litigation.
Consideration of the central theory upon which the Applicants rest
their submissions may be cited in support of their view that the Court
would esercise a sound discretion, consistent with the requireinents of
justice and proper judicial administration of these proceedings, ifit were
to reject Respondent's proposal or, in anÿ evcnt at least, defer decision
and action thereon pending completion of, and in the light of, the
further proceedings in these cases,although such deferment would not,
in the respectful view of the Applicants, be preferable to a decision
thereon earlier than the completinn of the proceedings. The Applicants'
submissions relevant to the proposa1 under discussion rest upon the
theorp, as the Applicantç have sought to make clear, that an interna-
tional legal norm esists which is objectively determinable and generally
applicable as a minimum legal norm, and that it is accepted by and ARGUMENT OF MR. GROSS 43
regulates the officia1policieç and actions of governments throughout the
world. Such a norm, referred to in the Memorials, and there summarized
at 1, pages 104 and foliowing, is elaborated in detail in the Reply, at
IV,pages 491 and foilowing. Such an eIaboration in the Reply introduces
no new element not previously present in the Applicants' original
"cause of action", in Respondent's phrase, nor has the Applicants' sub-
mission with respect to the nature or content of such a norm been
modified or arnended in any respect, notwithçtanding strenuous labour
on the part of the Respondent to convey a contrary impression to the
Court.
Respondent, on the other hand, contends that disputes concerning the
interpretation and application of the articles in question are not jus-
ticiable-alternative contention number one. If that contention should
be çustained by the Court, Reçpondent concedes and contends, no
further question concerning the interpretation or application of the
relevant articles would arise, and Respondent's proposal, which isin any
event premature, would be moot.
On the basis of Respondent's second alternative contention, the
Court's functions with respect to the matter under discussion would be
limited to or confined within the ambits of an enquiry in which sub-
jective considerations-intent, purpoçe, motives or state of mind-
would play some role.
The Applicants further submit that the international legal norm, as
formulated and described in their pleadings, is applicable to the Terri-
tory of South West Africa. By its acceptance of Article 22 of the Cove-
nant, and in particular Article z of the Mandate, Respondcnt undertook
to aclminister the Territory and undertook to iiiterpret and apply its
provisions on a basis consistent with international legnl norms as they
cvolved and became applicable to changing conditions and circum-
stances in the Territory. The Applicants will have inore to Say on this
subject in the course of examination of the legal issues, when that phase
of the proceedings is resumed, in the light of Respondent's comments
during its Oral Proceedings.
The Applicants further contend that the policy and practice of apart-
heid, as described in their pleadings, in which now al1averments of fact
in Respondent's pleadings are incorporated by reference, violate the
relevant and applicable international legal norm, and accordingly that
such poiicy and practices are repugnant to the Covenant and the Mandate
and should be enjoined by this honourable Court. There is no relevant
factual issue in dispute between the Parties concerning the measures and
the practices by. which the Respondent gives effect to the admitted
policy of apartheid. i\Ioreover, the ratiofinleor prernises upon which such
policy and practices are based are set out in the record in the form of
undisputed official statements, laïvs and regulations of the Respondent,
and the officia1statements of Respondent's highest officials which are
accepted by the Applicants in terms and in contexts set forth in Respon-
dent's pleadings themselves. There is no dispute of which the Applicants
are aware with respect to the statements made by Respondent's highest
officials; the question is: what legal conclusions are to be drawn frorn
them in the light of the whole contest set forth inthe written pleadings
on issues of fact?
The Applicants in their pleadings have set out measures and practices
which may fairly be described as illustrative in order that tlie Court may44 SOUTH WEST AFRICA
have the benefit of adjudging the policy of apartheid as a whole rather
than merely judging it in parts. Moreover, the Applicarits accept as
correct, and iiicorporate by reference into their own pleadings, as 1have
said, such additional factual averments as Kespondent considers relevant
to a fuller understanding of the policy and practice of apartheid as set
out in their written pleadings and documents thereto attached.
The Applicants have stated, and reaffirm, that the validity or other-
wise of their subrnissionsmay and should be adjudged upon the basis of
the facts as aforesaid. Upon the Applicants' theory of the case no further
testimony, evidence or opinion, expert or otherwise, is required for an
adjudication of their submissions, nor would it be appropriate or neces-
sary for the Court to exercise its functions elsewhere than at the seat of
the Court for the purpose of adjudging whether the Applicants' sub-
missions are or arc not well founded. In maintaining and affirming that
the facts of record and the discussion of legal issues relevant theretmay
fully and adequately present the case upon which judgment may and
should be rendered, the Applicants do not intend in any manner to
imply that Respondent's proposa1 for an inspection ~vouldbe necessary
or desirable on Respondent's theory of the case, as now understood by
the Applicants. Such a theory, as we now understand it, particularly
in the light of Respondent's statements made during Oral Proceedings,
is based upon the proposition that, although no international legal norm
exists relevant to the interpretation and application of Article z of the
Mandate, there nevertheless do exist international standards applicable,
and that Respondent's obligations under the sacred trust may bc judged
in accordance with them. The Applicants respectfully subrnit that, in
such event and on that basis, the undisputed facts of record likewise
would establish a violation of such international standards, as described
by Respondent, and that the Court should adjudge the Ayylicaiits'
subrnissions in accordance therelvith in the event that the Court should
decide against the Applicantç' contentions that an international legal
norm does exist, and is applicable, in the terms and in the manner
contended for by the AppIicants.
Mr. President and Rlembers of the honourable Court, before turning
to a discussion of the remaining factors which 1 was about to discuss
in connection with the Respondent's proposal. 1 should like, witli the
President's permission, to endeavour an answer to the question of the
learned judge, Sir Gerald Fitzrnaurice, which, ifin the event it proves
to be not responsive in the terrns in which it is intended, it would be, 1
hope, attributable to the fact that for reasons of expedition and con-
venience of consideration the Applicants venture to undertake a re-
sponse on the basis of the consideration which they have given to the
matter during the interval since the question was asked and addressed
to the Applicants because, Nr. President, it appears to the Applicants
in the light of their theory and understanding of the case upon which
they rest, and the impIications which they infer from the question of
the learned judge, that the answer the Applicants perceive could be
rather simply formulated in terms of several propositions.
In the respectful submission of tlie Applicants in response to the first
question, a policy which differentiates among individuals as such, or as
members of identifiablegroups, would be pcrmissible and indeed desirable
in appropriate circumstances. U1e have in that connection cited the
minorities treaties,among other examples, in which it is jiist, prudent, and wholly desirable for governments to take account of differerices
between individuals and between individuals as rnembers of groups,
thereby leading to the conclusion that differences are permissible with
respect to the treatment of groups as such. There are instances known
to all of us in al1of Our countries of such examples of differentiation of
groups, the protection of minors, the protection of other segments of the
population, arranged in accordance with their choice, normally-some-
tirnes by reason of other considerations, in ivhich their choice, where
possible, plays a very important and, jndeed decisive role-their choice
as individuals.
The probkem therefore, in the Applicants' respectful submission, is not
summarized in terms of, or is it answerable in terms of, the expression
"group differentiation" except in a sense which is mutually undcrstood
between the questioner and the responder. There is, in this case, no sub-
mission on the part of the Applicants which condemns or attacks, or
criticizes, differentiation between individuals as such, or as memberç of
groups, in, for example, the aspects which I have rnentioned aç illustra-
tions.
Respondent has paraphrasecl, ostensibly for the convenience of itself
or for the convenience of the Court, the characterization of the legal
norm for which the Applicants contend as anorm of non-differentiation,
in Respondent's phrase.
The Applicants' formulation does not rest upon the use of that word
at all. The Applicants' formulation relates tothe policy of discrimination
and separation and the distinction is more than a verbal one between
those words and the gerieral concept of differentiation. Members of
churches, organizations of various kinds-1 have mentioned minors,
those of non-age and so forth, as groups, are differentiated among and
within themselves frequently, in terms of the protection which the. are
offered as a matter of good government and decent society. This is just
part of the human condition and human experience.
A policy of differentiation, hoacver, which allots rights, burdens,
status, privileges, and duties on the basis of membership in a group by
reason of race, colour or other circumstance of a similar nature, whether
called ethnic, tribal or otherwise, on such a basis which does not pay
regard to the individrial qualitg, capacity, merit or potential is, in the
Applicants' view, an impermissible premise and an impermissible policy
at al1times, under al1circumstances, and in al1places.
The policy is defined in the written pleadings, and the practices
thereunder are undispiited in the written pleadings and constitute the
factual basis upon which the Applicants contend the relevant legal norm
should be applied and upon which they ground tbeir submission.
There is therefore, in the Applicants' view, a difficulty presented in
putting into juxtaposition n policy which refiects differentiation as such
and the question of promotion of welfare. It iç the Applicants' case,
rightly or wrongly, that the policy and practices cornplained of, as a
matter of the international lepl norm and the universally accepted
standards upon which that legal norm is based and ivhich it reflects,
that such a policy cannot inherently promote the welfare of individual
inhabitants of the Territory. Any contention to the contrary isan attack
upon the norm itselfOf course it is pemissible for the Respondent to
question the validity, existence and content of the legal norm; that is a
principle issue joined in these proceedings. But any conception that46 SOUTH WEST AFRlCA
would lead to a doubt or an inference or ail assurnption that promotion
of the welfare and progress of an individual is conipatible ïvith the allot-
ment of the rights, burdenç, duties and privileges, upon the basis of his
rnembership in a group rather than upon his quality, merits and potential
as an individual person is irnpermissible, inconsistent and such a policy
is repugnaiit to the legal norm which ive assert covers the situation.
The condition of the individuals health, his happiness, ostensible
happiness, or other factors which are frequently referred to, do not, in
these circumstances. have arelevance to the validity and content of the
norm if it esists, as the Applicants respectfully submit that it does,
In view of the fact that the practice and policy complained of is
inherently incapable of promoting the wclfare and progress of the inhab-
itantç, that it inherently and per se is repugiiant to and violates the
international legal norm; this makes it neccssary to conclude that the
phraseology "irrespective of any other steps taken by the Mandatory
for promoting the welfare of the inhabitants of the Territory" does not,
in our respectful analysis, have any bearing.
It would seem to rest upon the assumption that considerations of the
promotion of the welfare of the inhabitants of the Territory must be and
can be evaluated in some manner other than against the admitted con-
duct as applied to the Iiorm contended for.
The consequences of Respondent's admittecl policy and practice con-
stitute and impose irrevocable status, rightç, privilegcs and so on, upon
an individual by reason of his allocation to a certain category rigidly
set forth.1 have referrcd tothe census categories in this connection. They
are based upon a combination of appearance and of assumed ethnic
origin in terms of "general acceptance". This is merely illustrative of the
rigid categorization and the inevitable and irrevocable consequences
which attend classification of individuals in this system.
On this basis, therefore, in view of the inlierent incornpatibility of the
practice and policy of apartheid, as defined in the written pleadings, as
they appear from undisputed facts of record, there would be no basis,
in response to the second question, addressed by the learned judge, for
an investigation of the factual situation whether by hearing evidence or
by local inspection. That ïvould be, again, inhcrently, a superfluous form
of inquiry in either form. It would be superfluous becnuse of the inherent,
assertedly inherent, repugnalice and incompatibility of the admitted and
undisputed facts of record regarding the policy and practice of apartheid
with the legal norm, for which the Applicants contend, and upon which
their submissions rest.
The point at issue inthe discussion which the Applicants have endeav-
oured to analyze for the Court, the legal theory (induding the rather
discursive comments 1 fear 1 made this morning in respect of the con-
fusion engendered by the various uses of the phrases "purpose" or "bad
faith", and so forth)-the objective of the consideration of the legal
tlieories in the case and the respective contentions of the Parties-
whether they are çtated in confused or clear terms is in this context
beside the point-was to attempt to dernonstrate, as 1 shall attempt to
continue to do in the resumption of the discussion in respect of the
proposal for inspection, that the factual situation wliich is to be inves-
tigated in the sense of the second question by the learned judge is that
contained in the body and within the four corners of the written plead-
ings-that is the factual situation, that is the stntcment of facts which ARGUMENT OF MR. GROSS 47
describes the policies and the practices; and that those policies and
practices as thus described, when applied to the legal nom which is
asserted to esist, compel the conclusion that such po-cies and practices
thus described are incompatible with the legal norm applicable to the
Mandate, and hence repugnant to the Mandate itself.
1 should like il 1 may to reserve,as 1 attempted to ai the outset, the
right to regard the completion of mÿ argument, to which 1 mil1 now
address myself with the Court's permission, as relevant to the response,
andas a part of the response, to the leariied judge's question, because it
seems to me that al1aspects of the considerations which the Applicants
respectfully place before the Court are indeed relevant to a complete
response to the learned judge's most important question.
Mr. President, turning ta the areas proposed to be examined and the
conditions of inspection implied or suggested by the Respondent, 1
sliould like first to say that in additionto the appreciation of African
reality, condition and circurnstancc, through personal obçerr7ation, which
Respondent avers to be necessary to adjudication of the issues herein,
Respondent's proposa1 lays special emphasis upon the necessity to
"compare comparable standards", inits own words (VIII,p. 625).
The Applicants have referred to certain implications of Respondent's
references to African reality wliich, it asserts, is unique and must be seen
to be appreciated, rather than merely heard about or read about. The
factor of "comparable standards", in the phrase of the Respondent,
introduces into the proposa1 an elernent which may be linked to the
consideration of African reality, although the nexus, if any, does not
clearly appear from Respondent's statcment in support of its proposal.
Questions raised in this co~itexcan be disposed of quite briefly,inthe
Applicants' respectful submission.
Respondent, in its written pleadings, refers to what jtdescribes as
"standards of achievement in comparable territories and States in
AfricaV-that is quoted from the Rejoinder, V, at page 116. The state-
ment is relevant to the point under discussion, which concerns the areas
proposed to be examined, in Respondent's terms, and the conditions of
inspection implied or suggested by Respondent.
The standards of achievement in comparable territories and States in
.4frica, to repeat Respondent's words, would seem, in the Applicants'
submission, to be irrelevant to any issue presented to the Court by the
Applicants' submissions, or the legal propositions on which they are
groiinded. As the Appiicants have sought to make clear in their written
pleadings and oral arguments, and now re-affinn, their case rests upon
the contention, to whicli 1have just referred, that the poIicy of apartheid
in itself, as described in tlie written pleadings,.is repugnant to Artic2e
of the Mandate on the basis of the minimum international legal norm and
standards which exist, ancl which govern the interpretaiion and appli-
cation of Article 22 of tlic Coveiiriiit and Artic2eof the Mandate. The
policy of apartheid is defined in the submissio~is and written pleadings,
and its character erncrges witli clarity on the basis of the undisputed
facts of record.
No standard of achievement any~vhere in the world would be high
enough or low enough, as the case may, be, to justify and extenuate
the policy ofapartheid. in the Applicants çiibmission. The international
legal norm and standards whicli esist are not subject to, or conditioned
by, or affected in.any manner by, anyquestion concerning standards of48 SOUTH WEST AFRlCA
achievement. A contention to the contrary does not and caniiot be
asserted in extenuation or explanation of the poiicy and practice of
apartheid. Rights, duties, burdens, obligations, cannot be allotted on the
basis of race, tribe or membership in a group, vith ho regard to indi-
vidual merit, capacity or quality.
With respect to the Territory and South Africa itself, we now turn to
a consideration of other aspects of Respondent's proposal, with a bearing
upon the choice of territory,and South Africa explicitly, in Respondent's
proposal.
With respect to the Territory and South Africa itself the Applicants
submit tha't, for reasons already set forth, an inspection th&; is not
necessary or justified, in either place, inasmuch as al1the relevant facts
upon whicli the Applicants rest their case are undisputed. The same
reasoning applies on the same basis to the Respondcnt's proposa1 that
the Court inspect areas other than the mandated Tcrritorv, or Soutli
Africa itself.
In ço far as conditions concerning African reality rnay be related to
the matter of comparable standards, an observation may be pertinent to
anqr such possible relationship in the contest of the proposa1 under
discussion-that is, relationship between comparability of standards,
so-called, on the one liand, and appreciation of African reality, so-called,
on the other. The observation which 1 shall venture to put before the
Court illuminates the judicial task mhich would confront thc Court if
the proposal were carried to limits suggested by strictly logical con-
siderations, and is in no way intended to suggcst or irnply a reductioad
absurdum of the propoçal itself.
Kespondent's averment that appreciation of the African reality is an
important aspect and element of itsproposal, underlying its proposal,
and that such appreciation presupposes persona1 observation, raises the
following question. How is it possible, and on what basis is itfeasible,
fully to appreciate African reality, African circumstances, as a unique
phenomenon, so unique, indeed, that it defies hearing about or reading
about but must be seen tobe appreciated? Kow is one to appreciate
such a quality sui generis, as itis clairned to be, without persona1 com-
parison of African reality with the reality.of other areas and continents
as we117
The question is far from captious, Mr. President, and isnot intended
to be querulous.
In its written pleadings, Respondent has referred repeatedly to
numerous States or areas ooltsideAfrica, in the context of legislation,
practices, situations and conditions there prevailing, which it asserts
have relevance to issues joined in these proceedings. The Applicants
contest the relevance of these facts as averred by Respondent, although
for the purpose of these proceedings the Applicants are prepared to
accept these facts as undisputed as set forth in the form of averments in
the Respondent's ~vritten pleadings.
According to the Applicants' calculation, at least 22 such non-African
States and territories have been cited by Respondent, with an apparent
bearing upon the issues in the case, with apparent relevance, in Respon-
dent's view, to such issues. Representative examples may be found in
the Counter-Mernorial and the Rejoinder copiously; for esample, the
Counter-Mernorial, n1 ,t pages 201-21I ,arnong others, pages2~9,263-265
and 266; the Rejoinder, VI, pages 192-1g9 p,ssim, etc. ARGUMENT OF MR. GROS5 49
Upon Respondent's theory, accordingly, certain situations in such
non-African States or territories are relevant elements or facets aithin
the ambit of what Respondent presumably regards as, in its own term,
"al1 the facts". Respondent nonetheless omits such States and territories
from its proposa1 without explanation for the omission.
Another aspect of Kespontlcnt's proposal, relevant in the context of
R discussion concerning the judicjal tasks which rvould confront the
Court in an attempt to inspect areas of any sort, anywhere, would be
illustrated by certain questionswhich arise hypothetically in connection
with the investigation or inspection of South West Africa, the rnandated
Territory. Respondent's proposal calb for an inspection. This word, itis
to be assumed, envisages the taking of testirnony and hearing of wit-
nesses in arcas proposed to be visited. This would follow naturally and
inevitably from Respondent's premise of the necessity of exarnining al1
facets of the situation, as the Respondent puts it, i?zloco. Undoubtedly
the vieu7sof perçons affected directly would be relevant, if not decisively
important, factors, facets,or elements of the factual situation which
ivoiild be in question.
Respondent's employment of the word "inspection", therefore, in
terms of its proposal, must be assumed to bear something other than its
literal significance. Except in a medical sense, or the like, "inspection"
is normally applicable to places and objects and Ihirags; +eo#Ee are con-
sulted or heard. Unless the views of people arc not factors or facets of
the situation, then, of course, the Applicants misconceive completely the
intent or purport of the proposal.
Considering the proposal for inspection of the Territory of South West
Africa in the light of this premise, the following questions,amongothers,
become pertinent in appraising the judicial task irnplicit in a fair rcading
of the proposal: How many members of the population would be heard?
How would they be selected for this purpose? What procedure would be
appropriate for ascertainment of their views? Would they be consulted
in the forrn of a plebiscite, or by any other means,to assure a fair appre-
ciation and evaluation of an important fact, to wit, their own ûssessment
of Respondent's policies and practices of apartheid?
Xurnerous petitions from time to time have been submitted to the
United Nations' agcncies by inhabitants of the Tcrritory.They illustrate
the rnanner in which the daily lives of the inhabitants are affected by
the systematic implemcntntion of the apartheid policy. Exarnples are
set out in the Memorials, 1,page 167 and following. The Applicants have
not relied opon the accuracy of statements in such petitions; the Appli-
cants have cited such petitions for the bearing they may have as con-
fimatory of the reasonably predictable corisequencesof the prnctices
and policies which are undisputed. And such petitions have been received
unfortunately in a context in which Respondent's CO-operation has not
been forthcoming in their transmission. Xor has it been possible to have
continuous, effective siipervision over the Mandate of the sort envisaged
in the mandate s,vstern. Rlr. Presiclent, some petitioners have been among
the nurnerous inhabitant s who have managed to Ieave the Territory for
the purpose of pursuing educational advantages not permitted to them
in the Territory under the admitted policies and practices of apartheid.
Would the views of such petitioners, or ather persons similarly situated,
be sought as relevant facets of the factual situation? Some of them
presumably are not permitted to return, or to returnonly under certain50 SOUTH WEST AFRlCA
conditions unacceptable to them. Would their views be excluded as
being irrelevant faccts of the situation, as not being part of the factç
with which the Court should be concemed?
In raising such questions, the Applicants, of course, do not ititend
thereby to make any suggestions or proposals of their own. Tliese
mattersare cited merely to demonstrate or to confirm the validity of the
Applicants' submissio~i, that itis not enough, and not of genuine assiç-
tance to the Court, merely for Respondent to make a sweeping assertioii
that "al1 facets" must be examined, al1 facts. Any judicial enquiry or
inspection couched in such terms, ex hypothesi, would be ii~tertninable
and unlimited and of course itcannot seriously be conteiided; that
is obvious. It might be said and presumably would be said that a rule
of reason could be appliecl and that time, place, substance could and
should be fised by the exercise of a sound judicial discretion. That no
doubt is what Respondent might Say or what the Applicants certainly
would Say if confronted with a statement of the sort 1 have just made
to the Court. However, this begs the question in terms of the subinission
by Respondent of its proposal. The esercise of a sound judicial discretion
in this respect is precisely what the Applicants are urging upon the Court
as the prime necessity. The seiection of criteria by which such discretion
would be required to be exercised is the very point at issue, and the
answer to the selection of relevant facts rests upon the criteria which
must be applied and are applicable in terms of the Iegal theory ndvanced
by the Applicants, and siich theory read in the light of their submissions
and contention often referred to in the course of these proceedings, and
in the witten pleadings, that the relevant facts upon which tliey rest
their case are the undisputed facts of record in these proceeclings.
The foregoing questions, therefore, are adduced, and tlie qriestions
raised, for the purpose of demonstrating that the term "al1 the facts, al1
facetç of the situation" begç the question and is not helpful,
It has been the Applicants' respectful endeavour to place before tlie
Court considerations of law, some çelected, we hope not too arbitrarily
or digressively, in anticipation of Iegal argument which will be resurned
in due course. The considerations which the Applicants have respect-
lully placed before the Court demonstrate, in the Applicants' vieiv, tliat
the proposal is inherently undefinable and indeed, unintelligible in the
terrns in which it is presented.
Before concluding, Mr. President, it will be necessary to refer to the
nest category of question for brief consideration, aiid that is tlie con-
ditions expressed or employed in the Respondent's proposal. This bears,
particularly, upon the proposa1 with regard to an inspection in the
Republic of South Africa itself. In its presentation of the proposal iirider
discussion, Kespondent stated as follows:
"In addition to such an inspection of South West Africa, tliis
part of our proposal eiicompasses, as a distinct sub-part tlrereof.
a limited visit to the Republic of South Africa itself-limited, that
is, in the sense of being confined to matters that are relevant in
respect of Soutli \!'est Africa. As the Court will readily appreciate,
there are reasons of principle and relevancy why tliis part of the
proposal cannot be so cornpletely unlirnited and unqualified as in
respect of South IVest Africa itself." (VIiI, py. 278-479.)
In this context tvehave rcference to unspecified liinits, principles of ARCUMEST OF MR. CROSS 51
retevancy, qualification,etc., i~hich this part of the proposa1 envisages,
for which are not included in other parts of the proposal, with respect to
other areas, certainly not inthese terms. In the same place, Respondent
states that-
"... as the pleadings show, there are matters within the RepubIic
which, within a lirnited sphere, are relevant to the adjudication in
respect of South West Africa" (ibid p.,279).
LVhat do the pleadings show >Ir. Yresident, in this rcspcct?
In the Counter-Memorial, II,at page 457, Iiespondent states that in
forming its "considered views", as it describcs them, in regard to-
"... firiding such methods of achieving the idenls of tlie Mandate
as might best be suited to circumstances and conditions in the
Territory ... Respondent was frequently influenced by experience
gained in South Africa itself in regard to comparable problems and
policies aimed ai their solution, and also by instructive indications
afforded by events, tendencies and policies iii other parts of Africa
and the world at large."
Fiirtlzerinthe sarne 17olurne,Kespondcnt stateç that it-
"... has been cautious about applying to tlie Territory any policies
operative in South Africa, even with adaptations to Localconditions,
without first having established their soiindness in practice in
South Africn itself" (II, p476).
More specifically, the following examples may be cited or derived
from Respondent's written pleadings wllich relate to facets or factors in
terrns of experience, events or conditions in South Africa itself, which
Rcspondent asserts have influenced it in the formulation of its policy for
the 'Territory and have some relation to it therefore in respect of the
incasures of implementation adoptcd in the Territory for the policy of
apartheid. Specific examples among many are as follows-in Kespon-
dent's own words, at II,page 476, of the Counter-Mernorial, Respondent
refers to-
"Tlie application to South Africa of the new methods and
policies introduced in Bantu education in Soiith Africa affords an
cs:imple in point . ."
"In point", that is, as a matter relevant to the Territory whose sound-
ness has been established by Respondent in South Africa.
Secondly, with respect to diamond mining legislation in South West
Africa, which is, of course, as the record shows, an important elernent in
the economy of the Territory. Respondent refers to the knowledge and
esperience gained in South .4frica, with respect to-
"regulation and control of the mining and marketing of diamonds
[which] present extremely complex probIems" (III, p.54).
Xest, in the same volume at pages 64-66, Respondent describes its
policy of so-called "job reservation" in the Railways and Harbours
Administration in the Territory, whereby the welfare and progress of
inhabitants are promoted by denying to thcm certain types of jobs
which they are otherwise qualified for, on the basiç of their race. And in
this reference to the policy in question, Respondent kas this to sa>r-
"lnasmuch as the social and economic relationship between the
different popiilation groups in South Wcst Africa is basically the SOUTH WEST riFRIC.4
same as that which pertains in South Africa, the application of a
similar policy of a Territory, with adaptation where necessary, is
only natural." (Ibid., p. 66.)
hlr. President, the Applicants, in making these references, are not of
course engaging at this moment in any aspect of these citations nrhich
invoIve the rneritsor inferences to be drawn therefrom. The only purpose
of this citation is to match these pleadings in the Respondent's for-
mulations against its proposal for a limited qualified inspection of the
Republic of South Africa in connection with the inspection of ail facts
and allfacets of the situation inthe cases at Bar.
Continuing very briefly with two or three more illustrative examples to
show how pervasively relevant Reçpondent has rnadeits policies, practices,
experience and so forth in South Africa in connection with the caçe-
on its own initiative-xve may cite the Counter-&fernorial, III, inwhich
Respondent contends in the following terms:
"Throughout South Africa's history there has been social separa-
tion between the members of the \Z'hitc group and the members of
the non-\ifhite groups; the members of each group preferriiig to
associate with members of their oivn group, and avoiding contact
in spheres where friction couid be created.
Ry reason of the difference in their stages ogeneral dcveloprnent,
the relationship in the economic field between members of the
White group and the members of the non-White group has in the
past gerierally been that of employers and employees. [We are
talking here, Mr. Yresident, about South Africa] In this factual
situation many Europeans, in al1probability the vast majority, are
not prepared to accept a relationship in which non-\\'hites cotild be
in positions of authority over them." (III, p. 65.)
In the quoted passage there is a remarkable similarity, indeed, a
virtual identity, of formulation with the language quoted, specifically
with reference to tlie Territory of South \frest Africa, in the Counter-
MemoriaI, III,at.page 525. 1have quoted from that passage, incontest,
in the address to the Court yesterday.
One more example rnay suffice. At page 131 of the Counter-Metnorial.
III, Respondent has referred to the success of Bantu autliorities in
South Africa, by way of suggesting that a similar çystem rnay fruitfully
be applied in the Territory itself. At page 173 of the same volume,
Respondent avers that it has adopted iithe Territory the policy applied
in South Africa with respect to the centralized control of so-called
"Sative" policy. At pages 174-176, of that volume, Respondent has
recoun ted the background of "Native" urban areas legislation in South
Africa, and has descnbed the application of such legislation, with sorne
adaptations, to the Territory.
At page 185, Respondent has averred that it "envisages the early
establishment in the Territory also of a system similar to that [in South
Africa] ... relative to the Iocal governnient of Natives in urbari areas".
Similar examples may be multiplied, but it iç not necessary to burden
the record, at this point, with references of different character than those
quoted-they al1corne to the same point. That point, in the contest of
the discusçion of Respondent's proposal for an inspection, is that the
proposed, or purported, limitations. qualifications, or conditions, which
are envisaged as a matter of Lawin the Respondent's proposal, nhich 1 ARGU31EST OF MR. CKOSS 53
have quoted from VILI, pages 278-279,that those qualifications, limi-
tations, implied or expressed conditions, undefined as they are, are not
intelligible, do not permit enable the Court to excrcise asound judicial
discretion concerning urhat Respondent rnap, or may not, regard as
elernents relevant to "al1 facets", or "aithe fach". From the examples
1have cited from the pleadings, the Applicants do not perceive where a
line could reasonably, or feasibly, be drawn, it would appear that an
unconditional, unqualified examination of the Republic would be rele-
vant, or none at all. The Applicants submit and perceive that none is
necessai-y.Itwould, therefore, appear to the Applicnnts that it remains
to conclude only with a repetition of the assurance, statcd at the outset
of the Applicants' presentation of views on this proposal, that it is
assumed as axiomatic that the Parties would wish to CO-operatein every
manner to facilitate and expedite any measures or steps which the Court
should conclude to be relevant or useful in reaching a decision upon
whether or not the Applicants' submissions are well founded.
The quality of the proposal-and 1 do not join with Respondent in
its apparent attempt to place into issue in these proceedings a contest
between the Applicants' motives, on the one hand, and its motives, on
the other in this litigation, Mr. President-involves no competition of
motive. It does seem, however, that in evaluating the proposa1 in its
essence. some significance may be drawn from the fact that when the
proposa1was originally submitted, so far as the Applicants were aware-
at least the first notice they had of the proposal, or the intention to
submit it, in theforrn ofa letter datedrz March 1965-no reference to an
inspection of South Africa was included. What has now become, or is
asserted as, a relevant and important aspect of the proposal, was not
included in its first lorm. It seems that further comment is unnecessary
in renching a fair evaluation of the proposa1 and the manner of its
presentation, particularlyin the light of the factors previously mentioned
with regard to the timing-precipitate timing-of n proposa1 which
Respondent now asserts should be acted upon quickly. Say in a few
iveeks, and is of essential materiality and relevance tothe adjudication
of these proceedings.
The Applicants, hlr. President and Members of the honourable Court,
therefore respectfully submit that the proposal for the inspection in Eoco
is unnecessary, expensive, dilatory, cumbersome and unwarranted, that
the weighing of the proposal and its asserted reasons in the scale of
justice, aIongside the length oftirnewhich this litigntion has consumed,
in respect of the antecedents of this legislation, in respect of the volu-
minous pleadings which, for more than four years, have been prepared,
collated, and are now submitted in unusually bulky form-that in the
light of al1these considerations the Court should reject the proposa1 and,
on the basis of that submission, Mr. President, there remains only for
me to lhank the Court alid the honournble President for the gracious
audience which it hasgiven to the remarks which the Applicants have
submitted. Thank you. - IO. ARGUMENT OF AIR,DE VILLIERS
COUNSEL FOR THE GOVEItNMENT OF SOUTH AFRICA
AT THE PUBLIC HEARINC OF 28 APRIL 1965
Mr. President, 1 shall be very brief. 'Thesole reason for raising any-
tliing at this stage is that me also have genuine difficulty about one
aspect of what we have to reply to. 1will deal with the details at a later
stage-but my learned friend, as 1 understood him, founded his basic
contention for rejecting the suggestion of an inspection in loto on con-
siderations of relevancy. He referred the Court in that regard to the
Applicants' case and represented to the Court that that case was of so
narrow a nature (the Applicants' case in regard to Respondent's policies)
as to require no further enquiry into the facts by way of either ora1
evidencc or an inspection. That is the difficulty I have in this regard.
He repeated several times that, for that purpose-the purpose of the
Applicants' case in that regard-there are no relevant facts in dispute.
Mr. President, what 1 want to put very briefly is this:
Ifthe Applicants can make it perfectly clear to us and to the Court
that their case in regard to the Respondent's policies in South West
lifrica does not cail for any value judgment by this Court upon those
policies, then, and in that event, ure can readily agree that the basis
upon which we have envisaged the calling of evidence, and upon which
we have proposed an inspection wili fa11away altogether.
iVhat 1Inean by a value judgrnent in that regard isa judgment which
would relate to the question whether those policies are good or bad, in
relation to promotion of weltbeing and progress-good or bad in respect
of their objective, or in respect of their effect in that regard, or in respect
of both. Wc have contended that the only legal basis upon which the
Court could adjudicate in that regard would be one of objective, but,
neverthcless, as long as there are allegations on record, even in regard to
the effect of the policy-factual allegations inviting the Court to make
a value judgment in that regard-and before the Court has decided that
suc11 a matter js,as a rnatter oflaw, irrelevant for itconsideration-u~e
must, with respect, insist upon an inspection and the hearing of this
evidence.
RIr. President, it is relevant to note in that regard that the Applicants
still have on record a number of allegations, for inçtance, that the
distinctions drawn by the Respondent's policies are arbitrary, that they
ignore the needs and capacities of the persons concerned, and that they
subordinate the interests of the majority tothe preferences ofa rninority.
Now, in answer to a question put by an honourable Member of the Court,
we heard the Applicants' learned Agent adding that the policies, accord-
ing to their theory, are inherently incapable of promoting wcll-being and
progress. That again, Mr. President, is, inOur submission, a submission
of fact-a subrnission inviting this Court to pass a value judgment on
the policies.
Now, if the Applicants can make it clear that we misunderstand thern
in some way or other in that regard, then, of course, asI have said, the
basis of Our proposal, as it stands thus far, \vil1 faIl away. If they can ARGUMEST OF >IR. DE VILLIERS 55
demonstrste that they rely solely on a norm, or on norms, or on norms
and standards of a technical nature-technical in the sense that it or
they prohibit differentiation according to some definition urhich applies
irrespective of whether the differentiation, iri fact, has a good oa bad
objective, or a good or a bad effect in regard to well-being and progress;
if ttiey crin do that, Mr. President, if they cnn mnke it clear that they
withdraiv a11their allegations about arbitrary differentiation-al1 their
allegations to the effect that the policies ignore the needs and capacities
of the individuals involved-ali their allcgations to the effect that the
policieç subordinate the interests of some inhabitants of the Territory
to the interests or the wishes or the preferences of others-then 1veshaU
have clarity.AS long as they do not do that, as long as these invitations
to thecourt to make a value judgment inany of the sense1 have indicated
stand on record we must insist upon the relevance of the evidence which
we wish to tender, and on the relevance of the inspection. 1 wonder
whether it nlight not be possible for my learned friend, who can have his
wishes in that regard, to make that clear to usbecause that might affect
the manner of the rest ofour presentatjon in thjs regard; it might even
affect the total length of these proceedings. XI. ARGUMENT OF MR. GROSS
AGENT FOR THE COVERNMEKTS OF ETHIOPIA AND LIBERIA
AT THE PUBLIC HEARIWG OF 28 APR~L 1965
Rlr. President, although 1 Listened as carefully as 1 was capable of
doing, and with as much interest as I could muster, I am not sure that
1 have al1the elernents or implications in mind of the questions addressed
by the Respondent. For such assistance as it rnay be, the question asked
in terms of "value judgment" involves, it seems to the AppLicants, the
classical problems with which a court of law is always confronted. I do
not know what the Agent for the Respondent has in mind precisely in
the concept of "value judgment". If 1 may paraphrase, to see whether
1 understand the meaning correctly, the Court would obviously apply a
judgment of values. and that the judgment wouid be based upon the
facts, the inferences which the Court dreiv fron~ the facts, and the
application of those facts and inferences to the ascertainable, esistent
and legal norm which governs the conduct of the Rlandatory. It would
seem difficult, however, to respond to the question in the terms in
which the Respondent's Agent has submitted it, without reminding the
Court once more, aiid through the Court the Respondent, that the
essence of the case of the Applicants is that the aclmitted practices and
policies-adrnitted and undisputed as facts of record-cal1 for, demsnd,
compel the value judgment, the inference, the legal judgment, whatever
phrase is acceptable to the Respondent, that these policies and practices
there setfortlt are incompatible with and repugnant to the Mandate as
the Applicants respectfully view its obligations.
Now if value judgments, in the sense perhaps intended by Respondent,
includes value judgments concerning the existence, or character, or
content of the international leganorm, then of course that is an entirely
different question. The Applicants are either correct or incorrect, they
are either right or wrong, in their submissions with regard to what the
international legal norm applicable to this case stands for, what its
content is; and we are prepared to stand upon the proposition that al1
averrnents of fact in the record call for an adjudication on the basis of a
value judgment, on the basis of a legal conclusion, on any other psycho-
logical basis by which courts or judges conduct their business. But thesc
undisputed facts call for a judgment, which 1 would call a value judg-
ment, that these fricts are repugnant to the Mandate in the terms in
which we construe the Mandate as explained in Our written pleadings,
and upon which construction the Applicants' case stands or falls. It is
difficult to understand how the Applicants can do more. Whether or not
the policy of perrnitting or prohibiting-1 do not intend to reopen the
question of rnerits-but whether a particular policy or practice of per-
' mitting or prohibiting, as the case may be, an individual from exercising
his capacities, his merit,hispotential, his God-given qualities in order
to accomplish and realize his life-ifthat can be open to the question
whether or not it promotes his welfare, then of course the Applicants
lose their case-there isno question about that, if the concept of prorno-
tionof welfare of the inhabitants permits that as an element. By reason ARGUMENT OF MR. GKOSÇ 57
of the international legal norrn for which the Applicants contend, there
js no question that can arise with respect to value judgment as to whether
such a policy, sucha practice (which is merely one of many, itiç only one
part of many, al1 undisputed in the record as facts) does or does not
promote his welfare-that is not a question, n value judgment in any
sense other than itiç a compelled, legal judgment on the basis of the
Applicants' submission.
Now if thiç answer, read in the light of the pleadings and what the
Applicants have respectfully placed before the Court, does not help Our
worthy opponents, the Respondent, to prepare a requisite answer, it
miil not 1 regret to çay be the first time in the history of this litigation
inwhich the Parties have been unable to find a common orbit for the
presentation of their views and the Iegal hypotheses upon which those
views reçt. There is, of course, an open question as to who is, or what is,
the prime source of confusion; perhaps the Applicants are the guilty
party in that respect-that is a question with which 1 do not deal. 13ut
as stated in the outset of the Applicants' presentation, it was made
explicitly clear by the Applicantç that oiie of the prime difficultics in
thiç proceeding, which has marked it from the beginning, iç that the
Respondent's conception of the Mandate, and in particular the sacred
trust, is wholly different frorn that contended for by the Applicants;
that their views with respect to this, as 1 said at the outset, circlein
different orbits. There can be no question of promotion of welfarc that
could be relevant to the practices and policies which are complained of
and which are the subject of the undisputed factual content of this
record. How many times is it necessary to repeat that is the heart and
sou1 of the Applicants' case, and if the Applicants are wrong, they will
be told so, of course, by this honourable Court in due course? The
Applicantç have confidence in the legal propositions upon which they
rest their submissions and will, it goes without saying, Mr. President,
endeavour to clarify those submissions to the fullest extent of their
capability to do so. But on the basis of the submissions, as the Applicants
intend and respectfully present them-on the basis of the undisputed
facts of this record, the Applicants respectfullysubrnit, and accordingly
through the Court advise the Kespondent, that the Applicants rest their
case upon the propositions asserted, and that the acceptance of those
propositions would make irrelevant, unnecessary, for al1the reasons the
Applicants have endeavoured to explain, the introduction of further
evidence, either at the seat of the Court or efsewhere; and if 1 may take
just a very brief rnoment to refer in conclusion to a point which might be
irnplied in the request addressed by the Respondent's Agent for clarifi-
cation with respect to the Applicants' position, I should, if 1 may be
permitted to, Mr. President, like to address myself to the proposed
procedures with regard to a certain aspect of Respondent's proposal
which, in its presentation, it linked with its proposal, in terrns of the
presentation of 30 March, and that is tlie calling of witnesses-a point,
a procedure, to which the Respondent's counsel has again referred this
moming in the same context.
In terms-and this can be verv briefly stated, Jfr. President-of
Respondcnt's presentation on 30 AIarch, Respondent referred to the
important purpose to be served by its proposals as stated, as set out,
at VIII, page 15, and said that-
8'
... it is mainIy for this very important purpose. . .that we SOUTH WEST AFRICA
[Respondeiit] intend to call witnesses and experts and for wliicii
we are proposing this inspection in loco";
and 1 refer iri this context, Mr. President, to the proposal that, for the
Court's coiivenience, for the sparing of an unnecessary burden upoii the
Court's time and patience, to Say notliing of expense to both Parties and
to the Court itself, the Applicants for that reason were prepared to make
any necessary stipulations with Kespondent so that its further material
might be presented indocurnentary form prepared, collateci and gathered
on its own time, and not on the Court's time; and that ifany questions
of derneanour of witnesses should poçsibly be involved, then the Court
would of course be free to call or request the attendance of such wit-
nesses in person; they will not be subject to cross-examination, nor will
the Applicants consider it necessary to participate in the taking of
depositions leading to their staternents for submission to tlic Court.
This 1 repeat as a possible assistance to the Respondent in reply to his
questions addressed to the Applicants, if that was indeed intended by
him to be an clcment for further clarification.
[Public henring O/ 30 Afiril 19651
RIr. President and Members of the honourable Court, during the course
of the proceedings of 28 April 1965 the honourable President addressed
to the Applicants a question to which the Applicants now respectfully
endeavour to respond. The question nddressed to the Applicants by the
honourable President appears in VIII, Minutes, page 22. ln tlieir re-
sponçe, the Applicantç willhave in mind remarks made iii relatioii to the
question put by the honourable President during the same session of the
Court. These remarks appear at VIII,pages 22 and 24.
The question posed by the honourable President requests esplanation
of any distinction which rnay esist between Subrnissions 3 and 4, which
ai-e set out in the Mernorials at 1, page 197. The response of the
-4pplicants to the question addressed to them by the honourable
President rnay be formulated concisely: there is no distinction intended
by the Applicnnts to be made, or souglit to be dratvn, explicitly or iin-
plicitly, which has any bearing upon their theory of the case. Aithough
expressed iii different form, for reasons bvhichwill be expiaincd, the sub-
missions rest upon exactly the same legnl basis. The legal basis of tlie
Applicants' case, upon which Submissions 3 and 4 both are foiinded, is
that the laws, administrative rneasures, and the officiai methods and
measures by which they are carried out, which comprise the policy of
apartheid, constitute a per se violation of Article2 of the M-ndate and
of Article 22 of the Covenant of the Leagiie of Xations.
The foregoing response to the question addressed by the lionourable
President to tlie Appiicants is based upon and reflects the following con-
siderations esplanatory thereof. As a preliminary matter, for the con-
venience of the honourable Preçiclent and the Court in following the re-
marks about to be inade, the attention of the Court is respectfully draum
to the terms in wtiich Submissions 3 and 4 are couched. The Court will
note that Subrnission No. 3, unlike Submission No. 4, incorporates the
word "apartheid". Submiçsion No. 3 describes the sense in which the
word apartheid is used in that contest, by means of an explanatory
phrase which 1 take the liberty of quoting; thisis at 1,page 197 of the
Mernorials : ARGUMEXT OF SIR. CROSS 59
"... a#nrtheid, Le., has distinguished as to race, color, national or
tribalorgin in establishing the rights and dutiof the inhabitants of
theTerritory ...".
Submission No. 3 requests the Court to adjudge aiid (leclare that such
practice-the practice of apartheid-violates Kespondent's obligations,
as stated in the relevant articles of the hlandatc and of the Covenant.
This, of course, is intended to express a legal conclusion. Submission No.
3 concludes with a prayer for relief, namely that the Court should ad-
judge and declare that Respondent has the duty forthwith to cease the
practice of apartheid in the Territory.
Submission No. 4, on the other hand, does not incorporate the term
"apartheid". Submjssion No. q does, however, refer to the economic,
political, social and educational policies applied within the Territory
mithout a descriptive label. The economic, political social and educational
policies refer to the same legislative and administrative measures, and
the same officia1methods anclmeasures by which they are put into effect,
as are described in Submission No. 3 by use of the term "apartheid".
Both Subinissioiis 3 and 4 refer to the fact that the relevant practices
and policies are described in Chapter V of theMemorials, and both Sub-
missions 3 and 4 refer to summarizations thcreof in yaragraph 190 of
that Chapter.
It is to be noted that Subrnission No. 4 makes no referencc to para-
graph 189,which is set out in the hiemorials at 1, pagc 161.The reason
for omission from Submission No. 4 of reference to parnpgraph 189 is,
ae think, self-evident. inasmuch as paragraph 189 solely is concerned
with a discussion of the term apartheid, which does not appear in Sub-
mission No. 4.
&Ir.President, the reason why the two submissions were included in
the hfemorials, although formulated in difîerent terms, but with preciseiy
the same intendment, is simply stated. Respondent has for many years
described the policy in question which it has applied in the Territory by
the designation "apartheid". More recently, Respondent apparently has
come to prefer the plirnse "separate devetoprnent" to describe the same
policy.The fact thnt the expressions "apartheid" and "separate developl
ment" are used interchangeably by Respondent, and not as words of art
with a technical meaning, appears clearly from the record. AS pointed
out in the Reply at IV,page 263, i~ler alia, the phrases are synonymously
ernployed. For many years, however, public international organizations
concerned with the prernises, application and consequences of the policy
of apartheid increasingly have employed the teim "apartheid" to de-
scribe the series of legand administrative measures, and officia1methods
and measures bp which they are put into practice, the totality of which
is characterized and termed "apartheid". This appears in many resolu-
tions of the United Nations, for example, as well as other documents,
recommendations, decisions, and reçolutions ofa public nature.
It seemed to the Applicants appropriate, accordingly, to incorporate
in the submissions a request to the Court to adjudge ancl declare that the
policies and practices generally described by, and commonly known as,
apartheid, are violative ofthe relevant articles of the Covenant and the
Mandate, and that Kes~ondent haç the duty forthwith to cease the prac-
tice of apartheid in the ter rit orI. the light of common usage ofthat
term, as 1 have said, the Applicants conceived that if it should please
the honourable Court to adjudge and declare in favour of Applicants'60 SOUTH WEST AFRICA
Submission No. 3, the term "apartheid", as employed and describecl in
the pleadings and in public usage, might well be referred to explicitly.
In order to make clear, however, that the only significance attached
to the use of the word apartheid arises out of its popular usage as a
description of the practices and policies which it describes, the following
sentence was included in paragraph 189 of Chapter V of the Memorials,
at 1,page 161 :
"We herespeak of apartheid,as we have throughout this Memorial,
as a fact and not as a word,as a practice and not as an abstraction."
Yaragraph 189 of Cliapter V is designed to serve as a summary of the
conclusions, characterizations and inferences which, in the Applicants'
view, are properly to be drawn from the laws, regulations and officia1
methods and measures apylied by Kespondent in the Territory; this is
made explicitly clear in the opening sentence of paragraph 187, on the
same page of the AIemorials-that is, page 161-under the same heading :
"The factual record of the Mandatory's conduct [and 1 stress the
term 'lactual record of the Mandatory's conduct'], as hereinabove
more particularly set forth, has a desolate but remarkable consis-
tency ."
It is on the "factual record of the Mandatory's conduct", comprising
the laws and regulations, and the official methods and measures by which
they are put into practice, the existence of which is undisputed, weighed
against the relevant and applicable international legal norm and inter-
national standards, described by the Applicants in their written pleadings
and in these Oral Proceedings, that the Applicants rest their case.
Both Submissions 3 and 4, although formulated differently in terms,
for reasons which 1 have endeavoured to explain, have the same intend-
ment. There is no distinction between them in any respect relevant to
the Applicants' basic and consistently held theory that the factual record
of the Mandatory's conduct constitutes a per se violation of Article2
of the Mandate and Article 22 of the Covenant, read in the light of the
international legal norm and international standards which the Appli-
cants contend exist and which govern the interpretation of the articles
in question.
In respect of the formulation of the Applicants' Subrnission 4, it\vas
considered both expedient and apyropriate to refer to precisely the same
body of laws, regulations and official methods and measures by which
they are put into practice without, however, explicit use of the term
"apartheid". As has bcen said, although such laws, measures and practice
arc commonly and popularly described by that name, that term in and
of itself has no precise significance, apart from the laws, the regulations
and methods and officia1practices which put it into effect, and pursuant
to which the rights and duties of the inhabitants of the Territory are
allotted on the basis of membership in a group, class or race, ratherthan
on the basis of individual merit, capacity or potential.
The Court's attention is respectfully directed to the Reply, IV, page
493, in which the Applicants have attempted to formulate their de-
scription of the relevant international legal norm.
Uoth Submissions 3 and 4 are intended to refer to the same practices
and policies, accordingly,al1of which are described in Chapter V of the
Memorials and summarized at paragraph 190 in terms in the form of
averments of fact. ARGUMENT OF MX. GROSS 61
There is, of course, Mr. President, also includcd in Chapter V of the
Memorials a considerable body of explanatory, inferential, and argumen-
tative material. Itwas for this very reason that the Applicants regarded
it as a possible convenience and clarification to include-strictlypeaking
what was unnecessary-a paragraph in Chapter V,to wit,paragraph 190,
which is designed, inter alia, to collatc and categorize the averments of
fact ~vhich are set out in more discursive form in the remainder, the
body, of Chapter V itself.
It is to be noted,lr. President, that paragraphs 189 and go of Chapter
V are set out under the caption "C. LegaI Conclusions".
Paragraph 190 itself commences with a paragraph of argument and
characterization. There follows a series of three legal propositions, each
of these introduces a brief summary of factual averrnents. Thelatter are
set out in the Memorials at 1, pages 162-166.
It is relevant to note in this connection that Chapter VIII of thReply,
relating to Submissions, states, in part, as follows:
"Upon the basis of the allega-tionsof fact in the Memorials, sup-
plemented by those set forth herein or which may subsequently be
adduced before this honourable Court, and the statements of law
pertaining thereto, as set forth in the Memorials and in this Reply,
or by such other statements as hereafter may be made, Applicaiits
respectfully reiterate their prayer that the Court adjudge and declare
in accordance with, and on the basis of, the Submissions set forth
in the Memorials, which Subrnissions are hereby reaffirmed and
incorporated by reference herein." (IV,p. 588.)
In order to avoid anvpossible misunderstanding which might arise from
the fact that Submission 3 refers to "practice", whereas Submission 4
uses the term "policies", the Applicants think itappropriate to state,
without qualification, that both words are used in a synonymous and
interchangeable sense.
The word "policies" as used in Submission 4, isto be taken as having
the same meaning as if it read "practices". As the written pleadings both
of the Applicants and of Kespondent make clear, the two terms are used
interchangeably in many contexts in the written pleadings of both
Parties. Where tkey are used conjunctively, the word "policy" refers to
a continued or repeated course of conduct.
The Applicants rest their case, therefore, upon lawç and regulations,
as well as officia1measures and methods by which they are effectuated,
the existence of which is conceded by Respondent. Such laws and regu-
lations and officia1 measures and methods are set out in the written
pleadings of the Parties.
In the event Respondent should assert doubts as to the laws, regula-
tions, and officia1measures and methods which comprise the policy of
apartheid, the Applicants, at an appropriate stage of these proceedings,
or at any time, will be pleased to furnish citatioofillustrative examples.
Respondent itself uses the term "apartheid".
Reverting to the terms in which Submission 4 is forrnulated, thesub-
mission avers that Respondent, by virtue of the enumerated policies ap-
plied within the Territory, has failed to promote to the utmost the mate-
rial and moral well-being and social progress of the inhabitants of the
Territory. Mr. President, this formulation is not intended, in any manner,
to çuggest an alternative basis upon which the Applicants seek to make62 SOUTH WEST AFRICA
their case, other than the basis upon which Submission 3 itself rcsts.
Submission 4,accordingly, is intended to mean, and should be read as if
it stated in termç, that Respondent's policy and practices in the Tcrritory,
read in the light of the applicable international legal norm and interna-
tional standards, fail to promote the well-being and progress of the in-
habitants of the 'Territory within the meaning of Article 2 of the Mandate
and Article 22 of the Covenant.
To put the same point in a different way, Subrnission 4 is intended to
be read aiid understood preciçely in the same sense as if itwere formula-
ted in the following manner:
"4. The Union, by virtue of the eco~iomic, political, social and
educational measures and practices applied within the Territory,
which are described in detail in Chapter V of this Mernorial and
çummarized at paragraph go thereof, has, in the liglit of tlie appli-
cable international legal norm and i~iternational standards, failed to
promote to the utmoçt the material and moral well-being and social
progress of the inhabitants of the Territory .. ."
The Applicants respectfully maintain and reaffirm that Submission 4
at no time was, and is not now, intended to be read in a sense difîerent
from that made explicitly cIear in the re-formulation just quoted.
In the Rejoinder, V, Kespondent States the folloming, with regard to
Submissions 3 and 4 and the norm of non-discrimination, or non-sepa-
ration :
"If it [tliat is the norm of non-discrimination or non-scparation]
possesses the content ascribed to it by Applicants, and if it can be
regardcd as embodied in the Mandate, Respondent's admitted poli-
cies of diffefentiation would be in contravention thereof, leaving
no further dispute between the parties as regards Applicants' Sub-
missions Nos. 3 and 4." (V, p. 175.)
In respect of tlie question addressed to the Applicants by the honour-
able President, it follows that 110 issue is presented thereunder which
would cal1 for, or make relevant, an inspection to appraise, evaluate or
make judgments concerning wkether, or to what extent, Respondent's
policies of administration in fact applied by the Respondcnt in the eco-
nomic, political, social and educatioiial lifeof the Territoryare coiiipatible
with, or repugna~it to, Respondent's legal obligations as Mandatory
under the sacred trust.
The Applicants' case stands or Ialls on its theory and submission tliat
the laws and regulations and officia1methods and measiires, the esistence
of which is undisputed in the record, are inherently and fierse,as a inatter
of lav, in violation of the obligations of Article zzof the Covenant and
Article 2 of the Mandate, read in the light of, and interpreted in accor-
dance with, the applicable international legal norm and international
standards which are defined and described by the Applicants in their ,
written pleadings and oral arguments, the latter not yet, of course,
having becn completed.
In respect of Respondent's proposal for inspection which, of course,
is the context of the honourable President's question, and in the response
thereto, the Applicants have sought to demonstrate, inter dia, that
nothing the Court, or a committee thereof, could do, see or hear in the
Temtory, or elsewhere, could or rvouId aid the Court to adjudicate upon
the validity of the Applicants' submissions. ARGUMENT OF MR. GROSS 63
Such inspection only could serve, perhaps, the purpose of judicial en-
quiry into the value of tlie international legal norm and international
standards.
In tlie course of his remarks in relation to the question addressed to
the Applicants, as set out atVIII, pages 22 and 24 the honourable Presi-
dent adverted to the possibility that ifthe Applicants could clarify the
matter under discussion, it may well be that a great deaI of the evidence
~vhjchhas been foreshadowed by Respondent coiild become unnecessary.
Mi-.President, in the light of the voluminous pleadings and documenta-
tion which have been filed, together with the oral arguments wliich have
been made, and remain to be made, addressed to the issues joined in
these proceedings, the Applicants have profferred co-operation with
Respondent and witli the Court in the event that Respondent perseveres
in its indicated intention to adduce further evidence in the form of oral
testimony.
The Applicants respectfully reaffirrn their desireto CO-operatein this
respect by any feasible method which rnight result in saving the Court's
time,as well as undue expense inthis already very protracted litigation.
In the AppIicants' respectful view, there appears to be even less
justification for presentation of oral testimony than for inspection. The
Applicants have suggestcd a procedure pursuant to which they would
stipulate that any depositions, properly authenticated, of any witnesses
or experts ~vhosetestimony Respondent, subject to the Court's permis-
sion, would wish to add to the documentation of these proceediiigs, \vil1
be accepted by the Applicants as full aiid correct statements of what
such witnesses or experts would have testified had they been present
personally in Court. The Applicants would waive all right to be present
during the taking of sucli depositions, for any purpose, including the
purpose of cross-examination.
Such stipulation, of course, would be subject to the Court's possible
wish to observe the demeanour of any sucli witnesses or experts in the
course of giving testimonÿ or to address questions personally to them
in Court, if that should be the Court's wish.
The Applicants, moreover, would waive al1 right to examine such
witnesses or experts appearing personally in Court.
The Applicants, in terms of Rule 50 of the Rules of Court, would re-
serve the right to comment upon any depositions or other documentsfiled,
or upon any evidence given.
hir. President, this concludes the Applicants' presentation of their
response to the question addressed to them by the honourabie President,
as well as of certain observations which the Applicants hope may be rele-
vant and helpful in connection with the honourable President's remarks
relating to the question. If, and to the extent consistent with the Statute
and Rules of Court, it is desired by the honourable President to request
further clarification, it wouId be an honour and an opportunity, on the
part of the Applicants, to attempt immediate response thereto.
&Ir.President, it remains for the Applicants to comply with their duty
on this occasion, which they gladly do, to address themselves to certain
queries raised by Respondent during the course of the session on 28 April
1g6j. Respondent's queries and comments are set out in the verbatim
record at pages 54-55, supra.
In the course of the presentation of its queries, Respondent assured the
Court that the basis upon which it has envisaged the calling of evidence64 SOUTH WEST AFRICA
and upon which it has proposed an inspection \ï,ouId faIl away altogether
if the Applicants could make it clear to Respondent and to the Court that
their case (Applicants' case) in regard to Respondent's policies in South
iVest Africa does not cal1 for any value judgment by this Court upon
thoçe policies-that was the phrase used "value judgment".
Respondent went on to Say:
"\f%at 1 mean by a value judgment in that regard is a judgment
which would relate to the question of whether those policies are
good or bad, in relation to proniotion of well-being and progress-
good or bad either in respect of their objective, or in respect of their
effect in that regard, or in respect of botli." (P54, szlpra.)
Mr. President, perhaps it will be clear from what the Applicants have
had to Say in their response to the questions addressed by Judge Sir
Gerald Fitzmaurice. as well as by the honourable President that, in the
Applicants' view, the value judgment whether apartheid is "good or bad",
in Respondent's phrase, alrcady has been made. It has been made as a
normative judgment by the organized international community, acting
and speaking over the years through the competent organs, including the
United Nations, the Internatlorial Labour Organisation, and other Specia-
lized Agencies, as well as other general and regional institutions and au-
thorities and in international agreementspertaining tothis subject. Arany
examples are set out in the Applicants' written pleadings. They will be
referred to upon resumption of argument upon the legal issues, which
has been suspended mornentarily for the discussion of the proposa1 of
inspection.
hIr. President, in concluding this brief, bItventure to hope adequatc,
comment concerning Respondent's queries, itrernains only to be added
that Respondent itself has given the clearest possible answer to its own
question in its own written pIcaciings. This it has done not only once,
but repeatedly.
In the Rejoinder, V, and 1 refer to page119, Respondent concedcs, or
contends:
"If this alleged norm [thatis, thenorm asserted by the Applicantsj
exists aspart of the Mandate, it would have the consequence that
Respondent's admitted policies of diffcrentiation would constitute a
contravention of the Mandate even if the Court were to hold that
such policies were intended to enure, and did in fact enure, to the
benefit of the population as a whole. Consequently the sole isçue
between the Parties on this aspect of the case is a legal one, vrz.,
whether or not the aiandate contains such a norm."
With this comment, of course, the Applicants agree fully. The word
"contain", we would construe as an interpretation of the obligation.
For the purpose of interptetation and application, the following pas-
sage in the same volume of the Rejoinder removes any vestige of doubt
that Respondent clearly understands the basis of the Applicants' case:
"It is true that by relerence to their alleged 'norm of non-dis-
crimination or non-seprrration' Applicants can plausibly contend
that evidence tending to show an absence of aiiy intention on Re-
spondent's part other than one to promote the interests of the in-
habitants, would be irnmaterial. If iiideed Article z of the Mandate
must be read as containing an absolute prohibition on 'the allotment, ARGUMERT OF MR. CROSS 65
by governmental policy and action, of rights and burdens on the
basiç of membership in a "group", Applicants would sufficiently
establisfi a violation of the Articleby proving such an allotment,
irrespective of whether itwas intended to operate, or does in fact
operate, for the benefit of the inhabitxnts of the Territory. The Iegal
position would then be similar to that pertaining, for instance, to
the prohibition in Article 3 of the Mandate on the supply of in-
toxicating spirits and beverages to the Natives. And since Re-
spondent's policy is avowedly based lo a considerable extent on an
allotment of rights and obligations on the basis of rnembership of
the different population groups in the Territory, there would exist
no dispute of fact between the Parties. The position would then in-
deed be, as stated by Applicants, that 'the decisively relevant facts
concerning Applicants' Submissions 3 and 4 are undisputed'.
But all this wouldbe so only with reference to the case now sought
to be built by Applicants on the alleged 'norrn of non-discrimination
or non-separation'. None of it would be or is true of Applicants' case
as advanced in the Memorials." (V, pp. 105-106.)
For the purpose of this presentation the last comment is, of course,
irrelevant. Ifit is relevant,or conceived so to be by Respondent in re-
spects not dear to the Applicants, it is clearand must be from ~vhathas
been çaid often during the course of thcse proceedings, and in the written
pleadings, that this is not a fair and accurate statement of the case as
advanced in the Memorials. But, leaving that aside completely, as that
is not a point at issue in this context, the submission of the Applicants
is that these very quotations from the Rejoinder, which 1 venture to
place before the Court, show very clearly Respondent's understanding
that the legal theory advanced by the Applicants does rest upon the
application of the relevant international legal norm, and international
standards, defined by the Applicants in their pleadings and intheir oral
arguments, to the legal administrative regulations, to the measures and
methods by which, through officia1action, Respondent applies such laws
and regulations inthe Territory,the existence ofwhich is not disputed,
and that the Court shouId, in our respectful submission, conclude that
Article 2, paragraph 2,of the Mandate, and Article 22 of the Covenant
have been, and are being violated by Respondent's practice and policy
of apartheid.
1 thank the Court for patience in attending to these remarks and I
would re-affirm a willingness and desire to respond, by way of clarifica-
tion, to any further question. Thank you, Mr. President. 12. ARGUMENT OF RIR. DE VILLIERS
COUNSEL FOR THE COVERKMENT 01; SOUTH AFRICA AT
THE PUBLIC HEARING OF 30 APRIL 1965
bir. President, 1should like to concentrate first on the basic reason
given bjr my learned friends for opposing the praposal in regard to an
inspection inloto. 1 leave aside for the moment minor questions such as
the timing of the proposal-that it came both too late and too early,
apparently, accordiiig torny learned friends-and points of thatnature.
The basic question is the subrniss~oilbymy learned friend ts the effect
that their case reston so narrow abasis that the factual enquiry whicli
1veenvisaged, both in regard to the prospective calling of ~vitnesses and
in regard to tliis inspection, woube legally irrelevant to a consideration
of their case, and their only case, in regard to Arti2,eparagraph 2,of
the Mandate. For the purposes of ascertaining whether that submission
is sound, it is of course necessary to have absolute clarity as to what the
Applicants' case exactly is. Does it rest on the one basis only or does it
rest on more than one basis, legally speaking? Does it rest on a norm
only to the exclusion of norms and standards in the plural or does it
rest in the alternative on a norm or on standards? Does it rest only on
a legal norm which automatically and teclinically renders certain de-
scribed forms of conduct illegal, or does it rest in the alternative upon
factual allegations in respectofwhich they ask this Court to pass an
adverse value judgment either asto the purpose or as to the effect or as
to both the purpose and the effect of the Respondent's poiiciein South
West Africa?
New, hlr.President, when we have clarified that situation as to
whether there are alternatives or not, then whatever remains-must be
further examined in order to see what the content of that legal norm
exactly is or whatever that legal basismay be for the Applicants' case,
because it is only when we have ascertained clearly the content of this
legal proposition for which the Applicnnts contend, thnt we can see
what appropriate further factual enquiry, if any should bc iiecessary.
Now it seems that we have made progress Mr. President, in certain
respects, particularly this morning. 'CVeknow now that as betïveen
Submissions 3 and 4 there is no distinction: that they are not suggested
as alternatives, the one to the other, or as t\vo different allegations, the
one added to the other. They rest, as I understood my learned friend
this morning, on a legal proposition or propositions which are comrnon
to both. IVe understand, Mr. President, that independentlj.of that legal
'basis which is said to be a norm or, alternativelystandards, the Court
is not asked in respect of Subrnission 4 make an enquiry into the fact
with a view to pronouncing a value jiidgment, of any of the kinds which
1 have mentioned, on the policies as sucli and purelyon a factual basis.
1 understood my learned friend to say that that value judgment has
already been made by the organized international community and
various perçons and organizations to wliich he referred, in other words,
that question is not submitted to this Court for adjudication, however
ready and however xvilling-and however ansious-the Respondent ARGU.MEST OF MR. DE VILLIERS 67
might be to have that case full~fexamined and pronounced upon by
this Court in an independent, fair and impartial enquiry of its own. But
my learned friends apparently make clearthat they do not ask this
Court to do that ; they rest their case on what the organized international
community has said; that is the last word; that constitutea norm, and
they say that the Court has merely to apply that norm to facts which,
for thepurposes of that norm, areundisputed.
Mr. President, we understood my learned frierids to make it clear that
that proposition applies even if.the facts should be that Respondent's
policies, viewed as a \\.hole, are intended to enure, and in fact do
enure, to the benefit of the population as a whole.
The Court will recall the fact thatmy learned friend referred to two
passages in our Rejoinder, vjz., V, at page 119 and again inthe sarne
Volume at page rog,in both of which the Respondent addressed itself
to the proposition of thenorm as then defined in the Reply. The Court
will recall that the definitiisgiven in the Reply. IV, at page 493; and
1shall refer to that definition at a later stage. On the basis of tlie defini-
tion there, we understood it to refer to absolute prohibition against any
form of differentiation on the basis of membership in a group, class, race,
etc, On that basis of understanding of the norm, that it was absolute,
in that respect, we made certain remarks. Wc then said that factual
enquiries by the Court in order to weigh the advantages against the
diçadvantages of the policy and so forth, would be wholly mled out, the
sole question would be whether such a norm exlsted so as to be binding
in law upon the Respondent as part of the Mandate, and we added
explicit words to the effect that even ifthe Court should find that the
norm was intended to enure and did in fact enure to the benefit of the
population as a whole. That, my learned friend says, he is in ernphatic
agreement with. Let me refer to the formulation at V, page 119 of our
Rejoinder. We referred to the formulation at page 493of the Reply and
we then said th:
"If this alleged norm exists as part of the Mandate, it would
have the consequence that Respondent's admitted policies of dif-
ferentiation would constitute a contravention of the Mandate even
if the Court were to hold that such policies were intended to enure
and did in fact enure, to the benefit of the population as a whole.
Consequently the sole issue between the Parties on this aspect of
the case is a legal one, viz., whether or not the Mandate contains
such a norm."
My learned friend also read the passage at page 105 of the same
Volume which, although in very sljghtly different wording, has exactly
the same purport and effect, and he expressed his emphatic agreement
also with that proposition.
So, Mr. President, we have at least made that progress. The difficulty
is that thatclear statement of his position this moming still appears to
be in conflict with other features which stand on the record and.to
which my learned friend did not specifically address himself this morning
so as to indicate the Applicants' attitude in that regard.
The first important question, or problem, lvhich arises in this regard.
is this: do the factual allegationmade by the Applicants inthe 8Ierno-
rials ancl renffirmed by them in the Reply which imply a condemnation
on the facts, of the Respondent's policies, still stand or do they not?68 SOUTH \'EST AFKICA
air. President,I should like to begin by referring the Court to tliose
very paragraphs of the Mernorials, which are still incorporated, by
reference, in the Applicants' Submissions 3 and 4. They are the para-
graphs in respect of whichmy learned friend emphasized that they stand,
under the heading of "Legal ConcIusions", ai 1, pages 161-16 of the
Memorials. 1 leave out of consideration for the moment, hlr, President,
the question whether these paragraphs concentrated on the element of
purpose, or good or bad faith, or not-that has been made a strenuous
issue by rny learned friend. 1still submit that there can be no question
about it that Our interpretation of what was said in that regard in the
hlemorials, is perfectly correct, bu1 Ieave that dispute for the moment.
Let us simply see whetlier they asked for any value judgment of the
kind 1have described, in regard to purpose or in regard to effect or iii
regard to both, whether thep asked for a pronouncement on the facts
by this Court. We find, in paragraph 187 (Memorials, 1,p. 161), the first
one of the "Legal Conclusions", ends off by saying-"The record as a
whole reveals the deliberate design that pervades the several parts."
Then paragraph 188 (of the 31emorials) refers to the possibility that the
Mandatory might "explain or extenuate this or that detailof the factual
record,ifit were merelp an isolated event or phenornenon". 13ut they go
on to stress the cumulative effect of the record and state this conclusion
in the final sentence:
"Particular laws and particular practices, particular orders and
particular acts are alt parts of a cohesive and systematic pattern
of behavior by the Mandatory which inhibits the well-being, the
social progressand tiie development of the ovcnvhelming majority
of the people of South West Africa, in al1 significant phases of the
lifeof the Territory." (1,p.161.)
Mr. President, it wilbe noted that the reference is not to an inhibition,
a hampering, or a disqualification pertaining to particular isolated
individuals in particular isolated circumstances which form a relatively
minor part of a big whole, but that Applicants refer explicitly and, in
so many words, to inhibiting "the ivell-being, the social progress and
the developrnent of the ovenvhelming majority of the people of South
West Africa, in al1significant phases of the life of the Territory".
Paragraph 189of the Mernorial continues (that is one of the paragraphs
expressly incorporated by reference) :
"As the Applicants have previousIy pointed out,the policy and
practice of apartheid has shaped the Mandatory's behavior and
permeates the factual record. The meaning of n$arlheid in the
Territory has already been explained hereiriabove. The explanntion
warrants repeating. Under apartheid, the status, rights, duties,
opportunities and burdens of the population are fixed and allocated
arbitrarily on the basis of race, color and tribe, without any regard
for the actual needs and capacities of the groups and individuals
affected."(Ibid,)
1 pause for a moment, and point to the factuaI nature of the allegation
that the fixingof the status, and so forth, is arbitrary-arbitrary inthe
sense that itis without regard to the actual needs and capacities of the
groups or individuals affected. The quotation proceeds:
"Under apartheid, the rights and interests of the great rnajority ARGUMENT OF MR, DE VILLIERS 69
of the people of the Territory are subordinated to the desires and
conveniences of a minority."
This is, to use my learned friend's expression, Mr. President, a flat
allegation of fact.I continue with the quotation:
"We here speak of apartheid, as we have throughout this Memo-
rial, aa fact and not as a word, as a priictice and not as an abstrac-
tion.Afartheid, as it actually is and as it actually has been in the
life of the people of the Territoryis aprocess by which the Manda-
tory excludes the 'Natives' of the Territory from any significant
participation in the life of the Territory except insofar as the Manda-
tory finds it necessary to use the 'Natives' as an indispensable
source of common labor or menial service." (Ibid.)
These are, again, pure allegations offact, Mr. President.
Now, we corne to paragraph 190, incorporated by reference in both
Submissions 3and 4, but the only one relied upon in Submission 4, as
originally formulated. Tt reads:
"Deliberately, systematically and consistently, the Mandatory
has discriminated against the 'Native' population of South West
Africa, which constitutes overwheImingly the larger part of the
population of the Territory. In so doing ..." (Ibid., p.162.)
and 1pause here for a moment, Mr. President. "In so doing"-in doing
what,hir. President? In discriminating, in discriminating "deliberately,
systematically and consistently", against the Native population. 1pro-
ceed :
"In so doing, the Mandatory has not only faiied to promote 'tothe
utmost' the material and moral well-being, the social progress and
the de\relopment of the people of South West Africa, but it has
failed to promote such well-being and social progress in any signif-
icant degree whatever. To the contrary, the hlandatory has thwarted
the well-being, the social progress wd the development of the
people of South West Africa throughout varied aspects of their
lives; in agriculture;in industry, industrialemployment and labor
relations; in government, whether territorial, local or tribal, and
whether al the political or administrative levels; in respect of
security of the person, rights of residence and freedom of movement ;
and in education. The grim past and present reality inthe condition
of the 'Natives' is unrelieved by promise of future amelioration.
The Mandatory offersno horizon of hope tothe 'Native' population."
(Ibid.)
1 end the quotation there, for the moment.
$Ir. President, if that is not asking for a value judgment in respect of
the whole of the policy referred to, of the policies and practices referred
to, then 1 do not know what would amount to asking for such a value
judgment.
The question is, do those allegations stand, or do they not stand, as
part of my learncd friend's case, as part of what he asks this Court to
pronounce upon?
The same paragraph, paragraph 190, proceeds, and it says in italics:
"The Mandatoryhasvioiafed,and continttestoviolateits obligations
as statedin the secondparagrafih of Article 2 of the Mandate and
Article22 ofthe Covenant thefoElowingrespects: . ." (Ibid.)7O SOUTH WEST AFRICA
And then follo~m,Mr. President, a summary of allegations previously
made in Chapter V in respect of various aspects of life-economic,
political, educational,rights of residence, freedomof movement, security
of the person, and so forth.1 do not have to run through thern; it would
be a tedious business, Mt. President. On analysis it appears that each
and every one of them is a factual allegation of discrimination against
the Natives.
We find that, in the Reply, these and similar allegations were re-
affirmed, and 1 should like to refer the Court to a few of those forrnula-
tions.
We find at IV, page 257 a general formulation in regard to Submis-
sions 3 and 4, given in the course ofexplaining that the Applicants' case
was intended to be based, not upon an allegation of bad faith, but upon
an objective evaluation of the Respondent's conduct, and it is said
that-
"Applicants' Submissions 3 and 4 accordingly are hereby reaf-
firmed in the sense stated and intended therein, viz.,that Respon-
dent's policies and practices, as set forth in Chapter V of thMemo-
rials and in. ..Chapter IV of the Reply, characterized and de-
scribed by the terms 'apartheid' or 'separate development', have
violated, and do violate, Respondent's obligations towards the
inhabitants of the Territory in terms of Article 2,paragraph 2,of
the Mandate." (IV, p. 257.)
1 wish to emphasize the words "Respondent's policies and practices,
as sel forth in Chapter V of the Memorials and in. .. Chapter IV of the
Reply". In Chapter IV ofthe RepIy, at IV, page 256 and running an to
page 257, it is state:
"Applicants' Submissions 3 and 4 are, on the contrary, based
upon the conclusion, amply supported inthe Mdnaorialsthat:
'...By law and by practice, the Union has followed a çystematic
course of positive action. ..'."
1 have previously read this to the Court. Al1the allegations are repeated
about systematic conduct inhibiting well-being, arbitrary allotment,
ignoring the needs and capacities of the individuals, subordinating
interests and rights ofthe majority to that of the minority, and so forth.
And it ends by saying:
"It deals with apartheid in firadice, as itactually isalzd as it
ackally has beenin theEije ofthe peopleof th8Territory, and not as a
theoreticalabstraction..." (IV, pp. 256-257.)
We find at page 258 of the Reply a general formulation to the fol-
Iowing effect :
"As is demonstrated in the Memorials,and reasrrned in this Reply,
the policy of afiartheid is injurious to the genuine interests and
welfare of the entire population, including those whose benefit and
privilege are purported to be served thereby."
examples only.are general formulations; there are others, but I give
aspects of the factual case. In regard to education, we find the following
at IV, page 364, in the second paragraph: ARGUMEST OF h1R. DE VILLIERS 7I
"In Applicants' submission, Respondent's policy of educational
afiartheidwith respect to the children of 'Native' perçons within 8
the Territory inevitably distorts the social perspective and political
moral outlook of the children of 'Coloured' or 'EuropeanJ inhabi-
tants. As such, the Native education policy is, in itself, a violation
of Respondent's obligation to promote to the utmost the material
and moral weil-being and the socialprogress of al1of theinhabitants
of the Territory."
It contains a factual allegation, Mr. President, that the policy "inevi-
tably distorts the social perspective and political and moral outlook",
and again "al1 of the inhabitants of the Territory" are referred to.
At the bottom of page 370, we find the following, still about education:
"The education policy in the Territory segregates al1of the inhabi-
tants by race, separates the 'Native' inhabitants by tribe, and
prepares the 'non-European' inhabitants for a subordinate role in
the social, economic, and cultural life of South West Africa. This
last description is true both of the limitation on opportunity within
the areas considered by Respondent to be 'European' and of the
development of any reasonable opportunities within prospective
'homelands' in the Territory."
Again, Mr. President, 1emphasize the factual nature of these allegations,
wliich, as the Court with be aware from a reading of out pleadings in
this regard-our Counter-Mernorial and our Rejoinder-are so directly
and strenuously contested by us as questions of fact.
At IV, page 380 of the Reply, still about education, which is now ele-
vated in the Reply tothe basic cornplaint from which the others emanate,
we find the following:
"Applicants contend that such policies have as their purpose and
inevitable consequence, restrictionof the 'Native' inhabitants of the
Territory to their isolated, pre-industrial, tribalgroups and that
such policies will exclude the 'Natives' from meaningful participa-
tion or consultation in the life-social,political, and economic-of
the Territory as awholc."
Comment is unnecessary, Mr. President.
1 can refer the Court to passages of a similar nature in regard to the
economic aspect at IV, pages 424 and 425. The conclusion stated at the
end of the.section on the economic aspect (at p. 424) reads:
"Applicants have demonstrated that Respondent's policy of eco-
nomic aPartheidis inconsistent with the Mandate inthat it degrades
and frustrates what Respondent is obIiged to promote."
.4t the very end of this conclusion, at page 425, we find the sentence:
"It [that is, apartheid] ref ects and assures domination of themany
by the few, of the iinderprivileged by the priviIegedof the ward by
the guardian."
Mr. President, that is the matter which was made the fundamental issue
of fact between the Parties-the question whether the poticy of separate
development envisages continued domination of one group by another,
or a development which will get away from any form of group domination,
the one by the other, the latter being the Respondent's case, asa matter
of fact, and the former the Applicants' case, as a matter of fact.72 SOUTH WEST AFRICA
In regard to government and citizenship, we find the following con-
clusion stated atIV, page 450:
"It is submitted that, by virtue of the policy of apartheid, as
applied in the Territory with regard to government and citizenship,
Respondent has failed in any degree to promote the well-being and
social progresç of the inhabitants of the Territory . . ."
That, I think, is çufficient,
In regard to freedom of movement, rights of residence and security of
the person, 1 refer to only two very brief statementç, in order to demon-
stratethe nature of Applicants' case. At IV, page 469, towards thebottom
of the page, we read:
"The inescapable fact is that the entire comples of legislative and
administrative restrictions implernenting apartheid by restricting
freedom of movement, residence, and security of the person is de-
signed for the convenience of the 'European' inhabitants of the
Territory. Aimost without exception, the provisions complained of
by Applicants in part 5 of Chapter V of the Memorials keep 'non-
Whites' and 'Whites' apart, except for labour demanded of the
former."
Again, Mr, President, this is the subject of a most strenuous issue on
the pleadings.
And then, finally, at page475 there ia statement in regard tothe Legal
Conclusions. It commences by çtating that "Applicants reaffirm the Legal
Conclusions, set forth in the Memorials", and so forth. It refers there-
after to the norm, but it begins with a forma1 reaffirmation of "the
Legal Conclusions, set forth in the Memovials"; and those, when one
refers back to them, b1r. President, in the footnotes given, at IV, pages
354-355. will be seen to include these factual allegations which 1 have
just read, and particularly the one that these laws and practices were
deçigned exclusively for the convenience of the mandatory Government,
or the "European" population, or both, and subordinated the intereçts
of the "Natives" to those interests and that convenience.
So, MI. President, the first question which arises and which, in Our
subrnission, or, at any rate, as far as we can see, has not been properly
clarified, is: dothese factual allegations still stand-these and sirnilar
ones-or do they not? Do they still stand on the record so as to leave to
the Applicants the best of two worlds-so that ifthe Applicants' case on a
norm might fail, these allegations rnight still stand there as an invitation
to the Court, or some of its Members, to pas a judgment on Respondent's
policies in terms of these allegations? That would, of course, be a contra-
dictory attitude to the one which was indicated before, namely that Ap-
plicants' case is that they must succeed on the basis oftheir norm even if
Respondent's policies as awhole were intended toenure,and in fact enured,
to the benefit of the population as a whole. But, >,Ir.President, as long
as we donot know what the position about these factual allegations is-
Le., dotheystand, arethey persisted in,or are they not persisted in?-we
have no clear answer to that contradiction. If clarity could be obtained
in that regard, then my difficulty might fa11away. But I should like to
point out that what the Applicants now have, in effect, is the best of two
worlds, inthe way in which they formulate their case in regard to this
norm. They ask the Court to deterrnine ori the basis of the suggested
existence of a norm. The norm is so forrnulated that it refers only to what ARGUMENT OF MR. DE VILLIERS 73
has now turned out to be a handful of relatively minor adverse aspects
of a policy-relatively minor, 1 Say, when they are considered in their
context, when they are considered in regard to their possible scope-in
regard to the possible number of persons whose lives may be affected by
them, and in the light of the total context of the policies as a whole.
I shall iiiustrate to the Court withregard to one of the examples used
by my learned friend how relatively minor such aspects are. My learned
friend referred the Court to the case of the engineer, and in his address to
the Court on the question of an inspection he made repeated reference
to this question of the disabilities placed upon Natives who wanted to
becorne engineers-how itwould affect them pemanently throughout
their lives, although the system might be subject to modification at some
stage in the future. And, he asked, what is the Court going to see in that
regard in South West Africa? Mr. President, let us see that matter in
perspective. The restriction is one not of the nature of a prohibition
making it impossible for a Native under any circumstances to become an
-engineer, or to practise as an engineer if he should obtain the necessary
qualifications through correspondence, or through going to a university
outside of South Africa, as the case might be; there is no prohibition
against his practising as an engineerifhe wishes to do so-no prohibition,
even, against a European being an assistant to him asan engineer; there
is nothing ofthat kind. In essence the whole incident, which has been so
blown up, relates only to the question whether particular students were,
in particular circumstances which obtained in 1959 in South Africa, to
be encouraged to take an engineering course at a university in preference
to other courses, and the considerations which played a part in that re-
gard were: what are the prospects for you ifyou should quaiify in your
course? There are many respects in which opportunities are specially
created for higher economic and professional endeavour on the part of
the Native-the non-White-and indeed of al1parts of the population in
South Africa and in South West Africa. In rnany of the spheres of theposi-
tive application of the policy of separate developrnent to the non-White
groupç in South Africa and in South West Africa the need is for leader-
ship-leadership not only in a political sense, but also in a technical sense
on thepart ofpeopIewho can serve the community in professionaland semi-
professional capacities. Therefore, a government exercising what it con-
siders to bea necessary, although an unpopular, control system in these
respects findsit necessary at a particular stage to Say "1 have to point
out tostudents that if they become engineers, the opportunities for them
are, at the moment, very Iimited" by reason, not of government policy,
but of social circurnstances existing in the comrnunity, by reason of the
fact that a Native engineer who qualifies would experience difficulty. 1
must make it clear, perhaps, to avoid confusion, that an "engineer" in
this context means one who is fully qualified as a professional engineer
through taking the necessary courses at a university for five years or
longer. There may be confusion because the word "engineer" issometimes
iised as designating various kinds of technicians; that is not the sense
in which it was used here. The difficulty that would apply in the commu-
nity, as was pointed out by the Minister, wouid be this: that if that
engineer should practise on his own he might find it difficult to do so,
because he would need assistants, and he would, as a fact, find that there
are no engineering assistants in the Native population, and that Euro-
peans would in al1 probability not be willing to serve under him. He 74 SOUTH WEST AFRICA
would have the difficulty that firms who would have to employ him if
he wanted to go into employrnent as an engineer, in the privatc sector,
and independently of government policy, would have that same difficulty
-that they would have to consider the difficulty: if we employ this man
as an engineer, who are we going to employ as assistant to hirn; are we
not going to have difficulties in that regard?
Jlr. President, that indicates the nature of this particular matter;
it indicates the real purpose at which it was aimed. It was a matter
raised at a particular stage, and was an indication to the student that
there were other spheres in which he would have much wider scope-in
which he would have a protected scope-for the application of whatever
qualifications he might get.
A further indication,Mr. President, of the nature and the scope of
this factor relates to the number of individuals that could possibly be
affected, and to the time forwhch they could possibly be affected. ive
made enquiries in South Africa to the bestof Ourability, and if necessary
we couId produce evidence about it. We found that up to the time of
this speech, which was 1959 ,f 1remember correctly, there was no diffi-
culty or impediment in regard to Natives becoming engineers if the? so
wished. Despite the fact that there areinSouth Africa over 3,000 Katives,
who graduated rituniversities in one branch or otherof learning-it may
be stated inpassing that most of them are in constructive employment
or occupation; and that their number compares most favourabiy, hlr.
President, with the rest ofAfrica-it has been established that that num-
ber exceeds the total number of graduated Natives of Africa in the whole
of the rest of what was formerly British Africa-in al1 those territories
which were comprised in that concept-yet, as far as we could ascertain,
of al1 those 3,000 there was only one who had qualified as an erigineer.
1can mention this fact also, on which there can be evidence, if neces-
sary-perhaps the Members of the Court have more knowledge about it
than 1-1 spoke to an engineer in South Africa who does work ail over
Africa-al1 types of engineering work-and cornes into contact with the
engineering profession wherever itexists in al1 territories of Africa. He
has taken a specialinterest inthi satter and he assures me tliathe has
never seen or heard of any Bative engineer in any territory of Africa.
There may be one, or a few, somewhere but he does not know of any-
that is engineers in the sense we are speaking of.
In South West Africa the first Natives to rnatriculate through the
ordinary channels of schools did ço in 1960,if I remember correctly-a
year after this particular speech. A handful had qualified before that
through correspondence courses and so forth.
SO, Mr. President, that gives an indication of the possible scope and
effect ofa measure of this kind. Nobody has said that if circumstances
develop in such a way that there will be proper scope for the services
of Native engineers in the circumstances of South Africa or South \Vest
Africa, that theneed\vil1 not be properly met. In fact, the whole implica-
tion, the whole purport, of al1 the statements about the relative policy,
the whole rationale of it, al1point in the direction that that is to be en-
couraged, provided there is the necessary scope.
WIien we speak of schernes for engineering development-the building
of roads anddams and so forth-in Native homelands, çuch as the Tran-
skei when we think of water schemes-hydro-electric schemes, irrigation
schemes, through pumping systems and what not-in South West Africa, ARGUMENT OF SR. DE VILLIERS 75
in Native territories, when we think of the erection of new townships on
modem lines, in which the necessity for a proper layout, for reticulation
systems, water and sewerage and so forth would exist-when we bear al1
these things in mind, it becomes apparent immediately that the scope is
trernendous; a protected scope in tems of this policy for Native engineers
of the future. when the present phase of difficulties has been overcome-
this particular stage of development has been superseded.
Yet, Mr. President, my learned friend's norm is of this nature that
he Iooks at an element of that kind in the policy and he takes a few others
and heçays: well,here they are;youlook at these only; you do not look at
anything else in the policy; you do not look at campensatory factors;
you donot look at any factors in the policy which createopportunities for
these people in exchange for this particular one; you do not look at the
question whether politically and socially any alternative policy could
work in the Territory at all; you do not have regard to the contention,
which is raised so strenuously by Respondent, that if any other course
were to be adopted in South West Alrica, the only possible, practicable
course would be one tending in the direction of integratian between
al1the peoples of the Territorÿ (that is indeed the very course being ad-
vocated by the Applicants in their pleadings and by these international
bodies to which they have referred) and to the fact that the South African
Government says, and says on very good evidential grounds, that that
course is likely to lead to complete chaos and misery for al1the peoples
concerned. In order to avoid that-in order to have this policy which
involves the very difficult task of balancing confiicting interests, in
trying to draw dividing lines where necessary, in order to create a basis
for harmony and CO-operationbetween al1theçe peoples the said Govern-
ment has in some ways to do things which are unpopular. It has, in some
ways, to draw a boundary line which affects particular individuals.
Its decisions in that regard rnaybe such, in particular instances, that
everybody would not agree with them. And very often people do not,
in fact, agre: they protest and they think that the particular decision is
wrong, very often not knowing al1 the facts.
Sometimes it may be wrong, sometimes it may be unnecessary for
the particular situation. It is a difficultprobIem which is similar to
problems encountered in any situation in which an authority has to
exercise, oroperate, a control svstem.
If intirnes of scarcity there ;s a rationing system in a country, or a
system of irnport control, or both combined, everybody rnight be agreed
on the necessity for having that control system; but who has ever heard
of everybody being satisfied with every decision taken by çuch a control-
ling authority? The controlling authority has to take its decisions. Very
often they are unpopular and somebody else thinks: 1 would have
decided this or that point differently.
Rut, Mr. President, that is the rationale of the policy with respect
to these isolated, negative aspects. The are considered necessary as
part and pareel of this whole policy whicg is intended for the benefit of
the whole of the population. Incidentally it is showing spectacular results
in that respect.
But my learned friend says no. His norm is such that that view of the
situation is impossible. He says: we must look only at the negative.as-
pects, even if they be only a handfül, and the rest becomes irrelevant;
the organized international comrnunity ha5 passed its value judgrnent76 SOUTH WEST AFRICA
and the Court is to act as a rubber starnp; these other things are not to
be considered, they just blur the picture.
In that regard my learned friend still relies upon what he calls the
"revulsion" expressed by other peoples, by other governments, by organi-
zations, at this policof apartheid. He wantç to introduce this, Mr. Presi-
dent, into a discussion of a pure legal norm. He wants to have the full
psychological benefit of that descriptionf the situation, and then retreat
into his
sheli and Say: but the Court must please not instituteba full
enquiry into these facts to see whether that value judgment is justifiable
or not ;the Court must accept the judgment of the organized international
community, it must decide on the basis ofa norm that excludes considera-
tion ofthe positive aspects of a policy and concentratesonly on a handful
of negative aspects.
That iswhy it isso important, Mr. President, to have absolute clarity
in thiç respect. Do the Applicants stil rely on these allegations which 1
have read from the record; do they stiIl stand as part of their case; do
they still stand there as a basis on whichthe Court maybe asked to pass
a value judgment on our policÿ,ifhiç norm should not succeed? Do they
therefore, in effect-with regard to the attitude which Applicants take
about evidence and about an inspection40 they stand there as an in-
vitation that the Court is tomake some finding on soine basis or another
on what it has before it in that regard, without availing itself of the op-
portunities offered by the Respondent for making a proper and a full
factual enquiry?
That. Mr.President, is a matter which Isuggest still requires clarifica-
tion.
Then there is another factor. The norm is not stated as being the only
basis upon which the Applicants rely. They indicated in the verbatim
record at page 44, sufiru, that theyhave an alternative;and my learned
friend in his formulations this morning, by implication, clear1y referred
to that alternative, namely standards, as an alternative to a nom.
Now I am afraid that wehave no clarity yet as to what those standards,
on the basis now put to the Court, entail.
The Applicants refer at page 44, supra, to "Respondent's tlieory of
the case, as now understood by the Applicants". They proceed to sa!r:
"Such a theory, as we now understand it, particularly in the light
of Respondent's statements made during Oral Proceedings, isbased
upon the proposition that, although no international legal norm ex-
ists relevant to the interpretation and application of Articl2of the
Mandate, there nevertheless do exist international standards appli-
cable,and that Respondent's obligations undcr the sacred trust may
be judged in accordance with them. The Applicants respectfully
submit that, in such event and on that basis, the undisputed facts
of record likewise would establish a violation of such international
standards, as described by Respondent, and that the Court should
adjudge the Applicants' subrnissions in accordance therewith in the
event that the Coiirt should decide against the Applicants' conten-
tions that an international legal norm does exist, and is applicable,
in the terms and in the manner contended for by the Applicants."
SO, we have the alternative that ifthe Court should decide against the
contention of the Applicants about the international norm,then the
Court is stiIl asked to find on the basis of applicable international stan- ARGUMENT OF MR. DE VILLIERS 77
dards. It has,I am afraid, not been made clear on what basis it is sug-
gested that those international standards would be applicable.
The Applicants refer to such international standards "as described by
Respondent".
Now, Alr. President, it will be recalled (1 need not state the argument
again, 1am stating the effect ofthe argument, that we delivered to the
Court in that respect), that we say that when one speaks of standards
one speaks of matters, or precepts, which are not per se binding in law-
that is the distinction ~vhich we draw between standards, on the one
hand, and norms, on the other.
We admitted that standards of governmental practice and policy of
fairness and equity in that regard, do exist in modern circumstances-
standards practised by governrnents, standards spoken of by govern-
ments, standards mentioned by moralists, by various scientists in the
social, the political and the natural sciences, and by various other com-
mentators. We pointed out that they, in themselv-es, are not binding in
law but that they could have an effect in a value judgment if, for instance,
this Court were to deterrninethe case on the basiswhich we suggested as
the only relevant one in law, namely whether Respondent's purpose is
bona fide an honest one for promotion of well-being and progress.
Weindicated how standards could help in that regard, Le., that ifRe-
spondcnt could be said to be out of step with the whole of the modern
world in respect of the applicable standards then that might be an in-
dication which could assist the Court in coming to a conclusion that per-
haps the Respondent's purpose is not an honest one. We indicated also
that that type of allegation would again necessitate a full enquiry into
al1 necessary facts, into the content of the suggested standards, into
whether the standards are quaiified,whether they areabsolute, how they
apply, ivhether they are justifiableinfact, or not, or whether they would
be subject to modification u~ithexperience.
Then where there is a conflict between the Respondent's policies and
practices, on the one hand, and those standards, on the other, one has to see
what the conflict consists of. Does it relate to the basic underlying pre-
cepts of justice, fairness or rnorality which are involved, or does the
conflict relate pureiy to questions of method which could not, in any
true sense, be elevated to standards?
That was the sense in which ive suggested that standards could be
relevant in such an enquiry. If rnylearned friends speak of standards,
as described by the Respondent, do they suggest then that the Court
is to indulge in that kind of enquiry, despite the fact that they said
repentedly in other instances that their case does not rcst anproposition
of mala fides in thüt sense?
Or have they some other alternative basis in mind, Mr. President,
for the application of these standards? If so, would that basis be one
which lets in any cnquiry into facts, or ~ould it not be such a basis?
And if it ~vouldnot be such a basis, thenwhat is the basis upon which
they suggest that these standards u~oulclappIy? That is the other matter
which, 1 submit, still requires clarification before we can know with
certainty that a factual enquiry of the type envisaged is and would be
irrelevant.
Then, Mr. President, there is this otlier factor, namely that of the
contents of the norm relied upon by the Applicants. 1 pointed out
before that the definition of the norm ai IV, page 493 of the Reply78 SOUTH WEST AFRICA
appeared to indicate an absolute norm-ure made it clear tliat we
understood the definition in that way and indeed my learned friend this
rnorning confimed our understanding when he said that the definition
is intended in that \ïray.hlay I just refer to the wording again-
"... the terms 'non-discrimination' or 'non-separation' are used
in their prevalent and customary sense: stated negatively, the
terms refer to the absence of governmental policies or actioiis urhich
allot statu, rights, dutics, privileges or burdens on the basis of
membersliip in a group, class or race rather than on the basis of
individual merit, capacity or potential: stated affirmativcly, the
' terms refer to governrnenta1 policies and actions the objective of
which is to protect equality of opportunity and equal protection of
the Iaws to individual perçons as such." (IV, p.493.)
That indicated, Mr. President, no qualification to the norm nt all.
Although the terms "non-discrimination" and "non-separntion" were
used, by description they, in effect, referred to the absence of nny dif-
ferentiation on the basis of mernbership of groups or classes or races, as
described. That is the sense in which we understood it,that is the sense
in which we made it clear in Our Rejoinder that we understood it, that is
the basis upon which Ivesaid that if the Court were to find that this nom
is binding on Respondent then it would find in fnvoiir of the Applicants
independentl , and even in the eveiit of the policy aa mhole enuring to
the benefit Or the population as a whole.
Now, in the coiirse of hiç nddress on the legal argument, my learned
friend indicated (1 forget the date of the passage, but 1 referred to it
.before and tlie Court will be aware oit),that he no longer regarded that
norm as being an absolute one, Le., as relating to differentiation abso-
lutely and per se. He indicated quite clearly that there mas to be intro-
duced a qualification which he then very vaguely and broadly referred
to as one of protection being authorized, but not compulsion. 1 do not
have to refer to the terms of it because we have a further explanation on
record, and that first refereiiccwas a very bald and a very broad one.
It was in VIII, at page 262.
Now, in reply to the first part of the question put by Sir Gerald
Fitzmaurice on 28 April. my learned friend reverted to this question.
In the first part of the question, itmay be recalled, blr.President, it
was, amongst others, specifically asked-
"... is the Applicants' contention about 'a artheid' to be under-
stood in the rense fhat a policy of group cherentiation is in al1
circumçtances, necessarily and in ilself. contrary to Article2 of the
Mandate, irrespective of any other steps taken by the hlandatory
for promoting the welfare of the inhabitants of the Maiidated
Territory?". (VIII,p. 22.)
My learned frierid's reply to that, and also to the second part of the
question which went on to pose the supposition that "ifthe Applicants'
contention does nof go so far asthat, and if there may be circumstances
in which measures of group differentiation might have some justifica-
tion" (ibid), went on to indicate, at page 44, supra.that "a policy which
differentiates aInong individuals as such, or as rnembers of identifiable
groups, would be permissible and indeed desirable in appropriate circum-
stances". ARGUMENT OF LIK. DE VILLIERS 79
Therefore, &Ir. President, the norm is now not an absolute one, it is
not one which would apply necessarily and per se,in itself, to al1cases of
difierentiation on the basis of groupand so forth. And my learned friend
indicated :
"We have in that connection cited the minorities treaties, arnong
other examples, in which it is just, prudent, wholly desirable for
governments to take account of differences between individuals and
between individuals as rnembers of groups, thereby leading to the
conclusion that differences are permissible with respect to the
treatment of groups as such." (P. 44 supra.)
But, Mr. President, the passage proceeds :
"There are instances known to al1of us inail of our countries of
such examples of differentiation of groups, the protection of minors,
the protection of other segments of the population, arranged in
accordance with their choice-normally-sometim bes reason of
other considerations, in which their choice where possible, plays a
very important and, indeecldecisive role-theirchoice as individuals."
Xow, 1 shall just analyse that for a moment. The exceptions mentioned
are clearly not stated as being exclusive. My learned friend does not
attempt or purport to define al1 circumstanceç in which exceptions !O
a norm of non-differentiation might be permissible. He mentions certain
exceptions and he mentions, in that regard, the important element
played by choice nornzally, but he also indicated, "sometimes by reason
of other considerations" (italics added), and these are, forthe moment,
not defined. My learned friend prcxeeded that "The problem therefore,
in the Applicants' respectful submission is not summarized in terms of,
or is jt ansiverable in terms of, the expression 'group difFerentiationJ,
except in a sense which is mutually understood between the questioner
and the responder. There is, in this case, no submission on the part of the
Applicants, which condemns or attackç, or criticizes, differentiation
between individuals as such, or as members of groups, in, for esample,
the aspects which 1 have mentioned as illustrations" (p. 45, szt#r~)
again making it clear: "for example", "aspects which 1 have mentioned
as illustrations".
Then my learned friend \vent on to say that for that reason our
description ofnon-differentiation was not a good description of the norm
at all, and he said, further, that-
"The Applicants' formiilation relates to the policv of discrimination
and separation, and tlie distinction is more than a verbal one
between those words and the general concept of differentiation.
Members of churches, organizations of various kinds-1 have men-
tioned minors, those of non-age and so forth, as groups are differ-
entiated among and within themselves frequently intermsof thepro-
tection which they are offered as a matter of good government and
clecent society. This is just part of the human condition and human
experience."
Rut then cornes the contrast, >Ir. President:
"A policy of diffei-entiation, however, ïvhich aliots rights, burdens,
status, priviteges, and duties on the basis of membership in a group
by reason of race, colour or othcr circnmstance of a similar nature,
whether called ethnic, tribal or othenvise, on such a basis, wvhich80 SOUTH WEST AFRlCA
does not pay regard to the individual quality, capacity, merit or
potential is, in the Applicants' view, an impermissible premise and
an imperrnissible policy at al1 tirnes, under al1 circumstances and
in al1places." (P. 45, szipra.)
Now, &Ir.President, Ive have, on the one hand, the statement of sorne
esamples where group differentiation "would be permissible, and irideed
desirable, in appropriate circurnstances". We have, on the other hand,
the stateinent that what is described as discrimination and separation,
as defined here,whe~ino regard is paid to individual quality and so forth,
is impermissible at a11tirnes, under al1circumstances, and in al1 places.
Now, what is the suggested dividi~ig line tabe? That is not clear to us
yet. 1s it to be a dividing line of fact, involviragvalue judgment of the
Court to the effect that this is a case in which group differentiation
serves a good purpose or a bad purpose, or that it has, or is likely to have,
a good effect or a bad effect? 1s that the basisofdistinction between the
perrnissible and the impermissible, or what isto be the basis? What is the
role pIayed by this formulation: "on such a basis as doeç not pay regard
to the individual quality, capacity, merit or potential?" Is it an assump-
tion, Mr. President, that as soon as you base your differentiation on
membership in a group tlien that does not pay regard to individual
merit or capacity, or does it involve an independent factual enquiry
into the totality of a particular situation, to ascertain whether the
distinction is of such a nature, of such a purpose, or of such an effect
that it does or does not pay regard to individual quality or capacity?
Those things are still not clear.
If the qualifications ithe norm itself are to be such that the Court is
to indulge in a factual enquiry, then it would,purexcellence,be necessary,
Mr. President, to have this further enquiry into the facts, and the
evaluation of the facts, which we envisage by way of evidence and by
way of an inspection. But if my learned friend makes it clear that that is
now no longer his case-that that is not contradictory to what he said
this morning, when he again reverted to his norm as defined at IV,
page 493 of the Reply, and when he reverted to our statements in that
regard that the norm would then apply independently and irrespectively
of whether the Court found that the policy as a whole enured to the
benefrt of the whole of the population-then, of course, if that can be
made clear, it seems that it would purely be a question of adjudication
whether the norm exists or not, and this particular difficulty would fa11
away-the possible factual enquiry involved in an application of the
very norm for which my learned friend contends.
Therefore, &Ir.President, applying, by way of surnmary, these remarks
which 1have made on the question of hearing witnesses and the question
of having an inspection, it is submitted that the hearing of such evidence
and the holding of such an inspection could be necessary in variouç
eventualities. It could be necessary, firstly. if there should still, on the
basis of the factual allegations that still stand on record, be an invitation
on an alternative basis, to the Court to make a value judgment con-
dernning Respondent's policies on a factual basis, whether in regard to
its purpose or its effect,or both. That, for the reasons 1 indicated this
morning, we understand has faIlen away, although my learned friend
has not clearly said what his attitude is in regard to those çtatements
still standing on record.
Secondly, if the very existence of the norm, Mr. President, is sought ARGUMENT OF MR. DE VILLIERS 81
to be justified-the existence or the creation of the norm or the content
of the norm is sought to be justified on a factual basis which relates,
inter dia, to disputed allegations in regard to South West Africa-in
other words, if the Court is to engage upon an enquiry whether such a
norm is a factually valid and a justified one-then, of course, it would
still be necessary to have expert testimony in that regard, and partic-
ularly expert teçtimony relating to South West Africa and other terri-
tories and people in Africa. We understand, Mr. President, that that
possibility also falls away. As my learned friend says, that question of
justification for the norm is not to be decided by the Court, it has been
decided by the organized international community and the organizations
referred to. That is an understandable legal contention, whatever its
merit may be, and whatever its moral effcct rnay be on the whole factual
situation in this case.If in municipal law there were to be Say, a law of
Parliament, an Act of the legislature, has proceeded on a certain factuaI
assurnption, which has incorporated a certain norm into the Statute and
has made it the subject of a peremptory provision, then a person who is
accused of contravening that statutory provision cannot come to court
and say to the court: "Well, the factual basis upon which this norm was
taken up by Parliament aiid put into its Statute is an erroneous or a
false one and, therefore, 1 am not guilty of contravening this Act of
Parliament." The court would then Say to him "But Parliament exer-
cised that judgment, Parliament made this percmptory provision, and 1,
the court of law, must apply it and you, as somebody to whom the law
applies, must obey it. It is for Parliament to review the situation and
when Parliament finds that this norm isnot a sound one, then the
Statute itself is tbe repealed or modified." The same is possibly true in
tlie case of a contract; a contracting party cannot come and Say: "Our
bargain mas a bad one and for that reaçon 1am no longer to be baund to
the obligations."
>Zr.President, it seems, in effect, that that is the nature of the AppIi-
cants' contention here. My learned friend in effect says that in some way
or other an alleged vicw on the part of the organized international
communitjr, as he calied it, must be seen as creating ci law, a norm,
whicti is to appIy here, and whether that judgment was a good or abad
o~ieis not for the Court to decide. Even if the Court çhould think it was
bad, that judgment is binding upon it,it has created a norm which is to
apply Iiere. If that is the sole contention, then of courseMr. President,
the factual enquiry or the need for it would fa11away and it would be
merely a question of decision by the Court whether in law such a con-
tention could possibly be sound-but we are not concerned with that
for tlie moment.
Ifthat is the position, the only further point that fie would have to
make clear, Mr. President, is that in support of his norm he no longer
relies upon what he calls the "ovenvhelming weight of scientific author-
ity", because that is an aspect upon which again, as 1have pointed out
to the Court before, there is a vital dispute of fact between the Parties on
the record, viz., as to what isthe overwhelming weight of scientific
aiithority in this regard.If my learned friend relies on fnctual justifica-
tion for his norm, then obviously we woutd like to bring in that evidence
on our side and that evidence might well be very vitallp illustrated by
esamples and by what one can see in South West Africa and in other
parts of Africa. But if my learned friend makes it clear that al1 that82 SOUTH WICSTAFRIC.4
would not be relevant, aiid he appcars to do so, Alr. President, if tltat
could be absolutely, firmly established, then, of course, this difficulty
xi-ouldIall away.
The third possibility, in which the factual eriquiry through evidence
and ail inspection may be necessary, would be on the basis of the alter-
native in regard to standards. My learned friend would have to make
clear exactly what he means in that regard.
The fourth possibility would relate to the very application of the
suggested norm in a qualified form. That would require a factual en-
quiry and a vaIue judgment on the part of the Court. Again it seems, in
the light of what my learned friend said this morning, that those quali-
fications may no longer appear to be adhered to; and itwould seem that
he noiv says that in the making of allotments, differentation fier se must
be regarded as being violative of the norm.
Ifclarity could be obtained, Mr. President, oii al1these aspects of the
matter, then the need which we envisaged for the evidence and the
inspection would fa11away; but that is an important proviso. 1 cannot
take the responsibility of saying that on what 1 have heard thus far, my
leamed friend's case is indeed crystal clear in regard to theçe questions
and queries. It would, with respect, be a matter for the Court on which
to çatisfy itselfif the Court should also feel thatfurther clarification is
required, through the asking of questions or otherwise. The Court lias,
with respect, facilities at its disposal which 1 have notIfthe Court could
be çatisfied that no factual enquiry on any one of these alternative
bases would be necessary, and could make a decision to that effect, then
the whole basis for the leading of evidence or for an inspection as I
envisaged them thus far lvould fa11auTay,but that finding on the part of
the Court-that satisfaction which, with respect, the Court \170uldhave
to attain for itself-would have to make it quite clear, Jlr. President,
that the Applicants' case leaves no basis upon which the Court coiild
find adversely to the Respondent on the factual allegations, Le., no
possibility that the Court could itself still pronounce an adverse factual
judgment cither on the basis of purpose or on the basis ofeffect, or even
on the basis that the Court rnight assume the correctness of the aclvcrse
factual allegations which stand on record and which are of the Iiatiire of
a condernnation on a value basis of the policy as a.whole.
If the Court could satisfy itseIf that thatiçthe position, that tl~ere is
nothing further left which could provide a basis or a necessity for a
factual enquiry or which could leave a basis for a Court upon \vhicli to
make a finding, then the question will solely be a legal one: do thc norm
as now contended for and the standards as now contended for, esist, do
they bind the Mandatory7 \Vhat legal justification is there for the
argument? That would have to be the implications ofthe Court's finding.
On the other hand, as long as it appears, even on a contingent basis,
that there may have to be an enquiry of that nature, then my application
and rny tendering of the evidence must stand.
Nr. President, that concludes the general remarks 1 wish to make on
this subject of relevancy and I think that is the crux of the natter.
There are matters of practical detail which u7ould now have to he dealt
with only on a contingent baçiç, 1 do not know whetlier the Court would
Iike me to continue with those when it resumes, or whether it ivould
prefer to leave those over for further consideration, after we have had
further clarity about the legal aspects. 1 could adapt myself to either of
those possibilities. 13. ARGUMEKT OF >IR. GROSS
AGEST FOR THE GOVERBMENTS OF ETHIOPIA ABD LIBERlA AT THE PUBLlC
HEARIKG OF 3 MAY 1965
Mr. President and Members of the honourable Court, during the pro-
ceedings of 30 April 1965 following the reply of the Applicants to the
question addressed to them by the honourable Preçident on 28 April
1965, Respondent preçented to the Court a reply on the issue ofthe
request by the Respondent for inspection.
In its address to the Court, Respondent adverted to the possibility
that, in the light of the Applicants' response to the question of thhon-
ourable President-and possibly aIso in the lightofother arguments ad-
vanced by the Applicnnts-the factual enquiry envisaged by Respondent
bot11 in regard to the prospective calling of witnesses and in regard to
inspection, might, after all, be legally irrelevant to an adjudication of
the çubmissions alleging breach of Article2,paragraph 2,of the Mandate
and Article 22 of the Covenant of the League of Nations.
In the comrnents which follow, Mr. Presidcnt, the Applicants address
themselves to the queries propounded by Respondent in the course of
its address to the Court on 30 April 1965. These queries are to be found
in the verbatim record, supra, pages 66 and followirig. The Applicants
will endeavour to keep iil mind that the Coiirt is now considering solely
the request of Kespondent for inspection, and that the Applicants are
not now called upon, nor may they appropriately at this stage endeavour,
to resume the argument on legal issues, which argument has been sus-
pended in order that the Court ma' give consideration to Respondent's
inspection proposal. This is,in any event, the situatioas the Applicants
understand it. Thisposture of the proceedings inevitablycreates a certain
difficulty of selection of such considerationas may be reasonably rele-
vant tothe inspection proposal as such, without on'the one Iiand iinduly
anticipating the resumption of argument on the legal issues, which is
still under way, and on the other hand, producing sufficient clarity and
completeness sothat the Court may consider and decide upon the inspec-
tion proposal itself.
Bevertheless, on the basis of considerations which the Applicants \vil1
endeavorir to make clear, discussion of the inspection proposa1 rnay be
helpful to a fuller understanding of the Applicants' conçistently held
theory of the case and certain fundamental issues underlying that theory.
Turning now to Respondent's queries with regard to clarification, and
its appropriate suggestion of the necessity to thcse proceedings ofolute
clarity, in al1respects, the Applicants staby pointingout that the sub-
missions, asset forth in the Mernorials a1,page 194 ,pen with a request
for adjudication and relief in respects set forth in the submisçions,
"whether the Government of the Union of South Africa is present or
absent".
The .4pplicants considered then, as they do now, that the Illemorials
made out a prima facie case of breach othe Mandate.
With respect to Submissions 3 and 4-those immediately relevant to
Respondeiit's inspection proposal-the Applicants have advised the84 SOUTH WEST AFRICA
honourable Court that described laws and regulations, and the officia1
rneasures and methods by which they are put into effect in the Territory,
the existence of which is conceded by Respondent, constitute a fier se
violation of the sacred trust and, more particularly, that embodied in
Article 2, paragraph 2, ofthe Mandate for South West Africa.
The Applicants, therefore, rest their case on the basis of such laws,
regulations and officia1methods and measures of implementation, which
comprise the policy and practice of apartheid, and the Applicants limit
themselves to those laws, regulationç, rneasures and methods, the exis-
tence of which is conceded by Respondent.
The Applicants contend that apartheid constitutes a per se violation
of Article z, paragraph 2,of the Mandate. The characterizations of Re-
spondent's policies and practiceç which comprise apartheid, as they are
set forth in the Applicants' pleadings, are those which, the Applicants
understand, correspond to the judgments reached by the organized inter-
national community and its constituent institutions.
Inthe Applicants' written pleadings, they havecharacterized apartheid
in a manner identical with or analogouç to characterizations which have
been made over the years by competent international institutions dealing
withproblems of racialdiscrimination, and most particularly,althoughnot
exclusively, the organs of the United Nations and its specialized agencies,
includingof course the International Labour Organisation. The judgments
of these international institutions aset forth in the Applicants' pleadings
at sorne length. They present the Court witli evidence of the existence
of the internatio leaal norm and international standards for which the
Applicants contend. That norm, and those standards,are precisely the
outcome of the colIective processes of the cornpetent international in-
stitutions. It is the competence of such institutions to render authorita-
tive characterizationsof Respondent's policies and practices inthe man-
dated Territory. It is these policies and practices which, as the Applicants
have repeatedly pointed out, iinderlie the Applicants' contentioii that
apartheid is fierse a violation of Article z of the Mandate, and which
accounts for the characterization thereof in the Applicants' pleadings.
The laws and regulations. and the methods and measures of tlieir im-
plementation, the existence of which is conceded by Respondent, have
been characterized by Respondent in its address to the Court as "a hand-
ful of relative minor aspects of a policy", a figure of speech repeated with
variations in the proceedings of 30 April 1965.
Mr. President, 1 will Say with regard to that commerit only that the
Applicants obviousty donot share thiç view of the matter, and rnoreover,
more to the point perhaps, arguments on the merits have not yet com-
menced. The Applicants turn to another matter, as to which they under-
stand Respondent has made a renewed query with regard to clarification.
During the Oral Proceedings of zS April 1965, Respondent requested
clarificationof certain matters. One of these \cas that certain conse-
quences relevant to the inspection proposa1 and the calling of witnesses
might follow-
"If they [that is, the Applicants] can demonstrate that they rely
solely on a norrn, oon norms and standards of a technical nature-
technicalin the sense that it or the!* prohibit differentiation accor-
ding to some definition which applies irrespective of whether the
differentiation, in fact, has a good or a bad objective,or good or a
bad effectin regard to well-being and progress." (P. 54, serpr~.) ARGUMENT OF MR. GROS5 85
On the same day Respondent likewise requested clarification as to
the question whether Applicants' case does or does not cal1 for what
Respondent called a "value judgment" by the Court with respect to its
policies. Respondent explained its use of the phrase "value judgment"
as follows:
"What 1 rnean by a value judgment in that regard iç a judgment
which would relate to the question whether those policies are good
or bad, in relation to promotion of well-being and progress-good or
bad in respect of their objective, or in respect of their effect in that
regard, or in respect of both." (P. 54, supra.)
The Applicants sought to address themselves to the foregoing queries
immediately foiiowing their response to the questions addressed to them
by the honourable President. The AppIicants' remarks \vil b1 found in
the verbatim record, supra, pages 63 and following.
Querieç posed by Respondent on 30 April referred, inter alia, to the
Applicants' responçe to a question put by Judge Sir Gerald Fitzmaurice
on 28 April 1965, which is set out in the verbatim record. In this connec-
tion, Respondent appeared to be rcnewing or restatjng its query con-
cerning the bearing, if any, of the Applicants' theory of the case upon
the question whether it would involve the Court in a so-called value
judgment, as to whether "group differentiation serves a good purpose or
a bad purpose, or that it has, or is likely to havea good effect or a bad
effect". That is in the verbatim record, at page 80, stlpra.
Mr. President, ifthe Applicants understand aright, accordingly, Re-
spondent has renewed its query regarding the necessity, if any, for a so-
called value judgment,although thequery is expressed in slightly different
terms than the formulation of the query on 28 April 1965. In partial es-
planation of the basis of itsrenewcd query, Respondent referred to the
Applicants' comment concerning minorities treaties in the course of the
Applicants' response to the question of Sir Gerald Fitzrnaurice. 1refer to
the verbatim record, at page 79, supra.
Respondent appears to understand the Applicants' contention to be
that the minorities treaties are to be regarded as "exceptions" to the
international legal norm and international standards described by the
Applicants as that of "non-discrimination and non-separation", as defined
in the Rcply at IV, page 493. Respondent Iikewise characterizecl the
.4pplicantsf view of the minorities treaties and other examples, in the
same verbatim, not only as "exceptions", but also as "qualifications of
the norni itself". (VIiI,pp. 663-664; p. 80, supra.)
In this context, Respondent has repeated its use of the term "norm
of non-differentiation" which, as the Applicants have pointed out, does
not appropriately describe the norrn and standards for which the Ap-
plicants contend. The Applicants clarify this point not as a rnatter of
mere terminology, but, as will appcnr, in order to aid in clarification of
underlying considerations, which the Applicants will endeavour now to
set forth.
As has been said, Respondent appears to understand the Applicants'
position to be that the minorities treaties, for exarnple, stand as excep-
tions to, or qualifications of, the norm of non-discrimination or non-
separation. On such an assumption, Respondent cites the minorities
treaties apparently for the purpose of showing that no such norm or
standards as those forwhich the Applicants contend cxist, or, if they do86 SOUTH WEST AFRICA
cxist, are not of the content or scopc described by the Applicants. Ke-
spondent also appears to suggest that if the Applicants conceive the
minorities treaties to be exceptions to, or qualifications of, such legal
norm andior standards, it would follow that difierentiation on the basis
of membership in a group is permissible under certain circumstances and,
hence, that the Court should make a "value judgment" concerning
whether an exception likewise should be made with respect to the policy
of apartheid. That is the way the Applicants understand the Respondent's
position.
The Applicants, in fact, cite the minorities treaties, notas exceptions
to the norm of non-discrimination, not as amendments of qualifications
tlierein, or thereof, but as an element relevant to an understanding as
to how the norm and standards have developed in the international or-
ganized cornmunity. It is for this reason that it seems relevant to point
out that the Applicants' view, concerning the true distinction between
the nature and purpose of the rninorities treaties and apartheid, in rela-
tion tothe international legal norm and international standards governing
.Article2, is confirmed by, and reflects, the judgment which has been
made by the competent international institutions speaking for the orga-
nized international cornmunity.
The word "differentiation", accordingly, appears to be used in different
senses, or, in any event, to reflect a wholly divergent significance asbe-
tween the Parties to these proceedings. That sucli divergence isseriously
held, and sincerely contended, on both sides, is not questioned by the
Applicants, so far as Respondent is concerned. \Ve know what we think
wc mean by it. On the contrary,the question arises: what is the source
of the divergence, which is a striking one, and which could only account
for the contrast in the treatment accorded by the respective parties to
the relevance of the minorities treaties and their çignificance in these
proceedings?
At an earlier stage of this discussion, the Applicants referred to the
obvious, and, in the Applicants' view, inescapable difficulty confronted by
Respondent in its effort to demonstrate what facts would be relevant to
judicial enquiry irzloco, or elçewhere. Reference was made to repeated
use by Respondent of çuch generalizations as "al1 the facts", or "al1 the
facets". The same difficult y (which is inescapable, in the Applicants'
respectful view) is manifest from Respondent's use of the expression "al1
necessary facts" in Kespondent's addresç to the Court on 30 April in
which it posed its queries for clarification(Supra, p. 80.)
From a legal and a Iogical point of view, it seems to the Applicants
that such a generality begç the question. Unless the Court is cognizant
of the facts or facets which it would be looking for, or Iooking at, or
listening to, in a judicial enquiry either by inspection or auditionofwit-
nesses, the purpose of such an enquiry would be obscure, and it would be
impossible for the Court to determine where to go,how long to stay there,
what to do when they got there, or how often to return.
These considerations, in the Applicants' view, have a direct bearing
on Respondent's query concerning the nature of the judgment, ifany,
which the Court isasked to make on the basis of the Applicants' theory
of the case. In the Applicants' view, certain judgments would, indeed,
have to be made by the Court, but these urould relate, hlr. President, to
the purpose and relevance of the enquiry itself.
Such judgrnents by the Court \vould necessarily presuppose certain ARGUMENT OF MR. GROSS 37
considerations or reflections fundamental to the theory of the Applicants'
case and of the Respondent's theory of the case, as well, as the Applicants
understand it, And it is in this sense, and for this reason, that although
in our respectful view the inspection proposa1 was laid before the Court
out of context in an untimely manner, it ncvertheless may have served, .
or may yet serve, to clarify fundamental propositions as to which the
Applicants would now like to submit, with respect and with humility,
their reflections concerning the basic issues with which this momentous
litigation deals.
The co~isiderations to which the Appljcants refer in this connection
relate to the clearly divergent views between the Applicants and the
organized international community, speaking through its competent
organs, on the one hand, and Responden t, on the other, concerning the
roIe of the individual, the group and the social order. The Applicants
and the international community, speaking through its competent or-
gans, on the one hand, and the Respondent, on the other, view these
inseparably related factors of the individual, thegroup, and Society, from
wholly different perspectives.
The Applicants believe it necessary, in this context, to undertake to
comment, as briefly as possible, upon the character of this divergence
of perspective.
Another fundamental divergence relates to the nature and sçoye of
international institutionswith regard to the development of Iegal norms
and standards, and the basis upon which such norms and standards are
applied in the international order, nascent as it is. The significance to
these proceedings of this latter divergence of view, with respect to the
function and role of international organs in the normative process, will
be more fully developed in the Appiicants' further arguments when the
legal issues are discussed again concerning the origin, contcnt and nature
of the international legal norm and international standards for which the
Applicants contend. The Applicants will also endeavour, at an appropri-
ate stage, to analyse the basis upon which, and the processes by which,
the norrn and standards relevant to these proceedings have been de-
veIoped by the organized international community, through its compe-
tent organs. This matter the Applicants urilireserve also forconsideration
at a more appropriate stage of these proceedings, when discussioii of
legal issues is resumed.
In respect of the initial divergency of view concerning the individual,
the group, and the social order, the Applicants, and, we believe, the
organs of the international comrnunity, proceed from the perspective
(and I speak of perspective) of the individwal fierso~ras the basic social
unit. Respondent, on the other hand, proceeds from the perspective of
tliegroup as a basic social unit.
The angle of vision of the Applicants' case, which we believc is also
that of the organized international conimunity, through its competent
organs, proceeds, Mr. President, from the perceived requirement for
protection of the status and needs of the P.rtdividuafierson. The angle
of vision of Respondent's case, on the other hand, proceeds from the
perceived need and requirement for the protection of the status and needs
of a group, or groups. For this purpose, 1 refer to al1 groups as such,
lenving aside the question of whether or Iiow preferences, privileges,
duties or burdens are allotted.
If one starts from the premise of the individual pcrson, rather than85 SOUTH WEST AFRICA
from the prernise of the group,important consequences follow, even with
respect to the usage and meaning of words. Even more, Iogical and
psychological processes are affected by tlie perspective by which the
entire matter is approached. Thus, the word "differentiation", as applied
in the context of the minorities treaties, centreon the protection of the
individual, as such-as an individual. The treaties are perceived as a
means of assuring that the individual does not suffer by reason of his
membership in a group. He is entitled to claim protection as an individual
person. He can, as an individual, norrnally, quit his group. He is not
irrevocably assigned to a group by legal fiat. The true significance of the
minorities treaties, aç the -4pplicants view the matter, is that the in-
dividuaI person is considered to have the right not to sufferas an indivi-
dual on account of his membership in a group. In so far as his persona1
welfare and progrcss are çoncerned, thiç right protectshim from differen-
tiation from other individuals by reason of the colour of his skin, the
language hespeaks, the tribe in whichhe wasborn, or the form of worship
in which he chooses to engage, or not to engage.
The minorities treatieç established the rights of an individual to fulfil
his individual merit, quality and capacity, against any modification or
restriction thereof, which might othenvise be brought about by reason
of his rnembership in a group-whether ethnic, linguistic, religious, or
national.
Under apartheid, on the other hand, and 1 simply point the contrast
for the moment without referring to its quaIity, the individual person is
subject to burdens, restrictions or duties precisely because of his member-
ship in a group-a group moreover, of which he is made an irrevocable
life rnernber. Such membership is determined by the circurnçtances of
his birth or, what comes to the same thing,and 1quote from the census,
"general acceptanceM-it comes to the same thing, hlr. President,
because such acceptance is officially determined in case of doubt. The
individual who is obviously "White" in the language of the census, but
generally accepted as "Coloured", is "Coloured".
In the Applicants' use of the term "coercion", and this was the term
used in the context of the discussion of the minorities treaties, the
imposition or allotment of burdens, restrictions or duties upon such a
basis, for the avowed or assumcd, and perhaps genuinely and sincerel
assumed, protection of a group or groups, iscoercive upon the individua .
The theory and premiçe of apartheid, as the Reply seeks to point out,
involves the promotion of the wellare and progress of "groups of inhab-
itants" rather than of "individual inhabitants" (IV, p. 269).This is the
theory of the Applicants' case, consistently held from the beginning.
The welfare and progress attained by each group under apartheid,
measures and determines the welfare and progress of the individuals
assiped to or belonging to that group.
Accordingly, Alr. President, the perspectives of the Parties to these
proceedings cIash; attempted legal definitionç blur. The Applicants and
the organized international community, on tlie one hand, look at the
group in terms of protecting the individual; Respondent, on the other
hand, looks at the individual in terms of protecting the group. This
contrast of perspective underlies the philosophy and vocabulary of
apartheid, as the Applicants and we believe the organized international
community understandsit and has judged it. Whether such a perspective
is right or wrong, good or bad, is not in question at the moment. It is ARGUMENT OF MR. CROSS $9
clear from the record however, that in the mandated Territory, in the
respect under discussion, the individual is essentially looked upon as a
"Native"; the "Native" is not looked upon as an individual.
Reverting to the divergent perspectives of the Parties concerning the
significance of the minorities treaties in this litigation, the legal distinc-
tions sought to be drawn by the respective Parties thus reAect a conflict
of meaning concerning the nature and objective of the so-called "dif-
ferentiation" envisaged in the minorities treaties, as distinguished from
that implicit in apartheid.
Under the minorities treaties, as has been said-and this \vas the point
which the Applicants respectfully sought to make in the response to
Sir Gerald Fitzmaurice's question-an individual may claim protection
of his individual rights, if they are thwarted by reason of his rnembership
in an ethnic, religious, Iinguistic or other group, which he normal1
free to disclaim. Under apartheid, by definition, the individual's meg e-S
ship in a group largely determines his rights-Respondent çaid this is a
good thing. Ifthe controlling authority says to the individual,"You may
not forrn or join a labour organization because you are a Native", it is
not permissible for the individual to re-act by saying: " WelI then, 1 ,
would rather not be a Native." He may not Say to the controlling author-
ity, "1 really don't appreciate or understand the kind of protection you
are giving me".
These considerations, and others of a similar nature, underlay the
Applicants' comment, in the context of their discussion of the minorities
treaties and of the 1929 Ueclaration of the Rights of Man, and 1 quote
from the verbatim :
". ..the point relevant in the context of the discussion at this
moment, Mr. President, is that although the concept of genuine
'group protection' for those who desired and required-protection
as distinguished from coercion-was widely accepted, as it is today,
such a concept has, in the process of evolution, now become a
generally accepted, basic, international, human rights norm, which
is described by the Applicants as a norm of non-discrimination or
non-separation." (VIII,p. 263.) .
The Respondent, no doubt with genuine misunderstanding, charac-
terizes this reference to protection as distinguished frorn coercion as an
exception to or a qualification in the norm. It was a source of surprise,
Mr. President, to learn that Respondent had interpreted the passage
just quoted in the sense indicated. The origin of the norm was then in the
course of being described. The legal norm and the international standards
universally prevalent in the international community, as the Applicants
understand it, say:
The approach, the policy, and the practices which characterize apart-
heid are inherently and peu se incompatible with the objectives of the
social order in contemporary society anywhere in the world, under al1
circumstances, and at any time. The individual, not the group, 1s the
decisive unit of the social order. Fulfilment of individual capacity, ,full
realization of individual quality, full recognition of individual merit-
these are the suprernc ends of the social order.
In the Applicants' view of the case, it is not relevant or open for the
Respondent to reply-"This is al1 right as a moral, political or social
doctrine; it does not, however, constitute a legal norm or applicable
standard relevant to Our duties as Illandatory."9O SOUTH WEST AFRICA
In the situation which prevails in the society of a mandated territory,
Respondent in effect sajrs, in the light of its history, taking into account
the attitudes of the people in the Territory and of al1 other facts and
facets of the situation, it is in the interest of the individual to allot
restrictions, burdens, rights aiid privileges to him on the basis of his
rnembership in a group.
Ive, say the Respondent, are working toward the end that in the
future hs persona1 welfare and progress will be promoted to the utmost,
that welfare and progress will be promoted to the utmost that way.
If now we give too much weight to the capacity, rnerit or quality
inherent in an individual Native or other person grouped on that basis,
if we give too rnuch weight to such factors in a person as an individual
and not asa Rantu, as a Coloured or as an Asiatic, our social order
wouId disintegrate, friction and tension wouId mount and everyone,
particularly the Natives, would suffer.
That appears to be Respondent's argument as Applicants understand
it.
&Ir.President, the Applicants have referred, merely as an illustrative
esample, to Respondent's policy in respect of Natives qualifying as
engineers and an explanation made by the Minister of Bantu Education
in May 1960. This was set forth in the Memorials, 1,pp. 157-158.
1 will Say no more about this except to Say that in the course of
Respondent's comrnents requesting clarification to which the Applicants
are addressing themselves on 30 April, Respondent referred at some
length to this matter describing it, inter alia, as a "relatively minor"
esample.
It may, accordingly, helpto clarify the Applicants' underlying purpose
in citing this exarnple, which the Applicants in any event perceived to
be significant rather than minor, another illustrative exarnple, and 1
will do so briefly. The Memorials set out, at 1, page Ij6, the following
illustrative exarnple:
"175. Separate registers and rolls are kept 'in respect of white
persons, coloured persons and natives'. [This is reference to the
Nursing Act of 1957 It is made a criminal offense to cause or permit
any 'white person' registered or enrolled as a nurse or asastudent
auxiliary nurse to serve under the 'control or supervision of any
registered or enrolled person who is not a urhite person, in any
hospital or sirnilar institution or in any training school,' escept in
an 'emergency'."
This averment of fact is undenied in Respondent's written pleadings.
Respondent's only comments concerning the Nursing Act, 1957, from
which the quoted passage has just been derived, are set Iorth in the
Counter-Mernorial, III, at pages 465-474and pages 523-j2 j. No reference
whatever is made in Respondent's written pleadings to the provision of
the Nursing Act making it a criminal offence to cause or permit any
"wliite person" registered or enrolled as a nurse, as a studcnt auxiliary
nurse, to serve under the control or supervision of any registered or
enrolled person who is not a white person, except in a case of emergency,
presurnably a matter oflife and death, where the highestski11 would
normally be re uired.
In ,respectO? Respondent's proposa1 for inspection or the proposed
taking of testirnony, there is nothing the Court could look for in the ARGUMENT OF MR. GROSS 9x
Territory which might assist it in forrning a value judgrnent or, in the
Applicants' respectful view, any judgment concerning the significance
of this criminal provision, if it does not speak for itself. What testirnony,
and what witness could be of assistance to the Court in arriving at a
value judgment on this matter? 1 would refer in this conncction to the
provisional list of proposed witnesses in which it appears tentatively
that a nurse is to testify.
Respondent says to the Court, "corne and inspect the Territory. The
Court, or a Committee thereof, will then see the whole problem from
Our point of view when it has viewed al1 the facts and facets of the
situation."
The Applicants Say to the Court, to the contrary: "We ask the Court
to look at the record of laws and replations and the officia1methods
and mesures, the existence of which is conceded by Rcspondent. Ifthat
is not sufficient to persuade the Court of violation of the international
rule of Articlez of the Mandate, read in the light of the applicable legal
norm and the international standards for which the Applicants contend,
the Submissions 3and 4 must fall."
The Applicants, of course, are aware that the cluestion still remains
conceming the validity of their submission that the international legal
norm and the international standards for which they contend is an
essential element of their case. TheApplicants are aware that the nature,
scope and content of such an international legal norm and international
standards must be defined by them to the satisfaction of the Court if
their Submissions are to prevail. The argument is still in progress on
legal issues, Mr. President, in which the Applicants are anxious to
address themselves to these very questions and this phase of the pro-
ceedings has been suspended by reason of Respondent's injection for the
proposa1 of inspection. The Applicants accordingly confront some dif-
ficulty in addressing themselves to Respondent's query for clarification
concerning the nature, scope and the content of the international legal
norm and the international standards, for which the Applicants contend.
And Mr. President, ina very few moments 1 shall conclude, with your
permission, Sir,my remarks addressed to this aspect of the Respondent's
queries.
In the course of Respondent's address to the Court on 30 April 1965,
requesting clarification,Respondent raised certain questions which
appeared to relate, interalia,to the content, nature and scope of the
norm or standards for which the Applicants contend. Reference has
been made to the difficulty of dealing with Respondent's queries con-
cerning the nature of the scope and the content of the legal norm and
internationalstandards contended for, in anticipation of the resumption
of the arguments addressed to legal issues in these proceedings.
In Respondent's address on 30 April 1965, Respondent asked the
followjng questions, which 1 should like to quote in the record:
"Does it [the Applicants' case] rest on the one basis only or does
it rest on more than one basis, legaIly speaking? Does it rest on a
norm only to the exclusion of norms and standards in the plural or
does it rest in the alternative on a norm or on standards? Does lt
rest only on a legal norm which autornatically and te ch ni cal!^
renders certain described forms of conduct illegal, or does it rest in
the alternative upon factual allegations in respect of which they
ask this Court to pass an adverse value judgment either as to the SOUTH WEST AFRICA
purpose or as to the effect or as to both the purpose and the effect
of the Respondent's policies in South West Africa." (Swpra,p. 66.)
These queries need to be sorted out.
With respect to tlie last sentence quoted, there would seem to be no
basis for renewed clarification; the Applicants have stated explicitly
that the conduct described-and by "conduct" the Applicants refer to
the laws and regulations and the official methods and rneasures by
luhich they are effectuated, the existence of which is conceded by Res-
pondent--constitutes a per seviolation of the relevant provisions of the
relevant Article of the Mandate. It necessarily follows that the Court iç
not requested by the Applicants to pass an adverse "value judgment"
either as to the purpose or as to the effect or as to both, of the Respon-
dent's policies in South West Africa. The Applicants intend, &Ir. Pre-
sident, to demonstrate the existence, content and applicability of the
international legal norm described in the Reply, IV, at page 493. In
addition, the Applicants intend to dernonstrate the existence of inter-
national standards having a content similar to that of the international
Iegal norm. These alternative formulations are the same international
rule of conduct governing the interpretation of Article 2 of the Mandate
and Article 22 of the Covenant of the League of Nations-these are
alternative formulations.
The Applicants intend to demonstrate that Respondent's obligations,
pursuant to the foregoing Articles of the Mandate and Covenant, are
governed by thisinternational legal norm and, alternatively, that if this
honourable Court should hold that no such international legal norm exists
or is applicable to the relevant Articles, then, in any event, the interpre-
tation and application of Article 2 of the Mandate is to be governed by
the relevant international standards. This theory and approach is in
accord with the approach and theory coiisistently advanced in the
written pleadings and oral arguments of the Applicants.
One further comment in conclusion, Mr. President, and by way of
clarification, appears to be desirable. At page 80, supra, of the verbatim
record, Respondent comrnented as follows:
"Secondly, if the very existence of the norm, hIr. President, is
sought to be justified-the existence or the creation of the norm or
the content of the norm is sought to be justified on a factual basis
which relates, inter dia, to disputed allegations in regard to South
West Africa-in other words, if the Court is to engage upon an en-
quiry whether such a norm is a factually valid and a justified one-
then, of course, it would still be necessary to have expert testimony
in that regard, and particularly expert testirnony relating to South
West Africa and other territories and people in Africa."
Ifthe phrase "an enqtiiry whether such a norrn is a factually valid and
a justified one" is intended to suggest that the Court should conduct an
enquiry, or hear expert testirnony, as to whether the norm and standards
are "justified", then the Applicants, respectfually, disagree.On the other
hand, if the Respondent rnerely intended to re-phrase an earlier question
involving the fier se nature of apartheid, the Applicants consider that
they already have furnished clarification in regard to this query. There-
fore, in conclusion, Mr. President, it has been the endeavour of the Ap-
plicants to confine themçelves within the bounds of such considerations
and underlying perspectives, as seem to them their duty to present to ARGUMENT OF MR. GROS5 93
tlie Court in the contentand context of the inspection proposal, which
has, so obviously, openedup the heart of the issues in these proceedings,
and has, in theApplicants' reçpectful view, thereby served a useful pur-
pose in this Iitigation indeed.
Thank you, Mr. President. 14, ARGUMENT OF BIR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC HEARIKCS
OF 3AND 4 MAY 1965
Mr. Preçident and honourable Members of the Court, let us consider
in what context this questioning and the series of answers to the question-
ing started. It is, Mr. President, in the context ofan application, ora
proposal, by the Kespondent that, in the course of conducting a factual
enquiry into the facts \\-hich appear to be in issue between the Parties,
the Court should inspect the Territory of South West Africa, conduct a
Limited visitto South Africa itself, and also undertake lirnited visits to
certain other Territories in Africa, notably to Applicantç' Territories, and
to others of the Court's own choosing.
My learned friend submitted a contention to the Court in that regard,
in which he displayed anxiety that the Court should not exerciçe judicial
functions "elsewhere tIian at the seat of the Court". 1 think that expres-
sion must have been used about zo times.1 stopped counting in the rec-
ord when 1 came to 12. Numerous and varied reasons were given, Mr.
President, but the main theme was this-that the Applicants' case rests
on so narrow a basis as to render unneceçsary such a factual enquiry,
of which such an inspection would form a part. The Applicants em-
phasized in that regard that even the enquiry through the medium of
calling witnesses. of producing to ths Court oral testirnony of witnesses
and experts, would be unnecessary because of this limited basis upon
which, Applicants Say, their theory of this case, and their contention or
contentions to the Court, rest. It waç in the course of the debate on
thal question that these various queries were raised, viz., what portion
of the Applicants' case, as it was originally made to this Court, still
stands, and what portion does not stand; in how far, in particular. do
certain factual averrnents made by the Applicants, not only in their
hfemorials, but also in the Reply, and in the oral argument on the legal
issues of thiç case, çtill stand?
Those queries were raised in a dual context. The first relates to the
question whether, apart from the norm, or the norm and standards,
upon which the Applicants Say they reçt their case, there existç an alter-
native basis on which the Court would be invited to make a value judg-
ment of the policy in the respects under discusçiona value judgment as
to its purpose or effect. That was tone aspect of the enquiry. The other
aspect related to tlie very nature of the case which the Applicants Say
they are making in regard to a norm, or a norm and standards, which is
such as to require a factual enquiry on the part of the Court, in which
this evidence we intend calling, and the inspection which we offered in
respect thereof, would be reievant.
The Applicants, obvioüsly, in order to succeed on this basiç in their
objection to the inspection proposal had to satisfy the Court that their
case was so narrowly conceived aç to exclude the factual enquiry in both
the senses, or contexts,Ihave mentioned.
There have been atternpts at clarification in answer to questions put
by honourable Members of the Court and the honourable President, and ARGUMENT OF YR. DE VILLIERS 95
in ansmer to queries which 1put. Ive did not obtain full clarity on Fri-
day, and 1am afraid we stiIl have no cornplete clarity on either of those
two aspects, or contexts, of the query which 1 have rnentioned.
Let us take the first one. hly learned friend says, in so many wordç,
that he rests his case on his norm, or his norrn and standards, but,Rlr.
President, he never anslvers me explicitly on my uery whether those
factual allegations, to which 1 referredon Friday, aO, or do not, stand.
Does he, ordocs hc not, ask the Court tfind in termsof those auegations?
My learned friend gave a part of the answer to that question in indicating
that those staternents are, as he said today, "characterizations which
correspond to the judgments reached by the organized international
cornmunity and its constituent organs", or words to that effect-I have
quoted them as best 1could take them down today.
He proceeded to say that these judgrnents are set forth in length in the
pleadings. In other words, Mr. President, the case seerns to amount to
this.Those judgments of the organized international community are
set forth in the pleadings. The Applicants take sides in this dispute
against the Respondent with the organized international community.
Those judgments have been made, and they stand. They have been set
forth in tlie pleadings, and they stand as far as the Applicants are con-
cerned. They are not willing to withdraw those allegations, nor to make
it clear to the Court that those allegations do not form a necessary part
of their case, i.e., that the Court is not required to takethem into account,
whether by pronouncing in favour of them or by enquiring into them, or
by açsurning them to be tme or untrue. That is the equivocation ivhich
is still left in regard to thpart of the query. I can dernonstrate it in
rinother manner, which 1 shall do in a moment.
Other aspects of the enquiry, Illr. President, relate to the role which a
factual enquiry might possibly play in regard to the Applicants' legal
basis of its case, namelg its norm, or its norm and standards, or, ithe
alternative, its standards.Now, Mr. President, before passing over to
that, rnay 1 just indicatc for a moment how unclear the position still is
in regard to the first of the two queries which 1mentioned, namely about
those statements still on record. 1 think 1 can demonstrate the same
problem by referring tothe counterpart of that question, i.e., by referring,
not to the question as to those allegations as they stand, but to the
question of what the Applicants mean when they Say that the facts
which the Respondenthas adduced-has placed on record-are adrnitted,
Save where otherwise indicated.
The Court \vil1rccall-and T quote from the verbatim record of 27
April, at page 2r, supra-that the Applican ts said the following:
"The Applicants have advised Respondent as well as this honour-
able Court that al1 and any averrnents of fact in Respondent's
tvritten pleadings will be and are acceptas true, unless specifically
denied. And the Applicants have not found it necessary and do not
find it necessary to controvert anysuch averments of fact. Hence,
for thepurposes of these proceedings, such averments of fact, al-
though made by Respondent in a copious and unusually volumlnous
record, may be treated as if incorporated by reference into theAp-
plicants' pleadings."
They confirrned this, Mr. President, intlie verbatim record of 28 April,
at page 44, sufiriz, and nom the question aises: what do the Applicantsg6 SOUTH WEST AFRICA
mean by the expression "averments of fact"? As 1 have said, the ques-
tion may be said to be the counterpart of the questions 1 put on Friday
as to whether certain staternents still stand on the record, i.e., statements
to the effect that the policy discrirninatesiberately and systematically
against the Native population; that it subordinates their interests to
those of the Europeans; that it assures their domination by the Euro-
peans; that it offers them no horizon of hope; that it is injurious to the
interests of the whole population-the whole population-and so forth.
1 gave the quotations in the verbatim record of 30 April at pages68-72,
supra; 1 need not give them again. I should like, in this context, hlr.
President,and especially in the light of the distinction whimy learned
friend sought to draw today between approaching the matter from the
point of view of the individual, and approaching it from the point of
view of the group, to refer the Court to one formulation in that regard in
the Memorials at 1,page 161i,n paragraph 189. The Court will then see
that this theory, saidby the Applicants to be so consistently hcld-this
approach, diverging to such a large extent from that of the Kespondent,
certainly did not apply in the Memorials. Ive find in paragraph 189 the
statement made that-
"Under apartheid, the status, rights, duties, opportunities and
burdens of the population are fixed and allocated arbitrarily on the
basis of race, color and tribe, without any regard for the actual necds
and capacities of the groups and individuals affected." (1, p.161.)
\mat do those words "of the groups" do in that sentence, if the Appli-
cants' concernwas mainly with the individuals affected? What, Mr. Presi-
dent, was the purpose of al1theçe statements which related to the Native
population as a whole which, so it was said, "constitutes ovenvhelmingly
the larger part of the population of the Territory0-the words used in
paragraph go? hir. President, we cannot get clarityupon this matter
unless the Applicants are prepared to admit, as they must admit, ifthey
w-irit to limit this case in the manner which they now suggest to the
Court, that theyare changing their case, and that they areninning away
from factual allegations they made to start off with. Before they make
that clear we cannot have the clarity which, the Applicants Say, the
Court must have in regard to the question whether there is, or is not, to
be any further factual enquiry. It is, 1rnay emphasize, for the Applicants
to satisfy this Court in this opposition of theirshe inspection proposai
that their case,whenever it may be decided or further considered, isso
narrow that it does not require anyfurtherfactualenquiry. Mr. President,
they do not succeed in doing so as long as we have these equivocations.
May 1refer also, Mr. President, tothe fact that in Submiçsions 3 an4,
which stand on record, which are reaffirmed by the Applicants, and which,
as far aswe know, they do not intend to amend, except in regard to Sub-
mission 4to the extent indicated the other day, we still have incorporated
by reference the allegations set forth in Chapter V and summarized in
paragraphs 189 and 190of Chapter V of the Memorials. The Submissions
3 and 4 are at page 197. Submission 3reads, to begin with:
"the Union, in the respects setforth in Chapter V of this Mernorial
and sumrnarized in Paragraphs 189 and go thereof, has practised
apartheid.. .",etc.
And Xo. 4 reads:
"the Union, by virtue of the economic, political, social and educa- ARGUMENT OF MR. DE VILLIERS 97
tional policies applied within the Territory,\\?hichare described in
detail in Chapter V of this Mernorial and surnmarized at Paragrapli
rgo thereof, bas failed to promote to the utmost . .."
&Ir.President, tlie Applicants rely on the tiasis of a norm, ora norm
and standards, whicti they triedto malte as iiarrow as they can for pur-
poses of tlieir opposition to the inspection proposal. They Say they rely
on that basis only for their case, and on that basis they still ask for adju-
dications by the Court in terms of Subrnissions 3 and 4-in other words,
they say statements which incorpxate value judgments and condemna-
tions as set forth in Chapter V, and particularly in paragraphs 169 and
190, are to stand, although, as they make clear now, they do not ask the
Court to enquire into the question whether those condemnations and
those judgments are correct. They Say the organized international com-
munity has decided, and the Court isnot to embark upon such an enquiry
at all. The Court is apparently, it now seems, on analysis, to accept that
judgment and to incorporate it into its own judgment merely upon the
basis of finding tliat the norm itself is a sound one in law, Le., thc norm,
or the standards, or both.
Mr. President, it will beseen that allegations of the kind to which 1
have referred do not hinge simply on questions of fact.It isnot sirnpiy a
question whether there are two or three schools in a particular area.or
whether 50 or 70 bore-holes have been sunk in a particular area. They
concern evaluations of facts. They concern also contemplated future
developments. They concern the intentions of the Respondent in regard
to such developments. When 1 Say they concern future developments, I
have in mind statements to the effect that the policy contains no horizon
of hope for the Native population. The difficulties, Mr. President, can
also be demonstrated by reference ta some other examples. Let us take
cases in which we offer,or offered, in our Counter-Mernorial and in our
Rejoinder, explanations of certain events ordevelopments of thepast. We
can take an examplc from the realm of education. We dealt with various
factors which in the Iiistory of the Territory retarded the development
of Native education; the Court will find that,inter alia,inthe Counter-
Mernorial, at III,pages 407-424. We showed amongst, other things, what
an immense problem the training of Native teachers has been. Weshowed
how there was, initially, an attitude of non-interest in modern education
on the part of the bulk of the Native population. We showed, also, that
similar problems and attitudes revealed themselves in other parts of
Africa, and stillo so to some extent. Now, Mr. President, what was the
Applicants' attitude in regard tothis review which we gave? The attitude
\vas in general, that Respondent's policy was one of laisser-/aiusand that
Respondent was to blarne for the slow clevelopment of which it speaks.
And in so far as we showed that similnr problems existed, and ia measure
still exist, in other territories of Africa, the Applicants' simple attitude
was that that was not relevant. We dealt with this subject generally,
Mr. President, in the Rejoinder, VI, at pages 121 and following, where
the relevant referenceswill be found.
The question arises, Mr. President : what do the Applicants now Say
in that regard? Do they agree that there içsubstance in our explanations?
Do they agree that the circumstances attending on the life of the Natives
40 years ago, and for many vears thereafter, were such as to retard edu-
cation, and that our view in that regard isan acceptable one? DO they
a;ree, Mr. President, that sirnilar retarding factors existed, and in ag8 SOUTH WEST AFRICA
measure still exist, in other parts of Africa\f7e do tiot know. And this
question arises, not only in regard to education, but also in regard to
the complaints made by the Applicants under various headings such
as economics, government and citizenship, freedorn of rnot*ement,
rights of residence, security of the person, and so forth. My learned
friend has specifically reserved argument dealing with the factual side
of the matter to a later portion of his argument. If there is to be no factual
enquiry at all, one wonders why it should be necessary to deal with the
factual portion of the evidence at all. And, in any case, to corne back to
examples which illustrate this difficultyof determining what is no\v
common cause in regard to the facts, and what are still in issue: what do
the Applicants say of our averment that members of the Native groups
have so far not shown themselves ready, or mature enough, for individual
ownership of land bccause their traditional system of ownership has been
different-that it has been a system of communal ownership: that they
have not desired (and that for the greater part they still do not desire),
and they are not ready to make a transition to individiral ownership of
land; and that the matter rnust, if succcss is to be achiel-ed, be ap-
proached with caution, and with the maximum of CO-operation on the
part of the Native population concerned? Do the Applicants accept that,
or do they not? What do they Say of Our averment that uncontrolled
admission of Natives to urban areas has such disadvantages that there
must be a system ofcontrol of movement, not only in the interest, Mr.
President, of groups of the population, but in the interest and for the
protection of the very individuals about wliom my learned friend and
his theory are so concerned? The law-abiding citizens of a community,
each and every one of them, and their families, need, for reasons which
we set out in our leadings, to be protected by a system of what we cal1
"influx control". h e deal with that matter in detail, and indicate why
that is so: isthat norv accepted, or is it not accepted, hIr. President?
JVecould multiplp suchqirestions, but it isunnecessary to do so. The
important thing to remember is that they often involve considerations
concerning the level of development, the ways of life, and so forth, of the
Native population.
It isobvious that the answers whichhave to begivenirisuch circurnstan-
ces involve evaluations; theyare not straightforward questions of facand
detail;itis not merely a matter of adinitting or dei~yingthat a particular
fact does or does not exist. But there are otlicr mattersMr. President-
more fundamental matters. In the pleadings we set out the various ad-
vantages which the policy of separate development has, in our sub-
mission, as facts. These are summarized broadly in the Rejoinder,
V, at pages 244-24 7nd the question arises: do the Applicants con-
cede that our policy of separate dei.eloprnent indeed possesses these
varjous advaiitages? Inthe light of the distinction whichmy learned friend
sought to draw today between the approach from the point of view of
the individual and the approach from the point of viem of the group, 1
should like to refer the Court to the wording of our summary in that
respect in the Rejoinder, V; it is notmuch to read-1 must ask the
Court's patience and indulgence to listen to the quotation, because this
matter is of cruciaI importance. \ire said at page 244, paragraph 6:
"ilrhen considering Applicants' detailed points of criticism, the
Court should, il is respectfully submittcd, benr in mind the above
considerntions, the cogency of which isincreased in the present case ARGUMENT OF NR. DE VILLIERS 99
by the fact that hpplicants do not seriously attempt to meet Re-
spoiident's case regarding the advantages of separate development
as compared with attempted integration as a possible policy for
South West Africa. These advantages were discussed in the Counter-
Mernorial and may be summarized as follows:
(a) Separate development is not a policy of domination, but the
very antithesis thereof-it contemplates evolutionary termina-
tion of guardianship in a manner calculated to lead ta peaceful
CO-existence.Attempted integration, on the other hand, must,
in the circumstance prevailing in South West Africa, inevitably
lead, at least, to domination of some groups by others.
(6) The aim of separate development is justice for ,211n , ot only for
some. It seeks to avoid a situation where the esercise of self-
determination by some of the inhabitants would involve the
denial of self-determination to others.
(c) Separate development seeks to prevent a situation in which
the more developed groups, which are at present responsible
for the economic progress and high standards of administration
and prosperity in the Territory,may be swamped and probably
forced out of the Territory by much less advanced groups with
entirely different values and outlooks.
(d) Moreover, separate development would not involve, as attemp-
ted integration would, the abdication of the sacred trust re-
garding the least developed groups, which would under the
latter policy be left at the mercy of a new rnajority government
with competing interests and possible hostile inclinations or
intentions,as was the position in the past.
(e) Separate development avoids the deleterious results ofignoring
ethnic differences, loyalties and reactions which manifest them-
selves strongly when one people feels its existence or basic in-
terests threatened by another. Such results, as noted above,
have often included tension, unrest, hostilities and bloodshed,
and, in some cases, the imposition of ruthless dictatorial rule
in orcler to suppress the tensions in question."
Then the questioii arises, &Ir.President: wliat remains of this distinction
in such circiimstances between the approach from the point of view of
the individual and that from the point of view of the group?
hlr. President,1 am reading from pages 244 to 246 of the Rejoinder
(V) a çurnmary given by the Respondent of what it considers to be the
advantages of the policy of separate development as a whole, and the
disadvantages of the only possible alternative, namely a policy of jnte-
gration as suggested by the Applicants. My reason for doing so 1s to
enquire whether these statements are accepted or not by the Applicants
when they say that they admit al1relevant facts, Save where othenvise
indicated. 1 proceed to read at page 245:
"(fi Avoidance of tension and group reactions of self-preservation
issecured by separate deve!opment not only in the political sphere,
but also in the economic life of the country. This policy provides
parallel, protected spheres of economic interest for the various
groups, in which their members can advance without constituting
or being regarded as a threat to other groups, as compared with
mell-knolvn forms of discrimination and resistance alrnost invari- SOUTEI WEST AFRICA
ably encountered where integration between differing groups is
sought to be attained against the wishes of one or more of such
groups.
(gj Separate development renders possible constructive CO-operation
between White and non-White groups, on a bnsis of equaIity, to
their mutual benefit-in contrast with the fate which has befallen
White niinorities, in other African countries hnnded over to Native
rule-to the detriment of all.
(h) Separate development renders possible the achievement of
self-determination by various groups at different points of time.
This implication avoids unnecessary dclay in the attainment of
self-determination by more advanced groiips mereh because of lack
of advancernent and tnaturity on the part of other groups. Con-
versely, it involves for the latter groups the safeguard of retention
by Respondent of the sacred trust obligations towards them even
after other groups may have chosen independence in the exercise
of their right of self-detemination.
(ij Finally, separate development leaves to the free willof the
groups concerned the ultimate decision whether, and in what form
and to what extent, they wilI link up or CO-operate with otliers,
inter se, politically, economically and otherwise-as opposed to
forcing upon thern a pre-determined system whether unitary or
federal, ~vhichsome may feel to constituterithreat to their existence,
interestsor identity." (V, p. 245.)
Mr. Preçident, that is a summary of advantages of Respondent's
poIicies, and of disadvantageç of the only possible alternative, and the
question arises, do the Applicants accept it? ifTesummarize the ïvhole
situation finallyat page 246 as follows:
- -
"In short, separate development is intended and calculated,
negatively, to avoid the human tragedies,which have occurred, and
are occurring, in African territoriessuch as the Congo, the Sudan,
Rwanda, and others, as well as in the systems of ruthless dictator-
ship fou~ld necessary in so many other territories with a view to
rnaintaining eveii a semblance of order. Positively,separate devel-
opment envisages the establishment of a.system of peaceful and
friendly CO-existence,based 011 mutual respect for one another's
identity, cuIture, right to existence and human dignity, coupled
with fruitful CO-operationin matters of common concern. Attempted
integration, or1 the other hand, involves inevitable injustice to
minority groups-the highest and the least developed ones-inevi-
table retrogressioi~ in standards of econorny and administration,
and a very high degree of probability of a repetition of the human
tragedies of other territories, or ruthless dictatorial rule or both."
Mr. President, there is implicit in these statements the question of the
total effect of these policies not only as far as total populations or
groups are concerned, but also as far aç the individuals. each aiid every
one of them, comprising those groups are concerned. Now, do my
learned friends accept that or do they not?
There is irnplicit, also, the question of Respondent's state of mind.
Do the Applicants accept that Respondent, in framing and in executing
this policy, is and has alwavs been imbuedwith an intention of prornoting
to the utmost the material and moral wel1-being niidthe social progress ARGUhlEPiT OF hlR. DE VILLIEKS IO1
of al1the inhabitants of the Territory? On this point the answer would
seem to be inthe affirmative. The Applicants have conceded that motive
or intent is a fact-they stated that in the verbatim record of 27 April,
at page 27, sqbra. And they Say at various places inthe record that they
do not allege bad faith on Respondent's part, and that they do not ask
the Court to adjudge or declare with respect to Respondent's state of
mind. That we have explicitly in passages such as those in the verbatim
record of 27 ApriI,ai page 17,supra, and in the same record at pages 26,
and 22, swpra.
Mr. President, there is another aspect of this matter which demon-
strates how far we are lacking in claritin regard to the factualsituation.
The Court will recall that my learned friend, on 28 April, in dealing with
the inspection proposal, posed the question, amongst athers, whether
there would be an ascertainment of the wishes or the views of the
rnembers of the various population groups in regard to the policies
applied to thern, or to be appfed to them. He even asked, rhetoricaliy,
whether there would be a plebiscite in that regard.
In the Rejoinder, V, pages 281-291, we demonstrated, contrary to
what the Applicants alleged in the Reply, that the vast majority of the
population, Mite and non-White, of South West Africa favoured the
policy of separate development. If rny learned friends are serious in
saying that they accept statements of fact, or explanations, and that
they can be incorporated by reference into the statement of the facts, do
they accept this factual conclusion at which we arrive, or do they not?
\Ve have alleged, hlr. President, that various interim measures, which
involve what may be called a negative type of differentiation between
various groups, are to be seen not only as transient but also as being
required, and as being necessary, to brjng about the preponderant
advantages of the system of separate development to which we have
just referred. The Court wjll find those points dealt with in the Re-
joinder, V, pages 307-308, and, also, in the same volume, at page 246.
In other words, Mr. President, these negative elements to which 1
referred-and, 1 repeat, correctly referred-as a handful ~vhich my
learned friends would distil from the whole picture, constitute the main
target of attack on the Applicants' part. We have said as a fact that they
are to be seen as temporary-as being required to bring about an orderly
transition to the advantages which we see in the system as a whole.
Do the Applicants accept those statements of fact, or do they not? If
they do, air. President,if they accept al1the averments of fact to which
1 have jiist referred, then the Applicants' case would seem to amount
to this.
Firstly, that there are certain differentiatinprovisions of what .may
be termed a negative type; that those have been imposed as transitol
rneasures by the Rlandatory, acting in good faith, and that those mea-
sures are, in fact, necessarp in order to secure the advantages of the
policy as a whole. The policy as a whole is considered by the Mandatory,
and is, in fact, markedly preferable to the alternative suggested by the
Applicants. In addition, the great majority of the population desire the
implementation of the hiandatory's policy. Nevertheless, the Applicants
Say, the whole policy should be abandoned because of the existence of
the provisions in question, aIthough such abandonment would probably
result in bloodshed and chaos. And this course, according to the Appli-
cants, is dictated by a process of interpretation of a provision whichIO2 SOUTH WEST AFRlCA
requires the promotion to the utmost of the well-being and progress of
the inhabitants.
That would seem to be the case made by the Applicants, Mr. President,
if they reallyean what they Sayabout accepting Ourfactual averments.
We should like to know exactly where we stand in that regard.
Mr. President, al1 that relates to the question of factual averments
over and above the case which the Applicants Say they are making on
the basis of a technical norm. Last week a thought worried me in this
regard, namely that even if the Applicants reIied solely on a norm, or a
norm and standards could one then necessarily Say that the factual
enquiry which we envisaged by way of evidence and inspection would be
excluded? 1 could not quite place my hger on the difficulty, but during
the weekend, in a discussion of the matter with rny colleagues, it became
as plain as a pikestaff.
The Applicants' contention in regard to their norm and their standards
rests on a factualbasis which is the very antithesis of what the Respon-
dent wishes to demonstrate with its evidence and the inspection offered.
The Applicants indicate that they rest either oii a nom, or, alterna-
tively, on standards. The norrn, they Say,is distilled from the standards,
and if the norm is said not to be established in law then, nevertheless,
they still rest,n the alternative, on the standards. How do they describe
those standards, Mr. President ? They describe them as standards
"universally accepted". They rely on the standards for the purpose of
distilling the norm therefrom and, in the alternative, they rest on them
$er se.And they made it clear-so we understood them in their pleadings,
and, also, in rny leamed friend's oral argument-that, when they speak
of standards in that regard, they derive those standards from the sphereç
of the political and social sciences-from the weight of scientific author-
itp, from the practices of govemments and from thestandards currently
operative in modem society in regard to methods of government, fair-
ness, equity, and so forth.
Now, Mr. President, isnot the question of the universal acceptance of
those standards, in itself, a question of fact?
And, Mr. President, if one Iooks at the evidence which we intend to
lead before this Court, one will find thathepreponderant part of it wiI1,
in its effectbe directed towards showing that the assumption of the
universal acceptance of the type of standards relied upon by my learned
friendis totally wrong, and totally unfounded.
le propose, Mr. President, to cd the evidence of experts in the
poIitical and social sciences. We propose tocallthe evidence of practical
men on the application of those sciences. We propose to cal1the evidence
of practical observers of events, which confirm the view of the experts.
And the proposed inspection would serve to illustrate, and to confirm
and to support,the evidence of al1these people-of the experts, of the
practical men on the application of the sciences, and of the practical
observers.
hlr. President, in regard to the evidence, ~vepropose, as the Court
will see from the list which we have handed in, to call, apart from wit-
nesses and experts from South Africa, a number of witnesses and experts
from outside South Africâ-from the Continent of Europe, from the
United Kingdom, and from the United States. Our list has not been
completed in that regard, but, in general, we can Say that we propose
calling men of the highest standing in their particular branches of thetheor37 and practice of the political and social sciences. They include
eminent sociologists and political scientists, who have made a special
study of the subject which is hcre in issue-f the partjcular type of
question which ishere in issue-namely whether one ought, or ought not,
in al1circurnstances al1over the globe, to adopt an approach of integra-
tien, of ignoring difierences between people, and ofnot allotting rights,
çtatus, burdens, etc., on the basis of membership in a group.
Our list includes persons from outside South Africa who have occupied
some of the highest political offices in their countries, and of the highest
diplornatic officesas representatives of their countriesWe propose call-
ing journalists of very high standing as observers. We propose to call
other observers in various branches of learning and achievement, who
have seen African reality, in many cases including South West Africa
aiid South Afnca itself.
From South Africa and South West Africa we intend bringing a
variety of persons of high standing, representing similarly wide fieldsof
learning,achievement and experience. They will include theologians who
will deal with the moral questions involved, and with the attitude of
religious leaders in general.They will include, further, persons who are
engaged in the practical application of aspects of the policies in issue, and
men of learning lvho will support and give evidence similar to that of
witnesses from overseas.
&Ir. President, the evidence.wil1 be directed specifically at showing,
aniongt other things, that a general principle of non-discrimination or
non-separation, in the sense relied upon by the Applicants, cannot, in
al1circumstances, be applied to produce beneficial results. The evidence
will be directed at showing that such an approach often would not, and
often does not, produce beneficial results, but that it, in fact, often
leads to detrimental results for aLi concerned. The evidence will show
that the ovenvhelming weight of authonty, and the actual practice of
States in that regard, certainly does not support an absolute principle
of the nature of Applicants' norm or standards-standards ivhich, my
learned friend said, are tobe seen as having as content similar to that of
the norm. And, finally;Mr. President, the evidence will show that circum-
stances, as they exist in South West Africa,$ar sxceEb7tc eallfora policy
of differcntiation, and not fora policy of attempted integration, in the
interests ofal1concerned, including every individual.
So, >Ir. President, if 1 have correctly analysed the Applicants' case
in regard to their norm and their standards, this evidence will beIOO per
cent. relevant to the question urhether that norm and those standards
are factually in existence as alleged by the Applicants, and whether
they have universal application and universal acceptance. And yet mp
learned friend says that in some way or another such an enquiry is to be
escluded, and that even'if an inspection can aid the witnesses by illus-
trating and demonstrating points they make to the Court even more
fullyand adequately than they can by the spoken word, such inspection,
also,is to be excluded.
In other words, Mr. President, even for:the purpose of seeking to apply
their norm, and for the purpose of seeking ta apply, in the alternative,
their standards, the Applicants cannot escape this factual enquiry
unless they are prepared to do one thing, and that is, they would have to
Say and make it explicitly clear that dl that is relevant to their IegaI
contention is what international bodies have said-~vhat States have1°4 SOUTH WEST AFRICA
said in thosc international bodies and in the political context-that that
js the only relevant ihing. And the Court looks no furtlier: it dues not
look at what the States do, in practice; it does not look at what is con-
tained in the relevant constitutions; it does not look at actual practice
in States. It does not look at what is thoughrin political and social
sciences, what the viehvsof the authorities conccrned are, where the
weight of opinion lies in those spheres, and at what is actually being
demonstrated in that result by factual events and trends in various parts
of the world. If rny learned friends make it clear that that is their pro-
position, viz., that one does not look at the factual picture at ail; one
says the organized international communityhas spoken,through political
judgments, in its organs, and through political judgments expressed by,
or on behalf of, various governments, then, of course, this enquiry would
be an irrelevant one, and one should merely look at the suggested legal
merits of that contention.
lt is clear also, Mr. President, that if the Court should accede to the
legal argument, which we addressed to the Court earlier on the question
of the suggested norm and the suggested standards, and if the Court
should find it convenient to come to a decision on those questions of law
before proceeding with the rest of the case, then, of course, also on the
basis of such a decision, the suggested factual enquiry might fall away.
But that is entirely a matter for the Court to decide in its olvn discretion
and for its own convenience. In other words, what 1 want to make clear
is this, that itseemed to us from the reactions of the Applicants to this
proposal for an inspection that there may possibly be a short-cut in this
case-there may possibly be a method of rendering unnecessary the
factual enquiry which we envisaged, both in regard to evidence and in
regard to an inspection. That possibiIity could come about in one of two
ways. One way would be for the Applicants to make it perfectly clear to
the Court, and for the Court to satisfy itself, that the contention, and
the sole contention, or contentions, relied upon by the Applicants do not
involve any invitation to the Court, do not involve any basis, which
would make relevant a factual enquiry into this situation. We havetried,
by way of questions, and by way of getting answers to questions, to
clarify the situation, i.etoascertainwhether that is really so.1can only
submit to the Court that, as far as we are conccrned, we cannot see
clarity yet. If the Court can satisfy itself that there is clarity in that
regard, that may be a different matter, but, as far as we are concerned,
it seems that the one explanation after the other still carries within
itself, in some form or another, the same equivocations as before, and
westill cannot have clarity that, on the basis proposed by the Applicants,
no factual enquiry would indeed be relevant.
Theother possibility of cutting the rnatter short would be if the Court
should decide that it ought to go into the Iegal questions first-that it
ought now to decide the legal questions before it decides whether there
is any further need for a factual enquiry. If it should decide upon that
course as a matter ofconvenience, the Court could possibly come to the
conclusion that the whole of the Mandate had lapsed. The Court codd
violations thereof-werenclnot intendedrtta be justiciable atpaii.TheCourt
could, possibly, conclude in favour of our alternative contention as a
rnatter of law-that the onIy possible basis upon which alleged violations
could be judged would be one of alleged bad faith in the sense of policies ARGUMENT OF MR. DE VILLlERS Io5
direcied at an unauthorized objcctive. If the Court came to that con-
clusion then the Applicants' specific denial that they bring any case on
that basis would, in itself, be sufficient to conclude this whole part of the
case. That conclusion would, of course, carry within itself a rejection
of the Applicants' case-their suggested case-based on the existence
of suggested modern riorrns and standards, or a norm and, in the alter-
native, standards. The legal question particularly to be decided in that
regard would be whether any such norm or standards could be binding
in law upon the Respondent, upon a mandatory, without the consent of
the Respondent or the rnandatory. And, if the Court should conclude
those legal questions in favour of the Respondent, then, of course, that
u?ould be a basis upon which no further factual enquiry would be neces-
sary.
A further alternative could be, Mr. President, that if the matter is
viewed on the basis of the Applicants' premise that there could arise in
law a binding norm or binding standards (as apparently they suggest)
based on what is generally accepted in the modem international com-
munity, quite independently of the consent of the mandatory, and if the
Applicants suggest to the Court and the Court agrees that it is not itself
to indulge in that factual enquiry as to whether such a norm exists, that
the Court must only take as its guiding factor the pronouncements
which have been made by political bodies in the organized international
comrniinities-then, again, Mr. President,it would be apure question of
law, and ifthat contention of the Applicants is rejected that is also the end
of the question.Then there would be no necessity for a factual enquiry.
But, Mr. President, if tlie Court should, as a matter of convenience,
find it better to hold over al1decisions, including decisions of law, until
the end of the proceedings, the Court must now, on that basis, determine
in advance whether a factual enquiry is a necessary one or not. Then
the question becomes a very dificult one-it becomes very difficult to
Say that the Applicants have now made the position clear that such a
factual enquiry could not, on any view of the situation, be, in law,
rclevant. If it wishes to go into the matter piecemeal, the Court could
decide that, looking at the evidence on record, it becomes perfectly
clear that the Applicants cannot establiçh any factual basis for saying
that these suggested standards and these norms are universally accepted,
and that no further evidence on the Respondent's part, or no inspection,
would be necessary to demonstrate that. That could be a further basis
upon which the Court could come to the conclusion that such an enquiry
would not be necessary, but that, again, would entai1 that the Court is
to go into that question now at thisintermediate stage of the proceedings.
1 am merely putting those possibilities to the Court to see where we
stand because, as my Iearned friend has said, the nature of this objection
to the inspection has realIy opened up thc heart of thcse verjr proceedings,
and those seem to us to be the implications involved.
Our submission is that if the Court does decide to hold oveitsdecisions
on al1questions, including the questions of law, until the mhole enquiry
has been conducted-until the end of the enquiry-then it is not pos-
sible for the Court, on the analysis which we have given so far of the
Applicants' attitude, to say that such an enqujry could not, on any
basis of the legal questions involved, be a relevant one, and that we
would, therefore, insist upon the relevance of the whole of that factual
enquiry. If the Court could satisfy itself by additional means that we106 SOUTH WEST AFRICA
are wrong in that respect and make a decision to that effect, then, of
course, it would be different.
That, Mr. President, brings me to an allied consideration, one which
the Applicants suggested in regard specifically to the inspection proposa1
and in which they took up the strange and contradictory attitude that
our application in regard to that inspection was both too late and too
early :too late because it was never raised in the pleadings or by way of
correspondence at the pleadings stage (that complaint we find in the
verbatim record of 27 April at p. 4, supra), and in the very next
breath-too early, because the rnatter was, as they said, introduced
prematurety at a stage while the Court was stiU considering the legril
basis of the case. They said it shodd have been held over until later.
That we find stated in the verbatim record of 27 April, at page 4,sitw,
and also a conclusion stated at page 7.The argument in that regard Ras
apparently this, Mr. President: it was said that the Respondent itseIf
contemplated certain contingencies that might rnake it unnecessary for
the Court to go on an inspection or to have a factual enquiry ai all,
whether in regard to evidence or in regard to an inspection. In our sub-
mission, these conflicting cornplaints made by the AppLicants fniled to
take any account of the purpose intended to be served by written
pleadings. The niles of the Court provide that Nemorials and Counter-
Mernorials shall contain statements of fact, statements of law aiid sub-
missions-that we find in Article 42 of the Rules. The object of the plead-
ings, Mr. President, would seem to be, as in municipal systems, to clürify
the issues oflaw and of fact which are presented in each case tothe Court.
The purpose is to clarify thosc issues before the Court proceeds with the
hearing of the issues. It is only after the issues have been crystallized in
the pleadings that the Parties are in a position to decide at al1 what
further factual enquiry may be necessary by way of evidence or aii in-
spection or both. The Rules of Court, particularlyArticle 49, contemplate
that situation in that it requireç that notification should be given to the
Court in regard to the calling of witnesses and experts, not during the
pleading stage but in sufficient time before the commencement of the
Oral Proceedings.
There is no specific provision regarding inspections in loco but on the
analogy of that rule, Mr. President, itisevident that a proposal in regard
to an inspection cannot be said to be too late because itis made at the
oral hearing stage and not during the pleading stage. Indeed, during the
pleading stage one would be as unable to Say whether an inspection
would be necessary as whether evidence would be necessary.
By the same token, Mr. Prcsident, on the other hand, an inspection
proposa1 cannot be said to be premature merely because it has been
made at the very outset of theOral Proceedings. As an ordinary matter of
considering the convenience of the Court and again on the analogy of tlie
rule in regard to oral evidence, thiswould indeed be the most opportune
tirne for a party to notify the Court of its intentionin that regard, or of
raising a proposa1 in regard to an inspection. It does not matter that
decisions on particular questions of law may possibly render a factual
enquiry unnecessary at all. That position, in fact, appliesat the pleading
stage already. In the pleadings, the party must raise its questions of law,
itscontentio oflarvand itscontentions of fact,and some of those coii-
tentions of Lawmay be such that if theÿ are accepted, no enquiry into
the factç wilf be necessary but yet a party is required to go ahead and to ARGUMENT OF MR. DE VILLIERS =O7
set out its contentionsof facts in the pleadings on the contingency that
the question of law is not decided in its favour.
So also, when it cornesto the trial stage, Mr. President, the parties are
required in terms of Article 49 to give notice before the commencement
of the Oral Proceedings of the evidence which the parties intend to lead,
despite the fact that a decision on particular issues of law raised in the
pleadings may render such evidence wholly unnecessary. And in principle
there can be no distinction in that regard between the notification re-
garding evidence and a proposa1in regard to an inspection. The inspection
itself would just be part of the factual enquiry twhich the oral evidence
would be addressed. So, in both cases we find that the notification to the
Court is a provisional one; it is provisional upon the factual enquiry
being found to be necessary at all. The Court's procedure in regard to
deciding whether the factual enquiry will be a necessary one is, of course,
entirely a matter for the Court to decidein its discretion. The Court may,
in appropriate cases, consider it convenient and best to corne to a decision
on the legal issuesfirst and thereby to determine whether further factual
enquiry will be necessary at ail for the purpose of finally diçposing of the
case. On the other hand, the Court rnay proceed to hear the evidence and
the argument on all the issues and postpone a decision on al1the issues
until the end of the whole case.
In the present case, the Court might also foilow either of these courses.
It is entirely a matter for the Court to decide and \ve fulfy contemplated
that in our proposa1 as appears from our veqr statements, which the
Applicants quoted on 27 April, at pages 5 and 7, supra, of the verbatim
record, where we indicated, Mr. President, that on a particular decision
in regard to the particular questions of law, the factual enquiryrnay fa11
away and then the evidence and the inspection maynot be necessary and
1 dealt with that a moment ago.
Itis quite true that ifthe Court should fol1oi.vthe course offirst de-
ciding on the legal questions, then certain possible decisions at which
the Court might arrive would make the evidence and the inspection un-
necessary. 1 have given the examples of the cases in which conclusions
arrived at by the Court could bring about that conclusion. On the other
hand, if the Court should follow that course, consider the legal questions
first, reject our legal contentions, and conclude at least provisionally in
favour of the Applicants' legal contentions, subject to due proof of cer-
tain factual premises, then, of course, the factual enquiry would be neces-
sary. Alternatively, the Court might prefer to hold over al1 decisions
for simultaneous final determination and in that event too, the factual
enquiry would have to proceed. And, Mr. President, to bring this point
ta benr again on the question whether we came at the right time or at
the wrong tirne with this proposal, for the mere sake of enabiing the
Court to decide on a balance of convenience which course it ought to
pursue, i.e., whether it oughi to decide the Iegal questions first or at
least to attempt to decide them first or whether to hold over al1decisions
until the end of the case, it may be a matter of the greatest importance
to the Court to know-now what would be thc practical implications of
these two courses? What would be the practical implications of holding
over al1 decisions until the end? IVould that involve an enquiry into
facts, with evidence and with the possible inspection which majr take
a very long time, which may be expensive and so forth, and which rnay,
in the light of an ultimate decision on a legal questionbe shown to have108 SOUTH WEST AFRICA
been unnecessary? That is certainly a factor which the Court will take
into account in deciding whether it will follow the oiie course or the
other, and for that reason it is so essential in Our submission to inform
the Court beforehand whether we intend to call witnesses, how many
witnesseç we propose to call, and whether we makc any proposa1 in regard
to an inspection.
IVe do find,however, that the Applicants' objection to the inspection
proposa1 in this particular caçe, based on a consideration of relevancy, in
effect invites this Court to consider at this interim stage (1 take it to be
the end of the argument oii the legal questions), what its attitude is
on the legal basis of the case-at least provisionally, to sec whether there
can be any basis at al1upon which it can be çaid whether the legal issues
-the conflicting contentions of the parties in this regard-are of sucli
a nature that it can be concluded in advance that an inspection wiii not
be necessary. hs 1 have said before, the Court could corne to the conclu-
sion that no factual enquiry would be necessary, either on the basis of s
decision of legal questions which have that result, or on the basiçof satis-
fying itself that the Applicants' case invites no factual enquiry mhat-
soever, but the second would, iii iny respectful submission, seem to have
been excluded for the reasons lvhich wë have given.
1can, therefore, Mr. President, continue to deal with the various points
which my learned friend has raised in regard to the inspection issue only
on a contingent basis. 1 have to put this contingency to the Court that
if it should find in one Ray or other that a factual enquiry would be
necessary, then the further question would arise-should an inspection
be included in that factual enq~iiry? That would be a sound basis for
enquiring into the validity of the various other points raised by rny
learned friends on this question whether there ought orought iiot to be
an inspection.
The Applicants gave a nurnber of what I might call "minor reasons"
why they said even on this basis, there ought not to be an inspection at
all.?Vhen we analysed them Mr. President, ive Iound that they can best,
in our sub~nission, be described as frivolous and vexatious as far as the
preponderant number of thern is concerned. They contain the sugges-
tion, which 1 have dealt with that we were both too early and too late,
that the whole case should first be disposed of by the Court, both in
regard to the legal questions and in regard tothe factual questions, before
there is to bea decision on the inspection question at all.They also raised
the question why a cornmittee of the Court only is proposed as a possibil-
ity, when we have çaid that itissoimportant for everybody to see African
reality. They raised that questioii, Mr. President, although in almost the
same breath they expressed concern, amongst others. about the expense
and cumbersorneness of the proposed inspection. They said that the visit
to South Africa, bvhichis proposed, ought to have been unqualified and
unconditional, but they said that in spite of the fact that their real
attitude is that there should be no visit ta South Africa at all, or, in-
deed, to any other African territory. They went to the lengths, $Ir.Presi-
dent. of saying that an inspection would necessarilv involve the taking
of evidence, and that that wouId have some fantastic results. This isthe
nature of the objections which were raised.
Mr. President, bcfore I deal with any of them, 1would suggest, with
the greatest respect, that the renl reason forthisattitude why there isto
be no inspection at all, is a perfectly obvious one. It is perfectly obvious ARGUMENT OF MR. DE VILLIERS 109
that the Applicants caiinot face up to this factual enquiry, they cannot
faceup to a cornparison of standards of well-being and progrcss in their
own countries and those in South West Africa. They had to hnd a formula
to rule out the whole proposa1 and, in doing so, they emphasized the
fundamental weakness of their case in law, in fact, and in morals. My
Iearned friend said the whole heart of tlic case has been torn open, When
1 Say these things, Mr. President, they may sound hard, but I am not
hitting at individuals,1 am hitting ai my learned friends least of al1or
at anybody bringing this case against us. 1 am hitting at the case
itself, a case which is, in its essencea hypocritical case, one which can-
not stand up to enquiry by this Court but which invites this Court to act
as a rubber stamp, in the way in wliich 1 have indicated before. It is
against that background that 1 deal with these objections, because it
throws a considerable light upon the whole situation.
I might as well deal first with the last one-the suggestion that an
inspection will necessarily involve the taking of evidence, and then the
building of some really fantastic results upon that suggestion. Those re-
sults we find set out in the verbatirn record of 2s April 1965, page 49,
supua, where my learned friends say that ifone has an inspection in
South West Afrjca, then there must necessarily be an enquiry into the
views of the peoples coricerned, and they pose the questions of how many
of these peoples areto be hcnrd-how many of the individuals concerned?
1s there to be a plebiscite? ihat is the position about petitioners, who,
the Applicnnts Say, have fled the country? Are they to be allowed to
return to give evidence? And su forth.
Now, Mr. President, let me immediately make this clenr. 1have nevcr
heard of the concept of an inspection including necessarily, or otherwise,
the taking of evidence, An inspection is one particular manner in which
a court inforrns itselby looking, not by taking evidence. The court looks
at what it considers to be relevant, and what it considers to be informative
for the purpose of any factual enquiry upoil which itrnay have to indulge.
There is no suggestion that if one inspects, then one must hear evidence.
and there was never any such suggestion from our side. There kvas never
any suggestion that ifthe Court is to inform itself about the w7rtysin which
people live, about their standards of living, about the differcnces between
them, and so forth, the Court is to talk to those people or to hear any
evidence in that regard. The Court will see those things for itself. There
rnay have to be some identification, somebody rnay have to say to the
Court that it is now looking at a Damara township and not at a 1 ama
township, or similar, and if there should be any dispute about that, it
rvould have to be a siibject of evidence, when the Court resumes again.
But normally one finds no difficulty aboiit things of that kind.
Xorrnally, a court, or inspecting comrnittee if it rnay be so decided
in this case, will record what it has seen, in so far as it regards that as
being important. And what is recorded is nomally, in the practices that
1 am acquninted with, read out to the parties first in a provisional form,
when the case resumes in open court again, so that the parties can offer
comment, whether the rccordings are accurate or not, before the court
comes to a final conclusion thatthat is to be the record of its observations
on inspection. So, therefore, al1these fantastic questionsas to hourmany
people are to be heard, whether there is to be a plebiscite, whetlier peti-
tioners are to be heard, and so forth, al1fa11away.
3ir. President, 1 should like to say something further about this ques-II0 SOUTH \EST AFRICA
tion of the petitioners. First,my learned friend niade this statement:
". ..some petitioners have been among the nurnerous inhabitants
who have managed to Ieave the Territory for the purpose of pursu-
ing educational advantages not permitted to them in the Territory
under the adrnitted poLicies and practices of apartheid". (Sufiru,
P 49.)
1should like, Mr. President, to Iiear proof or evidence in substantiation
of this wild statement about the "numerous inhabitants ~ho have man-
aged to leave the Territory for the puryosof pursuing educational advan-
tages not permitted to them in the Territory . ..".1 do not kiiow of
any possible justification for an averrnent of that kind.
We heard more, hir. President. We heard that the Applicants have not
relied upon the accuracy of staternents insuch petitions-that is at the
same page-and yet, later in that çame sentence we are told that the
Applicants have cited such petitions for the bearing they may have as
confirmatory of the reasonabIy predictable consequences of the practices
and policies which are undisputable. Mr. President, if petitioners cannot
be believed, ifany person cannot be believed, how can their staternents
be relied upon as being confirmatory of anything? 1 could say this about
the petitionerç.The whole basis üpon which the suggestion was dragged
across the trail, falls nway, of course, because the proposed inspection
does not envisage the taking of any evidence. We certainly do not pro-
pose to call petitioners, either here or elsewhere, as witnesses because
we know, and we have demonstrated on the pleadings already, that no
reliance can be placed upon their evidence. lire could consider quite
seriously, ifmy learned friends should wish to call thern, whether me
ought not to offer topay their witness fees so as to allow us the privilege
of cross-esamining them. That is al11 think 1 need Say about the peti-
tioners.
Next, Mr. President, X must refer to my learned friend's suggestion
that Respondent advanced three principal grounds in support of its
proposal. He said that the first of these grounds was the alleged moti-
vation underlying these proceedings-the alleged motivation on the
part of the AppIicants. That 1vefind in the verbatim record of 27 April,
at page g, supra.
Mr. President, nothing is further from ütrue analysis of what we said.
lie did net rely on the alleged motivation on the part of the Applicants
as a reason $87 se why there ought to be an inspection. Ive referred to
that motivation in a completely different context. Ure referred to it as
demonstrating a part of the tremendous conflict of fact which there is
between the Applicants, on the one hand, and the Respondent, on the
other. That becomes perfectly clear if we look at the verbatim record of
30 March, VIII, page 272 and again at page 277, where I was putting the
proposal in regard to the inspection. At page 272 we made it clear that
the attitudes of the two Parties in that regard weresuch poles apart that
the leaders of the campaign against the Respondent Governmeiit:
". ..like to portray that campaign as something in the nature of a
holy crusade of modern times-as something required to liberate
fellow human beings from conditions which are said to be \varse
than slavery".
1 omit a sentence, and proceed: AKGUMENT OF >IR.DE VILLIERS III
"Froin the South African point of view we sce that campaign as
being one of abuse and vilification, motivated on the part of its
leaders by purely political objectives with very littlifany, bearing
on the real merits of administration of the Territory of SouthWest
Africa, or the real interests and needs of the population of that
Tcrritory." (Ibid.,p. 273.)
In reading out this latter portion to the Court, my learned friend
omitted the first portion. He omitted the whoIe point of it, the comment
which isdirected at demonstratingthat at thatstage therewas that dispute.
There was no intention, as 1made clear immediately aftenvards, of going
into the merits of the dispute at this particular stage, because, quite
clearly, those merits had iio bearing upon the question whether there
ought to be an inspection or not. It is the fact of that dispute, which
was part of the background of the application, which was one of the
reasons why it was said that this waç a case wherc the Court should leave
no stone unturned to have an ahsolutely full enquiry into al1relevant facts.
That is made clear at page 277, where we said:
"It is against the background of the extraordinarily wide divergence
between the Parties, both in respect of the motivation behind these
proceedings and in respect of the merits of the solution tbe arrivecl
at as regards policy. It is also because of the importance of appreci-
ating al1 aspects of tlie facts and particularly the factor which I
mentioned earlier, the importance of seeing African reality, as dis-
tinct from just rending or hearing about it." (Ibid., pp.277-278.)
That made it clear in ivhat context we raised this matter, Mr. President.
3Iy learned friencl need not be afraid,1 shall, in due course, when we
corne to that part of the proceedings, deal fully with, and 1shall sub-
stantiate fully, what we said in that regard-in regard to this motiva-
tion-but itis not relevant at this stage to go into the merits of that.
What is relevant iç the fact that there is that wide divergence.
Then, >Ir. President, my learned friend asked what this Court is
going to look at in South West Africa, either on thc basis of the Appli-
cnnts' contentions, or on those of the Respondent. On either basis, he
said there was no need to see anything; there was nothing the Court
could see ~vhichcouId be of assistance to the Court.
Now, hfr. President, inorder to answer the question of what the Court
will look at in South West Africa, it is sufficient for me to make the very
simple statement that we invite the Court to look at al1 phases of the
material and moral well-being of the peoples concerned, and at al1
surrounding circumstances whicli have a relevant bcaring upon the
promotion of that \frell-beingand progress.
We ask the Court to look at al1the phases raised by the Applicants in
their pleadings-political, the rights of residence, freedom of mol-ement,
sccuritv of the perçon, education, economics. We sliall ask the Court in
the political çphere, Mr. President, to have regard to this alternative
policy which the Applicants suggest to the Kespondent Government, on
the basis of the norm or the standards on which they rely. 1 refer the
Court to the Reply, IV, page 441, ~vhere the Applicants state the fol-
lowing. under the heading "Statcment of Law":
"With regard to political rights, the relevant and generally
accepted norms by which the obligations stated in Article 2, para-
graph 2, of the Mandate sliould be measured, have been established SOUTH WEST AFRICA
by the United Nations. These include the institution of universal
adult suffrage and the promotion of participation on the part of al1
qualified individuals in al1levers of government and administration,
within the framework of a single territorial unit."
In other words, tliis rneans complete, or an attempt at complete, political
integration of al1 those various peoples of South West Africa into one
political unit.
hZr. President, the inspection could be of tremendous value to the
Court, or to its committee, if it were to observe for itself whatare indeed
the differences between the various groups; what are indeed their
various standards of living, their various modes of living, and so forth.
We talk about those things on paper; kvegive descriptions as far as we
can; we say there are these differences; but, hlr. President, those are
mere words. Those words have to be brought to life in order to evaluate
them with reference to a proposition such as this: that al1those people
are to be thrown together into one political unit in an attempt to iiite-
grate them all, and into a system which is then expectcd to work for the
benefit of them all, and particularly for the individuals about whom my
learned friend is so concerned. Those things have ta be brought to life.
Tliere is always some aspect of a situation of that kind which has to be
evaluated, as distinct from merely spoken about, which is not contained
in a description on paper, which is not contained evcn in a description
by a witness telling about it in the witness-box. There are always various
elements in the situation which one sees,but about which one does not
talk. If a valuator has to value a farm, he may get a11the details on
paper about the size of the farm, the improvements that esist,descrip-
tions of the improvements and the type of land and so forth, but still,
Mr. President, he does not rely on that alone; he goes to the farm and
sees for himself; he makes the various elements live; he brings them
into conjunction with each other, and then he evaluates. Itneed hardly
be necessary to emphasize to the Court the importance of seeing those
things for oneself beforc one makes a value judgment of that kind.
In regard to rights of residence, freedom of rnovement and security of
the pcrson, my learned friend rather chalIenged me to suggest anything
wliich the Court coiild see in that respect. Then he himself spoke of the
alleged suffocating weight with whicli the various pass laws and so forth
rest upn the shoulders of the persons affected by them. He invited this
Court to put itself in the position of persons affected. air. President,
that in itself is a false cornparison, unless one puts oneself completely
into that person's position. Tt is not for somebody from outside South
IlTest Africa, from outside the life,the traditions and the background of
the people concerried, to try to put himself, with his different back-
ground, into the position of those people. What is to be judged is the
weiglit, the suggestcd weight, or the effect of those provisions on a
person ïirith that particular background, with thosc particular circum-
stances, with the modes of living to which he is accustomed. hlr. Pre-
sident, that is what 1suggest the Court could observe in an indirect way,
very validly and in a valuable way, for itself. The Court can see whether
there is to be observed in the bearing of the peopte, in the way in which
they rnove, iri the way in which they live, and so forth, any suggestion of
such suffocating weight, any indication that these people are mere
sIaves, that every movernent of theirs is controlled from dawn tili dusk,
as is suggested in that particular portion of the Mernorials which, inci- ARGUMENT OF MR. DE VILLIERS =13
det-itall!~,we analyse inthe Counter-Memorial, aiid which we show to be
inaterially incorrect in so rnany respects.
&Ir.President, in regard to schoois-the school-cliildren of the various
Native peoples of the Territory; where they go ta schooI, ivhere tliey
learn,where they are taught, where one sees'them in their actual life-
surely one can get an impression whether they are really children of
whom it caii be said that they are being educated for slavery, or for
servitude; whether they make the impression of being repressed or
oppressed; or whether they are being taught in a practical and an
effectiveway, which develops their personaiities and their minds in al1
relevant respects of their lives; which looks at them, in other words, as
individuals in their particular circumstances, and not in terms of a norm
which says that there is to be a manner of educatingthem which is to be
applied irrespective of whether it benefitç them or not.
If it comes to the economic sphere, hIr. President, sureiy the Court
will be able to see whether it is true to Say that the Natives are merely
employed as menial labourers; that they are not allowed to rise above
that level at ali. Surely it ivill be possible for the Court, or the inspecting
committee, to see what the primary econornic needs are of the people
that itsees there; whether the primary needs are that one or the other
should be able to become an engineer, or whether those needs rire of an
entirely different kind; whether Respondent's policies really relate to
the problem of assisting those people to overcome the difficulties of a
liard and a harsh Territory, as far as making a living out of its soil, and
out of its climate, and out of its conditions is concerned. The Court can
see and evaluate for itself what degree of technology is required in order
to make any economic progress at al1out of the soil and out of the con-
ditions of SouthWest Africa in regard to the combnting of cattle diseases;
in regard to exploitation of the minera1 wealth of tlie Territory for the
bencfit of tlie wkole population: inregard, Xr. President, to overcoming
difficultiea of water scarcity; in regard to overcorning difficulties of
poorness of the soi], or ofsoils that have been spoilt by salt content and
that sort of thiiig; matters which al1require the application of modern
techniques, modern technology, in order to cnnbie any progress to be
made at all.
An inspecting committee is able ta evaluate whether it is truc toSay
that there is a population pressure on the Ianclin the Native areas, and
that that population pressure makes it necessary for the Natives to come
out to work as menial labourers for the Europeans. The inspecting
committee can see for itself whether those Native areas are indeed, as is
alleged, the poorest areas, or whether they are, as we Say, of the best
areas of the Tcrritory. It is not merely a matter of accepting the one
statement or the other; tliere is still the question of degree involved;
there is a question of evalirating that, and of observing the degree to
which those territories are, in fact, better than any of those occupied by
the Europeans.
IIr. President, the Court will see-the inspecting committee will be
enabled to sec-the good with the bad. It can look at elements; itcan
look for evidence of what is alleged to be bad in tlieihole system, to see
whether it fintls anything of that kind, whether it finds a system of
slavery, of oppression, or whnt have you, or whether it finds a situation
of various peoples growing in stature, growing in confidence, growing in
the degree of trust and CO-operation which they have in one anotherII4 SOUTH WEST AFKlCiZ
when they know that the one's existence is not threatened by the other.
The viçitinggroup, whether it be the Court or a committee, will be able
to see in what respects it could possibly be said that the Mandatory
could have improved upon what it has done; in what respects al1is not
esactly as it should be; but how that is to be evaluated in the total
picture. 1 am not going to suggest to the Court that the hlandatory
Government has been faultless in every respect, that there is riothing
which a committee wiil see, or which the Court will see if it goes as a
~vhole, which it will not find to be unfavourable. But 1 do suggest,
Mr. President, that the Court or that committee will find that, viewing
the whole situation, it is one in which there is a real endeavour to pro-
mote well-being and progress to the utmost; where one can see, and
where one can feel the pulse of it, and the manner in which the whole
situation is growing in the way foreseen in the basic principles of this
policy. That is what 1 suggest the Court rnay see, very beneficially, for
itself.In general, Mr. President, in South West Africa or in anp of the
other territories which 1 have suggested, it will be possible for the Court
to see instances where the standards of development of the indigenous
peoples may be below that of the Europeans. The committee or the
Court will be able to judge for itself whether that isto be attributable to
a particular policy, or whether it is to be attributable to African reality;
and in that respect particuIarly it will be so useful to the Court to be
able to make the cornparison between territories in which this policy
has been applied and is being applied, and territories in which it is not
and has not been appiied.
[Public kearing of 4 May 1.9651
&Ir. President, nt the conclusion yesterday, 1 was dealirig \rith the
Applicants' question as to what the Court would see on an inspection
that could be helpful and relevant, either from the point of view of the
appronch of the .4pplicants in the case or from the point of viem of the
Kespondent. 1 had virtually concluded what 1had to Say in that regard,
provided that it isborne in mind that 1was giving examples oiily. 1 was
not trying to state what a full itinerary would look like-that would be
a rnatter for later consideration.
1 may revert to the fact that rny learned friend asked the Court
yesterday, in that regard, whether an inspecting body would look at the
operation of a peiia1 provision in the Nursing Act. It seems that my
learned friend, not heing able to obtain complete satisfaction from the
engineers' example which he uscd, tried to turn to thisone. Mr. President,
from what Iknow of the situation in general, it seems most unlikel~.that
itwould everbe found necessary to applj thjs provision at all,so it seerns
most unlikely that the Court would see this provision in operation. Rut
what the Court would see in regard to nurses, would be the training of
Native and Coloured girls as nurses, both as fully qualified nurses and as
auxiliary nurses. The Court would see the facilities, the Court would see
the people involved, and thecourt would be able to judge for itself ïvhether
it would be a fair judgment to Saythat there is aiiy sign of proclaimed in-
feriority in that regard.1could conclude, 3Ir. President, on this aspect by
saying that in view of the allegations of deliberate oppression which are
still on record-the allegations of the suffocating weight of restrictions, ARGUMENT OF MR. DE VILLIERS 115
the allegations of subjugation, the allegations of the absence of any hori-
zon of hope coupled, >Ir. President, with ailegations made with regard to
alleged militarization, and with the allegations of the arming of the
European population with a vjew to the suppression of the Satives-in
the light of these allegatioitmight be veryinstructive for the inspecting
body to see for itself whether there exist ariy of the signs of a police state
or the signs of tension or unrest that one would expect to be associated
with a situation as so described.
Now, Mr. President, 1proceed todeal with another query raised by my
learned friends, tothis effect, that if African reaiity requires to be seen
in order to be appreciated, why do we suggest the possibility that a
comrnittee of the Court might go on this inspection as distinct from the
wliole Court, according to the Court's own preference. This point was
made by rny learned friend in the verbatim record of 27 April, at
page 15,sufim. Now, Mr. President, it is quite true that if one were to
look only at the strictly logical consequences of the desirability of seeing
for oneself-if one were to look only at that consideration-then it
would be preferable for the whole Court to go. Surely there are other
practical considerations also to be brought intothe scales and it is for the
Court to decide, because we left this to the Court's preference, what
weight is to be assigned to such practical considerations to the contrary.
My learned friends themselves referred to the factors of expense and
cumbersomeness. In addition, thcre is this important factor which came
to mind from Our side, viz., that for persona1 reasons of health and
strength it might well be that in the case of individual members of the
Court it rvould be unfair and unreasonable to expect of them to undertake
a strenuous task-undoubtedly a strenuous physical task-such as an
inspection of the nature envisaged. It was for reasonç of this kind that
we thought that the Court might wel1consider tllat it might be prefer-
able, weighing the pros and the cons of tlie situation, to have an inspec-
tion by a committee rather than by the whole Court, but we still leave
the decision and the preference in that regard entirely to the Court.
We also considered Mr. President, with submission, that if the Court
should find it undesirable that the whole Court should go then it would
still prefer that there should be an inspection through a cornmittee
rather than no inspection at all.
Surely the difficulty which my lcarned friend raised about how the
comrnittee would convey its impression to the Court, is highly exag-
gerated. Surely it woulcl make a very big difference to the Court to be
informed in that respect as to the total impressions, and the reasons for
those impressions, of a body consisting ofits owvnhlembers: that would
surel}.mean vcry much more to the Court than merely being informcd
by one or other of the Parties or by a witness for one or other of the
Parties.
Then Our learned friend raised the question, in the same contest and
on the same page of the record. as to how impressions gained on an
inspection by tlie Court, couId be adequately recorded. Mr. President.
that question, in my submission, is mereIy a facetious one. Therc are
so many instances in life and in the legal process itself in which it is
impossible to record every minute aspect that goes into an impression,
arid .et the impressions themselves, as a whole, are treated aç being
l-iighlÿ relevant and highly important in many instances. To take an
esample from the legal process itself, there is the illusive question of theI16 SOUTH \$'EST AFIZICA
derneanour of a witness in a trial, and the whole atinosphere of the
trial, factors to which a court of appeal, sitting on appeal against a
judgment of a court of first instance on a trial on fact, always give the
greatest weight in considering whether tliere is justification for it to
differ from the finding arrived at by the court of first instance. It is
quite impossible, and it is accepted that it isimpossible, to describe
every aspect and detail of what goes into those impressions as to the
detneanour of a witneçs or the atrnospherc of a trial-and yet they play
important parts. It is the totality of the impresçions Iionestly and
thoroughly arrived at by a process of investigation wl~ichcountç. and
some indication of the reasons why that totality of impression was
arrived at is always possible.
EquaIly facetious, Mr. President, is the nest point to the effect that if
the Court sees other territories in Africa otlier than South IfTest Africa
itself, why should itstop there? Why shoiiid it not see territories outside
Africa as we117 That we find in the verbatirn record of 28 April, at
page 48,supra.
Mr. President, we did not suggest that a comparison of general con-
ditions in couritries outside Africa would, in any way, be helpful or
rcIevant in this case, as ivesuggested in respect of territorielitAfrica.
We spoke, in the course of Our pleadings, about particular points of
rclevance in such countries, specific façts, for instance, about migrant
labour, manifestations of group reactions, and ço forth, but we nowliere
siiggeçted that, for the purposes of the points ive wish to make in that
regard, it would be at al1necessary or desirabte for theCourt to make an
inspection in that regard. If one were to go through the list of items
laboriously and analyse each one.item by item, it might be founcl that
in the case of soinc item it would perhaps nssist the Courtifit could have
an inspection, but surely there are degrees of relevance and degrees of
importance in regard to questions of this nature. We refer to such
countries in respect of isolatcd points in regard to such questions, but
there could never be a serious suggestion, as far as we could sec, that
there should be an inspection of the countries concerned. If it had heen
niy learned fricnd's case that there should be an inspection of such
countries, one could still understand a point of this kind being rnised,
but hiç case is, in truth, that thereisto be no inspection at all. Indeed,
on this aspect Iiiscase is that consideration of the questions which arise
in regard tothese other countrieç is totally irrelevant.
Mr. President, 1 think we can now Ieave that point. A good frienci of
mine has a description for points of that kind. He calls them "talking
points", and 1 think that description could,with submission, well apply
in respect of this particular point.
1Vehave a similar manifestation of inconsistency, Blr. President, in
rcgard to our suggeçted visit-a limited visit-to South Africa itself.
My learned friend says that that inspection, or viçit, should hc an
unconditional and an unqualifred one, or nothing at al]. That point we
find dealt with at some length in the verbatim record of 28 April, at
pages 50-53 upra. Again, Jlr. President, this cornes very strangely frorn
a party who says there should be no inspection at allThe fact that there
are special limitations with regard to relevance, as far as South Africa is
concerned, as compared with South West Africa, is so obvious that it
does not, in rny submission. require aiiy demonstration or elaboratiori.
Itis also quite wrong to suggest, asmy learned friend did, that Ive did ARGUMENT OF MR. DE VILLIERS 117
not indicate a similar limitation with respect to the other territories in
Africa, other than South West Africa. Of course we did not indicate a
limitation based on the same grounds, but we did indicate a limitation
in the sense that the inspection, or visit, should aelimited one, limited
to a particular purpose.
1 should like to refer the Court to the verbatim record of 30 Marçli,
~vhere we dealt wjth the matter, at VIII, page 279 in the paragraph
beginning "Secondly", i.e., the proposed visit to the Applicant States,
Ethiopia and Liberia. We said that that was to be:
"... for the purpose, and to a sufficient extent, to enable the Court
or its cornmittee to form a general impression of comparable con-
ditions and standards of the material and moral well-being and
social progress of the inhabitants concerned; a limited purpose,
limited to what 1 have just mentioned".
1 need not quote any further.
Then, when we came to the third part of the proposal, i.e., in regard
to other territories in Africa, we expressly linked it up with what we had
said in regard to Ethiopia and Liberia. ive said atpage 280 of the same
record :
"Thirdly, Jlr. President, we propose that a visit should be in-
cluded to one or two further sub-Saharan countries of the Court's
own choosing, also for the purpose of gaining a general impression
regarding comparable standards of the same nature as 1 have just
mentioned in regard to the Applicant States."
1 do not think 1 need say anything further in that regard.
Mr. President, we then heard a contention by my learned friend
that an inspection, aç proposed, would virtually convert this Court's
function into one of administrative su ervision. Ive find that in the ver-
batim record of 28 Apdl, at page 3( sufra. At page qr, of the same
record, the further suggestion wasmade that if this enquiry were to relate
to bona or mala fidesitrnight wellhave to be a continuous ciiquiry because
what would be found in one year, migiitnot necesçarjly apply in the next.
This last suggestion, &Ir.President, of course, would apply to any factual
enquiry, not only an enquiry in regard to bona or mala fides.Any factual
enquiry by a court or by a visiting group or inspecting body on a qiies-
tion of tact would carry that implication with it.
My learned friend secms to have forgotten that tbese and sirnilar con-
siderationç were the very ones that we stressed in regard to our niriin
contention on the justiciability of issucs arising under Artic2 (2)of the
Mandate-the very considerations why we suggested and we subinitted
that this Court was never intended to esercise a function of that kind; but
1 need not enlarge upon that in the contevt of this inspection proposal.
My learned frjend further emphasized that certain factors of conve-
nience, expense, and time were to be considered and to be weighed in the
balance. We fully agree that they are to be weighed in the balance, hlr.
President, and we subrnit that they surely cannot be regarded as out-
weighing the importance of a proper and full investigation into a case of
this kind which, in my learned friend's o~vndescription, isone \ilhich
affects the liveof çuch a multitude of individual hiiman persons. Surely,
when that consideration iç brought into the balance, it must outweigh
the relative considerationsof time and expense and coiivcnience referred
to by my learned friend.118 SOUTH WEST AFRICA
In this regard,I could make it clear that the test of convenience would
certainly play an important part in respect of various of the practical
arrangements which would have to be made for the purposes of conduc-
ting an inspection, and 1 want to emphasize, Mr. President, that in re-
gard to detailcd matters or particular points involved in our proposal,
if the Court should have any difficulty about those, as distinct from the
general principle of the proposal as a whole, then Our suggestion is, as
we tried to indicate initiallythat those are matters for further consulta-
tion between the Court and the Parties through the ordinary channels.
We cannot, by way of a discussion in open court, decide upon every de-
tail. They would certainly have to be dealt with in a practical way by a
more direct form of negotiation. What Ido want to make clear is that if
anything we have mentioned as a matter of detail on a particular point
may present the Court with some difficulty, the Court is not to assume
that its difficulty in that respect ought necessarily to wreck the whole
scherne.
hlr. President, this ties up ~ïrithanother question of convenience, in
regard to which the Court also has to weigh the balance of convenience.
It is a matter to which 1referred yesterday and to which I wish to revert
very briefly by way of conclusion in this regard. It is the balance of
convenience between, on the one hand, deciding certain legal questions
at the stage of completion of the legal argument, and, on the other, hold-
ing over al1questions until the end of the factual enquiry,
1 indicated in that regard, Mr. President, that ifthe former course is
followed, Le., if the Court decides that itisnow more convenient to con-
sider whether it can corne to conclusions about the legal questions, then
it may well be possible for the Court to rejcct the Applicants' contention,
orcontentions, based on norms, or a norm, or norrns and standards,
witliout further factual enquiry, arid 1 want to make it perfectly clear
what me mean in that regard. We contend that there could be such a
rejection of the Applicants' contention, without further factual enquiry,
but that there could not be afinding in favour of that contention without
further factual enquiry, at least not on a basis of giving effect to the
principle of audialteranzpartem. The first basis upon which the Court could
decide that there would be no further need for a factualenquiry, could be
the legal basis wesuggested, namely that no such norm or standards could
be binding upon the Respondent independently of its consent. That
would entai1 no further enquiry because it is common cause that no such
consent has been given-the Applicants do not attempt to establish
any such consent to such a norm or such standards. An alternative basis
upon which the Court could corne to a similar conclusion from apractical
point of view wouId be a factual one, even w'ithout further factual en-
quiry. This couid happen inone of two instances. One of these could be
if the Applicants were to make it cIear to the Court, and the Court were
clearly to understand them as saying, that for the purpose of findingin
their favour on this norm and upon these standards, the Court should
look only ai the decisions and the statementsof international bodies such
as the United Nations and its specialized agencies, and at statements
possibly also made by certain governments upon which they rely to the
exclusion of any further factual enquiry into relevant sources of norms
or standards, of any relevant factual enquiry of the kind 1 indicated
yesterday ivith reference to expert evidence, and evidence of people who
deal with thc matters indicated in practice and in life. Ifthe Applicants ARGUMENT OF MI<. DE VILLIERS ==9
should make it clear that that is the narrow basis upon which their case
rests, and the Court is satisfied that thats not a sufficient factual basis
upon which one could possibly corne to the conclusion contended for by
the Applicants, theii that would again be a reason for the Court to Say
that no further factual enquiry is necessary.
Finally, there is a further alternativeand that iç that the Court may
look at what is already on record in regard to the question whether the
standards relied upon by the Applicants from which they wish to distil
their norm, are in truth universally accepted or not; and the Court may
well, if it should find that convenient, ask the Parties to address it
specially on that question, because my suggestion is that upon considera-
tion being given to that question, the Court might very well corne to the
conclusion that it is perfectly plain on the record, which the Applicants
have made clear they do not want to supplement by way of evidence,
that it is impossible for them to establish a contention that thosestandards
upon which they seem to rely are, in tmth, universally accepted.
Alternatively, hlr. President, if the Court should find ththe matter is
not decisively answered in our favour by the facts already on record, then
1submit that the Court could not make a finding against USin that respect
without considering the further evidence ~vhichwe wish to tender in
that regard-the evidence and the proposed inspection.
Now, Mr. President, asregards the other possible approach on the part
of the Court, viz., that it should decide to hold over al1 decisions until
everything has becii disposed of-in other words, that everything should
be decided at the canclusion of the proceedings, if that should be the ap-
proach, Mr. President, 1 submit that it is very clear that the factualen-
quiry would have to proceed, except forone further possibility, and that
is that the Court might make one exception to its policy, its suggested
policp, of not making any decisions at tliis stage, that the Court dinake
this one decision-narnely that the Applicants have made it clear that
they do not, and that they will not, make any case beyond of saying that
the decisions of the political international bodies and the staiements of
the governments are the only relevant factual considcrations. If they
make it clear that they rest, as a matter of fact, only upon what the
United Xations and other international organizations may have decided
and said,plus what certain governments may have said, and that they
do not rest their case onany other factiial consideration whatsoever, then
the Court might conclude that even if it were to hold over al1 its other
decisions till the end, it would be already clear tliatno further factual
enquiry ~~~oulb de necessary. But the only possibility of coming to such
a.coiiclusion, would be if that course of procedure should be adopted by
the Court.
There is a further point raised by the Applicants in this respect to
which 1 should refer briefly, and that iç a suggestion which they made in
the verbatim record of 27April, at page j,supra. That was a suggestion
to this effect: that the Applicants have reserved to themselves the
right to show in the factual phase of the proceedings how important the
so-called requirement of international supen~ision is; and they went so
far, if1understood them correctly, Mr. President,as to suggest that for
that reason the Court would have to wait until the end of the factual phase
of the case before it could even make a decision on the question whether
an inspection would be relevant at all. Qlr.President, surely that point
could not be sound. SureIy, if my learned friends wish to refer to any12.0 SOUTH WEST AFRICA
facts as being illustrative oa legal argument, they can do so ivhile they
put the legal argument. It is not necessary to have an enquiry about
the facts firçt, or that the facts should be found to be establisheby the
Court, or that they should be common causes between the Parties. If
one illustrates a legal argument by reference to a factual situation, one
postulates that situation, and one says "Let us assume the facts are so-
and-son, and that is a sufficient illustration of the legal argument. There
isno reason whatsoever why my learned friend need find it necessary to
reserve such illustrations of his legal argument to the factual phase of
the case. He will have a full opportunity, during the presentation of
his legalargument which he will continue in the course of his reply to the
Court, of statingany fact he wishes by way of illustratioof his argument,
and he can make any assumption he likes for that purpose.
That, Mr. President, concludes my argument strictly on the question
of the inspection. There is one point which my learned friends raised
in close conjunction with the inspection proposal-they referred to it
several times-and it may be convenient if 1 were to react to it straight-
away. It is a practical point, namely the suggestion that the evidence
which we propose, if the Court should find it necessary to have regard
to that evidence, could or should be put before the Court by deposition
and not orally. Now, hlr. President, if we had wanted to put more facts
in writing before the Court than we have done already by referring to
people who can be quoted as authorities for those facts, then u7ewould
have done so,and if we had required more time, then WC would have
asked for the time. That is not the purpose of the calling of the evidence
at all. The purpose of suggesting that the Court might find assistance
from the oral evidence is an entirely different one.It is that the Court
would, through the very process of having evidence presented to it,
viva voce, by witnesses in open Court, be placed in the best position
to evaluate the conflicting contentions on questions of fact-to evaluate
the facts tobe weighed in the scales against oneanother. The Court would
have an opportunity of observing the personalities of the witnesses who
express particular vieurs, particular conclusions, particular opinions to
the Court-the results of their experience, and the like. The Court
would be able to judge whether those persons are to be seen as fanatics or
crackpots, or whether they are balanced persons, i.e., persons with a
reasonable and balanced judgment. The Court would have the facility
of questioning the witnesses and the experts on their reasoning, to test
them as far as may be necessary-as far as that may be of assistance to
the Court. Then there would be the facility afforded to the opposition
to cross-examine if they Lvishedto use that. My learned friend has in-
dicatedhe does not wish to make use of that facility, but, >Ir. President,
there is that facility, andifthe opposition does not use it, it would still
be open to the Members of the Court to put questions. And it would be
exactly by those processes, Mr. Preside~it, that the Court woulrlbe placed
in the best position to evaluate. That isthe hasis upon which we suggest
that it would be of considerable assistance to the Court. ifthe further
factual enquiry were found to be necessary, to hear these persons giving
their evidence in open Court.
Afr.President, that concludes my argument. Before 1 sit down 1wouId
like toindicate-it may be convenient to you-what oiir intentions are
in regard to answering the remaining questions put by Members of the
Court: by Judge Jessup and by Judge Koretsky. In regard tothe question AKGUMENT OF MR. DE VILLIERS 121
put by Judge Koretsky, which was put to us alone, it seems to us to be
fair that we should answer that before my learned friends commence
the reply on the legal argument, because although the question was put
to us only it may be that they would like to have an opportunity of
commenting on our answer in the course of their reply. Therefore we
propose, Mr. President, subject toyour approval, to answer that question
at the beginning ofwhichever hearing may be determined for the com-
mencement of my learned friend's argument in rcply on the legal issues.
Our answer should take a very short time; we propose to deliver it aithe
beginning of whatever session tlieCourt determines, and then my learned
friend could continue straight afterwards with the commencement of
his reply on the Iegal question.
In regard to the question put by Judge Jessup, we have had a discus-
sion, my learned friends and we, on the question of the order in wIiich
the Parties ought to answer that, and we are agreed that it rnay be more
convenient if the Applicants answer first.Rly learned friendshave indi-
cated also that they intend giving that answer fairly near the beginning
of their reply on the legal questions, and jwillthen be a matter for the
Court to determine a convenient time aftenvards for us to reply. We
shall be ready atany time provided we are given, say, a day in which to
consider the answer given by my learned friends. 15. STATERlEIiT RY MR, GKOSS
AGENT FOR THE COVERKMESTS OF ETHIOPIA AND LIBERIA AT THE
PUBLIC HEARISC OF 4 hIAY 1965
The comrnents which the Applicants would wisli to address to the Court
willbe brief, to the point, factual and unpolemical. If these remarkscannot
be completed within ten minutes, they will have failed of their purpose.
The purpose is aç follours,two-fold:(1)to place a forma1 proposa1 before
the Court, without argument, and (2) to cal1 tothe Court's attention
certain citations from the record,without argument or characterization,
which bear directly upon a statement made by Respondent in the course
of his address to the Court yesterday. On behalf of the Governments
for which 1 speak, it seems important to cal1such citations to the Court's
attention by way of brief reading at this point in the record; this will
be completed tvithin five to ten minutes.
In the course of the verbatim record of 30 April 1g6j-that is, page
63, supra, the Applicants suggested the possibility of a stipulation on
depositions to which reference has just been made by the Respondent.
The Applicants would respectfully submit this as a forma1 proposal to
the Court.
In view of my undertaking, hIr. President, not to elaborate or argue
upon the matter, the proposa1 is made in this form and it remains only
to Saythat its central basis is to balance the preference of the Respondent
against the inconvenience, burdcn and expense upon the Applicants.
Secondly, with regard to the matter of Respondent's statement in the
Oral Proceedings of 3 May 1965,may 1refer the Court,without comment
or characterization, to page 108, supra, of the verbatim record from which
1 should like to read to the Court at this moment for the record, without
comment.
"It is perfectly obvious thatthc Applicants cannot face up to this
factual enquiry, they cannot face up to a cornparison of standards
of wel1-being'and progress in thcir own countries and those in
South West hfrica. They had to find a formula to rule outthe whole
proposa1 and, in doing so, they emphasized the fundamental ureak-
ness of their case in law, in fact and in morals."
hfr. President, without comment, 1 refer the Court to the Reply, IV,
at page 364, from which 1 quote.
"... Respondent's frequent rcferenceç to practices in other African
States, including those of Applicants, are wholly irrelevant to the
present proceedings, inasmuch as there is no other African State
subject to bIaridate, nor any other State, anpvhere in the \vorld,
which practises the policy of apartheid".
That is from the Reply, at which time no reference to an inspection had
been made.
Inow quote from the Rejoinder, V, at page 116.
"Applicants' second reason for contending that practices in other
States in Africn are irrelevant, is that no other State practises the ÇTATEMENT BY EIIR.GROSS . 123
policy of apartheid. This attitude ~ould be pertinent in so far as
Applicants rely on the esistence of an alleged iegal norm, which
would by itself render Respondent's admittecl poticies violative of
the Mandate."
1refer the Court to the other portions on that page so that it can be
read in context. "In fact Applicants thernselves make copious refereiice
in their Reply to circumstances in other territories." This is asserted as
a reason in opposition to thc Applicants' contention.
The footnote appended to the quoted comment calls attention to the
Reply, IV, pages 398-403; pages 426-430, and pages 451-4j7. These are
references to United Nations vieu7s upon certain territoriesand areas,
both inside and outside Africa, United Nations viewç with respect to
education policies, economic Iife, government and citizenship. They do
not refer, Mr. President, as the passages make clear upon reading, to
Applicants' views concerning those territories, but to the relevance of
Uiiited Nations views thereon.
The forma1 proposal, Alr. Presideiit, is to place before the Court, re-
spectfully, the proposed stipulation, the terms of which are outlined on
page 63, supra, of the verbatim record of 30 April 1965, and to re-
spectfully request the Court to consider it with the Respondent's prefer-
ence for personal testimony, for the reasons advanced by way of its
response to my earlier proposal. That is to Say, as 1 understood, that
such evidence should be read into the record, viva voce,and that the de-
meanour and personality of witnesses should be available.
Evidence could indeed, in terms of this stipulation, be read viva voce
into the record by Respondent's Counsel or by anybody else who Re-
spondent felt could do the job dramatically.
So far as the demeanour of personality, or personality, ofwitnesses is
concerned, it is part of the stipulation proposed that if the Court should,
upon reading the depositions, regard the demeanour or personality of
expert witnesses as of help, that it would be wlthin the terms of the
stipulation that those witnesses would be presented in person at the
request of the Court but not asa general proposition which will be, in
the Applicants' view, utterly unnecessarily co?suming of time of the
Court and, more particularly our concern, the time, undue expense and,
of course, the burden upon us of being present in the courtroom and not
being busy about other duties.
These are, of course, considerations of a highly professiona1 nature in
terms of the balance of convenience and interest of representatives of
the Parties concerned.
The preferences of the Respondent are entitled to full weight and con-
sideration but, hlr.Yresident, it seems to me that there should be a rea-
sonable basis for such a request and if the Court considers thatthe basis
which has been advanced by Respondent is reasonable then the Appli-
cants would naturally abide by such a decision.
Therefore the proposd formally pIaced before the Court is that the
Court paçs upon the desirability of the stipulation being entered intobe-
tween the Parties. Or, if failing such stipulation on those terms, that the
Court as an exercise of sound, judicial discretion decide to uphold the
submiççion and issue an order accordingly. 16. REPLY OF MR. GROSS
AGENT FOR THE COVERNMENTS OF ETHTOPIA AND LIBERIA AT THE
PUBLIC HEAXINCS OF 7-19 nrriy1965
Alr. President and hfembers of the honourable Court, during the
Oral Proceedings on 14 April 1965 Judge Jessup addressed to both
Partiesthe foliowing question :
"In the interpretation andapplicati ofnArticle 73ofthe Charter
of the United Nations, is South West Africa to be considered one
of those territorieswhose peoples have not yet attained a full
rneasure of self-government, as this phrase is used in that Article?"
The Applicants will now endeavour, respectfully, to give their reply
to Judge Jessup's question.
For the purposes of clarity and convenience, the Applicants wiI1set
forth first their general conclusions and the basic considerations which
they believe to be most directly related to, and in support of, these
conclusions and, secondly, a general survey of historical considerations
svhich are in support of,and illuminative of, these general conclusions.
The historical considerationswill be presented within the context of
the Applicants' analysis of the establishmentof United Nations super-
vision over the administration ofSouth West Africa. The analpsis itself
\vil1consist of the major portion of the Applicants' reply with regard to
the survival ofadministrative supervision over the mandated Territory.
In the Applicants' respectful submission, the question addressed to the
Parties by the learned judge involves for a completc answer and con-
sideration the entire rnatter of the history of events and transactions
which mark the assumption by the United Xations of an administrative
siipervision over the Mandate.
However, as I have said, for the sake of clarity and concision there
will, at the outsct, be a statement of conclusions on the part of the
Applicants which represent the direct response to Judge Jessup's
question and what will follow will be explanatory thereof.
First, dealing with the question in terms of prescnting the Applicants
concIusions thereon, the A plicants respectfully submit that South
\ilest Africa is to be regafdneither asa trust territorunder Chapters
XII and XII1 of the United Kations Charter in view of South Africa's
exercise of its legal right to withhold the Territory [rom the trusteeship
system, nor as a non-self-goveming territory subject to the reporting
requirement stated in Article 73 (el of the Charter.
South-West Africa, however, is subject to internationalsupervision
by the General Assernbly, as well as to the jurisdiction of the Inter-
national Court of Justice, in accordance with Article7,the compromis-
sory clause of the Mandate. The international supervision by the Gen-
eral Assembly has been, and is to be, exercised in accordance with a
speciaI system designed to meet the unique situation presented by thls
sole surviving Mandate for South West Africa. Such United Nations
supervision is to conform, as far as is practicable, with appropfiate
adaptations tomeet changed circuinstanceç, to the form of supervisioIi
previously exercised by the League of Nations. REI'1.Y OFMR. GROÇS I2.5
Jlr. President, the foregoing concluçion, it is respectfullp submitted,
reflects the intentions of the authors of the United Xations Charter, the
Advisory Opinion of this honourable Court in 1950 and the consistent
practice of the General Assembly of the United Nations throughout the
years.
That ends thc conclusion by way of direct response to Judge Jessup's
question.
Iturn now, with the Court's permission, to a discussion of the con-
siderationç ~vhich relate to, and are in support of, the foregoing con-
clusions. This discussion encompasses matters of a historical nature and
other relevant matters which are directed towards the support of the
conclusion just stated by the Applicantç in response to the question
propounded by Judge Jessup.
For the sake of convenience of the Court and clarity of presentatioii
and fdlness of analysis of the considerations relevarit to an answer
to Judge Jessup's question, these rernarks to foliow are, in addition,
designed to serve as the Applicantç' reply on the issue of survival of
international supervision over the Mandate,
The inhabitants of South Weçt Africa undoubtedly are, along with
those of trust territories aiid colonies or dependencies of every variety,
entitled to enjoy an administration conforming to at Ieast the minimum
standards laid doin in paragraphs (a)-((€) of Article 73 of the Charter.
By virtue of its special status under the Mandate Agreement, which
continues in full force and effect, however, the inhabitants of the Terri-
tory of South West Africa are also entitled to the protection of an
arrangement for international supervision of its administration which
goes well beyond the limited scheme enviçaged in paragraph 3 of
Article 73.
The standards of administration of non-self-governing territories
stipulated in the first four paragraphs of Article 73. that is paragraphs
(a)-(d), apply to South West Africa in the seiise of providing a floor
below which the treatment of the inhabitants of the Territory cannot be
permitted to fnll.
The procedure of international accountability stipulatedin paragraph
(e) of Article 73 does not. however, satisfy the requirement of effective
international supervision under Article 6 of the Mandate Agreement
which was originally esercised by the Council of the League of Nations
and which now falls within the cornpetence and under the responçi-
bility of the GeneraI Assemblp of the United Nations.
The Applicants submit, therefore, that Article 73 (e) does not appIy
to South West Africa but that an arrangement for international çuper-
vision, more closely analagous to that exercised by the Permanent
Mandates Commission and the League Council, is required in view of
the unique legal statuç of the Territory.
There is no room for doubt, in the Applicants' respectful view, that
the framers of the United Nations Charter hoped and intended that al1
territories would be placcd under the trusteeskip system, for wkich
provision was made in Chapters XII and XII1 of the United Nations
Charter. That system was designed to give continuing expression to the
purposeç of the League mandates' system and the supervisory arrange-
ments conternplated under the trusteeçhip system were deemed fully
appropriate for rnandated territoies, as extended and enlarged in the
truçteeçhip systern itself.126 SOUTH WEST iZFRlCA
The authors of the Charter did not restrict this neïv system to man-
dated territories nor,as the Court held in 1950, did they make it legally
obligatory for such territories to be converted into trust territories.
But, Mr. President, the authors of the Charter manifested the con-
viction that the normal and proper procedure would be for the mari-
datory powers to conclude trusteeship agreements in every case, thereby
assuring to the mandated territories the benefit and protection of an
irnproved and expanded çystem of international supervision. Thus the
authors of the Charter expressed the aim of providing a more effective
çystem of international accountability, applicable to the mandated
territories, and any others that might be placed under it.
The San Francisco Conference, moreover, produced the significant
innovation of Chapter ,Y1 ïvhich represented an attempt to provide a
meaningful expression of international concern in respect of the admin-
istration and development of al1non-self-governirtg territories.
In Article 73 (e) the United Nations initiated the implementation
of the princi$le of trusteeship in a limitedtvay in respect of colonies in
general, thus beginning to extencl the benefits of this principle beyond
the limits of the coverage of the mandates system. The scheme of
Article 73 (e) was iatended to introduce a new element into the general
colonial situation, toprovide at leasta minimum degree of international
accountability with respect to the administration of non-self-governing
temtories which had never been placed under the mandates syçtem,
and which might not now be placed under the new trusteeship systcrn.
The central objective of the San Francisco conference inthis matter
was to maintain, and even to increase, the effectiveness of international
supervision already developed with respect to the inandated territories,
and to begin side by side with that development the process of providing
international supervision with respect ta al1 other non-self-governing
territories. This, in any event, is the way the Applicants read the history
of the events attending the formation of the Charter. Read literally, and
apart from the context in which itwas formulated and adopted, Article 73
(e)appears to apply, in terms, to al1non-self-governing territories other
than those which are actually made the subject of trusteeship agreements.
Read within the context, and with the understanding of the spirit and
hopes of the authors of the Charter, however, Article 73 (e) must be
seen, in our view, as an evolutionary plan to provide some measure of
international accountability for the benefit of dependent territories
which had enjoyed none before.
Article 73 (ej was not conceived as meeting the requirements of
mandated territories, or as providing an adequate basis for giving
effect tothe obligations of mandatory powers, in the Applicants' respect-
fuiview. The tnisteeship systern itself, not the scheme for restricted
reporting "to the Secretary-General for information purposes"-the
phrase is quoted frorn Article 73 (e)-was conceived as the appropriate
and necessary device for implementing the continuation and improve-
ment of the arrangement previously represented by the mandates system.
To place a mandated territory mereIy under the regime stipuIated In
Article 73 (e) would have been, contrary to the spirit and intention of
the authors of the Charter, to reduce rathcr than to maintain, to Say
nothing of increase, the degree of international supervision to which the
territoriehad been subject during the League period, and it woulclhave
allowed international accountability to fall below the level required by REPLY OF &IR. GROSS 127
the mandate agreements, whicii, it was understood at the same time,
were to continue in force until superseded by other agreed arrangements.
The Charter thus provided a trusteeship system, conceived as the
leptirnate heir of the mandatessystem, andan arrangement for reporting
of information to the Secretary-General under Article 73 (e), conceived
as a rneans of initiating the extension of the trusteeçhipidea to dependent
territoriesprcviously excluded from that historical process, a very
important development indeed.
Failure to obligate the mandatory powers to put their mandated
territories uiider the trusteeship system left open the possibility that
particular mandated territories might not corne within the purview of
the Trusteeship Council. Such 3. lacuna obviously could have such a '
foreseeable result. The authors of the Charter, although recognizing that
possibility, evidenced no intention whatever, so far as the Applicants
have been able to discover, that international responsibility pertaining
to such a residual mandate could properly be, and adeqüately be,
esercised under the tems of Article 73 (e).le have found no evidence
to support such a proposition which, in Ourrespectful vicw, is inherently
likely inany event, given the spirit and aim of the founding fathers
with respect to the extensionofinternational accountabilityto dependent
territories not theretofore receivingthe benefit of international super-
vision or reporting in any form.
To the contrary, the founding fathers of the Charter met the con-
tingency posed by the lacuna by leaving open the possibility to the
United Nations of devising, under Article IO of the Charter, special
arrangements for carrying out the function of international supervision
as rnight be required in any particular case. Article ro itselisbroadly
drawn and, as the Court founcl in 1950, does establish the competence,
the power of the Assernbly to deal with this situation.
As noted by the Court in the 1950 Advisory Opinion, the Charter
"did not contemplate or regulate n CO-existing mandates system"
(I.C.J. RePorts xgjo, p. 140). And, as the Applicants perceive it, the
Respondent cites that quotation in preciselp the opposite sense in which
it strikes the Applicants. The San Francisco Charter, in Our reading,
assumed that failure to place a mandated territory under a trusteeship
agreement would be an exceptional phenomenon: Rather than under-
taking to formillate Charter provisions applicable to such n phenomenon,
the conference left this matter, like many others, to be dealt with on
a pragmatic basis, within the flexible framework of principles and
procedures provided by the Charter, and the competence with which
the General Assembly was endowed. There were, as has been made clear,
other reasons, in addition, why interim arrangements were not made,
and these will be considered in the course of the remarks to follow.
Respondent thus far has converted the contingency, foreseeable at
San Francisco, ofa lacuna, into an actuality,by refraining frorn placing
South IfTestAfrica under the trusteeship system. The fact that definite
arrangements in anticipation of this actuality were not made at the
San Francisco conference, nor in the Preparatory Commission of the
United Bations, nor at the final session of the League of Nations Assem-
bly itself, in no way, as the Applicants see it, debarred the United
Nations from meeting that contingency when it arose, and from con-
tinuing to meet it so long as it continues. It could, of course, be ended
an' day, any moment, by the Respondent submitting a trusteeshipI28 SOUTH WEST AFRICA
agreement: it is not an irrevocable or permanent contingency, by reason
of any legal operation, in any event,
The Organization has never renounced its indisputable cornpetence,
nor has it declared its unwillingness to rneet such a contingency if it
should arise, and it was under no obligation or compulsion to provide
in advance for dealing with an exceptional situation which it hoped,
strongly hoped, might be avoided.
The record shows that the United Nations did respond to the ab-
normal situation thus thmst upon it by Respondent by developing in
a prapatic manner an appropriate special arrangement for effectuating
its responsibility to exercise international supervision over South ifTest
Africa. Recognizing that the trusteeship system could not apply in the
absence of a trusteeship agreement, and recognizing equally that the
system of reporting under Article 73 (e) was not appropriate to the
case of a mandated territory, the General Assembly met the problem
by irnprovising a special systema kind of third system, specially appli-
cable to South West Africa, a unique phenomcnon in this whole enter-
prise.
The Assembly did not consider, nor did South Africa invite it to take
the position, that it was either necessary or proper to subsume the
Territory under the heading of Article73 (e). It has never been suggested
by Respondent, and careful reading of rnany records by the Applicants
has never revealed an instance in which such a possibility was ever
adverted to in the United Nations, and in fact South West Africa ha5
never been included in the list of non-self-governing territories on which
information is transrnitted undcr Article 73 (e), Citationmay be made
at this point to the book by Mr. Sady, United Nafioas and Dependent
Peoples, published by the Brookings Institution in 1956, at page 80,
which comments on this matter-authoritatively in the Applicants'
view-and sets forth the list of non-self-governing territories regarded
as falling within the purview of Article 73,paragraph {a).Rather, the
Assembly took action consistent with its view that it had both the
cornpetence and the responsibility to carry out supervision of the
administration of South West Africa in a manner comparable to that
which had characterized the operation of the mandates system under
the League.
The General Assembly's developrnent of a spccial system for exercising
supervision over the mandated Territory of South West Africa-xvhat
1 have called a "third systern", falling between the arrangement for
reporting on non-seIf-governing territories, under Article 73 (e), and
the more elaborate procedures conducted by Trusteeship Council, with
respect to trust territories-thispecial system received the endorsement
of this honourable Court in the Advisory Opinion of 1950. The Court
held that al1 the obligations of South Africa under the mandate agree-
ment continued in full force and effect, explicitly includingthe central
and essential obligation to submit to international supervision of its
administration of the Territory. Reference ismade to the I.C.J. Re$orts
19.50 at,page 136.
The Court went on to find that-
". .. the General Assernbly of the United Nations is legally qual-
ified to exercise the supervisory functions previously exercisedby
the League of Nations with regard to the administration of the
Territory, and that the Union ofSouth Africa is under an obligation REPLY OF MR. CROSS 12g
to submit to supervision and control of the General Assembly and
to render annual reports to it". (I.C.J. Reports1950, p. 137.)
Having thus confirmed the cornpetence of the Assernbly, which the Court
declared was derived from the provisions of Article 10 of the Charter,
theCourt refrained from prescribing the mechanism which the Assernbly
should utilize in the performance of its çupervisory function. Instead,
the Court laid down several criteria, which it held to be essential to the
proper performance of that function, and 1 quote from page 138of the
Opinion :
"The degree of supervision to be exercised by the General Assern-
bly should not therefore exceed that which applied under the
Mandates System, and should conform as far as possible to the
procedure followed in this respect by the Council of the League of
Nations. These observations are particularly applicable to annual
reports and petitions." (I.C.J. Re9orts1950 , . 138.)
Mr. President, within the framework of these standards the Court left
the Assembly free to devise an appropriate system for exercising super-
vision over the Territory. In this respect, the Court's conclusion coin-
cided with the view expressed in the written statement of the United
States Government submitted to the Court in 1950 from whicli I quote:
"The Union of South Africa continues to be obligated under the
Mandate to subrnit reports on its administration of the territory,
submitting these to the United Nations for consideration by the
organ which the General AssembIy designate for this purpose."
(InternationalStatncsofSouthWestAtrica, AdvisoryOpiniolrof rxJlcly,
at p. III.)
The Court noted that reference had been made, in a number of state-
ments presented to it, to Chapter XI of the Charter, but the Court ob-
served as follows:
"Having regard to the results at which the Court has arrived,
the question whether the provisions of that Chapter are applicable
cluded in the questions subrnitted to the Court andit.is unnecessary
to consider it." (I.C.J. Reports 1950, p. 138.)
These holdings combine with the Court's assertion that the question of
the appiicability of Chapter XI "does not arise for the purpose of the
present Opinion" to indicate, in the Applicants' analysis, that the Court
did not wish to be understood as holding that the international super-
vision of South West Africa should be carried out under Article 73 (e)
of the Charter. At least that is a fair inference to be drawn, to say the
least,in Ourview. If the Court had intended to hold or suggest othenvise,
it could have said so, it seems to the Applicants, by way of invoking
Chapter XI rather than declaring it irrelevantto the problem under dis-
cussjon. hloreover, the Court's definition of the requirements of the su-
shouldobe comparable to that exercised under the mandates system,andut
that supervision should include annual reports and petitions, provides
further evidence that the Court could not have had in mind resort to the
arrangement provided for inArticle 73 (e), which does not contemplate
or incIude-does not, inany event, include-petitions, or annual reports
of the sort envisaged in the mandates system. SOUTH WEST AFRICA
130
As the Court was aware, and as had been pointed out in astatement
before the Court by the Representative of the Secretary-General of the
United Nations, Dr. Ivan Kerno-"The syçtem of reporting under Article
73 (e)did not conform or meaçure up to the standards of supervision
defined by the Court". (OralArgu9nents,IfiternationalStat2c.s of Sosth
West Alvica, Advisory Opinion of July II 1950, pp. 223-224.)
being followedby the General Assernbly, that of asserting the Assembly'sy
competence and responsibility to supervise the administration of South
West Africa, and developing a special system-a thrd system-unique
to these circumstances, distinct from that grohvingout ofChapter XI, and,
in this way, exercising its responsibility to supervise the Mandate as a
çacredtrust which had been laid upon the League as an organized interna-
tional community.
Moreover, the Court found that South Africa had acted within its
legal rights in refraining from placing South West Afnca under the
trusteeçhip system {p. 139 of the Opinion), and thereby acknowledged
that the supervisory arrangement provided for in Chapters XII and XII1
could not be applied in this instance. The Court urcnt on to note that the
Charter was silent asto the system of supervision to be applied to man-
dated territories which did not acquire a different status,and, as 1have
said, it was in that connection that the Court said the Charter "did not
contemplate or regulate a CO-existingmandates system" (p. 140 of the
Opinion).
The Court thus endorsed the course followed by the Assembly prior
to1950 inbeginning the development of a special system of supervision
applicable to the mandated territory of South West Africa, specifically
and as a special case. If the Assembly was to carry out the supervisory
function attributed to it by the Court, either it had to develop such a
special system, or it would have had to deal with the mandated territory
pursuant to Article 73 (e)of the Charter. But the Court, as I have said,
dismissed Chapter XI as irrelevant to its consideration of the case, which
it would not have done if the Court had intended to suggest that inter-
national çupervision of South West Africa should be carried out under
the provisions of that Chapter. By brushing Chapter XI aside, therefore,
rather than by invoking it, the Court evinced its endorsement of the
propriety ofthe Assernbiy'saction in improvising a system,on the basis of
the broad and flexible competence conferred upon the Assembly by
ArticleIO of the United Nations Charter, for performing the exceptional
task of supervising the administration of a residual mandate-the one
residual exception.
Moreover, the findings of the Court asto the nature and degree of the
supervision to be exercised by the United Nations with respect to South
West Africa confirm that the Court was not suggesting recourse to the
reporting arrangement provided for in Article 73 (e) of the Charter, for,
as will now be shown, that arrangement feii far short of meeting the re-
quirements of a proper supervisory system for South West Africa, as
defAn important measure ofcornparison between League supervision un-
derthe mandates scheme andthe United Nations processes under Article
73 (e) of the Charter is that of the type of information transmitted pur-
suant to the respective systemç. The information required of mandatories
was more extensive in scope than that required by Article 73 (e) of the REPLY OF MR. GROSS 13r
Charter. The broad scopeofthe annual report requirement for mandatory
powers was initiaiiy rendered clear by the Belgian representative to the
League Council in what came to be known as the Hymans Report. An
excerpt from this report has been quoted already by the Applicants at
VIII,page 145.Particular attention of the Court is reçpectfully directed
to the followingpassage from the Hymans Report :
"The annual report stipulated for in Article 7 [that is to Say,Arti-
cle22, paragraph 7, of the Convenant of the League ofNations]
should certainly include a statement as to the whole moral and
material situation of the peoples under the Mandate. It is clear,
therefore, that the Council also should examine the question of the
whole administration." (League of Nation souncil P.V. zo/zg/~q,
8th Session, p. 187.)
The purpose thus envisaged or conceived to be served by the reports
confirms the necessity for the breadth and scope of the information re-
quired to be submitted to the competent organ. This relationship between
the purpose and scope of the reports has been confirnied by scholarly
authority. Thus, one of the leading authorities on the mandates system
frequently cited by both Parties to these proceedings, hlrHall has com-
mented-"The annual reportsof themandatory powers and their exami-
nation by the commission were the heart of the mandates syçtem".
(Hall's Mandates,Dependencies and Trusteeship,p. 186)
The tact that the whole administration, in the words of the Hymans
Report, was covered by the reports required of mandatory powers is very
clear from others-on the baçis of other sources, as well as scholarly
authority. Thus, the League of Nations publication, TheilfandatasSystem
states that-
"AU fields of the administration and al1aspects of the life of the
mandated territories,administrative organizations, political systems,
public finances, justice, economic conditions,agriculture, trade com-
munications, social,moral, and material conditions ofthe NativesJ'-
al1 these were to be covered by the annual reports of the mandatory
powers. 1 quote from the League of Nations publication, The Mandates
System-Origin, Principles, Ap+lication, published in Geneva in 1945,
page 47.
This aforegoing scope of mandatory reporting contrasts with the re-
porting requirement under Article 73 (e)of the United Nations Charter.
That section of Article 73 (el might, for the convenience of the Court,
be read into the record at this time. 1 quote from 73 (e):
"To transmit regularly to the Secretary-General for information
purposes, subject to such limitation as security and constitutional
considerations may require, statistical and other information of a
technical nature relating to economic, social and educational con-
ditions in the territories for which they are respectively responsible,
other than those territories which Chapters XII and XII1 apply."
The omission from Article 73 (e) of any mention of political informa-
tion içof prime significance. Other limitations are to be noted as wel1.
The information referred to in Article73 (e),which 1have just quoted,
is confined to that of a "statistical" or "technical" nature, and is "sub-
ject tosuch limitation as security and constitutional considerations may
require".
As willbe known tothe Court, pressures were exerted by non-adminis-I32 SOUTH WEST AFRICA
tering authorities at the United Nations between 1946 and 1949for
transmission of poiitical information under Article 73Te), but it was ar-
gued in reply that such information was in a wholiy optional category.
Thereafter, in 1947the GeneralAssemblydecided that the voluntary sub-
mission of political information would be in accordancewith the s irit of
Article 73 (cl and should be encouraged. This is evidcnced in Lneral
Assembly resolution 144.11 3November 1947.
The Assembly, in a 1949 resolution, likewise expressed the hope that
adrninistering authorjtjeswhich had not already done so would submit
political information in their reports under Article 73(e). (General As- '
sembIy resolution 327.1V 2,December 1949.)
These General Assembly resolutions reflected increasing awareness of
the importance of political information in any supervisory plan, however
limited in other respects. The evolution of Article 7(e),in other words,
confirrned the validity of that element of the mandates scheme which
recognized thatthe progress and welfare of inhabitants of dependent ter-
ritories could not be evaluated rvithout political information. But even
this saIutary evolution has left the scope of Article 73 (e)significantly
narrower than the supervisory plan embodied in the mandates system,
and which itself \vas improvcd and enlarged in the trusteeship system.
Under the mandates system, the mandatorytransmitted annual reports
to the Permanent Mandates Commission, through an authorized repre-
sentative, who, in turn, participatedinthe discussionsby the Commission
of the report. The Mandates Commission,after discussion of each report,
would subrnit observations thereupon, bath to the Council of the League
and to the authorized representative. The reports of the Mandatories also
were forwarded by the Comrnission to the Council, together with the
Commission'sobservations, together with any which the representatives
of the mandatory powers might wish to make and have endorsed thereon.
The Commission attached geat importance to the questioning of
represent atives of each Mandatory with regard to annual reports under
discussion. Recommendations and observations as well as criticisms
were made by the Commissiondirectly to the mandatory power whose ad-
ministration was under discussion. lt may not be without a tinge of
irony that Reçpondent refers to these procedures as evidencing the
peculiarly specid significance attached to the Permanent Mandates Corn-
mission in the form of experts to accomplish the purposes which 1 have
from that premise but the premise, the descriptionent ofnthe role of the
Permanent Mandates Commission, for which Respondent contendç,
precisely corresponds to the description which 1 have just outlined and
which establishes with certainty the special requirements of the type
of administrative supervision, required under the Mandate, as compared
with reporting to the Secretary-General technique envisaged by Article
73 le).Reports under Article 73 (e), as1 have çaid, are transmitted to
the Secretary-General of the United Nations. The information is sum-
marized by the Secretary-General and his summaries and analyses are
transmitted to a cornmittee established by the General Assembly for its
further consideration. The Committee originally known asthe Ad Hoc
Cornmittee was replaced in 1947 by the Special Committee on Informa-
tion transmitted under Article 73 (e). This Committee later became
known as the Cornmittee on Information from non-seIf-governing terri-
tories. The Committee is authorized by the General Assembly to examine REPLY OF MR. GROSS I33
the summaries and analysesprepared bythe Secretariat and "To subrnit
such substantive recommendations as it may deem desirable relating to
functional fields generally but not with respect to individual territories."
This is General Assernbiyresolution 993 (X), 8 November 1955 .his of
course differs significantly asto both scope and procedure from the sys-
tem ofadministrative supervision exercised by the LeagueoverMandates.
As one scholar has observed:
"Unlike the Mandates Commission of the League of Nations or
the Trusteeship Council of the United Nations, the Comrnittee on
Information does not examine the basic information transmitted on
each territory-only occasionally isit even referred to. The Commit-
tee attempts to gain insight into trends, mainly through the sum-
maries, analyses and special studies of the Secretariat and from
staternents by experts in non-selfgoverning territories generally.
Since 1950 the Comrnittee has given special attention in rotation
each year to educational, economic and social conditions."
1 quote again from Sady's book, The United Nations and the Promotion
of theGeneralWelfare,the Brooking's publication to which 1have already
referred-this quotation is from pages 885-886.
Mr. President , another measure of comparison between supervision
under the mandates plan and supervision under Article 73 (e) of the
United Nations Charter is the right of petition or as the scholar already
referred to, DuncanHall, hasdescribed it :"the natural right ofpetition"-
that phrase is used in the cited work of Hall, at page 198.
Under the mandates system, petitions by inhabitants of mandated
temtories were submitted to the Secretariat of the League through the
mandatory governments, and petitions from outside the territories could
In both cases, the Commission discussed the petitions, along with the
authorized representative, and the Commission's observations thereon
were reported to the Council. The mandatory powers submitted observa-
tions on the petitions transmitted from, or with regard to, territories
under its administration.
On the other hand, Article 73 (e) of the Charter, both in wording and
in irnplementation and practice, made no provision for the right ofpeti-
tion. \men the United Nations, because of a default in reporting from
Respondent, granted a hearing to a petitioner frornSouth West Africa,
the Organization not only went beyond the limited requirements of Chap-
ter XI of the Charter, but established a form of supervision over the
mandated territory at least as extensive as the supervision formerly
exercised by the League of Nations in accordance with the League of
Nations Coüncil Rules. The historical evolution has been such as to place
South West Africa under a special regime of United Nations supervision
as a mandated territory, rather than as a colonial territory under the
more limited requirements of Article 73 Te) of the Charter.
The General Assembly thus has continued the development of its
special procedures for supervision of South West Africa, in the face of
' Respondent's refusa1 to submit to supervision and the Assernbly ha
twice sought to and obtained the advice of this Court regarding t+ con-
sistency of the elements of the procedure adopted with the critena laid
do- in the 1950 Advisory Opinion-1 refer of course to the Advisory '
Opmions of 1955 and 1956.Al1these Opinions have been accepted by the 134 SOUTH WEST AFRICA
General Assembly, although of course not by Respondent. Hence, it is
evident that the General Assembly has expressed in action its adherence
to the conviction, endorsed by the Court in 1950. that the General As-
sembly is competent to apply a specid system of supervision, a third
system, to the mandated Territory of South West Africa. The General
Assembly has taken care to follow the standards prescribed by the Court
in 1950with regard to the nature and degree of international supervision
to be exercised.
It is submitted, respectfully, that al1these considerations, to which 1
have referred, directly and immediately are relevant to and support the
conclusion as set out in the first part of this response to Judge Jessup's
question.
However, it isessential, in the Applicants'view, fora fuilunderstanding
of the considerations to which 1have addressed myself, to incorporate as
a part of the Applicants' response to Judge Jessup the material which 1
shall now endeavour to lay before the Court, which shows the plan in
conclusively demonstrate that it was not the intention and could notw,
have been the intention of parties concerned to consider the mandated
territory of South West Africa to be within the purview of Article 73 (e).
Mrhat 1 am about to sas, therefore, &Ir.President, wili be part of the
response to Judge Jessup's question but also comprehend the com-
plete reply of the Applicants to the rebuttal on the issue of sumival of
administrative supervision-this is necessary for a full understanding of
the Applicants' response to the Iearned judge.
The central intent expressed in the San Francisco Conference debate
and proposals, relating to dependent areas wa. to establish more effective
and more extensive international supervision of dependent areas than
had been the case under the League of Nations. Thisaim wasimplemented
by the formulation of Chapters XII and XII1of the Charter, to carry for-
ward the ideas expressed in Article 12 of the League Covenant. On the
other hand, Chapter XI of the Charter including Article 73 (e)was de-
signed to give fuller expression to the cornmitment contained in Article
23 (b) of the Covenant of the League of Nations; Article 23 (b) in this
sense was the precursor, the progenitor, if 1may put it that way, of Arti-
cle 73 of the Charter of the United Nations. The mandates system was
the progenitor of the tnisteeship system; Article 23 (6)of the Covenant
of the League was the progenitor of Article 73 (8) of the Charter of the
United Nations.
The trusteeship system was intended, of course, to represent an im-
proved version of the mandates system, and the Declaration regarding
non-self-governing territories, Chapter XI, was conceived as the basis for
a more meaningful and effective intefnational effort to deal with the
general colonial problem, as 1 have already said.
It is clear from the records of the San Francisco Conference that the
founders of the United Nations did not envisage that international
supervision over a mandated temtory would be limited to, or satisfied by,
reports to the Secretary-General under Article 73 (e) of the Charter-I
have endeavoured to explain why the Applicants are forced to this con-
clusion. Sub-sections (a) through (d) of Article 73represent an advance
' over the standards of the mandates system, but section (e) of Article
73 carries a less onerous obiigation of accountabilty than was involved
in the mandates system. Mere reporting under Chapter XI would have REPLY OF MR. GROSS .I35
been a step backwards in the light of the type of supervision, and the
procedures attending it, provided for under the mandates system.
That the United Nations founders intended to continue international
supervision in so far as mandated areas were concemed is obviouç, in
the Applicants' respectful view-obvious to the Applicants at least. The
proposals and discussionç at San Francisco were entirely consistent in
that mandated terntories were discussed solely within the context of
trusteeship; in so far asChapter XI was debated at all, mandates were
never mentioned.
Thus, the "Working Paper" presented to the Conference by the five
major powers as a basis for discussion was divided into two sections;
the first was a general statement of policy applicable to al1 dependent
territories, while the second outlinea proposed internationaltrusteeship
syçtem. The general policy section of the paper did not mention man-
dates; the trusteeship section included "territories now held under man-
date"as one of the categories totvhich the trusteeshipsystem itself should
apply. (UNCIO, Vol. IO, pp. 677-678.)The general policy section ofthe
"Working Paper" eventually became Chapter XI of the Charter; the
trusteeship section became Chapters XII and XIII-this was the fork
in the road.
The "Working Paper" was itself based on proposals made by the
United Kingdom, which are to be found in the UNCIO Documents,
Volume 3, pages 609-614.The British paper divided itself also into two
sections; the first dealt with general principles of administration inde-
pendent areas and the second stated a proposal for a trusteeship system.
Immediately followingthe statement of general principles in paragraph I
of the Proposals submitted by the United Kingdom, the statement
continues as folbws and 1quote frompage 609,of the UNCIO,Volume 3:
"2. For certain territories in each of the categorieç mentioned
below, it is desirable to establish çpecial machinery to ensure the
application of the principles stated in paragraph Iof this Chapter.
These categories are-
(a) territories administcred by States Members of the United Na-
tions under Mandate from the League of Nations;
(b) certain territories which as a consequence of the present war
may be removed from the çovereignty of Mandate of States
not Members of the United Nations;
(c) any other territory to which the special machinery prescribed
in this chapter may be applied voluntarily by the State under
whose sovereignty or protection the territory is administered."
Category (a) in the United Kingdom scheme, from which 1 have just
quoted, as in theFive Power Iorking Paper and in the text of Article 77,
as finally adopted, comprises a finite and definite group of territories-
the territories under mandate. Thuç, these preparatory papers, as well
as the ultimate Charter provision, demonstrate clearly that the San
Francisco Conference was intent upon the application of the maximum
or optimum degree of international supervision to the mandated terri-
tories. The debates in Committee 4 of Commission z, Trusteeship, at
San Francisco, were entirely consistent wjth the ideas first propounded
in the British proposal, and to be found in the Working Paper. That is
to Say, mandates were discussed in that Committee only within the
context of the proposed trusteeship system, and 1 refer to part B of the136 SOUTH WEST AFRICA
Working Paper which formed the basis of the discussion in the Com-
mittee, and not at al1 were they discussed within the context of the
general principles of colonial policy, which is part A of the Working
Paper, from which Article 73 emerged. There are no indications that the
Applicants have been able to find, despite rnost careful survey of the
matter, that the delegates were prepared to place the mandated terri-
tories under the general principle section of the Working Paper, that is,
the section which eventualIy becarne Chapter XI of the Charter.
As the discussions of section A of the Working Paper continued, the
details of what then became Article 73 (a) through 73 (d) were gradu-
ally filied in. On 19June 1945, the delegate for the United States of
America moved the adoption of a completely new sub-paragraph (e) in
the following termç:
"To transmit regularly to the Secretary-General for information
purposes, subject to such limitations 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 which they are respectively respon-
sible, other than those to which Section B of this chapter applies."
(UhTCIO,Vol. IO, p. 563.)
The delegate of Greece proposed, and the Comrnittee agreed, to insert
the word "territories" afterthe word "those" in the passage 1have just
quoted from the draft United States proposal. Sub-paragraph (e) \vas
then adopted without discussion and without dissent. It seems clear
that this provision, which becarne Article 73 (e) of the Charter, was not
intended or designed to cover the requirements for international super-
vision of mandates, inasmuch as those territories were expected to be
laced under the trusteeship system envisaged in section 3 of the
&orking Paper, which would provide a supervisory arrangement corn-
parable to, but even more extensive than, that of the mandates system.
The reference to territories "to which section B of this Chapter applies"
obviously related to mandates. In fact, as already mentioned, Mr.
President, mandated territories were the oltly territories to which sec-
tion B applied specifically, and section B, ofcourse.became Chapters XII
and XII1 of the Charter of the United Nations. The only clearly known
finite and identifiable territories which fell within the scope of section B,
then under discussion in this context, were the mandated territories
themselves.
After the adoption by Cornrnittee 4 of sub-paragraph (e), the delegate
of Australia presented an analysis of the progress which had been made
in respect of the original text of the Cornmittee's Working Paper.
According to the UNCIO Documents,Volume IO,page 563, the delegate
of Australia "stressed the importance of statistica1 information as a
measure of the propess of the inhabitants of dependent territories".
This supplies one more indication, the Applicants believe, that the
fouiiders of the United Nations made no connection between mandated
territories and Article 73 (e) of the Charter. The information supplied
by mandatory powers, as has been pointed out in the earlier portion of
this response to Judge Jessup'ç question, went far beyond the require-
ments irnposed by Article 73 (8).
Accordingly, it is reasonable to assume that the "measure of the
progress", to which the Australian delegate referred, related not to REPLY OF MR. GROSS I37
mandated areas, but rather to other non-self-governing territories. There
would be little "importance" to be perceived in a requirement that
mandatory powers, who did not submit tmsteeship agreements, would
become responsible or liable to a reporting system less significant than
that that they I-iadbeen submitting to since the inception of the League
of Nations.
The view of the Australian delegation on these rnatters is significant
for at least two reasons, in the Applicants' view. First, it will be recalled
that Australia was of the opinion at San Francisco that the mandates
necessarilyhad to be placed under the trusteeship systern. Thus, at the
second meeting of Cornmittee II/4, Trusteeship, on IO May 1945, the
Australian delegate stated as fo1Iows(this is from a surnmary of the
record):
"The principal issue before the Comrnittee, in his opinion, was
whether the application of the tmsteeship system to territones
other than League Mandates and ex-enemy dependencies shouid be
left to the voluntary action of the powers responsible for their
administration. In the Australian view, a merely voluntary proce-
dure was inadequate." (UNCIO, Vol. IO, pp. 428-429.)
In the view of the Australian delegate, therefore, at that time, there
seems to be no question concerning the appropriate disposition of the
mandated territories, other than by way of trusteeship. The same was
true of ex-enemy dcpendencies, in the Australian view. The only question
perceived by Australia was the application of the trusteeship system to
ail other non-self-governing territories, and, even in this area, the
Australian delegate expressed the opinion that "a merely voluntary
procedure was inadequate".
Given the view that mandates musl be placed under trusteeship, in
the sense which I have just described the Australian delegate's view,
then the "importance" which Australia attached to reporting under
section B of the Working Paper could not be reasonably thought to have
referred to reporting by mandatory powers. The designaiion, or use of
the word "importance" in that respect would have been out of context
of the Australian views about the whole proposition.
It will be recalled also that the Australian delegation wished the
reporting requirement for non-self-governing territories, under section A
of the Working Paper, to be more onerous than the limited requirernent
finally agreed upon. Thus, on 25 May 1945 . ustralia proposed a new
Part C to be added to the CVorkingPaper, and paragraph z (a), of the
new Part C, is as follo~vs:
"In order to give fuller effect to the general principles declared
inSection A, the General Assembly may specify territories in respect
of which it shall be the duty of the states rcsponsible for their
administration to furnish annual reports to the United Nations
upon the economic, social, and political development of the terri-
tories concerned." (UNCIO, Vol. IO,p. 696.)
The Court wiil note the reference to the word "political", which waç
omitted from the United States draft proposal, the one which becarne
Article 73 (e) of the Charter in itfinalfom.
The Australian proposal, of course, was not accepted in the form in
which itwas proposed, and the reference to political reporting was, a1
have just said, deleted from the final concept or notion. However, the138 SOUTH WEST AFRICA
Australian proposa1 demonstrates that if the reporting requirement for
mandated territories was thought to be more stringent even than the
proposal implicit in the new proposed Part C, then it would seem to
foiiow that it could not have been reasonably thought by the Australian
delegate that the reporting formandatory powers could be less onerous.
In other words, in this attempt to establish the reasonable inferences to
be drawn from the Australian delegation's position at that time, these
considerations are respectfully submitted for what they may be worth
in the context and in the light of the Australian views as expressed at
that time, and the Australian approach toward the relationship of
Article 73 (el,the trusteeship system itself, and the importance, indeed,
the necessity, which the Australian Government then perceived that al1
mandates should become trusteeships; and the only problem was with
respect to other non-self-governing territories: what would happen to
them? Article 73 (e),of course, is less burdensome than Australia would
have wished. The Australian Government at least-at least-wanted
those States administering non-self-governing territories to report on
economic, social and political developments, and tlie Australiandelega-
tion therefore could not have been satisfied to have mandated terri-
tories, ~vhichit thought must corne under the trusteesliip system, super-
vised only under the iimited obligations of Articl73 (e).
This analysis, hlr. President, is further supportedby the comments
made by the Deputy Prime hlinister of Australia, Mr. Forde, at the third
meeting of Commission II held on 20 June 1945. The Deputy Prime
Minister stated as follows:
"Althou 11 our proposa1 to iriclude an obligation to report to
the Unite 2 Nations on administration in colonial territories has
not been agreed to, a very important fonvard step which we sug-
gested asan alternativehas been adopted, namely: an obligation to
transmit regularly to the Organization statistics and other infor-
mation of a technical nature relating to the economic and social
development of the inhabitants of non-self-governing territories..
1 regard the furnishing of statistical information as of great irnpor-
tance. From that source we can obtain the facts as to the health,
nutrition, and labour conditionsof the native people, and we shall
be able to ascertain therefrom what ha been achieved in their
interest from time to time. This should result in a healthy com-
petition between colonial powers for the achievement of better
conditions for al1the peoples under their carWe believe that many
practical achievements wilI flow from this part of the Charter, and
that the potentialities of the dependent peoples will have a much
wider scope for development."
That is from the UNCIODocuments, Volume 8,atpage 136.
It willbe noted that the Deputy Prime Minister referred in the
statement 1have just quoted to administration in "colonial territories",
and to cornpetition between "colonial powers". This indicates that fie
perhaps had in rnind the applicationof the reporting system envisaged
in Article73 to the general run of colonies, not to mandates. Moreover, l
the characterization by the Australian Deputy Prime Minister of Ar-
ticle73 (e) as "a very important forward step" seems to make it clear
that he could not have conceived of mandatory powers reporting 1
thereunder-that would have been a backward step in terms of the
i REPLY OF MR, CROSS I39
content and scope of reporting. Article 73 was obviously intended to
be new and fonvard-looking; its progenitor was Article 23 (b) of the
Covenant. Although Article 73 (a) through (d) had its precedent in
rigorousaslreporting under the mandate. itself was not as new and not as
In the course of his remarks the Australian Deputy Prime Minister
characterized section A as finally adopted in the form of Chapter XI of
the Charter as-
colonial policy in history. Its significance for the future could
scarcely be exaggerated."
This was at the UNCIO volume, at page 135. Here again is evident a
concept of a new, a forward-looking, step, the significance of whch to
the future could scarcely be exaggerated; but such a remark, Mr. Presi-
dent, hardly seems to be consistent with a view that ArticIe 73 (el
xould become the measure of the mandates' coverage with respect to
reporting, because that would be a stepping backward, a reduction of
Article 73 (e).of reporting on the mandates to the level stipulated in
Yet another indication of this point came in the remarks of Mr. Peter
Fraser, the distinguished Prime Minister of New Zealand who, as the
Court will be well aware, was the Chairman of Commission II (4). the
Trusteeship Cornmittee. Referring to sections A and B as finally adopted
by Commission II (4),Prime Minister Fraser stated:
"hlight 1 quote from the Biblc and Say that in this document,
It is the spirit in whch it will be operated that will count."ife'.
That is from UNCIO, Volume 8, page 152. Prime Minister Fraser
went on to Say:
"iVhat we have been endeavouring to do-and 1 think we have
succeeded-is to point the way, although as Commander Stassen
[of the United States] pointed out, and 1 would underline, the
important thing isto take it. We have built the road. The important
and essential thing is for al1the nations who have mandated terri-
tories to take the road laiddown for the mandated territories, and
those who have other territories, colonial territories to do the same."
This isfrorn UNCIO, Volume 8, at page 152; Mr. President, the fork
in the road: mandated territories down the one road; the other-the
colonial territories-down the long and vitally important road which
Article 73 (e) opened up with its significant vistas for the future of the
dependent territories.
Again one finds the distinction here, in what 1 have just quoted,
dralvn between mandated territorieç subject to intensive international
morervlimited requirements of Chapter XI. The Prime Minister, Mr.to the
Fraser, concluded with these remarks:
"... whatever difficulties there are, the nlle that we uill be guided
by-I know 1speak for my own country, but I feel 1 speak also for
every country in a similar position-is that we have accepted a
mandate as a sacred trust, not as part of our sovereign territory.
The mandate does not belong to my country or any other country.140 SOUTH WEST AFRICA
It is held in trust for the world. The work immediately ahead is
how those mandates that were previously supervised by the Mandate
Commission of the League of Nations can now be supervised by the
Trusteeship Council with every mandatory authority pledging
itself in the first instanceas the test af sincerity demands, whatever
may happen to the territory afterwards, to acknowledge the author-
ity and the supervision of this Trusteeship Council that has been
helped towards its formation this evening."
That is from page 154of the same UNCIO Documenls, Volume 8.
Mr. President, 1 had jiist read the remarks of the Chairman of Com-
mittee 1114,the Trusteeship Committee, that is, the remarks of Mr. Peter
Fraser, Prime Minister of NewZealand. This statement by the Chairman
of the Committee which 1 have just read, the very Cornmittee which
drafted the provisions of Chapters XI, XII and XII1 of the United
Nations Charter, is revealing.
First, it demonstrates that the authors of the Charter disclosed no
intention that any mandatory power would report only on the basis of
the lirnited scope of Article 73 le).The clearly essential requirement
perceived by the authors of the Charter was the more thorough inter-
national supervision inherent in the mandates system itself. ,
Secondly, the reference in Prime RIinister Fraser's statement to
"every mandatory authority pledging itself" sheds light on the pledges
made by the several mandatory powers in April of 1946.The statement
affords evidence that the pledges then made must have becn intended to
include an acknowledgrnent of the supcrvisory powers of the United
Nations over mandated territories. 1shall deal with this point later.
Thirdly, and perhaps most important, the statement by the Prime
Minister of New Zealand indicated that had the authors of the Charter
considered the contingency that a mandatory power might not place its
territory under trusteeship, they would have assumed that the United
supervision of that Territory ratherthan rely uponnsthe limited reporting
obligation under Article 73 (el.
The second half of Prime Rlinister Fraser's statement js aclear intima-
tion that the founders of the United Nations may indeed have been
aware that such acontingency could occur. The South African delegation
to the Charter Conference had certainly indicated that, at least as a
possibility, to put it mildly. The response was to emphasize the need for
United Nations supervision of territories under mandate "whatcver may
happen to the territory afterwards". That içfrom Mr. Fraser's statement.
Taken in conjunction with his emphasis upon the quotation from the
BibIe "that the letter kiiieth and the spirit giveth light", itdear that
the preference of the founders was for mandated territories to be subject
to the United Nations supervision, whether or not they were placed
under the trusteeship systern. Hence the founders of the United Nationç
evidenced in a clear manner the intention that mandated territories
should be subject to international supcrvision and they planned for the
inclusion of these territories in the tnisteeship system.
There is no intention made apparent anywhere in the records, as far
as the Applicants have been able to discover, either to leave mandated
territories cornpletely unsupervised internationally, as Respondent con-
tends, or subject to the limited obligation of reporting under Article 73,
paragraph (e). REPLY OF MR. GHOÇS I4I
Itwill be noted in this connection, and presumably wiUbe dealt ~6th
by Respondent in its reply to Judge Jessup's question, that it appears to
be cornmon cause betiveen the Parties that South West Africa is not
within the scope or purview of Article 73 (e) of the Charter. This was,
as the Applicants stated in their earlier phase of these proceedings, why
the Applicants did not make argument in 1962upon this question of the
construction of Article 73 (e) of the Charter and took theliberty to do so
in these Oral Proceedings in view of the obviously important question
of Charter interpretation thus presented.
The Chairman of the Cornmittee which drafted Chapters XI, XII and
XII1 of the Charter indicated that the intent and the preference of the
authors of the Charter was to place such mandated territories under
United Nations supervision "whatever may happen to the territory
afterwards".
hlr. President, I turn now to a consideration of the Preparatory
Commission procedures and the system of pledges. This also has a
bearing upon and direct relevance to the response to Judge Jessup's
question.
The debates in the Preparatory Commission confirm the attitudes of
the.authors of the Charter, as 1 have attempted to describe thern. The
proposa1for a temporary trusteeship cornmittee indicated the importance
attached to international supervision of mandated territories, even prior
to the establishment of the Trusteeship CounciI. The proposal was
turned down essentially for the pragmatic reason that it might tend to
encourage delay in setting up the Trusteeship Council.
No one, however, so far as the Applicants are aware, disputed the
principle that the United Nations was competent to supervise mandated
territories until trusteeship agreements were entered into. Nor did
sufficient basis for such supervision.isto Say Article 73 (e), providcd a
Indeed South Africa, Australia and the United Kingdom, and this is
to be marked, these three Mandatory Powers were in favour of the
proposal for a temporary trusteeship cornmittee. This appears from
PC/TC/z at pages 4-5.
The South African attitude was clearest of a11. Mr. Nicholls, the
South African dclcgate, stated that:
"... it seemed reasonable to create an interim body as the Man-
dates Commission was now in abeyance and countries holding
mandates should have a body to which they could report".
That statement was made on 29 November 1945, and is at page 4 of the
document 1 have just cited.
So far as the Applicants have discovered from a reading of the written
pleadings and attention to the Oral Proceedings, Respondent has not
made mention of Mr.Nicholls, or the statement which 1have just qiioted.
Mr. Nicholls has not found his niche in these proceedings.
This statement is worthy of emphasis. The statement illustrates the
importance which the founders of the United Nations generally, and
Respondent specifically, attachcd to international supervision of man-
dated territories, prior to the conclusion of other agreed arrangements.
That is to Say, the question was never one of supervision or no super-
vision, asthe Applicants put it inthe earLierphase of these proceedings
with regard to legal issues, so faras the founders of the United Nations142 SOUTH WEST AFRICA
were concerned and so far as Respondent itçelf was concerned. There
was a presumption of supervision over the Mandate until some other
arrangement was agreed upon and Mr. Nicholls' statement in the
Preparatory Commission of zg Novernber 1945 did not have, and could
not have had, any other significance.
&Ir.Nicholls, speaking for South Africa, expqessed the view that the
mandatory powers were obligated to subject their administration of
mandated territories to the supervision of the United Nations. He was
so convinced of the fact, as appears from his own statement, that he
advocated the creation of an interim United Nations body to undertake
such supervision until the establishment of a permanent body. His
statement permits of no other construction.
Mr. Nicholls did not Say that no United Nations supervision of the
mandates was necessary or permissible, he did not Say that Chapter XI,
or Article 73 (e) of the Charter covered the situation, rather he said:
"countries holding mandates should have a body to which they could
report".
The fact that the Yreparatory Commission of the United Nations
rejected this proposa1in favour of an alternative means for clealingwith
the irnmediate situation can not be taken to imply rejectionofthe view
so clearly expressed by Respondent's delegate, Rfr. Nicholls, that effec-
tive United Nations supervision over mandated territories was a matter
of direct, immediate and urgent importance and must be continued
on an interim basis if necessary, prior to the creation of permanent
machinerp.
Preparatory Commission, apart from indicating what was Respondent's
attitude in 1945,also sheds light upon the several declarationmade by
the' mandatory powers in April 1946 and also illuminates the final
League resolution of 18April 1946.
The Preparatory Commission debates make clear that at least some of
the mandatory powers, including Respondent, certainly Respondent,
wanted United Nations supervision of rnandated territories and asked for
it, even before trusteeship agreements were entered into. This being so,
the declarations made by the mandatory powers in April 1946 rnust be
read in the light of the intentions of these powers as expressed at San
Francisco and in the Preparatory Commission.
Thus, the last part of the South African declaration of 9 April 1946,
read in the lighofMr.Nicholls statement in thePreparatory Commission
becomes quite meaningful. 1should like, with the President's permission,
to quote briefly frorn the South African declaration o9 April1946.
"The disappearance of thoçeorgans of the League concerned with
the supervision of mandates, primarily the Mandates Commission,
and the League Council, will necessarily precIude complete com-
pliance with the letter of the Mandate. The Union Government will
nevertheless regard the dissolution of the League as in no way di-
rninishing its obligations under the Mandate, which it will continue
to discharge with the full and proper appreciâtion of itsponsibili-
ties until such time as other arrangements are agreed upon con-
cerning the future status of the Territorÿ." (League of Nadio~s
OficÊal Journal, SpecialSupplement194, at p. 133.)
The meanin seems clear. Respondent in 1945 expressed the view,
through Mr. dcholls, "it seerned reaqonable to create an interim body REPLY OF hfR. GROSS I43
as the Mandates Commission was now in abeyance and countries holding
mandates should have a body to which they could report". The United
Nations Charter, of course, was in existence.
On g April 1946 Respondent referred to the disappearance of the
League's supervisory organs, and in its stateinent of g April çaid that
"The Union Government will nevertheless regard the dissolution of the
League as in no way diminishing itç obligations under the Mandate ...".
This was justa few months later than Bfr. Nicholls' statement.
Reading both of these statements together it seems obvious that Re-
spondent, at the time, expresçed views entirely consistent with the
expectations of the aauthorsof the United Xations Charter, including the
other mandatory powers, that is to say, to subrnit to international super-
vision until other arrangements were concluded. If Respondent was of
the opinion that any mandate obligation had lapsed, there isno informa-
tion in these proceedings to explain why they expresçed a position to the
contrary. This of course relates to 1945 and 1946. We wi11find many
expressions to the contrary thereaftcr,that is true.
Another significant indication of Respondent's position at that period
is to be found in the eventsonnecting a proposa1for a temporary trustee-
ship committee with the declaration made by the mandatory powers
in April 1946. This relationship has already been touched upon in the
analysis of the relation betlveen Kespondent's statement, Jlr. Nicholls'
statement in November 1945 and the April 1946 declaration io which 1
have referred and whch figures in the Advisory Opinion of I 50 as ~ell.
But further analysis othis event or transaction or series of eclarations
is revealing.
As 1 have already noted, the authors of the Charter attached impor-
tance to international supervision, even prior to the establishment of the
trusteeship sjrstem.
The historical record indicates that two basic methods were conceived
of by the founders of the United Nations. One was the proposa1 for n
temporary trusteeship committee, interim; the other was a propoçal for
a set of pledges to be made by each of the mandatory powers. There
can be no question that these two propoçals were linked to each other,
and that each \vas viewed as a method for ensuring international super-
vision of rnandated territoriethis was their purpose. The second method
was adopted in preference to the first, that is the technique of pledges,
evidently because it was thought more in keeping with the spirit of the
Charter to minimize the delay in giving effect to the trusteeship system
than to develop arrangements, or risk developing arrangements, by the
establishment of an interim, forma1 supervisory system.
The idea of a pledge by the mandatory powers first became important,
obviously important, by reason of the speech made by Mr. Peter Fraser,
the Prime Minister of New Zealand, who, as 1 have said, was Chairman
of the Committee which drafted Chapters XI, XII and XTII of the
Charter. The concept of a pledge was taken very senously and the series
of declarations made by the mandatory powers at thefinal session of the
League of Nations was not merely a happenstance, it was not merely
coincidental; it was the result of thought and planning.
Although the pledge envisaged by Prime ivlinisterFraser was one which
would merely "acknowledge the authority and the supervision of the
Trusteeship Council" until other arrangements were concluded "what-
ever may happen to the Territory aftenvards", the pledge envisaged by144 SOUTH WEST AFRICA
the delegates to the Preparatory Commission shortly thereafter went
much further. The pledge would have required a declaration of wiiling-
ness, on the part of the mandatories, to place mandated territories under
the trusteeshipsystem. That was the original thought, or concept, of the
pledge. This would have been sufficient, of course, to ensure international
supervision of mandated territories, but only as of the time that those
territories were actuaily placed under the trusteeship systern in a formal-
ized way, that is, with a regularly constituted Trusteeship Councilor other
mechanism to carry out the supervisory function whch the mandated
territories, by such a pledge, would have agreed to submit.
The delegates at the April session of the League in r946 made pledges
which were more in line with Prime Minister Fraser's conception-to
acknowledge the authority and the supervision of the Trusteeship
C---~-- when it came to be formed.
~lthou~h çuch pledges involved no commitments to place mandated
.----.-ri-- under the truste es hi^svstem. thev nevertheless re~resented
explicit undertakings to carry oit al1the obligations of the exisiing rnan-
dates. There could be no explicit pledge to acknowledge the authority
and supervision of the Trusteeship Council, because at that time there
was no Trusteeship Council: its establisliment depended upon a requisite
number of trusteeship agreements to be submitted and accepted.
There was, of course, nothing inconsistent in refusing to pledge that a
mandated territory would be placed under trusteeship and at the same
time pledging to carry out al1the obligations of the mandate, including
international supervision, until some other agreed arrangement was con-
cluded. Indeed, this must have been the point underlying Mr. Nicholls'
statement in November 1945 in the Preparatory Commission.
At the San Francisco conference, irnmediately prior to Mr. Nicholls'
statement to the Preparatory Commission, the South African Delegation
had reserved its country's position in so far as trusteeship was concerned.
For the sake of completion of the record at this point 1 quote frorn the
Counter-hfemorial, II, at page 34 :
"The Delegation of the Union of South Africa therefore claims
thatthe Mandate should be terminated and that the territory shodd
be incorporated as part of the Union of South Africa.
As territorial questions are however reserved for handling at the
later Peace Conference where the Union of South Africa intends to
raise this matter, it is here onIy mentioned for the information of
the Conference in connection with the Mandates question."
It is not only for the sake of cornpletenes but for the sake of balance
and fairness that 1have put into the record, at this point, this statement
by the delegation ofthe Respondent at San Franciso. However, in addition
it sheds Lightupon the developmentswith respect to the route taken via
the pledge system as distinguished frorn the route proposed to be taken,
but not taken, via the temprary trusteeship procedure.
That the rnethod of pledges or declarations must be read and under-
stood together with the proposa1 for a temporary trusteeship cornmittee
seems cIear, as 1 have said, but it is confirmed by a substantial portion
of the debates in the Preparatory Commission which linked these tu70
methods of ensuring international supervision of mandated territories.
The record abounds with examples: 1shall take two or three representa-
tive ones. For example, the Yugoslav Delegation, after stating that the REPLY OF MR. CROSS I45
difficulties inherent in the dissolution of the League "could be overcome
in the spirit of the Charter without the formation of a temporary trustee-
ship committee", went on to make a recommendation towards this ob-
jective as follows
"Of the three categories of territories mentioned in Article 77 of
the Charter, the territories under B and C remain uncertain [that is
Sections B and Cof the paper]. Only the territories under A, manda-
ted territories, are certain.
This delegation is of the opinion that a necessary step would be
the adoption by the Preparatory Commission of a recommendation
vite the mandatory powers who are members of the United Nations to in-
to submit declarations of their wiliingness toput the territories over
which they have so far been acting as administering authorities to
the trusteeship syçtem of the Charter, and at the same time to make
known which powers they consider as States directly concemed with
these territories." (PC/TC/4, p8.)
The Yugoslav proposa1 inciuded the following:
"An ad hoc Cornmittee of the General Assembly to examine these
declarations of the present mandatory powers could usefully be
formed. After the Securitv Council or the General Assemblv had
approved theagreemen tsa rust tee souhnc^lcould then be firrned.
nated." (Ibid., p.4.)rv trusteeshin committee would thus be elimi-
The foregoing stGer&nt by the Yugoslav delgte on the Cornmittee
evidences the viewof the founders of the Organization that the proposals
for a temporary trusteeship committee, and for a series of declarations
or pledges, were techniques for ensuring continued international super-
vision of mandated territories, The tme significance of the declarations
made by the mandatories in April 1946 thus can be clearly and fairly
relationship between the proposals for pledges on the one hand, and thed
proposals for a temporary trusteeship committee on the other hand,and
the juxtaposition of the two as viewed by the founders of the Organiza-
tion.
Another strong indication of the validity of this proposition-thatthe
United Nations founders linked the temporary trusteeship committee
idea with the notion of pledges-is found in a staternent by the New Zea-
land delegate who said :
"The Trusteeship Council could be set up on receiving a sufficient
number of declarations of readiness to place territories under tmstee-
ship and he [that is the New Zealand delegate] hesitated to agree
that a temporary committee of any kind was necessary." (PC/TC/32,
P.25.1
In other rvords, inasmuch as international supervision of mandated
territories would commence in any event upon the reception of a suffi-
cient number of declarations, the specific machinery of a temporary
trusteeship committee was viewed by the New Zealand Delegation as
unnecessary. And similarly, other delegations :arnong them may be
cited the Soviet Union. The Soviet Government was opposed to the idea
of a temporary trusteeship committee and favoured the Yugoslav pro-146 SOUTH WEST AFRICA
posa1 instead. Thus, the Soviet representative, hlr. Gromyko, stated:
"He was not surprised thatthe mandatory powers were in favour
of substitute organs, but if the problem were dealtth along thse
lines discussion could continue for months or years without any
action being taken. It was, however, unnecessary for him to repeat
the reasons which he had given on many previous occasions why it
would be wrong to establish substitute organs. If the mandatory
powers really adhered to the Charter, they should corne to the
General Assembly and statethat they were to place territories under
trusteeship, and at the sarne time present tmsteeship agreements."
That is the summary of &Ir.Gromyko's remarks in PC/TC/32 at page 26.
Likewise, the distinguished delegate of China stated as follows:
"The Chinese Delegation also wanted the mandatory powers to
declare their intentions of placing the mandates under the trustee-
ship system."
That appears at the same page. He stated further that-
"... use should be made of the main Trusteeship Cornmittee of the
General Assembly, thus leaving the question of a temporary or ad
hoccommittee for the GeneralAssembly itself to decide". (PC/TC/32,
P.27.)
Thus, the linkbetween the temporary tmsteeship committee proposal
the rnandated territories should be under international supervision. The
mandatory powers wanted that supervision to be carried out by an inter-
im or temporary body prior to the establishment of the Tmsteeship
Council. Mr. Nicholls said so.
This clearly was Respondent's position at that time. However, other
governments feared that this procedure would lead to delay in the estab-
lishment of the trusteeship system and pressed for pledges by the man-
datory powers to place these territories under the trusteeshi
What occurred historically, upon the Applicants' careful ana ysis, was
a compromise between these two positions. That is, pledges were made
but not pledges to place the mandated territories under the trusteeship
system: rather, the pledges were to carry out allthe obligations of the
mandate, including the obligation to submit to international supervision,
the essence of the mandate, tintil other agreed arrangements could be
made.
This is the answer to the problem posed by the Respondent's sugges-
tion that 1945 and 1946events are consistent only with, or even reason-
somehowbecame excluded along the road.that the essence of the mandate
Viewed in this context, and from this historical perspective, the pur-
pose of the declarations made by the several mandatory powers in April
1946becomes crysta1 clear. Pledges had only been made as a means of
ensuring the continuance of international supervision, and were undoubt-
edly made with the same problem in mind. The Nicholls' statement of
29 November 1945 and Respondent's declaration of g April 1946,a few
months later although not so explicit, form partof a consistent pattern
of behaviour by the mandatory powers generally, including Respondent.
The pattern was to reject the idea of rnaking an unqualified pledge that
the mandated territories were replaced under trusteeship. REPLY OF MR. GROSS I47
Of course, the South African Government had jndicated its reluctance,
if that is the right word, to do so-totake such a step-but the pattern
was to pledge, without qualification, not that the mandated territories
would be placed under trusteeship, but, al1the mandatories would agree,
in the meantirne, to carry out al1the obligations inherent in the mandates
system, including its very essence-international supervision.
This interpretation, Mr. President, appears consistent with the entire
historical trend, which hns been mentioned repeatedly in these proceed-
ings, and, more particularly, this morning-the entire historical trend
concerning the relationships between administering States, dependent
peoples and international organizations, which had begun with the in-
ception of the League ofNations itself. As I havesaid,Chapter XI of the
Charter was an expansion and an elaboration of the obligations contained
in Article23 (b) of the Covenant of the League. The trusteeship system,
Chapters XII and XIII, were an expansion and development of Article
22These were the respective progenitors, as 1 have tried to point out, of
these two notions ofChapter XI in the general colonial area, and Chapters
XII and XIII-the extension and broadening of the mandates system.
The consistent direction of the historic trend has been towards more
international supervision of the administration of depcndent peoples,
and never towards less supervision, towards diminished obligation. Re-
spondent isthe only State in the world, ofwhich the Applicantsareaware,
whicli lias attempted, by reason of what the Court in rg5o called "an
erroneous conception of the legaI position created by the dissolution of
the League", to resist the trend of the historjcal development in the di-
rection of increasing supervision by the international community over
dependent peoples, andthe Respondent has resisted a trend, by reason of
its mistaken legal position, asinthe terrns of the 1950Opinion, notwith-
standing the opposition of RIernbers of the United Nations-the huge
generality of the membership-expressed in repeated resolutions and in
the actual assumption by the United Nations of supervisory powers over
this Mandate itself,
This historical perspective demonstrates also the incorrect nature of
Respondent's analysis of the events of the period in question, which in-
correct analysis emerged most clearly and vividly in Respondent's re-
butta1 during the course of these Oral Proceedings. The rejection of a
proposa1 for a temporary trusteeship committee, far from being a new
fact, which would have caused the Court in 1950 to corne to a different
decision, as Respondcnt maintained in 1962and is reaffirming here, actu-
ally furnishes evidence which reinforces the 1950 Opinion in the Lightof
the historical perspective and analysis which 1 have endeavoured to lay
before the Court.
As 1have already noted and as the record makes clear, the temporary
trusteeship committee idea was favoured by the mandatory powers, in-
cluding the Respondent-and it was supported by them. Its rejection
and the substitution of a pledge to carry out all the obligations of the
mandates until other arrangements were agreed-a pledge which fell
short of the pledge to place mandated territories under trusteeship, as
advocated by the Soviet Government andothers, to whichI have referred
-cannot reasonably be interpreted as a rejection of United Nations
supervision ofmandates prior to the conclusion of trusteeship agreements.
The fact is that the temporarytrusteeship committee proposal.was re-jected asinadequate,not as going too far and as threatening to interpose
a factor which rnight encourage, or permit, delay or stalling in the devel-
opment of the trusteeship system itself. The defeat of the temporary
trusteeship committee idea, therefore, reflected the conviction that the
most urgent thing, to which al1effortsshould be directed, waç to expedite
the establishment of the Trusteeship Councilso asto minimize or obviate
the necessity for temporary supervisory rnachinery. It was rejected be-
cause the majority view, which was evidently not shared by ali the man-
datory powers, and certainly not shared by Respondent, was that it
territories. This was not feltrto be the case in respect of the system of
pledges, and hence that technique wasadopted for the same purpose and
to the same end.
Respondent's attitude before the Preparatory Commission,asexpressed
by Mr. NichoUs'statement, demonstrates that in 1945 Rcspondent had
no doubt asto its obligation of international accountability, and it was
not simpiy, as Respondent has since corneto state, an obligation to report
to a s+ecificorgan of a specififorganization, with specificmembership.
Mr. Nichoiis' statement that Respondent and other mandatory powers
"should have a body to which they could report", notwithstanding the
demise ofthe League, showsclearly the recognition by Respondent of the
true basic nature of its obligation of international accountability under
the mandates system.
The heart of Respondent's argument regarding the work of the mem-
bers of the Preparatory Commissian seems to lie in Kespondent's state-
ment that-
".. . the indications are that they considered that there was no
provision in law forany such supervisory poweron the part of United
Nations organs-no provision for any machinery in that regard-and
that if there was a desire to exercise such supervision, spccial pro-
vision had to be made for it. That indication is apparent from a
number of circumstances, including the very wording of these pro-
posais that were made in regard to a possible temporary trusteeship
committee." (VIIX,pp. 386-387.)
Again, Respondent stated that-
".. .everybody concerned knem there was no express provision for
any supervision of mandates in the Charter, and if there was any
intent to have supervision of that nature, then special provision
would have to be made for it". (Ibid., p. 387.)
1think this fairly distils or reflects the heart of Respondent's argument in
this respect, in any event, so it is understood by the Applicants.
Now, of course, these statements by Respondent which I have quoted
are purely speculative and opinion, not to be ignored for that reason,
but theyare supported by no evidence whatever. Thefact that provisions
for the United Nations supervision were drawn up, and advocated by
the mandatory powers, and then rejected in the temporary form as
having a lower priority than rneasures designed to expedite the forma-
tion ofthe trusteeship system, would point more toward the inference that
the founders believed that the United Nations could assume supervisory
powers over mandates if that should prove necessary, in exceptional situ-
ations, and hence that no special provision was required. This is a more
reasonable inference than Respondent's. In fact, that appears to the REPLY OF MR. GROSS I49
Applicants to be an understatement. It is an inference which seems to be
compelled by the events and transactions themselves, by Respondent's
statements at the time, Mr. Nicholis' and the later declaration, and by
the trend of historical events which are so manifest from the record of
the proceedings of San Francisco. The "special provision regarding ex-
ercise of supervision", to use Respondent's phrase, was dropped for rea-
sons having no relevance whatever to the broader question of United
Nations supervision ve. 'aowof mandates. Indeed, in so far as there was.
any bearing on the issue of United Nations supervision, the rejection of
the proposal for a temporary trusteeship cornmittee indicates rather
more, than it does less, the interest of the United Nations in maintaining
into implementation and practice in the new trusteeship regirne as rapidly-
as possible. To conclude that the essence of the hlandate was excluded
along the avenue of this approach seems to the Applicants amisreading
of the eventsand transactions and undertakings of the period. There iç
no inconsistency between the decision of the United Nations at that time
not to create temporary machinery for supervision of mandated terri-
tories, as suggested by Respondent and other mandatorles, and its sub-
sequent action in developingspecialsupervisory rnachinery for the man-
dated Territory of South West Africa.
The former decision (that is the decision not to establish a temporary
trusteeship commission) reflected the hope that prompt conclusion of'
trusteeship agreements wouId render an interim body unnecessary, not-
withstanding the expressed reluctance of South Africa to submit a trust-
eeship agreement. The United Nations has, nevertheless, persistcd for-
years totryto persuade Respondent to change its mind. Theyhave never
given up the hope, but the decision not to establish a temporary Comrnis-
sion based upon that hope is certainly no evidence that international
supervision feil bythe wayside-feil away somewhere along the route-
or that it was replaced, or that it ~vouldtake the form of the more limited
provisions and scope of Article 73 (e), for which nobody who participated
in these matters (nobody at San Francisco and now the Respondent it-
self) contends for.
The special machinery, on the other hand, for supervising a rcaidual
mandate had become necessary, contrary to the hopes earlier entertained
that no such special, or third, system would be necessary. It was not
within the range of practical consideration at that time, because the
practical consideration was to get the job done, set up the Trusteeship
Council as rapidly as possible, hope that al1mandatories including South.
Africa would submit truçteeship proposals, and not interpose any ma-
chiner~, orprocedures, whichmight work toward delay, or toward stalling
tactics.
The United Nations, therefore, never confronted any problem in terms
of the majority of the Organization when it became manifestly clear,
after negotiations over a long period with Reçpondent, that a special.
third çystem had to be devised to meet this unique residual situation
which could not be cured through the diplornatic processes of negotiation
and persuasion.
The United Nations sirnply refrained from exercising its cornpetence
to provide such a special method until events demonstrated the necessity
for the action, and, of course, the Court in 1950fully confirmed the judg-
ment and the power ofthe General Assembly in that respect. REPLY OF MR. CROSS 151
the "vague general words", in Respondent's description, used by the
British delegation at that time.1have just quoted from VIII,at page 394.
Surely hlr. President, the more pertinent question would be if the
United Kingdom representative considered that every mandate obiiga-
tion remained binding 116th the single exception of the essence of the
mandate and its continuance of international supervision, then why did
he not Say SO? The logicsl form of the question is to the contrary of the
way it is posed by Respondent-the phrase "general principlcs" is not
properly to be read as excluding the very essence of the mandate, the
obligation of international accountability-ihe was agreeing to anytliing,
if he was pledging anything, he was pledging to follow the essence of the
mandate. Respondent relies also on the fact that the United Kingdom
pledge nsed the phrase "continue to administer these territoriesJJ-the
stress is on the word "administer". The argument made by Respondent
in its rebuttalis that the word "administer" refers to interna1 adminis-
tration only and not, in the words of Respondent "to anything falling
outside the concept of administration, such as the concept of account-
abiIity"; that is from the same verbatim report at VIII, page 394.
No evidence whatever is given by Respondent to support such an
interpretation and indeed, the word "administer", it is submitted, can-
not fairly be read out of context of the phrase in which it is included:
"continue to administer these territories in accordance with the general
principles of the existing mandates". On the contrary, this must reason-
ably be read as a pledge to administer the Mandate under the super-
vision of competent international organs and in accordance with each of
the obligations of the Mandate including international supervision-
there isnothing irnplicit in the word "administer", particularly inthis
context, to suggest exclusion of international supervision.
[Public hearing of IO May 19651
hfr. President and hlembers of the honourable Court, at the conclusion
of the Oral Proceedings on 7 May 1965 the Appljcants were referring to
Respondent's interpretation of the United Kingdom pledge in April of
1946 to "continue to administer" (the mandated territories, that iç)
"in accordance with the general principles of the existing mandates".
That was quoted in the verbatim record on this page above. Reçpondent,
by a process of verbal shredding, urges upon the Court that the word
"adrninister" in this contest is pregnant ivith significance. Respondent
asks rhetorically why the United Kingdom pledge related the phrase
"general principles of the existing mandates" merely to the word "ad-
ministration" of the Territory. "The concept of administration", in
Respondent's phrase, excludes "the concept of accountability or the
rendering of reports"; that is from the verbatim record, VIII, page 394.
Hence Respondent concludes, and 1quote from the sarne verbatim record :
"If the intention was to comply in fullwith al1the obligations pre-
scribed in the various British mandates, including an obligation of
accountability, then surely, Mr. President, the words 'in accordance
with the general principles of the .. ,mandates' would have been
inappropriate. They would not have been used."
Respondent then goes on to argue that if the United Kingdom had
contemplated survival of the obligation of accountability, itis to ber S2 SOUTH WEST AFRICA
expected that the United Kingdom would haveadverted "to the problem
which would anse by reason of the fact that the only supervisory body"
(that is, the Permanent Mandates Commission) "would cease to be in
existence". Hence, Respondent reminds the Court, and 1 quote again
from the same verbatim record:
".. .the wording was confined to the question of administering these
territories, and thbasis upon which that was to occur, was said to
be 'inaccordance with the general principles of the existingmandate'.
The wording of that statement itself, Mr. President [says Reçpon-
dent], is therefore, in my submission, destructive of the Applicants'
contention." (VIII, p.395.)
In light of fact, &Ir. President, that the Applicants' contention is
nothing less than that international accountability, the essence of the
Mandate,survived the League's dissolution, Respondent's argument boils
down to the proposition that the United Kingdom, then responsible for
the administration of five mandated territories-Iraq, Palestine, British
Togoland, British Cameroonç and Tanganyika-envisaged and intended
its pledge in April of 1946 as excluding the obligation of international
supervision which this Court has described as "the very essence ofthe
Mandate", in the words of the 1962Judgment, atpage 334;in light of the
fact that the United Kingdom, along with Australia and South Africa
itself, expressed in the Preparatory Commission support for the creation
of a temporary trusteeship committee, Respondent's interpretation of
the phraçeology ernployed in the British pledge made only a few months
later is inherently incredible. The attitude of these three mandatories
wliich 1have mentionedhas been described in the verbatim record, 7May
1965,at page 141, su$ra. Respondent's construction of the intent of the
cerning the limited scope of its own pledge, which was couched in similar
terrns. Respondent's pledge in April 1946, indeed, tvasformulated even
more explicitly than the British pledge. Respondent then pledged, inter
dia :
"The Union Government will nevertheless regard the dissolution
of the League as in no way diminishing its obligations under the
Mandate, which it will continue to discharge with the full and proper
appreciation of its responsibilities until such time as other arrange-
ments are agreed upon concerning the future status of the Territory."
g April 1946.)ons Oficial Jorsrnal,Special Supplement 194, p. 133.
TheAdvisory Opinion of this honourable Court in 1950 quoted the lan-
page 1 have just placed into the record, along with other declarations
made by the Respondent, and the Court concluded:
"These declarations constitute recognition by the Union Govern-
ment of the continuance of its obligations under the Mandate and
not a mere indication of the future conduct of that Government."
(1.C.J.Reports1950, p. 135.)
The history and purpose of the pledging procedure, read in the Iight
of the rejection of the Mandatory's proposa1for a temporary trusteeship
committee, has been set out by the Applicants in some detail in the
verbatim record at pages 140,su a,and following.Reçpondent, however,
does not rest its constructionOf the British pledge solely upona strained REPLY OF MR. CROSS I53
interpretation of the terms of the pledge itself. Respondent goes on to.
argue in the verbatim record of 5 April (VIII) that its interpretation of
the wording of the British pledge is confirmed by the actions of the
United Kingdom during the foliowing year in relation to the question of
Palestine; this is set out atpage 395 (VIII) of the verbatim record.
The Applicants shortly will deal with the actual significance of the
p- -edu.es attending the solution of the long and difficult problem of'
Palestine.
This honourable Court will be well aware of the complex issues whch
confronted the United Nations in respect of this matter, as weil as the
tragic events with which the road to-solution was strewn. It is enough
at this point merely to Say,for reasons which weshd endeavour to make
clear, that the United Kingdom not only consented to but, with under-
standable anxiety, insisted upon a full role for the United Nations in
supervising and directing the disposition of the Palestine Mandate.
powers of the mandate instrument.r, weKespondent's construction of thery
United Kingdom pledge of Aprjl 1946 not only is erroneous in the
Applicants' submission, but indeed does injustice to the actual British
attitude which at al1 times was marked by acknowledgement of the
continuance of its obligations of international accountability with
respect to al1its mandates pending conclusion of other agreed arrange-
ments. Only in the case of the Palestine Mandate, upon which Respon-
dent placed unusually heavy reliance, did a special problem arise which
called for an extraordinary regime of supervision, far transcending
normal mandate procedures. The events and transactions which have
been described, including the juxtaposition of the proposa1 for a tempo-
rary trusteeship cornmittee made by three mandatory powers including
the Respondent, and the pledging procedures-this juxtaposition sheds
light on the tnie significance also of the League of Nations resolution
of 18 April1946, paragraph 4 of which took note-
"of the expressed intentions of the Members of the League now
administering territories under mandate to continue to administer
them for the well-being and development of the peoples concerned
in accordance with the obligations contained in the respective
United Nations and the respective mandatory Powers". (1,pp.42-43.)
The phrase "expressed intentions" in the resolution of 18 April 1946
refers to pledges, and that word was used in several of the statements
made at the time; to the pledges which each of the mandatory powers.
made pursuant to a plan and design which was choçen in preference to.
the proposd for a temporary trusteeship cornmittee to which they would
have reported until other arrangements had been agreed between them
and the United Nations-that was the lan.
Except for the Territory of South yVest Africa itself, such "other
arrangements", in the words of the 18 April resolution, in facthave been
agreed upon in the case of every one of the territories which were under
mandate in 1945. In the case of South West Africa alone it has proven
necessary to create a system of supervision appropriate to the sacred
trust, a third system as 1have called it, alongside the trusteeship system
and the reporting requirements of Article 73 (e)of the United Nations
Charter.I54 SOUTH WEST AFRICA
.of the pledge given by South Africa on g April 1946, which the Courtnce
in 1950 interpreted as "recognition by the Union Governrnent of the
continuance of its obligations urider the Mandate", that is to Say, an
undertaking rather than a mere revocable statement of intention.
Respondent, indeed, does not rest any part of its case upon the premise
that it expressed any intention whatever, presenl, or revocable, or
otherwise, with respect to the matter of continuing accountability. To
the contrary, Respondent contends that an inierence is to be drawn
from the events and transactions of that period, to the effect that the
.obligation of ail mandatories to submit to international supervision
lapsed by force of the termination of the League, and that happened as a
matter of Law,and that no pledge given was intended to carry on the
obligation of international accountability; that is the stand of the
Respondent.
And Respondent at the same tirne has, of course, continued to retain
ihe rights derived from the Nandate, a position which, the Court held
in 1950, could not be justified.
During the Oral Proceedings of 5 April 1965, Respondent sought to
.bolster the contention that its pledge of g April1946 was not intended to
.accountability. In the oral artinuament on that day, reported in thetional
verbatim record, VUI, page 3gr~espondent placed reliance upon the
.followingphrase in its pledge :
"In the meantirne the Union will continue to administer the terri-
tory scrupulously in accordance with the obligations of the mandate,
for the advancement and promotion of the interests of the inhabi-
the Mandates Commission could not be held."years when meetings of
Laying stress on the clause, as she has done during the past six years
when meetings of the Mandates Commission could not be held, Respon-
-dent argues that inasmuch as no reporting occurred during the period
,when the Permanent Mandates Commission could not meet, its pledge
.the material and mord welI-beiiig and social progressgatiooftothe inhabi-
tants. This may be called the spirit of themandate concept, according to
which Respondent's highest officials have ever since continued to ad-
minister the Mandate on the basis of self-enquiry and self-appraisal.
Kespondent's argument,set out iq the verbatim record, VIil, pages 396
and foilowing, proceeds along the followinglines. Respondent quotes the
.second paragraph of its pledge of April 1946, which reads as foliows
(this is from the Leagueof Nations OficiaiJlournal, Special Sufifilement
.No. 194, P-33) :
"The disappearance of those organs of the League concerned
with the supervision of mandates, primarily the Mandates Com-
mission and the League Council, will necessarily preclude complete
cornpliance with the letter of the mandate. The Union Government
will nevertheless regard the,dissolution of the League as in no way
diminishing its obligations under the mandate, which it wil con-
tinue to discharge with the full and proper appreciation of its i
responsibilities until such time as other arrangements are agreed
upon concerning the future status of the territory."
i REPLY OF MR. CROSS I55
The quoted language, Mr. President-even read by itself, without
reference to Mr. Nicholls' statement of November 1945, proposing,
urging the establishment of temporary machinery to which Respondent
rnight report-draws no distinction whatever between the two inter-
dependent groups or kinds of obligations, to wit, those which corres-
ponded to the sacred trust, in the words of the 1950Opinion, and those
which corresponded to the securities for the performance of the trust.
from the pledge, read in the light of the earlier reference to the period
during which the Mandates Commissiondid not meet, clearly indicates a
contemplation that there would be no accounting or reporting under the
Mandate in this interim period to which the statement of intent relates.
That is Kespndent's statement in the verbatim record,VW, at page 397,
The second sentence of the quoted paragraph, in which Respondent
pledged that it "will nevertheless regard the dissolution of the League
as in no way dirninishing its obligations under the mandate", Respondent
contcnds is to be taken as relating only to obligations regarding ndminis-
tration of the Territory and excluding obligations to account and report.
Such a construction, which the words themselves do not bear, is ex-
plained by the Respondent by reference to the first paragraph of the
pledge, the phrase relating to the period during which the Permanent
Mandates Commission could not meet, when their meetings were in
abeyance.
Mr. President, this exercise in semantics does not kiil the spirit by
the letter; it ignores both spirit and letter, and in addition it ignores
Mr. Nicholfs and his staternent of November 1945.
Respondent throughout this phase of its rebuttal, as in its written
pleadings, centres its argument on the question why should it have
acknowiedged accountability in view of the absence of United Nations
supervisory machinery at that time, and in view of itsannouncement in
San Francisco of an intention to take up at the Peace Conference the
matter of the termination of the Mandate, Respondent makeç thiç point
at VIIi, pages 398 and 399 of the verbatim record to which 1 have
referred.
In the Applicants' respectful view the question answers itself. Respon-
dent's Government at that time. as Resnondent now concedes. con-
aimatter of law. Respondent, along with the other mandatories, in- as
cluding the British Government, suggested the establishment of interim
rnachinery to which to report. Mr. Nicholls, indeed, urged such a course
upon the Preparatory Commission. Instead, a pledging procedure was
devised for the purpose of assuring that al1 legal obligations would
remain intact until substitute arrangements had been agreed with the
United Nations.
Article 80, paragraph r, of the Charter confirrns the understanding
of the authors of the Charter that a11such obligations would survive,
although, as has been said, the Article is a saving clause and does nin
itself maintain or create any rights or obligations. But it does, in the
Applicants' view, confirm that the authors of the Charter assumed
that rights would rernain in existence until other agreements were
concluded, and it was hoped, of course, that thcse would be tmsteeship
agreements.
Above all, the two groups of mandate obligations-administration15~ SOUTH WEST AFRICA
and accountability-were inseparably linked in Article 22 of the Cove-
nant, as parts of a designed and integrated whole. Respondent adduces
no evidence and, indeed, there is none to adduce, showing that any
hlember preçent at that tirne drew any distinction between the two
groups of obligations. On the contrary, the assurnption obviously wu,
and must have been, that they stood or fell together: there is no evidence
to the contrary.
Respondent in its second alternative argument, to wit, that the lapse
of Article 6 must coliapse the Mandate as a whole, dernonstrates aware-
ness of this very basic proposition, the inter-related, inter-dependent
nature ofthese two groups of obligations. In support of its interpretation
of its pledge, Respondent again cites the United Kingdom pledge as
confirming Respondent's present interpretation of its own pledge. This
is in the verbatim record already cited at page 398.
Indeed, Respondent in this part of its argument goes even further
than before. Respondent explores probabilities and then açks, rhetori-
.caUy,
"Why shouId the South African delegation alone, of al1 the man-
datory powers, have manifested an intention of that kind? 1 have
indicated a clear intent to the contrary on the part of the British
delegation, and 1 shall proceed to indicate a clear intent to the
contrary on the part of the New Zealand, the French and the
Australian delegations, the Belgian delegation's statement being
neutral on this particular point." (VIII,p. 399.)
The concession to Belgian neutrality, so-called, is not quite generous
.enough. The Belgian pledge, indeed, included the following declaration
from which 1quote-this is from the surnrnary-
"In the course of the çame declaration of 20 January we ex-
pressed our confidence that the Trusteeship Council would soon
corne to occupy in the United Nations Organization the important
place which it deserves. We can only repeat that hope here and
give an assurance that pending its realization, Belgium will remain
fuly alive to all the obligations devolving on Members of the
United Nations under Article 80 of the Charter." (Leag~e of Nations
ilficialJournal,SpecialSncpplemeathTo.194, p. 43.)
No distinction is drawn or implied between the two groups or kinds of
inter-related obligations.
For its part, the Australian Government's pledge stated, inter alia:
"Until the coming into force of appropriate tmsteeship agree-
ments, under Chapter XII of the Charter, the Government of
Australia wilI continue to administer the present mandated terri-
tories in accordance with the provisions of the mandates for the l
protection and advancernent of the inhabitants. In due course these
territories will be brought under the trusteeship system of the
United Nations. Until then the ground is covered not only by the
pledge which the Government ofAustralia has given to this Assem-
bly today, but also by the explicit international obligations laid
down in Chapter XI of the Charter." (Ibid p. 47.)
The Australian pledge nowhere explicitly or implicitly distinguishes
between the two groups or kinds of inter-related obligations.
It appears relevant ai thiç point, Air. President, to consider the
possible significance of the reference in the Australian statement to REPLY OF MR. GROSS
157
Chapter XI of the Charter. In the light of the question propounded by
Judge Jessup, it may be appropriate to refer to the joint dissenting
opinion of the honourable President and Judge Sir Gerald Fitzmaurice,
appended to the Judgment of 1962 on the Preliminary Ob'ections.
In the course of discussing the role of Article 73of the tharter, the
opinion cites, inter alia, the foregoing reference in the Australian state-
ment to Chapter XII of the Charter as evidencing the intent of the
authors of the Charter to provide the protective cover of Article 73 to
mandated territories, the disposition of which might not otherwiçe be
agreed upon pursuant to the League resolution of 18April 1946. In
contention that the pledge made by Australia excluded the obligations
of accountability, the foregoing analysis of the joint dissenting opinion
of the learned judge and the honourable President would, of course, be
irreconcilable with Respondent's interpretation of the Australian pledge.
The question would be, what type of international accountability or
reporting was intended to be referred to by the reference to Chapter XI.
The opinion ofthe learned Jiidges appears to assume, without question,
so far as the Appiicants understand it, that the Australian statement
included within itç ambit the obligation to report. The only issue left
open then would appear to relate to the method of accountability, not
to its inclusion in the Australian pledge. In respect of that issue, the
Applicants with great respect, at an earlier stage of their response to
Judge Jessup's question, sought to demonstrate why, in their sub-
misçion, the territory of South West Africa was not to be regarded as a
territory within the scope of ArticIe 73 (e) of the Charter.
The reference to Chapter XI in the Australian pledge necessarily
confronted Reçpondent with a certain dilernma. Respondent's case, on
the issue now under discussion, rests upon satisfying the Court that the
mandatories, including Austraiia, excludcd the principle or the obligation
of international accountabilitjf from the scope of their pledges in April
1946. In addition to al1 other îndz'ciaof the importance attributed by
the Australian Government to the conversion of mandates into trustee-
ships, and the extension of international accountability to the general
colonial area, the Australian pledge made reference to Chapter XI,
which, of course, includes Article 73 (e). Consistently with its objective
of construing the pledgesin a manner to exclude accountability,therefore,
Respondent has now sought to constme Article 73 (e) itself in preciseIy
the same manner, that is as excluding international accountability.
In Respondent's words, and 1 quote from the verbatim record, VIII,
at page 402, Respondent argues, with respect to this matter, as follows:
"And now, Mr. President, if we corne to analyse what that explicit
international obligation [that is, Chapter XI] is, as laid dom in the
Charter, we find that it is not an obligation of accountability under
a mandate at all. Tt is not an obligation involving supervision on
the part ofsupervisory organs. It is merely a very limited obligation
of supplying information of a technical nature on economic, social
and educational conditions in its dependent territories for the in-
formation ofthe United Nations."
In the course of the same address to the Court, the Respondent went on
to Say:
"It [that is Chapter 73 (e)] is very clearly a very much lesser SOUTH WEST AFRlCA
obligation-a very rninor obligation-as compared with the obliga-
tion of reporting and accountability under the Mandate." (VIII,
P. 403.1
And, then, Respondent adds :
", ..rny learned friends who represent the Applicants, admit that
this distinction exists as a matter of law. As a rnatter of law this
obligation cannot be equated with one of accounting and reporting
under the Mandate." (Ibid.)
hlr. President, the Applicants do indeed draw this legal distinction
between Article 73 (e) and the reporting and accountabiLity under the
Mandate, but a more appropriate word for the Applicants' position
might have been "insist" rather than "admit". In the Applicants' view,
Respondent's analysis, however, attributes much too narrow a scope and
significance to Article 73 (e), which is not supported by the history of
sistently expressed by the Australian Governmentdicted byitself during the
evolution of Chapter XI, and these views have been set out in some
detail by the Applicants at pages 137 to r39, supa.
Respondent's narrow interpretation of Article 73 (e), designed to
demonstrate that the Australian pledge did not include or encompass
a continuing obligation of accountability, is, as1 Say,incompatible both
with the views of the learned judges in the joint dissenting opinion of
1962 and with those of the Applicants, although for different reasons.
If Respondent's narrow construction of Article 73 (e) were correct, it
would support the Applicants' contention that Article 73 (el could not
have been regarded by the authorç of the Charter as an adequate cover
for residual mandates.
learned judges' view in the joint dissenting opinion, that Article 73 (e)
was intended to provide just such a cover,
Respondent's argument falls between al1stools. Respondent's ana-
lysis of Article 73 (e), narrow though it be, does not, in any event,
support Respondent's construction of the Australian pledge. lndeed, the
distinction sought to be drawn by Respondent between accounting and
reporting, in this context, is little more than a quibble. Article 73 (e)
expiicitly provides for the reguIar transmission of information within
enumerated categories. ObviousIy, this iç designed to be, and by defini-
tion is, a form of international accountability. In the words of the joint
dissenting opinion, "It [that is, Article 73 (e)]provided for a reporting
obligation to the United Nations".
The Applicants are, of course, aware that byçtressing the proper sig-
nificance to be attributed to Article 73 (e), an aspect of the response to
Judge Jeççup's question is involved, but it is believed by the Applicants
that the important Charter construction question here presented justifies
as objective an analysis and evaluation of Article 73 (e) as lies within
the Applicants' competence to preçent to this honourable Court. And
Article 73 (e), contrary to the Respondent's position, clearly, in the
Applicants' view, provided for a form of international accountability
dthough, in the Applicants' respectful submission, it was not contem-
plated that it would be adequate cover for the obligation under residual
mandates.
But, Mr. President, in the Applicants' respectful submission, in sum, REPLY OF MR. GROSS
159
the AustraIian pledge, on its face, made clear its acknowledgment that
the obligation of international accountabiiity continued, but that, until
the trusteeship council commenced to function, the Australian Govern-
ment would carryout al1its obligations under the Mandate, as the pledge
said, including the duty to report to the United Nations. Referencewas
made, in that connection, to Article 73.The question isopen whether the
reference was intended to include Article 73 (e);it may well have been.
However, it is true, and the Court's attention is called to the fact,
that the Australian Government, in response to the Secretary-General's
request of zg June 1946 for an enurneration of its non-self-governing
territories, concerning which it intended to supply information under
Article 73 (e), did not list the Australian mandated territories, and this
wili be found in the Re9ertovy of UnitedNations Praclice, Volume IV, at
paragraphs 21-23, pages 11-12.
It might be inferred from this fact, as 1 have said, that the reference
to Chapter XI in the Australian pledge was intended to refer only to the
substantive obligations of (a) to (dl of Article 73 noturithstanding the
fact that the Australian Government, it is true, in an earlier reference
in the çame pledge, did refer to Article 73 (e) specifically. This, of
course, will be found in the League of Nations Oficial Journal which 1
have cited, the Special Su#JEemenN to. 194, at page 47.
However this may be, whether the Australian Government intended
to include in its pledge an interim obligation to report under Article 73 (e)
or not, in either event there is no question but that it did include in its
pledge reference to an obligation of international accountability.
Precisely the same thing was true in the case of al1mandatory powers
at the League's final session. The change of Governrnent in South Africa
in 1948brought with it a reversa1 of Respondent's position with regard
to Respondent's obligations towards the Territory, in the sense under
discussionhere.
Respondent now concedes that untiI 1948,and 1 quote from the ver-
bath of 6 April 1965V ,III, at page 428, there was "a conception on the
part of the South African Government that the Mandate as such could
be regarded as still in operation". Indeed, only several months prior to
Respondent's pledge, as 1have mentioned, the Respondent's representa-
tive at the Preparatory Commission, Mr. Nicholls, explicitly solicited
United Nations supervision over mandated territories, and the question
of "probabilities of interpretation of events", to use the Respondent's
question from that which it becarne after 1948, and has remained evererent
since.
In summary, then, Mr. President, the system of pledges adopted by
the mandatory powers was carried out precisely for the purpose of en-
suring international supervision of mandated territories without resorting
to the alternative plan origjnally favoured by the mandatory ppwers,
including Respondent, to establish an interimbody, or interim machinery,
which itwas generaIly feared rnight result in delay in the establishment
of the tmteeship system, and this system of pledges must be understood
in this historical context and perspective.
Both alternatives, interim machinery and pledges, were vieured as a
means of ensuring international supervision of mandates until other
agreements were made. The first alternative, that is the establishment
of interim machinery, was favoured by mandatory powers but was160 SOUTH WEST AFRICA
rejected for reasons ofexpediency, andits rejection cannot be interpreted,
as Respondent seeks to do, as a rejection of international supervision of
indeed, have been an irnplicit exclusion ofthe very essenceofthe mandate.
1 turn now, Mr. President, to a consideration of the Chinese draft
resolutions. The foregoing analysis sheds light also on the significance
properly to be attached to the two Chinese draft resolutions presented
to the League Assembly. These were referred to in League of Nations,
z~st Assembly, 1st Cornmittee, 2nd Meeting, The L~ague of iVatiu~is
OffEciaJlournal, Special SupplementNo. 194, at page 58.
The first Chinese draft was, in essence, an attempt to return to the
frrst alternative proposa1 favoured by mandatory powers in the debates
of the Preparatory Commission. Indeed, the wording of the first Chinese
draft was in close accord with Respondent's view conveyed at the time
of the Preparatory Commission by Mr. Nicholls that-
Commission rwasonowinabeyance and the countries holding mandates
should have a body to which they could report". (VIII,p. 152.)
The Chinese delegate's attempt to revive the alternative proposa1 fav-
oured by the mandatory powers was rejected however, as it had been
in the Preparatory Commission, and a second Chinese draft referred to
the several pledges made by the mandatory powers. In short, the As-
sernbly of the League of Nations, consistently with the action taken
by the Preparatory Commission, rejected the plan of interim machinery
sup orted by the rnandatory powers and, instead,adopted the system of
ple ges. And this was done, of course, asthe record makes amply clear,
to prevent undue delay or to encourage delay in the establishment and
floweringof the trusteeship system.
Respondent insists however, that the reason for the change was lack
of unanimity among the States concerned ;Respondent makes this con-
argues that Respondent itself couid not agree to the first Chinese draft
resolution and unanimity was required; yet, Respondent had stated
four months previously, through Mr. Nicholls, that it favoured interim
supervision, and there is nothing in the record to demonstrate that Re-
spondent had changed its view in the interval. Its reasonable to assume
on the basis of this record that the Respondent indeed would have pre-
ferred the first Chinese draft to the second but the record is silent on
this point-this certainly would have been more consistent with the
Respondent's position at that tirne than the strained and unsupported
interpretation of the event which Respondent now advances. Respondent
also speculates that the United Kingdom could not have agreed to the
first Chinese draft, but again, in the Preparatory Commission, the
United Kingdorn delegates spoke in favour of the plan for a temporary
trusteeship committee and hence, it is at least as likely as not, and indeed
more likely, that the United Kingdom would have preferred the first
Chinese draft resolution to the second-there being no evidence in the
record toindicate a change ofposition on thepart ofthe British delegation
in that interval.
Respondent speculates aiso that Egypt could not have agreed with
the firstChinese draft because of her views on Palestine, but Egypt
did not agree with thesecond Chinese draft ejther; Egypt stood alone in REPLY OF MA. CROSS 161
the view that mandates did not continue in force after the dissolution
of the League and hence, it was quite natural for the Egyption delegation
to voice objections to both Chinese draft resolutions. In short, the action
of the League Assembly in adopting the Chinese draft resolution, is
consistent with the reasonable hypothesis and reflected tlie same con-
siderations that accounted for the decision in the Preparatory Commis-
sion to adopt the pledge system-the pledge technique-rather than the
temporary trusteeship commission technique. The actions taken by the
League Assembly are perfectly consistent with the historical develop-
ment of international supervision of dependent areas. While the League
of Nations broke new ground by instituting a system of international
development still further by providing a more elaborate systemedofhsuper-
vision and by creating important new obligations for colonial areas. Un-
der no circumstances have the United Nations contemplated that the
administration of dependent areas would be completely devoid of inter-
national obligations nor has it ever been thought that dependent peoples
once having had the right ofinternational supervision should be deprived
of that right-this is simply counter to the historic trend-yet, this is
precisely the proposition which Respondent urges upon this honourable
Court. Respondent's contention is not only in the teeth of the position
taken by it in the Preparatory Commission by Mr.Nicholls, it isnot only
in the teeth of the clear meaning of the text of its pledge of April 1946-
it runs directly counter to the historical development of major historical
significance,as the Australian delegation and many others pointed out
at the time.
hlr. President, with your permission, 1 should now like to turn to a
consideration of the Respondent's incorporation proposa1 and the Gen-
eral Assembly's treatment of it in the light of arguments made by Re-
spondent during its rebuttal. Perhaps the most important historical de-
velopment in respect of the evolution of the South West Africa problern
was the establishment bythe United Nations of a system of international
supervision over the terï-jtory, asystem whichiçneither trusteeship super-
vision nor colonial supervision, if 1 may use that phrase, under Chapter
XI of the Charter. As noted by a scholar already quoted-Mr. E. Sady
in his work found in The United Nation asnd DependentPeoplespublished
by the Brookings Institution, Washington D.C., in 1956, 1 quote frorn
page 132:
"The system for the intcrnational supervision of South West
Africa is sufficiently different from that established by the Assembly
for the implementation of Chapter XI of the Charter and from the
International Trusteeshp Syçtem to merit continuous study in the
effort to improve internationai organization in this field."
The historical development in this respect is clear, Mr. President,and
is consistent with the evolution of international supervision over depen-
dent areas generally. Analysis of events during the years rg46 to 1949
at the United Nations makes it clear, in the Applicants' respectful sub-
mission, that the system of international supervision over the mandated
territoryof South West Africawas deveIoped at first with the CO-operation
of Respondent and subçequently in the face of increasing opposition. It
waç, of course, well known that Respondent desired to incorporate South
West Africa into the Republic of South Africa-this was never concealed,162 SOUTH WEST AFRICA
and it would have follou7ed,of course, that the Mandate would have been
terrninated. Now Keçpondent has conceded that in the opinion of the
then Government-the Smuts Government-the Mandate rernained in
full force and effect, notwithstanding the dissolution of the Leape, on
its legal interpretation of the situation at thathe. The Smuts Govern-
ment however, in accordance with its view that the mandate obligations
continued byond the League's demise, quite clearly recognized the com-
petence of the United Nations. Thus, on 22 January 1946, Respondent's
representative to the Fourth Cornmittee of the General Assernbly stated
that its Government's final decision on incorporation of South West
Africa and I quote "would be submittedto the GeneralAssembly for judg-
ment", this was quoted by the Court in the 1950 Opinion, I.C.J. Reports
1950, at page 142. In the same statement the South African representa-
tive made reference to South Africa's asserted rights pursuant to Article
80, paragraph z, of the Charter.
Accordingly, this may be a convenient moment, Alr.President, to re-
ply briefly to Respondent's rebuttal on the question of Article So,
paragraph 1, although the matter is sliglitly digressive in respect of
the main line of the Applicants' argument regarding the significance of
Respondent's acknowledgment in 1946 of United Nations cornpetence
to wlich 1 have just referred.
In the statement of 22 January 1946, tlie South African delegate is
reported as saying, interalia: "Keferring to the text of Article 77 [this
is the summary record] he said that under the Charter the transfer of
the mandates regime to the trusteeship system was not obligatory. Ac-
cording to paragraph r of Article 80, no rights would be altered until
individual tmsteeship agreements were concluded. It was wrong to as-
sume that paragraph z of this article invalidated paragraph I. The posi-
tion of the Union of South Africa was in conformity with this legal
interpretation." That is the statement of 22 January 1946 by the
South African delegate. It iç quoted in the Counter-Mernorial, II, at
Page 42-
The Applicants accordingly take a different view of the proper con-
struction of Article 80, paragraph 1, than did Respondent in 1946. The
Applicants, as fiasbeen stated in an earlier phase of these proceedings are
in respectful agreement with the views expressed on this matter in the
joint dissenting opinion of the honourable President and Sir Gerald
Fitzrnaurice, at page 516of the I.C. J. Reports 1962, that Article 80,
paragraph 1,does not maintain or stabilize rights nor does it insure the
continuance of those rights or increase or diminish them. ArticIe 80,
paragraph I,as is pointed out at page 516 of the I.C.J. Reports 1962,
'1gures in the Charter as an interpretation clause commonly calied a
saving clause". The Applicants, at an earlier stage of these proceedings,
expressed regret if their argument during the 1962 Oral 13roceedings
gave rise to a contrary impression as appears to have been the case.
Respondent, after duly noting the Applicants' expression of regret at the
misunderstanding for which they, the Applicants, were responsible, pro-
ceeded with an argument of its own which would deprive Article 80,
paragraph I, of any significance whatever foIlowing the effective date
of the United Nations Charter.
Before turning to Kespondent's specificcontention in this respect how-
ever, the Applicants consider it may be helpfuI to set this matter ai rest
so far as their own views are concerned, to formulate their analysis of REPLY OF MR. GROSS 163
the relevance in these proceedings of Article 80, paragraph I, of the
Charter in the following three propositions:
I. The term "existing international instruments" as used in Article
80, paragraph I, Uicludes mandate instruments. This interpretation of
the Article seerns to be undisputed.
2. The authors of the Charter would not have included a saving
clause in the Charter pertaining to rights under mandates unless they
assumed that such rights would continue to exist apart from anything
in the saving clause itself.
3. The assumption underlying the phrase in Article 80, paragraph I,
"until such agreements [that is trusteeship agreements] have been con-
cluded" dernonstrates that the authors of the Charter, not only assumed
that rights under the mandates would continue to exist, but they would
do so until and unless superseded by other agreed arrangements,
Now, Respondent, in its own words, contends in the verbatim record
of z April 1965, that there was-
". .. a contemplation on the part of the authors of the Charter, at
the time when the United Nations was formed, and at the time when
the Charter came into effect, that there were unaltered rights and
obli-ations under mandates". (VIII,-- 388.'
Respondent, of course, in this connection, is necessarily faced with the
problem of explaining the reference to Article 80 in Respondent's state-
ment of 22 January 1946. Respondent, however, goes on to contend
that, whatever the significance properly attributable to Article 80 (I),
the Article became adead letter wlien the United Nations Charter came
into effect; that is the Applicants' characterization, not Respondent's.
In Respondent's words, which I quote from this same verbatim, at the
same page :
"We must emphasize, Mr. President, that Article 80 (1)could
clenrly do no more than indicate which rights were, in the views of
itsauthors, inexistence as at the stage of its drafting and possibly
the stage of itscoming into effect." (Ibid.)
Respondent's argument, accordingly, seems to be, as understood by the
Applicants, that the force and effect of the saving clause waç spent at
the moment the Charter becamc effective. If this is a correct interpreta-
tion of the phrase just quoted-and 1 am not sure that it is,I perhaps
do not understand the phrase at all-it is, of course, an inherently, in-
credible proposition. Respondent's contention, ifthis be the contention,
ignores and fails to ve any significance to the phrase in Article 80"un-
tilsuch agreements !?ave been concluded". But,apart from plaging word
games with the language iised by Respondent, which is not clear on its
face,in Applicants' view, on 12 November 1948 ,he Belgian Representa-
tive, inthe Fourth Committee of the General Assembly, referred to the
provisions of Article 80 in terms clearly cvidencing that the Belgian
Goveriiment assumed that the saving clause of Article80 was still opera-
tive, as much as it ever hnd been and for the sarne purpose that it had
been inserted in the Charter. This was in Kovember 1948-more than
two years' following the dissolution of the League, The Belgian state-
ment itself isquoted in relevant part in Respondent's written pleadings,
and the reference to it isGerieralAssemblyOflcial Records of the 3rd Ses-
sion, Part 1,Fourth Committee, 79th Meeting, page 326. Two days later,
on 16 November 1948, the Delegate of India said in the same cornmittee:1~4 SOUTH WEST XFRICA
"The provisions of Article 80 of the Charter, safeguarding the existing
rights of the people of South West Africantil a trusteeship agreement
had been concluded, had to be recognized." This is the same citation, the
Srst Meeting, page 352.
The Uruguay delegation made a similar reference to Arti80eduring
the same session, at page311,and in 1949Cubadid likewise (4th Session,
Fourth Committee, 21 November 1949 ,. 216) and there was no ques-
tion, apparently, that the saving clause was stiil alive at that time. The
fully submittednowlein the fom of three propositions in which the Appli--
cants have attem ted to formulate their understanding of the Article.
Mr. President, frevert now to the main line of the Applicants' argu-
ment regarding the significance of Respondent's acknowledgement in
1946of United Nations cornpetence.
Reference has been made to Repondent's statement in the Fourth
Committee that the Respondent would subrnit its decision for incorpora-
tion of SouthWest Afrjca tothe GeneralAssernblyfor its judgment. That
was quoted in the 1950 Opinion at page 142.
Respondent also requested at that time that the question be placed
on the agenda of the General Assembly for the Second Part of the
1st Session,in1946 ,nd on 4 November 1946,Marshal Smuts told the
Fourth Committee :
"...that . ..[South Africa's] international responsibility pre-
cluded it from taking advantage of the war situation by effecting
a change in the status of South West Africa without proper con-
sultation either of al1the peoples of the Territory itself, or with the
competent international organs". (I.C.J. Re+ortI950, p. 142.)
As the Court pointed out in the 1950Opinion:
"By thus submitting the question of the future international
status of the Territory to the 'judgment' of the General Assembly
as the 'competent international organ', the Union Govemment
recognized the competence of the General Assembl in the matter.
The General Assernbly, on the other hand, affirmc is cornpetence
by Resolution 65 (1)of December 14th, 1946. (1.C.J.Reporls1950,
PP. 142-143.)
This response was given by the honourable Court in the1950 Opinion
in answer to questio(c) which had been asked by the GeneralAssembly,
and which read in part "...where does cornpetence rest to determine
and modify the international status of the Territory?" That is quoted
from page 141 of the Opinion.
The Court in 1950 ,f course, explicitly held that the organ vested
with supervisory powers is also the competent intemational body to
determine and modify the international status oa mandated territory.
Thus, at page 141. of the1950 Opinion, it is stated:
"The international status of the Territory results from the inter-
national rules regulating the rights, powers and obligations relating
to the administration of the Territory and the supervision of that
administration,as embodied in Article 22 of the Covenant and in
the Mandate. It is clear that the Union has no competence to
modify unilaterally the international status of the Territory or any
of these international rules." REPLY OF MR. CROSS 165
And the Court went on to Sap in the 1950Opinion:
"Article 7 of the Mandate, in requiring the consent of the Council
of the League of Nations for any modification of its terms, brought
into operation for this purpose the same organ which was invested
with powers of supervision in respect of the administration of the
Mandates." (I.C. J. Reports1950p ,. 141.)
The Court evidently took the view that the vesting in the League
Council both of a supervisory role and a cornpetence with regard to
modification of the terms of the Mandate, was not merely coincidentai
but logical, and the Court suggested that by the same logic the com-
petence of the General Assembly to supervise mandates extended also
to the matter of approving changes in the status of the Territory. It was
given the authority to consent, if it thought fit, to a modification of the
terms of the Mandate.
It may be relevant at this point to take note of Respondent's con-
tention with regard to this matter, which was advanced in rebuttal.
The Applicants had sought to show why it is essential that the same
administrative organ should be vested with power to supervise and
power to consent to a modification of status of a mandated territory.
This must be so, in the Applicants' respectful view, because the consent
to which Article 7 (1)refers clearly must be an informed consent. The
modification of the terms envisaged, include, and encompass ail the
tems of the Mandate-any terms of the Mandate.
As we have noted earlier-1 quote from the verbatim record, VLII,
at pages rz7-128 :
"Only the same organ entitled to receive 'full information with
regard to the territory', in the words of Article 6, couid be in a
position to exercise.an informed judgment in respect of proposals
for modification of the terms of the Mandate."
Clearly such modifications could include major or minor modifications
of any or al1 provisions of the Mandate, not necessarily modifications
relating to the basic status of theNandate as an international territory.
It foliows, in the Applicants' view, that the lapse of Article 6 and the
consequent falling away of Article 7 (r) of the Mandate would, as was
pointed out, necessarily create one of two intalerable situations: either
the Mandate would be frozen in its present form in perpetuity, for
reason of the absence of an organ whose informed consent would be
required to a modification, or Respondent woüId have the right unilat-
erally to modify the terms of the Mandate in the absence of an organ
whose consent would have to be obtained before such modification-
whose consent would have to be obtained, not whose consent could be
obtained, if the Respondent decided unilaterally to seek such consent.
It is obvious, in the Applicants' view, that the latter altemativethe
right unilaterally to modify its terms, which would exist unless there
tion-wouldgan carry withnit the power to destroy unilaterally the inter-
national status of the Territory, thus annexing it both in law and in fact.
This conclusion the Applicants thought was clear, in respect of the con-
sequences which would flowfrom a lapse of Article 7, paragraph 1, and
this seemed to the Applicants to conlirm the essential nature of the
retention of international supervision asa legal conclusion, and an organ
competent to consent whose consent was essential, was requued.166 SOUTH WEST AFRIC.4
Respondent's answer, or discussion, of this analysis seems to the
Applicants to be both ambiguous andevasive. Inthe firstplace, Respon-
dent appears to misconceive the purpose of Article 7, paragraph I.
In the Oral Proceedings ofg Aprilrg65, ViU, at page 518 ,he Respondent
stated:
"The function of Article 7, paragaph I, was sirnply to provide
machinery of a useful and a practical nature whereby the terms of
the Mandate could be modified with binding legal consequences.
It was a useful procedure involving the consent, on the one hand,
of the mandatory and, on the other hand, of a body of limited
composition, the Council of the League."
Respondent proceeds by arguing that the lapse of the authorized ma-
chinery realiy would not be an important detail; there is nothing for
the Applicants to get excited about, the Respondent says; the con-
sequence merely would be, and I quote from the same verbatim record,
at page 519, getting "the consent or the recognition of al1 who have
legaI interests in the matter". This general reference to "al1 who have
legal interests in thematter" is then followed by an argument on the
part of Respondent whch çeems to concede-just seems to concede-
or imply the concession of necessity to obtain consent to modification.
Thus, at page 519 of the same verbatim record, Respondent expresses
the thought that-
"if it [the Aiandate] was still to be seen as a treaty relationship
[the alternative argument so familiar in the proceedingsl-al1 the
interested parties, who would probably be a11the Members of the
League, would have had to give their consent. .,.[If] it was no
longer to be seen as a treaty relationship, but as a continuing
institution involving special status for the Territory the same
positionivould, in substance, have applied.
There are recognized international processes whereby a change
of status of a territory can occur in such a way as to be legally
recognized."
The last-quoted sentence as a legal proposition is unassailable, but it
is wide of the mark. The question is wide open on the basis of Respon-
dent's apparent analysis as to ~ho al1the interested parties would be;
Respondent suggests they might be, as a tentative suggestion, probably
have to be regarded as al1the Members of the League. The Applicants'
point, Mr. President, is that unless Respondent is obliged by the Mandate
to obtain consent of an organ which ha the information which is avaiI-
able only to a supervisory organ, then it must follow that at the very
least utter confusion would mark the question as to whose consent,
if anybody's, would be required; infinite debate would ensue at best;
OC Respondent wouId be free unilaterally to destroy its international
status. RespondentJs present position as expressed in its pleadings, and
voluntarily not to alter the international status of the Territory, in
accordance with what it calls "the spirit of the Mandate". But this
is a unilateral statement of intention and, of course, is revocabIe at any
moment, without notice. This is not to say that the Respondent wouId
do so-xve are talking ofthe legalobligation inherent in the situation.
M%en we get to the basic question of Respondent's duty to obtain
consent, which has been rather the subject of alternative hypotheses and REPLY OF h1R. CROSS 1~7
arguendoassumptions, we find that Respondent's argument really evades
this crucial point. Reçpondent concedes at VIII, page 520, of the ver-
batim record that if the Mandate is in existence, Reçpondent is "not
entitled as a matter of law to modify the status of the Territory uni-
laterally".Reçpondent then goes on to say, quite irrelevantly in our
view, that inany event it is its expressed intention not to do so. Butthe
Applicants' argument is that it is necessary that there be in existence
a continuing obligation to obtain consent, a legal requirement, unless
Respondent is free to annex the Territory; and it is this necessity that
there be such a legal obligation fised in the Mandate, ïvith a specified
organ competent to give its consent, and an organ which could give an
informed consent-it isthis series of considerations u.hich, in the Appli-
cants' view, seems to provide evidence to confirm the existence of the
Mandate itself in general, and of Article 7 (1) in particuIar. The Appli-
cants see the need for consent as proof of the esistence of the Mandate;
Respondent merely concedes that if the Mandate existed there would be
an obligation to obtain consent.
But the matler goes further than this, and is indeed, in the Applicants'
view, a very important matter to clear up. The Applicants, as has been
stated, sought to make clear why the organ the consent of which iç
necessary also must be the same organ which has continuing supervision
over the Mandate. As has been said, consent to modification of the terms
of the hlandate, and this could refer toany term of the Mandate, includ-
ing the substantive obligations, must be an informed consent. The
Applicants accordingly see the need for an organ the consent of which
is necessary for modification of the termsof the Mandate as evidence of
the need for the existence of a supervisory organ. The Applicants think
it, and respectfully submit it to be a logical proposition, that if Artic7e
(1) must be considered to have.remained in effect because of the intol-
erable alternatives which would follow if it were not, that if, as the
Applicants submit, a competent organ must exist whose consent is
required to modification, and if that consent muçt be an informed
consent, then the survival of Article7 (1)has a direct and logicaIrelation-
ship with the question of the survival of Article 6.
The argument at the close of the earlier portion ofthis session had
just reached the point at which the Applicants contended that as a
Iogical proposition, and as a matter of iegal analysis, if Article7, para-
graph 1, is needed to preclude unilateral anriexation, and if the organ
relevant to the purpose of Article 7 (1) shoiild be an identified organ,
with continuing supervisory functions over the Mandate, and therefore
in a position to give an informed consent to modification of terms of the
Mandate, tiieras a logical proposition and as a matter of legal analysis
the logical conclusion is that the same competent organ should be the
supervisory agcncy over the Mandate with respect to Article 6. And that
if Article7, paragraph r, survives, as it necessarily must, in the Appli-
cants' view, it would follow that Article 6, for the,reasonç which have
been advanced, must also be deemed to have suwived.
The Respondent, so far as the Applicants noted, does not deal with
this precise point, the real heart of the matter, at all. Respondent instead
refers to theseparate opinion of Judge McNair, which was appended to
the 1950 Advisory Opinion, in the I.C.J. Reports1950, at page 32. But
judge McNair dealt with the effect of lapse of Article 6 upon the fate of
Article 7,paragraph I, and the learned judge concluded that the lapse of168 SOUTH WEST AFBICA
Article 6"by reason of the ensuing impossibility of obtaining the consent
of its [that is, the League's] Council" meant that Article7 (1) also had
lapsed. (I.C.J. Reports1950 .. 162.)
Thus, as the Applicants understand the position, Judge McNair
perceived a necessary interconnection between the two -4rticle-s. in
precisely the same way as did the rnajority of the Court, although of
course Judge McNair reached a contrary conclusion as to the survival
of both Articles. He linked thern as the Court had done, but, having
opinion, he concluded that Article 7, paragrapht 1,also had lapsed.ate
It would seemclear that the Court in 1950 made no distinction between
the international organ competent to determine and modify the status
of the mandated territory and the organ competent to supervise the
administration of the territory. Not only did the Court make no such
distinction, but it indicated the linkagebetween the two Articles, and
it would seem fair to conclude that the Court in 1950 at Ieast indicated
its view that the two must be one and the same-the organ under
Article 7 and the organ under Article 6 should be the same organ.
In the Applicants' view, therefore, the Respondent 's submission in
1946 of the question of thestatus of South West Africa to the competent
international organ for a judgment, in the words of the submission,
clearIy evidenced Respondent's recognition of the United Nations as the
international body competent to supervise administration of the Terri-
tory. There is nothing in the record to indicate a position contrato the
inherent logic of the position that if Respondent was submitting to the
judgment of the Organization, the competent international organ, the
question of modification of the terms of the Mandate, there is nothing
to indicate that Respondent would have or could logically have drawn
a distinction between the competent organ under Article 6 for super-
visory purposes, and the competent organ under Article 7, paragraph r,
for the purpose of exercisinga judgment with respect to modification of
the terms of the Mandate.
But Respondent now insists on separating what the Court in 1950
placed together, and ha devoted much argumentation in the rebuttal
to an attempt in this context to avoid the significance of the actions of
the Smuts Government at that time, at the tirne when the Respondent's
Government considered that as a matter of law the Mandate's existence
survived the dissolution of the League. Thus, Respondent argues that
supervision and consent to modification are, in the words of theRespon-
dent, "entirely distinct concepts"This is from the verbatim record, VIII,
at page 430.
The Respondent seeks to draw the distinction between supervision
on the one hand and consent to modification on the other, on the basis
that since supe~sion is a continuing process, and is onerous, while
consent to modification is "confined to a particular occasion", it is
apparently less onelus. This is still from page 430 of the same verbatim
record. The fallacy of the distinction haç been made clearit would seem
from the Applicants' point of view, in any event, and the distinction
Ioses any plausible significance in the Lightof the considerations which
Artide 7, paragraphonI,rwhich have nothing to do with whether eithernd is
more or less onerous. It is a logical proposition with respect to the
requirement that the organ under paragraph I of Article 7 be the super- REPLY OF MR. GAOSS
visory organ, so that it might be in a position to give an informed
consent.
Respondent continues its argument by referring to the wording of the
League resolution of 18 Aprii1946,in this context. The reference in the
Nations and the mandatory power is relied upon by Respondent asd
showing that certain issues could be submitted to the United Nations
without submitting to supervision. This argument isset forth at VIII,
pages 430-43 of the verbatim, to which I have referred.
As we have already noted, however, Mr. President, the very purpose
of the mandatory pledges and the final League resolution was to assure
the continuation of international supervision. These were theprocedures
used in lieu of the temporary trusteeship comrnittee device which the
mandatory powers had requested. The fact that the question of the
status of several areas, other than mandated or trust territories, has been
submitted to the United Nations has no relevance to Respondent's
action in1946.
Respondent's central argument, in this regard, seems to be that, even
if the organ competent to modify or determine status must be in a
position to make an informed judgment, the founders of the League
provided for supervision in the Covenant-Article 22-whereas the
requirement of consent to modification of the mandate was embodied
only in the mandate. Respondent makes this argument at page 434 of
the same verbatim.
Respondent concludes, frorn thi srernise, that-
".. .if one starts from the initial position tha... and there is an
intention of rnaking provision for a change in the status of the
territory... then the mere fact that that contèmplation involves
going to a particular international organization about it, surely
cannot possibly carrywith it a contemplation that there must also
anything,onamelyrothat of international supervisiobyhthat organiza-
tion over the actual administration of the territory". (VIII,p. 434,)
Among the many difficulties with Respondent's argument, in this
respect, one of the greatest is that far from the Powers "starting from
the initia1 position"in 1946,as Respondent phrases it, as Respondent
that the Mandate had survived the dissolution of the League; there was
not any starting from scratch. As for Respondent's contention that
nobody said anythingabout international supervision over the Territory,
it may be said only that Respondent consistently in this record has
ignored the statement of fiIr. NichoiIs at the Preparatory Commission,
in which he, on behaIf of the then Goverrtment, urged the establishment
of interim machinery, and Mr. Nicholls has not earned mention either in
Respondent's written pleadings or in its oral arguments.
Respondent advances yet another argument to explain Marshal Smuts'
use of the phrase "competent international organs". Respondent has said:
"... there could, for purposesof bringing about a change of status
of this nature, bea change in compefent international organs, and
there had, in hisvielv,occurred such a change, there being a com-
petent organ, that is, competent in the sense that when agreement
was reached with that organ, an effective new arrangement wouldI7O SOUTH WEST AFRICA
come into effect-effective in the sense that it would be recognizeby
other members of the international community". {ViII,pp. 440-441.)
The position seems to be that Alarshal Smuts was drawing what could
only be called a subtle distinction between an international organization
competent in fact but not competent as a rnatter oflaw. Afarshal Smuts
himself evidenced no such intention. He said:
"International responsibility precluded it from taking advantage
of the war situation by effectirig a cliange in the status of South
IVest Africa ~vithout proper consultation eitherof al1the peoples of
the Territory itself or with the competent international organs."
He, thus, recognized the obvious legal bar to action without sub-
mission to a competent international organ.
Kespondent's final argument regarding the legal significance of its
submission to the General Assembly in 1946 of the issue of termination
of the Mandate is that suc11submission cannot be taken as evidence of
acceptance of international supervision, inasmuch as Respondent's
wiiiingness to report was limited by reference to reporting in terms of
Article 73 of the Charter. Respondent's position with regard to the
applicability of Article73 in the verbatims, from lvhich 1 have quoted,
may, indeed, possibly be developed further in response to the question
propounded to the Parties by Judge Jessup. In any event, on the basis
of the verbatims and the treatment of the question of Article 73, it is
interesting to note ho~v Respondent actually treated the matter of its
obligations, ifany, pursuant to Article 73 le) of the Charter, and this
would directly bear, in the Applicants' respectful submission, on the
question posed by Judge Jessup.
With regard to the procedures followed by Respondent in connection
with this matter it is to be noted, first, that at no time in 1946 did
Respondent, or anyone clse for that rnatter, question the supervisory
powers of the United Nations in any respect. Reçpondent first did so
in 1947. In his statement, hlarshal Smuts referred to Article 73 of the
Charter in connection with Respondcnt's reports to the United Nations.
Respondent contends that his statement contained what Respondent l
cails an "ambiguity" ;that word is used in the verbatim,VIII,at page 453,
and that this arnbiguity, as Respondent calls it, waç cleared up in 1947-
The ambiguity relates to the question wliether or not Rcspondent was
obliged to report to the United Nations under Article 73 (c), that isto
Say, whether Marshal Smuts intended to convey the impression in his
staternent that Respondent waç offering a voluntary activity or whether
it was, on the contrary, tending to acknowledge a legal responsibility.
This was the ambipity to whch the Respondent refers.
NOWthis ambiguity, as Respondent refers to it, was cleared up in
several statements made by Respondent's representatives at a later stage,
stating explicitly that the Respondent did not regard the Mandate as
falling within Chapter XI. This was, of course, at a timc whcn Respon-
dent's Government of the day considered that the Mandate was legally
in existence. Respondent itself has cited these statementsto demonstrate
that the 'Territory does not fa11mithin the scope of Article 73 (e).
Thus, we have the statement made at the General Assembly, second
session of the Fourth Committee at page 16-
"The Union of South Africa didnot claim that South West Africa
was a colony but it was willing to submit annual reports like those REPLY OF MR. CROSS I7I
required for the non-self-governing territories under Article (ej."
Similarly, itwas explained by the Respondent's representative, this
was at the second session of the General Assembly as well-
"The annual report which his Government would submit on South
West Africa would contain the sarne type of information on the
territoryas is required for non-self-governing territories under Arti-
cle 73 (e)of the Charter."
This is from the General Assembly Oficial Records,the second session,
Plenary, Volume 11, page 538.
In the cases at bar, Respondent has adopted these positions as its own
-the positions reflectedin the two statements just quoted. Thus, at page
58of the Counter-Memorial, LI,Respondent States that the report actu-
ally submitted by Respondent in 1947for the Sfear1946 contained "the
same type of information on the territory as required for non-self-govern-
ing territories under Article 73{e) of the Charter". On 7 April 1965in
these Oral Proceedings, Respondent's counsel stated "there was no con-
ception that the case fell under Article 73 (e) as a matter of 1aw"-
this is from the verbatim record, VIII, at page 454. This proposition
therefore, seems to be common cause. Al1this being so, Mr. President,
the events of 1946 begin to emerge more clearly-the Government of
South Africa was of the opinion that the Mandate for South West Africa
continucd in Iaw. It also considered that its international responsibilities
precluded it from unilaterally changîng the status of the Territory and
that the United Nations \vasthe competent international organ in this
regard. The only rcmaining question, if indeed it is separable from the
competence of the United Nations to consent to a change of status is
the question of survival of accountability itself; the matter becomes
reduced to its essence in this formulation.
On 23 july r947 Respondent advised the Secretary-General of the
United Nations that the obligations of the Mandate pre~ented the South
African Government from "flouting the wishes of those who under the
Mandate have been committed to their charge". This isfrom United
Nations document A1334,tlie second session of the General Assembly,
Fourth Committee, page 135, and Respondcnt went on "inasmuch as
the request for CO-operationof the territory and the termination of the
Mandate had been turned down by the General Aççemblyin resolution 65
(1) 'the Union Government have no alternative but to maintain the
status quo and to continue to administer the territory in the spirit of
the existing Mandate'".
Respondent's communication referred to a resolution adopted on II
April1947 bythe Wouseof Assembly ofthe Union Parliament, the letter
to the Secretary-General, which containcd the statement just quoted.
The resolution by the House of Assembly of the Union Parliament stated
as follows-
"Whereas in terms of the Treaty O/ Versaillesfull power of legis-
lation and administration was conferred on the Union of South Africa
in respect of the territorp of South West Africa, subject only to the
rendering of reports to the League of Nations, and whereas the
League of Nations has since ceased to exist and was not empowered
by the provisions of the Treaty of Versailles or of the Covenant to
transfer its rights and powers in regard to South West Africa tothe
United Nations Organization or to any other Organization or body172 SOUTH.WEST AFRICA
and did not in fact do so; and whereas the Union of South Africa
haç not by international agreement consented to surrender the right
and power so acquired, and has not surrendered these by signing
the Charter of the United Nations Organization and remains in full
possessionand exercise thereof; and whereas the overwhelrning ma-
jority of both the European and non-European inhabitants of South
West Africa have expressed themselves in favour of the incorpora-
tion of South West Africa with the Union ofSouth Africa. Therefore,
this House is of the opinion that the territory should be represented
in the Pariiament of the Union asan integral portion thereof and
requests the Govemment to introduce legislaiion, aftcr consultation
with the inhabitants of the territory, providing for its representa-
tion in the Union Parfament and that the Government should con-
tinue to render reports to the United Nations Organisation as it has
done heretofore under the Mandate."
This resolution thus makes explicit Respondent's alvareness of its re-
sponsibility to report to the United Nations "as it has done heretofore
under the Mandate". Further it isevident from the wording of the reso-
lution that the obligations to report to the United Nations were regarded
as following from the fact that South Africa retained rights under the
Mandate. It referred, as the Court wili recall, in the preamble, that South
Africa has not by international agreement consented to surrender the
rights and powers so acquired under the Mandate.
Now Respondent seeks to evade the significance of the resolution
just quoted by disclaiming an officia1character for it. Respondent con-
tends in its rebuttal that the reference in the resolution to reporting to
the United Nations and 1quote from the verbatim record, VU, at page
464, that the reference to reporting-
". ..is notareference to anything said by, or on behalf of, the Union
Govertment to the United Nations, or in any internationalcontext.
It is purelya reference to a phrase occurring in a resolution, as it is
here called, of the Union Parliament. Itwas not even a resolution of
the Union Parliament. It was a resolution of one of the Houses of
the Union Parliament-a resolution of the House of Assembly in
the Union Pariiament."
Respondent proceeds then to argue that it isnot legally bound as a
rnatter of constitional law to carry out or heed the opinionofone of the
Houses of its Parliameni, but Respondent nowhere, that the Applicants
are aware of, adverts to or seeks to explain why this resolution was
referred to in Respondent's officia1communication of 23 July 1947 to the
Secretary-General. Respondent's communication to the Secretary-Gen-
eral commences as follows-
"1have the honour to inform you by direction thatthe Resolution
of the General Assembly has been duly considered by the Union
Government and was discussed in the Union Parliament when a
Resolution in the follo~vingterms was adopted."
This is the commencement of the communication from Respondent tothe
Secretary-General of 23 July 1947and is in the Gencral Assembly OBial
Recmds, second session, Fourth Comrnittee, at page 134.
At that time, Respondent's Government attributed sufficient weight
and legal significanceto the resolution to cornrnunicate it textually to the REPLY OF FIIR.GROSS I73
Secretary-General of the United Nations with an introduction which 1
have just quoted. There is no reason appearing from the record and no
explanation as said by Respondent to deny or refute the fact that Re-
spondent thereby in its communication intended to make officiairepresèn-
tation to the Secretary-General in terms of the resolution itself, the text
of which was communicated, as I have said. It would be a perfectly ob-
vious understanding of the intent of the letter by the Secretary-General
and there is nothing in the record to indicate any explanation to the
contrary. Indeed, in the last paragraph, of the very same communication,
the Government explicitly associated itself with the resolution in the
following terms-
"1am finally asked to observe that in the Parliamentary resolution
quoted above, the Union Parliament ilateraliexpressed the opinion
that the territory of South West Africa should be directly repre-
çented in the Union Parliament and that, after consultation with
the inhabitants of the territory, legislation shouId be introduced
tothat end. Steps will therefore be taken in due course to carry out
the required consultation."
And the letter stated aIso-
"The Union Government have already undertaken to submit re-
ports on their administration forthe information of the United Na-
tions.''
This is at page 135, of the record already quoted.
Thus, the Respondent associated itself directly and explicitly with the
Union Parliament of the Territory, and stated that the Union Govern-the
ment have alreadyundertaken to submit reports on their administration
for the information of the United Nations. The resolution made two re-
quests for action on the part of Respondent's Government ;in both cases
the requests were carried out by the Government, were treated as
obligations which the Government would implement or had already
carried out, and the resolution was transmitted to the Secretary-General
in the form and with the covering paragraph which I have quoted.
In the 1950 Adviçory Opinion, this hofiourable Court took the letter
under discussion as one of the declarations constituting, in the Court's
words: "recognition by the Union Government of the continuance of its
obligations under the Mandate", that isfrom the I.C.J. Reports 1950, at
page 135. This was a finding by the Court and Respondent has deduced
no newfacts or any other kinclof evidence to militate against this judicial
finding.
In summary, up to the autumn of 1947 he South Africa Government
had-
(a) recognized that in law the Mandate of South IlTest Africa con-
tinued in full force and effect, notwithstanding the dissolution of the
League, and this is now cornmon cause;
(b) advocated the establishment of interim machinery for the super-
vision of mandates pending other arrangements since, in the words of
Mr. Nicholls at the Preparatory Commission "the Mandates Commission
was now in abeyance and countries holding mandates should have a body
to which they could report";
(c) taken part in the systern of pledges by which each of the manda-I74 SOUTH WEST AFRtCA
tory powers in terrns undertook to carry out al1of the obligations of the
mandate until the conclusion of other agreed arrangements;
(d) submitted the issue of the incorporation of the Territory of South
West Africa and the termination of the Mandate of the General Assembly
as the competent international organization for judgment;
(e) associated itsclf in a letter to the Secretary-General of the United
Nations with a resolution of the House of Assembly of the Union Parlia-
ment, calling for reports to be rendered to the United Nations as hereto-
fore under the Mandate.
Xot until September of 1947 , id Respondent's Government begin to
question openly the supervisory powers of the United Nations and only
in 1948, did it for the first tirne begii~to question the legal existence of
the Mandate asa whole. Respondent's repudiation of its earlier acknow-
ledgment of a continuing obligation to carry out its responsibilities laid
upon it by the Mandate, as wel as its reversal of its previous recognition
of theauthority of the United Nations to assume the task ofinternational
accountability with respect to the obligations of the Mandate, until
other arrangements had been agreed with the United Nations, in the
terrns of the 18 ApriI 1946 resolutioii-such a repudiütion and reversal,
Mr. President, has never been andare not now acceptable to the United
Nations.
On the contrary, the United Nations has adhered to the position that
it is endoived by the Charter with the cornpetence and vested with the
respoiisibility to give to the inhabitants of South West Africno less and
no fewer of the benefits of international supervision than the inhabitants
had previously eiijoyed under the League of Nations lvhile it survived.
There was never an issue with the United Nations-there never has been,
in the Applicants' respectfulsubrnission, between exercising or not exer-
cising international supervision over South West Africa. The only ques-
tion which has ever arisen, except for Respondent's position, has per-
tained to the melhod by which that supervision kvould be carried out.
There were, as we shall see, ambiguities, inconsistencies, confusion-
much is made of that by the Respondent in this record, and 1dl refer
to those matters in a few moments-and this iswhy the United Nations
submitted its request to this Court to clear up the doubts and confusion
and then accepted the Advisory Opinion ovenvhelmingly. The only ques-
tion which ever arose pertained ta the rnethod by which the supervision
would be carrjed out. The supervisory arrangement, ~vhich had been
specifically designed for application to mandated territories generaliy,
was that embodied in the trusteeship çyçtem. The expectation and the
preference of the United Nations Members was that al1mandated terri-
tories, other than those gaining independence, should be converted into
trust territories, thus becoming subject to the normal supervisory pro-
cedures of the Trusteeship Council.
The United Nations, neverthelesç, was vested by Article IO of the
Charter with cornpetence to undertake the task ofdevising special rneth-
ods for dealing with any mandated territory ~vhichrnight not be brought
into the trusteeship system. The Court in 1950 raised no question and
apparently entertained no doubt that this was within the scope of Arti-
cle IO.
Respondent's rejection of the trusteeship principle created the neces-
sity for the developrnent of an exceptional scheme of supervision. When
it became apparent aiid al1 too clear that continued effort on the part REPLY OF MK. CROSS 175
of the General Assembly, of which the Applicants were and are members,
to persuade Respondent's Governmcnt to subrnit a trusteeship agree-
ment for South West Africa was not likely to achieve success, the As-
sembly showed no hesitancy in addressing itself tothe task of developing
arrangements for the international supervision, which it was clearly en-
titled to exercise, and which Respondent, in our respectful view, equaily
clearly was obliged by its own declarations and pledge to accept.
Mr. President, the Applicants shortly will discuss the development of
the special system-or the third system, as 1have previously styled it-
for the implementation of the duty of Respondent to submit to, and the
right of the inhabitants of the Territory to enjoy the protection of, inter-
national supervision. Before turning to that matter, however, which was
raised at length in the rebuttai, it is necessary to deal with certain other
contentions ivhich rvereemphasized in the rebutfal rela ting tothe djsposi-
tionof the Palestine Mandate and its significance to these proceedings.
Palestine, of course, was the only other instance, other than South
West Africa itself, in which the Uriited Nations, in the mandate field,
was confronted with a special and highty cornplex mandate problem.
Obviously, the Palestine case was not analagous to the case of South
IVest Africa. The mandatory power in that case, the United Kingdom,
did not in any sense, of course, deny the continuing validitp of its obliga-
tionsuiider the >[andate, nor did it ever reject the authority of the United
Nations to exercise supervision. The only references made by Respondent
to justify its contention to the contrary, ares construction of the United
Kingdom pIedge-and, in the Applicants' view, a strained construction
-and the course itfollowed with respect to the Palestine Mandate, and,
therefore, the Palestine problem looms up large as a factor relevant to a
fair and just appreciation of the Respondent's contention in this regard.
The United Kingdom Government never, as 1 have said, rejected the
authority of the United Nations to exercise supervision over the Nandate
for Palestine. Certainly, the United Kingdom never avowed, nor did it
harbour, any design to incorporate or annex the mandated Territory-
that goes without saying. The history of events relating to the dispoçi-
tion of the Palestine Mandate is a long and tortuous one, and the record
of these proceedings need not be burdened with excessive detail, but one
thing which stands out most clearly, in the Applicants' submission, is
the warmth with ~vhichthe United Kingdom jvelcomed the exercise by
the United Nations of a supervisory role with respect to the Mandate
with regard to its administration over the Mandate and the modification
of its then legal status as a mandate.
The contrast between the attitudes of the United Kingdom Govern-
ment and that of Respondent-present attitude of Respondent-with
regard to their obligations as mandatory powers, is,in itself, dramatic
evidence of the distinction between the two situations. Respondent alone
among al1 mandatory powers has steadfastly rejected the processes of
international accountability. The United Kingdom, in respect of the
Palestine Mandate, accepted gladly an enlargement of the responsibilities
to submit to international sccountability, which it had always respect-
fully accorded under the Mandate.
In an important sense, however, the Palestine case is relevant, if not
essentially analagous, to the case ofSouth West Africa, inasmnch as the
Palestine question, and its handiing by the United Nations, provides a
dramatic demonstration in the early years of the United Nations of the17~ SOUTH WEST AFRICA
Organization's willingness and competence to supervise mandated terri-
tories which were not placed under the tmteeship system. The United
Nations, in the Applicants' view, didaof deal with the Palestine case on
the basis ofacompetence specially conferred upon it by the United King-
dom, as Respondent insists. The historical record appears to make arnply
clear, in the Applicants' view, that the United Nations acted on the basis
of an authority which was rooted in the Charter itself, that the United
Kingdom acknowledged and welcomed with relief the competence of the
Organization, inasmuch asthe complexity and explosive dangers inherent
in the disposition of the Mandate confronted the United Kingdom with
dilemmas which it could not resoive by itself, but required full consulta-
tion and CO-operation with the international community, speaking
through the competent organ, the General Assembly, and later, the Secur-
ity Council.
The United Nations, indeed, was constrained to exercise far more ex-
tensive powers in regard to the Palestine question than the League ever
had to esercise, and certainly more than the United Nations has yet
portant role played by the United Il'ationsin the Palestine case may sub-
merge, but does not alter, the fact thatthe basis of United Nations com-
petence was rooted in the proposition that the United Nations was exer-
cising supervision overa mandated territory, and the United Nations was
doing so as a competent international organ which had replaced the
League of Nations, and one upon which the sacred trust had been laid
asan organized international community, in the words of the 1962Judg-
ment, at page 329.
In February 1947M ,r. Creech Jones, then United Kingdom Secretary
of State for Colonies, said in the Houseof Comrnons:
"LVearenot goingto the United Nations to surrender the Mandate,
we are going to the United Nations setting out the problern and
asking for their advice as to how the Mandate can be administered.
If the Mandate cannot be administered in its present form, we are
asking how it can be amended." (International Conciliation,October
19491 No. 454. P-614.1
On 2 April r947,less than a year after the dissoIution of the League
the United Kingdom Govemment addressed asession ocommunication to thely,
acting Secretary-General of the United Nations, stating, inferalin:
"His hIa'estyJs Government in the United Kingdom request the
secretarYteneral of the United Nations to place the question of
Palestine on the Agenda of the General Assembly at its next regular
annual session. They will submit to the Assembly an account of
their administration ofthe League of Nations Mandate and will ask
the Assembly to make recommendations, under Article IO of the
Charter, concerning the future government of Palestine." (A/364,
Add. I, 9 September 1947 ,. 1.)
The British communication, from which I have just quoted, also re-
quested that a special session of the General Assembly be convened as
soon as possibIe for the purpose of constituting and instructing a special
cornmittee to prepare for the consideration of the question at the next
regular session to follow. The special session of the General Assembly,
which \vasheld in pursuance of the Britishrequest, established the United REPLY OF Ma. GROSS I77
Nations Special Committee on Palestine, commonly called UNSCOP,
by resolution ro6(S1) of 15 May 1947 T,his Cornmittee was given extra-
ordinariiy \videpowers withregard to Palestine, much beyond any which,
of course, had ever been exercised under a mandate, mithin the concept
of Article 6.
The breadth of powers given to the Committee is indicated by the
foiiowing two or three paragraphs from the resolution which I have just
cited:
"Paragraph 2: The Special Committee shall have the widest powers
to ascertainand record facts and to investigate al1 questions and
issues relevant to the problem of Palestine.
Paragraph 4: The Special Committee shd conduct investigations in
Palestine and wherever it may deem useful, receive and examine
written or oral testimony, whichever it may consider appropriatein
eacli case, from the mandatory power, from representatives of the
population of Palestine, from Governments, and from such organi-
zations and individuals as it may deem necessary.
Paragraph 6: The Special Cornmittee shallprepare a report to the
General Assembly and shall submit such proposals as it may consider
appropriate for the solution of the problem of Palestine."
Of course the United Kingdom consentcd to this breadth of polver;
it needed the CO-aperationof the United Nations in carrying out a task
of this magnitude. The efforts of the United Nations to carry out such
a task would be frustrated without the CO-operation of the United
Kingdom. To interpret this as a grant of special power to the United
Nations to carry out normal responsibilities of supervision under the
Mandate, asif that did not exist without this grant of poweifit may be
caUedone, ~vouldseem to me to involve a strange construction indeed of
the British pledge and the Britishposition historically.
White UNSCOP stated in its report to the General Assernbly, dated
3 September 1947, that in the absence of the Permanent Mandates
Commission, the mandatory power had no authonty to which it might
submit reports and othenvise offer an accounting "in accordance with
the tems of the Mandate", and I lay stress upon the word "terms" of
the hlandate-this is from A/364, pages 26 and 27-it seems evident
from the terms of reference established for UNSCOPthat the General
Assembly was convinced that the United Nations possessed supervisory
powers over Palestine-already possessed supervisory powers over the
Mandate. Everybody concerned referred to the Mandate as still in
exjstence-every document and every report demonstrates that assump-
tion, that premise.
The actions taken by the Special Committee itself amply demonstrate
that it shared in that conviction and assumption. Indeed, in the very
next sentence, after the phrase just quoted from the UNSCOP report,
the Comrnittee buttressecl the concept of the supervisory authority of the
United Nations by doing what, Mr. President? By quoting from the
United Kingdom's pledge to the last session of the Assernbly of the
League, and quoting from the Assembly's resolution of 18April 1946
pertaining tothe Mandate. The report of the SpecialCommittee properly
' and sensibly called attention to the irnpossibility, clear impossibility,
of adhering literaIly to the terrns of the Mandate-these referred spe-
cifically to defunct organs of the League-those were the terms of the17~ SOUTH WEST AFRICA
Mandate. The Committee did not in any sense, visible sense, question
the survival of the basic obligations of the Mandate, or deny the com-
petence of the United Nations to serve as the international agency for
giving effect to the central obligation of submitting to supervision and
to control over the alteration of the status of the Territory-these were
the exigencies of the situation, the crisis situation. UNSCOP actually
exercised, in accordance with its term of reference as deftned by the
General Assembly, powers of unprecedented scope with respect to the
mandated Territory of Palestine, and this fact, of course, will be me11
known to this honourable Court. Indeed, tliose pokvers went so far
beyond the reporting requirement tliat the accounting which the United
Kingdom had promised-had pledged-to subrnit to the United Nations
became superfluous. Respondent's reliance upon the absence of such
reports misses this central point. The detailed description of the rvork
of the Special Committee in Palestine is contained in pages 4-7 of its
report; for instance, one of the headings indicates that the Con~mittee
received "oral and written testimony from governments, organizations,
religious bodies and individuals", and it is noted that the Committee
took and acted upon the decision to visit various parts of the mandated
Territories-this isfrom page 4 of the UNSCOP report. This went far
beyond reporting-it made reporting superfluous. Tliere was no problem
in defining the investigative authority of the SpeciaI Committee ; the
then British representative, Sir Alexander Cadogan, had stated on behalf
of the United Kingdorn on 7 May 1947 ,rior to the establishment of
UNSCOP, and I quote from the GeneralAssemblyOflcial Records, First
Special Session, First Committee, at page 86:
"Of course it is agreed by everyone here that the committee of
investigation tve set up will hear witnesses from al1sides, represen-
tatives frorn al1interests",
and the Committee did so.
Finaliy UNSCOP'srecommendations themselves leave no doubt as to
the Cornmittee's conception of the supervisory porver of the United
Nations over the mandated Territory. For the period immediately prior
to Palestine's acquisition of independent status,as contemplated by the
Committee, it was recommended that: "The authority entrusted with
the task of administering Palestine and preparing it for independence
shall be responsible to the United Nations"; this is from A/364, page 43.
The report of the Special Committee also stated that-
"The relative success of the authority entrusted with the admin-
istration ofPalestine during the transitional period in creating the
proper atmosphere, and in carrying out the necessary prepar at'ions
for the assumption of independence, will influence greatly the
effectiveness of the final solution to be applied. It \\-il1be of the
utmost importance to the discharge of its heavy responsibiIities
that, while being accountable to the United Nations for its actions
in this regard, the authority concerned should be able to count upon
the support of the United Nations in carrying out the directives of
that body."
This is from the same document, at page 44.
But Respondent'ç attempt to denj the significance of the United
Nations handling of the Palestine problem, side from citing statements HEPLY OF MR. GROSS I79
of UNSCOP to the effect that the dissolution of the League meant that
Great Britain could no longer discharge fully its obligations in accordance
with the terms of the Mandate; Respondent's attempt to deny the
significance ofthe United Nations activities with respect tothe handling
of the Mandate is premiçed-entirely premised-on the argument that
the supervision came about solely as a result of what the Respondent
cds "a specific arrangement" between the United Kingdom and the
UnitedNations. 11the verbatim record, VIiI,pages 494-495,the Kespon-
dent states its key contention in this respect as follows, and relies very
heavily indeed upon the line of argument, because it al1 goes back
to the interpretation of the British pledge in April of 1946 which Res-
pondent insists must be interpreted in the light of ils construction
of the Palestine case handling by the United Nations. Kespondent
argues :
"Mr. President, as regards the supervisory powers in respect of
Palestine, which the United Nations eventually obtained, it is true
that shortly before Palestine was, in fact, divlded and became
independent on that basis, therewasa brief period of United Nations
supervision, but the very point which is emphasized by the record
is this, that that supervision came about as a result of a specific
arrangement, agreed to by the United Kingdom-and it was quite
clearly the contemplation of al1concerned thatthat specific arrange-
ment \vas necessary inorder to bring about that supervision. There
was no contemplation whatsoever of a previously existing super-
visory power on the part of the United Sations."
1 have sought to make clear that the record in fact shows that the
United Kingdom acknowledged and accepted the competence of the
General Assembly, but it did not confer such competence upon the
Assembly. The CO-operationof the United Kingdom, as 1have also said,
was indispensable to the successful discharge of thc difficult task which
the United Nations undertook; but the fact that the Organization needed
and obtained the collaboration of tlie member State most intimately
concerned cannot be construed reasonably as indicating that the United
Nations lacked authority to deal with the problem in the absence of
special competence conferred upon it by that State. In offering its
collaboration Great Britain designated itseIf as the Mandatory; in
offering its collaboration Great Rritain was carrying out its obIigations
as a mandatory beyond the bounds of the obligation; in order to deal
with the exigencies of the situation, they went beyoncl the bounds of
their obligations, as the United Nations undertook an extraordinarily
\vide responsibility. The Assernbly was supervising a mandate-that is
clear, obvious-but it was doing something much more, in addition, and
the accomplishment of that additional burden and function depended
largely upon the CO-operation ofthe Mandatory Power, which was never
withheld. Respondent's suggestion to the contrary has ironic,if not
ludicrous, overtones; it conjuresuy a vision of whatmight have happened
if the United Kingdom had followed the same course as Respondent,
if the United Kingdom had rejected a role for the United Nations in the
supervision and disposition of the Palestine Mandate; the head reels at
the thought! What happened, fortunately,\vas thatthe United Kingdom
accepted with relief a greater United Nations role and responsibility
than the latter would have exercised merely as the supervisory organ180 SOUTH WEST AFRICA
over the Mandate, pending an agreed arrangement to supplant the
Mandate. The issue of the authority of the General Assembly to exercise
supervision over the mandated Territory was raised and discussed in the
ad hocCornmittee on the Palestinian Question which met after the report
of UNSCOPwas released. This Committee, the ad hocCommittee on the
Palestinian Question, after reviewing the recornmendations of UNSCOP,
made the final recommendations concerning Palestine to the General
Assembly. The discussion of the competence of the General Assembly
which took place in this body did not involve the issue, never involved
an issue,concerning what power could be or had been bestowed upon the
Assernbly by any so-cailed "specific arrangement", to use Respondent's
phrase, supposedly made on the initiative of, or in agreement with, the
United Kingdom; rather. that discussion in the ad hoc Committee quite
properIy focused upon the question of the scope and extent of the powers
relating to the supervision of rnandated territories falling to the General
Assembly by virtue of the Charter of the United Nations. Several
member States, on the basis of special interest in the future of Palestine,
contended that the United Nations had no competence whatever to deal
with mandated territories, and accordingly lacked competence to pass
was prepared, which would have submitted several questions to thelution
International Court of Justice with a request for advisory opinion.
Among the questions proposed to be asked-among them-were the
following-1 select those strictly relevant to the point under discussion
here, in this context:
Question (e) whether the Iegal basis for the Mandate for Palestine has
not disappeared with the dissolution of the League of Nations, and
whether it is not the duty of the Mandatory Power to hand over power
and administration to a government of Palestine representing the right-
ful people of Palestine;
(g)-whether the United Xations iscompetent to recommend either
of the two plans and recornmendations of the majority or minority of the
United Nations Special Committee on Palestine, or any other solution
involving partition of the Territory of Palestine, or a permanent trustee-
ship over any city or part of Palestine, without the consent of the
ma'ority of the people of Palestine; and
duestion (hl-whether the United Nations, or any of itr rnember
States, is competent to enforce or recommend the enforcement of any
proposa1conceming the constitution and future government of Palestine,
in particular any plan of partition, which is contrary to the wishes or
adopted without the consent of the inhabitants of Palestine.
1 have quoted these three questions proposed in a draft resolution
circulated in the ad hoc Committee from the General Assembly Oficial
Records,Second Session of the ad hocCornmittee, pages 300-301. These
questions werebased upon the opinion expressed in a report drawn up by
representatives of Pakistan, Syria and Saudi Arabia that-
"The United Nations Organization has not inherited the con-
stitutional and political powers and functionç of the League of
Nations, and that it cannot be treated in any way as the successor
of the League ofNations insofar as theadministration of mandates
is concerned."
Thatisfrom the same report, page 276.These were the opinionsexpressed REPLY OF MR. GROSS 181
ularly in the context of the Palestine Mandate in which they asserteda-
special interest, as the Court will know.
It wili be noted at once that proposed question (e),the crucial one,
whether the legalbasis for the Mandate for Palestine has not disappeared
with the dissolution of the League, and so forth, related to the issue of
lapse or survival of the Mandate upon the dissolution of the Lea .
This is,however, no longer an open issuein these proceedings.RespoYent'
and the Applicants have reached common cause, it would appear, that
the Mandate did survive the dissolution af the League; as a matter of
law that proposition was accepted by the then Government of Respon-
dent. Respondent ha conceded, in short, that the Government of South
Africa, during the period of and at the time of the dissolution of the
League, proceeded on the premise that the mandates system as a matter
of law survived the League's dissolution; 1 cite the verbatim record,
VIII, pages 428-429.
No question was raised concerning the lapse or sumival of inter-
national accountability in the resolution of these three powerç, to which
I have referred, in the adhoc Cornmittee proceedings; no question was
raised about the lapse or survival of international accountabiiity apart
Norm was any question raised on the basis of the assumption voiced byey use.
Respondent, to \vit, that conferment of cornpetence upon the Assembly
was accomplished by a "special arrangement" with the United Kingdorn.
No such question was raised.
The only question raised \vas the survival or nof the Mandate upon
the dissolution of the League of Nations.
Questions (g) and (h) which I have quoted referred merely to the
competence of the United Nations to recommend or enforce any solution
without the consent of the inhabitants of the Territory. That was the
point of questions (g) and (hl. And obviously those questions assumed
that such competence would exist if the inhabitants manifested consent
to a proposed solution, if the question (e) had been submitted to the
Court and answered to the effect that the legal basis for the Mandate
had survived.
The majority of the members of the ad hoc Committee did not share
the doubts voiced in the report of UNSCOPand reflected in the quota-
tions relied upon by the Respondent, which 1 have just quoted. The
decision of the ad hoc Committee not to request an advisory opinion
Committee discussionspreceding the decision not to request an advisory
opinion, in respect of these questions, or any of them, the views of the
minority were refuted by several other members of the Comrnittee. The
Polish representative declared that-
"... it was impossible 'to dispute the validity of the Mandate
conferred by the League of Nations and confirmed by the terms
of Article So of the Charter. Although the functions of the League
of Nations had corne to an end, that did not mean that al1control
was thereby abolished: that responsibility now rested with the
United Nations."
This is-from the record at page 162.1pause merely to note the reference
to Article 80of the Charter, a construction which appears to give an182 SOUTH WEST AFRICA
affirmative, positive content, which was frequently done by Members
but which the Applicants do not give to that article.
The Soviet delegation's views are reflected in the summary record as
follo\vs:
"Mr. Tsarapkin, the Soviet representative, dealtwith the question
of the Assembly's powers in regard to the solutionofthe Palestinian
problem. It was surprising and deplorable that those powers should
have been called in question. Neither the United Kingdom, when it
had made its request to the United Nations, nor the representatives
who had attended the special session of the Assembly, nor the
members of the Special Committee had had any doubts on that
score. Such doubts as were being expressed in the ad hocCommittee
were completely unjustified, because Article IO of the Charter gave
the General Assembly the right and duty to discuss the Palestine
questiori [mark the word 'duty' to discuss]. It was in complete
accordance with the provisions of Articlero that the special session
had bcen called,the Special Cornmittee established and the Pales-
tinian question considered by the General Assembly. Any rccom-
mendations which the AssernbIy made would have sound juridical
foundations." (P. 84 of the.record already cited.)
The Soviet Union thus expressed agreement with the position which
had been expressed by the United Kingdom in its letter to the Acting
Secretary-Gencral on z April 1947,from which 1 have previously guoted
in part. This was to the effect that ArticleIOprovided the basis for the
Assernbly's action regarding Palestine. Article IO, of course, also was
cited by the Court in the 1950 Opinion as establishing the legal founda-
tion for the competence of the Assembly to exercise supervision and to
receive and examine reports concerning mandated territories(I.C.J.
Reports 1950, p. 137).
Rlr. President, the United States delegate's views are reported in the
summary records of the Committee as follows:
"He had wished toSay that the legal cornpetence of the United
Nations having been called in question, he did not consider that it
sliould be referred to a sub-committee while the principal com-
mittee waited for its judgment. He stated ernphatically that there
was no doubt in the mind of the United States delegation that the
ad JEOCCommittee andthe General Assembly had complete authority
ta deal with the issue."(P. 135 of the adhoc Committee report.)
Itis noteworthy that the views of the Syrian delegate, who opposed
the Assembly's competence to deal ïvith Palestine, are reported in the
summary record as follows:
"The mandatory could present the case to the General Assembly
in one of two or three forms. The first way would be to recognize
the independence of the mandated territory, since it is mature and
erititled to that independence, and to notify the General Assembly
to take note of that fact.
The second way would be to come to a trusteeship agreement
with the States directly concerned, as provided for in Article 79
of the Charter, and to present the trusteeship agreement to the
General Assembly for its approval.
Thethird way ~vouldbe for the mandatory to corne to the Geiieral REPLY OF MR. CROSS
Assembly and say-'The mandate which I have from the League
of Nations has failed, it is unworkable.1 give it up and I-eturn this
trust to the General Assembly to manage it in whatever way it
likes'" (Oficial Recordsofthe GenendAssembly, 1st special session,
Plenary, Vol. 1, p. 136.)
The clear and specific assumption that the Mandate existed, that the
United Kingdom as mandatory had duties under it,and the third
alternative suggestion \vas that the United Kingdom might corne to the
United Nations and surrender the Mandate, return this trust.
In summary, Mr. President, the record provides evidence that, con-.
trary to Respondent's contention, there was no evidence of a reliance
upon a British so-called special arrangement to confer powers upon the
United Nations over mandated territories. The question ofthe AssembIy'ç
competence was discussed in terms of the provisions of the Charter,
notably Article IO, rvith respecto the scope of the exercise of its powers
in this extraordinary situation which, as was evident to al1 concerned,
far transcended the responsibilitiesever exercised by the League, ever
exerciçed by the United Nations in any other case with respect to a
mandate. The Assembly affirmcd a competence derived from and based
upon the Charter by rejecting the suggestion that its authority was
sufficiently uncertain even to require clarification by the Court, and by
taking action refIecting confidence in its own view of the matter. This
is to be contrasted with the 1950 action, in which the confusion pre-
vailing in the Assembly at that time led to a decision to request the
honourable Court for an advisory opinion, with respect to the range of
questions involving the Mandate's existence itself and al1 the corollary
factors, in view of the Respondent's obdurate refusal and faiiure to
comply with itspledge of April 1946.
It will be recalled at this point that Respondent's version of the
history of the Palestine question has a twofold significance in these
proceedings. First, it is asserted as a so-called new fact, unknown to
the Court in 1950, which the Respondent asserts must have led the
Court to a contrary conclusion had it known of Respondent's version
of the Palestine developrnents. And secondly, itis asserted in support of
Respondent's construction of the United Kingdom pledge of April 1946,
which in the Applicants' submission is a strained, distorted and wholly
erroneous construction of that pledge.
Respondent seeks to bolster its contention with respect to the latter
point, that is to Say, that the United Kingdom dici not in its pledge
intend to recognize a legal duty to submit to United Nations supervision,
by arguing that, at the outset of the Palestine question (and 1 quote
from the verbatim record, VIII,at p. 495), "from the outset, the United
Kingdom made jt cIear that it wouId not necessarily accept any United
Nations recommendation". In proper context Respondent's argument
may be unwittingly misleading. The British delegate, in fact, under-
standably drew a distinction hetween acceptance of the General Assem-
bly's recommendations, on the one hnnd, and unwillingness to bear sole
.reThus, during the first special session of the Assembly, upon being
questioned as to his Government's attitude, the British delegate replied
as follows:
"Al1 we say, and 1 made this.reservation the other day, is that SOUTH WEST AFRICA
we should not have the sole responsibility for enforcing a solution
which is not accepted by both parties and which we cannot reconcile
with our conscience. 1s there any other Member of the United
Nations which,in our place, would not make so reasonable a stipula-
tion? But, if the question is addressed to us concerning our accep-
tance of any recommendation wkich the Assembly may make, 1
suggest that it might also be addressed to other interested parties,
and indeed to a11other Meinbers of the United Nations." (Oficial
Records oftheGeneraE Assembly, 1stspecial session, main cornmittees.
Vol. III, p184.)
That seemed to be hiç way of saying the question is superogatory.
[Public hearing ofrx May 19651
hlr.Presidcnt and Members of the Court, at the conclusion of the last
session1 had referred to the diçtinction to be drawn betwee~ithe British
delegate's acceptance of the General Assembly's recommendations, on
the one hand, and Britain's unwillingness to bear the sole responsibility
for carrying out such recommendations, and that, in the Applicants'
submission, the failure of Kespondent to draw this distinction might
inadvertently create an erroneous impression of the significance of the
transaction, and 1 had quoted a staternent made by the British delegate
during the first Special Session of the General Assernbly in which he
made clear, or so it seems to the Applicants, that Britain was pointing
out very naturally that it should not have "the sole responsibility for
enforcing a solution which is not accepted by the parties and whichwe
cannot reconcile with our conscience". Those were the words of the
British delegate. And 1 had said, Rlr. President, that the distinction
clearly was appreciated by other mernbers. Thus, for exarnple, the
New Zealand delegate, Sir Car1Berendsen, said, and 1 quote from the
Committee on the Palestinian question, the 28th Meeting,l22 Novemberoc
1947 ,t page 166:
"The mandatory power must not be charged with the sole
~esponsibility for the implementation of any partition plan. If the
United Nations assumed the responsibility for partitioning Palestine
then each member must assume proportionate responsibility for the
irnplementation of that decisionJ'-
a burdin-sharing most appropriate in the circurnstances.
An undertaking by Respondent in terms similar to those expressed
by the British Government at that time would indeed be a historic
forward step, with regard to the Mandate for South West Africa. The
distinction made by the United Kingdom \vas explained in more detail
by the then Colonial Secretary, Ilr. Creech Jones, as follows, from the
same minutes at page 97:
"It had been suggested that the United Kingdom should carry
the full responsibility for the administration of PaIestine and for
enforcing changes proposed by the United Nations during an
indefinite transitional period until independenwas attained. The
United Kingdom was to act under the supervision of the United
Nations and to be assisted by a programme of aid as mentioned by
the representative of the United States (11th Meeting) including REPLY OF MR. GROSS ~$5
the possibleassistance of a voluntarily recniited international police
force.It wodd be unreasonable to ask the United Kingdom Govern-
ment to carry sole and fdl responsibility during the transitional
period."
And, as a finaelvidence of the fact that the tme significance of the
British position and the distinction sought to be drawn between bearing
the sole responsibility and accepting the decisions or recommendations
of the General Assembly, this distinction was perceived, among others,
by President Masaryk of Czechoslovakia who added at the same pro-
ceedings at page 45:
"Wth the United Kingdom ready to withdraw from Palestine
and not prepared to implement alone the decisions which the
General Assembly might take on the basis of the recommendations
of the ad hoc Cornmittee, that Committee's responsibility had
greatly increased since it would have to find a means of implement-
ing the General AssembIy'sdecisions in which everpne would have
to help."
The true significance of the British position, therefore, Mr. President,
was not that which is contended forby Respondent. The United Kingdom
was merely asking for international implementation of any plan adopted
for dealing with the difficult problem of Palestine, and it was accepting
the authority of the United Nations even beyond the degree of super-
visory power which the United Nations would have had the competence
to exercise under the tems of the Mandate.
Respondent argues finally that the resolution of the General Assembly
on the Palestine problem-the 1st one-and the attached plan of parti-
tion, and these are Respondent's words, ."makes abundantly char the
need for consent thereto by the former mandatory power". This was in
the verbatim record, VIII, at page 499.The inference which Respondent
seeks to draw from this statement on the resolution is that a special
consent was conferred-a special arrangement was entered into-upon
the basis of which soleIy the United Nations had authority to deaI with
the matter.
The only evidence cited in support of Respondent's contention in this
regard is that the final resolution, which is1 (II), 29 November 1947,
after noting in its preamble that the Assembly had met in special
session at the request of the mandatory power, states in the first opera-
tive paragraph:
"Recommends to the United Kingdom, as the mandatory power
for Palestine, and to all other Members of the United Nations the
adoption and implementation [and so forth, that is tosay, the plan
that follows]."
Respondent, in itç rebuttal argument, stresses and repeats the phrase
"Recommends to the United Kingdom". This was in the same verbatim
record at page 499, and again seeks to draw an inference of a special
arrangement between the United Kingdom and the United Nations which
solely waç responsible for vesting authority or power or cornpetence
in the United Nations with respect to thiç matter. The word "Recom-
mends", of coursemerely reflects the fact that the powersof the General
Assembly, under Article IO of the Charter, are recornmendatory, as the
Court wodd be aware. The use of the term "Recommends" in United186 SOUTH WEST AFRICA
Nations General Assembly resolutions, of course, is customary and has
no special significance in this context all.What is unusual, however,
about the quoted operative paragraph is not the element to which the
Resporident draws the Court's attention, it is that the quoted paragraph
addresses its recommendation not only to the United Kingdom, as
mandatory, but to al1other Members of the United Nations as well. The
significance of singling out the United Kingdom is hightighted by it
being addressed in the resolution as "mandatory". It was addressed in
that capacity, as distinguiçhed frorn al1 other Members of the United
Nations, to whom the recommendation waç also addressed. The General
Assembly thus confirmed that the Mandate was in existence, that the
United Kingdom was the mandatory, and, by the clearest implication,
that the General Assembly considered that the legal basis for the exercise
of the power was rooted in the Mandate itself. There would be no other
reason for singling out the United Kingdom from among al1 the other
Members of the United Nations to whom the resolution was addressed
unless that legal fact had sorne significance in the context. And the
be accorded a significance quite the contrary to that for which theis to
Respondent contends.
The General Assembly, at al1times, evidenced a broad conception of
its competence in the Palestine question, a competence which was based
on the Assembly's supervisory powers under the Mandate, even though
it went far beyond the limits of those powers to meet the exigencies of
the problem. Perhaps the single clearest bit of evidence in support of
this contention is to be found in the finalresolution of zgNovembe1947
itself. The General Assembly incorporated in that resolution a requeçt
directed to the Security Council urging the latter to assume respon-
sibilities in connection with the recommended solution. This will be
found in the second operative paragraph, U.N. Document A/51g,
pages 131-132 N.Oreference whatever was made, in that operative para-
graph addressed to the Security Council, to United Kingdom consent in
this connection. It was clearly regarded as irrelevant. Nor was any
reference made to United Kingdom consent in the partition plan itself,
which provided, inter dia, that the Coinmission which Ras to be estab-
lished in the plan "was tobe guided in its activitiby the recommenda-
tions of the General Assembly and by such instructions as the Security
Council may consider nccessary to issue".That is £rompage 135 of the
document already cited. No reference was made therein to United
Kingdom consent or the necessity for the United Kingdom's consent.
The Applicants respectfully submit that only one conclusion can reason-
ably be drawn from the history of events and transactions Lvhichmarked
the course of the Palestine question from its origination to its solution.
This conclusion is that the British Government at al1 times mani-
fested its awareness and acknowledgemcnt of al1 its obligations as
Mandatory, that it was fuIly alive to the burden which it was forced to
bear asMandatory by reason of the extraordinary complexities of the
problem, that it proffercd full CO-operationto the United Nations to the
end that a just and orderly solution might be found through the pro-
cesses of the United Nations and the processes in this case went far
beyond, but included its powers and competence under the Mandate.
For its part, the General Assembly at al1times manifested a very real-
istic awareness that a solution could not be found in the absence of REPLY OF MR. GROSS 1~7
loyal CO-operationon the part of the Mandatory, inasmuch as the
responsibilities undertaken by the United Nations in this matter went
far beyond the normal mandate burden as 1have said.
The CO-operativeenterprise which resulted from the full CO-operation
between a mandatory power and the United Xations waç indispensable
to a successfd resolution. References to consent of the United Kingdom
in various contexts relevant here-and the phrase was used in various
contexts, as Respondent properly points out-but the use of that phrase
in those contexts will be seen to reflect mutoal realistic awareness of the
necessity for CO-operation in processes far transcending those wvhich
nSuch references to consent of the United Kingdom, read in the context
of the probIem itself, rnerely show that the United Nations was exer-
cisinga function ivhich included and was rooted in its supervisory power
over the Mandate but which, in addition, went far beyond the normal
exercise of such administrative authority.
In the separate opinion of Judge McNair, appended to the 1950
Opinion, the learned judge stated as follows,and 1 quote from page 157,
of the 1.C.J. Reports1950 :
"The dissolution of the League on 19April 1946,did not automa-
tically terminate the mandates. Each mandate has to be considered
separately to ascertain the date and the mode of its temination.
Take the case of Palestine, itis instructive to note that onzg No-
vember 1947,the Gencral Assernbly of the United Nations adopted
a resolution approving a Plan of Partition of Palestine, which was
firmly based on the view that the Palestine Mandate still continued
as is evident from Articles r and 2 of part (a) and Article 12 of
part (b) ofthe Plan"
and Judge Mchiajr went on to say-to point out again in the Peace
Treaty with Italy of IO February 1947-"it was considered necessar
Article 40-that Italy should renounce all her rights under the man2at'-
system and in respect of any mandated territory".
Now of course it is common cause, or seems to be,that this Mandate
over South West Africa and the mandate system in generaI was regarded
by Respondent's Government, at the time, to have survived the dissolu-
tion of the League of Nations as a matter of law, and, of course, that is
completely consistent with Judge hlcxair's opinion and needless to Say,
with the views of this honourable Court in its 1g50Opinion. It is inter-
estinglp enough a reversal,this concession by Respondent, of the position
taken by Respondent through Dr. Steyn in his statement to the Court in
rg50. At that time, the Respondent, as the Court will be aware, took
the position before the Court that the Mandate had lapsed upon dis-
solution of the League and that the Respondent had the authority,
the power and the confidence to do what jt wished with the territory.
Respondent seems, therefore, to have reversed itselfback to theposition
that it assumed in 1946,that isto say, it now concedes that, at that time
in 1946, Respondent's Government considered that the hfandate was in
existence despite the dissolution of the League as a matter of law and
has thereby withdrawn its presentation to the Court in that respect
in 1950.
The foregoing discussion, Mr. President, it is respectfully submitted,
sets into true perspective al1three so-called new facts upon the basis ofwhich Respondent asks the Court to erase or to ignore, to review and
reconsider the 1950 Advisory Opinion.
First, it has cited now again, as in 1962in the proceedings upon the
prelirninary objections that had the Court been aware of the circum-
stances attending the decision on the part of the Preparatory Com-
had the Court been aware in 1950or a ofmthese circumstances, the Court
çould not have reached the conclusion which it did. As a matter of fact,
Mr, President, in the record of the presentation of the matter to the
Court in 1950 as we pointed out to the Court in the Oral Proceedings
of 1962, the submissions of the Secretary-GeneraIts representative,
Dr. Ivan Kerno, at that time, included reference to the action of the
Preparatory Commission in rejecting the proposa1 for the temporary
trusteeship commission. A careful reading of the submissions before the
Court in 1950, of the arguments before the Court in 1950 ,hows that
there was not an elaborate or even a studied demonstration or representa-
tion to the Court in 1950concerning the actual circumstances within the
Preparatory Commissionat that time-the Applicantshave now endeav-
oured to lay these before the Court in perspective. It would seem reason-
able to assume that if the Court in1950 had known, for example, about
Mr. Nichoiis' proposa! for the establishment of a temporary machinery
to which to report, if the Court had known that other Mandatories had
supported a sirnilar procedure, if the Court in 1950had known that there
was substituted for this proposal the technique of the pledging pro-
cedures-if the Court had known this in 1950,it seemçto the Applicants,
far from changing their view with regard to the proper interpretation of
the circurnstances, they would have regarded their view to be fully
confirmed and justified. Then, the Respondent has relied upon the two
Chinese resolutions, as a new fact, which had the Court known in 1950,
would have led to a conclusion contrary to that reached by the Court.
The Court in 1950it is true, so far as the record of the pleadings dis-
closes, having not been advised of the circumstances in which the
powers for a temporary trusteeship committee, there was no basis upon
which the Court could then adequately evaluate the two Chinese resolu-
tions, even if they had been called to the attention of the Court-thisis
obviously highly speculative at best-but the Respondent has placed
so much reliance upon these new facts that they have repeated them
here, at this phase ofthe proceedings, dcspite the fact that the Court in
its 1962Judgrnent had said "all important facts were before the Courtin
1g50". Even ignoring that however, looking at the new factç themselves
on their ments and on their own bottom, the tuToChinese resolutions
are fully expiained, as the Applicants have attempted to point out, by
the fact that the first draft Chinese resolution was an attempt to revive the
approach of the mandatories in the Preparatory Commission, which
envisaged the establishment of a temporary trusteeship procedure, and
was not accepted. It is purely speculative from anything appearing in
the record-it is purely speculative-why it was not accepted. The
inference sought to be drawn by the Respondent is contrary to what the
Appiicants consider to be the reasonable inference, in the light of the
circumstances which preceded this particuIar event and 1 refer, of
course, to the circumstance that in the Preparatory Commission the
mandatory powers, including the Respondent, had proposed the estab- REPLY OF MR. GROSS 18g
lishment of just such a procedure as the ibst Chinese draft proposa1
envisaged should be adopted by the Assembly itself. It is therefore at
least as plausible, in the Applica~its'view moreplausible, to infer that it
was perhaps the Respondent or other mandatories or a group of them
aii acting together who were overruled when the Assembly decided not
to accept the Chinese draft resoiution which would have set up the very
machinery the mandatories had proposed in the Preparatory Com-
miThe second Chinese resolution, which was adopted, followed the
piedging technique, adopted a procedure which the Preparatory Com-
mission itself had considered more appropriate in order to avoid the
possibility of temporary rnachinery being used, consciously or otherwise,
as a reason for delay in the preparation and conclusion of trusteeship
agreements.
Thirdly, the other so-called new fact which the Court did not have
before itin 1950a,ccording to Respondent's submission, is the Palestine
Mandate history and the British attitude and actions with respect
thereto. According to Respondent's version thereof, and as the Appli-
cants have endeavoured to make clear by a review of the Palestine
Mandate history leading to its disposition, it would seem that if the
Court had known about the PaIestine Mandate history in its proper
context and setting, it ~ould also have felt and deemed that its con-
clusion with respect to the sumival of the mandate, and the survival
of administrative supervision, were confirrned.
Indeed, Mr. President, the full story might have been persuasive to
Judge McNair himself. This is speculative but it \vil1be recded that
Judge hlcNair in his separate opinion described the several declarations
and statements made by the Respondent during the period in question
as being, and I quote from the learned Judge at page 161, of the I.C.J.
Reports1950, asfollows :
"These statements are in the aggregate contradictory and inconsis-
tent; and 1 do not find in them adequate evidence that the Union
Government has either assented to an implied succession by the
United Nations to the administrative supervision exercised by the
Leape up fo the outbreak QIthe war in 1939 ,r bas entered into a
new obligation towards the United Nations to revive the pre-war
system of supervision."
That was Judge McNair's comment on the basis of the record before
the Court in 1950 which with the omissions which of course 1 have de-
scribed with respect to these three new facts, that is the omissions with
respect to the full circumstances, the full context , the full perspective
necessary to an understanding of these three so-called new facts. Of
course the majority of the Court, even on the basis of the more limited
record then available to it reachea conclusion contrary to that reached
by the distinguished learned Judges McNair and Read in the 1950 pro-
ceedings, but full appreciation of the facts,had they been available tothe
Court, including the position taken in the Preparatory Commission by
Mr. Nicholls on behalf of Respondent as well as theattitudes of the other
Mandatory Powers with respect to the proposal for the establishment of
temporary machinery to which the Mandatories codd account to pending
other agreed arrangements-these matters were not before the Court in
1950 and had they been, as the Applicants respectfully submit,the Courtxgo SOUTH WEST AFRICA
with a majority view would have been confirmed and not negated and
even perhaps the learned Judges who dissented with respect to supervisory
authority might have found in the circurnstances a basis for the resolu-
tion of what Judge RlcNair caiied the aggregate of contradictory and
inconsistent aspectsof the statements read textually-the announcement
that South Africa intended to submit proposals for termination of the
Mandate, that they favoured annexation subject to the judgment of the
General Assembly as General Smuts said and other statements of that
sort indicatinga plan or intention or design to terminate the Mandate,
to annex the Territory subject to the necessary international consents
and procedures. These were manifest.
But as has been said, up to the change of governrnent and as the Re-
spondent concedes, up to the change of government in respect of the
replacement by General Smuts' government by the Malan government,
there was never at any time any question raised about the continuance
of international jurisdictionin a sense of survival of the Mandate and
there was never any explicit reference made on the basis of which one
would have to conclude that the Respondent was not fully aware of the
continuance of al1its obligations under the Mandate and never distin-
guished between the two until the change of government, and then of
course its position changed markedly.
What will be related shortiy-the proceedings in the United Nations
itself-\vil11 think, tend fo confirm the reasonableness of these remarks
submitted on behalf of the -4ppiicants.
The development of the United Nations supervision over the Mandate
for South West Africa is very revealing in itself, both in forrn, manner
and content of the necessities perceived by the Assembly of a special
systern, a third system for supervision of this Mandate. The Territory
of course, itwas hoped, would be placed under trusteeship. That hope
survived many storrns, frustrations, and disappointments, and in the
records of the proceedings of the time the Court of course will find con-
stant efforts, persuasions, cajolinpleas, addressed to the South African
Government, to relent its view expressed ai San Francisco, to relent and
to follow the tide of history and the expectations of the founders of the
Charter with respect to the orderly evolution and development and ex-
pansion of the mandate system into the trusteeship system toward in-
dependence and self-government on the basis of self-determination.
The differences in the nature of the role played by the United Nations
as between the case of Palestine which has just been discussed, and of
South lest Africa-the striking differences in the nature of the role
played by the United Nations should not obscure the essential identity
of the competence asserted in both cases, the competence to give con-
tinuing effect to the principle of international accountability for the
administration of and the international control over the disposition of
territories, al1 territories, which had acquired the status of Mandates
under the League of Nations. The first step in the developmentsrelating
to South West Africa was the refusal of the General Assembly in 1946 to
accede to the Respondent's request for incorporation of the Territory
and for the termination of the Mandate. By resolution 65 (1),the General
Assembly affirmed its competence to modify, determine and consent to a
change in the status of South West Africa, thereby beginning the move-
ment toward the creation of a specialsupervisory arrangement, perceived
to be necessary for the rnandated Territory of South West Africa. REPLY OF MR. CROSS IgX
Tlie nest step in the process of development of United Nations super-
vision over South West Africa as a mandated Territory was the adoption
by the General Assembly on r November 1947 of resolution 141 (II),in
which the Assembly once more urged Respondent to propose a Trustee-
ship Agreement for the Terntory and authorized, and 1 quote :
"Authorised the Trusteeship Council in the meantime to examine
the report on Soutli West Africa recently submitted by the Govern-
ment of the Union of South Africa and to submit its observations
thereon to the General Assembly,"
This is from the Oficial Record of the UniteN dations GeneraEAssembly,
Second Session, A/grg/~gqS, atpage 47.
By this action, hlr. President-and this 1think is apropos of the ques-
tion propounded by Judge Jessup, as indeed many of the references to
the subject interspersed through the history of this matter are relevant
in the Applicants' submission, to the question propounded by Judge
Jessup-the General Assembly indicated that the report submitted by
Respondent was not to be treated as if it were a report under Article
73 (e) of the Chartcr, that is to Say, merely for information purposes, in
the language of Article 73 (e).
Even though not a report relating to a trust territory, the reference by
the General Assembly of the report to the Trusteeship Council with the
instruction to that body, and 1quote again: "to submit its observations
thereon to the General Assembly", manifested the intention to treat the
report as a bais of a more thorough procedure of supervision than could
have bcen justified under the terms of Article 73 {e). The disposition by
the General ilssembly of South Africa's report therefore, reflected the
General Assernbly's decision that its competence andduty with respect to
South West Africa extended beyond the confines of Chapter XI of the
Charter. It signalled the actual beqnning of the United Nations super-
vision over a mandated Territory, other of course than the special
circumstances of the Palestine question, which was the other example,
but that was to lead to liquidation of the Mandate and of course in this
situation,what was designed as a temporary situation with the hope and
expectation of tmsteeship has become, and is now, a continuing one.
The Trusteeship Council was not empowered of course to treat South
West Africa as if it were a trusteeship territory, a point brougup quite
clearly and explicitly by several members of the Trusteeship Council.
There was manifest disagreeinent among the members of the Council
as to the extent of its supervisory powers over the mandated Territory
of South West Africa. But there was no dispute as to the legal authority
of the Trusteeship Council to carryout the instructions setdown by the
General Assembly in resolution 141 (II), that is to say, to examine the
reports submitted by the Respondent Government and to submit obser-
vations thereon to the General Assembly.
Cornpliance with the instructions of the General Assembly, of course,
involved and pre-supposed the existence of supervisory functions with
respect to the Territory, which is consistent with no other assurnption,
obviousIy.
Respondent's present contention that the Trusteeship Council did not
exercise supervisory powers, the present contention, was not Respon-
dent's position at that time; to the contrary, the Government of Prime
JIinister Malan protested strongly against what it insisted was an un-Ig2 SOUTH WEST AFRICA
warranted exercise of supervisory powers on the part of the Trusteeship
Council. Thus,before the Fourth Committee of the General Assembly in
1948, Respondent's representative, Mr. Louw, stated that:
"... the Union Government could not admit the right ofthe Trustee-
ship Council to use the report for purposes for whick it had not been
the power claimed in its resolution, thatisCto determine whether the
Union of South Africa is adequately discharging its responsibilities
under the terms of the Mandate. Furtherrnore, that power was
claimed in respect of a territory which was not a trust territory and
in respect of which no trusteeship agreement existed. The South
African delegation considered that in so doing, the Council had ex-
ceeded its powers." (OficialRecordsoftheThird Sessiola of theGeneral
Assembly, Part 1, Trusteeship, Fourth Committee, p. 288.)
cants' submission-butdentat that time Respondent protested the exercise-
by the Trusteeship Council of a supervisory authority on the basis of
Respondent 'scontention that it exceeded its power. Today, Respondent
appears to argue, as understood by the Applicants, that the Trusteeship
Council was not at that time seeking to exercise or intending to exercise
a supervisory authority. So we understand their contention, and perhaps
weare wrong in the way weinterpret it.
The South African Government's belief that the Tnisteeship Council
was not only asserting supervisory authority, but was actualy exercising
it,was made even more explicit by its representative, Mr. Louw, at the
next meeting of the Fourth Cornmittee. I quote from the record:
"It was clear from the observations adopted at a later meeting,
that is of the Trusteeship Council, and from the list of questions
submitted to the South African Government, that the majority
of the Councilwas not only very critical of the Union Govemment's
administration, but that it considered that the Council had a super-
visory function in regard to South West Africa, and that the Union
Government was accountable to the Trusteeship Council for its ad-
ministration of the territory."
That is from the same General AssenablyOficiaE Records already cited,
at page 297,In 1948, therefore, Respondent complained that the ma-
jority of the members of the Trusteeship Council "considered that the
Council had a supervisory function with respect to South West Africa".
And in these proceedings, as 1 have said, the Respondent contends pre-
cisely the opposite.
Applicants' statement in this regard reflects the comment made by
Respondent in the verbatirn record, VIII, at page 468, from which 1
quote: "The Trusteeship Council did not consider that it was required to
exercise a supervisory power in respect of this report." That refers to
the report of r946,submitted by Respondent to the United Nations.
It is clear, in the Applicants' respectfview, that Respondent 'searlier
position was correct, in so far as it recognized and underçtood that the
Trusteeship Council asserted and exercised supervisory powers over
South West Africa in this connection. Of course, Respondent 's position,
in our respectful view, is totally erroneous, that the Trusteeship Council,
on reference from the General Assembly, lacked the power to exercise
such supervisory authority as a matter of law-those, of course, are two REPLY OF MR. GROSS
193
quite different propositions.But Respondent seeks to offset, or espunge,
its earlier and more merjtorjous position, that is, its acknowledgement
that the Trusteeship Council was, indeed, asserting and exercising a
supervisory function-rneritorious in the sense thatitcorresponded tothe
facts of the situation-but atternpts to erase its position evidenced at
that time by >Ir.Louw, by reference tostatements made by several repre-
sentatives to the Trusteeship Council, and in its rebuttal Respondent
places quite heavy reliance upon several of these statements. These state-
ments are taken, therefore,,as demonstrating the soundness of Respon-
dent's new argument. As will be seen, however, most of the staternents
referred to seem to confirm. quite clearly Respondent's 1948 position,
rather than its ciirrent position, with respect to the type of activity in
which the Trusteeship Council was engaged at that tirne.
Itis truetiiatof the 12 members ofthe Trusteeship Council, two-that
is to Say, Australia and the Soviet Union-made statements indicating
the view that the, Council did not have supervisory powers over South
West Africa. The majority of IOmembers, however, gave no indication in
the Council debate that they supported Respondent's present contention,
that is to saygave no indication that they believed that the Trusteeship
Council lacked power to review the report, or that it was not, in fact,
reviewing the report under the proper exercise of the Assernbly's com-
petence under Article IO.
Even Respondent has had to concede that Belgium's attitude was what
Respondent called "a kind of in-between", in the phrase used in the ver-
batim record, VIIL, at page 471. In fact, analysis of the statement of the
Belgian representative, Air.Ryckmans, honorary Governor-General of the
Belgian Congo, in the Fourth Cornmittee (Mr. Ryckmans is qiioted by
Respondent at VIII, p. 471, of the verbatim record), the statement
was not a statement of legal position at all, on its face, but rather an
appeal for a politically acceptable resolution. Mr. Ryckmans suggested
an exchange of United Nations recognition of Respondent's right not to
place the Territory under trusteeship for Respondent's acceptance of the
Trusteeship Council as the heir of the Mandates Commission in terins of
reporting.
In statingthe legal position, Belguim at no time intimated the trustee-
ship lacked supervisory polvers, so far as the Applicants have been able
to firid çtatementç and interpret them. Thus, in the very statement qiioted
by Respondent, Mr. Ryckmans said:
"1 do not think it advisable to tell the representative of the Union
of South Africa that the Trusteeship Council will examine the report
submitted by the Union Government as if it were a report from a
Power administering a Trust Territory. This is a controversial ques-
tion. ive shall in fact examine this report as we examine any other,
but in principle ute should consider it in the same way as itwould
have been considered by the Permanent Mandates Commission."
(United Nations, Trz$steeshipCounciEOficial Records, 2nd Session,
1st Part,p. 124.)
This seems to be a reasonably clear statement that the Trusteeship
Council was actually to esercise, and was actually exercising, a super-
visory authority over the Mandate in terms of examining and recom-
mending on the basis of a report regarding conditions in the Territory.
The Belgian view was that the report should not be treated as a report194 SOUTHWEST AFRICA
£rom a "trust territory", but should in pdnciple be examined as the
Permanent Mandates Commissionhad exarnined reports. The Applicants
willshow shortly that this is precisely the way this report was treated
by the Trusteeship Council. In fact, Belgiurn was cIearly willing to go
even further and examine it as any otlier report-that is to say, asif it
were a report from a trust territory-but in principle the Belgian state-
ment indicated clearly that the Belgian view wasthatthe United Nations
was exercising supervision over a mandated territory, as had been the
case in the League of Nations era and under the League regime. Indeed,
the major issue discussed in the Council was, as 1 have said, the proper
extent of its supervisory powers rather than whether the Council and the
Assembly hd such powers. Belgium was very clear on this point, Mr.
President; hir.Ryckmans said on 12 December 1947 in the Trusteeship
Council:
"We have now spent an hour discussing whether we shall examine
anything else in addition to the report. If begin with the report,
and if during the discussion any mernber of the Council feels that
he cannot examine the report without consulting other documents,
we can askthe General Assernbly for the authority to consult such
documents. I believe that we should begin by doing what we have
been asked to do, narnely, to examine the report." (Trusteeshi+
CouncilOficial Records, 3rd Session, 15th Meeting, p. 482.)
Again, Respondent has been compelled by the record to concede that
for Belgium there was no question of supervision versus no supervision,
rather the question was an issue as to the form and method of the United
Nations supervision to be exercised over the Mandate. Thus, before the
Fourth Committee in 1948 , r. Ryckrnans stated as follows:
"... felt bound to draw theattention of the South African represen-
tative and the Committee to the terms of Articl80, which provided
that nothing in Chapter XII of the Charter should be 'construed in
or of itself to aineany rnanner the rights whatsoever ofany States
or any peoples . .'That included the people of South West Africa,
who, having had the benefit of international supervision under the
Mandate System, could not be deprived of that right." (United Na-
tions, GeneralAssembly OfltcialRecords, 3rd Session, 79th Meeting,
Fourth Committee, pp. 325-326.)
Of course, Mr. President, with respect to the reference to Article80
by Mr. Ryckmans, the Applicants aIready have madetheir position clear
and, in their view, whichcorresponds to that expressed by the honourable
President and Judge Sir Gerald Fitzmaurice in the joint clissenting
opinion of 1962,Mr. Ryckmans' statement transcended the bounds of
interpretation of Article 80.
Wowever, the significant point in his statement is not that; it is the
reference tothe "people of South West Africa who, having had the bene-
fit of international supervision under the Mandate System, could not
be deprived of that right".
The next member of the Trusteeship Council, cited by Respondent
in rebuttal, was China, but, here again, it is difficuit to perceive how the
several statements made by the representative of China can reasonably
be reIied upon by Respondent in support of its contention, that is to say,
the exercise of a supervisory authority. In fact, Mr. President, the re- REPLY OF MR. GROSS I95
presentative of China went so far as to argue that the report subrnitted
by South Africa should be treated as if it werea report from a trust terri-
tory. Thus, Mr. Liu Chieh, who was the Chairman of the Council at that
time, was the opening speaker in the 1947 Trusteeship Council debate
regarding the question of South West Africa, and he stated in response
to a question :
"I would propose that, in accordance with the resolution of the
General Açsembly, this Council should undertake to examine the
'report in the same manner as it would examine a report from a
Trust Territory. For that purpose, 1 am inclined to think that it
would be quite proper for thiç Council to extend an invitation to
the Union of South Africa, if the Government of the Union of South
Africa so chooses, to help the Council by sending a representative
here," (United Nat ions,Trzrsteeshi*CouncilOficialRecords, end Ses-
sion, First Part, p. 121.)
The strong resemblance to the procedures foliowed by the Permanent
Mandates Commission is, of course, more than impliclt in the suggestion
of Mr. Liu Chieh, it is explicit.urthemore, in answering the argument
made by the Australian representative, hlr. Liu Chieh said as follows:
".. .the authority we derive from the General Assembly does not say
that the Trusteeship Council can only look at the report from the
point of view of information. The very fact that itwas referred to
the Trusteeship Council instead of being referred to the Special Com-
mittee on Information transmitted under Article 73e of the Charter,
which alsohas the right of exaniining and not just of receiving in-
formation, indicates that the General Assembly saw the propriety
of a thorough examination of the report from the point of view of
the interest of the inhabitants, and,as the Trusteeship Council has
the function oflooking after the interestsof the inhabitants of terri-
tories to which the principle of trusteeship is applicable, definitely
gave us the authority toexamine the report and not just to look at
it for information purpoçes." (United Nations, Trusteeshi$ Colc?tcil
Oficial Records,2nd Session, p.478.)
The Chinese representative was there again distinguishing between
the application of Article 73 (e) to the Territory, and the broader
power, the broader authority, of reporting and accountabiiity under the
mandates system, and cited the referenceby the Assembly of the South
African report to the Trusteeship Council as evidencing the assumption
that this Temtory was not ivithin the purview of Article 73 (e) of the
Charter. Other mernbers of the Trusteeship Council expressed the same
view, including the French representative, as 1 shall shoctly cite.
Again, in 1949, the representative of China to the Fourth Committee
of the General Assernbly referred to Respondent's letterof 11 JuIy 1949
in which the Reçpondent's Government informed the Secretary-General
that no benefit was derived from the submission of reports on South West
Africa-this was the Respondent's letter. The delegate of China pointed
out, and 1quote now from the OjKcialRecords of the Assembly's fourth
session of the Fourth Cornmittee, at page 208, that the Respondent's
letter-
"explained that the Union Governrnent could no longer see that any
real benefit was tobe derived from the submission of special reports19~ SOUTH WEST AFRICA
on South West Africa to the United Nations, and had regretfuIly
corne to the concluçion that, in the interests of efficient adrniniçtra-
tion, no further reports should be forwarded. That decision by the
Union of South hfrica [said the Chinese deiegate] had made it
impossible for the Tnisteeship Council to implement resolution 227
(III) of the General Assembly and to exercise the supervisory
functions conferred upon it by tliat resolution."
The Chinese delegate explicitly described the function performed by the
Trusteeçhip Council as a"supervisory function", which was preciçely the
position taken bp the Respondent at the time, and preciçely why it
objected to the Trusteeship Council dealing with the report, namely the
Respondent's position thatthe Trusteeship Council was erroneously as a
matter of law exercisiiig a supervisory function. Today Respondent says
the Trusteeship Council was not intending to exerciçe a supervisory
function. General Assembly resolution 227 (III) to which the Chinese
delegate referred, it will be recalled, gave authority to the Trusteeship
Council in almost identical language to resolution 141 (II), which has
previousIy been referred to. The authorization in the resolution is:
"Requests the Trusteeship Council to continue to examine such in-
formation and to çubmit its obçervationç thereon to the General Assem-
blp."
In the premiçes, then, China does not beiong on Respondent's list
of States which supported-are alleged to have supported-its newly
adopted contention, that is to Say, that the Trusteeship Council did
not jntend to exercise a supervisory authority over the Mandate. There
are nurnerous States listed by Respondent, and during rebutta1 Respon-
went through the list. It is, in the Applicants' view, highly important,
even at the risk of burdening the record before the Court at this point, to
check through to see ïvhere this matter reaIly stands, notwithstanding
Respondent's heavy ernphasis on the alleged çignificance of this list.
China has been referred to. The next State on Respondent's list is
Costa Rica. Even the citation by Respondent supports the Applicants'
view rather than the Respondent'ç present contention wjth respect to the
Trusteeship Council's assumption and attitude with regard to the
authority which it was asserting and exercising at that time. In the
Trusteeshi Council, hlr. President, the representative of Costa Rica
made the ollowing statement:
"The point under discussion is whether the mandate has expired
or not. 1 do not know how far the Council can succeed in deter-
mining hastily whether or not the mandate is still in force.
It would be well to avoid the word 'mandate' and any reference
to the spirit or letter of the mandate. Perhaps we could use some
better word in conformity with the spirit of the Charter, for although
we know the Charter içbarely two years old, the Government of the
Union of South Africa is one of the Members of the United Nations
and, as such, isbound to fulfil the terrnç of the Charter. That would
obviate the difficulty of using the word 'mandate', which is, as we
have said, so controversial."
OficialsRecords,hat page 506. The pointt pistthat this exhortation, whichl
was rather typical of the appeal implicit, the political appeal, the persua- REPLE' OF MR. GROSS 197
sion, the diplornatic effort, the undercurrent, whichwas manifest through-
out these proceedings at that tirne, of which the record is redolent with
examples of attempts on the part of tact, diplomacy-even the use of
the word "mandatev-in an effort to persuade Respondent to carry out
the historic mission of the time which was to convert mandates into
trusteeships. Costa Rica simply manted to avoid the use of the word
"mandate" for fear of offending the sensibilities of Respondent, and
that fact is norv used by Respondent, impliedly, as evidence that Costa
Rica implied doubts concerning the existence of the Mandate, or so this
would seem to be the implication sought to be drawn-none other is
apparent to the Applicants. But whether or not this is true-inter-
pretation of Respondent's listing of Costa Rica-whether or not this
is the reason, the reason is far from clear, in the Applicants' mind.
The point is that at no time did Costa Rica ever express the view, at no
time did Costa Rica ever indicate a view, that the Trusteeship Council
should not consider, should not examine and should not submit observa-
tions on the report submitted by the Respondent. The Costa Rican
supervision, whether or not the Territory were placed under the trustee-
ship system; at no time did the Costa Rican delegate ever express the
view that South Africa need not submit reports, orthat United Nations
agencies could not examine them and submit observations upon them;
to the contrary.
The fifth member of the Trusteeship Council on Respondent's list is
France, and Respondent cites France as indicating the view at the time
that the Tmsteeship Council was not asserting or exercising a super-
visory function.
The representative of France, throughout the debntes in the Trustee-
ship Council, argued that the Council could not exceed the authority
granted to it by the resolution of the General Assembly. Indeed, the
representative of France stated-and 1 quote from page 480 of the
document already cited, the Trusteeship Council officia1records-
"That text [referring to the General Assembly resolution 141 (II)]
was very carefully drafted after lengthy discussion because the
Assembly, in referring the report of the Government of the Union
of South Africa to the Trusteeship Council,wanted above al1to take
the first step in the direction of international supervision over the
sideration of the Assernbly resolution by the Government of the-
Union of South Africa and a decision of that Government in that
connection."
The French statement referred to "the former mandated territory":
in the context that reference is very difficult to understand, particularly
in juxtaposition with "the first step" toward international supervision,
which obviously cornprehended what the Trusteeship Council was doing
at that time. France in no respect, from this record, in its pledge in ~946,
in its adherence to the 18April 1946 resolution, or in any other respect
ever evidenced doubt that the Mandate continued in effect, and this
reference to the former mandated territory is doubly confusing in the
light of Respondent's concession, now made, that the Mandate as a
matter of law survived the dissolution of the League in the opinion of
Respondent's Government then in office.198 SOUTH WEST AFRICA
Therefore, the reference by the French delegate to the former mandate
is difficult to understand in the context. Stress is laid, however, partic-
ularly in the light of Respondent's concession that the Mandate did
delegate to "the Assembly wanteLCaaFove al1to take the first step in the
direction of international supervision", and it will be seen again, shortly,
from the way the Trusteeship CounciI deaIt with this report, that the
distinguished French member of the Tmsteeship Council acted in very
much the sarne way as a member of the Permanent Mandates Com-
mission wouId have acted in an earlier daive will corne to that shortly.
The context ofthe debate, therefore, should not be ignored, as Respon-
dent has ignored it. The issue under debate in the Trusteeship Council,
to wkich the French statement just quoted is relevant, was rvhether or
not, and if so to what extent, to go beyond the examination of reports
in so far as South West Africa was concerned. 1 have referred to the
Chinese delegate's proposal that the Respondent rnight be invited, if it
chose, to send a representative to help the Council in examining the
report and understanding it more intelligently. France, and certain
other States, insisted on a strict reading of the General Assembly resolu-
tion 141 (II), and that resolutionwas regarded by many members as
the literal limit to be read upon the Council's supervisory powers.
The second part of the French statement to the Trusteeship Council,
from page 480 of the same record cited: the following statement, and it is
"1 should like to explain [said the French representative] for the
benefit of the Chinese representative whyM. RenéMayer proposed
that the report of the South African Government should be examined
by the Trusteeship Council and not by the Fourth Comrnittee.
He [that is hl. Mayer] feared that to entrust the examination of the
report to the Fourth Cornmittee ~ould convey the impression that
the General Assembly regarded the territory, which was forrnerly
and not ashaATrust Territory or a territory that siiould be placed
under the Trusteeship System. Hence, the French delegation
proposed that the report should be examined by the Trusteeship
Council but that it should not corne under the regiilations applying
to reports on Territories for which there are trusteeship agree-
ments . .
For the time being, the actions of the Trusteeship Council are
strictly limited by the last paragraph of the Assernbly resolution."
Here again, a fair reading othe context of the actual process,of the
actual history shows that the problem of the uniquely residual character
of this Territory, which was not fitting into the hopes and plans of the
international community, was not being converted iiito a trusteeship,
despite insistent pleas, tact, diplomacy, pressures, negotiation, that this
was not happening. There was confiision and there was considerable
discussion of a nature which, looked back upon now in these dusty
records, is ambiguous: one reason for the request for th1950 Opinion.
The French delegate made clear, as 1 have said, the view that the
General Assembly "wanted above al1to take the first step in the direction
of international supervision over South West Africa" and the French
Government considered that resoIution 141 (II) was just such a step. REPLY OF MR. GROSS I99
and that it marked the ambit, the four walis, of the authority of super-
vision which should be exercised by the Trusteeship Council, pursuant
to that resolution.
The Council was limited by the terrns of the resolution and in the
absence of a trusteeship agreement it could not exercise powers beyond
the stipulations in the resolution, and this was the context, and the sole
context, within which the French representative was speaking. And
Respondent's incomplete rendition and selective citation of his remarks
is IikeIy to convey, unwittingly, a distorted impression of the intention
of the French delegate at that time.
Mr. President, the next State on Respondent's list, on which it relies
so heavily, is Iraq. Once more Respondent has distorted the picture in
order to support its new contention-new contention in the sense that
at that time the Malan Government not only assumed that the Trustee-
ship Council was emphasizing a supervisory authority, but it protested
that exercise. But in order to support its present contention, that the
Trusteeship Council was not asserting or exercising a supervisory
authority, Respondent cites Iraq, and according to Respondent, Iraq's
attitude was described in the verbatim record, VIII, at page 475 in the
follorvingwords:
"The hlandate is dead and, therefore, there is no possibility of
supervision in terrns of the Mandate-only ttvo possible alter-
natives-tmsteeshp or independence-nothing in between."
According to Respondent's interprctation of Iraq's position, Iraq was
disagreejng with Respondent at that tirne, because Respondent at that
time assumed that the Mandate was continuing to have legal effect and
Iraq, according to Respondent, disagreed with Respondent at that time.
In fact Iraq agreed with Respondent at that time, as Iraq's statements
make clear if read in the context of the history and events of that time.
Mr. President and Members of the honourable Court, perhaps it might
be regarded as appropriate for the Applicants respectfully to refer to the
fact that we are here dealing with the very essence of the hlandate that
Respondent has put in issue, and heavily relied upon, the significance of
events and transactions and undertakings occurring during a period
rvhich has become a crucial factor in the resolution of the issues joined
in the cases at bar. Itisfor that reasoii, and with the hope that the basic
element of the problem at issue will not be lost to sight or submerged in
a haze of detail-in a battle of words-that Respondent has indeed, in
our view,placed before the Court an interpretation of semantics, without
context, of events which are now receding from man's memory, of con-
temporary events. It isforthat reason that, with respect, the Applicants
think it necessary to place before the Court what they. in any event,
view as the proper historic record and context of a very decisively
important era in the development of the international protection of
dependent territories.
I was referring, Mr. President, with your permission, to the statement
of the representative of Iraq made in the Trusteeship Council on 12 De-
cernber 1947,at the Second Session, First Part, at page 482. Iraq, it will
be recalled, is listed by Respondent as one ofthe States which indicated
or expressed a view that the Trusteeship Council $vasnot asserting or
exercising supervisory authority with respect to the Mandate. The
lraqui view, as was the case of so many others at the time, does indeed200 SOUTH WEST AFRICA
reflect confusion, with al1respect to the distinguished delegate of Iraq at
the time, confusion and ambivalence butan underlying hope and expecta-
tion, which characterizcd the time and marked the proceedings, that
this Temtory would be placed under trusteeship, that its future wouid
be resolved in accordanccwith the hope and intent of the authors of the
Charter.
In the statement the Iraqui delegate, intear lia,said as follows, and in
the context 1 think it is clear why he said what 1 am about to quote:
"ln my estimation the Territory is really hanging inthe air and
not even the Union Government is trying to hold it in the air.
It might legally drop to the ground at any moment, if it has not
done so already. I believe we aii share the sentiment of our Vice-
President that it ishighly unfortunate that the Union Governrnent
has acted in the way it has, To me, it is al1 the more unfortunate
that a member nation ofthis Organization finds it convenient many
times in the General Assembly to take a certain position and a
certain attitude towards various problems which indicates that it
acts according to the principles and nobility of the Charter of the
United Xations, and, not only that, but sometimes to shatter those
principlcs."
The Iraqui deiegate, cited by Respondent in itsrebuttal, went on to Say:
"1 think the position of the Union Government cannot be said
to be free of motives and prejudice even if you give it the benefit
of the doubt, but, if you do not, 1 think you can even Say worse
things, which 1 am not going to do at this time. The General Assem-
bly resolution, which is under consideration, does not cal1 for a
visiting mission. The Territory in question is not a trust territory
and we cannot send a visitine mission there. On the other hand. the
information before the ~ruuçteeçhi~ Council, in the form of'the
resolution of the General Assemblv. does not tie the hands of the
Trusteeship Council at a~.-The ~eneral Assembly asks the ~rusteei
ship Council to make observations regarding a loop-hole.Zt autho-
rizes the examination. Since it does not tie our hands, I believe we
are entitled to seek other sources of information. The mere sub-
mission of this loop-hole by the Government of the Union of South
Africa is, 1take it, a confession of faith on the part of that Govern-
ment that the matter is at least connected with the Trusteeship
Council and the General Assembly by more than one tie."
This was the attitude espressed by the Iraqui delegation, listed by
Respondent as among those who did not then feel that the Trusteeship
Council was exerting supervisory authority. The Iraqui statement
clearly shows that the representative of Iraq considered that there was
the possibility of international supervision of the Territory, irrespective
of 3.determination, from a lawyer's point of view, as to its statusinlaw.
Here again, we find, as in the case of the French statement, the Iraqui
delegate describing the Territory as "hanging in the air" and not even
the Union Government is trying to hold it in the air. Even giving that
expression an implication of legal content, if has a legal signiftcance it
iscontrary to the viewpoint then taken by Respondent, that the Mandate
as a matter of law continued in existence. This is common cause. ASwe
have already noted, the key issue in the debates of the Trusteeship
Council was whether or not the Council couId go beyond the reports REPLY OF MR. GROSS 201
submitted by South Africa in the search for information and whether or
not, and if so to what extent, the CounciI could, in the same context, go
beyond the iiteral four walls of the General Assembly resolution. Iraq
clearly did wish to go beyond the report.
Thus, her representative asked at the same session, at page 4S3of the
document lvhich 1 have just quoted-
"How am 1 going to examine this report alone, and without any
other information? 1do not know the facts, 1confess. The report is
too concise and too abridged to permit me to obtain a sufficiently
large fund of information. Therefore, at worst, not at best, but at
worst, 1 believe we are entitled to seek other sources."
This fairly refiects the view, the sentiment, the attitude, not onlyof
Iraq but of other members of the Trusteeship Council, including France
and the others cited by Respondent.
Respondent next turns to views of Mexico, to support its presentlyad-
vanced contention that the Trusteeship Council did not consider atthat
time that it had supervisory powers over South West Africa, but oncemore,
Mr. President, an examination of the context of the Trusteesliip Council
debates reveals that Mexico never intimated that South Africa should
be free of international supervision or was then free of international
supervision. In the pleadings before this honourable Court in1950 t will
be recalled that a statement was submitted in this respect. However,
going back to the Trusteeship Council proceedings, in the Council's di-
vision of opinion as to whetlier or not the degrce of supervision should
be limited by the strict terms of the General Assembly resolution, the
delegate of Mexico took the stand that the enquiry should go beyond the
confinesof the report submitted by Respondent. Thus, on 12 December
1947 in the Trusteeshi@CotlnczlO@cialRecord of the second sessionfirst
part, ai page 484, the delegate of Mexico, &Ir.Xoriega stated that:
"1 feel that, in the interest of the Government of the Union of
South Africa, it is important that we should acquaint ourselveç
fullywith the whole background of this question and with the situa-
tion of the indigenous inhabitants. For as soon as the general public
is informed that the Trusteeship Council refused to give ear to, or
have knowledge of, or obtain reports from, other sources than the
Government itself, they will think the Council is pursuing an ex-
tremely conservative policy which disregards the very objectives of
the system which the United Nations has put into effect under the
name of the Trusteeship System. For although the territory in ques-
tion is nota Trust Tcrritory, it has indigenous inhabitants urhoare
in no lcss need of assistance than the inhabitants of other territorles.
1 thercfore believe and rnaintain that for the sake of the Council's
own prestige and the greater efficacy of its work, we should be given
the authority-ïvhich indeed wc already have-to obtain such sup-
plementary information as would help to enlighten us on this re-
port from the Government of the Union of South Africa. Otherwise
anqr resolution we shaH be able to submit to the Assembly will be
xrerjweak and ineffective and this discussion will be reopened ithe
Fourth Cornmittee at the next session."
So spoke the Mexican delegate and Mexico is on Respondent's list.
The delegate for Mexico Ieft no doubt as to his view that the Trustee-
ship Council was competent to pass judgment upon Respondent's ad-202 SOUTH WEST AFRICA
ministration of South West Africa. For that very reason he waç insisting
that the Council gobeyond the report and obtain asmuch information as
possible from other sources, and he said this was authority "we already
have"-other delegates considered it beyond the four walls ofthe General
Assembly's resolution and this was the context of the debate then going
on.
At the same meeting of the Trusteeship Council, the Mexican delegate
said, at page 475:
"The point is rather whether or not the Council is in a position
to present a good report to the General Assembly, ex ressing its
opinion concerning the report from the Government of t e Union of
South Africa. Therefore, in carrying out the task which the General
Assembly has entrusted to us, narnely, that of considering the report
and of submitting our observations on it, the Trusteeship Council
is at liberty availitself of the best means of clarifying its judgment
so that it may be able finally to express its opinion."
In sum, Mr. President, Mexico,just as the case of most other Members
of theUnited Nations almost without exception, preferred that the terri-
tory of South West Africa be placed under the tmsteeship system. It did
not regard the fact that the Territory remained outside the system asa
bar to the exercise of supervisory powersby the United Nations although
the supervision would admittedly be more Limitedthan if a trusteeship
agreement were in effect. At the time of this particular Trusteeship
Councildebate, as the record makes clear, the nature and degree ofsuper-
vision was limited by the terms of the General Assembly's resolution to
which reference has been made.
The next member of the Trusteeship Council listed by Respondent as
supporting its present viesvis New Zealand. Respondent refers to New
Zealand in the verbatim record, VIII,at pages 478-479.Aclose reading of
that excerpt in the verbatim record-a careful reading by the Applicants,
in any event-reveals no trace of an opinion to the effect now contended
for by Respondent, to wit that the New Zealand Government considered
that the Trusteeship Councilwas not aççerting or exercising a supervisory
function over the Territory. Al1the delegate for New ZeaIand was saying
in the Applicants' view, in the lengthy quotation set out by Respondent
on pages 478-479of the cited verbatim record, was that the Council'ç
powers were lirnited by the terms of the General Assembly's resolution.
That is to Say, in theview of New Zealand,shared by other members as
Africa and to submit its observations thereon to the Assembly. In the
context of the Council's debate, New Zealand was taking what might
perhaps be called a relatively conservative view that the Council could
not go beyond the report in seeking information because the General
Assembly had limited the authority of the Council to an examination of
that report. This doeç not, in the Applicants' respectful subrnission, sup-
port in any way Respondent's contention that New Zealand thought,
at that time, that the Trusteeship Council was not asserting or lacked
the power to exercise supervisory function. NewZealand clearly favoured
a strict and literal interpretation of the General Assembly's authoriza-
tion, terms of reference of the Tnisteeship Council in this respect. New
Zealand never argued that the Council could not consider and pass
judgrnent upon Respondent's administration in the mandated Territory, REPLY OF MR. GROSS 203
and as willbe shown shortly, New ZeaIand not only participated in the
consideration of the matter on the substance of the report fully but,
as the other members of the Council did, concurred in the ha1 report of
the Truçteeship Council to the General Açsembly on this matter.
hfr. Reid, who was the deputy to Sir Car1Berendçen, at that time the
rnember of the Trusteeship Council, said at the Third Session of the
Trusteeship Council, at page 409:
"He recognized with the U.S.S.R. representative that it would
be very difficult to study the report in the absence of a special re-
presentative, but believed that it was the Council'sduty to comply
with the General Assembly's request and to supervise the treatment
of the inhabitants of the Territory to the best of its ability with the
limited means at its disposal."
The Respondent then turns to the Philippines, and the best that Re-
spondent can do with respect to the Philippines is to concede that the
views of the Philippine Government were inits ownwords,"inconsistent"
-that is the characterization employed by Respondent in the verbatirn
record, VIiI, at page 481. Yet once more, it is clear iii the context of the
Trusteeship Council's debate that the Philippine representative took
a very strong stand indeed-it wasjust the other way from that contended
for by the Respondent. Far from questioning the Council's powers, the
Philippine representative wanted to go well beyond the limitations
irnposed by the General Assembly's resolution, and to accept petitions.
He also expressed the view that the report from South Africa could
appropriately be examined as if it were a report from a trust territory.
The Philippine delegate said at the second session, first part, of the
Trusteeship Council debate, at page 476, as follows:
"The least that this Council could do, therefore, is to examine
this report in the same way that the Permanent Mandates Com-
miçsjon used to examine the reports of the Union of South Africa.
1 say that iç the least which the Council could do, because 1 also
associate myself with the observationç of the representative of China
to the effect that the Trusteeship Council could examine the report
as if it were a report from a trust territory."
1 have previously cited the statement by the Chinese delegate on the
Trusteeship Council,withwhich the Philippine delegate associated himself.
The Philippine statement just quoted affordsstrong support indeed for
Respondent 's1948contention that the Trusteeship Councilwas asserting
and exercising supervisory powers, which was the very basis for the ob-
jection by Respondent in 1948with respect to the Trusteeship Council's
inter-position in the matter in any respect. The remaining two members
of the Council whose viewsare in dispute at this juncture are the United
Kingdom and the United States.
So faras the AppIicants have been able to see from a careful reading
of the 1947 Trusteeship Council debate, the United Kingdom did not
participate in the debates on this aspect of the matter, that is to Say, on
the question concerning the scope of the General Assembly resolution
and the powers of the Tmteeship Council, the powers which appro-
priately could be exercised by the Trusteeship Council, either within
the four walls ofthe resolution orbeyond it, e.g.,withregard to petitioners
or inviling a representative of South Africa to appear. But, Mr. President,=O4 SOUTH WEST AFRICA
Respondent's reliance on a 1948 statement to the Council by the British
delegate is, in the AppLicants' respectful view, entirely misplaced. Once
again, one finds in tlie British statement i1948 the view that the Coun-
cilshould limit its supervisory function tothe precise terms of the General
Assembly's authorization, leaving it to the General Assembly to go fur-
ther ifitwished and if it wished, to authorize or instruct the Trusteeship
Council to go iurther in supervisory functions over the Mandate-go
further than the Assernbly resolution did.
The British delegate, the member of the Trusteeship Council at that
time, as the Court will be aware, was Sir Alan Burns of the United King-
dom,and his statement canfirms beyond doubt, in the Applicants' view,
that this isthe question to which he was addressing himself. The state-
ment is asfollows-it appears inthe sarne Third Session, OficialRecord,
at pages 531-53 2
"The Council had been asked to consider the report on the ad-
ministration of South West Africa simply because that Territory was
formerly under mandate, [again the same phraseology uçed by the
delegate 'formerly under mandate', puzzIing to interpret at this
stage, the Mandate is conceded to have been in force at that tirne]
and the General Assembly iioped soon to see it placed under the
trusteeshipsystem. It was important, therefore, to bear in mind that
the Council's consideration of the report on the administration of
South West Africa and its report thereon to the General Assembly
were sui genevis;the Council had no right to assume that the General
Assernbly would take any particular course of action on the basis of
the Council's report.
Moreover, in view of the very strong feelings which this question
had aroused not only in the Territory of South West Airica, but iii
the Union of South Africa as well, it was important for the Council
in complying with the Assembly resolution to avoid the use of words
or staternents which might give offence in South \L'est Africa or in
the Union of South Africa.
Recause of the special conditions under which the Council waç
acting and because of the possible repercussions which the Council's
actions might cal1 forth in South West Africa, it should endeavour
to limit itself to observations,leaving it for the General AssembIy
itseIf to draw its oNn concluçions." (TCIOR: Third Session, pp.531-
532.1
Again part of the continuing tide of diplomacy of the effort to persuade
the South African Government to submit a trusteeship agreement to
avoid offence-these were implicit in the debates. They must not, Mr.
Preçident, be used as a basis for interpreting these statements in this
context as implying the contrary of what Respondent itself, at that time,
insisted and protested the Trusteeship Council was doing, namely exer-
cising supervisory authority over the Mandate-this is not a correct
reading or version of history.
The British representative, aswill be made clear, taok full part inthe
discussion in the examination of the report-1 shall corne to that ina
few moments. To revert to the statement of the British representatiye,
warning against using ~vordsor statements, as he said, which might give
offence, the British rcpresentative expressed the view that the Council
should limit itself strictly to the authorization of the General Assembly, REPLY OF MR. GROSS z05
that is to Say, that it should submit "observations" to the Assernbly on
the report of South Africa, with regard to the Terntory.
Indeed, Mr. President, the only Government to argue that the Council
could not even consider the report (notwithstanding the General As-
sembly's authorization to do so) was the Soviet Union. The Soviet posi-
tion was that the Council could not deal with South West Africa because
it had supervisory powers only over trust territories, butthat Respondent
had a legal obligation to place her territory under the trusteeship system
-tbs was the Soviet position at the time. It was, of course, prior to the
Advisory Opinion of 1950, in which the Court reached the conclusion
contrary tothe legal position then contended for by the Soviet Govern-
ment. The Soviet Union stood alone in the viewthat outside oftrusteeship
under which it beIieved Respondent had a duty to place the territory,
the Councilwould have no supervisory function. Later of course, this view
waç changed, afterthe 1950Opinion. The point here is that an argument
that the Council had no powers whatsoever with respect to the Territory
means that the Council could not even receive the report, notwithstavd-
ing the GeneralAssembly'sresolution. In other words, the Soviet position
manner of the exercise of supervisory power-ital simply, because of thehe
legal theory adopted by the Soviet Governrnent at that time, believed
that the Council should not deal with the matter and had no power to
deal with the rnatter at all; the Council, of course, felt otherwise-that
was what caused the protest from the Respondent.
Finally,we corne ta the viewç expressed by the representative of the
United States as to the supervisory powers of the Trusteeship Council
because, Mr. President, the United States has earned its place on the
list of States, prepared by Respondent. The United States' attitude emer-
ges from Reçpondent's treatment with the appearance of a some~vhat
curiously ambivalent or even distorted version of Respondent'~new con-
ception of what the Trusteeship Councilthought it was doing at the time.
The deputy representative of the United States to the Trusteeship Coun-
cil \vas Mr. Benjamin Gerig, whose name has fiped previously in these
proceedings. He was the deputy to the representative of the United
States on the Trusteeship Council, Professor Francis Sayre. Now, MC.
Gerig had one point in the record and this is quoted in the verbatim rec-
ord, VIII, atpage 483. Respondent quotes the foIlowingstatement from
Mr. Gerig and then makes a comment thereon, which 1 shall quote.
hlr. Gerig'sstatement, quoted by Respondent at this place in the record
of the Oral Proceedings is as follows:
"It was said here earlier this afternoon, and I did not hear any
member object, that while we aU hopc-my delegation as much as
any delegation feels that way-that there willbe a trusteeship agree-
ment for this territory, we do not, in the absence of a trusteeship
agreement, have supervisory functionsover this territory. Therefore,
1do not think we ought to imply that we do have supervisory func-
tions to ensiire that the Union Government discharges its duties
under the present mandate, adrnitting that it exist." (VITI,p. 483.1
This ivas the statement. NOIV from this quotation Responden tconcludes,
quite categorically, and1quote Respondent's statement, that &Ir.Gerig-
"... proceeded from the basis that the Mandate is in existence but
had a clear and expIicit view to the effect that the United Nations206 SOUTH WEST AFRICA
had no supervisory authority in respect of the Mandate". (Ibid.)
This isan interpretation of thestatement of Mr.Gerig, that heproceeded
from the basis that the Mandate is in existence as a clear and explicit
view, and then proceeded to the view that the United Nations had no
supervisory authority in respect of the Mandate.
Irrespective of what Respondent means by its characterization of the
statement, it seems clear upon its face-and 1 do not intend to engage
in controversy with Respondent as to what it meant by characterizing
this statement-that what the Applicants think the statement shows is
that there was doubt expressed by Mr.Gerig, there was aquestion raised
as to whether or not the hlandate was in existence. He says "under the
the wholeproposition, if one looksat that statement alone, out of context.
Of course, there are other things that Mr. Gerig said and other things
that the United States delegation to the Trusteeship Council did which
show precisely what their positionwas.
Reçpondent ornits reference to the concluding paragraph of Mr.Gerig's
same statement, at pa e 505 of the Trusteeslii$ CouttciOficiaERecords,
Second Session, First #art, in which Mr. Gerig said:
"I cannot help but feelthat tttere are difficultiesof thiskind which
we should not take up at this point. 1 am willing to consider it in
June, but 1 do not now feel cleclrin my mind that the Trusteeship
Council has implied or ex ressed supervisory functions over that
territory. However, 1shou l' like to hear the thoughts of the other
members of the Tmsteeship Council."
Mr. Gerig was not clear in his mind, he admitted it, and he wanted to
hear the views of the other members of the Council before he cleared üp
his mind. His expression of uncertainty was a candid confession. As to
the legal position, at that moment the Trusteeship CounciImembers had
not yet eexchangedviews: there was a general desire and hope that the
South African Government would alter its position and submit a tnistee-
ship agreement. That was the preoccupation and that was the context of
the rernark.
So far as the powers of the Trusteeship Council were concerned with
regard to the actual handling of the report, it will also be clear shortly
that the United States delegation to the Tmsteeship Council played a
very affirmative and positive role indeein commenting upon the report,
persuaded Respondent that the United States representative took thet have
view tliat the United Nations had no supervisory authority in respect of
the Mandate, to quote Respondent's characterization. The conclusion to
which the United States Government came after hearing the viewsof the
other members, which hlr. Geriginvited, \vaspresented to the Court in its
written staternent in 1950 in the Advisory Opinion proceedings of that
year. And in the volume of Pleadiligs, Oral Argumeds, Doczlmelsls,the
Advisory Opinion ofrIJuly 19j0, at page rr, in the United States written
statement it is stated that:
"It is believed, therefore, that the Union of South Africa con-
tinues tobe obligated, under the hlandate, to submit reports on its
administration of the Territory, submitting these to the United
Nations for considerationby the organ which the General Assembly
designateç for this purpose." REPLY OF MR. GROSS z07
1 shall refer shortly to Respondent's unwarranted characterization of
that conclusion as special pleading. For the moment, however, in this
context, I should, with the Court's permission, like to summarize the
points juçt made with respect to the actual context of the debates in the
Trusteeship Council, with respect to the extent of the supervisory
powers appropriately to be used by the Trusteeship Council pursuant to
the terms of the General Assembly resolution, in which as I have said,
the only member of the Tnisteeship Council which expressed a view tliat
the Council did not have supervisory powers in this respect was the
Soviet member of the Tmsteeship Council, on the basis of its legal
reasoning and assumptions at that time, prior to the decision, the
Advisory Opinion, in which thiç Court spoke authoritatively on that
matter.
In summary then, hfr.President, the best that can be said of Respon-
dent's contention, in Our respectful view, is that two members of the
Trusteeship Council, for quite different reasons, expressed doubts-one
expressed a conviction-whether the Trusteeship Council had super-
visory powers outside of the trusteeship system itself. Nine States were
of the opinion that the Council could examine and submit observations
on the report of the mandatory power, Respondent in this case, and one
Çtate-the United States-said its mind was not cIear on this subject.
Many of the members felt that the Council could go much further and
treat the report as if it were a report from a trust territory, and even
accept petitions-China, Mexico.
The more conservative view was that the Council should limit itself
strictly to the terms of the General Assembly's resolution. Thus, the
correctness of Respondent's view in 1948-when it acknowledged that
the Council was asserting and exercising supervisory powers over the
Mandate, but objected ta the coursebeingpursued for that very reason-
is borne out by the record. That is to Say, in the words of Respondent's
representative in 1948-1 quote from the O@cialRecords of the Fourth
dent's representat ive,Mr. LouwGe:eral Assembly, at page 297, Respon-
"It was ... clearfromthe observatjons adopted at a later meeting
[of the Trusteeship Council], and from the list of questions sub-
mitted to the South African Government, that the majority of the
Councjl was not only very critical of the Union Government's
administration,but that it considered that the Council had a super-
visory function in regard to South West Africa and that the Union
Government was accountable to the Trusteeship Council for its
administration of the Territory,"
This was the explicitly expressed view of Respondent contemporane-
ously with the events and it speaks for itself.
In addition to the significance properly to be attributed, in the Appli-
cants' view, to the fact that the Tnisteeship Council considered Reçpon-
dent's report of 1946,and the fuller 1947supplement, it is just as reveal-
ing to notenot only that the Councilconsidered it but to seewhat aspects
of the report were considered by the Council; and how the Council went
about the business of analyzing the report of the Respondent and its
supplemental report, and the report of the Trusteeship Council itself
to the General Assernbly, pursuant to the resolution.
Striking conclusions are justifiably to be drawn from a study of the 208 SOUTH WEST AFRICA
record of the Trusteeship Council in this respect, as to striking simi-
larities betwveenthe method of enquiry which the Council pursued and
its range of concern expressed, and those of the Permanent Mandates
Commission while it was in existence.
First, note might welt be taken of the level of cornpetence of the
mernbers of the Trusteeship Council. le haveheard in these proceedings,
and we see in the written pleadings of Respondent, references stressing
the competence, unique competence, of the Permanent Ifandates Com-
mission as against the political cliaracter, etc., of the preçent situation.
In the Trusteeship Council the representatives were-or at least some
may be referred to in this context-Professor Francis Sayre, and his
deputy Mr. Gerig, an outstandingauthority, as the Court will know, on
trusteeship and dependency matters, and author; Sir Alan Burns of
Great Britain; $1. Garreau of France; M. Ryckmans of Belgium, the
honorary Governor-General of the Belgian Congo; Mr. William Forsyth
of Australia, later to become Executive Secretary of the South-East
Asia Commission; Sir Car1 Berendsen, one of the stalwart founders of
the United Nations itself; GeneraI Romulo of the Philippines; and so
forth.
It willbe observed from what follows in these rernarks that many of
supplement, many of the most anxious questions directed toward thed
racial policies then pursued by Respondent, wcre addressed by repre-
sentativcs of administering powers themselves, and 1 think that this
sheds some light on certain contentions now being advanced by Respon-
dent with respect to some special considerationç-we do not know
~vhat-with respect to African reality.
It is, of course, an irrelevant comment, and it is submitted with
deference and diffidence, but there\vasnot a single African State among
the membership of the Trusteeship Council at this time-if that is
relevant, which of course it is not.
The report submitted by Respondent for the year 1946and the sup-
plementary report requested by the Trusteeship Council were both
examined closely, with particular attention directed to information
relating to Respondent's obligations under Article z, paragraph 2, of
the Mandate. The statements made by representatives of members of
the Trusteeship Council in 1947 reflected the need for more information
from themandatory polver. In every case the additional evidence sought
from Respondent related to its obligations to promote to the utmost the
welfare of the inhabitants of the Territory in terrns of Article2, para-
graph 2,of the Mandate. This was the preoccupation of the members of
the Trusteeship Council inconsidering the report.
In 1948,the Council, having the supplementary report at its disposal,
examined tlie data therein entirely for purposes of determining whether
Respondent's administration of the mandated territory was in accor-
dance svith its obligations under the sacred trust.
A study of the Trusteeship Council'srecords for1947 and 1945 demon-
strates that the Council was primarily, as was tobe expected, concerned
~6th the poiitical, economic, social and educational developrnent of the
inhabitants of SouthWest Africa. This isevideni both from the questions
asked of Respondent and the observations made by the members of the
Council.
The Council was clear that each of the substantive areas with which REPLY OF hiR. GROSS Zog
it was concerned, that is to Say, political, economic, social and educa-
tional advancement, was to be supervised within the context of what
was then assumed to be axiomatic, and that is, no officia1separation or
discrimination on the basis of rnembership in a group, class or race.
The records of the Council are replete with criticismof Kespondent's
racial policy, and they evidence the Council's unquestioning assurnption
that the overriding purpose of the Mandate was found in Article 2,
paragraph 2, of the Mandate, and this of course is reflected sirnilarly in
1962 in the Judgrnent of the Court, urhere at page329 the Court stated:
"The rights of the Mandatory in relation to the mandated terri-
tory and the inhabitants have their foundation in the obligations
of the Mandatory and they are, so to speak, mere tools given to
enable it to fulfil its obligations. Tlie fact is that each Mandate
under the Mandates System constitutes a new international institu-
tion, the primary, overriding purpose of which is to promote 'the
well-being and devclopment' of the people of the territory under
Mandate." (I.C.J. Reports1962, p. 329.)
This is precisely the attitude and the baçis upon which the Trusteeship
Council proceeded in examining the report and supplement in 1947 and
1948 respectively.
Appreciation of thc nature of the supervision exercised by the Trustee-
ship Council and its axiomatic assumptions ~vithrespect to the question
of racial separation and discrimination is most easily observed by
reference to each of the substantive obligations subsumed under Articl2,
paragraph 2, of the Mandate. To begin with, it is clear tliat the Trustee-
ship Council even then regarded Respondent's policies relating to the
political advancernent of the inhabitants of.the Territory as discrimina-
tory, and as such far short of the duty to promote to the utmost the
material and moral well-being and social progress of the inhabitants.
For example, the United States representative, Mr. Gerig, presented a
list of questions concerning Reçpondent's report for the year 1946. It
will be recalled that the report was conçidered by most members of the
Trusteeship Council to be inadequate, inasmuch as it did not contain
sufficient information to enablethe Council to carry out the supervisory
functions authorized by the General AççembIy-resolutioii 141(II) of
I Novernber 1947. Mr. Gerig's first question was, in relevant part, as
follou7s-this is from the Trusteeship Council OGcial Records. Second
Session, the first part12 December 1947 at page 4900:
"... ~vith regard to the Legislative Assembly and the Advisory
Council of the Territory, has the Union Government any plans to
appoint Natives to represent Natives in either or both of those
bodies, in line with policics pursued in other parts of Africa?"
At the same meeting of the Trusteeçhip Council the representative of
Iraq prexiously mentioned set outseveral areason which further informa-
tion was needed. In the course of the presentation of his views the
delegate of Iraq said as follows-this is at page 493 of the same report:
"... Africans and Coloured people are debarred on the ground of
race from voting for or sitting in the Legiçlative Assembly for
South West Africa, although in the Union of South Africa itself
Parliament'.'.ain reçtricted political rights in elections to the Union210 SOUTH WEST AFRICA
That was true at the time. Now the Iraqui delegate to the Trusteeship
Councii, in the course of his presentation, addressed his enquiry for
further information on that proposition, on that question. By the 1948
Session of the Trusteeship Council, the supplementary report requested
at the previous Session had been submitted by Respondent's Govern-
ment, and the observations on the part of members of the Trusteeship
Council with respect to the political aspects of the administration of the
Territory were therefore both more informed and, as it turned out,
more critical. Thus on 23 July 1948,and this is from the records of the
Third Session at page 412, the representative of China, Mr. Liu Chieh,
said :
"The Chinese delegation was of the opinion that greater participa-
tion of the indigenous population in South West African public
affairs should be the primary concern of the Trusteeship Council.
According to the reply given by the Govemment of the Union of
South Africa to question 1,page I of document T/175, franchise in
South West Africa was restricted to Europeans; furthemore, in
order to be eligible for election to the Legislative Assembly, a
candidate must be enrolled as a voter ...The result, therefore, was
that the indigenous population was not represented on any legis-
lative body of the Territory."
The sameconceni on the samebasis and for the same reason wasexpressed
by the representative of New Zealand, Mr. Reid. Shortly after the
comments of the Chinese delegate to this Trusteeship Council the
repreçentative of New Zealand-itself, of course, a trust administering
Power-said, and 1 quote from page 413 of the record:
"... the New Zealand delegation was most concerned with the
indigenous inhabitants having no representatives of their orvn, even
down to the tribal level. More than that, they were not even repre-
sented by a European. The Legislative Council was composed of ten
officiai members appointed by the Administration and of other
members elected exclusively by European residents. It was essential
to draw particular attention to that point."
It hardly seemsnecessary toSaythat in citing these views and questions
the Applicants are not posing an issue with respect to the validity, or
accuracy, or othenvise of the views then expressed, nor can the Appli-
cants appropriately, or do they have the capacity of advising the Court
at this moment whether or not any of these policies referred to specifi-
cally here are today in precisely the sarne form as they were then, for
lack of familiarity with precisely how they were then. But the point, of
course, of citing these statements is to show not only that the members
of the Trusteeship Councii (a) considered that they were exercising a
supervisory authority over the Mandate; (b) that they were in a position
and competent to deal with the substantive obligations implicit in
Article 2, paragraph 2, but in addition (c) that the members of the
Trusteeship Council were operating on the premise, and proceeding from
the axiornatic point of departure, that discrimination on the basis of
race, the allotment of burdens and duties on such a basis, was not
perrnissiblewithin the Mandate; they called attention to this factor
repéatedly.
The need for administration of the Territory on the basis of non-dis-
crimination, on the basis of race, waç repeatedly stressed, among others, REPLY OF MR. CROSS 211
by the Philippine delegate. The delegate of the Philippines, for example,
stated at pages 413-41 o4f the reports already cited as follows:
". .. he had noticed with great regret that a policy of racial dis-
crimination stillexisted in the Territory of South West Africa,
despite the explicit stipulation of the Mandate that the Mandatory
Power should doits utmost to promote the weii-being of the indige-
nous population.
....,.....,........,....
He was very sorry,indeed, to notice that trendin the administra-
tionof South West Africa. He had thought that the Union of South
Africa being one of the most advanced countries of the African
continent, would have been in the vanguard of progress and would
have led the way towards the development of the African indigenous
population."
The axiomatic assurnption that the policy of racial discrimination which
stiii existed in the Territory1 have just quoted, "despite the explicit
stipulation of the Mandate that the Mandatory Power should do its
utmost to promote the well-being of the indigenous population"-an
implicit, nay, an explicit, assumption that this policy at that tirne was
not consistent with the promotion of the well-being of the indigenous
population. Similarly, in similar terms, the representative of France,
M. Garreau, in the same proceedings at pages 415-41 m6ade the following
statement, in which he said, interalia:
"(1)education should remain the prirnary concern of the mandatory
Power; (2)the restrictions imposed on various aspects of the life of
the indigenous population should
be progressively removed so far
as the situation permitted. It was in the interest of the South
African Government itself to pay the g-rcatest attention to the lot
of the indigenous populations and to promote their development,
first from the intellectual, and then from the political point of view.
Itwas the duty of the Government to ensure the representation of
natives in the administrative bodies of the Temtory.
Lastly, the Trusteeship Council should express the wish that
every sign of racial segregation should disappear as rapidly as
possible."
There was of course no dissent from any of these views expressed by
members of the Trusteeship Council. The Council members-the calibre,
cornpetence, expertise of whom 1have already made reference to-the
Council was expressing criticism of Respondent's then administration of
the Territory in so far as the political advancement of the inhabitants
was concerned on the basis of an axiomatic acceptance of the imper-
rnissibility of a poiicy of ailotting rights and burdens and duties to
individual inhabitants, on the basis of separation of groups or dis-
crimination among individuals on the basis of race. At no time did any
member of the CounciI purport in any way, or venture in any way, to
defend Respondent's policies in this respect, either on their rnerits or
on the basis of administrative or legislative discretipnvested in the
Respondent by Article z, paragraph r, or othenvise, and we will have
more to say about this question in response in due course, inter alh,
to the questions propounded by Judge Sir Gerald Fitzmaurice.
There was manifest agreement among members of the Trusteeship
Council that nothing in Article 2, paragraph r, ofthe Mandate inter-212 SOUTH WEST AFRICA
fered with its exercise of supervisory authority with respect to the
policieç pursued by the Respondent in connection with the sacred trust,
including that basic core of the sacred trust which is embodied in the
second paragraph of Article 2 of the Nandate. There was, on the con-
trary, rnanifest and explicit assumption taken by members of the
Tmsteeship Council that the over-riding obligation, to use the word of
this honourable Court in the 1962 Judgment, was contained in Article 2,
paragraph 2, of the Mandate.
The mcmbers of the Trusteeship Council were also highly critical of
Respondent's economic and social policy in the Territory. Again-and
this is asserted now sirnply to indicate the manner in whicli they exercised
their supervisory authority, the taçk which they cortceived they had,
al1 this, Mr. President, in the context of Respondent's contention on
rebuttal that these rnembers of the Trusteeship Council were not then
açserting or esercising a supervisory authority-the mernbers of the
Trusteeship Council, as I have said, were also highly critical of Reçpon-
dent's economic and socialpolicy in the mandated Territory, and, again,
the pattern was to seek furthcr information in 1947 because of the
inadequate and incomplete nature of Respondent's report in the ron-
ception of the members of the Council, and to criticize the policies during
the 1948 Session of the Council, after they had had the benefit of the
supplernentary information çubmitted by Respondent, pursuant to the
Council'srequest.
The Council's observations and criticisms in these areas of economic
and social policies, just as in the case of its views expressed with regard
to political obligations, were frequently made within the context of whal
the Applicants now describe as the international norm and international
standards of non-discrimination and non-separation. The premises upon
which the Trusteeship Council members proceeded at that time are
consistent with no other interpretation-for example, the Chinese rep-
resentative on the Trusteeship Council was one of those who sought
further information with respect to Respondent's basic reserve policy-
stated, in part, as follows:e Native Reserves, The Chinese deIegate
".. .on page 13, paragraph 54 [that is, of Reçpondent's report
for 19461it is stated: 'By 1924the framework of aterritorial Native
policy had been laid. Much,however, remained to be accomplished
within the Police Zone. The Natives were still scattered over the
country outside the reserves and they had to be gradually sorted
out and sent to the reserves selected for them.' [l'hat is quoted from
the report of Respondent, to which the Chinesedelegate waç addres-
sing himself. Now the Chinese delegate proceeds, having specific
reference to this sorting out proposition:] That is a point on which 1
definitely want more information, Why were these Natives sorted
out and sent to different reserves? 1s this a natural evolution oran
arbitrary segregation?
It seems to me that in a Trust Territory, as far as the indigenous
inhabitants are concerned, this type of arbitrary sorting out into
reserves is not conducive to the development of their capacity for
self-government." [United Nations, Trusteeshi$ CounciEO@cial
Records, 2nd Session, First Part, pp. 486-487.)
The Chinese representative had several questions also with regard to REPLY OF MR. GROSS 213
Respondent's policy of restricting freedom of residence in the Territory,
in so far as the so-calied non-white population is concerned, thus, at the
same meeting of the Trusteeship Council the Chinese delegate said:
". .. onpage 15, in paragraph 67 [that refersto the Respondent's
1946 report] it says:'In rural areas outside the reserves, there ia
considerable ppoulation working on farms and in mines. Their
residence and movementç are governed by proclamation in terms of
which employment on farms andlabour in mines are also controlled.'
That seems to indicate [says the Chinese delegate] tliat there is a
very rigid control of rnovcments and residence of the Natives. It
seems to me that that also calls for explanation.
In paragraph 68 [of the 1946 report] again the sarne question
arises. This paragraph states: 'In urban areas Natives reside in
locations controlled by local authorities.'It seems to me that in
certain rural areas there are reserves, and in urban areas there iç
control ofthe locations for Natives. Again there seems to be a ver
deliberate segregation." (United Nations, Trusleeshi* COW~~ Od
cialRecords, and Session, First Part, p.487.)
1will refer in due course. Mr. President, to the use in the Applicants'
pleadings of rvords suchas these rvhjch appear in the Trusteeship Council
reports; "deliberate segregation", "arbitrary segregation", these judg-
mental attitudes with respect to the policy.
Here, of course, we are dealing with the question of the scope of
authority being exercised by the Trusteeship Council, the areas of the
administration of the Territory with which the Council members were
concerning themselves, and the axiomatic assumptions they made with
respect to segregation and which, in their concept, justified adjectives
such as "deliberate" and "arbitrary" as conclusions drawn by them
from the policy.
Finally, the Chinese representative sought clarification with regard
to still another of Respondent's manifold and various ciassifications and
sorting-out procedures which were reflected in the supplemental report.
Quoting fqom page 25 of Respondent's report, the Chinese delegate
stated as follows:
". .. there is set out the system of passes for labour recruitsThe
classifications ar'A Boys', 'B Boys' and 'C Boys'. I should like to
have some clarification of these classifications." (United Xations.
Trusteeshi$ConcnciOl ficiaRecords, 2nd Session, First Part, p.488.)
This is cited at this point of the record, Mr. President, to demonstrate
the area of concern and the obviously implicit assumptions upon which
that concern was based.
The representative of Belgium, Mr. Ryckrnans, Honorary Governor-
General of the Belgian Congo, was particularly interested in Respon-
dent's land poIicy and how it affectedthe well being of the indigenous
inhabitants of the mandated Territory. On 12 December 1947 Air.
Rÿckmans asks the following question:
"ln connection with the land question, which is of obvious
importance to the indigenous inhabjtants, paragraph 237[of the
Respondent's report] states that the 'system of allotment of land
to settlers in South West Africa is similar to that obtaining .. .'.
1should like to know whether the land legislation of South Africa214 SOUTH WEST AFRICA
whch is applicable to South West Africa is consistent with the
mandate system and the principle that the interests of the popula-
tion should be the foremost consideration?" {United Nations,
truste es Chi^ncilOficialRecords, and Session, First Part, p. 489.)
The "allotment of land to settlers", to which he was referring of
course included, but was not limited to, the aspect of not permitting
nola-whitesettlers.
[Pzdblichearirzgof12 May 19651
&Ir. President and honourable BIembersof the Court, at the conclusion
of the Oral Proceedings yesterday I was referring to the statement of
Mr. Ryckmans, the Belgian representative, in the Trusteeship Council
in December of 1947 , hen the Council was considering the report sub-
mitted by Respondent with regard to its administration of the Territory
of South West Africa. Mr. Ryckmans had referred in his question to the
reference in paragraph 237of the report relating to the system ofallot-
ment of land to settlers in South West Africa, and 1had concluded yester-
day by pointing out that the system was apparently then based upon the
race or ethnic groupings of the population, or involved that element.
The significance of the question and, indeed, of the entire range of
questions to which the Applicants are addressing themselves in this con-
text does not in any sense involve the merits or otherwise of the policies
which may then have been in existence inthc terri ta.^O n thecontrary,
without opening up that question at all,which is quite irrelevanin this
context, the purpose of these references,as1have respectfully sought to
indicate to the Court yesterday,is todemonstrate three factors-(1) that
the Trusteeship Councilwas indeed asserting and exercising asupervisory
authority over the Mandate; secondly, that itwas in pursuance of that
task, considering the sacred trust obligations, notably those within Arti-
cle 2,paragraph z; and thirdly, that in so doing it was manifesting the
cIear axiomatic assumption, never questioned, that a policy of discrimi-
nation on the baçis of membership in a race or other group was not per-
missible or, at the very least, to understate it, wahighly questionable,
and that is an understatement. The context of Mr. Ryckmans' question
demonstrates also, in the Applicants' respectful submission, that even
where, as in that case, the legislation of the mandatory power itself is
applied in the Territory, pursuant to Article2, paragraph I,the over-
rIn that case the legislation of South Africa itself was apparently applied
in and to the Territory.
To revert to the main line of the discussion, however, the supervisory
powers exercised bythe Trusteeship Council in the years 1947 and 1948
were similar, closely analogous in al1major respects, to the methods of
enquiry, the range of enquiry, which were within the normal course of
activity of the Permanent Mandates Commissionitself during the League
ofNations period. The onIy distinction, and an important one, as was
pointed out by several members of the Trusteeship Council, as 1indicated
in an earlier stage of these remarks, was the absence ofa representative
of Respondent, and that of course was regrettable. hlr.Gerig, the deputy
representative of,the United States, as has been noted earlier, presented
a list of several questions in which the United States delegate to the
Trusteeship Council also sought further information £rom the Respon- REPLY OF MR. GROSS 2x5
dent in pursuit of the exercise of this supervisory function, and it will
be recalled that Respondent itself was cornplaining at that tirne of the
fact that the Trusteeship Council was purporting to exercise a super-
visory function. Among the questions which wereasked by Mr, Gerigwere
the following, interalia:
"What is the effectof the reserve system as outlined in paragraph
59 [of the Respondent's Report for 1946, that is] on freedom of
movement? SpecificaUy,have Natives the right to move freely into
or out of the reserves? IVhat is the nature of the pass laws? What
regulations govern the recrujtment of labourers for the mines and
fams of South West Africa, the wages oflvorkers, and the conditions
of employment? To what extent does the Native population of
South West Africa seek employment in the Union and what regula-
tions are now in effect for the protection of such labourers? What
conventions of the International Labour Organisation have been
ratifiedby the Union Government with respect to the territory?"
This is from page 491 ofthe report which 1 have cited yesterday.
lt wviUbe clear frorn the very range of this enquiry that the heart of
the Mandate-Article 2, paragraph 2-was being subjected at that time
,to scrutiny, and the range of questions being addressed to Respondent
by members of the Trusteeship Council did indeed go to the very heart
of the Mandate. Article z,paragraph 2.
In 1948,after receipt of the Respondent's supplementary report, the
members of the Trusteeshp Council continued their critical observations
on and supervision of Respondent's administration of the Tenitory. Thus
the response given by the South African Government to Rlr.Gerig's
question, which 1have just quoted in part, regarding the applicability of
international labour conventions in the Territory clearly was not at al1
satisfactory to the representative ofChina, Mr.Liu Chieh.On 23 July 1948
the delegate of China stated as follows-this is from page 412 of the
records of the Third Session of the Trusteeship Council; he-
"was surprised that the Governrnent of the Union of South Africa
had not offered any expianation of the fact that not a single interna-
tional labour convention had been applied in the Territory of South
West Africa. He also pointed out that native labour was recruited
in South West Africa to work in goId mines in the Union of South
Africa, and expressed the opinion that the Trusteeship Council
should be informedwith respect to working conditions in the mines
[in South Africa, that is], inasmuch as the Union of South Africa
had not ratified the International Labour Officeconventions on the
recruitment of native labour."
Again, this is cited to indicate the range and penetration of enquiry into
the affairs of administration and administration in the Territory.
Throughout, of course, the observations made by members of the
Trusteeship Council at that time were grounded on the basic idea that
the Mandatory was obliged, and this was assurned apparently as axio-
matic-it was never questioned or discusçed-to apply a standard of
non-discrimination on the basis of membership in a group or classor race ;
the questions could have been relevant to no other fundamental assump-
tion. Later in the course of these arguments the Applicants, particularly
in the context of the questions addressed by Judge Sir Gerald Fitzmau-
rice, will address themseIves further to the processes by wliich the in-216 SOUTH WEST AFRICA
ternational standards and the international legal nom have evolved, as
well as the content and applicability of such a norrn and such standards
to the Mandatory. At this point we find,however, a clear manifestation of
the responsible United Nations organ, the Trusteeship Council, operating
under a resolution of tlie General Assembly, asserting and exercising a
function of supervision over the Mandate which was conceded, now, by
the Respondent to have survived the dissolution of the League in the
view of the then Government of the Respondent, and in the course of its
examination of the report expressing views and asking questions, positing
the assumption that the Mandate obligations were to be read in the light
of a standard which did involve the question of allocating burdens,
status, privileges, duties upon the basis ofmembership in a group, par-
ticularly here on a racial basis.
FilrLiu Chieh, the Chinese delegate, speaking imrnediately after the
rernarks of the Philippine representative which 1 have already cited,
stated that-this is frorn page414 of the same proceedings:
"He had not dealt ~viththat aspect ofthe question [that is,racial
aspects of the liespondent's policy] because he thought that the
Second Session of the Council had duly stressed the instances of
remaining injustices. They included the prohibition for natives to,
own cattle, which was the main source of income of a country, their
segregation in reserves, the restrictions on their freedom of move-
ment, the restrictions conceining land ownership by natives, etc.
Iliose were fundamental rights, and the Council would fail in its
duty ifits report to the General Assembly did not clearly draw the
attention of the Union of South Africa to the need for granting such
elementary rights to the indigenous population of the territory it
administered."
That is from page 414 of the proceedings.
Finally,on this aspect of the matter, Mr. President, the Trusteeship
Councit was critical of the Respondent's educational policies in the
Territory. Again, this reference is made not to place these policies before
the Court-clearly not at this stage-but to indicate the basis upon
which the members of the Council vieïved the Kespondent's obligations
and proper performance of its responsibilities.
The representative of the United States of America, Illr. Francis Sayre,
said that-and 1 quote now from the same record at page 411-
"As to education, it [that is, the Council] might also cal1attention
to the disparity between the amount spent per chiId in European
schools and the amount respectively per native and coIoured child,
and point out that a sizeabIe increase in the arnount earmarked for
the education of African children would seem to be indicated.
With respect to question 41 on page 210 [that is, of the report],
to which the Union of South Africa had replied that the reason why
there were no secondary schools for Africans was because they were
not able to qualify for the courses, the Council might state that it
appeared desirable to raise the standard and increase the number of
prirnary schools."
Again, this isa penetration into the substance of the obligations im-
pIicit in Articlez, paragraph 2.
Insum then, &Ir.President, these observations to which Ihave referred,
as well as the official observations submitted by the Trusteeship Council REPLY OF MR. CROSS 217
to the General Assembly in its report, in pursuance of the supervisory
powers authorized by the General Assembly's resolution, marked the
"first stepM-as the French representative on the Council put it-in the
direction of international supervision over the Territory of South West
Africa. That is from the French delegate's remarks at the Second Ses-
sion, FirstPart,of the Trusteeship Council, page 480 of the officia1record.
It was, as 1 have said, a supervision analogous in al1material respects
to that exercised by the Permanent Mandates Commission, and close
attention was directed to Respondent's poiitical, economic, social and
educational policies, al1within the context and on the basis of the a'rio-
matic assumption of the application of a standard of non-discrimination
and non-separation. There was no defence of Kespondent's thcn policies
in the Trusteeship Council, either on their rnerits or on the basis of the
discretionary powers vested in Respondent pursuant to Article 2, para-
graph I, of the Mandate. There was no reference, parenthetically-and
1shall have more to Say about this in response to one of Judgc SirGerald
Fitzmaurice's questions-to the phraseology of Article 2, paragraph 1,
referring to the admiriistration of the Territory asan integral portion of
the Kepublic; nor to the phraçeology in Article z, paragraph I,that the
mandatory power was given full power of administration and legislation
over the Territory.
The questions were never posed or raiçed in the Trusteeship Council in
that form in the course of their penetrating examination of the entire
life and administration of the Territory. This will be dealt with in more
detail subsequent ly,
The clear emphasis was on Respondent's obligations under Article 2,
paragraph 2,of the Mandate, and, none ofthe Trusteeship Council mem-
bers, hIr. President, undertook or referrcd to an inquiry concerning Re-
spondent's intentions or good faith. The one theme that ran throughout
the Council was the obligation, and this was the one central theme, to
apply a non-discriminatory policy, a policy which did not discriminate
and which did not separate on the basis of membership in a group. This
wasthe thrust of the Tmsteeship Council's supervisoryobservations and
it has been the thrust of United Nations supervision over the Territory
ever since.
As noted previously, Rlr. President, the issue at the United Nations
during the crucial years relevant here, that is to Say 1947 and 1948w ,as
not whether South West Africa should be subject to international super-
vision, but was related to the question of the appropriate form of that
supervision. Most States wanted, hoped, expected, despite disclaimers
by Respondent, that South West Africa would be placed under trustee-
ship. It was a forlorn hope but one which was clung to, and is manifest
throughout the debates of the period, and marked many of the diplornatic
attempts at persuasion which Respondent now would sometimes seek
to interpret against the spirit of the proponents.
\Sien trusteeship seemed to be out of the question, then the United
Nations insisted upon exercising supervision over the Mandate. The
only other alternative available to it would have been, or might have
becn, the apphcation of rcporting requirements pursuant to Article 73 (8)
of the Charter. Ashas been pointed out, however, at an earlier stage, in
response to thequestion propounded by Judge Jessup, no attention was
paid, no consideration was given, to tIiis possibility, so far as the Apph-
cants have been able to determine from the record.z 18 SOUTH WEST AFRICA
The confirmatory of this staternent, which the Applicants have just
respectfully presented to the Court, is that it is to be noted that the
South West Africa question always has been treated as a separate item
on the agenda of the General Assembly, and has never been discussed,
so far as the Applicants have discovered from a careful reading of the
records, within the contest of non-self-governing territories under Chap-
ter XI of the United Nations Charter. And, as 1 have said earlier, the
reports submitted by South Africa were sent by the General Assembly
to the Trusteeship Council, as explained by the representative of
France-this was at the meeting of the SecondSession, First Part, of the
Trusteeship Council,reported at page 480 of the officia1records-the pro-
cedure had originally been proposed by the French representative M.
RenéMayer because, he said-
". ..he feared that to entrust the examination of the report to the
Fourth Committee would convey the impression that the General
Assembly regarded the Territory, which was formerly under South
African mandate, as a non-self-governing territory and not as a trust
territory, or as a territory that should be placed under the tmstee-
ship systern".
1 have made parenthetical reference at an earlier stage to the phrase
"formerly under South African mandate", a phrase used on several oc-
casions, which can only be mystifying under the circumstances but which
is irrelevant, in any event,by reason ofRespondent's concession that its
Government regarded the Mandate as having survived the dissolution
of the League.
The third confirmatory indication of the accuracy of the Applicants'
statement to the ef£ectthat the question had never been raised concern-
ing appLicability of Article 73 to the Territory, in debates in question,
is that the Fourth Committee itself seemed to beanxious to avoidcreating
any basis for an impression that the Territory should be reduced to the
status ofa non-self-governing territory within the meaning of Chapter XI
of the Charter. This was seen most cIearly perhaps in the Fourth Com-
mittee in 1949, when draft resolutions were circulated proposing that
the Court be asked for an advisory opinion on the status of the Territory
question-"1st ASouth West Africa a territory to which the provisions of
Chapter XI of the Charter apply ?" This is in thGeneral AssemblyOficiaal
Records,the Fourth Session, Plenary, Annex, at page 109.
The question would have been asked in that fom-it was never sub-
mitted, of course-in case of a negative reply to the question whether
the Union of South Africa, as itwas then known, was Iegally obligafed to
place South West Africa under the trusteeship system. Opposition
to the presentation of this question, regarding the application of Chapter
XI to the Territory, came almost at once. Thus, the representative of
the Dominican Rebublic said :
". ..the Charter visuaIized the possibility of placing former colonies
under the TrusteeshipSystem but it did not provide that former man-
dated territories should be turned into colonies.The mandate system
had been instituted precisely to avoid such a possible occurrence.
For that reason, he considered that the provisions of Chapter XI
of the Charter were not applicable." (C.A., O.R., Fourth Session,
Fourth Committee, p. 276.) REPLY OF MR. GROSS 219
Similarly, the representative of Brazil stated heawould voteagainst
this clause in the proposed resolution-that is, the question 1 have re-
ferred to-because the acceptance of such a clause, he said, "would be
tantamount to transforming a mandated territory into anon-self-govern-
ing territorand handing it over to the Union of South Africa". That is
frorn page 278 of the same proceedings.
And in the plenary debate,the representative of Brazil stated that his
delegation-
"... had thought sub-paragraph (c) [this was the Chapter XI ques-
tion] was extremely dangerous, as by referring to Chapter XI of
the Charter the General Assembly would practicaiiy rccognize that
the Union of South Africa had a right of sovereignty which in point
of fact it had never possessed over the mandated territoryof South
West Africa". (C.A., O.B.,Fourth Se~ion, Plenary, p. 530.)
And in the Fourth Cornmittee the proposa1 to submit the question
regarding Chapter XI to the Court was defeated by a substantial majority
as will be seen from the Alznex to the Fourth Session of the Plenary
Session ofthe GeneralAssembLy, OficialRecords, atpage 109.
Of course,Mr. President, the Applicants would not venture toexpress
a view as to the visd door othenvise of the decision to refrain frorn sub-
mitting this question to this honourable Court. The views just quoted
do, however, evidence feeling which was widespread arnong States that
the supervision of the mandated territory should not be reduced to the
minimal level applicable to the general run of non-self-governing terri-
tories under Article73 (e).These views reflected the conviction that the
United Nations had a special supervisory responsibility with respect to
the Territory, different and distinct from the responçibilities exercised
in regard to non-self-governing territories in general, on the one hand,and
tmsteeship areas,on the other.
The Tmsteeship Council in its discussion of the South West Africa
question in 1947 and 1948 likewise avoided giving the impression that
the rnandated territory was to be treated as a non-self-governing terri-
tory within the meaning of Article 73 (e) of the Charter. In the same
proceedings, the delegateof China in 1947 , r.Liu Chieh, asked, inthe
course of a discussion of the standard by which South Africa's report
should be judged:
"What is the yardstick in this case? ifTeare not examining ias a
report on a Trust Territory, because from that point of view we
rnight Say that the report does not conform to the Questionnaire
we sent out. Ureare not examining it as a report on a Non-Self-
Governing Territory under Article 73e of the Charter, because we
agreed that over those Non-Self-Governin Territories the metro-
politan Powers exercise more sovereignty t7 an the Union of South
Africa has over this mandated Territory. The Government of the
Union of South Africa itself states that it wilIcontinue to administer
the temtory 'in the spirit of the mandate' so the proper criterion
in this case is whether it measures up to that mandate; othenvise
we would have no criterion by which to measure it." (Trzcsteeship
Couneil, Oficial Records, 2nd Session: First Part, p.502.)
Therc was no dispute, manifest in the record at least, concerning the
view of the Chinese delegate that the report shouId not be examined as
if it were a report from a non-self-governing territory within the meaning220 SOUTH WEST AFRICA
of Article 73 (e) of the Charter. There was, likewise, no dispute on this
point in the Trusteeship Council Sessions the following year-1948.
The representative of France said:
"Article 73e could not be invoked in support of the Council's com-
petence as regards South West Africa because that Article referred
exclusively to non-self-governing territories." (Trusteeshifi Council,
OficialRecords, Third Session, p. 409.)
The Soviet representative, on the same day, at the sarne page of the
record said that :
"Paragraph e of Article 73 dealt with information concerning
territories other than those mentioned in Chapters XII and XII1 of
the Charter, that is, non-self-governing territories and South West
Africa did not fa11within this category."
Now, it has been noted, Mr'.President, that no question ever arose of
the General Assembly explicitly rejecting or explicitly passing upon the
application of Article 73 (e) to the territory for South West Africa.
Careful study of the records seems to indicate the correctness of that
statement. Respondent never itself took the step of initiating the inclu-
sion of the Territory in any list of territories to be considered as falling
within the scope of Article 73(8).Accordingly, there was no request from
the side of the Respondent to be passed upon by the Assembly, to be dis-
cussed or to be accepted or rejected.
Respondent's behaviour, in this respect at Ieast, was consistent with
that of other States administering mandates. No mandated territory has
ever been included in the official enumeration of non-self-governing terri-
tories for purposes of the reporting systern under Article 73 (ej of the
Charter. At most, as has been indicated, earlier in these proceedings,
the Respondent undertook to supply information likethat required under
this provision of Chapter XI but refraincd from adding the Territory of
South West Africa to the list of non-self-governingterritories.
It is true that the preponderance of opinion in the General Assembly
coincided with that expressed by the Respondent, that the Territory does
not faIlwithin the category ofnon-self-governing temtories for purposes
of accountability under Article 73 (e). îhat view has been expreçsed in
these Oral Praceedings and may, no doubt, be further elaborated, per-
haps, in response to Judge Jesçup's question.
In any event, it is equally true thatin the years up to 1950, as there-
after, there \vasno intimation by a significant nurnber of UnitedNations
filembers that South Africa should be free from the obligation of inter-
national accountability for its administration ofthe Territory.
The Iiistory of this period, to the contrary, yields decisive evidence
that, even though South West Africa had not been included either in
the trusteeship system or in the scheme or Iists of more restricted report-
ing for information purposes under Chapter XI, reports from Respondent
concerning itç administration of the rnandated territory were considered
requisite by the United Nations for the purpose of examination, pursuant
to a supervisory function. And, nevertheless (and now wc turn to an
examination of a matter to which Respondent devoted much time and
attention in the course of its rebuttal). in the faceof the evidence Re-
spondent still insists that between 1947 and 1949 (and in those years)
25 States expressed the view, clearly or by implication, as Respondent
puts it, that in the absence of a trusteeship agreement there was no obli- REPLY OF MR. GROSS 221
gation, on the part of a mandatory power, to report to and accept the
supervision of the United Nations. It becomes necessary, therefore, in
view of the decisive importance of the question of administrative super-
vision, to examine Respondent's technique and procedure with regard to
this matter. Respondent has employed a singuiar technique in building
up this iist of 25 StatesSix of the 25 were incIuded mereiy on the basis
of their signature of the report of the United Nations Con~missionon
Palestine. That is the source of their qualification for listing. Inasrnuch
as that report, ifanything, points in precisely the opposite direction-or
at least the Applicantshave submitted considerations to the Court which,
in their view, justify such a statement-the inclusion of tlicse six States,
on the basis, reaIly means nothing whatever. The Applicants would be
more justified, indeed, in listing on their side of the case the25 States
which voted against asking the Court for an advisory opinion conceming
the cornpetence of the General Assembly with respect to the mandated
Territory for Palestine. But the Applicants, respectfully, do not see
validity in such a statistical technique.
Kespondent's remaining 19 States require consideration as to their
eligibility for retention on the list. Three of these, Cuba, India and
Uruguay, were not consistent one way or another, Inasrnuch as they
occasionally expressed views clearly contrary to the position now held
by the Respondent, they must be deleted. The Applicantsshould,perhaps
add them to its own list of 25,which would raise the Applicants' list to
28, on Respondent's statistical approach.
Respondent also insists upon including the United States on its list,
now reduced to 16 States, but justifies this on the basis of an incomplete
rendition of a staternent by Afr. Gerig before the Trusteeship Council,
taken out of context, and this matter has been examined in an earlier
stage of this argument.
Mr. Gerig, as has been pointed out, stated that he was unclear in his
mind on the issue, he wished to have the views of other members, and
when the United States Government expressed its considered and
definitive position on the issue, in a written statement submitted to this
honourable Court in 1950, it was a position strongly supporting the
view that Respondent is obligated to render accountability to the
United Xations.
Respondent dismisses the United States' view submitted to this Court
on the following basis, in the verbatirn record, VIII, at page 501-the
Respondent characterizes the written staternent of the United States
submitted to this Court as-
"... pure, special pleading, of the very same kind that we find in
the arguments of the Applicants now being addressed to the Court.
Itwas an ex postfacto effort to achieve a desired resul..."
Mr. President, it is not clear, from the terrns of Respondent's charge,
who is intended to be the culprit and who is the victim of guilt by
association between the Applicants and the United States position. But,
barring the United States from the list, the list is now reduced to 15.
Respondent concedes that two of the States left on its list, namely
China and the Philippines, were, as it says, "somewhat inconsistent". As
has been shown, both these States actually considered that the Trustee-
ship Council should examine the report submitted by Respondent as if
it were a report from a trust territory. and the Philippines Govemment222 SOUTH WEST AFRICA
thought that petitions should be accepted by the Council. It is obvious,
therefore, that, withn the most relevant context, they expressed or
indicated the view that the United Nations had, indeed, supervisory
powers over South West Africa, and that the Trusteeship Council was,
and should be, exercising them, and this, may the Court be reminded,
was precisely the basis of the objection then made by Respondent's
Government for the operations of the Trusteeship Council in this sphere
at all.
If China and the Philippines are deleted from the list of 25, the list is
down to 13aiiegedly "consistent" States, in the word of the Respondent.
Respondent has devoted considerable time during its rebüttal to an
examination of this matter. Even the "consistent States", so called,
were hardly consistent, if one examines the record.
Respondent lists New Zealand, for exarnple. Yet, as already noted,
in the 1948 Trusteeship Council debate, New Zealand States as fol-
lows :
"It wâç the Council'sduty to comply with the GeneralAssembly's
request and to supervise the treatment of the inhabitants of the
Territory to the best of its ability, within the limited means at its
disposal." (Trusteeship Commissiola, Oficial Records,Third Session,
P. 409-1
The Soviet Union has won its place on Respondent's list. The list,
as will be recaiied, is compiled both with reference to South West Africa
and to other mandates. Yet, the Soviet Union açserted that the General
Assembly had legal authority under Article ro of the Charter to exercise
supervisory powers over the Palestinian Mandate and, of course, the
Assembly did so. This we have discussed fully. If New Zealand and the
Soviet Union are de-listed, II States remain. Respondent lists Pakistan
among the remaining II.
In the Fourth Committee in 1948, the representative of Pakistan,
Mr. Chaudhury, spoke as follows according to the çummary record:
"The Mandates Commission of the League of Nations had had
supervisory powers for twenty years. Reports had been submitted
annually by mandatory powers and scmtinized with jealous care
by the Mandates Commission. The League of Nations had been
replaced by the United Nations which had taken over the functionç
formerlyexercised by the League; several provisions of the Covenant
of the League of Nations relating to mandated territories had been
included in the Charter. ..The Union Government could not claim
its rights and reject its obligations."
Parenthetically, the language employed then by the Pakistan deiegate
is remarkably similar to the language employed by this honourable
Court in the 1950 Advisory Opinion, with respect to the matter of
claiming rights and rejecting or denying obligations. The Pakistan
delegate went on to Say:
"When the League of Nations had gone out of existence had there
been any provision that the Territory would revert to the Union of
South Africa."
And then a short while later, in conclusion, Mr.Chaudhury stated that-
"The United Nations should retain the responsibility of con-
trolling the mandated territories and that the Union of South Africa REPLY OF MR. GROSS 223
was in no way justified in defying the repeated recommendations
made to it to submit a tmsteeship agreement."
This was the context, of course, of the discussions of the times-thwas
from the Fourth Committee, Third Session, pages 315-316,in the General
Assembly OficiaE Records.
In fairness to Pakistan's position perhaps Respondent will itself agree
to de-list Pakistan. The list, however, on this basis is now reduced to
ten-one of these is Respondent itself. This however, is a tenable listing
only if the delegate of Respondent to the Preparatory Commission,
Mr. Nicholls, is ignored, as well as the terms of its ApnlI 46 Pledge,
but we will permit Respondent to list itself if it wishes. 8f the nine
remaining on the list, excluding the Respondent, France is listed as a
consistent State, but France, evenin the absence of a tmsteeship agree-
ment, urged the submission of reports by Respondent. Thus. the French
delegate to theFourth Committee, M. Garreau, stated that the Respon-
dent's representative, and I quote from the Fourth Session, Fourth
Committee, at page 16, of the Generu1 Assembly Oficial Records, that
Respondent's representative-
"... had stated that his Government would continue to administer
South West Africa 'in the spirit of the Mandate'. [M. Garreau]
would have preferred it if he had also said 'and in accordance with
the letter of the Mandate', for it was regrettable that the Union
Government no longer deemed it necessary to transmit regular
information as provided in the mandate system. He hoped that the
Government of the Union of South Africa would review its position
and start transmitting information again,"
This was the summary record of the French delegate's statement in the
Fourth Cornmittee.
Furthermore, the statement made by M. Garreau in the Trusteeship
Council upon which Respondent placed reliance in its rebuttal argument
in no way supports Respondent's position or confirms the validity of
listing France among the 25, as has already been dernonstrated by
specific reference to the remarks made by the French representative on
the Trusteeship Council,which wehave put into the record at a somewhat
earlier stage.
The French delegation was merely insisting upon strict compliance
with the terms of the General Assembly resolution, pursuant to wkich
the Trusteeship Council waç exercising a çupervisory function and
examining the reports subrnitted by Respondent at that time. The
remarks of the French representative, M. Garreau, in that context
cannot, it is submitted, be taken as evidence that France denied the
of supervision over mandated territories or that the hlandatory was not
subject to the supervision, thus asserted and thus exercised, in which
the French delegation on the Trusteeship Council took part and played
an important role.
This far, Mr. President, the Applicants consider that the list ma
fairly be reduced to eight allegedly consistent States. As already notel
it was proposed in 1947that the issue of the General Assembly's legal
competence over the mandated Territory of Palestine be put to the Court
for an advisory opinion. This proposa1 was rejected in view of the con-
viction expressed in the ad hoc Committee by a large rnajority of the224 SOUTH WEST AFRICA
members, that there'was no room to doubt the power of the Committee
and of the General Assembly in this regard. Significantly, the Applicants
submit, arnong the States which voted "not to ask the Court for an
opinion on the issue" were Australja, Canada and Costa Rica-three of
the rernaining States on Respondent's list of eight. If these States had
wished to challenge the Assemblp's cornpetence in the Palestine case,
they rnight have been expected to support the request for an advisory
opinion. However, I citethis merely to indicate the speculative nature of
the enterprise upon which the Respondent has embarked in devising by
this method a list of25 States. Mr. President,1 believe the matter can be
dropped there.
In sum, al1that Respondent's list demonstrates is that confusion and
inconsistency, of course, attendedthe anomalous situation created by the
single, residual Mandate other than Palestine itself, which confronted
the United Nations with the necessity for making a decision which it
hoped it would never have to make but which it possessed power to rnake
if necessary, and which it did exercise, when it becarne necessary. And
this situation of doubt, confusion and ambiguity, of course, led to the
submission by the General Assembly of its request for an Advisory
Opinion in 1950, and, as the Applicants took the liberty of remarking at
an earlier stage of these proceedings, it must be unique in the annals of
judicial procedure that confusion, which explained why recourse was
had to judicial process, is itself asserted as an argument against the
conclusion of the Court reached in 1950, upon the basis of the sub-
mission of the General Assembly.
Respondent disputes the contention that the General Assembly
resolutions 141 (II), 227 (III) and 337 (IV), calling for reports from the
Respondent, were designed to establish international supervision over
the mandated territory.
This dispute is created by aprocess which, the Applicants believe, may
fairly be described as parsing theords of the resoIutions so as to squeeze
out any obligation to submit to international supervision. The acid test
of Respondent's analysis of the resolutions in question, it is submitted,
would be to examine the reaction of the United Nations in so far as
supervision is concerned. Ihen Respondent made its decision in 1949 to
send no further reports on its administration of the Territory, the
reaction was swift and its direction was clear. The United Nations
decided to hear in the Fourth Comrnittee a petitioner from the Terri-
tory-this was the response. Having had information in the form of
reports cut off, the Fourth Committee assurned even greater supervisory
authority than had previously been exercised in the Territory-greater
in the sense of form and procedure.
Several statements made by representativeç in the Fourth Comrnittee
debates reveal the importance attached to hearing a representative of
the inhabitants of the Territory. For cxample, the delegate of Cuba at
that time stated-this was in the Fourth Session of the Fourth Com-
rnittee, page 222 of the General AssemblyOficial Records:
"He agreed with the French rcpresentative that the point was
not expressly provided forin the Charter, but he did not think that
the Cornmittee would be creating adangerous precedent. \mat did
constitute a dangerous precedent in the Cuban view at that tirne
was the fact that the General Açsembly had not received any
further information on the territory of South West Africa, and that226 SOUTH WEST AFRICA
The system of supervision, accordingly, was actualiy extended by the
United Nations over the Territory in the face of Respondent's decision
to cease subrnission of its reports. This, in turn, sheds light on the
original purpose of the resolutions of the Assembly, calling for the
submission of reports, and in the Applicants' view demonstrates that
the General Assembly did indeed attempt through those resolutions to
establiçh a system whereby Respondent's accountability to the United
Nations would be made effective.
an interpretation of the General Assembly'sresolution-thein relationship,
as 1have pointed out, between the cessation of reporting and the decision
to hear petitioners. The General Assemblymust have viewed the examina
tion and judging of reports as an exercise of supervisory powers for the
Assembly, and its Committee dealing with this subject, the Fourth
Cornmittee, could hardly be said to have suddenly seized supervisory
powers, upon being deprived of reports. The discussion in the Fourth
Corninittee, of course, doeç make itclear that the systern of super-
vision was being adapted to the changing requirements of supervision
by reason of the refusa1 of the Respondent to submit reports. Thus,
the international supervision of South West Africa, which had begun
with the refusai of the General Assembly to accede to the termination of
the Mandate in 1946, which continued througfi the examination and
judgment by the Trusteeship Council of the reports submitted by the
Respondent, developed still further in 1949to the point at which the
Fourth Committee of the GeneraI Assembly granted hearings to a
petitioner from the mandated Territory.
This process of development was begun with the consent of the
Respondent manifested in 1947and was continued in the face of strong
opposition by Respondent after that date, Of course, Respondent today
denies this version of its actions in 1947. This is an issue in dispute
between the Parties. The Applicants rely with conviction upon their
record of those proceedings, particularly in the light of the Advisory
Opinion of 1950 of findings with respect to them, and no new facts or
any other kind of facts have been submitted to the Court which would
justify the expunging Or the obliteration of the 1950 Opinion from its
status as judicial authority.
Respondent's position in the cases at bar is counter to the historical
development of the international supervisionof dependent areas. Itis aii
evolution of historic proportions which began with the establishment of
the mandates system of the League itself, Respondent's present position
reverses its earlier position, to wit, that the Mandate was, according to
the view of its Government of the day, from the legal point of view, in
full force and effect notwithstanding the dissolution of the League.
Respondent's position reverses this acknowledgrnent, and indeed the
itself, that, in the absence of theermanent Mandates Commission, andn
until other agreed arrangements were concluded-and 1 quote once
more and finally from the words of Respondent's representative to the
Preparatory Commission, Mr. Nichollç-"countries holding Mandates
should have a body to which they could report". Such a proposa1more-
over, as has been noted, was made by Respondent's representative in
the Preparatory Commission in the context of a debate concerning a
constitutional question involving the proper interpretation of the United REPLY OF MR. CROSS 227
members Choftthe Preparatory Commission that the tmteeshipng voicesystern
should be accelerated, and that the Trusteeship Council should be
established assoonas possible. Itwasin this context that the Kespondent
along with other mandatory powers-two others expressly-urged the
creation of a temporary commission and interim machinery, to which
the Respondent, as also the other mandatories holding mandates, would
have a body to which they could report.
Mr. President, the Applicants with respect have pointed to the risk
that the central issue here involved may be lost to sight in the haze of
events which occurred 15to 20 years ago, and in the maze of argument
which developed, necessarily so, concerning the interpretation of words
and phrases quoted or passed without due regard to the context in
which they were spoken, or the purposes for which they were uttered.
The central issue pivots upon an elementary proposition which marks
the very jurisprudence of this Mandate, to wit that international account-
ability is, in the wordç of this honourable Court in the 1962Judgment,
of the very essence of the Mandate.
It may be convenient at this point of the record and with the hon-
ourable President's permission, to set forth .here, as a preliminary to the
next series of the legal argument to follow, to set forth here what I have
taken the liberty of referring to asthe jurispmdence of the Mandate;
to set forth certain basic propositions which are compnsed within the
law of the case, and which are the very foundation stones of the Apph-
cants' position, with regard to the Respondent's obligation to submit to
the sacred trust.inistrative supervision, and to judicial protection for
The following excerpts from the Advisory Opinion of 1950 may be
of particular relevance in this connection and, with the Court's permis-
sion, 1 would like to set them for-h:
"It is now contended on behalf of the Union Government that
this Mandate has lapsed, because the League has ceased to exist.
creatednbynArticle 22sof the Covenant and by the Mandate itself.ion
The League was not, as alleged by that Government, a 'mandator'
in the sense in which this term is used in the national law of certain
States. It had only assurned an international function of super-
vision and control ...The object of the Mandate regulated by
international des far exceeded that of contractual relations
regulated by national law ... The international rules regulating the
Mandate constituted an international status for the Territory
recognized by al1the Members of the League of Nations, including
the Union of South Africa." (I.C.J. Reeorts 1950,p. 132%)
Again on page 133of the same Opinion there is a brief statement:
"The authority which the Union Government exercises over the
Territory is based on the Mandate. If the Mandate lapsed, as the
Union Government contends, the latter's authority would equally
have lapsed. To retain the rights derived from the Mandate and
toThese international obligations, assumed by the Union of South
Africa, were of two kinds. One kind was directly related to the
administration of the Territory, and corresponded to the sacred SOUTH WEST AFRICA
trust of civ~zation referred to in Article22 of the Covenant. The
other related tothe machinery for implementation, and \vas closely
linked to the supervisionand control of the League. It corresponded
to the 'securities for the performance of this trust' referred to in
the same article." (Ibid., p. 133.)
One more quote from the Opinion to set and pour into the mould of
the jurisprudence of the Mandate, the history and antecedents of the
present phase of these proceedings:
"These obligations represent the very essence of the sacred trust
of civilization. Theiraison d'bre and original object remain. Since
their fulfiIment 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 popula-
tion 'to have the Territory administered in accordance with these
.niles depend thereon." (Ibid.)
Finally, from the 1950 Opinion, I quote fror nage r36:
"The obligation incumbent upon a mandatory State to accept
international supervision and to submit reports is an important part
of the Mandates System. When the authors of the Covenant created
thissystem, they considered that the effective performance of the
sacred trust of civilization by the mandatory Powers required that
the administration [requiredthat the administration] of mandated
territaries shoulbe 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. It cannot be admitted that the
obligation to submit to supervision has disappeared merely because
the supervisory organ has ceased to exist, whenthe United Nations
hasanotherinternational organ performing similar, though not iden-
tical, supervisory functions."(Ibid p.,136.)
Mr. President and Members of the honourable Court, these are the
words and the findings of this Court;they are not contentions submitted
by the Applicants, although the Applicants could hardly findbetter words
in which to submit their contentions.
In the 1956Advisory Opinion, the Court set forth as follows, at page
28, as part of the jurisprudence of international supervision,abasic ob-
ligation:
"The general purport and meaning of the Opinion of the Court of
II July 1950 is that the paramount purpose underlying the taking
over by the General Assembly of the United Nations of the super-
visory functions in respect of the Mandate for South West Africa
formerly exercised by the Council of the League of Nations was to
safeguard the sacred trust of civilization through the maintenance
of effective international supervision of the administration of the
hlandated Territory." (I.C.1. Reports1956,p. 28.)
And then 1vecorne to 1962 and to references which would appear to
suffice to consoIidate the record of the mandate jurispnidence in this
context :
"The essential principles of the Mandates System consist chiefly
in the recognition of certain rights of the peoples of the underdevel- REPLY OF MR. CROSS 229
oped territories; the establishment of a regime of tutelage for each
of such peoples to be exercised by an advanced nation as a 'Manda-
tory' 'on behalf of the League of Nations'; and the recognition of
'a sacred trust of civilisation' laid upon the League as an organized
international community and upon its Member States. This system
is dedicated to the avowed object of promoting the well-being and
development of the peopks concerned and is fortified by setting up
safeguards for the protection of their rights.
by its authors and as entrusted to the respective organs concofvthe
League and the Member States for application. The rights of the
hlandatory inrelation to the mandated temtory and the inhabitants
have their foundation in the obligations of the Mandatory and they
are, so to speak, mere tools given to enable it to fulfilits obligations,
Thefact isthat eachMandate under the Mandates System constitutes
a new international institution, the primary, overriding purpose of
which is to promote the well-being and developrnent of the people
of the territory under Mandate." (I.C.J. Reports 1962, p. 329;)
Now from page 336, the final quote:
"The administrative supervision by the League constituted a
normal security to ensure full performance by the hlandatory
of the 'sacred trust' toward the inhabitants of the mandated
territory, but the specially.assigned role of the Court was even more
essentid, since it was to serve as the final bulwark of protectioby
recourse to the Court against possible abuse or breaches of the
Mandate."
Mr. President, in contrast to the foregoing judicial interpretations
and holdings of this honourable Court, with regard to the significance
and scope of the role of international supervision in the mandate scheme,
stand the following contentions of the Respondent, which are cited
illustratively as several arnong many similar contentions.
Mr, President, in the context of the lapse of the Mandate as a whole
argument in the Rejoinder, Respondent cornes to grips with the real
issue of the survival or not of international supervision, but the Respon-
dent does soin an extraordinariiy tentative and diffident manner in the
light of the jurispmdence of the Mandate to which 1 have referred. In
the Rejoinder, V, at page 59, the Respondent states:
"It cannot be said, and Respondent has not contended, that the
element ofLeague supervision possessed a quality of such absolute
essentiality fhat the whole Mandate became objectively or rnechani-
cally inoperable upon the dissolution of the League. Indeed. most of
the obligations under the Mandate are quite capable of existence
and performance without any supervision."
And then, later on the sarne page, Respondent states as follows:
"Here again it must be conceded that the substantive urposes
for which the mandate institution was created can still be a vanced,
even in the absence of supervision. But be that as it may, the ques-
tion whether the Mandate as such isto be regarded as stilbeing in
force,in such areduced form, is one the answer to which must de-
pend on the intentions of the authors of the Mandate."
And then Respondent continues: SOUTH WEST AFRICA
"However, inasmuch as the future dissolution of the League was
in fact not contemplated at the stage of its foundation, it follo~s
that the authors of the Mandate could not have had any actual
intention regarding the continued existence or othenvise of the
Mandate in the event of such dissolution. The present enquiry
must, therefore, relate to their presumed rather than their actual
intentions. And the main guide to the presumed intentions of the
authors of the Mandate in the respect under consideration is afforded
by an appraisal of the role intended to be played by, and degree
of importance attached to, League supervision as an element in the
Mandate System."
This is quite correct, in the Applicants' view.The importanceof the inter-
national supervision obligation, does indeed shed Iight upon, and in fact
is the basis for, the interpretation of Artic22 of the Covenant in this re-
gard. At page 60 of the Rejoinder, V, Respondent goes on to say:
"Respondent mustconcede that the question thus placed before
'the Court iç not an easy one. That the duty to account to, andsub-
mit to the supervision of, the League, formed an important element
of the Mandate System, is not open to doubt. On the other hand,
whether it was regarded by the authors of the System to be of such
importance as to constitute a sittequa noltof the wholesystem,must
necessariIy to a certain extent remain a matter of speculation, eval-
uation, or judgment, on which no definite proof either way can be
produced."
And then îînaily, in the sarne volume of the Rejoinder at page 69, the
following contention appears-or submission perhaps would be the more
appropriate way to describe it; apropos of the respective contentions of
the Parties, the Respondent refers to a statement in the Reply which re-
flected the Applicants' understanding that there was common cause be-
tween the Parties as to the essentiality of international supervision.
Nowthe Respondent, as of course is its perfect right, refers to the matter
in the following way:
"In the passage cited from the Reply in paragraph II above
[paragraph II is to be found in the Rejoinder at p. 731,the 'corn-
mon cause' suggestion in the first sentence paves the way for Appli-
cants to represent the rival contentions of the Parties as if they
mutualIy invite the Court to make a choice between two extreme
findings only, viz., that the Mandate has lapsed in toto or that it
survives in toto.In truth, although Applicants' argument does in-
volve such a~iinvitation, the representat ioniswrong of Respondent's
argument, which specifically invites consideration by the Court of a
third possible finding, Iying between the extremes, viz., that the
Mandate survives in part. i.e., as regards its substantive provisions
but without procedural obligations of report and accountability to a
supervisory body. Indeed Respondent respectfully submits that
that is the only form in which it can possibly be found that the
Mandate stili exists."
In the Lightof the mandate jurisprudence, and of the hdings and
holdings of this honourable Court, thisstatement is a difficult one toas-
similate. The Court's holdings appear without any possibility of doubt
to have settled the legal proposition that international supervision in- REPLY OF MR. GROSS 23x
deed is the sine qwanon of the whole system, and there is na room for
speculation, so far as the Applicants are aware, and the Applicants con-
sider this to be such an essential and fundamental proposition that, in
the Applicants' view, as the Respondent correctly points out,the Court
is confronted with the choice between the two extrernes as the Respon-
dent characterizes them; they are extremes in a debative sense;but from
a juridical point of view it is the Applicants' respectfui submission that
the Court was quite correct in referring to the international supervision,
accountability, as of the very essence of the Aiandate, and that to hold
in the third way suggested by Respondent would strip the Mandate of its
very essence, and this the Applicants do not conceive as a realistic juri-
dical alternative.
Mr. President, there is no room to doubt that the scope of judicial
protection, the final bulwark against asserted breaches or abuse of the
Mandate, is less broad than administrative supervision itself in scope.
Supervision is the very essence of the Mandate precisely because it is
essential to protect the sacred trust, and the sacred trust is embedded
in Article 22 ofthe Covenant and Article 2 of the Mandate in its very
essence. Such a scope of judicial protection, commensurate with the
çwpe of administrative supervision, is a logical imperative. It flows
from the fact that, as was explained in the Hyrnans report to the League
of Nations Council-1 regret 1 do not at the moment have the citation
to the Hyman's report, but will çupply itduring the course of the day;
1have referred to it and quoted from it at an earlier~hase of these pro-
ceedjngs-the Council was. empowered and require to consider "the
whole performance of the Mandate".
Unless the judicial protection encompasses the same broad ambit, the
Court would lack cornpetence to serve as a bulwark of protection against
asserted breaches or abuse of the Mandatory which the administrative
organ might consider it essential to prevent or to rernedy. There would
otherwise be a hole in the Mandate as wide as the sacred trust itself, so far
asjudicial protection is concerned.
The Advisory Opinion of 1956, relating to the right of petition,is
doubly illuminaiingin this respect. Ttconfirms theauthority of the admin-
istrative organ to exercise functionsrelative to the protection ofArticle2,
paragraph 2,of the Mandate, and demonstrates the judicial acceptance
of the Court's power to pass upon the interpretation and application of
the provisions of the Mandate, designed to authorize administrative su-
pervision with regard tothe sacred trust, the essenceofwhichisembodied
in Article 2, paragraph 2.
tions, which is the point to which the Appficants are now addressingnc-
for the performance of the sacred trust,ohasnbeen adverted to at an earlier
stage of these proceedings. The Court, on the one hand, may not be prop-
erly asked, or expected, to serve as the first and normal security, in the
words of the Court itself, rather than as the final bulwark of protection.
Ry the same process of reasoning, the normal security must exist and
bevestedwith powers ofsupervision adequate to its purpose, in order that
the Court may have the benefit of the processes and the conclusions of a
competent international supervisory organ.
The Reçpondent itself has shown full awareness of the nature and ;oh
of administrative supervision in the scheme of the Mandate, and Re-232 SOUTH WEST AFRICA
spondent fias done so in the context of its effort to persuade the Court
not to embark upon this area of activity. In the oral presentation o14
April 1965 R,espondent stated at page 624 of the verbatim record, VIII,
that there was a-
"... positive contemplation of the authors of the mandates systern
that in the functioning of this system mandatories would have the
assistance and the collaboration of the Permanent Mandates Com-
missionand the Councilofthe League-in other words, the assistance
of those processes of administrative supervision, as weli asthe
technical assistance and expert assistance involved therein, which
the mandatory and those administrative supervisory bodies-a pro-n
cessof consultation which wouldlead it from stepto step in the ap-
plication of certain policies."
It is difficult to describe the concept of the authors of the mandates
system and the requirements and scope of the administrative super-
visory body in terms more clear and more neat than Respondent has it-
course, apply to the problems involved in the complex task of orderlyof
remedies and procedures to resolve problems which have arisen, largely
by reason of Respondent's failureto accept and to CO-operateand to con-
suit with such supervisory bodies.
These considerations, hlr. President, make reIevant a discussion at
this point-before leaving the argument on legal issues relating to ad-
ministrative ~~~~~~~~~~ ~hefrespective roles of administrative su-
pervision andjudicial protection, with specific reference to several de-
cisivelyimportant issuespresented in the casesat bar. Perhaps the most
important of these relates to the question of the relief for which the
Applicants pray, particularly in terms of Submissions 3 and 4 of the
Mernoriais at 1,page 197.
The Applicants refer in this regard to the prayer in Submission3, that
the Court adjudge and declare that Respondent "has the duty forthwith
to cease the practice of apartheid in the Territory".
The Applicants likewiserefer to the prayer in Submission 4, that the
Court adjudge and declare that Respondent "has the duty forthwith to
ceaseits violationsas aforesaid, and to take al1practicable action to fulfil
Articlei22 of the Covenant.les", to wit, Article2 of the Mandate and
Mr. President, effectuation and irnplernentation of such an adjudica-
tion and declaration, ifit should please the honourable Court so to de-
cide, evidently would necessitate the effectivefunctioning of a competent
international administrative organ, vested with powers adequate to the
purposes. Indeed, it is the very failure and refusal of Respondent to
submit to such supervision in the performance of its trust, and its in-
sistence upon unilateraily decreed and unilaterdy imposed policieswith
regard to the Territorywhich has necessitated recourseby the Applicants
to judicial protection.
Respondent's course in this regard, moreover, has brought about a
situation in the Territory which occasions the competent international l
organs deep concern for the present weIfare of the inhabitants of the
Territory and grave anxiety for their future. And this is manifest from
the information now in the pleadings. Even more, Respondent has an- REPLY OF MR. CROSS 233
nounced its su port, in principle, of certain recommendations by the
so-called Oden caal Commissionwhich, if carried out, in lvholeor in part,
in accordance with their intended purposes, would alter in fundamental
respects the basic structure of the Territory by means of territorial
partition.
Respondent has indicated its designso to do on the basis of aunilateral
Mernorialsets out its views in this respect-theyernay be found, intedia,
at IV, pages 2x3 and following. Although action upon certain recom-
mendations of the Odendaal Commission report has been held in abey-
ance pending outcome of these proceedings, Respondent has publicly
proclaimed its acceptance of such recommendations "in principle" (p.203
of the special Supplement).
hlr. President, whatever course may be followed by Respondent in
future, the intimations of Respondent 's policy in this regard underscore
the imperative requirement for administrative supervisionover the Man-
date. This honourable Court, as has been said, rnay not appropriately be
requested or expected to serve a function which the Mandate so clearly
envisages for administrative supervision as the normal security.
The recommendations of the Odendaal Commission, as appears from
the record, are not of officia1status. Apart from this, they are, asat
present ,hypothetical, contingent and concededly indeterminate as to
their implementation. There 1sno realistic or sound basis upon which
they could be considered by the Court. The reason for their addition
to the documentation in these proceedings is obscure. The recommenda-
tions, however, on their face, would involve partition of the Territory,
and this indeed is the avowed aim of the Respondent.
IVhat Respondent has described as its "general attitude" isset out in
the Supplement to the Counter-Mernorial at IV,page 213, and reads as
follows :
"... it should be the aim, as faras practicable, to develop for each
population grozip its own Homeland, in whch it can attain self-
determination and self-realization".
As has been said, judicial evaluation, or indeed any other evaluation,
of so vaguely formdated and hypothetical an ultimate goal, would be
inappropriate for judicial consideration, apart from its prematurity and
unofficial status. The point at issue here, however, is that unilateral and
unsupervised implementation of anyplan of such a quality or character,
embodying such an objective, would do far more than violate Respon-
dent's obligations to submit to international supervision, in terms of
Article 6 of the Mandate. It would also violate Respondent's obligations
under Article 7, paragraph I: it would involvc a modification of a sub-
stantial nature of the terms of the Mandate without the consent of the
United Nations thereto. And, Mr. President, as has also been pointed
out, that consent, if sought, must be an informed consent, and that in
turn presupposes a continuing supervisory authority.
Respondent's version ofthe avowed plan, the recommendation of the
Odendaal Commission, was set forth in the verbatim record of 26 April,
VIK1,at page 697,in the following terms:
".. ,there can be no objection to differentiation between different
groupsinhabitinga given territorial area, which is,for-the time being,
administered as a unit but which is destined to be split up into sepa-234 SOUTH WEST AFRICA
rate political areas, each with its ownnationality and each capable
of achieving autonomy".
This is proposed to be done, in Respondent's avowal, in the absence of
international supervision of any type. And the Rejoinder contains an
avowal in the followingform:
"Eventually the Homelands will become independent, and in the
interim it is proposed that ultimate control should continue to vest
in Respondent's Government, not in the European population of
the Territory.
,,*......,.......*.*...,.....*
Respondent concedes that the transitional stage to complete terri-
torial separation is indeterminate, but it is absurd to cail it perma-
nent." (V,pp. 309-310.)
The Applicants conceive that in this context the distinction between
"indeterminate" and "permanent" is hardly a substantive or serious
distinction.
It would not be eaçy to imagine a more drastic modification of the
in any similar manner to that which Kespondent avows asits ultimateorm, or
aim.
The Territory was conferred upon the Mandatory, on behalf of the or-
ganizcd international community, as a trust to beadministered as a single
and unified territory.
On the other hand, if, as hypotheticauy, at least as likely, the avowed
ultirnate aim is not really the achievement of independence or separate
nationality, in any sense of the word which corresponds to political,
social or economic realities; if that should be the case rather than actual
partition, then, this, of course, would represent an extreme form of apart-
heid, with an indefinitely continuing multiraciaiiy composed Police Zone.
The Odendaal Commission report itself does not express or intimate any
intention that the Police Zone, half the Territory, the advanced and
modern sector, would be denuded of non-white inhabitants, as defined
in the census categories. If, hypothetically, the Respondent was not
actuaily intent upon-according to its avowal of intent-pursuing the
plan of partition: then, as 1 Say, this would be an extreme form of the
application of apartheid territorially irnposed by group separation in
fragments of the Territory, and that would, on its face, confirm the viola-
tion of Article 2,paragraph 2,of the Mandate.
In the Applicants' respectful submission, if the plan avowed by the
Respondent should be carried out unilaterally in accordance with its
description, in Respondent's own formulation, it would violat Aerticle 7,
paragraph r, with respect to consent of a competent international organ
as a precondition to modification of the terms of the Mandate.
If, on the contrary, and hypothetically, it were not partitioned, as
the Respondent insists, but tvere territorial apartheid in its extreme
form, it would, in the submission of the Applicants, constitute an even
clearcr violation, if possible, of the Mandatory's duties under Article 2,
paragraph 2.
It has got to be a violation under one or the other, on this analysis.
Reference has been made to the essentiality of administrative super-
vision in resnect of the orderlv effectuation of remedieç which the Court REPLY OF MR. CROSS 235
missions 3 and 4. It is, in the Applicants' respectful view, unreaçonable
and inappropriate to assume that, should the Court be pleased to adjndge
and declare on the basis prayed for in Submissions 3 and 4, it would be
possible for the Court to serve as the supervisory organ-the firçt and
normal recourse to assure the effectuation in an orderly, evolutionary,
conçtructive and realistic manner of the social, poiitical, economic life of
the Territory. This is the objective of the organized international com-
munity, as the Applicants view it. This imposes upon the organized in-
ternational community a most solemn obligation of international respon-
sibility, and, without the administrative supervisory organ in existence,
itwould seem to the Appiicants, most reçpectfully, thatthe relief prayed
for, which the Applicants believe is justified, would not be capable of
impThe Applicants consider, therefore, that there isan alternative wjth
respect to Respondent's contention, and, that is, either the Mandate has
survived with itsessence or it has lapsed in toto.
hlr. President, identical considerations with respect to the scope and
importance of administrative supervision underlie the Applicants 5th
and 6th Submissions which relate, respectively, to the Respondent's
asserted violation of the international status of the Territory and to the
establishment of military bases therein. 1 refer the Court to the submis-
sions set forth in the Memorials, 1,at page 198.
It is regarded, respectfully, by the Applicants, as appropriate to con-
sider and dispose of these submissions at this stagein the context of the
requirement of administrative supervision which the Applicants contend
as a matter of law must exist so long as the Mandate itself endures,
because, Mr. President, the necessity for continuing administrative
supervision is highlighted by considerations xvhichrelate to these Sub-
missions 5 and 6.
In the first place, the facts with respect both to militarization and
annexation,as disputed by the Respondent, and as subsequently accepted
by the Applicants for purposes of these proceedings, demonstrate the
need for continuing supervision and access to relevant information. The
techniques and logistics of military science in 1965are such that the
Territory could effectively be militarizein two or three days, or a shorter
time than that. Respondent has drawn into issue, as a decisive element
with regard to the question of militarization raised in the pleadings, the
purpose of the installations which concededly exjst in the Territory. The
assurance with regard to militarization, present or future, to which the
international community is entitled, would appear to be clearly reflected
in the following citations, which 1 shall not elaborate but to which I
refer the Court reçpectfully: Memorials, 1, pages 181-183C ,ounter-
Mernorial, IV, pages 47-66,Reply, IV, pages 553-57a 1nd Rejoinder, VI,
pages 351-389.
Mr. President, the Respondent makes a large point ofimputing error
to the Appiicants' statement of fats which, under the circumstances,
obviously are set forth on information and beiief-to the best of the
Applicants' knowledge and belief. Respondent, as often appears from the
information which is necessarily rierived from other and secondary the
sources as inaccurate, a course of canduct which hardly requires charac-
terization. There is no reason why Respondent's obduracy in respect of
refusal to submjt to the processes of international supervision should~3~ SOUTH WEST AFRICA
require this honourable Court to serve as the first and normal security,
rather than as the ha1 bdwark of protection. Why is this question raised
before the Court at this time? It is clearly because of the failure of ad-
ministrative supervision that the absence of effective consultation and
information has created these doubts, these anxieties, and these recrimi-
nations, which diouId not be necessary to be laid before this Court and
which transcend, although they include, the Appiicants' request for a
favourable determination on their 6th Submission,which, the Applicants
believe, is~varranted by the undisputed facts and the arguments of law
which emerge from the written pleadings in this respect.
The facts, moreover, indicate, in the context of the militarization
vision in the context of modern military technique, logistics and devel-
opment, as 1 have mentioned.
First, with regard to Respondent's concessions-at Ieast with regard
to its rights-under Article 4 of the Mandate, in this regard, contempo-
rav rather than 1920 standards are applicable. Respondent states in the
Rejoinder, VI, page 371 :
"Finally, as regards the equipment used for training, Applicants
surely cannot seriously suggest that such equipment as may be
necessaryfor localdefenceand interna1 policepurposes at the present
tirne, is prohibited, and that only such equipment as was in fact
used during the pre-IVorld War II period is pennitted."
Here in this context. when it serves the purpose of Respondent, contem-
porary standards are applicable without question. In regard to the sacred
trust the emphasis is on the understandings as of 1920, the principle of
contemporaneity is invoked-in that context, but not in this.
With regard, and more specifically, to this rnatter, the Respondent
expresses surprise, in the Rejoinder, VI, at page 356,that the Appiicants
were not aware of certain facts in the Territory brought out by the Count-
er-Mernorial, and Respondent says :
"In the circumstances it is, to Say the least, surprising that
Appiicants, who profess to have such a keen interest in what takes
place in the Territory, were unaware until the filing of the Counter-
Mernorial that there is no military training of Natives in the Terri-
tory."
The Appiicants were unaware-why? This manner of reply has a stran-
gely counterfeit ring in view of the Respondent's long-standing refusal
to CO-operatewith the competent administrative supervisory organ, or
to comply with the opinions of this honourable Court in regard to the
administrative supervision of the Mandate. In contrast to its refusai to
submit to supervision, it is noteworthy, in the context of administrative
supervision over the possible militarizaiion of the Territory, that Res-
pondent relies upon certain conclusions of the Permanent Mandates
Commission, or to knowledge possessed thereby, which Respondent
considers favourable to its position in these proceedings and reference
need merely be made to the Counter-Memorial, IV, at pages 51 and
55-56 and to statements in the Rejoinder, VI, at seriatirn, pages 355-
""4.
In contrast to the foregoing, Respondent disputes the Applicants'
contention to the effect that the absence of administrative supervision in
the case of doubt conceming the nature of an installation resolves such REPLY OF MR. GROSS 237
doubt against the Mandatory. See the Rejoinder, VI,pages 371,37a 5nd
379Finaily, in regard to the Regiment Windhoek, in the capital of the
Territory, Respondent states :
"The issue turns on the question whether the complex of what has
been established and what is being done at the establishment con-
stitutesa military base." (VI,p.370.)
Mr. President, it is not the purpose of these references to enquire into
the accuracy of the information, to weigh and evaluate its significance,
to consider its merits in any respect; the question is why do these prob-
lems arise before this honourable Court at this stage? Why is there an
issue in dispute between the Applicants and the Respondent, and why
is that issue-that identicia ssue-similarly in dispute between the
United Nations and the Respondent, although not, of course, as involved
in these proceedings? It is precisely for the purposc of ascertaining what
is being done at the establishment, in Respondent's phrase, that Ap-
plicants submit that administrative supervision is required for the future
security and integrity of the rnandated Territory. There should not be the
and this, it appears to the Applicants, is a significant confirmation for
the necessity for the continuance of administrative supervision as part
of the very essence of the Mandate.
Onthe same basis ofanalysis and consideration, turning tothe question
of annexation, administrative supervision ishere again seen to be of the
essence. Respondent's refusa1 to submit to administrative supervision,
indeed, is an underljing element of the Applicants' complaint in this
regard. (SeehIemorials, 1,pp. 187and 189;the Reply, IV,pp. 573,575 and
576;the Rejoinder, VI,pp. 401-403and 444and 415.)Respondent rejects
the contention of the Applicants that such subrnission, though known
to the authorized international supervisory autfiority, is an essential
element entering into the consideration of respect for the separate inter-
national status of the Territory. Denial of submission-the duty to siib-
mit-to international accountability is a denial of the separate interna-
tional status of theTedtory. Indeed, at one juncture, Respondent states
that if its acts of administration in the Territory "are in themselves
unquestionable, the fact that there is no supervision cannot render them
questionable". (Rejoinder, VI,p. 415.T )hisappears to the Applicants to
be a classical form of fetitio principii. The question, of course, is whether
they are questionable or not. It is a question which must be resolved in
the light of information avaiIable to the international organ-informa-
tion on the basis on which it can supervise thetrust, and ifit is unable to
supervise the sacred trust for lack of that information, then, in the
Applicants' submission, the Mandate itself is being aItered in a funda-
mental respect, and this 3sthe theory underlying this submission.
The Respondent'ç analysiç presupposes the possibilitjf of a judgment
of this honourable Court to the effect that such acts of administration
are "unquestionable", and, as 1have said and as the Applicants respect-
fully subrnit, al1 acts of administration, in the absence of supercision,
must be "questionable". That does not reflect upon their merits; they
are questionable because they are open to question because there is no
information available upon which their merits, or otherwise, can be
supervised and examined. This is why, in our submission, this formula-
tion begs the question.238 SOUTH WEST AFRICA
As Applicants state in the verbatim record of zz March 1965 V,IiI,
at page 195 : "In the absence of such accountability, Respondent's func-
tion of administration would cease to be international." That is the
essence of Ourcontention in this regard.
As this honourable Court stated in 1962; and 1 quote from the I.C.J.
Reports 1962, at pages jgr and 332,as follows: "The essentially interna-
tional character of the function ~vhichhad been entrusted to the Union of
South Africa" (that is from p. 331)"isan international instrument of an
international character" (p. 3321, "a special type of instrument com-
posite in nature and instituting a novel international regime" (p.331.he
Mandatory, therefore, exercises, in the words of the 1950 Opinion, "an
international function of administration, in accordance with the inter-
national rules regulating the Mandate which constituted aninternational
status forthe Territory". That isfrom the I.C.J. Report1950 ,t page132.
The absence, the denial, or the rejection of international supervision,
character. This is the basis of our submission in this regard.it of that
It is against the background of theçe considerations, of the determina-
tions of the highest judicial authority-ths honourable Court-that
Respondent states in itç Rejoinder:
"If Respondent is correct in its contention-i.e., that its obliga-
tions to report and account to, and to submit to the supervision of,
the Council of the League, lapsed upon dissolution of the League,
and have not bcen replaced by any similar obligations relative to
supervision-then, surely, its rejection of so-called 'international
accountability' cannot constitute a violation of any obligation. If,
on the other hand, it should be held that Respondent'ç aforemen-
tioned obligations didnot lapse upon dissolution of the League, then
that would signify that Respondent has erred in its aforeçtated
rejection, and that Applicants' charge of a breach of Article 6 of the
Mandate has been established, but not that the 'separate interna-
tional status of the Territory' has in any way been affected. The
substantive nature of the discretion conferred upon Respondent
regarding the administration of the Territory can in no way be
affected by the presence or absence of supervision." (VI,p. 402.)
If the Applicantç conccive and appreciate properly the sense or pur-
port of this argument, it rests upon alternative assumptions which ignore
the basic principle, asperceived by the Applicants in any event, thatthe
refusal of international superviçioa constitutesa violation of the Blan-
date, not only by reason of violations of Article 6, but also by reason
of the fact that it alter5 and fundamentally impairs the international
status of the Territory, on the basis of considerations which have been
advanced in the written pleadings and summarized here. It is no answer
for the Respondent to Say, in commenting upon the need or otherwise
for internation4 supervision, that it has "de factobeen acting as if ail
obligations relevant for present purposes were still in force, including
abstention from unilateral incorporation". That statement is made in
the Rejoinder, VI,page 397.
The Court's attention has respectfully been drawn already to the
phrase "abstention from unilateral incorporation". It ia position which
could be changed at any week, day, or moment. with or without notice.
Equalty irrelevant is Respondent's reliance upon findings of the Per- REPLY OF MR. GROSS 239
rnanent Mandates Commission in this respect, when such findings, with
regard to the question of possible annexation, appear to the Respondent
to be favourable to its contentions herein. The Court's attention is
drawn to many citations in the Counter-Mernorial, IV, pp. 78, 94, 96;
the Kejoinder at VI, pages 398-40 and through to 412.passzm.
The Apphcants submit that the facts conceded by the Respondent
in the written pleadings, taken together with the statements of law con-
tained in the Memorials in this respect, as well as in the Reply at IV,
pages 573 and 586, demonstrate that Submission 5 is well-founded in
law. Indeed, apart from the legal argument already addressed to ths
proposition in the verbatim record of 23 March, VIII, at pages 220-222,
the Applicants respectfully submit that there is no further argument
required on their part, other than the treatment, as aforesaid, in their
written pleadings and in these Oral Proceedings, and thatthe facts, as they
have become crystallized in the written pleadings of both Parties,support
beyond doubt the lepl conclusion that Respondent has treated the Ter-
ritory in a manner inconsistent with its international status. In respect
of militarization, that question is one which demands for resolution the
access to information presently denied, and which only administrative
supervision can find and resolve. With respect to the Submission 6, re-
lating to annexation, the refusa1and denial of submission to international
administrative supervision impairs the international status of the Terri-
tory. It might be desirable at this point to Say that the Applicants have
submitted, and will continue to submit , that Respondent 'ssubjective
intent, motive, or purpose, with regard to its performance of its obliga-
tions under the Mandate, are wholly irrelevant factors, particuiarly so
with regard to Article 2 (a),inasmuch as a Per se violation of the inter-
national legal nom and applicable international standards is contended
for by the Applicants.
\Vith respect to the question of design or plan for use of military in-
stallations, or of methods of association between the Territory and the
Respondent, here, as in the case of the sacred trust itself,in Article 2,
intention, purpose, or plan, jsto be inferred on a basis of the Respon-
dent's conduct.
Finally, on the basis of the considerations of fact and law set forth in
the Memorials at 1, page 196, and the Reply, IV, page 557, the Appti-
cants respectfully contend that their Submission 9.is well-founded; this
is set forth in the Mernorials at 1, page198.The necessity of administra-
tive supervision, as has been said, is underscored by the avoïved and
decIared design of Respondent to partition the Territory, as a so-called
ultimate aim, on the basis of a unilateral and unsupervised plan. Such
avo\vals and declarations with regard to the future of the Territory,
taken at face value, which the Applicants do for the purposes of these
proceedings only, manifest an admitted pian or purpose, one which need
not be merely presumed as a reasonable inference from conduct.
It was on this basis and for this reason, in the light of theçe avowals,
that Submission No. g isthe only submission, which incorporates or is
intended to incorporate reference to or relies upon Respondent's "in-
tent". In respect of Submission No. g, Respondent has explicitly avowed
an intent to partition the Territory without the consent of the super-
visory organs. In this respect, the intention so stated has no meaning
other than the normal usage of governments when they, in forma1 or
informa1 communications, announce a plan or an intent-it is a state-240 SOUTH WEST AFRICA
ment, it is not a state of mind-it is a declaration of action, intended
action. The Appiicants accordingly have requested the Court to adjudge
and declare that consent on the part of the United Nations isacondition
precedent to the effectuation of such an avowed intention or plan.
Several points relating to the question of international supervision
anse from Respondent's rebuttal which may be cleared up at this point
up aiiy possible lingering doubts, by reason of statements in rebuttal by
Respondent, which may exist regarding their position relating to the
administrative supervision of the Mandate and the basis upon which it
has survived and continues to survive asan obligation of the Mandatory.
In the hst place. administrative supervision as an obligation is an
essential part of the mandates system, inescapably linked to the due
performance of the obligations of the Mandatory towards the inhabitants
and the organized international comrnunity; again, in the mandate
jurisprudence of this honourable Court, to exclude the administrative
accountability of the Respondent would be "to excluda the very essence
of the Mandate". at page 334, I.C.J. Reports1962.
Secondly, the United Nations has replaced the League of Nations in
the capa~ity as embodying or representative of-it matters not whick
way it is put-the organized international community upon which the
"çacred trust was laid as a responsibility" in the words of the 1962Judg-
ment. The United Nations is endowed by Article IO, it is invested, by
the Charter, with cornpetence to supervise the Mandate.
Thirdly, Respondent has acknowledged-at the period when it was of
decisiverelevance whether it did or not-Respondent acknowledged and
manifested its consent to the assümption by the United Nations of
supervisory authority over the Mandate ; Respondent manifested its
consent, and acknowledged its submission according to the findings of
the Court in 1950,on the basis, interalia,of the statements made before
the League of Nations in April 1946,its pledge to the League AssembIy,
its adherence toand support of vote for the League resolution of 18April
1946a ,nd ashas been referred to often now, the position it took in the
Preparatory Commission with respect to the temporary trusteeship
machinery, and the reason assigned therefore by Rlr. NichoUs.
Respondent has suggested that the Appiicants' views, as set out,i7iter
dia,in the verbatim record, VIII, at pages 132 and 133, represent a
change of position on the part of the Applicants with regard to the
relevance of Respondent's consent during the period 1945-194 a6n, in
particular, that this is asserted ta conAict for various reasons with pre-
vious interpretations placed by the Applicants upon the 1950 Advisory
Opinion. Reference is made in thiçrespect to the verbatim record, VIII,
at pages 313-319. Respondent contends there that this position, as it is
attributed to the Applicants, lends support to the proposition that the
ered deinovo";hthat, isat pages320deof that verbatim record. It cameidas
something of a surprise to the Applicants to learn that any proposition
which they could seriously advance could furnish the bais for a recon-
sideration de novo or othenvise of the 1950 Advisory Opinion-we are
still ataloss to understand what such a motivation would be grounded
upon. It is, of course, precisely to the contrary; the Applicants rely
upon the 1950 Opinion and consider that it should be followed and if it
is possible to make that contention any more clearly than the Appiicants REPLY OF MR. GROSS 241
have made it, the Applicants welcome this opportunity to assure the
honourable Court to that effect. What has happened here is that the
new facts contention which was first raised in 1950, and now again in
1962,has in the Applicants' respectful view, been utterly dernolished by
reference to the proceedings of the Preparatory Commission,by reference
to an analysis of the alternative techniques discussed and resolved as
between a temporary trusteeship machinery on the one hand and apIedg-
ing system on the other; had these facts been known to the Court in
1950,in the Applicants' view, they would have had to confirm the Court
in utter assurance.with respect to the conclusions they there reached. If
anything, these proceedings have confirmed the desirability and necessity
of accepting the Court's findings in 1950 hey have, if vindication were
necessary, completely vindicated those findings.
The Appiicants have on another matter stated their basic premise as
being that, "the obligation of international accountability is an essential
and integral element of the Mandate" (VIII, p. 132)and this is, of course,
in the Applicants' view, consistent with the Court's holding in 1962 that
"to exclude the obligations connected with the Mandate would be
to exclude the very essence of the Mandate", at page 334. Likewise,
as has been pointed out at an earlier stage, in fact, at that same stagof
the proccedings, the honourable President and Judge Sir Gerald Fitz-
maurice have defined and 1 quote frorn page 522, of the I.C.J. Refm7.t~
1962: "An obligation to report was regarded as being of the essence as
a necessary part of any mandate system that was to fulfil the oobjects
stated in Article22." Respondent, on the other hand, has characterized
the so-called "issue" drawn in this regard as being "the issue of a specific
supervisory authority versus the contention of a general obligation of
international accountability or tosubmit to international supervision"-
that is the way Respondent characterizes the issue in the verbatim
record, VIII, page 332. At best that is a pailid form of description of the
issue, it has somewhat misleading implications, unintentional no doubt,
in view of the fact that the Applicants' contention, of course, is that
international accountability is of the essence of the Mandate and the
contention of the general obligation of international accountability is
really a contention that the Mandate cannot survive without it.
Further, Respondent contends that there never was an obligation
"to submit to international supervision", since "the actual terms of
Article 22 of the Covenant and of Article 6 of the Mandate, providing
for supervision by League organs, were entirely clear and explicit". This,
of course, obviously refers (1did not mean to quote it out of context or
distort it) to a basic general obligation rather than an obligation to sub-
mit to a specificorgan-1 was referring to page 332 of the verbatim record
which 1 have cited. This interpreted, which of course was the context,
than an obligation rnerely to report to a specific organ. To the contrary,
in the Applicants' respectful submission, the terms of the Covenant cstab-
lish the essential principle of a basic obligation of international account-
abiiity, which inheres in a mandate institution and which must survive
so long as the mandate survives. Now the significance attached by Re-
spondent to the presence of what Respondent calls "more clear and
explicit provisions" referring to Atticl22, paragraph 7, and Article 22,
paragraph g, demonstrates that the specificimplementation of the essen-
tial principle was not left lo chance, in the Applicants' submission.24z SOUTH \EST AFRICA
Finaiiy, in the verbatim record of 18 March 1965, the Applicants
have described the logical effect of Respondent's first alternative con-
tention with respect to administrative supervision. The first alternative
contention was that the supervisory functions under Article 6 had lapsed
without, however, collapsing the Mandate as a whole. It is 1think clear,
perhaps from what has been said, that this poses a square issue between
the Parties and that there is no intermediate thirdground for a decision,
in the Applicants' respectful submission. At VIII,page 123 of the ver-
batim record, the Applicants noted that it wouId follow from the first
alternative contention of the Applicants, according to which Article 6
had lapsed but the Mandate otherwise was in existence-this was the
Applicants' formulation of the problem at that tirne, which perhaps
bears repetition now in the light of comments made in rebuttal:
"Judicial protection, which the mandate institution envisages as
the final bulwark, in the Court's words, would thus become the
first and only bulwark, inasmuch as judicial supervision, by reason
of default of administrative supervision, would perforce take the
place of the normal security."
This, of course, is a matter of inescapable logic unless it is assumed that
the judicial protection sustained by the Court in 1962is not to be rec-
ognized as legally effective.
[Public hearing of13 May 19651
Mr. President and Members of the honourable Court, the Applicants
turn now to a consideration of the legal issues joined in respect of the
asserted breaches of the sacred trust; in particular, the violations alleged
with regard to Article 22 of the Covenant and Article 2, paragraph 2,
of the Mandate. The considerations which the Applicants propose to
place before this honourable Court will include an illustrative enumera-
tion of Respondent's practices and policies germane to a consideration
of the legal issues and, indeed, inseparably related therewith.
The Applicants, with great respect, conceive that these Oral Proceed-
ings have served an unusually helpful and clarifying purpose. The pro-
cedures which have been followed pursuant to the intimation and
guidance of the honourable President and the Court have, in the -4ppli-
cants' view, facilitated the singling out and definition of central issues.
Questions propounded from the bench have illuminated the way. In the
course of the rernarks to follow, the Applicants will endeavour also to
Gerald Fitzmaurice. For the convenience of theroposCourt Jthe Applicants
think itmay be helpful to indicate the scheme of the argument to
follow.
In the first place, the Applicants wilIsubmit considerations ofan intro-
ductorycharacter.These willbedesigned to leadinto aresponse to JudgeSir
Gerald Fitzmaurice's questions r, 2, 3, g andrelated aspects of questions
4, 5, 6 and 7.In the course of their introductory remarks the Applicants
will endeavour to indicate their approach to the central legal issues con-
cerning the existence, content and applicability of the international
legal norrn and the international standards which are described by the
designation "norm of non-discrimination or non-separation", as set out
in the Reply, IV, at page 493 and discussed in the following pages. REPLY OF MR. GROSS 243
These introductory remarks, Mr. President, also will attempt to clear
away certain misconceptions and distortions of the Applicants' tme
theones and contentions which may be engendered by Respondent 's
charactenzations and formulations of certain of them, both in its written
pleadings and in the Oral Proceedings.
Secondly, following the introductory remarks just described, the Ap-
plicnnts consider that itrnay be convenient and appropriate to respond
to Judge Sir Gerald Fitzmaurice's questions Nos. 8 and IO.
Thirdly, thereafter, the Applicants, in an economical manner, will
place before the Court, without elaboration orargument, a summaryand
illustrative catalogue of the laws and administrative reguIations, as well
asofficialmethodsand measures, the existence of whch is undisputed by
of apartheid in the Territory. Asthe Courtn twillobserve during the course
of that presentation, concise aç it will be, many-indeed, rnost-of the
relevant laws, regulations, officia1measures and methods are derived
from Respondent's own pleadings, and are normally cited thereto. These
are included, as I have said, within the body of policies and practices
upon which the Applicants ground their submission of Respondent's
per se violation of Article 22 of the Covenant and of Article 2, para-
graph 2, of the Mandate.
Fourth, the Applicants will then conclude with a description of the
legal premises and considerations which demonstrate the existence,
content and applicability to the mandate institution of an international
legal rlom and of international standards designated by tlieAppiicants
by the label or caption ''non-discrimination" or "non-separation". This
demonstration wiii be of particular relevance, we believe, to Judge Sir
Gerald Fitzmaurice's questions Nos. I, 2,3 and g, as well as to related
aspects of questions Nos. 5, 6 and 7.
Mr. President, the Applicants will endeavour to show that the inter-
national standards established by the competent international organs
charged with the duty of supervising and safeguarding the sacred trust
govern the interpretation of the international rules regulating the Man-
date as an international institution, including, and more particularly
in this context, Article 2 thereof. As a cumulative and alternative pro-
position the Applicants iviLlendeavour to show that aninternational legal
norm of non-discrimination or non-separation exists, and that it should
be found, declared and applied by this honourable Court to the Respon-
dent, in terms of Article 38 of the Statute.
Five, upon the conclusion of the foregoin arguments the Applicants
will formally place their submissionr before tte Court and rest their case,
subject of course to the convenience and wishes of the honourable Presi-
dent and Judges, with reservation of their rights under the Rdes of Court
to comment upon any evidence adduced by Respondent and to make such
further or other arguments or responses as it may please the honourable
Court to allow.
The Applicants respectfully turn now to considerations of an introduc-
tory character. As has been said, these introductor remarks will, arnong
other things, be designed to lead into a legal ana ysis of considerations
pertinent to certain of Judge Sir Gerald Fitzmaurjce's series of questions,
which are the very climax in certainrespects of the Applicants' case, and
may indeed in a sense be a clirnactic phase of the litigation itself.
&Ir.President, needless to Say, those who have been entrusted with SOUTH WEST AFRICA
244
the duty of presenting to this honourable Court arguments in support of
interests of a legal nature lvhich concern the performance of legal obliga-
tions,based upon an international institutioof a fiduciary characte;
neediess to Say, those who appear before this honourable Court in such
a capacity must endeavour to keep constantly in mind the fact that the
legal issues joined in these proceedings have been rernitted to the highest
judicial body for adjudication on the basis of juridical principles. This
is indeed the underlying premise upon bvhich the Applicants have
sought judicial protection envisaged by the Mandate as the final bulwark
of protection against aileged abuse and breaches of the hlandate. At
and breaches of the Mandate involve humane, moral, political, socialse
and economic considerations of profound consequence to the lives
and welfare of the inhabitants of the Territory, who are the bene-
ficiaries of this international trust. Aloreover, the very nature of the
asserted abuse and breaches of the Mandate in the aspect now to be
consîdered ha engendered auniversal condemnation often expressed by
governments and othersin terms which fair1 may be said to reflect a
degree of revulsion and of anxiety, the vecisus"ion of which before a
court of law may wellimport a colour of emotion or moral judgment
which in and by themselves are extraneous to the judicial process. Such
a danger, moreover, is compounded when unjust charges attributing im-
proper motivation are levelled in respect of the very recourse 1o the 'udi-
Apphcants to focus upon the Iegal and juridical considerations per-e
taining both to fact and law which are relevant and decisive to adjudi-
cation of the dispute in issue here. The Applicants believe, and respect-
fully submit, that one of the major and perhaps unusual aspects of this
iitigation is the profusion, rather than the pauciof,legal roads toa
judicial solution. Such legal roads, moreover, are marked by legal prin-
ciples embodying traditional rather than innovative juridical premises.
The Mandate rnay be viewed in the present context as a convention, as an
institution, or as a combination of both; in the words of Lord McNairin
hiç separate opinion appended to the 1950 Advisory Opinion, an in-
strument which creates obligations "in part contractual ... in part
ated an international status for the Territory, the obligations, the inter-
pretation and application of which are regulated by international des
embodied inthe Mandate, as tliishonourable Court has held. Mr.President,
the Court moreover has deveIoped a jurisprudence for the Mandate
reflected in the three Advisory Opinions of 1951955 and 1956,as well
as the Judgrnent of 1962. Certain major aspects of this jurisprudence of
the Mandate have been collated for the Court's convenience and incor-
porated into the record of these proceedings oIZMay in the verbatim
record.
One route to a judicial resolution is via interpretation and application
ofthe obligations and rights undcr thendate, incIuding those embodied
petent international organs "upon which the sacred trust was laid as an
organized international community", in the language of the Court,
are unambiguous and categorical judgments.
They establish, in the Applicants' respectful submission, international
standards of a clear and compelling character which shoulbe accepted REPLY OF MK. GROSS 24.5
and applied by the Court in the judicial interpretation of the nature and
scope of the adrnittedly legal obligations and rights embodied in Article2
of the Mandate and Article 22 of the Covenant.
Another route to judicial resolution of the legal dispute now before
the Court, a route which is both cumulative and alternative to the kst,
is that which is marked by the legal proposition that the standards of
non-discrimination or non-separation, on the basis of legal considerations
which will be elaborated, have achieved the status of an international
legal norm of the same content and scope. Such a legal norm, the Ap-
plicants çubrnit, is applicabIe and controlling to the dispute at bar in
terms of, and within the meaning of,Article 38 of the Statute of the
Court.
The Applicantç contend that Respondent's policy of groupseparation,
labelled "apartheid", in South West Africa, is a per se violation of Ar-
ticle 2 of the Mandate and Article 22 of the Covenant. Such a policyof
group separation or apartheid, manifest from the laws and regulations,
the measures and methods of implementation, which are to be found in
the pleadings, and the existence of which is conceded by Respondent,
have been characterized repeatedly in the judgments of the competent
international organs by the designation "apartheid".
The Applicants in these proceedings seek to demonçtrate that apart-
heid, descrjbed by whatever term may be used to designate Respondent's
legal norm and the international standards relevant thereto. This demon-al
stration has already been made in the Memorials and in the Reply but
it wiii now be elaborated in the light of the oral argument which has
taken place up to this time and in the light of the series of questions pro-
pounded by Judge Sir Gerald Fitzmaurice.
In the light of Respondent's persistent denial of the existence and
applicability of the international legal norm and the international
standards for which the Applicants contend, as weli as of the normative
proceçsesand law-creating processes at work in the organized internation-
al community, the Applicants will endeavour, as 1have said, to present
to the Court several bases which confirm the existence and relevance of
the international legal norm and the international standards which they
allege govern the obligations of the 3landatory in tems of Article 22 of
the Covenant and of Article 2 of the Mandate.
At the outset it seems desirable to dispose of a possible semantic
hurdle. We describe for convenience the relevant international standards
and the international legal norrn by means of the designation, or label,
"non-discrimination" or "non-separation". In the Reply and in the oral
argument the Applicants have defined this norm and these standards in
the following form:
"In the following anaIysis of the relevant legalnorms the terms
and customary sense: stated negatively, the terms refer to the ab-nt
sense of governmental policieç or actions which allot status, rights,
duties,privileges or burderis on the basisof membership in a group,
class or race rather than on the basiç of individual merit, capacity or
~otential: stated affirmativelv. the terms refer to povernmental
Policies and actions the objec&e of which is to equality of
opportunityand equalprotection ofthe laws to individual perçons as
such." (IV, p. 493.)246 SOUTH WEST AFRICA
However, the Applicants attach no particular significance either to the
designation or to the precise words used in the definition of the norm and
of the international: standards having the same content and scope. LVhat
is relevant, and what is essential to understanding of the Applicants' case,
'is the submission that such international standards and such an inter-
national legal norm exist; that they have been found and declared by
those responsible for its creation as being applicable to Respondent's
policies of group separation in the Territory. Respondent's policy of
to an extent which has generated its ünanimous-butrnationafor Respondent
itself-repeated and authoritative use of dlnormative processes at its
disposa1to bring the standardsand the legal norm into being. In view of
so indisputable a reality, there is no reasonable basis for Respondent's
denial that such standards and norm are of uncertain application to the
Territory. Almost any standards or legal noms have instances of un-
certain application, but that fact does not provide a basis of attack upon
their validity so long as they clearly cover the phenomena to which they
are addressed.
The Applicants have tried to exclude this extraneous issue by their
contention that the minimum content of the norm is the prohibition of
apartheid; that ifanorm ofnon-discrimination or non-separation exists,it
applies, and clearly so, to the policies of graup separation or apartheid
applied by Respondent in the Territory.
An analogous consideration Likewiseshould be noted, lest it confuse
the.central legal issue under discussion. The Applicants do not rest their
case upon the degree to which the norm-creating process at work in
international society has been correct or fair in its appraisal of the in-
compatibility between apartheid as practised by Respondent and the
material welfare of the inhabitants of the Territory.
Although the Applicants have no doubt thatthe norm-creating process
was fair and correct in its evaluation of the policy complained of, the
Applicants do not ask the Court to Say so. Nor do they suggest that the
Court undertake the task of second-guessing the competent international
organs responçiblefor the development of the nom. There isno question
of the Court rubber-stamping the judgments of the competent inter-
national organizations, in Respondent's phrase, any more than the Court
can properly be expected to veto such judgments, even though they are
explicitly directed at conduct complained of in these cases.
If the standards and the legal norm for which the Applicants contend
do exist, as a matter of law, then they should be applied by the Court
as part of itsduty to decide this dispute in accordance with international
Iaw,and in accordance with the international rule regulating the mandate
institution itself.
On the basis of this reasoning, the Applicants do not regard it to be
appropriate to this litigation to appraise the fact-finding procedures
underlvin~ the standards which have been evolved bv the comwetent
internitiGa1 organs, speaking for the organized international cornn&nity.
For this reason alone. the A~plicants think irrelevant Res~ondent's
proffer of evidence which, in ~es~ondent's words "will be diiected to-
wards çhowing that that assumption of the universal acceptance of the
type of standards" for which AppIicants contend "is totally wrong, and
totally unfounded" (p. 102,supra).
It is relevant perhaps to note at this point certain potentially mis- REPLY OF MR. CROSS =47
leading aspects of Respondent's repeated imputations to the Applicants
of positions which do not in fact or in law reflect the Applicants' conten-
tions or theories.
A cardinal, though by no means exclusive, misinterpretation of the
Applicants' theory of the case is implicit in Respondent's repeated
references to the Iiorm and standards under the designation of "nom
of non-differentiation". This is,of course, more thsii a mere matter
of semantic distinction. On the contrary, it strikes at the very heart of
the true significance of the AppIicants' designation of the norm and
staAlthough during the Oral Proceedings Respondent referred to its
desjgnation or caption of "non-differentiation" as one employed for so-
called "convenience", it is, of course,in the Applicants' view, a misleading
and distorted version of the basic concept underlying the standards and
the norm for whicli the Applicants contend. Respondent's manner of
description, in itself, for example, reveals the basic divergence between
the Parties concerning the significance of the minorities treaties, as one
example, in respects relevant to these proceedings.
As the Applicants stated in their response to the frrst question earlier
propounded by Judge Sir Gerald Fitzmaurice, prudent and fair govern-
ments, aswell as international institutions, often recognize the need for
protection of individual persons in their quality as members of a class or
group. Civilized social orders obviously and necessarily differentiate
minors or incornpetents from adults or competents, and accord them
protection as individuals on that basis.
The question ai issue is much more fundamental than so axiornatic
a premise of the social order itself. The legal issue iswhether the differen-
tiation in question is based upon, or determined by, an official policy
which allots burdenç, privilegeç or status on the basis of membership
in a group, class or race, rather than on the basis of individual qunlity
or capacity. This type of differentiation is impermissible.
The fact that failureto perceive or avow the basic distinction-sought
to be drawn by the Applicants-between the concepts is not a merely
verbal one but that, on the contrary, it underlies Respondent's treat-
ment of the subject on the merits, is demonstrated by the following
conclusion, set out in the Rejoinder, V,at page 14r:
"For the reasons set out herein, it is submittcd that AppIicants
have failed to establish that their alleged norm satisfies either of the
two requirements which are essential for present purposes: i.e., they
have not shown-
(a) that any norm prohibiting a policy of differentiation exists in
International Law, either generally, or as legally binding on
Respondent ;or, in any event,
(b) that any such norm is embodied in Article 2 of the Mandate."
Mr. President, this formulation is aparody of thestandardsand norm
for which the Applicants actually contend. The minorities treaties, for
exarnple, of course involve permissible differentiation on the basis of
ethnic, linguistic, national or religious groupings. The minorities treaties
do so, ho~vever,not upon thebasis of allotting rights, privileges, burdens
on the basis of group classification but for the reason-the essential
he chooses to adherc to, from sufferingemadversea consequences nbymreason248 SOUTH WEST AFRICA'
of his membership in the group, which, as I Say, he is normally free to
quit. He can Iearn a newlanguage ifhe wishes,he canjoin another Church
if he wishes, he can assume another nationality if he wishes, normally.
The foregoing is but one example of many mis-statements or misinter-
pretations of the Applicants' true legal theory and position. Moreover,
throughout Respondent's pleadings the Court wiii note numerous il-
cants' contentions in certain other respects. With regard to the matter
of"differentiation", a striking example may be found in the Rejoinder, V,
at page 104in which the Respondent mis-states the Applicants' con-
tention in the following manner:
"Applicants introduce a far-reaching innovation in their Reply.
This consists of a contention which is apparently to be understood
as meaning that a mere differentiation between ethnic groups,
without any intention to benefit one group at the expense of another
would constitute a violation of Article 2,paragraph 2, of the Man-
date."
It would be difficult to formulate the Applicants' actual contention in
a more misleading manner.
Another illustration of Respondent's attribution of extreme and,
indeed, unintelligible contentions to the Applicants appears from the
Rejoinder, V, at page 243. Here, the Applicants are said to-
"... urge, without any qualification, abolition of a11differentiation
between groups, treatment of the whole population as a unit, and
universal adult suffrage-claims which have also been pressed by
majority groups at the United Nations in recent years".
In fact, the Applicants have referred to judgments of United Nations
organs with respect to standards for achievement and accomplishment
included within such judgments-the judgrnents of the competent organs,
not the judgments of the Applicants, and presented as such in these
proceedings as judgments of international organs. "Universal adult
suffrage" is a target for achievement-but obviously those words have a
content with whch the Court will be farniliar and of which it may take
judicial notice-subject to the normalrestrictions and safeguards which
attend al1democratic principles of suffrage in ail civilized societies; age,
fiteracy and other factors are of course implicit in such a standard of
achievement .
The Rejoinder is replete with similar instances of attribution to the
Applicants of extreme or unintelligible views. An extraordinary example
may be found at page 48 of the Rejoinder, VI, asfollows:
"For Applicants the [unacceptable] 'intention' [of Respondent's
educational apartheid policy which is in issue] Liesin the factthat
the policy does not contemplate an atternpt at the creation of one
single and integrated society in which al1individuals have identlcal
rights. This they regard as basically wrong, and it is for this very
reason that they seek to establish improper motives on Respondent's
part."
That staternent is, again, a parodyof the Applicants' true contention and
theory, There is no society this side of Utopia in which al1individuals
have "identical rights" and, of course, as the Applicants have sought to
make clear repeatedly, they do not seek to establish improper motives REPLY OF MR. GROSS 249
on Respondent's part; they regard the subjective intentions of Respon-
dent's officials whomay be in officefrom time to time asirrelevant to the
basic legal proposition presented to this Court by the Applicants. Apart
concerned with the subjective motivations of Respondent's officials,theall
Applicants are not aware of any society which could fairly or reasonably
be described as one which is "single and integrated", whatever those
words may mean. On the contrary, this appears to be one example of
many in which Respondent attributes to the Applicants extreme views
which, perhaps, may be designed to serve as off-setting the extreme racial
policiesb which Respondent adrninisters the Territory and which are
comprisedlwithin the concept of apartheid.
Again, in the Rejoinder, Respondent expresses its conviction that-
"... it wili be inadvisable to attempt to establish an integrated, or
single,society in which group considerations will be absent, or count
for nothing: a society, in other words, which will know only 'individ-
uals', and not 'groups', or 'members of groups"' (VI,p. 54).
Mr. President, no such society has ever existed in the history of man.
Another even more extraordinary imputation of extreme and unintel-
ligible vieus to Applicants is the following, which is read from the same
volume of the Rejoinder, VI, at page 103:
"Basic to Applicants' complaint, as has been indicated, is the
whatostheywishes of those directly concerned rnayipedbe, ando thateal1
groups and their members should be transformed into one homo-
geneous English- or Afrikaans- (but preferably English-) speaking
mass.' '
Again, comment is unnecessary. The Applicants would regard anysuch
conStilI another illustration of the imputation to the Applicants of un-
intelligible contentions appears on page 240 of the Rejoinder (VI). Here,
Respondent suggests that the Applicants intend to convey :
one integrated nation in South West Africa, as being in fact the
best method to promote weI1-being and progress to the utmost,
distinctions between tribes and ethnic groups are for that reason
to be eradicated".,
How one would go about "eradicating" distinctions between tribes and
ethnic groups is, of course, again, unintelligible to the Applicants. They
have made no such contention. It al1 depends on what is meant by
"distinctions".
One more illustration, of many, may be chosen, and this in many
respects is the most revealing of ail. By way of comment upon the Ap-
plicants' contention that the true wishes of the inhabitants are not con-
sulted by Respondent in matters affecting their lives and welfare, Re-
çpondent states in the Rejoinder, V, at page 269:
"Applicants' insistence that the consent of al1 groups in South
West Africa rnust be obtained aç a prerequisite to partition is
unrealistic, and proceeds from fallacious premises . .. Indeed, Ap-
plicants' contention, taken toits logical outcome, goes much further :
it is tantamount to ademand that a particular section of the inhab- REPLY OF MR. GROSS 251
advanced by the Applicants. This is clear from Respondent's conclusionç
in the Rejoinder in respect of each of the propositions referred to. Thus,
at page 408 of the Rejoinder, V, the Respondent refers to "compelling
groups to surrender their identities, or forcing them into an unwanted
pattern of integration". Ofcourse, the Applicants' references to views of
scientists or others had no connection whatever with any such proposi-
tion.
Similarly, at the conclusion of page 419 of the Rejoinder, V, Respon-
dent avers that "socio-cultural differences between racial and ethnic
groups may, in part at least, be the consequence of differences in genetic
potential". The phrase "genetic potential" is admittedly unintelligible
to the Applicants, and, in any event, it could, under no circumstances,
in the Applicants' theory, justify a policy of allotting burdens or denying
rights, on the basis of membership in a group rather than on the basis
of individual ment, quality or capacity, in the case of individu& whose
so-called "genetic potential" (whatever that may mean) endows thern
denied or inhibited by governmental policy or action.iIrnent of which is
It appears, on the basis of this contention, explicitly set out in the
Reply and reaffirrned in the Oral Proceedings that apartheid is fier se
repugnant to the Respondent's obligation under the relevant articles of
the Covenant and Charter.
The propositions surnmarized in the Respondent's conclusions,which
have just been referred to, are manifestly and clearly untenable and im-
permissiblepremises ofgovernmental policy and would be so in al1places
and under any circumstances. The views of governrnents'and of scientific
authority conh the self-evident and axiomatic nature of this proposi-
tion-the "genetic potential" proposition; it ignore the indiv~dual
whose "genetic potential" may or may not correspond to that of the
group to which he jsassigned, whatever the quoted phrase may mean.
Finaliy, the Applicants addressed themselves to Respondent's avowed
general proposition and again in the phrases used by the Respondent,
that as a so-called "reaIistictt function, leaving aside "idealism", govern-
ments should refrain, in the Applicants' view, from adopting laws, regu-
lations or officialpractices, designed to encourage or to foster prejudice.
On the contrary, in the Applicants' view, governments rnust act in a
rnanner which "realistically" and "idealistically" seeks to protect and
further the equal protection of the laws and the fulfiiment of the indi-
vidual perçons quality and capacity. The Respondent's contention, as
understood by the Applicants, was precisely to the contrary that, as
Respondent said, leaving "idealism" apart, a "realistjc" government
mat refrain from adopting laws, regulatioiis or official measures or
methods, which are designed to modify or relax such prejudices, con-
tentions and pressures within the society. Each of these three proposi-
tions, as understood by the Applicants, are general propositions which,
as stated by Respondent, tend to confirm and support the fer se nature
of Respondent's violation ofthe applicable legal norm and the standards
of non-discrimination and non-separation for which the Applicants con-
tend.
As has been said, if and to the extent that Applicants have misunder-
stood or incorrectly formulated Respondent's generai propositions, as
set forth in their written pleadings, and if the Respondent denies that
was their intended meaning, then of course the matcrials adduced by the252 SOUTH WEST AFRICA
Applicants in this regard become irrelevant. On the other hand, if the
then it would seem to me that there is no question, there is no room to,
question the appropriateneçs of the materids which have been adduced
by the Applicants in refutation of these general propositions asso under-
stood.
Again, the vjews set out in the written pIeadin s of the Applicants,
with respect to the views of persons of undoubted frst-hand knowledge,
are addressed to Respondent's proposition that its policies and practices
cari only be evaluated or appreciated by persons possessing first-hand
knowledge-the inference clearly being that anyone with such knowledge
must inevitably disagree or could disag~eewith the validity of the nom
and standards reflecting the judgment of the competent international
organizations. To put that more sirnply, that persons who lack first-hand
knowledge are simply not in a position to form a judgment with respect
to the inherent qualities of the policy of apartheid, from a legal point
of view. The Applicants show that such a contention regarding the
necessity for fist-hand knowledge is unfounded and adduce the views
of persons who undoubtedly have first-hand knowledge, and who have
reached a conclusion different from that for which the Respondent
contends. So far as the Applicants are concerned, the views of persons
with first-hand knowledge may or may not be correct. They are views
of persons with first-hand knowledge, who express emphatic disagree-
ment with the position of the Respondent, and the purpose in making
such demonstrations is not to pit the views of such persons against the
views of others; it is addressed ta much narrower point, and that is the
untenability of Respondent's impIied prernise that everyone with first-
hand knowledge must agree with and approve of the policy and that
tion.of first-hand knowledge will lead to misunderstanding and rejec-
Similady, as 1 have said, the purpose for adducing the views of scien-
tific authority is to demonstrate the untenability of certain general
propositions advanced by the Respondent, as understood by the
Applicants. Such general principles or propositions are understood
by the Applicants in the sense set out in the Reply, which does not
quahfy, or modify in any sense the per se nature of the violations
complained of.
Now, Mr. President, Respondent does not merely hold the Applicants
theory and contentions against a cracked mirror; Respondent in its
second alternative contention posits the measure of its obligations under
Articlez, in the light of a good faith test. The essence of Respondent's
legal theory upon which it appears to rest its case with regard to the
asserted breach of Article z, is stated in the Counter-Mernorial, II,
page 3gr, as follows:
"The 'full power of administration and legislation' granted in
term of the Article [that is Article z] covers the whole fieid of
government, the only limitation (apart fromArticles 3 lo 5)being the
element of purpose. And both the power and the purpose are defined
in such a manner asto preclude any possibility of misunderstanding.
(Indeed as will be shown later, the Applicants do not aiiege or sug-
gest any possibility of misunderstanding.) The question before the
Court can therefore in essenceonly be one of intentions, or purpose,
or good faith." REPLY OF MR. GROSS 253
a possibility of misunderstanding and in fact the Applicants suggest that
the intentions or purposes of Respondent's officials,who may be in office
from time to time, are irrelevant to the question of the legal quality of
the administration of the sacred trust. In the face of the rnisunderstand-
in or mis-statement of the Applicants' position in its pleadings, thus
reFecited in the Counter-Mernorial, the Applicants sought to enlighten
Respondent in the Reply. The Applicants refer for exarnple, to-
".. .the legaily cognizable norms according to which Respondent's
obligations under Article2,paragraph 2, can and should bejudicially
determined" (IV, p. 476).
Again, in the Reply, in respense fo this misconstruction of the Appli-
cants' true theory evident from the Counter-Mernorial, the Applicants
state :
"Given the basic and fundamental nature of the norrn of non-
thatthe violation of this rule by Respondent is ipsofactoa violation
of Article2, paragraph 2,of the Mandate," (IV, p. 511.)
And on page 518, the Appiicants made again explicitly clear-
".. .that the norms, in accordance with which Respondent's obliga-
tionsas stated in Article 2, paragraph z,of the Mandate are to be
judged, are the relevant norms currently and generally accepted".
And these of course, are described and defined in the Reply.
Respondent, in its Rejoinder, and again during these Oral Proceedings,
nevertheless insists upon the position or representatioof the Applicants'
theory in this case as being that the Applicants are posing the issue of
good faith. Respondent tenaciowly adheres to that construction of the
Applicants' view, at the same time insisting, that it is the only tenable
legal theory upon which the Applicants could hope to win their case in
any event-that it isthe only bais upon whichthe Court could judge the
Respondent's conduct. It is somewhat unusual to find a party insisting
upon which it could hope to win its case, when that other party vehe-e
mently insists that that is not the theory upon which it is proceeding; it
is an anomalous situation thus create'd.
The Applicants have declined to accept this theory and have, indeed,
insisted and do now re-affirm insistance that they reject the good faith
test, notwithstanding Respondent's warning that the Applicants cannot
hope to prevail in this litigation unless they followthe road indicated by
the passage 1have quoted frornII, page 391, of the Counter-Mernorial.
The chain of Respondent's mis-statements, and one must Say "distor-
tions" of the Applicants' standards and norms, the legal theory under-
lying their case and the views, social and other, which they advance, al1
form a setting for Respondent's analysis of the Court's proper judicial
function or lack thereof under the sacred trust. Osciiiating between the
purposes of the Mandatory andthe purposes of the Mandate, Respondent
juxtaposition (II, p. 391). intentions, or purpose, or good faith", al1in
With respect to this matter, 1should like to read from Counter-Memo-
rial, II, at page 391a passage which begins with the conclusions stated
in the previous paragraph, and 1pause parenthetically to point out that254 SOUTH WEST AFRICA
the paragraphs referred to are on pages 390 and 391, and that in thme
paragraphs Respondent contends, inter alza :
"That no act or omission on Respondent's part would constitute
a violation of this Artic2,urilesssuch act or omission was actuated
by an intention or directed at a purpose, other than one to promote
the interestsof the inhabitants of the territory."
That is in one of the previous paragraphs to which the quotation 1
shall now read to the Court refers:
"The conclusion stated in the previous paragraphs, is supported
by a further consideration. The Court is a judicial organ and can
accordingly not corne to decisions othenvise than in accordancewith
legal norms. If the Court were to decide whether in fact a particular
policy promoted the "well-being" of the inhabitants "to the utmost",
it would have to consider that policy and weigh it against other
policies which rnight be foilowed in an attempt to achieve such a
purpose. in order to arrive at a decision, the Court would thereupon
have to decide which poLicyit considers best. The Court's function
in sodeciding would be one whichis,in its very nature, not a judicial
one. No legal criteria cabe used in such adjudication. The decision
can only be based on social, ethnological, economic and political
considerations." (II p. 391.)
If the AppIicants understand this paragraph correctly it is certainiy
correct to the extent that a court could not undertake to perform the
functions of a government in the Territory or any place else. This of
course has nothing incammon with the Appiicants' true contention, and
it is,nthe Applicants' submission, a perversion ofthe issuetruly presented
with respect to the Court's proper judicial function in respect of the
protection of the sacred trust.
Respondent's interpretation or analysis of the proper role and scope
of judicial protection of the Mandate is, in the Applicants' view, a wholiy
false reading of the Mandate and of aii its essential and inter-related
component parts, including the compromissory clause itself, the super-
visory functionsexplicitly provided for in Article 6, the consent require-
embodied in Articlesar2grthroughan5 of the Mandate. These are al1 inter-lf
related, they inter-penetrate. The judicial function of protection of the
Mandate extends to al1of them. The question ofcourse is, asstated at the
outset, by what juridical principles, on the basis of what legal proposi-
tions, is the Court to interpret and apply the obligations of the Mandate
andthe rights of the inhabitants? And in this respect the Applicants also
submit that no legal distinction is properly dra1v-nbetween Article 2 of
the Mandate and Articles 3 to 5 of the Mandate.
Al1 are comprehended within the sacred trust. The requirement in
Article 5, for exarnple, that the Mandatory, "shall ensure freedom of
conscience", isno more-or-less specific, no more-or-less subject to the
application of relevant legal norms and standards, than are the obliga-
tions of Articlez,paragraph z.Cornpliance with both is judicially deter-
minable by reference to objective criteria.
Respondent explicitly concedes this proposition with respect to its
obligations under Article 5, ~vhichincludes the protection of freedom of
conscience. Respondent's concession in this respect maybe found in the
Counter-Memorial, II, at page 387. Respondent at the same tirne denies REPLY OF MR. GROSS =55
the applicability of this proposition, in respect of Artic2,and instead
asserts the good faith test in respect of Article 2, and then squeezes
judicial protection out of the sacred trust, its essential component, by
its analysis of the judicial function. This interpretation of the judicial
function, contended for by the Applicants, 1 have just quoted from the
CoThe norm and standards for which the Applicants contend are not
based upon, nor do they reflect, abstract andundehable concepts, such
as "integration" or "differentiation", so stated.
The norm and the standards, to the contrary, embody the results of
a universal assessrnent of the evils inherent in racial discrimination and
group separation, as such evils have been found determined, and ad-
judged by the competent organs of the international cornmunity, vested
not only ~vivitthhe right but the duty of administrative supervision and
safe-guarding of the sacred trust,
Standards relevant to interpretation of legal instruments or institu-
tions are not to be attacked as based upon faulty appraisal of the under-
Iying facts; once the standards are establishedby the competent organs,
then in the Applicants' view the Court should accept them as part of -
"the legal given" and not as themselves subject to judicial redetermina-
tion. The processes, the continuity of attention, the inter-action of rele-
vant social and political forces-these factors are relevant and peculiar
to the competent political international organs which constitute the nor-
mal security of the Mandate.
Judge Sir Gerald Fitzmaurice. in the course of lectures delivered in
1957 ,aç discussed such considerations, pointing out that the ultirnate
validity of law is always itself an extra-iegal question not susceptible to
judicial review. The learned Judge quoted a celebrated passage from
Salmlad's Jurispradence, 10th Edition, page 155, an excerpt of which
reads as follows:
"But whence comes the rule that the Acts of Parliament have the
force of law? This is legaliy ultimate;its source is historical only,
not legal. The historian of the constitution knows its origin, but
lawyers must accept it as self-existent. It is the law because it is
the law,and for no other reason that it is possible for the law totake
notice of."
As Sir Gerald went on to comment:
"This classicpassage shows that even in the domestic field the law
is in the Iast analysisbinding simply because it is the law, and if this
is true even in that field, it is a fortiori true on the international
plane." (This is quoted from Vol. 92 of the Rectteils des Cours at
P.46.1
It isin this spirit that the Applicants respectfuliy çubmit thestandards
should be regarded which have emanated from the competent institu-
tions of the organized international community and which, moreover
exist today as a legal norm of non-discrimination or non-separation.
Respondent and the Applicants obviously differ as to the applicability
of the judicial function with respect to international legal norrnç. Reçpon-
dent contends, for example, from the vcrbatim record, VIII, at pages
694-695 "that condemnation in exfressis verbis of apartheid" by the
nom-creating organs has no relevance for the Court. Thus Respondent
argues at page 695 of the verbatim record 1have just cited: SOUTH WEST AFRICA
"This Court is not assisted in any way by such a condemnation as
farasthe standards involved are concerned, because the Court must
make its own determination and will, in my submission, make its
own determination, on the evidence presented to it, whether that
evaluation, that judgment, that the poiicy is based on a concept of
racial superiority or racial hatred, is correct or not."
The Applicants respectfuily disagree; the competent organs have per-
ceived and characterized Respondent's policieç of group separation as
based upon a concept of racialsuperiority or racial hatred, and have done
everythng within their competence to indicate the incompatibility of
apartheid with international standards goveming the Mandate and with
international hw itself.
What more could the organized international community do by way of
characterizingRespondent's policiesand practices 3s impermissible under
the mandate andas illegalunder internationallaw? FVhatmorecould they
have done or said?
The issue before the Court, accordingly, is whether the processes of
the organized international community have or have not eventuated in
international standards or an international legid norm, or both. It
may be helpful at this point to emphasize that the Applicants wiIl en-
deavour to estabiish by means of a series of cumulative theories that
apartheid is a arse violation of Articl22 of the Covenant and of Article
2 of the hlanCa!'te, aswell aof the applicable international legal norm.
The Applicants wili endeavour to show that the international mle ern-
bodied in Article zof the Mandate, an internationai institution with an
international status, must be interpreted asprohibiting the policy and
practice of apartheid. Such policy and practice are set forth in the writ-
ten pleadings, largeiy in Respondent's pleadings, and comprise laws and
regdations and the officia1methods and measures, the existence of which
the Appiicants to constitute a fiesevioYationaofthe Mandate rule itself,
of the Mandate norm itself, and of the general international legal norm
which exists in terms of Article 38 of the Statute as well.
Secondly, as an additional and cumulative proposition, the Applicants
contend that Respondent's adherence to the United Nations Charter
and membership of that organization constitute consent to the norm
of non-discrimination and non-separation, as defined in the Reply, IV,
at page 493-
Thirdly, the Applicants contend that an international legal norm of
non-separation and non-discrimination so defined exists and is applicable
asan international legal nom, irrespective of Respondent's opposition
thereto, or otherwise.
Note may be taken ai this point of the juridical significance properly
to be attached to the legalconsequences arising from Respondent's failure
and refusa1 to submit to international accountability in respect of the
very development of the norm and standards at issue here. Apropos of
such failure and refusal to submit to international accountability, it was
said in the1950 Advisory Opinion:
"lihen the authors of the Covenant created this system, they
considered that the effective performance of the sacred trust of
civilization by the mandatory Powers required that the admini-
stration of mandated territories should be subject to international
supervision." (I.J.C. Reports 1950.p.136.) REPLY OF MR. CROSS
25 7
The aspect of the present litigation, in the context of the point irnmedi-
ately under discussion, is foreshadowed by this honourable Court in its
South West Africa. The Opinion bears directly upon the "effective per-
formanceof the sacred trust", in the words of th1950 Opinion. The oint
at issue concerns the effect upon the normative processes of RespBent's
refusa1as Mandatory, to CO-operatewith the institutions of the organized
international comrnunity, "upon whom the sacred trust was laid", in
the words of the 1962 Judgment.
In consideringwhether itwas consistent with the 195oAdvisory Opinion
for the United Nations to grant petitioners a right of hearing, the Court
said in 1956:
"It appears from Resolution 749A (VIII) thatthe Mandatory was
refusing to assist in the implementation of the Advisory Opinion of
the Court and to CO-operatewitli the United Nations concerning the
submission of reportsand the transmission of petitions in accordance
with the procedure of the Mandates System. As the Mandatory con-
tinued in its refusa1to CO-operate,the Committee found itself handi-
capped in the examination of petitions. It lacked both the Manda-
tory's comments on the petitions and the supplementary informa-,
tion which tlie Mandatory rnight have been expected to çupply to
the Committee directly or through its accredited representative.
Thesewere the circurnstances prevaiIing at the time that the Commit-
tee requested the General Assembly to decide tvhether or not the
oral hearing of petitions by the Committee would be admissible."
(I.C.J. Reports 1956, p26.)
At page 30,the Court went on to Say:
working of the MandatesSystem, that the exercise of supervision byr
the General Assembly shouId be based upon material which has
been tested as far as possible, rather than upon material which has
nut been subjected to proper scrutiny either by or on behalf of the
Mandatory, or by the Committee itself." (I.CJ. Reports1956,p. 30.)
"The Court notes that, under the compulsion of practical con-
siderations arising out of the lack of CO-operationby the hiandatory,
the Committee on South West Afnca provided by Rule XXVI of
its Rules of Procedure an alternative procedure for the receipt and
treatment of petitions. This Rule became necessary because the Man-
datory had refused tu transmit to the General Assembly petitions
bythe inhabitants of the Territory, thus renderinginoperative pro-
visions in the Rules concerning petitionsand directly affecting the
ability of the General Assembly to exercise an effectivesupervision."
(Ibid..p. 31.)
In 1956the Court concluded by Saying:
"The particular question which has been submitted to the Court
arose out of a situation in which the Mandatory has maintained its
refusa1to assist in giving effect to the Opinion II July 1950,and
to CO-operate with the United Nations by the submission of reports,
and the transmission ofpetitions in conformity with the procedure of
the Mandates System." (Ibid, pp. 31-32.)
The Applicants contend that this judicial cognizance of the legal con-258 SOUTH WEST AFRICA
sequences of Respondent's non-CO-operation is also relevant to an ap-
praisal of the contention that apartheid is a fierse violation of Article z
on the basis of international standards and a legal norrn developed by
the superviçory organ. Within the organized international community
speaking through its competent organs, there has evolved an authorita-
tive criterion, whether called norm or standards, as to the content of
moral and socialwel1-beingwith respect to race relations in the Territory.
This criterion has ernerged as part of the condemnation of Respondent's
admitted practices and policies, but the legal interests of the organized
international community in the protection of the well-being of the inha-
bitants have not been realized as a consequence of Respondent's persis-
tent defiance of supervision and non-CO-operationwith the competent
organs.
It is in the face of this frustration of the will of the competent organs
that the Applicants have had no alternative but to seek recourse to this
honourable Court to obtain a judicial interpretation of the obligations
of the sacred trust, including Article2,thereby making use of the judicial
basifseoreffective international supervision. Recourse to judicial remedies
to uphold the sacred trust in the past was rendered unnecessary by the
collaborative relationship wkich existed at one time between the Manda-
tory and the organized international community, and it ishoped by the
Applicants, at anyrate, that the Respondent will relent in its continuing
refusa1 and failure to submit to such processes and to withhold its co-op-
eration. It is, in part, in response to the failure and refusal of collabora-
tion that the competent supervisory organs in the international society
have evolved a clear view of the incompatibility of the obligations of
Article 2 (2) and of apartheid itself.
The clear view concerning apartheid, which is held by a prevailing
consensus in the organized international community, in the Applicants'
submission,also constitutes an ovenvhelrning demonstration of its pet. se
character.The non-CO-operationof Respondent, together with the mani-
fest incompatibility between Respondent's conduct and the international
standards governing Article 2, underly the Applicants' contention that
this Court should hold that apartheid is a fiese violation of the Mandate
and of international law, as a cumulative and alternative argument.
hfr.President, it is in part in response to the failure and refusal of
coliaborationby Respondent that the competent supervisoryorganshave
evolved a clear view of the incompatibility of the obligations of Articl2,
paragraph 2,in relation to apartheid. The essence of the point under dis-
cussion here, 3lr. President, is that the Respondent contends, on the one
hand, that a goodfaith test is applicable by which its performance of
the sacred trust should be judged, while on the other hand it denics its
CO-operationto the normal security, to the supervisory organ responsible
for the safeguarding of the sacred trust-a position ofinconsistencywhich
the Applicants are now endeavouring to bring to the Court's attention.
Respondent's thesis isthat its performance must be judged on the
basis of its purpose, intent, motive and a good or bad faith inference be
drawn. On the other hand, the Respondent refuses to CO-operatewith
the normal processes by which such a judgment, if it were relevant,
could be reached. Of course, the Appiicants do not believe it relevant in
any event,but it is an untenable position forthe Respondent to present
to the Court. The clear view of the international community regarding REPLY OF MR. GROSS 259
apartheid which is held by a prevailing consensus constitutes an over-
whelming demonstration of a #er se violation. The non-CO-operationof
Respondent, together with the manifest incompatibility between its con-
duct and the inteniational standards governing Article z, underlie the
Applicants' contention that apartheid codd not by its nature possibly
have a beneficial effect inany meaningful sense of the term, but that,to
the contrary, as found by the competent organs, it is inherently and per
se incompatible with moral weii-being and social progress. The legal sig-
nificance of Kespondent's denial of CO-operationor consultation with the
supervisory organs, notwithstanding its specialresponsibilities as Trustee,
is confirmed and illuminated in the separate opinions of Lord i\fcNair
in 1950and of Sir Hersch Lauterpackt in 1956-1 refer specî6cally to the
I.C.J. Reports 1950, at pages 149-150 an,d the 1.C.J. Refiorts 1956, at
pages 55and followingofthe late Judge Sir1-IerschLauterpacht's opinion.
30th opinions relate to the flexiblecanons of interpretation appropriate
to give maximum effectto the trust characteristics of themandate instru-
ment, whether the instrument be viewed as a treaty, or asa convention.
or both. Article 2, paragraph 2, of the Mandate and Article 22 of the
Covenant ernbody the essence of the sacred trust, and their effectuation
demands the combination of techniques, in juxtaposition, of the appro-
priate functioning of the administrative organ and the protection of the
judicial organ,both ofwhicharevested with complementary and mutually
reinforcing responsibilities with regard to the safeguarding and protection
of the çacred trust.
The duties of the Mandatory have been described by an authority
recognized as such and cited by Respondent in another context, who has
written-1 refer to GeorgSchwarzenberger, InternationalLaw, Volume 1,
third edition, at page roo, 1957-that among the three major duties of a
mandatory-
"The first is the general international responsibility for any breach
of the terms ofthe mandate treaty or trusteeship agreement in ques-
tion and for al1other infringements of international law which are
imputable to the authorities of any such territory."
The Applicants contend that both Article 22 ofthe Covenant and Article
2 of the Mandateare to be interpreted as imposing a minimum obligation
to administer the Territory without violation of thestandards established
by the organized international community, which standards prohibit
discrimination and separation as amatter of officia1government policy.
Moreover, as a cumulative and alternative contention, the Applicants
argue that Respondent is under a duty to administer the Territory in ac-
cordance withinternational law, in accordancewith an international legal
norm of the same scope and content as the standards in question, which
likewise prohibits officia1separation or discrimination. In either or both
respects, cumulatively and alternatively, in the Applicants' respectful
submission, Respondent is violating either or both the international
rule of the Mandate itself or the applicable international legal norm;
under either or both legal premises, cumulatively and alternatively,
the undisputedfacts ofrecord constitute a perseviolation ofthe Covenant
and hiandate, and it may be unnecessary to remind the Court that by the
phrase "undisputed facts of record" the Applicants refer to legislation,
administrative regulations and methods and measures adopted officially
in implementation thereof, the existence of which isconceded by Respon-260 SOUTH.WEST AFRICA
dent. In respect of the international legal norm and standards for which
the Applicants contcnd, the foregoing cumulative and alternative sub-
missions appear to be self-evident.
Respondent in its written pleadings concedes-this isfrom the Counter-
hlernonal, IV, page 68-that-
"Respondent adrnits that it was a basic principle of the Mandate
System that the territories placed thereunder would each, during
the existence of the particular Mandate, have a distinct international
status or indentity."
Even a sovereign State is obiiged to govern its territory and people in
accordance with international law. Certainly something more is to be
expected of a mandatory, which is performing the duties of a trust on
behalf of the organized international community upon which that trust
was laid, and which the mandatory is exercising ivithout an independent
legal title. Respondent cannot be heard to Say that its obligations as
hlandatory are not affected by the international legal norm and interna-
tional standards evolving "outside the Mandate", to use its phrase. Such
a contention would be equivalent to arguing that ifthe Mandatory were
engaging, let us Say, ingenocide in the Territory, it would not be afier se
violation of Articlez and Article 22 of the Covenant. It would be equiva-
lent frornlegalpoint of viewto arguing, asdoes Respondent, that it would
be necessary to demonstrate its bad faith, or that the rnethod, in its word,
it was employing in the rxercise of its discretion could only be appraised
by an independent inquiry inlo whether genocide, as practised in the
entire context of the Territory, was good or bad, or whether it was not
promoting tothe utrnost the welfare of the inhabitants. To statethe mat-
ter another way, it might be viewed by some-indeed, by many-that
the denial of rights and status on the basis of indivual quality or capa-
city is a mutilation of the personality and potential of the individual
person, a mutilation of talents, which the organized international com-
munity perceives to be equivalent in a legal as well as a moral sense to
physical mutilation. However that may be, what is at issue here is the
Respondent's concept of the wide ambit of itç discretion, a concept which
indeed seems to be a strange sacred trust of civilization for the interna-
tional community to have bestowed. A good faith test is inherently an
incredible test. If, and hypothetically, a mandatory should corne under
the control of a person or leaders obsessed, then what would be the rele-
vant standard under the good faith test? There is a basic difference be-
tween the Parties as to the character of international standards, as they
bear upon this phase of the legal argument. Respondent attributes to
Applicants the following conception of international standards, and 1
quote from the verbatim record :
"And they [the Applicants, that is]made clear-so we understood
them in their pleadings, and, indeed, in my learned friend's oral
argument-that, when they speak of standards in that regard, they
derive those standards frorn the spheres of the political and çocial
sciences-from the rveightofscientific authority in that regard aswell
as from the practices of governments, from the standards which
are currently operative in modern society, standards pertaining to
methods of governrnent, to considerations of fairness, equity and so
forth.. ." (Sziprn,p. 102.)
Such a misunderstanding of the Applicants' position arises from a REPLY OF MR. GROSS 261
confusion between the evidence used to demonstrate the existence of stan-
dards and the content of the standards themselves. When the Applicants
speak of standards governing Articlezthey refer to rulcs ofconduct having
a content similar to, but not an equivalent degree of legal author-
itativeness of a legal norm. Such standards may be formulated in terms
of generality which correspond to the norm of non-discrimination and
non-separation which the Applicants contend exists, or such standards
may be formulated with respect to a component elernent of the subject,
for example. educational policies, and hence be stated in more specific
terms than the general standards or the legal nom possessing the same
content but of different legal qualities.
The theories of experts have been brought into these proceedings for
the purpose and in the context which 1 have sought to explain to the
Court. Theorieç of experts and views of governments are indicative of the
social facts which give rise to the standards but they do not constitute
the standards themselves.
The Applicants regard standards, as I have said, as rules of conduct
which in this case govern the interpretation of the Mandate, and are
differentiated from a legal norm onIy in the respect that adherence to
them may not itself be a matter of independent legal duty pursuant to
an international legal norm which would govern even in the absence of
the sacred trust obligation of the Mandate, and the Applicants contend
as a cumulative and alternative argument that Article 2 is governed
by an international legal norm itself, that this legal normisto be applied
on the basis of the relevant norm of non-discrimination and non-separa-
tion, which has been created independently of the Mandate, and which
is of universal application. Pursuant to this alternative and cumulative
theory, the existence of an international legal norm prohibiting separa-
tion and discrimination. or either of them, would indeed be of universal
application.
In the casepresented here ~vhich,of course, is the only issue of coverage
of the norm, that is with respect to the Territory itself, the Appiicants
submit that the application of the international legal norrn to the sacred
trust isa fortioriIn the Applicants' submission the principal link between
an evolving international society and the regirne created by the mandate
instrument consists of such evolving international legal noms and inter-
national standards. Indeed a .major restriction upon the discretion of
the Mandatory flows from the possibility of comparing its policies with
applicable international legal standards relevant to the weH-being of the
inhabitants,and itis a restriction ivhich courts are peculiariy competent
to supervise and protect. Such a judicial function allows the cornpromis-
sory clause to serve as an important means by which the organized inter-
national commünity, of which this Court is the judicial arm, may uphold
the welfare, the progress, the moral well-being of the inhabitants of the
Territory.
Upon this analysis it is obvious to the Applicants that the ailotment of
rights, burdens and status upon the basis of membership in a group rather
than on the basis of individual quality or capacity, wherever and when-
ever officiallypractised in the territory under mandate, constitutes an
a fortiori application of the international legal norm.
Respondent, in the Rejoinder and again in the oral argument-I refer
at this point to the Rejoinder, V, pages i30-133-stresses its contention
that the norm of non-discrimination as the Applicants describe it does262 SOUTH WEST AFRICA
not exist as an international legal norm. The Respondent's argument in
this regard is that the norrn contended for by the Applicants has not
arisen by any of the accepted processes by which international legal
norms are forrned. Respondent expressed its view in explicit terrns in
the proceedings of 23 April where Respondent said:
"... that the large number of the conventions, resolutions, and so
on, referred to by the Applicants were matters to which the Respon-
dent was never said to be a party, and to which, in fact , the Respon-
dent never was a party. Only two instruments fell to which the
Respondent had been a party, to be specially considered in this
regard. One was the United Nations Charter, and the other was the
Constitution of the International Labour Organisation .. .we indi-
cated that the provisions of those instruments were not such that
itcouId be said that Respondent had ever consented toa norm ..."
(VZII,P. 675-1
This contention is ernphasized inasmuch as it reveals in striking
fashion the wide divergence of the Parties regarding the functions
çerved by the organized international community in the creation and
developrnent of international legal norms. This divergence between the
Parties is manifested in at least three respects. First, the Appficants
contend, and will elaborate shortly, that forma1acts on the part of inter-
national institutions are significant evidence of the character and exis-
tence of international standards and of international legal norms.
Secandly, that the willof the organized international community, expres-
sed particularly by virtue of unanimity, may serve as a quasi-legislative
substitute forthe consent of each and every State. Applicants advanced
this as an alternative and cumulative argument apart from the mandate
nom itself as an international niling and, in doing so, proceed from the
premise advanced by Judge Azevedo in his dissent in the Asylum case
(I.C.J. Reports 1950, p. 337).Quoting from the learned Judge's dissen-
ting opinion :
"It is then very dangerous for a State to proclaim that it isbound
only by the treaties which it has signed and ratified. This purely
gratuitous declaration is rather daring, particularly at a time when
the contractual element is undergoing an obvious and deep change
by virtue of the para-legislaiive action of an international character
which is being developed even ai the cost of substituting the ma-
jority principle for the principle of unanirnity."
Thirdly, the AppIicants contend that Respondent's consent to the
organic law of the United Nations and the International Labour Orga-
nisation Constitution likewise entai1 consent to the processes of such
institutions for giving authoritative, evolving and dynamic content to
the provisions of a constituentcharter, or ordinance, of such institutions.
In so far as the Applicants rely on the existence of an international
legal norm created through the processes of the international organized
community, they perhaps rest upon a law-creating process which has
not heretofore been considered or passed upon by this honourable Court.
In so far as they rest upon the legalnorm created by the mandate
institution itself, the rule regulating the mandate, the Applicants rely
upon traditional canons of interpretation and of application which in
their view are unassailable. REPLY OF MR. GROS5 263
The jurisprudence of the trust instrument, the Mandate itself, join
with the categorical,universally accepted-but for the Respondent-and
evplicit judgments of the competent international organs, to compel the
interpretation and application of Article 2, paragraph 2, in a sense and
on a basis which proscribe, per se, the policy and practice of apartheid.
The standards thus prescribed by the organized international com-
munity, which is vested with the responsibility and which bears the
burden of supervision and safeguarding the sacred trust, are so clear and
so firmly rooted as to obviate any basis for a rcasonable doubt con-
ceming the proper interpretation of the Mandate in the sense contended
for by the Applicants.
As the Afernorials,1,pages 104 and foIlorving,make clear, themandate
obligations are to be read in the light of the Charter undertakingç-1
refer of course to the United ~afions Charter.
iVith respect to the existence of an international legal norm, as weii
as of the international standards governing the interpretation of the
Mandate, the three points already enumerated may be referred to again.
petent, supervisorp, international institutions;judgsecondly, the role of
consensus, as distinguished from unanimous consent, in the norm-cre-
ating process and, thirdly, the legal consequences of Respondent's con-
sent to the obligations of the United Nations Charter, of the Inter-
national Labour Organisation Constitution, and similar competent inter-
national institutions.
The Applicants will attempt to deal with these considerations in more
detail shortly in this stage of the Oral Proceedings. Their arguments will
be based on, and will reflect, the demanstrations previously made in the
written pleadings and in these Oral Proceedings of the undoubted
existence of international standards as well as of an international legal
norm of non-discrimination or non-separation.
The decisive relevance of the issue thus posed to the Court is manifest
fromReçpondent'ç contention that the judgment of the competent
supervisory organ, and 1 quote from the Counter-Memorial, II, page 3,
"are of no relevance whatsoever to this Court's judicial functions".
The crucial relevance of these considerations likewise is manifest from
the Respondent's contention that itis not bound by the norm of non-
discrimination or non-separation-
". ..inasmuch as the basic principles of international law involve
period of the coming into general acceptance of the mles in question.
openly and consistently made known their dissent therefrom".
(VIII,p. 676.)
Accordingly, the Applicants shortly will endeavour to address them-
selves to an elaboration of the legal considerations which, in their res-
pectful submission, support their contention that neither Respondent,
nor any other State, possesses a veto over the normative processes at
work in the organized international community, either as to standards
for interpretation of its undertakings in the trust instrument of the
Mandate, or as to the creation of legal normç appfcable to conduct which
is generally condemned as a fundamental invasion of the rights and
statuç of the individual person, in this case the inhabitants of the
mandated territory, entitled both to the protection of the sacred trust264 SOUTH WEST AFRIC.4
and to administrative supervision thereover and to judicial protection
thereof.
hlr. President, it may now be convenient, having concluded these
somewhat discursive introductory rernarks, to address responses to
Judge Sir Gerald Fitzmaurice's questions 8 and IO.
First, with respect to question 8, propounded by the Iearned Judge.
In the Oral Proceedings of 7 May rg65I, question 8 was propounded by
Sir Gerald in the followingterms:
"There are certain differences betxveen the English and French
texts of Article2 of the Mandate. Instead of 'shall profraote(''pro-
mouvoir', 'favoriser'), the French text says 'accroîtra' (shall increase
weU-being,etc.). Instead of shail promote 'to the utmost' ('au plus
haut point'), the French text says 'par tous les moyens en son
ouvoir' ('by al1the means in its power' or 'by al! available means').
hhat significance do the Parties respectively attach to these dif-
ferences? What is the resultant of the combined texts, as a matter
of legal interpretation?"
The Applicantshave ascertained that the English text of the Mandate
agreement is, and always has been, the authentic text for purposes of
interpretation and application. The text ofthe Mandate for South West
Africa was originally drawn up and discussed in English, whiIethe French
version of the textwas the result of translation by the League of Nations
Secretariat.
Thus, in a letter from the Secretary-General of the League to the
Members of the League, concerning the terms of C mandates, the
Secretary-General made a statement on this subject, which is found in
the LeagcleofNationO sficialJournal, January-February 1921, at page 84,
and reads as foIlows:
"As the text of the Mandates has been discussed and drawn up
only inEnglish, the English text alonecan be considered as authen-
tic. The French version has been done by the Secretariat."
Further, Mr. President, at the Eleventh Session of the League Council
on 18 December rgzo, the Secretary-General of the League suggested
that the word "translation" be put at the head of the French test in
order to demonstrate that the English text was the original and authentic
text. This citation is to the LengrtcCouncil, ElevertthSession, Procks-
Verbal, 18 December 1920, page 39.
Accordingly, since the inception of the League of Nations, so far asthe
Applicantshave been able to ascertain, there has never been any question
about the authenticity of the EngIish text, or a discussion, of which Ive
are aware, as to the relationship of the two texts. The English text
appears aIways to have been taken as authoritative and authentic, and
the French text,as 1have said, is a Secretariat translationof the original
and authentic English text.
Neither the Permanent Mandates Commission nor the League Council
itself, and indeed,so far as wehave been able to ascertain, any Members
of the League of Nations, have expressed doubts concerning difierences
nor have they questioned the legal authenticityishofnthe text in English.
SOfar as the Applicants are aware, there has never been a so-called
' See Minutes, WU, p. 32. REPLY OF MR. GROSS ~~5
French interpretation of the obligations under the Mandate as dis-
tinguiçhed from an English interpretation thereof.
Applicants conclude, in response to Judge Sir Gerald Fitzmaurice's
question No. 8, that there presumably are no differences of substance or
meaning intended between the English and the French texts of the
mandate agreement; although, of course, the Applicants profesç no
expertise on the matter, they have sought the advice of persons fluent
in both languages. But on the question whether the French translation
is a faithful rendition of the authoritative English text, the Applicants
defer on this point to those better qualified to express a judgment in
that regard.
1 think it remains only to be said that the Applicants respectfully
submit that even if the English text were not authentic, and even if
there were differences in wording, it would be difficult, as the Appiicants
understand both texts, to detect a significance relevant in these pro-
ceedings. But this, as 1 Say, is a matter which requires a degree of
expertise on the faithfulness of the French rendition or interpretation
of the English text, which the Applicantscannot profess to have accom-
plished.
In response, then, specifically to Judge Sir Gerald Fitzmaurice's
question No. 8 in the series propounded by the learned Judge, the
English text being the authentic one, differences of meaning, if any,
between that test and the French translation thereof by the Secretariat
would not be relevant to, or govern in respect of, the Applicants' sub-
missions or theories of the case.
It may be convenient now, Mr. President, if the Applicants would
endeavour respectfully to submit their response to Judge Sir Gerald
Fitzmaurice's question IO. In the Oral Proceedings of 7 May 1965~ t.e
honourable Judge SirGerald Fitzmaurice addressed the followingquestion
to the Parties:
"Article 2 of the Mandate provides not onIy (by its second para-
graph) for the promotion (or increase) of the well-being and social
progress of the inhabitants, but also (by its first paragraph) that
the Mandatary is to have 'full power of administration and legis-
lation over the mandated territory' as an 'integral portion' of its
own territory, and may apply itç own laws 'subject to such local
modifications as circumstances may require'. What do the Parties re-
spectively consider to be the exact relationship between these two
sets of provisions? Neither is specifically subordinated to the other.
Should either nevertheless be read as being so subordinated,and if
so in what sense and to what extent? If not, and if the two clauses
are independent ofoneanother,what isthe resulting legalsituation?"
The Applicants will endeavour to answer question No. IO by stating
their conclusion first, respectfully, and then the considerations upon
which their conclusion is based.
The Applicants respectfully submit by way of response to Judge Sir
Gerald Fitzrnaurice's question No. IO that Article2, paragraph I,of the
Mandate should properly beread assubordinated to Article 2,paragraph 2.
Thesubordination ofthe firstparagraph to the secondisofimportance only
when the application of the Mandatory's own legislation and adminis-
See Minutes, VIII,pp. 32 and 34.266 SOUTH WEST AFRICA
trative policies in the mandated territory are in conflict with the objec-
tive legal criteria which measure the Mandatory's obligations under
Article 2,paragraph 2.
Thus, Article 2, paragraph I,is subordinated, or should be read as
subordinated to Article z, paragraph 2, of the Mandate, in the sense and
to the extent that the application of legislative or administrative policies
of the Mandatory, or the exercise of its powers in the Territory, in terms
of Article 2, paragraph I, are in conflict with objective legal criteria
which the Mandatory is obliged to apply in carrying out its respon-
sibilities under Articl2,paragraph 2, ofthe Mandate. And one may add,
sirnilarly, and for the same reasons, Articles3-5of the Mandate.
It would appear to the Applicants that Article 2, paragraph I, of the
Mandate, although textually set forth as the first paragraph of a two-
paragraph article, that is to çay, Article z aswhole, nonethelessapplies
to Articles 3, 4 and 5,and the placement textuaily of Article 2, para-
graph I, within the framework of Article 2 does not limit its appli-
cability to that Article.This, of course, isa question çeparate frorn the
content, or substance, or rneaning, or legal effect to be attributed to the
firçt paragraph of Article z.
The considerations upon which the AppIicants' conclusions just stated
are based may be set out as follows.
The Advisory Opinion of this honourable Court in Igjû on the Inter-
nationalStatatsofSoarthWest Africa a, well as the Judgrnent of the Court
on the Preliminary Objections in 1962, state that the principles of
Article 2,paragraph z, of the Mandate are fundamental and of essential
importance in the mandates system. Thus the Court, in the 1950 Ad-
visory Opinion, stated that when a decision was to be taken with regard
to the establishment of the mandates system itself-
"... two principles were considered to be of paramount irnpor-
tance: the principle of non-annexation and the principle that the
well-being and development of such peopIes form 'a sacred trust of
civilization'.
With a view to giving practical effect to these principles, an
international régime, the Mandates System, was created by Ar-
ticle22 of the Covenant of the League of Nations. A 'tutelage' was
to be established for these peoples, and this tutelage was to be
entrusted to certain advanced nations and exercised by them 'as
mandatories on behalf of the League'." (I.CJ. ReportsIgjo ,.131.)
Further, in its1950 Advisory Opinion at page 132 the Court stated:
"The terms of this Mandate [that is the Mandate in question in
these proceedings], as weU as the provisions of Article 22 of the
Covenant and the principles embodied therein, show that the crea-
tion of this new international institutiodid not involve any cession
of territory or transfer of sovereigntytothe Union of South Africa.
The Union Government was to exercise an international function of
administration on behalf of the League, with the object of pro-
moting the well-being and development of the inhabitants." (Ibid.,
P- 132.1
The therne running throughout the mandate jurisprudence, as evi-
denced by the statements of the honourable Court in 1950 ,s that-
although not explicitly referred to in these terms-the rights given to
the Mandatory, the powers vested in the Mandatory, pursuant to REPLY OF MR. CROSS 267
Article2, paragraph r, are basically and cssentially of an administrative
nature and are given and vested for the purpose of facilitating adminis-
tratively its accomplishment of the substantive obligations ernbodied in
the sacred trust including, of course, the core of those obligations,
Article 2, paragraph 2.
The tutelage established by the mandates system was for the purpose
of giving what the Court called "practical effect" to principles which
were of "paramount importance", and the Union Government, the
Respondent, had no sovereignty, but was merelp exercising what the
Court described as an "international function of administration" for
purposes of promoting to the utmost the welfare of the inhabitants of
the Territory. The objectives were the promotion of the welfare of the
inhabitants-1 am referring to the purposes of the Mandate, not the
purposes of the Mandaiory.
These citations from the 1950 Opinion in themselves are persuasive,
in our submission, as demonstrating the necessity of tlie propriety of
subordinating Article 2 (1)of the Mandate to Article 2 (2).But tliere is
much more to be said.
The Court, in the 1950 Advisory Opinion, was even more explicit,
and stated:
"In accordance with these tcrms [the Mandate], the Union of
South Africa (the 'Mandatory') was to have full power of administra-
tion and legislation over the Territory as an integral portion of the
Union and could apply the laws of the Union to the Territory subject
to such local modifications as circumstances might require. On the
other hand, [said the Court] the Mandatory was to observe a number
of obligations, and the Council of the League was tosupervise the
administration and see to it that these obligations were fulfilled."
(Ibid.)
This quoted statement appears to the Appljcants to be reasonably
susceptible only to one construction-given the application of the
hfandatory's own legislative or administrative measures in violation of
substantive obligations under Articles 2 to 5 of the Mandate: the dis-
cretionary powers of the Mandatory must be viewed as subordinated to
the obligations found in the Mandate provisions. Notwithstanding the .
rights of the Alandatory vested in it for administrative convenience, as
will be demonstrated shortly, such rights must be subordinated to the
obligations specifically foundin Article 2 (z), which are those in issue in
these proceedings.
The analysis is confirmed, it appears to the Applicants, by the judg-
ment of this honourable Court in 1962 on the Preliminary Objections.
The Court stated as follows:
"The essential principles of the Mandates System consist chiefly
in the recognition of certain rights of the peoples of the under-
developed territories; the establishment of a régimeof tutelage for
each of such peoples to be exercised by an advanced nation as a
'Rlandatory' 'on behalf of the League of Nations'; and the recogni-
tion of 'a sacred trust of civilisation' laid upon the Lcague as an
organized international community and upon its Member States.
This system [said the Court] is dcdicated tothe avowed object of pro-
moting the well-being and development of the peoples concerned and
is fortifieby setting up safeguards for the protection of thcir rights. SOUTH \VEST AFRlCh
These featuresare inherent in the Mandates System as conceived
by its authors and as entrusted to the respective organs of the
League and the Rfember States for application. The rights of the
Mandatory in relation to the mandated territory and the inhabitants
have their foundation in the obligations of the Mandatory andthey
are, so to speak, mere tools given to enable it to fulfil its obligations.
The fact iç that each hlandate under the Mandates System con-
stitutes a new international institution, the primary, overriding
purpose of which [and 1 stress the words 'overriding purpose of
which'] is to promote 'the well-being and development' of the people
of the territory under hlandate." (I.C.J. RePorls1962, p. 329.)
The tool is seen most definitely in Article 2 (1)and it isa tool which,
as the Court pointed out, js entrusted to the hands of the Mandatory for
the solepurpose of enabling it to fulfi1its obligations. It wouId seem
difficult to find a more persuasive indication of the relative roIes of sub-
ordination of the first paragraph to the second paragraph than the clear
meaning, to the Applicants at least, of this rnetaphor employed by the
Court..
The same point, it is submitted, is to be found in the separate opinion
of Judge Bustamante, appended to the 1962 Judgment. Thus, the
learned Judge states :
"The Territory is handed over to the Mandatory only tempo-
rarily for administrative purposes, and in no category of mandate
can this be taken to signify a transfer of sovereignty."(lbid., p. 352.)
Again we have explicit reference to administrative convenience for
"administrative purposes", in the words of the learned Judge, a con-
venience or purpose which, as a tool given to the Mandatory to discharge
its obligations, must be subordinated to the primary and overriding sub-
stantive obligations found inArticIe 2 (2)of the Mandate. And, again,
the Court's attention is respectfully called to the use of the word "over-
riding" in the 1962 Judgment in respect of Article 2 (2) obligations. I
[PübEic hearing of 14 May 1g6j]
blr. Presidentand Mernbers of the honourable Court, at the conclusion
of the Oral Proceedings yesterday 1 was referring to the considerations
underlying the Applicants' reçponse to the tenth question propounded
by Judge Sir Gerald Fitzmaurice in his important series of questions,
and this of course related to the question whether the first paragraph
of Article 2 of the Mandate is subordinate to, or ifnot, what is its
relationship with the substantive obligations under the Mandate, speci-
fically Article2, paragraph 2. This iç a rough paraphrase, 1 believe an
accurate one, with ail respect, of the intent of the question to which
1 will continue,with the Court's permission, to address rnyself.
In addition to the considerationsadduced at the Oral Proceedings yes-
terday, the Applicantssubmit that another indication of the subordination
of the first paragraph of Article 2 to the second paragraph thereof, as
well as to the substantive obligations embodied in Articles 3, 4 and 5
of the Mandate, is to be found in the wording of paragraph 6 of Article22
of the Covenant of the League of Nations itself.
Article 22, paragraph 6,of the Covenant may perhaps, for the con-
venience of the Court, be inserted into the record and 1 shall read it: REPLY OP MR. CROSS 269
"There are territories, such as South West Africa, and certain of
the South Pacific Islands, which owing to the sparseness of their
population, or their small size, or their remoteness from the centres
of civilization, or their geographical continuity to the territory of
the mandatory, and other circumstances, can best be administered
under the laws of the rnandatory as integral portions of its territory,
subject to the safeguards above-mentioned in the interests of the
indigenous population."
Paragraph 6 of Article 22 of the Covenant, which 1have just read, in-
djcates quite clearly,in the Applicants' submission, that the rights given
to the Mandatory are a matter of administrative convenience and subor-
dinate to "the safeguards above-mentioncd in the interests of the indige-
nous population" in the final clause of paragraph 6 of Article 22.
The purpose underlying the clause's integral portions wording, as used in
the text, is made clear by the text of Article 22, paragraphs I and 2,
particularly, and also, as a corollary thereof, paragraphs 6, 7, 8 and g,
with the specific safeguards provisions.
The explicit references in paragraph 6 of Article22 to the remateness,
smallness of size and so forth of the territories destined to beçome C
mandates wouid seem to indicate that what the phrase refers to are mat-
ters of administrative convenience, which arise out of the enumerated
factors. These enumerated factors of sparseness, remoteness. etc., are
qualities which peculiarly pertain to administrative considerations. They
do not in themselves bear upon, nor indeed do they seem relevant to,
considerations of substantive nature, of obligational nature. The fact
that a territory is remote, or the fact that it is sparsely settled, poses
problems of a classically administrative nature, and has nothing to do
with the content of an obligation in respect of policies which are or are
not conducive to the promotion of the welfare of the inhabitants of such
sparsely populated or remote areas. Quite the contrary-such sparseness
of population, such remoteness, such other factors impose a greater
burden and a greater duty upon the Mandatory to exert greater efforts
to achieve the desired result.
This is a reason for giving administrative tools, procedures of an
administrative and legislative nature, which facilitate the accornplish-
ment of the sacred trust. 1 shall have more to say about that in a few
moments, in terms of the mandate jurispmdence as it has developed
since 1950 onwards.
Perhaps the most significant indication that the authors of the Cove-
nant intended to refer ta matters of administrative convenience is the
wording of the last clause of the paragraph to which 1 have rcferred,
namely "subject to the safeguards above-mentioned in the interests of
the indigenous population". This is a proviso of decisive consequence in
the context. The stress here, of course, is on the phrase "subject to",
and these are words of subordination, in the Applicants' view.
Now the safeguards referred to are those set out in Article 22, para-
graph I, and ArtjcIe 22, paragaph 2, of the Covenant. Article 22,
paragraph I,provides :
"That the well-being and development of such [that is, dependent]
peoples form a sacred trust of civilization and that securities for
the performance of this trust should be embodied in this Cove-
nant."270 SOUTH WEST AFRTCS
And then Article 22, paragraph 2, in words which have become so
familiar, ordains and establishes as "the first rnethod of giving practical
effect to this principle", the device and the processes of a fiduciary
institution, one in which the hlandatory exercises tutelage "on behalf of
the League", that is to Say, on behalf of the organized international
community, and this isdescribed in the Covenant by the simple, single
but profoundly significant word in this context, "civilization".
Paragraphs 7, 8 and 9 of Article 22, of course, specify the safeguards
for implementation of the securjtieç for theperformance of this trust as
a decisive element of the principle-1 stress the word "princip1e"-
promulgated in Article 22, paragraph I. This is the scheme of the man-
dates system, and the heart. The mandate instrument, of course, as the
very word implies, is an instrumentality, an institutional device, for
carrying out the trust laid upon the League as an organized international
community.
The Council itseIf had the right and duty to define the conditions of
the mandate. It did so, in the words of the Court, in 1962,by giving the
mandatory "tools with which to fulfii its obligationsn-that is from
page 329 of the 1962 Judgment. Lord NcNair dealt with the rnatter in
Iiis separate opinion, appended to the 1950 Opinion, at page 150, and
this seems highly relevant indeed to the question of subordination of
paragraph I to paragraph 2, because the basic question of sovereignty
is involved here. The Mandatory, the Respondent, has referred to
Article 2, paragraph I, asgiving the Mandatory a de factosovereignty-
that phrase is usedin the pleadings. The concept of sovereignty is related
to this question, raised in Judge Fitzrnaurice's question, by the very
terms of the pleadings ofRespondent itself, and inevitably so. This raises
the question of de facto sovereignty versus the concept of the tools given
to the mandatory to carry out its obligations. This iç the juxtaposition
which reflects the question of where the spiritof the mandate reaily lies.
Lord IlcNair said:
"Upon sovereignty a very few ~vordswill suffice. The Mandates
System. (and the 'corresponding principles' of the International
Trusteeship System) is a new institution-a new relationship
between territory and its inhabitants on the one hand and the
government which represents them internationally on the other-a
new species of international government which does not fit into the
old conception of sovereignty and which isalien to it. The doctrineof
sovereignty has no application to this new systern. Sovereignty over
a Mandated Territory is in abeyance; if and when the inhabitants
of the Territory obtain recognition as an independent State, as has
already happened in the case of sorne of the Mandates, sovereignty
wil1revive and vest in the new State. What matters in considering
this new institution is not where sovereignty lies, but what are the
rights and duties of the Mandatory in regard to the area of territory
being administered by it. The answer to that question depends on
the international agreements creating the system and the rules of
law ~vhichthey attract. Its essence is that the Alandatory acquires
only a limited title to the tcrritory entrusted to it, and that the
nleasure of its powers is what is necessary for the purpose of carrying
out the Mandate. [And tlien Lord McNair quotes from Brierly] 'The
Mandatory's rights, like the trustee's, have their foundation in his
obligations; they are tools given to him in order to achieve the work REPLY OF MR. GROSS 271
assigned to him; he has al1the tooIsnecessary for such end, but only
those'." (I.C.J. Reports1950, p. 150,)
Noiv, the reference to Professor Brierly is to the article by Mr. Brierly
in the British Yearbook ofInternationalLaw, 1929, at pages 217-219, and
this is to the effect that the governingprinciple of the mandates system
is to be found in the trust itself.
The Court in 1962a ,s has been noted, adopted, and in a çense ratified,
the metaphor and reinforced its legal significance, and really made it
part of the mandate jurisprudence. Article 2, paragraph I, was not
intended as a means whereby the tool might become a double-edged
device with which the Mandatory couId further its own interests as well,
and here we turn to Judge Bustamante's opinion, appended to the
Judgrnent of 1962 in the I.C.J. Refiortsof that year at page357, and the
words of the learned Judge seem to be of profound relevance in this
context from a variety of perspectives. Judge Bustamante pointed out:
,'
An international Mandate is, by its veiy nature, ternporary and
of indeterminate duration. Its duration is limited by the fulfilment
of the essential purpose of the Mandate, that is to say, hy the
completion of the process of development of the people under
tutelagethrough their acquisition of full human and politicai capac-
ity. It follows that any Mandate agreement remains in force until
such time as the people cancerned attain the desired degree of
structural organization as a nation."
And then Judge Bustamante goes on to say:
"The function of the mandatory is a responsibility rather than
a right. It is for the mandatory to refuse thetrust ifit cannot bear
the burden."
And Judge Bustarnante concludes, as a corollary to the foregoing pro-
positions through which tutelage is exercised, that an international man-
date through which tutelage isexercised "does not and can never imply
a transfer of sovereignty to the Mandatory or the annexation of the
mandated territory by the tuteIary State". Unless Article z, paragraph I,
is indeed subordinated to the obligations of the sacred trust it becomes
a tool. at least, for inthe Respondent's phrase, "de jacto annexation".
Still quoting from judge Bustamante, however, from page 358 of the
same opinion :
"It is true that C Mandates (Article 22, paragraph 6, of the
Covenant)brought the mandated territory into a closer relationship
with the Mandatory by the fact that the latter applied its oivlaws
to the territory in question; but thisextension of the legislative
powers of the Mandatory does not imply an act of sovereignty on
its part, but simply the application of a prior authorization wjth
regard to administration contained in the Mandate agreement, with
a view to adapting the territory to the legislation afmore advanced
country."
Again, the administrative, the tools concept-the stress is on the word
"administration", in the Applicants' view.
And then to complete the circle of reasoning of Judge Bustamante,
and now 1quote from page 358:
"The onIy way of safeguarding the rights of the peoplc under
hlandate is to entrust the supervision of the hlandatory's acts to272 SOUTH WEST AFRICA
the Mandator or tutelary organization which, on the one hand,
represents the ward and, on the other, personifies the interest of the
States of the Lvorldassernbled in an association. Absence of a super-
visory organ would be tantamount to unilateral and arbitrary
exercise of the Mandate and would inevitably lead to annexation.
A Mandate so mutilated would be of an essentially different nature
from that provided for in Article 22 of the Covenant."
This is a circle, a chain of reasoning, and it relates to Article 22,
paragraph I, in the context of the Mandate, to the question of sover-
eignty, de jactoor othenvise. It relates that issue to the question of the
essence of the Mandate in respect of supervisory administration-super-
visory authority-the necessity of which is underscored in this context
by the fact that the tools given to the Mandatory in order to do its job
couId be construed by the Respondent, asit now has done, not permis-
sibly but actually, as equivalent to a grant of de jacto sovereignty. This
underscores the necessity for contjnuing supervisory authorit ynd
reveals a conflict of basic nature between the organized internationaI
community, the supervisory authority, and the Mandatory itself, a
conflict of view which is being resolved by the Mandatory on the basis
of a unilateral, unsupervised and self-appraising administration of con-
trol of the Territory.
This isa chain of reasoning and this is the real spirit of the Mandate
which Judge Bustamante, which Lord McNair, which ths honourable
Court has described frorn 1950 onwards, in the jurisprudence of the
Mandate; this is the spirit of the Mandate. It is not the spirit of the
Mandate in the mutilated sense in which it is pronounced by Respon-
dent's highest officials as self-enquiry, self-appraisal, asking oneself the
questions, and giving oneself the right answers. This is a travesty of the
spirit of the Mandate, as viewed by this honourable Court, for the past
15 years, and, above ail, the Mandatory advises the Court, standing here
not merely as litigant but as trustee, that it is voluntarily abstaining
from annexing the Territory aspart of the spirit of the Mandate-an
abstention which, at best, is of most uncertain duration.
The jurispmdence of the Aiandate, accordingly, combines with, and
illuminates the clear text of Article 22 of the Covenant to demonstrate
sacred trust in the second paragraphorofnArticle 2,as well as of Articles3,
4 and 5.
The organized international community, speaking through its com-
petent organs-and this again israised in the question of the relationship
between Article 2,paragraph I, and the substantive obligations of the
Mandatory-the organized international community categorically has
stated its judgment in respect of the question of policy, officia1action,
governmental action, based upon the avowed premises of apartheid. No
clearer judgnlent probably has ever been expressed by any international
community on any question in the history of the international com-
munity. It is no lon er a matter, in the Applicants' view, upon which
reasonable men can $iffer, that a policy which allotr rights, burdens and
privileges, on the basis of membership in a group rather than on the
basis of individual merit and capacity and quality, is permissible. It has
rnoved into the domain of genocide, in the Applicants' view, and, cer-
tainly, the concept of mutilation of personality,of the individual poten-
tial, is regarded widely, if not universally, as similar tu the concept, or REPLY OF MR. CROSS 273
the consequences, of mutilation of a more physical character. Ths is a
basic difference of philosophy between the Respondent and the rest of
the world, and, to state it even in these terms, implies a degree of moral
judgment and emotionalism which is implicit in the characterization by
the international community of the practice itself. It is a fact of inter-
national iife and not to present it thus to the Court would do less than
justice to the problem itself. 13ut we are speaking in purely juridical
terms here-a trust, tutelage-called by whatever name of a fiduciary
institution-must be construed in the light of its major purposes and,
here again, as the Court brought out in the I 56 Opinion, Respondent
has refused to CO-operate or to defer, in a ministrative supervisory
respects, to the judgments of the United Nations, the International
Labour Organisation, the other competent organizations of the inter-
national community upon which this burden was resting.
This lack of CO-operation,to understate it, in the very area of race
method and the scope and importance of accountability, as well as onthe
the justiciability of this dispute. LVhere administrative remedies are
removed, judicial remedies must emerge in such an inter-related and
integrated scheme, and this is at the bottom, it seems to the Applicants,
of its interpretation in the Iight of the so-called paramount purpose.
To use the language of the Court in the 1956Opinion, at page 28, the
Court said "It is clear that oral hearings were not granted to petitioners
by the Permanent Mandates Commission at any time during the regime
of the League of Nations" but tIiat the Council was competent to do so
and the United Nations was competent to do so, to adapt the needs of
administrative supervision to the objective consequences ofRespondent's
failure and refusa1 to submit to international accountability and this
bears, of course, essentially, in this contexton Respondent's good faith
test contention.
As was said yesterday, the good faith test in any event is irrelevant
legally in the Applicants' view but it is obliterated from consideration
in thiscase by reason of the fact that Reçpondent has failed and refused
to submit to international accountability for 15 years following this
Court's Advisory Opinion in 1950, yet asserts now that it must be
evaluated and appraised on the basis of good faith.
The wording of the mandate text for South West Africa is completely
consistent with, and indeed shows the same pattern as the Covenant
itself. Article2 in its entirety is in essence a repetition of Article 22,
paragraph 6, of the Covenant. First, the full powers of the Mandatory
are set out, that is to Say, in terms of Article2, paragraph I, and then
cornes the basic obligation of the sacred trust in the second paragraph of
the Article, as well as in the succeeding Articles 3, 4 and 5.Although the
phrase "subject to" is not textually employed in the Mandate, its omis-
sion quite obviously was not intended to amend the Covenant in that
respect or in any other. Full powers are grantcd in the terms of legis-
lation and administration but subject to the obligations of the sacred
trust as surely, and as fully, as if the sanle phrase, which appears in
Article 22 of the Covenant, was incorporated in the Mandate-the only
reasonable inference is that the frarners of the mandate instrumen mtust
have assurned that the phrase in the Covenant was over-riding and wa~,
of course, part of the obligation, Le have always maintained that the
Mandate must be read in the light of the Covenant because this is what274 SOUTH WEST AFRICA
the Court has said. The "integral portion" language of Article 2,para-
graph r, is a matter of administrative convenience and ths is con-
firmed by the history of the Permanent Mandates Commission itçelf;
instances are cited in the hlemorials, and one in particular might be
called to the Court's attention, at 1,page 38 of the Memorials, from
which perhaps excerpts should be read into the record here-it is a
brief quotation; it is from the Memorials, 1, page 38, which cites the
Permanent Mandates Commission minutes on the point: "Becauçe of
the fundamental importance of this question". "This queçtion", paren-
thetically, related to the concern expresçed by the Commission by reason
cluded between Respondent and Portugal concerning the boundarynts con-
between Angola and South West Africa, a phrase was used which stated
that the Respondent had "full sovereignty over the territory of South
West Africa, lately under the sovereignty of Germany". Now addressing
itself to that propoçition, the Permanate Mandates Commission, at its
Eleventh Session, raised the question in this fom, part of which is
quoted here-the Court's attention is directed to the full text from
which this is excerpted. The Commission, as 1started to Saybefore, said
as follows:
"Because of the fundamental importance of this question .the
Cornmittee feels obliged to bring it to the attention of the Coun-
cil... In the first place, the parallel drawn in the above mentioned
preamble between the sovereignty assumed by the Government of
the Union of South Africa over the territory in question and the
sovereignty over that territary previously held by Germany, seems
to irnply a claim to lega1relations between the mandatory Power
and the territory it administers under its mandate, which are not
in accordance with the fundamental principles of the mandates
system." (1,p. 38.)
This was without specific reference to Article 2,paragraph r, but it is
cited here as an illustration of the concern constantly and continuouçly
expressed by the Permanent Mandates Commiçsion, with respect to the
question of sovereignty, de facto,de jure or just plain sovereignty.
Another pertinent consideration is the history surrounding the sub-
mission of, and agreement upon, the several trusteeship agreements
entered into by the mandatory powers. This area of enquiry is extrernely
illuminating in the Applicants' view because in the trusteeship agree-
ments themselves identical or entirely simiiar language appears and, of
course, the Court wil1know that the trusteeship agreements were not
intended to vest çovereignty on the part of the trustee administrator in
the territory under trusteeship, that, of course, is a self-evident pro osi-
tion. Therefore, when one looks to the trusteeship agreements anBthe
circumstances of their authorship and formulation, the significance
attributed to the very sarne words or words so çimilar as to obviously
compel the çame meaning would be significant in interpreting the use of
if, as is the case, no debate, no discussion ever indicated or intimated
that the words were being used in the tmsteeship agreements in a sense
different from that in which they were used in the mandate agreements-
there is an absence of any such intimation, and in the Applicants' view,
it is not a supportable fiypothesis. REPLY OF MR. GROSS 275
Therefore to look at the circumstances of the formulation of the
trusteeship agreements in the precise context of Judge Sir Gerald Fitz-
maurice's question No. IO, one finds illuminating evidence of the signifi-
cance attached to the phrases in question in Article z, paragrap1,by the
former mandatory powers, by the new trusteeship administrators and by
the international community in the debates accompanying or attending
the creation of this system and its operation. In the fa11of 1946, to be
more specific, the debates in the Fourth Committee of the General
Assembly shed considerable light upon the "integral portion" phrase in
the Mandate; the Governments of New Zealand, Australia, France,
Belgium, and Great Britain used nearly identical wording in the draft
trusteeship agreements which they submitted and in doing so, they
irisisted, they did not rnerely aver, that such wording was intended
merely as a matter of administrative convenience because, as rnight have
been expected, the words were questioned-the formula was questioned.
Thus, for example, Article 3 of the trusteeship agreement proposed by
New Zealand for Western Samoa, provided that the territory should be
administered as "an integral part of New Zea1and"-the word "part" is
used there instead of "portion". 1 have quoted here from the General
Assembly, OflcialRecords,First Session, Second Part, Fourth Committee
of Sub-Cornmittee I,at page II-this was in 1946.
The delegate of New Zealand, Sir Car1 Berendsen, addressed the
Fourth Committee, and the following appears from the document just
cited, at page 46:
"New Zealand had never claimed that Western Samoa was an
integral part of New Zealand and disclaimed al1 intentions that it
ever should be. His Government merely desired to use the same
administrative mechanism as if it were an integral part of New
Zealand .. .Although his Government wished to avoid the neces-
sity of establishing a separate administration for Western Samoa,
SirCarl agreed that it would be wise and proper to attempt to avoid
mis-apprehensions concerning the phrase 'as an integral part of
New Zealand'."
The statement, it would seem, makes quite clear that New Zealand
was primanly concerned, and understandably so, with problems of
administrative convcnience. The wish to avoid the neceçsity of establish-
ing a separate bureaucratic structure or separate administration for
Western Samoa as administrative devices, would be understandable and
the significance attributed by SirCarl to the "integral portion, integral
part" wording of the proposed trusteeship agreement went no higher
than that level of meaning, and he explicitly stated SO.
The view was expressed inthe Fourth Committee by some members
who desired to be re-assured lest the phraseology "integral part" or
"integral portion" might lay some sort of basis for a claim to the right
of annexation or de facto or de jar8 sovcreignty; but the mandato.
powers, that is those with the greatest knowledge and experience in
these very matters, themselveç insisted that this was not the intended
meaning and gave explicit re-assurance that the use of such phraseology
would not bear such a signification. One example is the statement by
the Australian representative, Mr. Bailey, in the same proceedings
previously cited, at page 44, where according to the Summary, Mr.276 SOUTH WEST AFRICA
Bailey said that such a view, that is to Say the annexation concern,
would have to assume that:
"The original proponents of that language at the Conference of
Versailles and even the Permanent Mandates Commission had not
completely understood its significance. The entire history of this
concept eliminated the suggestion that 'as an integal part' con-
veyed or intended to convey the power of annexation."
This was a demonstration of the continuity of meaning to be attached
to the phrase or similar phrases, and that there was no thought on
anyone's part that by using the saine or similar language, the meaning
to be attributed to the phrase had been changed in some way during the
course of the years-quite the contrary, the continuity of meaning and
particularly this one. However, again as confirming the validity of the
general statement 1have just made, the French delegate, M. Naggiar,
made it quite clearthat his underçtanding of the phrase "as an integal
part" was the çame as that of the New Zealand representative. The
trusteeship agreement proposed for the territories under mandate pro-
vided in the draft that the administering authority, France in this case-
"Shall have full powers of Iegislation, administration and jurisdic-
tion in the territory and shall adrninister it in accordance with
French law as an integral part of French territory, subject to the
provisions of the Charter and of this agreement." (Trusteeship
agreement/^, 13 December 1946,p. 4.)
This provision was designed to facilitate the administration by France
of its trust territories, in precisely the sarne rnanner, and precisely for
the same reasons and extent to which the mandatory powers had been
vested with similar legiçlative and administrative scope for purposes of
administrative convenience, and as a matter of fact, M. Naggiar, on
behalf of France, said:
"As ioc the suggestion that there was a sinister significance in
that wording, Fe] inquired why, if such were the case, his Govern-
ment had offered to place the territories under trusteeship at ail.
The proposed wording waç useful as a matter oJ legislaiivecon-
venience .. ."
Further in the Sumrnary, the French representative declared that "he
would be willing to have inserted in the Rapporteur's report, the inter-
pretation of his Government that the wards 'as an integral part' were
necessary as a matter of administrative convenience and were not con-
sidered as granting to France the power to dirninish the political indivi-
duality of the tmst territories"(General Assembly, OficialRecords,First
Session, Second Part, Fourth Cornmittee, Sub-Committee 1, p. r1.)
And at page 162of the same Sub-Cornmittee proceedings M,Naggiar
commentcd further that the "integral part" Ianguage-
"had appeared in the mandate and was still necessary. There was
a real need for this provision which would facilitate administration.
The French Governrnent did not consider itself authorized, by this
language, to diminish the personality or individuality of the Trust
Territories in any way. "
Actually, 1 must correct myself, AIr. President-this was made in the
Fourth Committee itself; 1 had mis-stated and referred to the Sub- REPLY OF MR. GROSS 277
Committee; the previous statement referred to Sub-Committee rof the
Fourth Committee; what I have just quoted at page 162 relatesto the
proceedings in the Fourth Committee itself.
Likewise, in the Fourth Committee the General Assembly records for
the First Session, second part, page1541 ,he representative of Australia
referred to "convenience of administration". The United Kingdom
delegate at page 119, General Assembly, ODciaERecords, First Session,
Second Part, Fourth Committee, Sub-Commit tee I,spoke of "the only
practical rnethod of administration"; and Mr. Ryckmans made the same
point at page 120 of the document last cited, when he argued that
without the wording in question prticular social legislation involved in
Belgium at that time "could not have been applied without special
enactments". This was an explicit dcscription of a situation in which
administrative convenience, legislative convenience, was advanced in
explanation of the fact that this was a device for convenience and not a
device for de factoor other kind of annexation or extension of sover-
eignty, or in any other way, in the language of the French delegate,
deçigned "to diminish the political individuality" or the personaiity
"of the Trust Territories".
Finally, the Chairman of the Sub-Committee, in the same document at
page 123,discussing the same problem, suggested that a vote be taken
on the proposa1 that-
"there should be included in the Rapporteur's report a statement
that the phrase [integral part, or integral portion] was included only
as a matter of administrative convenience without prejudice to the
sovereignty of the Trust Territories".
And the vote was taken, and the vote was 14 in favour and none against ;
that is from the same page of the previously cited document, the record
of the vote; there were three abstentions, 1 should add.
The mandatory powers, with Respondent not participating inasmuch
as its Government had submitted no trusteeship agreement, of course,
felt that the "integral part" phraseology of their proposed draft was
necessary or desirable as a matter of administrative convenience; this
is the highest value and the only significance ever placed upon thiç
wording by any representative, by the very representatives of govern-
ments wkich had had the most continuous experience and knowledge
of the mandates system aç mandatorieç, and in at lesst one case they
were at pains to point out that the use of the phrase rneant nothing
different,more or Iess, thanit had as used in the mandate instrument;
this was asserted as a method of reassurance that the trusteeship agree-
ments would move fonvard, and not backwards, and italso illuminated
the significance of the same or similar wording used in the mandate
instrument itself.
Therefore it is very relevant indecd to note that thseveral trusteeship
agreements followed the same pattern as the Covenant of the League and
of the Mandate itself in making it clear that the rights of administration
were subject to, or subordinate to, obligations under the trusteeship
system. In the trusteeship agreements to which 1 have referred, the
phrase was included explicitly that the obligations were subject to the
Charter and the trusteeship provisions of the Charter.
In the case of the mandate instruments, Article 2, paragraph 1, did
not contain so explicita proviso; none was necessary, because of the fact~78 SOUTH WEST AFRICA
that the Covenant itself contained the proviso; it had overriding legal
significance, and it was not necessary to include the same proviso in the
mandate instrument, although possibly, asa matter of draftsmanship,
conceivably it might have been preferable; it certainly was not necessary
from the point of view of legal analysis of the use of phrases in this
context; there only one legal conclusion could be drawn, in the Appii-
cants' respectful submission.
The Belgian Trusteeship Agreement for Ruanda-Urundi, for example,
provided in Article 5 that the Administering Authority-
"shall have full powers of legislation, administration and jurisdiction
in the Territory of Ruanda-Urundi and shaU administer it in accor-
dance with Belgian law as an integral part of Belgian territory,
subject to the provisions of the Charter and of this Agreement".
(Trusteeshi* Agreements, Series No. 3, rj December 1946 at p. 3.)
The stress here is laid on the phrase "subject to the provisions of the
Charter and of this Agreement", and again, as with the Covenant of the
League, and as with themandate agreement, the administrative rights of
the administering authority are made subordinate to the substantive
obligations, in this case explicitly in the mandate agreement itself
implicitly, but in the Covenant, Article 22, explicitly.
In summary, then, by way of concluding the reply to question No. IO
propounded by Judge Sir Gerald Fitzmaurice whichobviously, at least in
the Applicants' submission, raised fundamental questions pertaining to
the very jurisprudence of the Mandate itself and has been treated accord-
ingly with al1respect by the Applicants-in conclusion of the response,
it is to be said, in Our vieiv,that the 1950 Advisory Opinion, the 1962
Judgment, the Covenant of the League of Nations, the mandate instru-
ment itself, considerations of logic and necessity confirmed by League
history, the events surrounding the establishment of the trusteeship
system in 1946, to which reference has been made, al1combine to support
the conclusion which is reached by the Applicants in response to ques-
tion IO put to the Parties by Judge Sir Gerald Fitzmaurice.
Applicants respectfully submit, in response to that question, that
Article 2, paragaph I, of the Uandate must be read as subordinated to
Article 2, paragraph 2, as well as to the other provisions and eIements
of the sacred trust in the Mandate and in the Covenant. The rights given
to the Respondent under Article z, paragraph r, are mere toolç given it
to enable Respondent tocarryout its obligations and to bear ils burden,
and that burden includes accomplishment of the objectives of the sacred
trust set forth most centrally in Article2,paragraph 2.This being so, the
first paragraph of Article z is to be read in subordination to the obliga-
tions of the sacred trust, and is to be read as extending as a matter of
administrativeand legislative convenience to the Mandatory the facility
of applying in the Territory its own legislation and administrative
practices which, however, under no circumstances may as a matter of
law violate its substantive obligations under the Mandate, and it is not
a device by which such evasion, violation, breach or abuse can be
accomplished, because it isa tool and not a weapon.
This, Mr. President, concludes the response of the Applicants to
question No. IO propounded by the learned judge, and 1 would now,
~4th the honourable President's permission, turn to a new subject.
The purpose of the Applicants now, in accordance with the scheme of REYLY OF MR. GROSS 279
argumènt outlined at the beginning of this reply, and which is designed,
ider alia,to comprehend responses to questions asked by Judge Sir
Gerald Fitzmaurice at an earlier stage and, of course, now willalsoinclude
the questionsmore recently propounded by the honourable President and
by Judge Sir Gerald Fitzmaurice, and any other questions whichmay be
propounded in the future. It is the purpose of the Applicants now, en route
to resting their case at an appropriate moment, subject to the wishes of
the honourable Court, to include within the plan of their argument the
brief enumeration of the legislative and administrative measures and
laws, and the official rnethods and measures by bvhich these laws and
regulations are put into operation, which are comprised within the
concept or policy or label of apartheid, or separate development, and
in terms ofthe standards and the norm for which the Applicants contend,
placing before the Court at this point of the record a catalogue of an
enurnerative and illustrative character, so that there can be no question
inthe context of this litigation precisely what it is that the Applicants
mean &en they refer to undisputed facts, what it is upon which they
rely to establish the+er se doctrine for which they contend.
There has been considerable enlightenment in the course of these
proceedings, but there also have been some shadows cast, which is
inevitable in the course of such a proceeding; but it seems part of the
duty of the Applicants to lay before the Court an enumeration of the
Iaws and measures, methods and practices, of an officia1character, by
which these laws and regulations are put into effect, al1 of which-the
existence of all-is conceded by Respondent and, indeed, will be cited
to the Court largely in terms of Respondent's own written pleadings.
By way of preface tothe enumeration-illustrative cataloguing, which
will consume something less than one hour of the Court's time, but which
will be concise, unelaborated, and presented without argument or char-
acterization-it may be pertinent, by way of attempted clarification of
discussions preceding this morning's presentation, to refer to blatant
sources of confusion in the Respondent 's characterization of certain
contentions, arguments, judgments, opinions expressed in the Appli-
cants' written pleadings. Without reopening the question of clarification,
or requests for clarification, reference is made, respectfully, to use of
phrases which, from the standpoint of the Applicants' appreciation of
legal formulations-of formulations in a legal context-are difficult to .
assimilate and, therefore, easy to misconstrue on the part of the Appli-
cants. For example, in the verbatim record, supra, page 54, a phrase is
used in a hyphenated form, asit appearsin the verbatim, "policy-factual
allegations". On that page an averrnent is made that "policies ...are
inherently incapable [1 stress the word 'inherently'] of promoting well-
being and progress" and is, in the Respondent's phrase, "a submission
of fact"; a "submission of fact" that it is "inherently incapable" of
promoting well-being and progress.
In the Applicants' conception of the legal significance of the word
"inherently", itis an argument, a judgment, an opinion; it isa con-
clusion which is reached on the basis of fact, it is not a "submission of
fact"-it was never conceived of by the Applicants as a "submission
of fact".
Similar expression is used in the verbatim record, at page 67, supra,
where reference is made to "factual allegations ...implying a factual
condemnation". From a legal point of view, the Applicants have tried,280 SOUTH WEST AFRICA
but failed, to perceive what the significance is of "a factual condem-
nationH-the phrase is meaningless to the Applicants and ure have
endeavoured to comprehend it. "A factual condemnation" would seem
to be an ambivalent expression-"condemnation" is a judgment-
"factual condemnation" could only mean the fact that a condemnation
bas been made of a certain character-it isdifficult to evaluate. However,
in order to avoid further proliferation of such an argument-and Appli-
cants concede lack of comprehension, from a legal standpoint, of what
phrases such as these rnean legally in a court of law, never having heard
them applied in these formulations or in this context-it rnay be useful
for clarification to avoid the implication of a word game, in which the
Applicants do not wish to engage, to state to the Court what the Appli-
cants think they are doing when they use certain words and phrases
in a legal context. We think that there are three different elements
involved here-we think there are averments of fact; we think there
are judgmental or opinion statements-aspects which may or may
not be related to averments of fact, but if they are stated in the same
context do not lose their character or quality as characterizations, as
asdthe Applicants are aware, have every right and justification to use
whatever characterization of a fact they please. The Court does not have
to do so. Andthen, of course, there is argument, and sometimes we find-
or think we find-the Respondent confusing these three and treating
an argument as if it were asubmission or an avennent of fact. When the
Applicants say that a certain practice, or a certain undisputed policy,
measure, or law, is "inherently" whatever it is, the Applicants think
they are making a legal argument and not a submisçion of fact, and they
appreciate it to be part of their duty to convince the Court, if possible,
that on a basis of standards and norms appIicable, whose content the
Applicants are responsible for presenting to the Court, the particuIar
undisputed factin that sense-in the sense of a 1egisIative measure, in
the sense of an administrative measure, in the sense of a practice or
policy or method which is undisputed-the policy and practice are
"inherently" per se violative of the applicable norm and applicable
standards. If the Court should decide that there is no international legal
norrn of the same content and character as the international standards
for which the Applicantç contend, in that case it would be the sub-
mission of the Applicants that the Court shauld interpret the mandate
instrument on an ipsofacto,fier se,"inherently" appIicable basis. We use
these terms interchangeably 50 that the mandate instrument should be
interpreted in the light of and on the basisof its nature as a trust instru-
ment, its character as a constitutional type document, its human rights
character, and the judgment, unanimous to an extraordinary degree,
that a particular undisputed body of practices and policies constitutes a
violation of that trust. Theçe are the elements of the alternative form in
which the Applicants have respectfully submitted this matter and which,
of course, will be elaborated before resting, in the context of the estab-
lishment of an international legal norrn, as weli as of international
standards for interpretation-authoritative and clear beyond doubt-
of themandate instrument itself, in the light of the unanimous judgment
of the supervisory competent international organ.
Therefore, it wilt be the purpose in turning now to the cataloguing,
illustrative enumeration of the legiçlative and administrative laws and REPLY OF MR. GROSS 281
measures, the officia1practices and procedures, and techniques, by which
the Government applies these laws and measures, so that there will be
no room for doubt asto what it is, what pattern of conduct,what pattern
of policy and practice it is upon which the Applicants rely in urging upon
this Court the judicialconcIusion that this pattern of policy and practice,
the existence of which is conceded by Respondent, is a violation of
Article 2 (2)of the Mandate, and is a violation of an international legal
norm applicable to the Respondent's duties or, and alternatively, either,
is the legal conclusion to be reached.
[Public hearing of17 May 19651
Mr. President and Members of the honourable Court, in their Memo-
rials at1, page 107, after setting out relevant provisions of the United
Nations Charter, the Applicants have subrnitted that Article 2 of the
Mandate and Article 22 of the Covenant-
"read in the light of the terms and stated purposes of Chapters
XI, XII and XII1 of the Charter, establish clear and meaningful
norms marking the duties of the Mandatory".
The Mernorials then continue as follows:
"In accordance with these iegal noms, the Mandatory 's duties
to safeguard and promote the 'material and moral well-being', the
'social progress' and the 'development' of the people of the Tem-
tory must reasonably be constmed to include:. .."
And there follow, there are set forth ai that point, eight generally
forrnulated duties of the Mandatory-Memorials, 1,pages 107-10 8ach
of these generally formulated duties was conceived in the light of the
necessity of "respect for human rights and for fundamental freedoms
for al1without distinction as to race". That, as the Court will know, is
quoted from Article 76 of the United Nations Charter, and the phrase
1 have just quoted is set forth in italics immediateiy preceding the
paragraph in which the reference ismade to "meaningful norms", and
which in turn introduces the eight enurnerated categories of duties.
The purport, the intention, as would seem clearly to be indicated by
the context, and particularly in the light of the introductory paragraphs
to which 1 have referred-the purport and intent of these eight enu-
merated duties is to set forth for convenience sake in categories eight
general ranges of duties,each of which must be carried out in accordance
with the norm and the standards for which the Applicants contend. The
eight categories of dutiesthus set forth, al1 of which are to be read in
the context of and subject to the norm against discrimination andlor
separation, are as follows:
"(1)Economic advancement of the population of the Territory- "
and notably of the 'Natives' who constitute the preponderant part
of the total population in agriculture and industry;
(2) Ri hts and opportunities of mernbers of the population
empIoye as labourers inagriculture or industry;
(3)Political advancement of such persons through rights of suf-
frage, progressively increasing participation in the processes. of
government, dcvelopment of self-government and free polit~cal
institutions : SOUTH WEST AFRICA
(4) Security ofsuch persons and their protection against arbitrary
mistreatment and abuse;
(5)Equal rights and opportunities for such persons in respect of
home and residence, and their just and non-discriminatory treat-
ment;
(6) Protection of basic human rights and fundamental freedoms
of such persons;
(7)EducationaI advancement of such persons ;
(8) Social development of such persons, based upon self-respect
and civilized recognition of their worth and dignity as human
beings." (1,pp. 107-108.)
Mr. President, if the Applicants correctly understand the purport of
Respondent's criliqrrand comments in this regard-for example, in the
verbatim record of 23 April, VIII, at page 655and following, Respondent
appears to interpret and to read these eight categories of dutiesassetting
forth standards of achievement in themselves, or, in Respondent's words
at page 657 of the verbatim record I have cited, "an aim. .. a result
to be achieved". Respondent apparently construes the eight categories
in themselves as constituting standards or norms for achievement. On
the basis of this apparent misconstruction the Respondent comments
at page 657 of the sarne verbatim record that such norms are "poles
apart frorn that of the alleged norm of non-differentiation", which of
course is the characterization lvhich the Respondent fastens upon our
norm of non-discrimination and non-separation.
These eight categories of course are not set out as norms, and they
are not incorporated in the context here as standards of achievement;
they are read, and to be read, and can only be read subject to the intro-
ductory paragraph which 1 have quoted. The enurneration is preceded
mords "In accordance ~viththese legal norms", and then the duties setthe
forth in a general range of eight convenient categories are the arcas of
social life, the complete existence ofan individual in the social order, in
eight convenient categories which are of course the areas of the relation-
ship of the individual to the State in ahich it is of decisive consequence
whether or not he is being treated in accordance with the norm of
non-discrimination and norm of non-separation. This is not a quanti-
tative measure of achievement with respect to the various categories set
forth. There appears to have been a misunderstanding or a rnisconstmc-
tion of the purport, intent andscope of these eight categories because
of the fact that they have not been related to the introductory para-
graph which itseloff,course,is the context, the prescription, of the legal
norm or, as used in the plural there, legal norms, against which or
within which these eight categories are to be measured and which are
set forth, as 1 say, to comprehend the range of the individual life in the
society.
The reference to the Charter provision regarding racial discrimination
or, in the words of the Charter, "respect for hurnan rights and for
fundamental freedoms for al1without distinction as to race", immedi-
ately precedes the introductory paragraph, the one whicli refers to the
noms-these norms refer to the Charter norms-the reference to "with-
out distinction as to race" is, for emphasis, italicized on that page of
the Mernorials.
An official policy and practice of allotting rights and burdens on the REPLY OF MR. GROSS 283
basis of membership in a group rather than individual quality or capacity
has been adjudged by the competent organs of the international com-
munity to be inherently incapable of promoting the moral well-being and
social progress of peoples anywhere. The Applicants' pleadings proceed
from this premise-they always have-and the eight dutjes, as 1 have
said, are categorized asa matter of convenience in the Memorials; they
could have been set forth in many different, other classifications; these
are duties which, in the Applicants' submission, must be discharged in
the conduct of the Territory without violation of the norm of non-dis-
crimination and non-separation.
That is the norm referred to in the Memorials at 1,page 107. although
it was not there 1abeUed in the same style and under the sarne title as
we came to cIarify it and re-styleand re-title it in the Reply, IV, at
page 493. And in conclusion on this point it is therefore essential to make
clear that the eight duties are not set out as standards ofachievement
in a weights and measures sense. They categorize, for convenience and
analysis, areas of the social order which in their totality make up the
life of the person in the society, in any civilized society, and in respect
of which racial discrimination or group separation are embodied or
embedded in Respondent's policy of apartheid.
It is that aspect of it, and only that aspect of the duties, which is in
question here.
Respondent starts from the premise of discrimination or separation
among individuals on the basis of membership in a group. Respondent
clearly assumes that this is not only a permissible premise but an imper-
ative one: that seems to be their contention. Having sorted out and
classified al1inhabitants in groups, on the rigid basis of the census
categories which 1have referred to in an earlier phase of the proceedings,
and having allotted, substantialiy, individual rights and burdens on
that basis, the Respondent asks the Court to weigh and measure quan-
titatively the extent to which the material welfare of the inhabitants
has been promoted-houses, road, irrigation projects and so forth, are
to be put in the scales alongside the handful of negative aspects, in
Respondent 's phrase.
But the Applicants and the competent organs of the international
community Say to that, no: promotion of moral well-being and of social
progress is part of the mandatory's burden, and moral well-being and
social progress are not functions or characteristics of an abstraction
known as a group. They are, in very essence, a quality of the individual
person as such or they do not exist at al1 as qualities. The elemental
truth of this proposition, interestingly enough from the Applicants'
analysis, isto be found in the treatment and perspective from which the
Respondent views Article 5 of the Mandate.
Article 5 ofthe Mandate includes within its scope the duty of ensuring
"freedom of conscience". Noiv, throughout its pleadings the Respondent
has sought to draw a legal distinction between its obligations under
Article 2 of the Mandate and those under Articles 3, 4 and 5.The Res-
pondent in its written pleadings contends as follows:
"Some significant differences between Article 2 (2)of the Mandate,
on the one hand, and Articles 3 to 5, on the other, illustrate the
essentiallydifferent origjn and purpose of these provisions. Thus
the wording of Article 2 (2)is wide and gencral, which is in kceping
with its nature as an expression of an idealistic objective. The SOUTH WEST AFRICA
'safeguards' contained in Articles 3 to 5, on the other hand, being
specific obligations, are couched in relatively clear and precise
language-they prohibit or enjoin particular acts or omissions and
provide objective criteria by which the hlandatory's administration
may be judged." (II,p. 387.)
Now, Mr. President, Respondent nowhere seeks to explain, nor is it
really explicable, in what respect the duty to ensure freedom of con-
science is more clear and precise or more susceptibIe to judgment on the
basis of objective criteria, in Respondent's phrase, than is the duty to
promote moral well-being of the inhabitants. Neither, of course, is
quantitatively measurable; both are qualitative concepts and both
apply to the individual person. The conscience is not a collective concept,
it is not a group quality; the conscience is an individual characteristic
and it is, of course, subject to, or susceptiblto,precisely as much or as
littIe objective criteria as is the phrase "moral well-being". In fact, the
Applicants perceive some difficulty in drawing any precise line between
moral well-being and freedom of conscience; it would seem that one is an
element of the other.
However that may be, the Respondent draw a distinction of a legal
nature between Article 2, paragraph 2,and Article 5,characterizing one,
as1 Say, as specific, clear and precise, and the other as beintoobroadly
formulated to provide objective criteria of the sort, in any event, for
which the Applicants contend.
As stated at 1,page 108 of the Mernorials-I will not read the text but
summarize it-the Respondent is alieged by the Applicants to have
followed and to be following, by law and practice, a course of action
xvhich inevitably inherently inhibits the well-being and prevents the
social progress, and inherently thwarts the development, of the majority
of the people of South West Africa. And then the Memorials go on to
define apartheid on the basis with which the Court is now familiar-the
allotment of status, burdens, and so forth, on the basis of mernbership
in a group rather than on the baçis of individual quality and capacity.
The norm of non-discrimination or non-separation, when broken down
into its component parts-and we shall have more to Say about this
shortly-for example, in the economic field, in the economic life of the
community, could be, properly is to be, conceived and spoken of as the
norm of non-discrimination or non-separation in economic affairs. In the
area of education it is a norm against discrimination and separation on
racial grounds in the educational field. Similarly, in the political and
civil liberties fields, they becorne norms or sub-norms, whichever phrase-
ology is preferable, mles wliich prohibit discrimination or separation in
respect of the particular area of human activity or human intercourse
which is involved.
Taken together, the norrn of non-discrimination or non-separation, or
the international standards covering the same subject-matter, having
precisely the same content, would of course extend to the entire life
of the community in its total aspect. This is the theory of the Memorials
and it is explicitlset forth as such, although ithad not at that phase of
our pleadings the name, the style; the title was not yet formulated or
incorporated in the pleadings. It was, however, preciselÿ the same scope
and content and applicability of the international standards and the
legal norm, as described at IV, page 493 of the Reply for the first time
in those terms. REPLY OF MR. CROSS 285
It is the Applicants' purpose now to present to tlie Court the cor$zts,
the pattern of laws and regulations, of officia1measures and methods,
the existence of which is conceded by the Respondent and which in
large part are derived from and cited to the Respondent's own pIeadings.
This corpus of fact, this body of laws and regulations and measures and
methods, upon the basis of which the Applicants contend the norm
andlor the standards (which will be explained shortly as to content,
source and coverage), the conduct complained of, which will now be
summarizcd without argument or elaboration, is to be judicially deter-
mined, to be per se and inherentlyin violation of such international norm
and international standards, or either.
The Mernorials, 1, at page III, set out the Blandatory's duties with
respect to the economic aspect of the life of the inhabitants of the Terri-
tory, all, as 1have said before, to be carried out and in the context of the
international standards and the legal norm of non-discrimination or
non-separation :
"(1)Economic advancement of the population of the Territory-
and notably of the 'Natives' who constituteby far the preponderant
part of the total population in agriculture and industry;
(2) Rights and opportunities of members of the population
emplo ed as laborers in agriculture or industry; ...
(3)%cial development of such perrons, based upon self respect
and civilized recognition of their worth and dignity as hurnan
beings." (1, p.III.)
At pages 112 through 131 of the Mernorials (1) the Applicants have
set out a series of laws, regulations, measures and methods of an official
character by which these laws and regulations are implemented in the
economic lives of the inhabitants of the Territory. And the Applicants
have submitted in the Memorials, and now reaffirm their submission,
that these constitute fiersa violations of the international Iegal norm of
non-discrimination or non-separation and of the standards which govern
the interpretation and application of the Mandate itself.
The illustrative examples of the laws, the regulations and the officia1
measures and methods-the existence of al1of which has been conceded
by Respondent-include the following, and they will be stated, if it
please the Court, without elaboration, without argument, without
characterization. This is the body of fact upon which the Applicants
rest their case:
I. "Natives are not entitIed to obtain permanent residential rights
or ownership in the urban areas in the Police Zone." (IIIp. 294, para. 205 ;
see also Memorials, 1, p. 113, para. 21 (a) and (b), and Counter-Memo-
rial,III, p. 25.Thisrestriction also applies to "any association,corporate
or unincorporate, in which a Native has any interest" and relates to
rural townships as well as urban areas.
2. Probationary Ieases contain conditions providing for their imme-
diate cancellation in the event that a lessee should marry a Native or
Coloured person, and prohibiting any transfer of the lease to "natives,
Asiatics or coloured persons". (Memorials, 1, p. 116, para. 27.) Respon-
dent explains, for its part-
". .. that White farmers should not, at any rate while ownership
in the farms remains vested in the Administration, be entitled to SOUTH WEST AFRICA
cede or assign their leases to non-Whites" (III, para. 30, p. 33).
Likewise,at page 33of the Counter-Mernorial,III, Respondent avers that :
"The condition regarding miscegenation in the probationary
lease cannot by itself be relevant to 'well-being,social progress and
development in agriculture', except to the extent that it indicates a
contem~lation that such leases would. while the relevant rem-
latioiis 'remain uiia~riendtrd,be graiited to Etiropeans only.'Thvat
thijlus indeed beeii tlie contemplation, is adrnitted."
3. "Within the area of the Police Zone, excluding the Native reserves
and the Rehoboth Gebiet,licences to prospect for minera15may be issued
only to European companies." (III, p. $9, para. 40; see also1,p. 119,
para. 40.) This includes approximately 50 per cent. of the Territory,
which is thus reserved for approximately 14 per cent. of the inhabi-
tants (Odendaal Commission report, tables XI and XII, at p. 29).
4. In al1 mining enterprises owned by "Europeans", "Natives" may
not occupy the highest poçtç, in consequence of the provisions of the
IV, pp.R405,a412 and 420; VI, pp. 230-235.)6; III, pp. 55-57 and 62;
To quote from the Kejoinder, VI, at page 231:
"The posts which Natives may not be appointed to in such enter-
prises [that is, mining enterprises] the foilowing: Mana er; Assis-
tant, sectional, or underground manager; Mineoverseer ;8hift boss;
Ganger; Engineer; Person in charge of boilers, engines and machn-
ery; Surveyor; Winding engine driver; Banksrnan or onsetter."
5. The posts and positions in the Railways and Harbour Administra-
tion are classified and separated by race, and the "Native" inhabitants
are restricted to a specific series of work positions. The highest posts
contemprated by Respondent as avaiIabIe for "Natives" are reçtricted
to the railways and harbours in lvhat is termed by Respondent "their
own areas" (III, p. 67, para. 14), by wkich term Respondent appears to
refer either to "the existing Native areas" or the "Homelands for the
difierent population groups" recommended by the Odendaal Cornrnis-
sion, or both. See Rejoinder, VI, page 236, paragraph 85, and, to com-
plete the citations, see1,page 122, paragraph 48; III, pages 64-69; TV,
pages 412 and 420, and VI, pages 235-238.
6.Legislation in South West Africa provides for differing amounts
and methods of payment with respect to workrnen's compensation,
including burial expençes, as well as to social pensions. depending upon
the racial "group" classification of the individual worker concerned.
(Rejoinder, VI, pp. 270-273; Reply, IV, pp. 416-417.)
7. The legislation in the Territory relating to the registration of trade
unions and the settlement of industrial disputes defines a "trade union"
as "any number of employees in any particular trade", but for the
purposes of the chapter applying its provisions concerning the reg&.-
tion of trade unions, coIlective bargaining and conciliation, such legiç-
lation defineç the term "employee" as meaning "any person ernployed
by, or working for any employer. ..but does not include a Kative".
The term "Kative" is defined to mean "a member of any aboriginal race
or tribe of Africa". (Memorials, 1, pp. 129-130, para. 75.)Consequently,
"The provisions concerning labor disputes and conciliation do not appIy REPLY OF MR. GROSS 287
to disputes among or between 'Native' laborers and others". (See Merno-
rials,1,p. 130, para. 76.)
Thus, it is conceded that "there is no provision for the registration of
Native Trade unions and no provision for conciliation of disputes in
concerned". (Counter-Mernoriai,ionIII,p. 92, para.s32;lsee also hlemorials,
1,pp. 129-130,para. 75; Comter-Rlemorial, IU, pp. 91-94; Reply, IV, pp.
423-424; and Rejoinder, VI, pp. 295-299.) "Native" workers in the
Territory are represented in labour disputes solely by government
officiais(Counter-Mernorial, III,pp. 93-94). Respondent, in its Rejoinder
(VI, p. 298)c ,oncedes "the factual situation that a European inspector
represents the interests of Native employees in proceedings of Concilia-
tion Boards, the members of which can be only European or Coloured
persons".
8. In conjunction with the foregoing are to be read the provisions of
the Master and Servants LegisIation, conceded by Respondent to apply
in the Territory. Such legislation is generally applicable to "White",
"Coloured", and "Native" persons, as well as specifically applicable, in
addition, to "Natives" in the case of employees of the Administration of
South West Africa, of the Railways and Harbours Administration, of
any Local Authority, or of any contractor who constructs railway or
harbour works. (Counter-Memorial, III, pp. 81-82, paras. 5-7.)
The legislation in question renders it a crirninal offence for an em-
ployee to refuse to commence service under a contract of service at a
stipulated tirne, to absent himself from his master's premises "without
leave or other lawful cause", to refuse to obey any order of his master,
or to depart "without lawful cause . ..from his master's service with
intent not to return thereto". An employee charged with desertion rnay
be arrested and sentenced to imprisonment, and, fouowing his term of
imprisonment, he must, in Respondent's words-
"return to his master on completion of his term of imprisonment,
unless the contract of service ha been cancelled. Should he neglect
to do so, he rnay be sentenced to successive periods of further
imprisonment, provided that no servant may be imprisoned con-
tinuouslp for longer than six months in all." (III, p. 85, para. 17.)
(See also Memorials, 1, pp, 124-126, paras. 60-63; Counter-Mernorial,
III, pp. 81-85; Reply, IV, pp. 421-423; Rejoinder, VI, pp. 287-294.)
And, finally under this heading-
g. Only Europeans may enter into contracts of apprenticeship in the
Territory under the appIicabIe legislation. (Reply, IV, pp. 419-420;
VIContinuing with this factual cataloguing, the hlemorials, 1,at page 131,
set out the Blandatory's duties with respect to the political lifeof the
inhabitants of the Territory, al1to be performed in accordance with, and
in the context of, the international standards and international legal
norm of non-discrimination and non-separation:
"(3) [that is paragraph 3 in the Memorials :]Political advancement
of such persons through rights of suffrage, progressively increasing
participation in the processes of governrnent, development of self-
government and free political institutions. .."
At pages 131 through 143 of the niIernorial(1), Applicants have set288 SOUTH WEST AFRICA
out a series of laws and regulationç, and officia1measures and methods
by which they are irnplemented in the political lives of the inhabitants
of the Territory. These, in the Applicants' submission, constitute a
per se violation of the international legal nom and international stan-
dards of non-discrimination or non-separation. Illustrative examples of
the la~vs,regulations, officia1measures and methods. include the fol-
lowing :
I. Respondent concedes that :
".. .only White persons are allowed to vote at an election of
mernbers of the Legislative Assembly ...that non-Whites are
excluded by law from serving as members of the Legislative As-
sembly, the Executive Committee or of the South African Parlia-
ment and excluded by practice from being appointed as Admin-
istrator of the Territory." (III, p.132,para. 110; see 1, pp. 134-135.
paras. 86 and 87; IV, pp. 442-4451 and VI, pp. 11-13.)
Respondent states that these are "political institutions devised and
intended solely for the White population group". (III, p. 132.) The com-
petence of the Territorial Legislative Assembly is set out by law, and
extends to certain specified matters in the Territory, including-
L<... mines, minerals, mineral oils, precious stones, etc.;primary or
secondary education inschools supported or aided from the revenues
of the Territory; the establishment, management or control of any
land or agricultural bank in the Territory; and the allotment. sale
or disposal of Government lands in the Territory". (III, p. III.)
This is the cornpetence of the Territorial Legislative Asseinbly.
Native affairs and other matters are reserved to Respondent's Govern-
ment, xvhoselegislative organ is the Parliament in which, however, so-
caiied "non-Whites" are excluded by law from serving. (See Counter-
Memorial, III, p. 132.)
At page 188ofthe Counter-Mernorial, III, "the framework of Respon-
dent's policy" is characterized as being "that political rights and pobver
are to be exercisable by the Native groups withitn heir own respective
homelands and not within the area of the White group as such".
According to table XXV, at pages 39-43, of the Odendaal Commission
report, which has been added to the documentation inthese proceedings,
as the Court will be aware, there is no Magisterial District in the entire
tion. Four-fifths of the Native Police Zone population live outside so-la-
called "Reserves" or "home areas" in the Police Zone. Including contract
labourers, there are twice as many Natives in urban and rural areas in the
Police Zone, outside of "Reserves", than there are White persons in al1of
South West Africa. Excluding contract labourers, there are 40,000 more
Natives in the Police Zone outside "Reserves" than there are White
persons in al1 of South West Africa. This is derived, of course from the
Odendaal Commission report. Respondent refers to areas of the Police
Zoneoutside the "Reserves" as constituting the "area of the Imite group
assuch". (III, p. 188.)
z. Secondly, no person other than a European person may vote in any
municipal council elections, or qualify for election to a municipal council
(Counter-Memorial, III, p. 188-190 Rejoinder, VI, pp. 23-27; in the
Applicants' pleadings, Memorials, 1,pp. 137-13a8 nd Reply, IV, pp.446-
447)7 REPLY OF MR. GROSS 289
3. Thirdly, the only local government institutions for Natives in the
urban areas, in allof which the number of Native inhabitants is almost
equal to the number of White inhabitants (see Odendaal Commission
report, table XIX, p. 41) are "Native Advisory Boardst'-these are
the only local government institutions for Natives in the urban areas.
The Native Advisory Boards possess no legislative or executive powers
whatever (Counter-Mernorial, III, pp. 181-~$5; Memoriais, 1, p. 139,
anRespondent, in its Rejoinder, refers to a recommendation of the
Odendaal Commission: "which, when implemented, will ensure to the
Native inhabitants of urban areas wide legisfative and executive powers
in respect of their own areas"-Rejoinder, VI, page 26, paragraph 50,
referring to page3,paragraph 3 (g) of the Odendaal Commission recom-
mendationç. The relevant sections of the Odendaal Commission report
are paragraphs 449 through 451 thereof, at pages 117-119.The so-calied
"wide legislative and executive powers" contemplated to be given to the
Natives, in the recommendation of the Odendaal Commission report
itself when implemented, are to be the following powers 1 am quoting
now from pages 117-119 of the Odendaal Commission report-para-
graphs 449 through 451 :
"That before the White urban authority makes any by-laws or
regulations relating in any way to the non-White residents of the
township, such by-laws and regulations, as well as the part of its
estimates for non-Whites should first be referred to the constituted
for its comments, these toeberconsidered by the white urban author-
ity (which, however, shall not be bound to their acceptance) before
its final decision on the matter.
450. That the Wkite urban authority delegate such functions,
powers and authorities to the said Councilas the Minister concerned
may approve.
451. That with the consent of the Minister of Justice, consid-
eration be given to the delegation of the following functions to the
said Council:
(i) the settlement of civil disputes between its inhabitants accord-
ing to their customs and traditions;
(ii) the hearing of criminal offences of a non-serious nature in its
area by non-Whites;
(iii) the appointment of community pards for-
(a) the yreservation of the safetyof the inhabitants of the area
concerned ;
(6) the maintenance of law and order; and
(cl the prevention ofcrime."
ThTurning now to the next catalogue of the laws and regulations and
officia1methods and measures-the Memoriais, 1, at page 143, set out
the Rlandatory's duties with respect to the civilliberties of the inhabit ants
of the Territory, alofwhich areto becarried out in a m~annerconsistent
with, and in the context of, international standards and the international
legal norm of non-discrimination and non-separation. These duties, thus
defined, which are to be carried out, to be discharged and subject to the SOUTH ,WST AFRICA
290
norm orstandards for which the AppIicantscontend, include the following
broadly categorized duties:
"(4) Security of such persons and their protection against arbi-
trary rnistreatment and abuse;
(5) Equal rights and opportunities for such persons in respect of
homeand residence, andtheir just and non-discriminatory treatment ;
(6) Protection of basic hurnan rights and fundamental freedoms
of such persons;
*
(8) Social development of such persons, based upon self-respect
and civilized recognition of their worth and dignity as human
beings." (1,p. 143.)
A reading of these duties will indicate that they are not scientific; they
are not systematic; they are categories for convenience of presentation
and analysis. No doubt the Applicants might have formulated these
categories in a more compelling and perhaps convincing manner. The
categorization itself, the method of categorization is really extraneous
to the point here which is the examination of the application or failure of
application of the norm and/or of the standards; such categorization
mereiy, is the framework within which that issue is being examined and
appraised.
At pages 144through 152 of the Rlemorials (1), the Applicants have
set out a series of laws and regülations and officialrnethods and measures
by which the are carried out with regard to the civil lives of the
inhabitants Or the Territory and which, the Applicants respectfully
submit, constitute fierse violations of the international legal norm of
non-discrimination and of non-separation and the international standards
covering the same subject, having precisely the same content. Illustrative
examples of the laws, regulations and officia1measures and rnethods in
question, the existence ofaiiof which has been conceded by Respondent,
include the following:
I. At page 222 of the Counter-Memorial (III) Respondent quotes, in
paragraph 97, from the regulations which allow a magistrate, with the
approval of the Adrninistrator, to order any resident of certain Reserves
inthe Police Zone who shall in his opinion be an "undesirable person",
to leave such Reserve within a specified time. Respondent states that
this regulation is "designed to overcome a problem which would exist
only in certain Native areas, [and thus] obviously not.. .appropriate for
White or Coloured persons", This is from Counter-Mernorial, III,
page 223-see also the Rejoinder, VI, pages 347-349,and the Memorials,
1, page 145 and the Reply, IV, page 472.
2. The Superintendent of certain "Native" Reserves within the Police
Zone may order "any male resident of a Reserve". who is beIieved by the
Superintendent to have "no regular and sufficient lawful means of
support" or to "lead an idle existence", to take up "employment on
essential public works or services within or without the Reserve at a
sufficient wage to be detemined hy such Superintendent", under criminal
penalties for failure to obey. (MemoriaI1,pp. 127-128 and 144; Counter-
Memorial, III, pp.g8 and 220-222; Reply, IV,pp. 466and 472; Rejoinder,
VI, PP.347-349.) REPLY OF MR. GROSS
291
In the Counter-Mernorial, III, at page220, paragraph 92, Respondent
states with regard to the foregoing Regulation that:
2. Regdation 27 (bis) forms part of the regulations pertaining
to 2ativeReserves within the PoLiceZone,and thus inevitably applies
to Natives only. Idle White and Coloured persons are in a sense in
a worse position than idIe Natives in such Reserves, since they can
only be dealt with as criminal offenders under the Vagrancy Procla-
mation, 1920."
3. Under applicable legislation, and in Respondent's own words, this
is from the Counter-Memorial, III, page 214:
".. .an authorized officer may, whenever he has reason to believe
that any Native within an urban or a proclaimed area is an idle
person lvithin the meaning of paragra h (a) of sub-Section (I),
without warrant arrest that Native ancf cause him to be brought
before a Native commissioner or magistrate who shall require the
Native to give a good and satisfactory account of himself. If any
Native who ha been so required to ive a good and satisfactory
account of himself faik to do so, the hative commissioner or magi-
strate enquiringjnto the mattershalldeclare him to beanidleperson."
Furthemore, and again in RespondentJs own words, quoted from the8
Counter-Mernorial, IIi, page 215:
"If a Native commissioner or magistrate declares any Native to
be an idle perçon he shall:
(a) by warrant addressed to any police officerorder that suchNative
be removed from the urban ar proclaimed area and sent to his
home or to a place indicated by such Native commissioner or
magistrate, and that he be detained in custody pending his
removal; or
(b) if such Native agrees to enter and enters into a contract of
employment with such an employer and for such a period as
that Native commisçioner or magistrate may approve, order
that such Native enter into employment in accordance with the
termç of that contract."
That is,as 1 Say, cited from the Counter-Memorial, IiI, and see also
Mernorials, 1, pages 126-127 and 145; Counter-Memonal, III, pages 97
and 214-218; Reply, IV, pages 465-466,468, 472 and the Rejoinder, VI,
pages 343-348.
4. At page 276 of the Counter-Mernorial, III, paragraph 148,Rcspon-
dent concedes that applicable law provides that "Natives recruited from
the northern areas for labour within the Police Zone may remain within
the Zone only for the period of employment provided for in the contract,
and in no case exceeding two-and-a-half years". (See also 1, p. 147,
para. 140; IV, p. 465;VI,pp. 324-327.)No matter what the desires of an
individual Native from the northem areas may be, he will be returned
to his tribal area "after a fixed period of employment in the Zone". (III,
p. 276, para. 149.) To quote from the Rejoinder, VI, page 321:
"It is also true that Natives from the northern territories are not entitled
to take up permanent residence in the Police Zone."
5. At page 289 of the Counter-Mernorial, III, Respondent relates that
a new section of relevant legislation "now providesthat no unexempted292 SOUTH WEST AFRICA
permission to remain has been granted to him by a designated person".
Respondent further continues, at paragraph 189, page 289 of the
Counter-Mernorial :
"The effect of this section is that a Native who comes from outside
an urban area, and who does not fa11within one of the.exemptions,
has seventy-two hours within which to secure permission to visit
that area, or to look for employment therein. . .. he may then
obtain permission to seek work for a further period of fourteen
days, which does not, however, mean that iie must actualiy assume
duty within that period."
On this point see also Memorials, 1,page 148,the Repiy, IV, page 465,
and the Rejoinder, VI, pages 332-333.
6. The next item. Asimilar provision, in Respondent's words, requires
that:
". ..al1unexempted male Natives entering a proclaimed area must
report lvitithin72 hours and, if seeking employment, they can be
issued with permits valid for not less than seven and not more
than fourteen days. If employment is not found within the period
of validity of the permit, an order to depart from the proclaimed
area within a period of not less than two days may be issued,"
(III,p. 289, para. 190.)
Respondent further states, "lf there is a reasonable prospect of the
Native concerned finding employment, further perrnits are granted as a
rwhole rnatterr1,p. 148;oIII, p. 290; IV, p. 465 and VI, pp.e232-234.)this
7. A pass or a certificate of exemption is required to be produced on
demand by an adult male Native when he "travelç outside his location
or Reserve or away from the farm or place where he resides, or is em-
ployed". (VII,p. 315; and see al50 1, p. 148; IV,p. 465; andVI,pp. 333-
337.)
The consequence of the foregoing is described by Respondent asbeing,
and 1 now quote-
". .. an unexempted male Native over the age of iourteen years is
not permitted to travel beyond his place of residenceor employment
in the Police Zone uriless he is in possession of a pass isçued by an
authorized person". (III, p. 316.)
Likewise, Respondent refers to the power of summary arrest, men-
tioned at page 145of the Memorials, 1, by stating as follou,~:
"1; order to enforce the pass sy;tern pr~perly, it was, and is,
necessary to confer on authorized persons the power to demand the
production of a pass and ta arrest a Native who failsto compIy
with such demand. The whole system would be rendered nugatory
if there were no persons authorized to demand the production of
passes in order to establish whether Natives travelling beyond their
Reserves or areas of residence or employment have in fact permission
t0do SO." (III, p. 317.)
In its Rejoinder Respondent has set forth the following reason for the
maintenance of the pass system:
"In the absence of such machinery it wouId obviously be im- REPLY OF MR. GROSS 293
. possible to establish whether any particular Native travelling in the
an inhabitant of the northern territories, an inhabitant of a reserve
in the Police Zone, or a Native living in the areas inhabited by the
\hite group; in other words, to establish whether such a Native is
entitled to be in the Police Zone." (VI, p. 334.)
8. An addt male Native who is not exempted must obtain a pass to
leave the Territoryfor the Republic of South Africa. Thisprovision does
not apply to White or Coloured individuals. (See 1,p. 148; III, p.320;
IV, P. 471.)
g. In its Counter-Memorial Respondent relates the effect of certain
legislation as providing-
"... ilttealia, that every Native whose domicile of origin is outside
the PoIice Zone must be in possession of an identification passwhen
in that Zone, and. . .such a Native muçt have his pass with him
at al1times and produce iton the demand of any authorised person,
any police officer and any person to whom he engages or offers to
engage himself as a servant". (III, p.322; see also 1,pp. 96and 149;
IV, pp. 465 and 475, footnote 3; VI,pp. 333-334.)
Respondent states also in the Counter-Memorial: "In the absence of
such a provision it wou1d.b~impossible to distinguish between labourers
and visitors, and impossible to ensure the return of migrant workers
after the expiration of their contracts." (III,p. 323.)
IO. Respondent states in its Counter-Memorial:
"The Administrator rnay also prohibit any Native female from
entering a proclaimed area for the purpose of residing or obtaining
employment therein, unIess she isin possessionof certain certificates.
The provisions relating to such certificates are correctly set out in
paragraph 151 of Chapter V of the Memorials." (Ibid p. 325,)
Paragraph 151of Chapter V of the Memorials, to whch reference has
just been made, is set out at 1,page 149and states that "the provisions
relating to such certificates" are as follows:
"The Administrator may prohibit any female 'Native' from en-
employment therein without a certificate of approval from an officer
designated by the local authority for such proclaimed area, and a
certificate from the magistrate or 'Native' commissioner of the
district wherein she resides. If 'the necessary accommodation' is
available, a certificate shall upon application be issued to any
female 'Native' 'who produces satisfactory proof that her husband,
or in the case of an unmarried femaleher father, has been resident
and continuously employed in the said arca for no$ less than ~WO
years'. Any such certificate rnay be fora limitedperiod and may be
cancelled at any time after one month's notice."
II. The Administrator may, at the request of any urban local author-
ity, prescribea curfew under which no unexempted Native (other thana
female dependent of an exempted Native) may be present in a public
place outside a Native residential area during curfew hours without a
permit. (1,p. 149; 111,pp.327-329; IV,P. 471; VI,P. 338.)
W~threspect to the application to the curfew restrictions, Respondent
states that "curfew notices have been issued in respect offourteen urban SOUTH WEST AFRIC.4
294
are-" and that "the usual curfew hours are between g p.m. and 4 a.m.".
(m, P. 329.)
12. "Non-White" perçons working in urban areas in the Police Zone
are restricted tosegregated areas of the cities and towns and are not
perrnitted to reside in what are considered to be "White" areas, Save
for "hundreds of Native employees [who] reside on the premises of their
employers in the White residential areas", and the like. (VI, p. 328;
see also on this point 1, p. 148;III, pp. 292-295; IV, p. 465; and VI,
pp..326-328,)
Likewise. aaain in Res~ondent's own words, from the Counter-Memo-
rial,In, pige-zg4:
"13y reason of the ultimate objectives of Respondent's policy
regarding Reserves and separate development, Natives are not
entitled to obtain permanent residential rights or ownershipinthe
urban areas in the PoliceZone."
13.Still under the same heading, Applicants have set out in their
Memorials the following paragraph:
"Under section 25 of the Natives (Urban Areas) Proclamation,
1951,entitled 'Kemoval of Redundant Natives from Urban Areaç'
the Governor General may 'declare any urban area to be an area
in respect of which, on being satisfied that the nurnber of natives
within that area is in excess of the reasonable labour requirements
of that area, he may ...
(a) require the urban local authority within a specitied period to
lodge with him a list of the names of the natives who, in its
opinion, ought to be removed from the urban area;
[b) determine which of the natives specified in that list shall be
removed from the urban area;
(c) make provision for the accommodation of the natives so
removed who are lawfully domiciled in the Territory.'
Thereafter, the urban Iocal authority, acting under the Adminis-
trator's determination, must make arrangements for the removal
of the 'Natives' concerned, in accordance with the prescribed pro-
cedure." (1,p. 147.)
In the Counter-Memorial, Respondent has dealt with the above legis-
lation at III, pages 237-288and atpage 332. Respondent concedes the
existence of the law in question, to which reference has just been made,
but states the reason why it has never been invoked; paragraph 187,
at page 288, states:
"This section was designed to give effect to Respondent's influx
control olicy by providing for the removal of unemployed Natives
who ha g entered urban areas before efficient machinery to control
their influwas created. In practice, however, Section25 has never
been invoked as it has been found that adequate action canbe taken
under Section IO of the Proclamation and Regulation z of the
Regdations for Proclaimed Areas, issued under Section 22 of the
Proclamation."
On this point, see alço Reply, W, page 465,at footnote 4.
1 now turn to the fourth general category of duties, set forthin the
Memorials, 1,at page 152,as duties with respect to the educational life
of the inhabitants of the Territory, aU to be carried out in a manner REPLY OF MR. GROSS *95
consistent with, and in the context of, the international standards and
the international legal norm of non-discrimination or non-separation.
these categories:th for convenience, on page 152of the Mernorials as
"(7)Educational advancement of such persons ;
(8) Social development of such persons, based upon self-respect
and civilized recognition of their worth and dignity as human
beings."
This is the way Applicants have chosen to describe these duties.
The point at issue, as 1 have attempted to stress, is, in this area
(the area of the educational lives of the inhabitants), whether or not the
norm and standards of non-discrimination and non-separation are
applied and,if not, as is the case on the basis of the conceded laws,
regulations and officia1practices, then, in the Applicants' respectful
submission, that there is a fieseviolation ofthe norm and standards in
question.
At pages 152-161 of the Mernorials (1), the Applicants have, as in the
economic, political, and civil rights-referredtoto a series of laws and
regulations, officia1methods and measures, by wkich they are imple-
mented, in the educational lives of the inhabitants of the Territory,
which, as 1 have said, in the Applicants' submission constitute per se
violations of the international legal norm of non-discrimination and
non-separation, or of the standards whch govern the interpretation of
the Mandate of the sarne content.
Illustrative examples of the laws, regulations and official practices,
the existence of al1 of which is conceded by Respondent, include the
foliowing :
r. The educational system of the Territory is organized in three
separate divisions, and the educational facilities and opportunities for
any individual child in the Territory are made available or unavailable,
as the case may be, on the basis of the child's classification as a member
of the "European", "Coloured", or "Native" grou ,and the Court will
recall the census categories which have been placea in the record on the
basis of which these categorizations-this sorting-out process-of the
population is fixed. The basis of classification or categorjzation in groups
and the effect upon the facilities and opportunities made available or
unavailable, as the case may be, taking into account the membership in
the group rather than the individual capacity or quality of the child,
are set forth in the Respondent's pleadings in the Counter-hfemorial, III,
149-16553in:the Ap licants' pleadings, hlemorials, 1,pages 152-15and3nd
Reply, IV, pages 3g 4, 367-374,398-403. In Respondent's words:
". . the Counter-Memorial clearly reveals that Respondent's system
of having separate schoolsfor the children ofthe different population
groups isnot based on tests ofindividual ability". (VI,p. 67,para. 6.)
The Court's attention, of course, is invited in al1these cases to the full
paragraph, page, or text cited, as there is inevitably a problem of selec-
tion of quoted material possibly, sometimes unwittingly, out of context;
but there is the balance of convenience for the Court because, of course,
to quote the whole Counter-Mernorial would obviously be an impossible~9~ SOUTH WEST AFRICA
taçk, and therefore the Applicants, in presenting this, are taking pains
to cite where possible the paragraphs concerned, so that the context
from which these quotes are derived may be evaluated in context. The
Court's attention is respectfully drawn to this problern as it ha placed
an onus on the Applicants to make a judicious and fair çelection of
quotations with economy of presentation as the main target,
Mr. President and Mernbers of the honourable Court, 1 shall conclude
rny summation and cataloguing of the corpus of the legislative and
administrative measures, and the methods by which they are put into
practice officidy, injusta few moments, and hope that this is not too
much of a trespass upon the Court's time, buithas seemed relevant and
important to rnarshal this body of conceded fact in one place at this
point of the record.
1had begun to refer to the broad categories relating to education and
social developrnent as constituting part of the framework of the eight
policy of the Respondent was to be measured and evaluated againstch the
the standards and the nom of the character for which the Applicants
contend. The first point had been, as the Court will recall, the division
of the educationa1 system of the Territory into three separate divisions.
2. The second point is that the establishment of three separate divi-
sions of education naturaily leads to the maintenance of separate school
buildings and other material facilities. The needs and opportunitieç of
any individual members of a group, are consequently served solely by
Memorials, 1, pageo153; Counter-Mernorial, III, pages 367-369, 431-433,
434-438, 451-452 and gr6;.Reply, IV, pages 371-374 a;d Rejoinder, VI,
pages 36 and 64-77.
3. Thirdly, this segregation and classification, solely on the basis of
membership in groups, extends to living facilities for students away
from home: "Native" pupils are restricted to the school hostels available
for members of the "Native" group, and so on. Memorials, 1,page 154;
Counter-Mernorial, III, pages 413, 455, 493, 5rg-521; the Reply, IV,
page 374; the Rejoinder, VI, page 76.
4. Fourth, Respondent has not, during the years of the Mandate's
existence, brought into being any compulsory education for the children
of "Native" parents living in urban areas in the Police Zone. There are
almost as many "Native" persons in such areas as there are "White"
persons. See tbe Counter-Memorial, III, pages 390-406, 443-445, 500.
514-51 6;e Rejoinder, VI, pages 49 and 131-136; and in the Applicantç'
pleadings see Iiiemorials1,page 153; and Reply, IV, pages 390-393.
5. Inasmuch as the educational çystems and school facilities are sep
arated, the "Native" pupils in the "Native" secondary schools in the
Territory are restricted in their choice of subjects to those availaine
the fewer nurnber of "Native" secondary schools, and may not purçue
the differentiated courses offered in "llrhite" secondary schools. inas-
much as there are few "Natives" in secondary schools, Reçpondent
states in this regard, and 1 quote from the Rejoinder, VI, page 117:
"small nurnbers hampered subject differentiation", the subject differ-
entiation in question being the options offered to "Native" pupilç in
"Native" schooIs; see also Counter-Mernorial,III pages 437 and 450;
Memorials, 1, page 154; Counter-hlernorial,III,pages 450-451, 501-503; REPLY OF MR. GROSS 297
Reply, IV, pages 384-386; and Hejoinder, VI, pages I17-120; these
generaliy relate to the problem just discussed of the subject differentia-
tion problem brought about by the fact that there are fewer "Natives"
in secondary schools than there are "Whites" in secondary schools
reserved for "Whites".
6. The establishment of separate facilities for separate groups on a
rjgid basis, has also resulted in the fact that "Native" pupils are re-
stricted to the vocational training opportunities intended for members
of the "Native" group. It is a matter of record that such opportunities
arenot as nurnerous or varied as those offered to members ofthe "White"
group. See Counter-hfemorial, III, pages 466-468, 507-509, 521-523 see
also the Rejoinder, VI, pages 118-11a 9n;d in the Applicants' pleadings,
see hlemorials, 1, page 155, paragraphs 167-168; and the Reply, IV,
pages 384-386.
7. Next, with regard to nursing; there are separate training facilities,
separate training programmes and enrolment in separate registers, aLi
on the basis of tlie census category of racial or tribal or ethnic grouping.
Members of the "non-WhiteJ' groups are excluded by law from partici-
pating in the functions of the Nursing Council and the Board of the
Nursing Association, which control the profession as a whole. As has
been mentioned earlier in the proceedings, it is aiso, under applicable
law, a criminal offenceto cause or permit any "White person" registered
or enrolled as a nurse or aa student auxiliary nurse to serve under the-
"control or supervision of any registered or enroHed person who is
not a white person, in any hospital or similar institution or in any
training school",
the verbatim record of3yMay1965that is, p. goIand theverbatim record of;
4 May at p. 114, supra, which refer respectively to the Applicants' and
the Respondent's comments on this subject.)
8. By applicable law, the only residential universities in South Africa
open to "hative" or "Coloured" pupiIs from the Territory are those
restricted to "Native" or "Bantu" pupils, and "Coloured" pupils,
respectively. Respondent concedes, in the case of the "Native" or
"Bantu" universities, that they were designed and are intended pri-
rnarilp for members ofSouth African "Bantu" groups-the word "Bantu"
is used here in quotation marks. There are no universities in South West
Africa. SeeRlernorials,I, page r57;Counter-Mernorial, III,pages 474-489,
509-51 0 ,7-528 Reply, IV,pages 373 and 382-383; and Rejoinder, VI,
pages 105-106.
g. As has been rnentioned in these Oral Proceedings, Respondent's
practice has been to restrict opportunities in the field of engineering so
as to foreclose the possibjlity of a "Native" student obtaining the
necessary qualifications to become an engineer. Respondent has made
available opportunities for "Native" engineering students to qualify as
assistant engineers. The premises of this policy have been canvassed in
the written pleadings and referred to at an earlier stage of the Oral
Proceedings. The Court's attention is directed to the verbatim record of
27 April, at pages 29-31, supra, and the verbatim record of 30 April,
at pages 73-75, supra.298 SOUTH WEST AFRICA
The purpose isto qualify "Native" engineering assistants at the
present tirne, leaving to an indeterminate future the qualification of
"Native" engineers. The policyis asserted by Respondent to be neces-
employment, or who could not exercise authority over a "European",ind
rather than a "Native", engineering assistant. See Memorials1, pages
157-15 n. the Memorials the Applicants have referred to a speech on
thissubject by the Ministerof Bantu Educationin the House ofAssembly
of South Africa in hlay o1960 ,nd by reference to the Counter-Memo-
rial,ICIp,ages527-53 1,e Court dl find the Respondent's character-
ization of the speech of the Minister of Bantu Education in the foitowing
words :
"The Minister referred to applications by Bantu students to
foUowengineering courses at European universities, and he pointed
out that Bantu engineers could, in existing circurnstances, only
expect to beemployed by the Department of Bantu Administration
and Development, but that, since such employment would entai1
their being placed in positions of authority over European engi-
neering assistants, there being no qualified Bantu in tlie country
tvho could fiilthe role of such assistants, it was essential, as the
initial step, first to establish a base of Bantu engineering assistants."
This, it will be noted, related to the possibilities of employment, and the
reference ismade to the employment in the Department of Bantu
Administration and Development itself where, as appearfrom the state-
ment ofthe Minister of Bantu Education, the Government policy pro-
hibits the employment of "Native" engineers in the Department itself
because it would be necessary for thern to supervise "White" assistant
engineers; that may be found in the Memorials,1, page158.See also on
this point the Reply, IV, pages 266-267.
IO. And finaiiy the Respondent,b law and regulation, provides diffe-
rential salary wales for "Whitep' anzfor "Native" teachers respectively,
by which a "Native" teacher with the samc or similar qualifications as
a "Wte" teacher is paid less than his "White" counterpart-see
Counter-Mernorial, III,pages 452-457 503-506 and 532-534; also the
Rejoinder, VI, pages 139-147; and in the Applicants' pleadings, Memo-
rials1,page 158, paragraphs 182-18 3nd the Reply, IV, pages394-397.
Mr. President, this concludeson behalf of the Applicants the presenta-
tion of the illustrative enumeration of the laws and regulatjonsand
officia1rnethods and measures by which they are effectuated, the exis-
tence of al1of which is conceded by Respondent. These, and sirnilarly
atingdimplementing policies and practices, form theacor~s,of factualtu-
material or describe the pattern of Respondent's con uct, ~hich is
known and characterized widely as "apartheid" or, more generaliy now,
in Respondent's own usage, but referring to the same pattern, "separate
deveiopment". Pursuant to such policy and practice, the Respondent
allots status, rights, duties, privileges or burdens on the basis of member-
shipin a group, class or race rather than on the basis of individual merit,
capacity or quality.In the Applicants' submission such a policy and
practices are inherently incompatible with Respondent's obligations
under Article 2 of the Mandate and Article 22 of the Covenant, and
constituteper se and ipsofactvioIations of Article z, the interpretation REPLY OF MR. GROSS 299
and the application of which Article are governed by international
standards and/or by an international legal norm, as described in the
Reply, IV,at page 493.
In the Applicants' further submission, no evidence or testirnony in
purported explanation or extenuation thereof is legally relevant to the
issues joined in these proceedings. In reserving their right formally to
raise the question of such relevance, which the Applicants have not
hitherto done, the Applicants respectfully also reserve their rights under
Article 50 of the Rules of Procedure to comment in the event that any
such evidence is adduced.
Mr. President, 1 turn now, with the permission of the honourable
President, to a discussion of legal issues involved in and raised by
and related to the series of questions propounded by Judge Sir Gerald
Fitzmaurice in the verbatim record of 7 May1.The prearnble to Judge
Sir Gerald Fitzrnaurice's very important, indeed decisively important,
series of ten questions embodies a statement of the central issues of a
legal nature involved in the dispute concerning the interprctation and
application of Article 2 of the Mandate and Article 22 of the Covenant.
The Applicants venture to express gratitude for the opportunity afforded
by theçe questions to place before the Court the legal position of the
Applicants in as clear terrns as possible.
Sir Gerald stated, interalia,that-
". ..both the Parties have invoked certain generai international
norms, standards and principleç, of an a priori character, the
existence or applicability of which they ejther a&m or deny".
The Applicants would point out an essential difference in approach
between the Parties with regard to norrns, standards and principles,
which difference bears both upon the judicial function in this case as
perceived by the Parties and upon the content and significance of
Article z, paragraph 2, itself.
The Applicantç contend that international standards and an inter-
national legal norm of an a prioricharacter exist which provide authori-
tative criteria of an objective nature for the interpretation of Article2,
paragraph 2, of the Mandate and of Article 22 of the Covenant. This
theory of the case, ifsustained, eliminates extra-judicial considerations.
It has never been part of the Applicants' case that the Court make a
subjective evaluation of Respondent's policies of discrimination and
separation.
It seernç to the Applicants that, fiercontra, Reçpondent's invocation
of a principle of unreviewable discretion of an apriori charactertends in
the opposite direction. More \vil1be said in a moment about this con-
tention; using the phrase "unreviewable discretion" calls for a more
exact reference to the Respondent's contention, and 1 shali atternpt to
cite the relevant contentions on the basis of which this characterization
is made. For if the Respondent isupheld in its claim ofinherent diçcretion
of a breadth for which Respondent contends, or appears to contend, the
only way the Court could pass judgment on an asserted breach of
Article 2, paragraph z,would be to make a choice between the Respon-
dent's conception of well-being,moral and material well-being and social
progress, and that of the Court's.
1 See VIII, Minutespp. 30 and 32.300 SOUTH WEST AFRICA
Such a decision, whatever the outcome, could not rest upon authori-
tative or objective criteria. It would not possess the juridical attributes
properly to be associated with the tradition of this honourable Court.
The Reçpondent, in the verbatim record of 22 April, VIII,at page 627,
stated as follows:
"ln the result, Mr. President, except for Articles 3 to 5, thereis
nothing which impairs the Mandatory's discretion to decide on
specific actions, measures, or policies, or on rnethods to be applied
in pursuance ofmeasures, actions or policies which are directed at
achieving this gensral, prescribed objective. In the result wecontend
further that aslong as the Mandatory honestIy attempts to achieve
this objective, its conduct cannot be regarded as a violation of its
obligation."
On the other hand, Respondent takes strong issue with the Applicants'
attribution to the Respondent of the view that no legal norm exists by
which a court can judge Respondent's good or bad faith. This isthe way
the Applicants have characterized the Respondent's contention, and the
Respondenth as answered no, the Applicants have mis-stated, have
distorted, our tme position.
Now Respondent insists as follows in the verbatim record, VIII, at
page 631 :
"We made it so clear, it seemed to us.We said that for that purpose
a legal norm does exist. The legal norm is the one which we have
mandatory, and oneof the mandatory's particularthe action or policy
complained of. Is the purpose or objective the authorized one of
prornoting to the utmost, or is it an unauthorized ulterior objective
or motive?
That is a legal basis for adjudication, and that is the basis upon
which we submitted that the Court could adjudicate the question
of the Respondent's good or bad faith-in other words, of the
legality of its action.
The inquiry in this regard, hlr. President, i.e., whether a partic-
ular person, body or authority has acted in good faith with a view
to achieving a certain objective, or whether he or it has acted in
bad faith, isalways an inquiry of fact, on the outcome of which
certain legal consequences follow. The consequence ...involves a
distinction between a violation or abuse of power and acting within
the terms of the power, or, in other words, acting legally."
Now there, as the passage quoted indicates, the Respondent does
contend for a legal norm; the legal norm is described and the Respon-
othenvise by our attempt to characterize it. But Respondent at the same
time recognizes and concedes the legal issue squarely joined with respect
to the significance of the standards and the legal norm for which the
Applicants contend. Thus, in the verbatirn record of 22 April, from
which 1 have just quoted the passage regarding the legal norm as pro-
pounded by the Respondent, the Respondent comrnents as follows:
"If we have regard to the aiieged norrn of non-discrimination and
non-separation, as formulated in the Reply, and even as modified
now in the oraI argument before the Court, we findthat it involves
a suggestion ofa different norm upon which the Court can adjudicate. REPLY OF MR. GROSS 301
It would indeed, as formulated in the Reply, constitute an objective
norm-a norm which could be applied objectively and precisely to
the circumstances of a particular case in the sarne way as Articles
3 to 5 of the Mandate could be applied objectively and precisely
to a specific case." (VIII, p. 634,)
The Applicants consider this to be a fairjuxtaposition of the respective
legal theories, one may say norm theories, of the Parties. For the sake
of clarity,it only need be added that the Applicants consistently Iiave
maintained their theory from the outset, that in addition to the norm
referred to in the last quoted passage, reference should also be made to
the international standards of the same scope and content which the
Applicants contend exist, whether or not they have reached the status
application of Articleh2cofthendMandate.ern the interpretation and
The corpzssof the mandate jurisprudence itself strongly reinforces the
Applicants' contention that the sacred trust, the concept of moral well-
being and socialprogress, are to be given content under the judicial pro-
tection of this honourable Court by means of true and applicable objec-
tive criteria, which the Respondent concedes exist.
As early as 1950 this Court affirmed the existence and applicability
of "international rules regulating the rights, powers and obligations
relating to the administration of the Territory" (I.C.J. Repovts I950,
p. 147) If Respondent could set off its discretion, its motivation, its
purposes against these international rules regulating the Mandate, which
are found in the hlandate itself, then it would become impossible to
uphold, by judicial rneans, the legal interests of the organized intcr-
nationacl ommunity, in accordance wiih the safepards set forth in
Article 22 of the Covenant and embodied inthe Mandate itçelf. And, as
the Applicants put it the other day, there would be a hole in the man-
dates scheme as wide as the sacred trust itself, from the point of view of
judicial protection.
Respondent's theory of the obligation in Article z puts in issue
fundamentaliy the whole subject of international accountability, the
purpose and scope of international accountability, which the Court has
said isof the essenceof the Mandate, which liesat the root of the mandate
concept (the Mandate having been formulated in fiduciary terrns with
concepts of trust,tutelage, it matters little, as these termç are borrowed
from municipal legal systems of various kinds) a universal concept of
fiduciary obligation internationally supervised.
The Respondent's claim of broad discretion, a discretion tobe apprais-
ed only in terrns of its good faith, which obviously means the intentions
pure abstraction here-the to Respondent's claim of discretion to pursuea
an authorize pdiirposeso broadly defined would be unjusticiable, and
indeed the first alternative contention of the Respondent frankly poses
that issue to the Court squarely, challenges the Court on the proposition
of non-justiciability, and makes the good faith test a second alternative
contention.
The content of the standards defining well-being, moral well-being
and social progress, is dynamic, evolving with the changing attitudes
manifest in international society. The characteristic feature of moral
well-being and the attitude of the competent international organs with
respect to it has an obviously direct relevance to Respondent's policies302 SOUTH .WEST AFRICA
of group discrimination or separation. On no subject possibly in history
has there been.a greater pro ession in attitude fromdisapproval to legal
prohibition in the organiref*internat ional community than in the field
of race relations.
Forty years ago Respondent's theory that its racial policies lie within
the ambit of its discretion conceivably might have been arguable,
although even then, in the Applicants' view, not convincing. But the
proposition is no longer debatable. With respect to Respondent's policies
of racial discrimination and group separation, international standards
andan international legal norm of non-discrimination and non-separation
have achieved authoritative status during the very lifetime of the
Mandate, so authoritative, indeed, that it is appropriate, in the Appii-
cants' submission, to make them applicable as a matter of law fier se
to the interpretation of Article z, paragraph 2, of the Mandate.
Judge Sir Gerald Fitzmaurice, in his preambular statement, hasmade
reference to the fact that the Applicants "have invoked a norm said to
prohibit absolutely any practice of apartheid". The Applicants do agree,
respectfully, with this depiction of their theory of the case but seek to
avoid risk of possible confusion by taking the opportunity tostress that
this is not the whole of their theory. In this regard we shaii endeavour
to demonstrate the existence and appiicability of standards and a norm
of similar content on an alternative and cumulative basis. Thus, the
Applicants would prefer, with deference, to refomulate Judge Sir Gerald
Fitzmaurice's statement in the secoiid sentence of his prearnble as fol-
lows: "Thus the Applicants have invoked standardsand a norm said to
prohibit absolutely any practice of apartheid."
Some terminological difficulty, Mr. President, on this score may weli
have arisen from the Applicants' use in the Reply, IV, at page 493, of
the word "norm" to cover both main branches of their argument, that is,
with respect to standards governing the interpretation of the mandate
instrument as well as a binding norm of international law existent
independcnt of the Mandate but governing its interpretation. The Appli-
cants have intended to suggest and do now statethat the nom might be
either regarded as embodied in the Mandate itself, in Article 2. or as
esisting independently of the Mandate; if it is regarded as embodied
in Article 2 itself, it would have the character of a mandate norm-
a mandate rule-the Mandate being an internationalinstitution regulated
by niles, as the Court has said; Article z would be a mandate rule, a
mandate norm prohibiting apartheid. This is a possible judicial method
of approach to the matter of the existence of standardsand the existence
of a norm. Either or both could and should, in the Applicants' view, be
regarded as governing the interpretation and application of the Mandate
either as a treaty or as an institution or, as the Applicants believe, an
institution which partakes of the character of a treaty and of an insti-
tution: in the words of Judge RlcNair, "a contract and a conveyance".
If the standards, for which the AppEcants contend, have achieved
the status of an independent rule of international law, an internationai
legal norm, they, of course, would be controlling, with respect to the
Mandatory, on the simpIeproposition that the Mandatory, in undertaking
undertaken and agreed to compIy with international law in the exercise
of the Mandate; that is on the assurnption that the Applicants persuade
this honourable Court to findand declare that the international standards REPLY OF MR. GROSS 3O3
have achieved thestatus of a legal nom-a binding rule of international
law. The Applicants' case does not rest on that proposition but if such
an international legalnorm exists, then of course, it would apply nfortiori
to the Mandate, an international institution with international rules.
As matters stand, therefare, the Applicants will seek to establish the
norm or rule of the Mandate itself, particularly in view of its fiduciary
setting and the mandate jurisprudence, by showing that international
standards of non-discrimination and non-separation exist which are
applicable as a matter of conclusive authoritative interpretation of
Article 2, paragraph 2-that is with respect to standards.
The Applicants likewise, asan alternative and cumulative proposition
wili seek to demonstrate that such standards have achieved the status
of an international legal norm and that the existence of such an inter-
national legal norm has emerged and is binding upon Respondent in any
event a fortiori in its role as Mandatory. Such a legal norm, in the
Applicants' view, constitutes an a priori limitation upon Respondent's
discretion in administering the Mandate. The Applicants' effort will be
to demonstrate the existence of the international legal norm in terms
of the sources of law enurnerated in Article 3s (1), paragraphs(a)-(d),
of the Statute of the International Court of Justice. So as to clarify
further this basic aspect of the controversy between the Parties, the
Applicants feel it may be helpful now to place before the Court the main
links in their chah of juridical reasoning on the subject of the interpre-
tation of Article 2, or the Court's determination of its character as an
institution in a normative sense with respect to the mandate ruIe.
The intention of the Applicants will be to develop a perspective which
informs and illuminates the Applicants' responses to the several enu-
merated questions propounded to the Parties by Judge Sir Gerald Fitz-
maurice. The three principle links in the Applicants' reasoning are as
follows :
r. The character of the legal obligation contained in Article 2, para-
graph 2;
2. the character of the legal criteria governing the interpetaiion of
Article 2;
3. the character of defences available to Respondent in the face of
the asserted violation of Article z,
Dealing first with the legal obligation, the character of the legal
obligation embodied in Article 2,of the Mandate, and Article 22, of the
Covenant against which it must be read. The Applicants contend that
the obligation of the Mandatory to promote to the utmost the material
and moral well-being and the sociaI progress of the inhabitants of the
territory embodies a minimum qualitative element. If such qualitative
aspect of the obligation is not satisfied, a violation of Artic2ehas taken
place, no matter how much or how IittIe as the case may be, the Manda-
tory's policy may benefit the material well-beiiig and material or quan-
titative, social progress of the inhabitants in other respects. As a conse-
quence, Applicants' contention that a qualitative violation of Article z
had taken place renders it both superiluous and irrelevant to examine
either the intentions or the good faith of the Mandatory or the context
of the specific violation. Article2, paragraph 2, as istrue, of course, of
any governmental relationshipwith inhabitants anywhere, contains both
quantitative and qualitative aspects. A Mandatory, of course, as any 3O4 SOUTH,WEST AFRICA
good government, has a continuing obligation to improve for instance,
the health and educational facilities available to the it~habitants; its
suffrage to do so limited to that aspect could be tested in a manner or
appraised in a manner which resemblesB+espondentJçdefence in respect
of the cases at bar; it might include comparative or comparable achiev-
ments in other parts of the world. Such a line of defence, however, has no
relevance to a complaint of a qualitative violation, and moral well-being
is inherently incapable of anything but a qualitative analysis. Such a
complaint ex hypothesi presupposes that nothing the Mandatory does or
does not do could compensate for or ofiset such an aspect of its
conSecondly (this wiU be developed çubsequentiy; this is a çurnmary
introduction), the character of the legal criteria which apply in governing
the interpretation of Article z, of the Mandate. Zt is, of course, in this
context of the character of the Iegal criteria that the Applicants invoke
the judgments of the competent organs of the international comrnunity
with respect to the practice of apartheid in the territory. Now there are
- in this sense no disputed facts which enter into the corpus of facts,
measures and so forth, on which the Applicants rely. The judgment of
the competent organs are, moreover, endowed, in the case of the United
Nations, in the Applicants' legal theory, with the supe~sory respon-
sibility over this particular Mandate. The judgment of those competent
supervisory organs have been developed in a manner with which this
Court willbe familiasand with which the record is replete with examples.
Thc judgments of the international community are analogous in many
respects tothose relative to the phenomena of international legal norms
relating (without comparing the substance or quality of the conduct
but from a legal point of view) and relative to the phenomena of piracy,
slavery, genocide. The international community reaction of concern and
outrage removed the practice from any possibility of a quantitative
analysis and locates it in the qualitative realm where the prohibition
becomes one of an a firiorcharacter, if it exists, as the Applicants do
urge that it does. Whether the reaction of the competent organs of the
international community merely have produced standards for authori-
tativeIy constming the Mandate or whether the force, the consistency,
the categorical nature of these pronouncemen ts and judgmen ts have
evolved a legal norrn, this,of course, is not a decisive consideration in
respect of the Applicants sustaining of its case, since the legal norm, if
it exists applies afortio o ithe Mandate but the standards which we
submit are authoritative govern its interpretation, whether they have
achieved a status of legal norm or not.
The important point is that objective criteria exist, as Respondent
concedes, although of course, vehemently denying that theseexist. But
that the possibiiity that objective criteria esist is admitted and since
Respondent asserts its own, the Applicants rnaintain that it is common
cause between the Parties that objective criteria of some sort do exist
and govern this dispute judicially. But the Applicants' objective criteria,
that is, the objectivecriteria for which the Applicants contend, if they
were largely developed with specific reference to this situation; if they
exist, then in the Applicants' submission, judicial enquiry into the Man-
datory's motives, intentions or good faith is entirely irrelevant. The
essence of the criteria, whether standards or norm, is to express the REPLY OF MR. GROSS ,305
incompatibifity of apartheid with the moral well-being and the social
progress of the inhabitants, and once this incompatibility exists, a
violation in the terms of the Mandate has been fierse established, and
there is no further element of proof by way of evidence, oral or otherwise,
which is relevant to a judicial decision of this adjudication upon this
dispute, upon this theory, The only difference between the two kinds of
governing objective criteria, standards on the one hand, the legal norm
on the other, arises from whether they wouId be binding on Respondent
independently of the Mandate or because of the Mandate-the distinction
in this case is purely conceptual. If the principle of non-discrimination,
non-separation finds embodiment in international standards authoritative
the Mandatory is bound accordingly. If the mle of non-discrimination ord
non-separation has achieved a status of an international legal norm,
then it is binding upon the Mandatory, simply by means of its general
obligation to govern the mandated territory in accordance with inter-
national law, particularly, in as much as international law relates to the
well-being of peoples. The fact that such an international legal norm
would also be applicable with respect to Respondent's duties witlun
South Africa itself, is irrelevant to the theory or position of the Parties
in this case.
With respect to the Applicants' contention that the standards in
question have achieved the status of an international legalnorm, the
existence of the Mandate, in addition to estabIishing the compulsory
jurisdiction of the Court under the compromissory clause of Article 7,
also means that the international legal norm, ifit esists, as the Applicants
contend, constitutes an a jorliori basis for the interpretation of the
Mandate-that seems clear.
This consideration makes irreIevant Respondent'~ contention that its
opposition to the legal norrn could preclude the norm from coming into
existence.
The Respondent does not stand before this Court solely in quality as
a sovereign State. The Respondent stands before this Court as Manda-
tory, as trustee, accountable to the international community,accountable
to the United Nations system, of which this Court forms a part.
The Applicantç, as part of their argument under Article 38 of the
Statute, suggest that the Court could conclude that a norm of non-
discrimination has emerged, but that the Respondent, as sovereign
within the Repiiblic of South Africa itself, might conceivably claim an
exemption under familiar doctrine-might itself claim an exemption from
its application on the ground of its clear, open, consistent opposition to
the norm. This conceivably might be claimed by Respondent with
respect to its domestic jurisdiction as sovereign.
With respect to the mandate institution, however, the Respondent is
not before the Court qua sovereign but as mandatory, and even if
Respondent qua sovereign could exercise a veto over the international
norm creating processes, which the Applicants do not concede, Respon-
dent nonetheless, as a mandatory, may not claim exemption from a legal
norm which has been created by the ovenvhelming consensus of the
international community, a consensus verging on unanimity.
These considerations are suppIementa1 and alternative to the Appli-
cants' basic contention that an overwhelming consensus of State views,
even in the face of opposition from Respondent, is capable of generating30~ SOUTH WEST AFRICA
a legal norm within the meaning of Article 38of the Statute, apart from
the Mandate.
Then, thirdly, the character of Respondent's defences: the lirnits upon
Respondent's defences available to it on the basis of the theory advanced
by the Applicants upon which they rest, in the light of the qualitative
character of the violation of Article 2, which is charged, as well as the
objective character of the criteria by which the interpretation of the
Mandate is governed, Respondent's available lines of defence are limited.
It rnight be open to Respondent to attempt a demonstration that no
qualitative element is contained in Article 2, that the phrase "moral
well-being" is of quantitative application, or is to be offset against
material or quantitative weights and measures. It might be open to them
to do that. Or, it might be open to Respondent to argue that noobjective
criteria exists-at least not in tlie form of the international norm or
standards of non-discrimination. They themselves, if 1 understand the
verbatirn which I have cited earlier, conceded that some internationa1
legal norm of an objective character exists, applied to their good faith,
but they might conceivably argue that no objective criteria exist which
are applicable to the interpretation of its obligation. Of caurse, both of
these possible arguments the Applicants would object to, would oppose
and regard as untenable.
It likewise rnay be open to Respondent to contend that its policies
do not violate the norrn, although such an argument would in this
situation be incredible, inasmuch asit is precisely Respondent's policies
which have given rise to the standards and the legal norm as a large
element of their generation-not entirely, not exclusively. Obviously the
conduct of the administration of the Territory of South West Africa
has not been the sole generating source of the international norrn of
non-discrimination and non-separation, but its policy bas entered into
the generation of the norm as a very important factor thereof. There is
no problem here of lex sfiecialisit is a problem of the generation of the
norm, induding the source most directly and immediately concerned in
this litigation.
The central consideration, in the Applicants' view, underlying the
AppIicantsJ replies to Judge Sir Gerald Fitzmaurice's several questions, is
that the governing criteria, plus the character of tlie legal duty imposed
by Article 2, paragraph 2,plus the incompatibility between apartheidand
Respondent's legd duty, as it is defined by such governing cnteria, al1
of these factors as a matter of law constitute a violation of the Mandate.
In the light of these considerations the Applicants submit that there is
nagainst materia1 irnprovements, nor for assessing whether Respondent'sd
officiais sincerely, or indeed even passionately, feel that apartheid is
calculated to prornote the well-being of the inhabitants in some sense
in which negative human aspects-' negative aspects" in the phrase of
the Respondent-are offset by compensating material or other quan-
titative considerations. The moral and social conseqiiences of racial
discrimination and groupseparation, in the Applicants' view, cannot be
calculated by a table of weights and measures, nor put into scales along-
side irrigation projects or hospitals.
The Applicants now turn, Mr. President, with your permission, to an
exposition of the evolution and the content, and the applicability of the
international legal norm, and the international standards of nondiscrimi- REPLY OF MR. GROSS 3O7
nation or non-separation for which they contend, and which are defined
in the Reply, IV, at page 493. It is the international standards and the
legal norm (thus dehed by whatever label one chooses to describe it)
upon which the Applicants rely and which represents the core of their
case-the heart of their case.
The considerations now to be adduced will be relevant particularl to
a response to questions I through 4 and in the series propoundedlby
Judge Sir Gerald Fitzmaurice on ~a~ I~&. However, having said that,
it will be perhaps desirable to point out that other questions in this series
are, in the Applicants' understanding, relatcd in certain aspects to the
questions I have enumerated, and, therefore, with respect, it would be
the Applicants' intention, or conception, that in the considerations ~vhich
are about to be adduced they will be regarded as generally relevant to
the series of questions propounded, and then at the end thereof we 1viU
atternpt to give more specific responses to the enumerated questions
which are not expressly answered dong the way. This is a difficult task
because Judge Sir Gerald Fitzrnaurice's questions havestruck at the cen-
tral issue and clzallengcd us to expound Our views.
I. Inasrnuch as the Mandate "is an international agreement having
the character of a treaty or convention" (I.C.J. Re+orts 1962, p. 330)
it must be interpreted and applied as such. And, furthemore, and in
addition, the Mandate constitutes a "special type of instrument com-
posite in nature and instituting a novel international regime". (Ibid.,
P-331.1
2. By virtue of the "essential part Article 7 was intended to play, as
, one of the securities in the mandates systern for the observance of the
obligations of the hlandatory" (ibid.p. 337), the relevant international
law and international standards must be applied to the institution of
the sacred trust and to the alleged violations of its institutional terms,
described in 1950 at page r32as "jnternatjonal niles regulating the
Mandate which constituted an international status for the Territor).".
And this, if it may be repeated, isthe capacity in which the Respondent
stands before this Court.
3. Thcre must be applied to the process of interpretation of the man-
date, treaty or institution, the current body of internationally binding
and valid rules, crystallized in the ovenvhelmingly accepted judgments
of the competent supervisory international organs and embodied in
what the Applicants have called "international standards".
4. It is the Applicants' contention that the international standards
concerning racial segregation, separation or discrimination have evolved
through the normative processes to the stage of having achieved
the status and quality of an international legal norm, that is to Say,
a rule of international Iaw of the same content but of a different
quality. In the submission of the Applicants, such a legal norm is to be
derived by this honourable Court from sources found in the application of
Article 38, paragraph 1, of the Statute, paragraphs {a) through (d),
inclusively.
5. Whether the Court should adiudicate the issues re~arding violation
ofArticle 2 asa matter of treaty 'interpretation, or as> matter of pro-
tection of an international institution operating a prior ii accordance
with international law, the legal result, so far as the Applicants' case is
concerned, is precisely the same. Interpretation of Article 2, either by
reference to governing standards or to a legal norm, or to both, leads to308 SOUTH WEST AFRICA
the same resdt-a finding of violation by Respondent of its duties
under Article z, paragraph 2, of the Mandate, and under Article 22 of
the Covenant. And, sirnilarly, application of international standards or
an international norm, in the context of the Mandate as an institution
rather than as a treaty, yields the same legal result.
The Applicants now return to the discussionof their theory with respect
to the legal issuesunderlying the asserted violations of the sacred trust.
The Applicants respectfdy point out, first of all, that the interna-
tional, political, moral and other considerations which necessarily have
entered into the development and crystallization of the standards and
of the norm are not drawn into issue in this litigation-and cannot
properly be drawn into issue in this litigation. This Court cannot be, and
should not be,invited to examine the political, moral or other considera-
tions which entered into the processes by which the competent inter-
national organs have developed their judgments in this respect.
In the Applicants' submission to the contrary, the norm andstandards
are themselves among the sources of objective criteria by which the
obligations of the Mandatory may be measured and by which the interest
of the organized international community may be upheld in regulating
the minimum standard governing the interests of the weli-being and the
inhabitants of the rnandated territory. But, hlr. President, the stress is
constantly laid by the Applicants on the contention that this is a mini-
mum standard we are taking about and the promotion to the utmost
requirement makes the minimum standard of a fortiori application.
The function of courts in any social system, in Our respectful view,
whether national or international, is to give judicial application to
standards and rules brought into being by the normative procedures in
operation and, of course, it is of the essence of such processesby which
such standards and norms are developed (and they can be developed in
no other way) that social, humanitarian, political and other relevant
considerations are reflected in the normative procedures in the developing
of standards or norms and, of course, underlie the judicial application of
the standards and norms thus developed.
It was in this respect that, primarily, we accounted for the I3row.nv.
Board of Edztcationdecision as showing the process, not as establishing
a precedent applicable to the international community-that is an
American precedent applicable to the American national community and
the Applicants are perfectly well aware of that-but the processes by
which the highest court of the United States arrinied ut a judgment,
leaving aside what the decision or judgment was, but the processes by
which they arrived at the judgment are the processes which pertain to
any judicial process inherently, characteristically. The Applicants re-
spectfully urge that it is both a relevant and necessary element of the
judicial function, serving in these cases as the final bulwark of protection
against asserted breaches of the Mandate, in the words of the Court
in 1962a ,t page 336, that fdl weight be given to the normative functions
of the competent international organs, particularly as represented by or
embodied in the great system of the United Nations and specialized
agencies. That aspect of this honourable Court's high judicial function,
in the Applicants' most respectful view, is signalled by the provision of
Article gz of the United Nations Charter itself, which declares that the
International Court of Justice shall be the principal judicial organ of the
United Nations. REPLY OF MR. GROSS 3O9
The Court, in relation to the Mandate, is requested by the Applicants
to vindicate the role of law in the settlernent of international disputes,
ofwhich this has been, as the Court will be aware, a most protracted
dispute. More concretely, in terms of the issues at bar, the Court is
requested and urged, upon the basis of considerations which have been
placed before the Court and which will now be placed before the Court,
with the honourable President's permission, to confirm the existence of
international standards governing the intcrpretation of the Mandate, as
we1l as of an international legal norm, of which the violation of the
Mandate is a per se violation. Such a conclusion, or conclusions, involve
the application of canons of interpretations of the mandate instrument
of a traditional nature, not innovative, in the Applicants' view, as weli
as judicial recognition of sources of international law, enumerated in
Article 38 of the Statute, al1 of which reflect the evolving need and
character of the international order.
Through these proceedings, in their written pleadings and in their
oral arguments, the AppIicants have referred constantly to this phrase-
ology of international legal norm and international standards, and have
attempted to point out that the content of the norm is precisely the
same asthe content of the standards, the only distinction consisting in
the legal quality of the respective concepts. Both are addressed to
government policy by which rights, duties, obligations and opportuni-
ties are allocated on the basis of membership in a group, class, or race,
rather than on the basis of individual merit or capacity or potential.
Both the standards and the norm are expressed in terms such as to
render any violation thereof a $er seviolation, since under either heading
of standards or legal norm they prohibit the very existence of the
proscribed official action or policp in the form of laws, regulations, of
official methods and measures by which they are implemented, and, as
has been shown, the existence of which is conceded by Respondent.
Both the norm and standards, as will be apparent from the analysis
to follow in response to Judge Sir Gerald Fitzmaurice's series of ques-
tions, are derived from the same sources and identical contexts. Both
ernerge, intev alia,from the authoritative interpretations given to the
United Nations Charter and to the Constitution of the International
Labour Organisation by the member States thereof by an ovenvhelrning
consensus approaching unanimity. Both the standards and the legal
norm contended for likewiseemerged from authoritative jnterpretatjons
of Article 2 (2) of the Mandate itself by the competent organs of the
international cornmunity over the years. Such sources may be described
as Article 38 (1) (a)-sources in relation to the process by whjch the
standards andjor the legal norm have been evolved. The norm and
standards equally emerge, as the Applicants shall endeavour to demon-
strate, from international custom as evjdence of the general practice
accepted as law within the United Nations and other public organiza-
tions, and from treaties and other international agreements in the rele-
vant context-Article 38 (1)(b). Likewise, the standards and the legal
norm, for which the Applicants contend, emerge from the general prin-
ciples of law recognized by civilized nations, as manifested in the same
context of the organized international community particularly, and
this, of course,efers to the rubricof Article 38 (1)(c). Finally, they are
expressed in judicial decisions and the teachingç and writings of publi-
cjsts, the sources specifiedin Article 38(1)(d).31° SOUTH WEST AFRICA
The distinction between the international legal norm and the inter-
national standards therefore, as has been said, is of legai quality only.
The legal norm is established as an independent rule of international
law, and if so, in the cases at bar, the legal norm governs a fortiori the
interpretation and application of the provisions of the Mandate viewed
as a treaty or an institution or both.
The standards which, likewise of course, have the sarne content which
similarly relate to non-discrimination and non-separation, govern the
interpretation and application of Article z of the Mandate as authori-
tative interpretation by the competent international organsresponsible
for supervision of the Mandate, and ~vhichform a part of the network
of protection of which the principal links are the administrative organ
and the judicial body in this honourable Court. This was the point for
which the Applicants cited the NovtherlzCameroonscase in which the
problem was presented of the judicial protection absent from the admin-
istrative organ, and the Court spoke of the concomitant relationship
between the two bodies, and this,indeed, is of the essenceof this partic-
ular point in view of the role assigned respectively to the administrative
and judicial organ, ashas been dcveloped and as willbe furtherdeveloped
in response to Judge Sir Gerald Fitzmaurice's questions.
The application of the canons, in the context of the Mandate, results
in the interpretation andapplication of Article 2 on the basis of inter-
national standards or of the international legal norm, or both. Now, in
sideration arises additional to that of mandate interpretation orlegregula-
tion of the mandate institution. If a legal norrn exists-an international
legai norm-as the Applicants contend, which is, by its nature, relevant
to and decisive of, the measures adopted for the administration of the
Territory, then Respondent, byviolating the international legs1 norm,
has ceased to exercise the Mandate on behalf of the League of Nations
or the United Nations (which has replaced the Leaguej-in other words,
on behalf of the organized international community, however it is
embodied and by whoever it is represented. Actions which violate the
international legal norm, jf it exiçtç, must, of course, be dira vires the
Mandate.
The full power of administration and legislation over the Territory,
granted by the first paragraph of Article 2, is for the administrative
convenience of the Mandatory, as the Applicants have sought to make
clear in their response to the tenth question of Judge Sir Gerald Fitz-
maurice. Such power of administrative and legislative discretion was
granted by the community of nations acting in concert, and the modifica-
tion of any such power in any manner, or modification of the terms in
which it was bestowed and the methods of its exercise, must be subject
to the consent of the organized international community. That proposi-
tion is crystallized in Article 7(1)of the Ifandate itself.
Administration of the Mandate or legislation with respect to the
Mandate in a manner contrary to an international Iegal norm, if it
exists, as the Applicants contend, is an abuse of the mandate institution
andrelationship, in addition to being a breach of the article in question.
It will, of course, be recalled that this Court in defining the scope of
judicial protection referred to it in 1962 as the final bulwark of pro-
tection against abuse, asserted abuse, or breaches of the Mandate. REPLY OF MR. CROSS
[Public hearingoj 18May 19651
Mr. President and Members of the honourable Court, the Ap Licants
will commence discussion of the relevant international standar a s,with
certain general observations. These observations are designed to demon-
strate why accepted canons of interpretation, especially as applied to
treaties and conventions, support the Applicants' basic contention that
the international standards generated by the competent organs of the
international community govern the interpretation of Article 2,para-
relevant criteria which shouId be accepted and applied by this honour-d
able Court.
A fundamental point in issue between the Parties is the extent and
manner by which the'obligation of Article 2,paragraph 2,evolves in
response to changing conceptions in the international society of the
concepts of moral well-being and of social progress. Respondent appears
to contend that the meaning of Article 2,paragraph 2, as a matter of
interpretation, remains fixed in accordance with the intentions of the
authors as they must have been in 1920, when the Mandate was con-
ferred, but that the application of the Mandate changes with changing
tirnesas a consequence, however, not of objectively applied criteria of
change but of the Respondent's conception, the Respondent's purpose,
the Respondent's intention, analytically and in good faith, as applied to
values and circumstances and conditions in the Territory,as they change
and as they evolve. As the Applicants understand Respondent's con-
tention, and this has on occasion during the lengthy litigation caused
some difficulty, and confusion, perhaps, in the Applicants' appreciation,
the Respondent's reliance upon the good faith test, as we have talied it
in shorthand, appears to pose a certain problem which I have ventured
to describe at an earlier stage of these proceedings as an oscillation
between the purpose of the Mandatory and the purpose of the Mandate;
the latter, according to the conception which appears to be advanced
and which underlies the Respondent's case, the objective of the Mandate,
is appraised and evaluated in light of the Respondent's intention or
purpose or good faith, because these words are used in juxtaposition in
the Respondent's pleadings. With respect to what that objective con-
templates, basic to Respondent's theory, in other words, as we under-
standit, is that its discretion as Mandatory is fettered or restricted only
by its obligation to pursue a broadly authorized ultimate aim, and in
good faith, and that therefore its good faith is the criterion by which itç
performance should be judged, and by which it gives expression to the
dynamic aspects of Article 2. It isa limitation, so to speak, ofa sub-
jective nature which creates and evolves the dynamic character of .
Article z in terms of, and in the Iight of, the Respondent's appreciation
of the values and the demands of change. From one point of view it
seems alrnost, in the Applicants' rcspectful submission, as a rather
metaphysical concept, but this is perhaps a grossly unfair characteriza-
tion of it; it has created difficulties in the Applicants' analysisand
appreciation of the true significanceof Respondent's theory of its case;
the subjective analysis is, as the Respondent has properly pointed out,
one which is susceptible of factual determination; as the Respondent
has said repeatedly, it is possible for courts to ascertain state of rnind;
facts are determinable in tems of states of mind. In certain types of3x2 SOUTH WEST AFRICA
legal problems-delicts, crimes-the state of mind is indeed the cm-
cially relevant fact that determines the character of the crime. Therefore
there is no question but that a state of mind is determinable aç a fact.
with which the Respondent approaches its task, while a fact, never-mind
theless does not appear to the Applicants to be a fact which is deter-
minative of the purposes of the Mandate itself; it seems to have no con-
nections with the objectives of the Mandate as distinguished from the
objectives of the Mandatory.
Now, without further elaboration and attempted reformulation, in the
Applicants' terms, of the true significance, the underlying philosophy
or rationaleof Respondent's case (which of courseis subject to unwitting
distortion in an attempt at reformulation}, it seems to the Applicants
that at this stage, as we approach the final moments of the Applicants'
case-subject to normal reservation of rights of comment on evidence
and other rights under the Rules of Procedure-as we approach the
final phases of the Applicants' case it ~ould seem appropriate, and
not an undue burden upon the record, to set forth at this point the
Respondent's own formulation of its concept, its rationale,its philos-
ophy underlying its concept of the Mandate. It would seem, from a
careful search of al1 of the volurninous pleadings in this case, that the
most revealing, the passage rnost pregnant with the philosophy and
concept ofthe Respondent toward its obligations as Mandatory, appears
from the Counter-Memorial, II, at pages 386-387, and with the Presi-
dent's permission the Applicants would like to incorporate in the record
at this point the passage, whch 1 fear may seem to have undue length
but which should be perhaps set in this record at this time. Respondent,
at page 386 of the Counter-Wemorial, II, begins its discussion of what
I have called itsratio~ale,its philosophy, its concept of the obligations
of the Mandate and the duties of the Mandatory, and at paragraph 7 on
page 386 the Respondcnt states asfollows:
"The principle that the main objective of the Mandate was to
promote the 'weli-being and development' of the inhabitantç (the
'sacred trust' principle) was given effect to in two essentially dif-
ferent ways. In the first place, provisiowas made inArticles 3 to
5 of the Mandate for the 'safeguards' referred to in Article 22 (5)
and 6) [that is, paragraphs 5 and 6 of the Covertant]. These 'safe-
guarAs' (consisting mainIy of the 'prohibition of abuses') placed
certain limitations on the governmental powers of the Mandatory,
and were in effect merely specific implementations, in certain
defined spheres, of the overriding objective of the Mandate sys-
tem."
1 should like to pause here for a moment to comment very briefly on
the fact that this, as 1 remind the Court, refers to the provisions in
Articles3 to 5, and these are set in a category which, again in Respon-
dent's words, "placed certain limitations on the governmental powers
of the Mandatory". Article 5, the Court will recaI1, embodies the duty
to assure freedom of conscience. 1 think this point was brought up
yesterday in the context of the discussion, that it was difficultand
indeed it seemed to the Applicants really impossible to conceive of the
duty to promote freedom of conscience as a specific irnplernentationso
to speak, in a sense different from the promotion of moral well-being. REPLY OF &IR. GROSS 3I3
But continuing with the Respondent's formulation. on page 386of the
Counter-Mernorial, Respondent goes on to say as foiiows:
"Beyond making çuch provisions for the 'safeguards' it was,.
however, in the nature of things impossible (or at any rate not
considered feasible) for the authors of the Mandate to reduce the
objective of prornoting the well-being and development of the
inhabitants of the Territory to a series of specific injunctions or
prohibitions, breacheç of which would be capable of objective.
determination."
Parenthetically, again, this isoffset in this context against Articles 3to 5,.
which are ex hypothesi the approach of the Respondent, and are sus-
ceptible, are capable, of objective determination. Continuing with the.
Respondent's statement of its rationale or philosophy:
"No comprehensive set of mles can be devised, the application
of which in the sphere of government would inevitably and in
infinity have a beneficial effect on the people governed. The authors
of the Mandate consequently coupled the grant to the hlandatory
of full legislative and administrative powers with a provision whch
required the Mandatory to 'promote to the utmost the material and
moral well-being and the social progres of the inhabitants of the
territory'. These words in effect merely constitute a paraphrase of'
the main objective of the Mandate system as expressed in the
Covenant,-i.e., 'the principle that the well-being and development.
of such peoples form a sacred trust of civilisation'-and in their
context they consequently indicate the objective to be pursued by
the Mandatory, or the spirit with which he should be imbued, in.
exercising his power of administration and legislation."
Parentheticaiiy, again, Mr. President, the reference to "the spirit
with which he should be imbued" leads logically to the good faith test;
obviously it folloms consequentially and derivatively from this philos-.
ophy. No other consequence could foilow from this approach than the
positing of a good faith test. Now continuing Respondent's analysis:
"Some significant differencesbetween Article 2 (2)of the Mandate,.
on the one hand, and Articles 3 to 5, on the other, illustrate the
essentially different origin and purpose of these provisions. Thus
the wording of Article 2 (2)is wide and general, which is in keeping
with its nature as an expression of an idealistic objective. The.
'safeguards' contained in Articles 3 to 5, on the other hand, being.
-specific obligations, are couched in relatively clear and precise
language-they prohibit or enjoin particular acts or omissions and
provide objective criteria by which the Jfandatory's administration
may be judged.
The general, overriding nature of Article 2 (2) as denoting the.
spirit in which, or the purpose for which, the Territory is to be.
administered, appearç also frorn its position in the Mandate instru-
ment: it is not inserted in a separate article, or included with.
provisionç limiting the Mandatory's powers (as is the case with.
ArticIes 3 to 5).but is found inthe same article as the grant of 'full
power of administration and legislation' to the Mandatory." (II,
P 387.)
Parenthetically, again, Mr. President , this appears to derive a value REPLY OF MR. CROSS 3I5
briefly, there is no relevant distinction between interpretation and
application in respect of a constitutional-type document, if, indeed,
there is a distinction of that sort to be drawn in the case of a statute or
any other type of quasilegislative or institutional document or arrange-
ment.
Thirdly, the Mandatory, as agent of the international community,
because it exercises its trust on behalf of the international community,
Mandate) asagent of the international community, on whose behalf itg in the
is acting, it is obliged to defer to international standards and is not
competent to decline to apply these standards because it, whether in
good faith or not, professes to or actually, subjectively speaking, in
terms of its officiaisdoes regard them (such standards) to be inappro-
priate in the light of its (Respondent's) appreciationof local conditions.
In particular, the Applicants contend that the organs of the United
Nations, the supervisory agency, if tlie Applicants' legal theory is
sustained-which is based upon that of the Court's holding in 1950 and,
in our submission, reaffirmed by neccssary implication in 1962-the
organs of the United Nations, with such supervisory authority, have
competence to define thestandards ofwell-beingwhich provide authorita-
tive criteria for the interpretation of Artic2. As a background for the
assessrnent of the competence of the international organs for tvhich the
Applicants contend, several factors must be taken into account.
First, the authoritative characterizations and judgments expressed
by the competent organs of the international community have in this
situation, in respect of the Mandate, been expressed with an over-
whelming consensus, approaching unanimity, one which must be rare in
the history of international organization.
Secondly, such characterizations and judgments, as 1 have said, have
been expressed with particular reference to the Temtory itself under
mandate.
ThirdIy, such characterization and judgments have included, more
recently, in mounting form, the judgment that Respondent's policies
in the territories constitute a threat to international peace and security.
This is to be found in the resolutions to which reference has been made in
the written pleadings.
Fourthly, Respondent has refused to CO-operatewith the international
community to conform its policy in any respect to the judgments there
expressed to subrnit reports or to open the mandated territory to normal
administrative supervision, and aii this refusa1 and denial, in the face
of, in theteeth of, the Advisory Opinion of 1950.whichwas immediately
and overwhelmingly accepted by the General Assembly, two interpre-
tative Advisory Opinions, and the decision of this Court in r962 which
is now sought to be re-opened-au fond sought to be re-opened-even
to the extent of arguing that Article 7 is no longer in existence.
llrhat, then, would the presumed intentions of the authors of the
mandates system have been, confronted with this series of historic,
legal and factual realities? It would seem that the first thought in the
rninds ofthe authors of the Mandate would be a request to this honourable
Court to interpret the Mandate, whether asa treaty, orasan institution,
or asa combination of both, in the light of and on the basis of the judg-
ments ofthe competent international organs; the authors of the Mandate
would have rejected Respondent's contention that such a plea, such an31~ SOUTH WEST AFRICA
argument,constitute,in the Respondent's phrases "subsequent insertions
in the Mandate" or "arnendments to the Mandate".
The intention of the authors of the Covenant and the founders of the
mandates system, in the Applicants' submission, would have nothing in
common ~vitith Respondent's contention such asthe following:
", ..this Court does not possess jurisdiction to determine whether
Respondent has contravened objective principles of International
Law existing independently of the provisions of the Mandate".
(V, P.140.1
Or, again in Respondent's contention, that there islikewiseno jurisdiction
for the Court to deterrnine that Respondent has violated the mandate
obligation, interpreted in the light of current noms and standards, even
assurningthey exist, whch are expressed in and as a resuit of the United
Nations Charter, inasmuch as Article 7 of the Mandate, according to
Respondent's interpretation, and 1 quote from the same volume V,
page 132 of the Rejoinder, "Article 7 of the Mandate, which bestows
jurisdiction onIy in respect of disputes'...reIating to the interpretation
or application of the provisions ofthe Mandate'," and, this, the Respon-
dent says, excludes reference to, or acceptance of, the standards built,
inter alia ,pon the United Nations Charter to which the Respondent is
a llember because the standards are not relevant to the interpretation,
or the application or the provisions of the Mandate, and hence do not
fa11within the compromissory clause.
The determination of presurned intentions of the authors of the Man-
date can, perhaps, most convincingly be approached and appraised by
the authoritative technique of interpretation of the Mandate which has
already been applied by the Court, which, of course, is the normal,
traditional concept or canon of giving words their natural and ordinary
rneaning. In the laquage of the Court in the 1962Judgment, of course,
this rule of interpretationisriotan absolute one. "Where such amethod
of interpretation results in a meaning incompatible with the spirit,
purpose and context of the clause or instrument in which the woids are
contained, no reliance can validly be placed upon it." That is at page 336
.ofthe 1.C.J. Reports rg62.
In this case, it would seem that the normal and ordinary and natural
rneaning of the words used in the Covenant-in paragraphs I and 2 of
Article 22, in the concept of the safeguards in paragraphs 6, 7 and 8 of
Article 22, in the words of the mandate instrument itself, in the language
of Articles 2 through 5, which constitute the core. of course, of the
sacred trust-would exclude a good faith test. But the spirit, the purpose
and the context of the instrument irnperatively lead to the judgment that
these words mean what they Say.
The Mandate, as has been held and which is now part of the juris-
prudence of the Mandate itself, is a unique form of treaty or convention,
cmbodying a commitment to take account of the responsibility and the
judgrnent of the international community. It thus should be construed
in the light of the fact that, inthe Court's rvords in 1962, at page 329,
it established "a regime of tutelage for each ofsuch peoples to be exercised
by an advanced nation as a 'Mandatory' 'on behalf of the League of
page, this honourable Court said: "The rights of the Mandatory ine same
relation to the mandated territory and the inhabitants have their foun- REPLY OF MR. CROSS 3I7
dation in the obligations of the Ilandatory and they are, so to speak,
mere tools given to enable it to fa its obligations."
1s the Respondent to be heard to Say that the purpose of the tool is
to be determined by its intention as to how the tool should be used?
"The fact is that each mandate constitutes a new international insti-
tution", said the Court, "the primary overriding purpose of which is to
promote the well-being and development of the people of the territory
under mandate." These words, these findings of the Court, mark the
"spirit, purpose and context of the clause or instrument inwhich the
words are contained", as the Court said in 1962,and the "spirit, purpose
and context" is one of the highest standards of fiduciary responsibility
toward the inhabitants of the Territory, on the one hand, and toward
the organized international community, on the other. And the presumed
intentions of the authors of the Covenant and of the Mandate, must, it
seems to the Applicants, be read in this light. "The international regime"
was the way this Court has described the Mandate itself. The character
of such a regime must conform to the changing needs of international
life, as objectively determined, not as determined by the wishes, the
will, or the wkim of administrators or governors, who may be in office
from time to tirne. This would be an intolerable standard for application
by the international community. It would be inconceivable.
The concept of moral well-being and social progress involves the
determination and the protection of internationally determined criteria
and objectives. Each man's notion of moral well-being and of social
progress is a reflection of his own subjective attitudes toward iife, toward
the role of the individual, toward the role of the group, and the relation-
ship of both to the social order. How could an individual's state of mind,
or purpose or intent, be marked in any othermanner than by his persona1
appreciation and evaluation of his own role toward the social order. The
very concepts of moral well-being and social progress demand and cry
out for objectivedetermination on the part of the competent international
organs whose responsibility, rather than whose right, is fixed by the
mandate itself and thisiswhy the Applicantshave respectfully submitted,
and continue to submit, that it is unrealistic, indeed it is a fictitious
distinction sought to be drawn between the interpretation of the Mandate
and Covenant, on the one hand, and its application, on the other. The
founding fathers of the mandates scherne, the Respondent itçelf as
mandatory in undertaking the obligation, must conclusively be presumed
to have undertaken the obligation of a content, scope and nature which
the Applicants contend for. This iç not a matter of application as
distinguiçhed from interpretation, it is a matter of interpretation and
applicatioii, and the two are inseparabIe in any system which recognizes
constitutional principles and that, indeed, of course, means everysystem,
every civilized system.
In addition to the discussion in the Reply, centering on the phrase
"promote to the utmost" in Article z, paragraph 2, of the Mandate
(Reply, IV, p. 512), the Applicants submit that the phrase "social
progress" embodies two discrete elements: the word "social" and the
word "progress" are discrete. The word "social" implies that the concept
at issue centres upon social values and societal relationships. They are
by definition fluid and not static since society itself, by definition and
by al1 human experience, evolves and changes constantly. "Progress".
by its terms, is not a constant but a variable, and predicates the natural31~ SOUTH WEST AFRICA
processes of dynamic change in both national and international Society.
Applicants refer also to their analysis and discussion of the concept
of evolving standards, as set out in their Reply at IV, pages 512-518,
andthe record wiil not be burdened with a quotation of that discussion.
One sentence, or two sentences, may be useful, in this connection.
At page 512of the Reply, IV, the Applicants submit :
"Discharge of the obligation to promole weu-being and social
progress necessarily involves continuous, dynamic and ascending
growth. The requirement that ertmos tfforts be directed toward that
end, adds both urgency and dimension to the undertaking. The
proposition, implied by Respondent, that its obligation is to be
rneasured by its so-called 'intentions' as of 1920 is manifestly
incompatiblewith, and repugnant to, the essence and purpose of the
obligation itself."
The mandate instrument must, as 1 Say, be interpreted in accordance
with the intentions of the Parties in1920 but it must be interpreted thus
in the lightofits nature, spirit and purpose. When Respondent undertook
in 1920 the obligation to "promote to the utmost" the weil-being and
"the social progress" of the inhabitants of the Territory of South West
Africa, Respondent thereby undertook an obligation to apply evolving
and developing standards in the light of modem conceptions and knowl-
edge with regard ta the well-being and development ofdependent peoples,
as appreciated by the international organs vested with the duty of
supervision asa safeguardto effectuate the purposes of the sacred trust.
The stress, Mr. President, is on the word "safeguard"-that is embodied
and embedded in the Covenant itself. And, of course, the obligation
undertaken by the Mandatory in 1920 must be interpreted as one which
included the obligation to comply with rules of international law govern-
ing the weli-being and progress of al1 peoples under its jurisdiction in
the Mandate.
This is but to interpret the mandate instrument in accordance with
the intentions of the Parties ai the time when the obligations were
conferred and accepted. Thisperspective toward the obligationsembodied
Articlec2, paragraphaphI,2of the Covenant, to which constant referencee to
has been made by the Appiicants in view of the fact that the Mandate
is, of course, a mere measure, or method, of implementation of Article 22
of the Covenant. Article 22, paragraph I, of the Covenant, as the Court
will be tvell aware, speaks of applying "the principle of well-being and
development" to "peoples not yet able to stand by thernselves under
the strenuous conditions of the modern world". This is described aç a
principle.
This fundamental Covenant provision implies a dynamic environment
of international supervision; one that evolves with the contemplated
progress of the inhabitants. The objective is under a sacred trust for
which the Mandatory is given tools to enable itto canyon its obligations,
not rights, but tools to carry on its obligations, the purpose of which is
to make it possible for eoples not yet able to stand by themselves
under the strenuous contfitions of the modern world to rneet the con-
ditions of the modern world, and "the modern world" means what the
phrase says-it means the w 7rld as it progresses, as it becomes more
integrated. As possibilities for the individuals mature, flower and open REPLY OF MR. GROSS 3x9
up, the restriction, the confinement of the individual person to a group
categorization is a directly relevant consideration asto whether or not
he is being developed to meet the strenuous conditions of the modern
world-this is a challenge of utmost proportion to any governrnent,
certainly with respect to its own citizens, but with respect to a sacred
trust and an international accountability it is anawesome burden. For
such an injunction to becorne more than a pious wish, 1 refer to the
uotation 1 have read from the Reply. In respect of the unfettered
1iscretion, for which Respondent contends, it js jrnperative that inter-
national supervision is able to translate itself into obligations of the
Mandate by means of the standards formally set forth by the competent
international organ, and the capacity of the competent international
organs to do so, under the scheme of the Mandate, rests in this Court's
hands.
If Article2, paragraph 2,has any meaning at all, therefore, it pre-
supposes the application of evolving and dynamic standards as weli as
international rules of lawgoverning the welfare of the inhabitants of the
mandated territories, not as limited or conditioned by the intentions of
the wielder of the toois of the trust but as objectively determined by the
community upon which the trust was laid. Respondent has strenuously
resisted the Applicants' submissions in this regard, by stating both in the
written pleadings and in the Oral Proceedings, as follows: 1 take as an
exarnple the Rejoinder, V, page 140, which was cited during the course
of the Oral Proceedings of 24 March, VIII, pages 260-261 :
"The only basis upon which iraterPretadion of the relevant texts
could produce a result whereby current norms govern the content
of the Mandate, would be if Article 2 was ab initio subject to some
qualification such as:
'The Mandatory shall, when exercising its full power of adminis-
tration and legislation, giveeffect to such standards or norrns asmay
at the time of such exercise be generaily applied by other States'."
Except for the last clause which refers to "applied by other States",
and evades the basic point of the competency of the international organs
charged with supervision, this is precisely what the Applicants contend;
in essence, that Articlez, paragraph z, must be interpreted and read as
if it did explicitly statab initio and include the qualification that "The
Mandatory shall .., give effect to such standards or norms as may at
the time of such exercise be generally applied by other States"-I would
substitute for "other States" "the competent international organs".
As Applicants have already pointed out in these proceedings, the
international nom and standards of non-discrimination and non-sepa-
ration for which they contend have been universally accepted and
pronounced by members of the competent organs, reflected injudgrnents,
resolutions and decisjons by fhose organs; and mernbers other than
Respondent itself. Under these circumstances and in the light of the
specificity ofthese judgments embodied in such resolutions and other
instruments, it is not plausible or credible for Respondent to argue that
such an obligation can be said to be of uncertain content-if there is
one thing certain in this regard it is the content of the obligation. The
dificulties of application are precisely why South West Africa is a
mandated temtory subject to a sacred trust and subject to international
supervision; itis the very complexity of the task which creates the SOUTH WEST AFRlCA
320
main purpose, the main objective and the main burden of the trust. In
so far as interminable dispute {the phrase used by Respondent) is
controversy of law submitted to this Court at this moment whad Respon-
dent cornplied, and was now in cornpliance with, its obligations of
accountability. The Iegal dispute in the cases at bar has resulted in large
measure because of. and in the light of, Respondent's refusa1to comply
with the international standards ofnon-separation and non-discrimination
and its failure and refusal to CO-operateand to consult with the com-
petent international organs in the development of their judgments.
Ztis not only from the expressed terms of the Mandate that Applicants
derive the Respondent's duties to conform to modern standards, as
objectively deterrnined, in promoting to the utmost the weli-being and
social progress of theinhabitants; it 1salso because of the quality of the
Mandate as a constitutional type document, which it hasbeen described
asbeing by scholars ~vhohave been cited in the pleadings and by the
Permanent Mandates Commiçsion itself in references also cited in the
Applicants' pleadings. Applicants refer in this respect to a discussion in
the Reply, IV, at pages 513-516.
Throughout this discussion, Mr. President, it seerns important to
ernphasize again that what is at stake here is the relative competence
of the Respondent and of the organized international community to
establish the authoritative content of the concept of moral well-being
and socialprogress. Respondent contends that its discretion,constrained
by its obligation to pursue authorized purposes as it views and interprets
them in good faith, is the means by which to test its cornpliance witli
Article 2,paragraph z, whereas the Applicants contend that Respondent's
discretion is additionaily constrained by international standards gen-
erated by the competent international organs. For if, as the Court said
-dia, "the recognition ofpaaesacred trust of civilization laid upon theer
League as an organized international community", then it necessarily
foliows that that community re uires the competence and possesses the
responsibility for specifying the ynamic content of well-being and moral
and social progress by the establishment of authoritative standards-
how else could it cary out its competence? How else could it discharge
its trust? If Respondent as Mandatory, rather than the organized inter-
national community upon which the trust waç laid, hris priority, if the
intention of the Mandatory is paramount in standard evolving and
standard setting, then the original, animating concept of the sacred
trust, as laid upon the international community, is nullified. This dis-
cussion, therefore, is intended to fortify and confirm the Applicants'
basic contention that the organized international community, rather
than the Respondent, possesses the competence and the responsibility
to determine the content of the obligation in the light of its nature and
purpose and where the organized international community, through the
competent organs, has set such standards in categoncal, imperative and
unusually clear terms, they take precedence over incompatible exercises
of diçcretion by the Mandatory as a matter of law.
The approach of the Applicants with respect to the judicial process
and its role in the interpretation and application of constitutional-type
charters or ordinances is well summarized in the wnting of the Iate Judge
Benjamin Cardozo, of the United States, who 1think iç regarded as one REPLY OF MR. GROSS 321
of the great scholars and jurists produced in that country, and it bears
with particular emphasis upon the purported distinctions çought to be
drawn between interpretation and application, which is a purported
distinction whch in al1 candour has baffled the Applicants in their
attempt to analyse it to a legal or constitutional type significance. The
phrases which 1 take the liberty of quoting are from Cardozo'ç The
Nulacre oftheJudicial Process, published in Igzr, and 1cite pages 82-85-
the late Judge Cardozo wrote:
".. .the content of constitutional immunities is not constant, but
varies from age toage. We muçt never forget, in Marshaii'ç mighty
phrase, that it is a coltstifzition we are expounding. Statutes are
designed to meet the fugitive exigencies of the hour. Amendment
is easy as the exigencies change. In such cases, the meaning, once
constmed, tends legitimately to stereotype itself in the form first
cast.A constitution states or ought to state not rules for the passing
hour, but principles for an expanding future. In so far as it deviates
from that standard, and descends into details and particuIars, it
loses its flexibility, the scope of interpretation contrathe meaning
hardens.
The President of the highest French Court, hl. Ballot-Beaupré,
explained, a few years ago, that the provisions of the Napoleonic
legislation had been adopted to modern conditions by a judicial
interpretation in 'le serasévolutif'. 'Mie do not inquire', he said,
'what the legislator willed a century ago, but what he would have
willed if he had known what Our present conditions would be'."
Judge Cardozo cites Munroe Smith, Juris#rudence, pages 29 and 30 and
goes on-
"It follows from al1thiç, said Judge Kohler, that the interPretution
of the Statute must by no means of necessity remain the same for
ever. To speak of an exclusively correct interpretation, one which
would be the true meaning of the Statute from the beginning to
the end of its day, is altogether erronous." (Kohler, "Interpretation
of Law", as translated in Modern LegalPhilosophy Seuies, p.192).
Ifthis is true 4th respect to constitutions generally, it is al1summed
up in the historic phrase "It is a constitution we are expounding"; the
word "expounding" means and it comprehends interpretation and appli-
cation.The instrument is applied as it is interpreted, and as it is re-inter-
preted in constitutional systems throughout the years of its life. But if
we start from this premise it seems incredible, on its face, to assume at
the same time a right or capacity or competence on the part of the
Mandatory, bound by the constitution, itself to interpret ore-interpret
it on the one hand, or itself to determine its scope, content and manner
of its application on the other.
To the extent that this would be permissible at al], it would constitute
a form of annexation; indeed one would say it would constitute the
essence of annexation. If the only test appticable were that certified
by the Respondent, it would be the test of what one might call, "the
outrageous test of the objective Mandatory". Its intention wouId be
examined and its good faith evaluated in tems of the purpose, and the
factual state of mind of the officiaifrom time to time of its government.
The distinction sought to be drawn by the Respondent between inter-32z SOUTH WEST AFRICA
pretation and application therefore, if it bas any meaning at aI1,is one
which is corrosive of the very purposes and nature of the instrument.
It is not only on the one hand formalistic and unreal, it is a constitu-
tion we are expounding; it is the clearest imaginable case of killing the
spiritby the letter, and the letterisa false one.
In the first place, the contention is based upon and proceedç from the
proposition that Article 2, paragraph 2, which isthe core and essence
of the sacred trust, merely states and sets forth an ultimate aim or an
exhortation, in the words of the Respondent which I have read, an
indication, a signpost, a marking, of the spirit with which it should be
imbued.Indeed it does that, but that iswhere it starts. In the Applicants'
view it starts there. In the Respondent's view, it ends there.
This construction of the intent of the authors of the system asto the
meaning of the trust obligation, not only enables, but requires, by a
logicaiimperative that the Respondent oscillate between its own purposes
and the Mandate purposes. As 1 have said before, it construes the position
which leads to a construction of Mandate purposes in terms of the
Mandatory's purposes. The purposes of the Mandate become what the
Mandatory says they are, subject only to the outrageous mandntory
in the Respondent's subrnission. This happens to be the essence and core 2,
of the trust. But, with respect to .ticles 3 to 5, including the duty to
assure freedom of conscience, Respondent concedes in its own termç,
indeed contends, that these Articles have sufficient specificity not only
to be justiciable, but to be governed by objective criteria. Respondent's
argument wmes to this: the more closely the Court approaches the
heart of the trust, the less competence it has to protect the essence of
the trust; the more closely one approaches the heart of the Mandate,
which is Article z, paragraph 2, and the more vitally concerned the
competent international organs become in the protection of that tnist,
the less applicable are their judgments. This is the inescapable logic of
the Respondent's position.
This isnot what the Court couldhave meant by dcscribing international
supervision as the very essence of the Mandate. 1s the essence of the
Mandate ta be found in the competence of the Court to supervise the
sale of liquor to the Natives, as distinguished from the promotion of the
moral well-being and social progress of the inhabitants of the territory?
In surnmary then, whether one interprets the mandate agreement in
accordance with the intentions of the parties at the time when the
agreement was entered into, or whether the Mandate is interpreted
and/or applied in accordance with contemporary standards, the result
is identical. Respondent's obligations under Article z,paragraph 2, are
to apply and to carry out the recognized and accepted minimum inter-
national standards of non-discrimination and non-separation, which in
the Applicants' respectful view have been so clearly and emphatically
established and with such overwhelming approximation to unanimity,
that they have achieved the legal statusand quality of an international
legal norm.
The Mandate brought into being an international regime, the character
ofwhich isresponsive ta and determined by the evolution of international
life, as international life and its requirements are understood by the
competent organs, upon whom the trust was laid.
Itissufficient for the purposes of these cases at bar, that the standard REPLY OF h1R. GROSS 323
in question be clearly expressed by the competent organs; that the
standards, in other words, need not have achieved thestatus and quality
of an international legal norm; that is not necessary for the Applicants'
purposes in these proceedings. Uut whether one accepts, as the Appli-
cailts cal1 it, the existence of an international legal nom, or u~hether
the Court should merely hold that the international standards govern
the interpretation and application of the Mandate, the foregoing con-
siderations would be relevant in either event.
Al1 efforts to persuade the Mandatory to conform to the judgments
of the cornpetent organs, whether expressed as standards or as a legal
norm Iiavéfaiied. AU efforts to persuadethe Aiandatory even to conforin
with its duty of international accountability have failed.The violation
of the standards in question by Kcspondent iç so plain that they may
be found to exist on a per sebasis, i.e., simply as a rnatter and onthe
basis of the terms and provisions oi the laws and regulations and the
officia1 measures and methods by whicli they are put into effect, the
existence of al1 of which is concedcd by Respondent, and a summary
of wliich has been marshalled, collated and presented to the Court in
the record of these proceedings, for the convenience of the Court and
the purposes of the record itself.
There are further reasons, based upon the jurisprudence of the Mandate
as determined by this Court during aperiod of 15years, why the judgment
of the international comrnunity should be applied conclusively to the
deterinination of this dispute.
Such considerations of, what 1 have called them, the jurisprudence
of the Mandate, are to be found in excerpts from relevant decisionç, e
judgments and opinions of this honourable Court which also have been
marshalled, collated and,for the convenience of the Court, set into the
record of thesc proceedings at s stage then deemed convenieiit. It wili
not, thercfore, be necessary or appropriate for the Applicants to refer
again at this point to that collation of relevant materials establishing
the jurisprudence of the Mandate; it suffices to cite the1962 Judgment,
at page 331. in which thc Court characterized the Mandate "as a speciai
type of instrument composite in nature and instituting a noirel inter-
national regime".
In the course of the samc discussion the Court pointed out, and 1
stress these words, "the essentiality of judicial protection for the sacred
trust1'-that is at page337 of the Judgment. The essentiality of judicial
protection for the sacred trust. It is the sacred trust which is embodied
and cmbedded in Article z (2)of the Mandate, not Articles3-5 which the
Court has characterized as marking the essentialityof judicial super-
vision for the sacred trust.
The Court went on to refer to "the rights of member States" under
the Mandate. indicating that under the unanimity rule of the Covenant
"the Council could not impose its own view on the Mandator ", and the
Court then stated, and 1 am quoting from page 337 of the I.E.J. Hefiorts
1962 :
"The onIy effective recourse for protection of the sncred trust
would be for a Member or hlembers of the League to invoke Article 7
and bring thc dispute as also one bctween them and the Mandatory
to the Permanent Court for adjudication."
Again, the reference to the protection of the sacred truand the explicit SOUTH WEST AFRlCA
324
holding of the Court, the explicit finding of the Court, that it was for the
protection of the sacred trust that Members of the League of Nations
were given the right of recourse to this honourable Court.
Under the first alternative contention of the Reçpondent in the face
sacred trust, is not justiciable.sTheatCourt's finding thus confirms thehe
contention of the Applicants that Article 7 of the Mandate includes
protection of the sacred trust provision and, as if to put the rnatter
beyond the peradventure of possible doubt, at page 337 of the 1962
Judgment, the Court, proceeding from the quotation 1 have just cited
concerning the only effective recourse for protection of the sacred trust,
stated :
"It was for this all-important purpose that the provision was
couched in broad terrns embracing 'any dispute whatever ... be-
tween the Mandatory and another Memberof the League of Nations
relating to the interpretation or the application of the provisions of
the Mandate. . .ifit cannot be settled by negotiation'. It is thus
seen what an essential part Article 7 was intended to play aç one
of the securities in the Mandates System for the observance of the
obligations by the hlandatory." (I.C. J.Refiorls 1962, p. 337.)
And the obligations specifically refer and inçlude the sacred trust.
The Court went on to conclude:
"\l'hile Article 6 of the Mandate under consideration provides
for administrative supervision by the League, Article 7 in effect
provides, \+?ththe express agreement of the Alandatory, for judicial
protection by the Permanent Court by vesting the right of invoking
the compuIsory jurisdiction against the Mandatory for the same
purpose in each of the other Members of the League. Protection
of the material interests of the Members or their nationals is of
course included within its cornpass, but the well-being and develop-
ment of the inhabitants of the hlandated territory are not less
important." (Ibid., p. 344.)
The mandate jurisprudence as determined by the Court in 1962
establishes that the sacred trust (Article z (2)of which represents and
embodies the heart and the essence, the primary and, indeed, essential
purpose)-protection of the sacred trust is the essential purpose-for
which the Court was empotvered or endowed with the obligation-the
right-to afford judicial protection to the Mandate in the case of alleged
abuse or breaches thereof.
The compromissory clause thus has been established by and, indeed,
demonstrated by the Court as underljing the very purpose and nature
of the Mandate. The coinprornissory clause was, of course, in issue in the
1962proceedings, and has been asserted, defined, and, indeed, elaborated
in this respect by this honourable Court as showing the necessities, the
perceived necessities, on the part of the authors of the mandates system
for extending the judicial protection itself to the sacred trust. The
the Parties herein and the relationship between the United Nations oneen
the one hand, and the Respondent on the other, is set forth at length in
the Mernorials at 1, pages 54-87,and in the Reply, IV, at pages 222-230.
Tliis is under the heading of the hiçtory of the dispute, but the Court's
attention iç respectfully drawn to it at this point, at this stage, because REPLY OF Ma. CROSS 325
it is, of course, a history pregnant with significance in these proceedings;
it isa history rnarked by repeated and there cited judgrnents of the
competent organs, as well as a history of the endeavours to reconcile the
issues in dispute, to find a settlement through negotiation, and these
have been conducted by the Applicants in and through the agency of
the United Nations itself. The Applicants stand before the Court fully
aware of the fact that they speak for no-one but themselves, but it 1s
perhaps relevant to point out tliat, both in the 1962 majority opinion
and in other opinions appended thereto, note was taken, particdarly in
connection with the preliminary objections regarding the nature of the
dispute, of the identity of the issues in dispute-on the one hand between
the Applicants and the Respondent, and on the other hand between the
United Nations and the Respondent.
The United Nations, asthe records set forth in the written pleadings
show, has beenwholly unable to "impose its own viewonthe Mandatory".
(I.C.J. Reports 1962, p. 337,) This was with specific reference to the
situation prevailing at the the of the League of Nations when the veto
rule was applicable in the Council, and the Court took note of that fact
in arriving at itsdetermination regarding the nature, scope and essen-
tiality of the judicial protection.
Here, likewise, notas a result of any constitutional veto, asin the case
of the League, but on the grounds, so to speak, of action and of conduct,
the Respondent, by withholding its co-operation and its consent to
international supervision ha, in the sense, cast a veto over the operation
of the United Nations no less effective than that which it might have
cast constitutionally in respect oa similar errerciseof super\risory capa-
city on the part of the League of Nations.
What has happened to "the machinery of administrative supervision"
(again 1 quote from the apposite language of the Court in 1960) iç,of
course, not really that it has disappeared legally, as Respondentcontends,
but that Respondent has refused over the years, and even since 1950, to
submit to international administrative supervision.
the inter-relationship between administrative supervision and judicial
protection, and more specificaily and in this context the judicial role in
applying the standards and judgments evolved by the competent adrnin-
istrative organ to which the Mandatory is accountable and upon which
the sacred trust is laid.
Mr. President, 1 will now conclude the discussion ofthe introductory
nature upon which 1have been embarked this morning and then, with
the Court's permission, turn to an elaboration of the processes by which
the relevant standards have evolved, and of the content and fom which
they have been given. This is the scheme of what will remain of this
morning's Oral Proceedings; this,of course, is all in the context of the
response to the series of questions propounded by Judge Sir Gerald
Fitzmaurice, as weli as the reply of the Applicants to the rebuttal on
the issues of law, with which now ofcourse the Applicants have combined
such factual material as it is their intention as presently advised to
present to this honourable Court.
The considerations which have been adduced during the course of the
discussion just concluded, alltaken together, point to the perseviolation
of the internatio standards and the a fortiori violation in terms of the
international legal norm for which the Applicants contend of the same326 SOUTH WEST AFRICA
obligations under Article 2 of the hlandate. The considerations may very
briefly bc summarized as follotvs: the interrelationship bctween the
sacred trust provisions of the Mandate and of the Covenant, and judicial
protection, scope and purpose of judicial protection; the nature, the
scope and the content of the international standards which have evolved
through the processes of the organized international community, the
competent organs of which have not only the right but the duty to
supervise the Mandate and provide the safeguards for the effectuation
of the sacred trust;the ovenvhelming consensus approaching unanimity
which has marked the formulation of the relevant standards by the
competent organs; the general and basic obligations of the Mandatory
toward the organized community as a function of itspecial duty toward
the inhabitants of the Territory, and its special dutieswith regard to
CO-operating with international supervision, submitting to such super-
vision and complying with supervisory measures and judgments thus
formulated by the competent organs; the fact that Kespondent has
failed and refused to act in accordance with the principles enunciated
by this honourable Court inthe rgjo Opinion and subsequent judgments,
and has failed to CO-opcrate in submitting to international supervision,
which in itself is a fact lending weight to the nuthority of the judgments
reachcd by the organized international comrnunity which consist of
minimum pronouncements on the Mandatory's duties in the respects
relevant to this discussion; that such standards have been evolved with
great effort and caution, despite the Respondent's faiIureto CO-operate
and consult and provide information. The failure and refusal to provide
information, to consult and to CO-operatecannot be asserted as a source
of questioning of the judgrnents which have evolved; in the face of such
failure to CO-operate Respondent cannot be heard to challenge the
validity of judgments reachcd with patience, with effort and with undcr-
standing, in the face of its coiitinued refusal and failure to CO-opcratein
the evolution of such standards in accordance with the cIear spirit of
intent of the Mandate-this is indeed having it both ways; the fact,
added to the others 1 have just mentioned, that there is a structural
and functional interrelationship between administrative supervision on
the one hand and judicial protection on the other; that the applica-
bility of criteria in the judicial form necessarily depends upon and
presupposes their formulation in the administrative organ; that this
Court, and no court, by reason of the very nature of the judicial process,
has the faciIities or the responsibilities to reach judgments, to formulate
standards, of the sort which are uniquely within the competence of
administrative organs and which reflect political and moral and social
considerations of which they are specially competent to judge and
evaluate.
Another consideration to be added to these is the fact thatthe General
Assembly is legally bound, not merely permitted, to formulate criteria
with respect to the conduct of the administration of the Territory.
Al1 of these factors, in the Applicants' respectful submission, create
ovenvhelming, indeed much more than persuasive, grounds for con-
clusive application of the international standard of non-discrimination
and non-separation in the determination of whether there has been, as
the Applicants contend, a flcr se violation by Respondent of Article 2 of
the Mandate and Article 22 of the Covenant.
The AppIicants now, Mr. President, turn to an elaboration of the REPLY OF $IR. CROSS 327
processes bg which the relevant standards have evolved, and of the
content and forni which they have been given, and this, as 1 have said,
is in response to the questions propounded by Judge Sir Gerald Fitz-
maurice. At the conclusion of the comments which are to follow in this
respect and related respects the Applicants will cndeavour to summa-
rize in more specificterms responses to ench of the separate questions,
of the several questions, propounded in the series of Judge Sir Gerald
Fitzmaurice in respects which will not have been covered in the more
general discussion which is designed likewise to relate to and bear upon
the very important series of questions propounded by the learned judge.
The standards by which Respondent's obligations should be measured
are the authoritative judgments which have evolved principally within
the context of the United Nations Charter on the one hand and the
Constitution of the International Laboiir Organisation on the other, of
both of which organizations the Respondent has been a hlember. The
preciçe legal relationship betureen the Charter, or the constitutional
provisions and the interpretation thereof by the Mernber States, the
signatory States, will be considered at a somewhat slightly later stage,
that is, tomorrow (when the Applicantç hope to conclude) when Appli-
cants turn tu the question of the evolrition of the legal norm of non-dis-
crimination or non-separation. The existence and validity of the inter-
national standards emanating from the United Nations Charter and its
interpretation and application to the Mandate are not open to argument.
At pages 104 through 108 of the Mernorials (1) Applicants have set out
textually provisions of Articles73 and 76of the United Nations Charter.
The Applicants there cite the text of the League of Nations resolution
of 18April 1946which noted, inter alia-
"that ~ha~ters XI, XII and XII1 of the Charter of the United
Nations embody principles corresponding to those declared in
Article 22 of the Covenant of the Leagile"-
that is quoted at page ro6 of the Mernorials (1); and, on the same page,
the Applicants submitted-
"that Chapters XI, XII, and XII1 of the United Nations Charter
are in pari materia with Article z of the Mandate and Article 22 of
the Covenant, and, therefore, that the termç of the Charter may be
employed in construing Article 2 of the Mandate and Article 22 of
the Covenant".
At page 107 of the Memonals the Applicants have set out, inter alia,
the provisions of Article 76 (c) of the Charter which, asthe Court will
be aware, provides that one of the "basic objectives of the trusteeship
system" is "to encourage respect for human rights and for fundamental
freedoms for al1without distinction as to race .. .".
Similarly, in the Reply, IV, pages 497 and 498, the Applicants have
set out the provisions of the preamble to the United Nations Charter
which state that one of the goals of the Organization is "to reaffirm
faith in fundamental human rig-hts, in the dignity and worth of the
hurnan person, in the equal rights of men and women and of nations
large and small", together with the provisions of Article 1,paragraph 3,
Article 13 (b),Article 55 (c),Article 56, and Article 62, paragraph 2,
of the Charter and, as the Court will equally be aware, the Charter is
studded with references tu purposes and principles, down through the
main body of the Charter itself, and to the rights of perçons. Exarnples328 SOUTH WEST AFRICA
thereof, as 1have said-and this'is cited in the hlemorials-include the
terms of Article r, paragraph 3,providing that among the purposes and
principles of the United Nations shallbe that of "promoting and encour-
aging respect for human rights and for fundamental freedoms for al1
without distinction as to race, sex, Ianguage or religion".
Article 13 (6)of the Charter authorizes the General Assembly to
initiate studies and to rnake recommendations for the purpose of "assist-
ing in the realization of human rights and fundarnental freedoms for
al1without distinction as to race, sex, language or religion".
Likewjse, Article 55 {c} of the Charter stateç that the Organization
shall promote "universal respect for and observance of human rights
and fundamental freedoms for al1 without distinction as to race, sex,
Ianguage or religion".
Following these references in the Keplp the Applicants stated that:
"Ali of these provisions taken together make manifest the concern
of the international community for the protection of basic human
rights; the most fundarnental norrn-non-discrimination-is re-
peated no less than four ti~nes.Thuç, even though the Charter does
not make explicit the human rights and fundamental freedoms of
which it speaks, it does make clear that, irrespective of the right in
question, a fundamental nom liesat its base: officia1non-discrimi-
nation on the basis of membership in a group or race." (IV,p. 498.)
and principlcs of the Charter of the United Nations is of course pre-oses
scribed in the Charter itself as follows:
"Article gz. The International Court of Justice shall be the
principal judicial organ of the United Nations. Tt shall function in
accordance with the annexed statute, which is based upon the
statute of the Permanent Court of International Justice and forms
an integral part of,the present Charter."
ArticleI of the Statute of the Court, of course, provides that:
"The International Court of Justice established by the Charter
of the United Nations as the principal judicial organ of the United
Nations shall be constituted and shall function in accordance with
the provisions of the present statute."
The purposes and prindples ofthe United Nations, in the Applicants'
respectful submiççion, apply both to the member States and to al1the
organs ofthe United Nations.
The third purpose of the Organization, as rendered in Article I,
paragraph 3, of the Charter, is:
"To achieve international CO-operationin solving international
problems of an economic,social, cultural or humanitarian character,
and in prornoting and encouraging respect for hurnan rjghts and
for fundamental freedoms for ailwithout distinction as to race, sex.
language, or religion."
This is ernbedded in the purposes of the Organization itself, not merely
a substantive obligation, but a stated purpose.
In the exercise of its judicial function in determining Respondent's
obligations under the Mandate, the Applicants respectfully submit that
the Court should give full weight to the foregoing purpose of the Orga-
nization which has just been quoted. When a question in dispute before REPLY OF MR. GROSS 329
the Court involves issues directly related to "human rights and funda-
mental freedoms", it is submitted that such issues should be determined
by this Court ina manner consistent with that purpose which underlies
the very existence of the Organization itself, with respect to such human
rights and freedoms, that there should be "no distinction as to race"
among other categmies.
Likewise, this honourable Court, as an organ of the United Nations,
is required to "promote universal respect for and observance of human
rights and fundamental freedoms for al1without distinction as to race,
sex, language or religion"-in the words of Article55 (c) of the Charier-
as a substantive obligation of the Charter, not only as a purpose, but
as a substantive obligation embodied in the Charter itself. The Court,
as the judicial organ, can only implement such a purpose and such a
substantive obligation in connection with the performance of its judicial
functions, to wit, the determination of disputes which involve questions
of human rights and freedoms for all. Thc Court can only perform such
a jiidicial function by giving full application to the purposes and the
substantive obligations of the Charter in the context of a dispute which
involves aileged gross violations of obligations inherent in those Charter
purposes and in those Charter provisions.
The Statute of the Court is, of course, as has been said, an integral
part of the United Nations Charter, by its terms. The dispute now before
the Court involves the application of internationalstandards of non-dis-
crimination and non-separation on account of membership in a race or
group and, inasmuch as the Charter of the United Nations itself pro-
scribes such discrimination and posits elimination thereof as a stated
purpose of the Organization (Art. I)as well as a duty of the Organization
(Art. 55),it must follow in the Applicants' submission that thestandards
of interpretation and application to be applied by the Court to the
international institution of the mandate must not only be consistent
with such purposes and duties but must further reflect and embody al1
othcr provisions of the United Nations Charter in their formulation and
determination.
Kespondent's objections to the relevance or applicability of the United
Nations Charter must be evaluated in the light of these considerations.
The objections of the Respondent include, but go beyond, the legal
question or bounds of the doctrine of pari materia upon which, as con-
firmatory evidence of constructional interpretation, the Applicants relied
in the Mernorials.
The Respondent's objections to the relevance or the applicability of
the United Nations Charter, as understood by the Applicants, take
essentially two foms. The first is thatthe Mandate may not be inter-
preted, in accordance with the intentions of its authors, by reference to
a convention or charter drawn up 25 years Iater. This. in Respondent's
contention, does away with the Applicants' references, or reliance upon,
pari materia. 1 cite the Counter-Memorial, II, pages 395 to 396 in th13
regard.
The explicit reference which has been mentioned in the 18 April 1946
resolution of the League of Nations to Chapters XI, XII and XII1 of
the Charter, is in itsela clear indication of the relevance to and appli-
cability of Charter provisions to the mandates scheme. Respondent
itselfis not only a party to the Charter of the United Nations, but
supportcd and voted for the resolution of 18 April 1946, which on its330 SOUTH WEST AFRICA
face estabbshes the relevance of the provisions of the Charter to the
mandates system.
Closely related to the first argurnent of Respondent, just rnentioned,
is a correlative or subsidiary argument to the effect that Article 7,
paragraph z, the compromissory clause, would not give this honourable
Court cornpetence or jurisdiction to coosider Charter violations in these
proceedings. 1 refer to the Rejoinder,V, page 132. Of course, as is made
explicitly clear in the writtcn proceedings, the Applicants do not request
this honourable Court to make findings or holdings that Respondent is
in violation of the Charter provisions. U'e are talking about the relevance
of the Charter provisions tu the interpretation of its obligations under
the Mandate and under Article 22 of the Covenant, tu70entirely different
things. An interpretation of the Mandate must take due cognizance of
relevant provisions of the United Nations Charter; so relevant indeed
that thcy were referred to in expressasvcrbis in the very final resolution
of the League of Nations pertaining to the subject of ma~idates.
When the issue complained of,moreoever, involves principles and
purposes treated in the Charter, upon which the United Nations and its
member States frequently have expounded, it seems clear that such
treatment and exposition, moreover in the formof minimum standards,
pronounced by the overwhelming consensus of the community, tliat a11
these factors taken together cumulate and render imperative, in the
Applicants' submission, tfie conclusion that the Charter provisions and
purposes are indeed relevant to a determination of the legal scope and
significance of the Mandate, which is an international institution regu-
lated by international rulesand supervised and safeguarded by an inter-
national commünity.
Respondent's second argument, as understood by the Applicants,
with respect to United Nations criteria and their asçerted irrelevance
to these proceedings, is again twofold. First, it appears to be argued that
the standards contended for by the Applicants do not emerge from the
Charter at ail. This is the way we understand the Rejoinder,V,page 131,
to which the Court's attention is draïvn bccause it is, of course, unneces-
sary for the Applicants to attempt to rc-formulate Respondent's con-
tentions, but it is necessary to express the Applicants' understanding
of what they mean in order to try to sespond to them. But this jswhat
we undérstand that Respondent means: that the standards contended
forby the Applicants do not emerge from the Charter at all.
In this context, if this is the proper interpretation,Respondent has
misconstmed the standards contended for bp the Applicants and has
ignored the Applicants' major premise, which is nothing more or less
than that the policy coinplained of is contrary to Articlz,paragraph 2,
of the Mandate and Article22 of the Covenant, and that it is based upon
the allotment of burdens and privileges by official action on the bais of
membership in a group, class or race rather than on the basis of indi-
vidua1 merit, quality or capacity.
The misconception implicit in Respondent's representation of the
norm of non-separation as one of, in its phrase, "non-differentiation",
has been the subject of extensive discussion in these Oral Proceedings.
The verbatirn record of 28 April 1965,at pages 44 to 46, supra, and that
of3 May 1965 at pages 85 to 89, supra, deal with the misconception of
Respondent that seems to be built upon its re-staternent of the norm
of non-discrimination in the form and terms of non-differentixtion, from REPLY OF MR. GROSS 331
which misconstruction it apparently has been lead to certain absurdities,
in the Applicants' view, for example with respect to the significance of
the Applicaiits' reference to the minorities treatics, and the significance
of the minorities treaties in these proceedings.
The extrerne form in which Respondent's criticism attacks the norm
conteiided for by the Applicants, and which pcrhaps ariseç from its
misunderstanding implicit in the use of the word "non-differentiation"
as distinguished fronl "non-discriminatioii", is found 1 think in the
Rejoinder, V, at page 131, where the Respo~ident goes so far as to Say
that-
".. .011 Applicants' argument, a Member of the United Xations
would not be entitled to provide special protection or special public
conveniences for women, or wouId not be entitled togrant separate
public holidays for different religious communities on their respec-
tive religious days, or to establjsh different public schaols for
various language groups or even for the two sexes".
One hesitates to cal1 this n travesty upon the effecl and intendment of
the Applicants' truc position but it would bc difficult to find anotlier
qualification or characterization.
Respondent contends at the same time that (this time from the
Counter-JIernorial, II,p. 396) its "policies have in fact been designed to
give effect to the principlcs underlying" the provisions of Article73 and
76 of the Charter. It may be that special significance is intended to be
attached to the word "designed" to give effect, since this presumably
bears upon the underlying good faith or intent test, and this contention
presumably is designed to create the conviction that Kespondent
intends by its action (intends as a subjective matter} to give effect to
the principles underlying tiie provisions of Articles 73 and 76 of the
Charter.
If this corresponds to the intention, the purpose, the design of the
officials of Respondent's Government, one can only say that their design,
their intention, their purpose, have fallen very far short of the mark
indced, and that there are vcry few, if any, hlembers of the United
Nations who have interpreted or would interpret Articles 73 and 76 of
the Charter in a sense which would even remotely correspond to the
Respondcnt's construction thcreof. And if its intention, or the intention
of its highest officialsisto carry out the purposes and the principles of
the United Nations Charter, they are indeed missing the target by a
very very wide distance.
The pleadings of the Applicants abound with references to United
Nations resolutions, to reports of United Nations Conimjttees, to reports
of the Secretariat of the United Nations, and other relevant material,
which establish the incompatibility of Respondent's policy of apartheid
with the relevant Charter provisions, inthe light of which, as the Appli-
cants contend in their Memorials, the Mandate should be read.
Applicants refer in this connection, passim, to the hfemorials, 1, at
pages 44 to 85, rjr and 165; to the Reply, IV, at pages 341 to 361 and
pages 362 to 475, passim, and more particularly including Annexes 5,
6 (1)and 7,as well as pages497 to 508. In addition, as Ihave said before,
the Reply chronicles the history of the dispute since rgGoat pages 222
to 230, and in so doing records the more recent history of the United
Nations activities regarding the Mandate. Throughout the MemoriaIs332 SOUTH WEST AFRICA
and in the Reply, resolutions of the General Assernbly are set out,as are
various relevant quotations from United Nations sources.
The essential element linking al1 relevant reports, resolutions, com-
munications, statements and concJusjons of the United Nations bodies,
including the specialized agencies directly concerned,isrepudiation and
condemnation of apartheid. This there is no room to doubt or dispute.
As stated in the Reply:
"Since the founding of the United Nations, there have been more
than thirty resolutions of the General Assembly specifically con-
demning racial discrimination or segregation, whether in South
Africa itself,South West Africa, or generally inNon-Self-Governing
Territories." (IV,p.502.)
Applicantshave set out at page 502of the Reply a list of such resolutions.
Inasmuch as the purpose of citing such resolutions was to demonstrate
the judgment ofthe organized international cornmunity with respect to
separation or discrimination on the grounds of race or membership in a
group, it is immaterial to the purposes of the present discussion that the
resolutions apply to apartheid both as practisedin the Republic of South
Africa and in the Territory of South West Africa, as the pleadings make .
crystal clear and as is conceded by the Respondent. The fundamental
policy and practices in force in the Territory and in the liepublic are
essentirilly thesame in al1respects relevant here.
Indeed, Respondent's only comment with regard to the numerous
resolutions which were cited in the Reply at page 502, as far as the
Applicants are aware, is that set forth at page 130, V, of the Rejoinder.
There Respondent describes the resolutions 1 have cited, and the three
Security Council resolutions which are cited at pages 503 to 504 of the
Reply, IV, as being inapplicable, inasmuch as the resolutions "did not
create legal obligations and for the most part were not applicable to
South West Africa", and the Security Council resolutions apart from
anything else, says Respondent, were "not applicable to South West
Africa", and this is true.
But Respondent's conclusion with regard to such resolutionsirltealia,
and now I quote from the sarne page of the Rejoinder, is as follows:
"Inasmuch as al1the above items are by their very nature inca-
pable of affecting Respondent's rights or obligations in respect of
South West Africn, Respondent will not unnecessarily devote tin~e
or space to considering whether they do indeed possessthe content
ascribed to them by the Applicants." (V, p. 130.)
"The content ascribed to them by the Applicants" in Respondent's
phrase just quoted was the foliowing as set out in the Reply, IV, at
Page 503:
selves legaily binding on MemberseneraofAsthe United Nations, them-
repeated and strongly worded judgments by the General Assernbly
that racial discrimination, separation, or apartheid are in vjolation
of the Charter,and in the case ofSouth West Africa, also in violation
of the Mandate, are significant evidence of the general accept-
ance of a:legal norm of non-discrimination or separation on the
basis ofrace."
These are the purposes for which these resolutions were cited and that REPLY OF MR. CROSS 333
is set forth in the words 1 have just quotefrom page 503, of the Reply.
Interpretation of the proviçions of the Mandate, having regard to the
purposes and obligations of the Charter, as reflectedby and interpreted
in the numerous resolutions of mernber States acting with virtual
unanirnity on this matter, would seem to supply authoritativeguidance
and governing principles for the interpretationof the obligations of the
hlandate itself. The fact that Article22, paragraph I, of the Covenant
itselfprovides for securities for the performance of the sacred trust
indicates that the founders contemplated the reçponsiveness of the
Mandatory to the judgmeiit of the supervisory safeguarding organ;
there would be no other reason for eçtablishing the safeguards as an
eçsential element of the mandate systern in the Covenant itself.
In support of the existence of an international standard of non-dis-
crimination or non-separation, with the content which, as contcnded
forby the Applicants, isdefined at page 493, of the Reply,IV, thc Appli-
cants have rcferred in their Reply to several resolutions of the Security
Couneil with regard to apartheid as practised in the Republic of South
Africa, not the territory of South West Africa. In two such resolutions,
set forth ai pages 503-50 of the Reply, the Security Council expresçed
its view that:
". ..the policies of the Government of South Africa in itç perpetua-
tion of racial discrimination are [skipping a few words from the
resolution] inconsistent witthe principles contained in the Charter
of the United Nations and [contrary to] its obligations aa Rlember
State ofthe United Nations".
This was from Security Council resolutions o7 August 1953and 4Decem-
ber 1963, the citations of which respectively are S/5386 and S/5471.
Although the allegation of Charter violation through the practice of
apartheid, using that name normally although not invariably, has been
expressed in general terms throughout the years, it haç also been speci-
fically couched in relation to Artic56 of the Charter. General Açscmbly
resolution 1178(XII), of26 November 1957 ,alled upon the Respondent
to observe Article 56 of the United Kations Charter, and reminded
Respondent that it was "as much committed as any other member to
the principleç enshrined in the Charter". Similar references to Respon-
dent's obligations to uphold the undertaking, the obligation of Artic56
of the Charter, may be found inreçolution1248(XTII) of 30October 1958,
as weil as resolution1375 (XIV) of 17 November 1959.
In 1961, resolution 1598 (XV) of 13 April 1g6r recalled "that South
Africa has been in tvilful breachofitç obligations under Articl56", and
reminded Respondent that Article z, paragraph 2,of the Charter re-
quires that "al1 members shall fulfil in good faith the obligations assumed
by them inaccordance with the present Charter", and also called upon
Respondent to bring its conduct into conformity with its Charter obliga-
tions.
Indicative of the seriousness with which member States, mith a con-
sensus virtually approaching unanimity, have regarded the development
and continuation of the policy of apartheid, both in the Territory and
in the Republic jtself (sjncthe two are indistinguishable in the respects
relevant here in the context of the General Assembly's appreciation of
the policy as diçtinguishcd from the question before the Court in terms
of the cornpetence of the Court) is the characterization by the General334 SOUTH WEST AFRICA
Assernbly of the policy practised in both South West Africa and in the
Republic itself, not only as a breach of the Charter obligations but also
as a threat to international peace. l'hus in one of the resolutions of the
Security Council cited in the Reply, IV, ripage 504,the Council expres-
sed what it termed "its firm conviction" that-
". .. thc policies of apartheid and racial discrimiiiation as practised
by the Governnient of the Kepublic of South Africa are abhorrent
to the conscie~iceof manki~ld and that therefore a positive alter-
native to these policies must be found through peaceful rneans .. .".
This is a Security Council resolution of 4 December 1963, S/5471.
In its discussion, both in the written pleadings and before the honour-
able Court in the Oral Proceedings, the Respondcnt appeared at one
point, and 1 have cited thisat an carlier stage, thave posited an objec-
tive criterion of its own, which involved the objective determination
proceeding from the fact of its state of rnind, conczrning itmaia fidesor
bona fides-this is the theory of the Respondent's case. On the basis
even of such an obligation so measured, of objective criteria so-called,
thus defined, the Security Councilrcsolution stamps even that obligation,
vague as itis, with the characterizatioii of "abhorrent tothe conscience
of mankindH-this is the Security Council of the United Nations.
Specifically with regard to South l'est Africa, Applicants have set
forth in part, at page222 of the Reply, IV, the text of Gericral Assembly
resolution 1596 (XV) of 7 April 1g6r, in which tiie General .4ssembly,
without dissent, decided to caIl to the attention of the Security Council
the situation of the mandated Tçrritory itself, with the comment,
"which, if allowcd to continue, will in the General Assembly's view
endanger international peace and security . . .".
Again, the attention of the Security Council was drawn to the Terri-
tory on these same grounds by General Assembly resolutions 1702 (XVI)
of 19 December 1961 and 1979 (XVIII) of 17 Decernber 1963; these were
cited respectively inth? Reply, IV, at pages 224 and 229.
In addition to the resolutions of the General Assembly and Security
Council, the Applicants cite also the many comments and characteriza-
tions, conclusions and recommendations, made by the various cornmit-
tees of the Gencral Assembly throughout the years, with regard speci-
fically tothe question of raciaI scparation andior discrimination. These
materials are set out in the Xemorialç, I, pages 54 through 84 passim,
and in the Reply, IV, pages 341 through 475, passim. With regard to the
simple questions of the violationof Charter obligations, inasmuch as the
bodies are esercising the functionofadministrative supervision pursuant
to the Opinion of 1950 of fhiç honourable Court, these conclusions there
referred to in the pleadings are of special relevance.
Two brief exarnples, among numerous possible, may be cited. These
bath occurred at a relatively early stage, and show thereby the long
history of this dispute. The first comment to serve as an example for
these purposes may be found in the Aiemorials, 1, at pages 70 and 71;
it isthe report of the Committee on South West Africa for 1956-nine
years ago (A/~I~I). In a concluding paragraph, which is reproduced at
page 71 of the Memorials, the Committee stated as follows:
"To this grave concern ovcr conditions 35 they exist in 'the
Mandated Territory, [parentheticallv, the Court is reminded this
is 19561 the Committee has felt obfiged to add its profound mis- REPLY OF &IR. CROSS 335
givings as to the future course of the administration of the Territory.
Thesc misgivings arise from actions and statements of the Union
Government itself: in particular, the transfer to a direct control of
'Native' administration in the Tcrritory, and its stated aim that
a policy of racial segregation be applied in the Territory.,.
In view of the foregoing account of conditions in the Territory,
aii of these elements constitute, in the Committee's opinion, a
situation which is neither in conformity with the pri~iciples of the
Mandates System nor with the Universal Declaration of Human
Rights, nor with the advisory opinions of the International Court
of Justice, nor withtheresolutioriof the General Assembly. Accord-
ingly the Committee considers that the situation of South West
Africa requires close re-examination at the present tirne by the
ilssembly, particularly in respect of the failure of the Union Govern-
ment to CO-operate in the implementation of the advisory opinion
of the Court ofII July 1950 ,s endorsed by the Assembly in resolu-
tion449 A (V) of 13 December 1950.''
JIr. President,it is perhaps relevant to note here that Kespondent
throughout the pleadings and again in the Oral Proceedings, has sought
to evade the force of the resoiution, and has sought to construe the
findings of agencies of the United Nations, such as and including the
Committee on South West Africa, in terms of allegedly improper motiva-
tion, in terms of political carnpaigns, in terms of conspiracy and in terms
of trading among nations for position, or favours, or other considerations
of unenlightened self-interest. The force and effect of these resolutions,
of these findings, cannot, in the Applicants' view, be disposed on such
a basis.
The results of the close re-examination by the General AssernbIy
which is recommended by the Committce for South West Africa was,
as waç made clear in the report itself, undertaken in the light of Res-
pondent's failure to CO-operatein the implementation of the Advisory
Opinion of 1950 which, of course, the Respondent has never characterized
as a portion of a part, or part of, a political campaign or conspiracy.
The General Assembly took special note of the fact that the Respon-
dent was failing to carry out its obligationas detennined by the 1950
Advisory Opinion which \vas accepted by the General Assembly and,
having considered the matter, the Committee itself concluded in the
following year, that isto Say in 1957 a,s follows:
"The Committee is of the opinion that the administration of
South West Africa, in which political, economic, social and educa-
tional rights are governed by the practice of apartheid, or racial
separation, operates to the detriment of the population, particularly
the 'Native' majority, and is c0ntrar.v to the spirit and purposes of
the mandates system, the Charter of the United Nations, and the
Universal Declaration of Human Rights." (1, p. 73, doc. Al3626.)
The conclusions of the South West Africa Comrnittee and the resolu-
tions and deliberations of the General Assembly have constantly and
repeatedly referrcd to the incompatibility of Respondent's practices and
policy of apartheid with its Charter obligations and a fortiorwith its
obligations under the Mandate itself. Applicants refer the Court to the
passages in their pleadings to bvhichspecific attention has been called to
this point, particularly in the chronicle of the historj7 of the United336 SOUTH YEST AFRICA
Nations Charter and of the Mandate, by the resolutions and conclusions
of the Assernbly and its cornmittees, a11of wkich are set forth in the
written pleadings at the placesto which 1have calied the Court'sattention.
Also relevant to the interpretation and application of the provisions
of the United Xations Charter and, consequently, to the interpretation
and application of the terms of the obligations under the Mandate which
must be read in the light of the Charter, are the conclusions and the
proceedings of the Trusteeship Council and of the Committee on Non
Self-Governing Territories. Reference already has been inade in these
proceedings to the 1947treatment by the Trusteeship Council of Res-
pondent's report on the Territory for South IVestAfrica for the year 1946.
(The citation is to the verbatim records of rr 3lay 1g6j, pp. 209-214,
supra, and 12 May 1965,pp. 214-217 s,dpra.)
SirnilarIy, in the Applicants' Reply are set forth examples of the
United Nations standards of non-discrimination and non-separation in
the fields of education, economic lifc, and political development, al1 as
cxpressed throughout the years by the organs of the United Nations
with respect to dependent territories generally subject to the scope of
sfeel justified in characterizing apartlicid iinder the heading milzimum
applicability,alortioriapplicability, because the principle, the standard
of non-discrimination and non-scparation, has heen applied by the
United Nations in respect of territories in which the policy and practicc
of apartheid isnot maintained. Such examples, referred to in the plcad-
ings at the places cited,and for the convenience of the Court rnay 1 cite
them again: the Reply, IV, pages 398-403, 426-430 and 451-457, are the
examples of United Nations judgments. The Respondent has in numerous
contexts characterized these judgments embodied in these annexes at
the cited pages of the Reply as judgments or contentions of the Appli-
cants-this isa misconstruction asthe reading of the pages willshow.
These are not the Applicants' contentions, these are the judgrnents of
the United Nations and they refer to other territories and areas not only
of Africa but of the world. These are lrotthe Applicants' judgments,
these are not the Applicants' contentions, these do not involve questions
of comparative standards of achievement; these arc United Nations
judgments with respect to policics relating to and focussing upon the
problem of racial separaiion or discrimination.
These examples and a multitude of others al1 confirm the clear and
accepted international minimum standards of non-discrimination or
non-separation, which are çet forth also in Chapters XI, XII, and XII1
ofthe Charter and these, in turn, wvere,as 1 have said, explicitly rcfcrred
to in the resolution of 18April 1946, to which the Respondent adhered
and for which it voted.
The Trust Territories Agreements themselves are concrete evidence
and application ofthe directive of the obligation of Article 76(c) of the
Charter. ExampIes are adduced at IV, pages 5or and 502 of the Reply;
for example, at page 501the Applicants have stated:
"Each of the eleven ~ist Territories Agreements contains a
provision ~vhichcontributes to the universal acceptance of the nom
of official non-discrimination, or non-separation on the basis of
membership in a group or race. The various provisions are al1
worded with reference to Article 76 (c) of the United Nations
Charter." REPLY OF MR. GROSS 337
This standard, this obligation of Article 76(c) is embodied in XI inter-
national systems, institutions, designated as Trust Territories Agree-
ments.
Finally, the declarations and draft declarations undertaken under the
auspices of the United Nations and within the context of the United
Nations Charter, although not binding in thernselves, constitute evidence
of the correct interpretation and application of the rclevant Charter
provisions. Examples of these for this piirpose, and citations, are given
in the Reply, IV,at page 501 and at pages 504-508, "11 not bc claborated
here, but they includc the Universal Ueclaration of Human Rights, the
Draft Deciaration on Rights and Duties of States, the Draft Covenant
on Civil and Political Rights, the Draft Covenant on Economic, Social
and Cultural Rights. the United Nations Declaration on the Elimination
of AI1Forrns of Racial Discrimination, and the international Convention
on the Elimination of Al1 Forms of Racial Discriminat'ion.
It isossibIe, and for purposes of litigation almost anything is permis-
sible, for the Respondent to take up onc or the other of thesc resolutions
or declarations and parse thern and analyse them. The central point is
that, taken in their totality as well as severally, they establish over-
whclmingly the interpretation placed upon the relevant Charter pro-
visions by the llembers of the United Nations, speaking with a con-
sensus which approaches unanimity. This is the significance of these
resolutions and declarations. These instruments are al1reflections of the
standard of non-discrimination and non-separation, they are consistent
with and illuminative of and interpretative of the relevant provisions
of the United Nations Charter.
A further important conventional source for the standards for which
the Applicants contend may be found in actions taken and judgments
rendered in the context of the I~lternational Labour Organisation. As sct
forth at page 508 of the Keply, IV, ArticleII, paragraph 6,of the Con-
stitution of the International Labour Organisation embodics thestandard
of non-discrimination and non-separation which was originally pro-
pounded and agreed to in the Declarntion of Philadelphia which, as 1
recall, was in the year1944, I believe:
". ..al1 human beings, irrespectivc of race, creed, orsex, have the
right to pursue both their material well-being and their spiritual
development in conditions of freedom and dignity, of economic
security and equal opportunity ..."
The very formulation cmployed, Mr. President, "material welI-being
and . ..spiritual development in conditions of freedom and dignity"
bears a close correspondence to the wording of Artic1e.z. (2) of the
Mandate. Respondent, arguing that it was not a party to this instrument,
and also that itisnot "in terms inappljcable to South West Africa",
disposes of the constitutional provisions to which reference has been
made in one paragraph of its Rejoinder. I refer toV. page 133,in whch
it equates the language of the I.L.O. Constitution "equal opportunity"
(this is from the Philadelphia Declaration to which Respondent was not
a party) with the obscure concept of "identical opporttinity"-equates
"eqrial" with "identical", and Respondent avers that :
"It is a matter of irnpossibility to provide anything remotely
approaching identical opportunitics for material well-being and
spiritual development of al1 inhabitants of a State-and, in any338 SOUTH WEST AFRICA
event, such identical opportunities would give rise to great inequal-
ity." (V, p. 133.)
-
This is rerniniscent, of course, of the repeated instances previously cited
to the Court in which the Respondent has attributed extrerne and often
unintelligible positions to the Applicants, including specifically this very
example in which the word, by some sleight of hand, "identical" is sub-
stituted for the word "equal".
Respondent misconceives the purport of a judgn~ent accepted by the
international comrnunity with virtual unanimity, both asto the relation-
ships inter se and as to their municipal constitutional legislative practices
in respect of the content and quality of the obligations (both in spirit
and in substance) rvhich are embedded in the Constitution of the Inter-
national Labour Organisation.
Respondent argues further on page 133 that the Declaration of
Philadelphia-". .. shows an awareness of the ~iecessity for differential
treatment between various groups". liespondent cites a general pro-
vision rclating to the progressive application of ail the principles set
forth in the DecIaration with the following proviso: ". . . 'with due
regard to the stage of social and economic development reached by each
people' ..." (V, p. 133). Respondent relies upon the latter clause just
quoted asdemonstrating the awareness ofthe authors of the Declaration
of Philadelphia of the necessity for differential treatment between
various groups.
This, agnin, is redolent with the misconception which arises lrorn the
false equation of differentiation, as such, with discrimination or separa-
tion, which, of course, are forms of differentiation but happen to be
impermissible forms of diflerentiation.
Respondent's reliance upon such an interpretation of the general
provision rclating to progressive application isrefuted by the very
sources which are set out in the Reply, and to bvhich Respondent in its
written pleadings does not address itself. Immediately following the
provisions of Article 2, paragraph 6, of the I.L.O. Constitution, wliich
relate to "equal opportunity", "irrespective of race", the Applicants
have pointed out in the Reply- - :
"According to the International Labour Office [and this is from
a publication which is cited in the Repiy] 'this principle, which,
from the very beginning, has constituted one of the bases for aH the
standard-setting activities of the International Labour Conference,
has been enunciated in greater detail in the Covention and Recom-
mendation concerning discrimination in respect of employment and
occupation, adopted by the Conference in 1958'. (IV,p. 508.)
The authoritative interpretation, according to the International
Labour Office itself, of the "equal opportunity" clause of the I.L.O.
Constitution is, again,aIso set forth in the Reply, on the same page just
citedl that is, page 508, in which it is explained as-
... an attempt to achieve the eIimination of 'any distinction,
excIusion or preference made on the basis of race, colour, sex,
religion, political opinioii, national extractioor social origin,which
has the eflect of nullifying or impairing equality of opportunity or
treatment in employment or occupation' ".
This is designed to diminate distinction and the implication of Respon-
dent's interpret ation is that it is designed to fermil distinction on the REPLY OF MR. GROSS 339
basis of race or classification in group, which, of course, is a construction
of the clause which is, on its face, obviously not its intent.
In view of the foregoing considerations, the Applicants submit that
there can be no question as to the cffectiveness or authority with which
the standard of non-discrimination or non-separation has found expres-
sion in the Constitution of the International Labour Organisation. When
added to the relevant provisions of the United Nations Charter, in the
context particularly of their amplification by way of interpretation and
construction by an overwhelming consensus of member States, ap-
proaching unanirnity, the Applicants submit that the two basic ordinances,
the Charter of the United Nations, on the one hand, and the Constitution
of the International Labour Organisation, on the other, establish beyond
a possibility of doubt the authority and relevance of the international
standard of non-discrimination and non-separation \vit11regard to the
interpretation and application of a sacred trust laidupon the organized
international community specifically designed and intended for the
purpose of promoting to the utmost the material and moral well-being
and the social progress of inhabitants not yet able io stand by them- ,
selves in the conditions of the modern world,
Refcrence already has been rnncleto the Convention and Recommenda-
tion concerning Discrimination in respect of Employment and Occupa-
tion, one ofthe I.L.O. Conventions. Although not ratified by the Respon-
dent, as appears from the Rejoindcr, V, page 130, it is nonetheless an
authoritative source for interpretation of the I.L.O. Constitution, which
has been ratified by the Respondent. A further source may be found in
the Convention concerning Social Policy in Non-Metropolitan Terri-
tories of 1947, which is cited in the Reply at IV, page 509.
A resolution unanirnously adopted by the Governing Body of the
International Labour Office, at the International Labour Organisation,
at its 157th Session held in Geneva on 12-15 November 1963, referred
in terms to-
". ..the grave concern exprcsscd in the Conference and Governing
Body on the subject of the odious policy of apartheid deliberately
practised by the Governmcnt of the Republic of South Africa".
The Governing Body further found that-
". . . the Republic of South Africa is pursuing its ,baneful policy,
which violates the fundamental principles of the I.L.O.".
It is not necessary to point out that the mords "baneful", "odious",
and "deliberate" are those of the I.L.O. and not the Applicants'.
The I.L.O. by resolution appointed a cornmittee to consider tlie
question as a whoie, and to-
". ..endeavour to deterinine what contribution the I.L.O. could
make to the complete eIimination of apartheid and to suggest what
action should be taken to sccure the observance of the princlples in
the Co~istitution and to protect human dignity".
Al1conventions, reports, resoliitions and conclusions emanating from
the International Labour Organisation or its Governing Body must
neceçsarily be consistent rviththe Constitution of the Organization, and
where adopted unanimoirsly there would hardly seem to be any roorn
for doubt on that score-unanimousIy, that is, exccpt for Respondent.
If, then, siich material discusses policy and practice relevant to the SOUTH WEST AFRICA
340
"equal opportunity" provision of the Constitution, such discussion rnust,
in turn, be consistent with the provisions. 13eingconsistent, the sub-
stance of the respective conventions, reports, resolutionsand conclusions
of the I.L.O. must, in so far as they relate to the principle of non-separa-
tion and nondiscrimination, be iiiustrative (illustrative at least) of the
significanceof the "equal opportunity" clause of the Constitution of the
I.L.O. In the Applicants' view they are far more than illustrative, they
form authoritative interpretations of the Constitution and, as has been
said, if they are authoritative interpretations of a convention or con-
stitution to which the Respondent has adhered-an organization of
which it has been a hfember-then such interpretations provide an
authoritative basis for the interpretation and application of the standards
text of the many resolutions of the General Assembly, of the I.L.O.on-
Governing Body itself, in regard to this matter.
Material relating both to the Republic of South Africa and to the
Territory of South West Africa has been adduced in the Reply on the
basis of officia1International Labour Organisation sources. The reference
to both the Kepublic and the Territory of South West Africa, notwith-
standing the fact that the Republic of South Africa does not stand
before the Court as the Repüblic of South Africa but as the Mandatory
power over South West Africa, is justified and relevant because of the
fact that, asdeterrnined by the competent agencies and organs, the
allotment of rights and burdens and privileges on the basis of member-
ship in a group, or race, rather than on the basis of individual rnerit, iç
a common feature, it is a basic aspect and feature common to the policy
practised both in the Republic and in the Territory, as these resolutions,
as these judgments make clear. These are not conclusions drawn by the
Applicants; these are refiections of the judginents of the organs them-
selves.
The Applicants have made reference to officia1reports and conclusions,
as well as conventions and the Constitution of the International Labour
Organisation in their pleadings at various places, but specific reference
is made in this context to the Reply, IV, at pages 406, 417-424, 431-438,
and pages 508-509, and here, also, reference will be found to the Annex
to the report of the Committee on questions concerning South Africa,
which was the Committee set up by the resolution of the Governing Body
of the International Labour Organisation on rg November 1963, from
which report the Applicants have quoted.
The Annex, which has been prepared by the Director-General of the
International Labour Othce, was entitled "An I.L.O. Programme for
the Elimination of Apartheid in Labour Matterç in the Republic of
South Africa". Dated 1964, the Programme refers on its first page to
reasons why it was concentrating on "three broad areas", namely-
"Equality of opportunity in respect of admission to employment
and training ;
freedom from forced labour (including practices which involve or
may involve an element of coercion to labour); [and] freedom of
association and the rjght to organise."
Among the reasons assigned in the Programme for focus of the Pro-
gramme on the areas in question, to 1vhicf1ihave just referred, were the
following: REPLY OF MR. CROSS 34I
". ..they are the fundamentals of freedom and dignity; well-
established standards approved by the International Labour Con-
ference with near unanimity exist in respect of al1 of them; these
standards give expression to principles proclairned in the Declara-
tion of Philadelphia as being among the aims and purposeç of the
International Labour Organisation. .."
The I.L.O. Programme, to which 1am refemng, likewise stated that
such matters "have al1 been the çubject of an exhaustive enquiry by
authoritative I.L.O. bodies which affords an objective basis for the
formulation of recommendatjons relating to them". So far as the Appli-
cants are aware tlic functioning of the I.L.O. has not been impugned
or brought into question in respect of motivation or otherwise by the
Respondent in tlieçe proceedings.
In paragraph 148 of the Programme, the following principles were
stated in the form of conclusions of the Programme itself:
"South Africa should recognise and fulfil its undertaking to
respect the freedom and dignity of al1 human beings, irrespective
of race, and as a first stcp in thiç direction should:
+romote equality of opportunity and treatment in employment
and occupation irrespective of race ;
repeal the statutory provjsions which provide for compulsory job
reservation or institute discrimination on the basis of race as regards
access to vocational training and einployment ;
refieal al1 legislation providing for...any .. . form of direct or
indirect compulsion to labour, including discrimination on grounds
of race in respect of travel and rcsidence, which involves racial
discrimination or operateç in practice as the basis for such dis-
crimination ;
repeal the statutory discrimination on grounds of race in respect
of theright to organise and to bargain collectively."
4lthough these conclusions are, in terms, as 1 have çaid,which the
Applicants realize full well, appljcable to the Republic of South Africa
itself which does not stand before the Court in its sovereign capacity,
but stands before the Court as Mandatory, they, nevertheless-these
findings, these recornrnendations-are equally applicable in meaning,
in spirit, and in purpose to similar and, indeed for al1purposes material
to this Iitigation, identical practiceand policies in the form of acts-
legiçlative acts-, administrative regulntions, and officia1methods and
measures for implementation of the laws and regulations which pertain
in the mandated territory, and which are subject to prccisely the same
standards of application, and the same judgments as have been set forth
in the Programme of the International Labour Organisation "for the
elimination of apartheid in labour matters in the Republic of South
Africa" as recently aç last year.
[Perblichearingof 19May 19651
Mr. President and Members of the honourable Court, jn addition to,
judgments expressed and decisions taken pursuant to the Charter of the
United Nations and the Constitution of the International Labour Orga-
nisation, the Applicants respectfullp refer the Court to further evidence
of the general acceptance by the international community of standards342 SOUTH WEST AFRICA
relevant to the proscription of governmental policies by which rights,
privileges, burdens, status are allotted on the basis of membership in
a group or race, rather than on the basis of individual quality or merit,
and such further evidence rnay be found in the Reply, IV, at pages
493-510, and will not be read into the record at this point.
This, hlr. President, completes the Applicants' arguments that the
procedures of the competent organs of the organizcd international
community have evolved international standards of non-discrimination
and non-separntion which govern authoritatively the interpretation of
Article 2 of the Mandate.
The Applicants turn now to their contention that these international
standards, as defined in the Keply at page 493, have attained the
requisite degrce of authority so as to quaiify as an international legal
norm. The Applicants contend that the international standards pertaining
to moral well-being and social progress operate by way of, by force of,
interpretation and application of the mandate instrument, that they
operate as per se restrictions, as authoritative interpretationof the rnan-
date obligations, and that such interpretation and application applies
irrespective of administrative and legislative discretion in respect of the
Territory.
As the Applicarits contend with respect to the international Iegal
norm, such norm would, if it exists and ifit iapplicable as the Applicants
contend, render irrelevant, as a matter of law, any issue with regard
to the limits of the Respondent's discretion pursuant to the first para-
graph of Article z. Even as a sovercigri State, Respondent must govern
in accordance with international Iaw. Its obligation as Mandatory to
promote well-being and social progrcss, in accordance with the obligations
of the sacred trust, do, of course, require that the international law,
the international legal norms pertaining to the Respondent's obligations
as asovereign State and as Mandatory, apply a fortiori to the Mandate
itself. The jurisdiction of the Court to determine the obligations pursuant
to international law, the international legal norm for which the
Applicants contend, would be founded on, and cogriizable under, the
compromissory clause of the Afandnte.
The Applicants contend that the international standard of non-dis-
crimination and non-separation qualifies as law, qualifies as a legaI norm,
in accordance with, and pürsuant to, the several sub-sections of Article
38, paragraph 1, of the Statutc. Such demonstration depends upon
acceptance by the Court of the Applicants' contention that formal acts
of international institutions in certain circumstances, ïvhich the Appli-
cants contend apply here, may and do possess a Iaw-creating effect within
the meaning of Article 38,paragraph 1, of the Statute.
By way of introduction to their analysis, the Applicants respectfully
depict concisely the relevant international context. In recent times there
has been a vastly increased effort on thepart of the organized community
to achieve general security, peace and justice through collective processes.
There has been a conscqiiently great and cumulative process of inter-
national action in the generation of norrns and standards relevant to
increasingly wide areas of social and human concern. There like~visehas
followed important changes in the processes by ïvhich norms and
standards are created. In the Tunis-Morocco Nationality Decrees case the
Permanent Court of International Justice affirmed that the character of
basic international obligations reflectç the conditions of international REPLY OF MR. GROSS 343
society and that changes in tlie structure and history of international.
society have a bearing upon the manner and content of the development
of international law. The Court, in that case, stated, at page 24, 1923,
P.C.I.J., Series 3,ATo. 4 :
"The question whether a certain matter is, or is not, solely within
the jurisdiction of the State is an essentialiy relative question-
It depe~ids on the development of international relations. Thus, in
the present state of international law questions of nationality are, in
the opinion of the Court, in principle within this reserved domnin."
The quoted passage reflects the dynamic content of international law
and is relevant to an assessrnent of the difference between the inter-
national legai status of Resyondent's policies of group separation or
discrimination in the Territory in 1920, and the lepl status of such
policies in the year 1965. Among the developn~ents in international
society, which bear upon tlie character and the evolution of international
law, the following appear to be of particular relevance to the issues joined
in these proceedings.
In the first place, the diversity and multitude of States cornprising
the contemporary international order have brought in their wake new
concepts and needs regarding the normative process itself. Collective
judgments are, at once, more difficult to corne by and more important
to respect. Special significance is to be attributed, in the face of cultural,
ideological and econornic diversity of the rnembers of the international
community, to the fact that so high a degree of consensus, approaching
unanimity, has been achieved regarding the incompatibility of apartheid
with contemporary international norrns of officia1behaviour.
Secondly, technological development and the spread of information
in the arts of war and of traiisportation have made internationalsociety
more inter-dependent. Thcre is increasing awareness that events in one
State cannot be isolated from concerns of international society in the
maintenance of a system of minimal order. There is ever-increasing
awareness that what is going on in the Territory of South ijTest Africa
has had great impact upon the welfare of nations and of peoples even
in remote areas of the world, and, above all, tliat the demand inçreases
that something be donc in deference to minimum expectations concerning
the content of human dignjty. The process summarized in the quotation
from the hTationalityDecreescase has not diminished sovereignty, but has
recognizcd the necessity for an awareness on the part of States that
enlightened self-interest requires due adaptation ta the needs and
standards ofinter-dependence. Such an awareness should characterize to
the highest degree thc administration of a mandate, an international
institution, the origin and terms of reference of which rnake abundantly
clear the concern of the international community with regard to the
protection of the welfare of individual human perçons.
As Judge Jessup pointed out in his separate opinion appended to the
1962 Judgment :
"The mandates system was one of at least four great manifesta-
tions in 1919-1920 of the recognition of the interest of al1 States
in matters happening in any quarter of the globe." (I.C.J. Reports
1962, p. 429.)
And the learned Ju-ge -ontinued by stating:
"The conviction registered in the peaçe treaties at the close of SOUTH WEST AFRICA
World War 1in regard to minorities, labour, and dependent peoples,
was that just as peace was indivisible, so too was the welfare of
mankind." (Ibid., p. 431.)
Acknowledgernent of inter-dependence is rnuch more of a universal
-phenornenon than was the case 45 years ago when this Mandate was
conferred. The international society has exhibited most profound anxiety
that unless the Respondent can be persuaded to adapt its racial policies
to the minimum international legal norrn, and niinimum ir-iternational
standards of the saine content, tensions will continue to rnount with
increasingly dangerous eruptive potential.
Thirdly, the connection between world peace and the protection of
human rights in the international sphere has become increasingly
rnanifeçt. international CO-opcration in the human rights field has
proceeded from thiç prernise with a sense of increasing urgency. It is a
trend especially evident in connection with the effort by the organs of
the United Nations to deal with Respondent's policies of separation and
-discrimination. The organized international community insistently
proclaims the need to correct perceived abuses of human rights, most
particularly where such abuses are implemented as part of authorized
government policy.
IVhen these factors are taken into consideration in connection with
-the assessrnent of an international function of administration of an
international territory subject to international regulationç, the status
-of the territory itçelf gives authoritative ~veight to the concern and
values of tlie international community with regard to a basic abuse of
minimum standards and a minimum legal norm. International concern
that apartheid constitutes a threat to international peace and security,
as evidenced in unanimous Security Council resolutions, was discussed
by the Appficants during the Oral Proceedings of 17 hIay.
Fourthly, within the area of human rights thc most significant develop-
rnents have focussed upon the evolution of standards pertaining to
inatters of racial equality, non-discrimination and non-separatiori. This
subject-matter, as the Court will be aware, and as the record makes
clear, has dominated the hurnan rights activities of international insti-
tutions, and abuse in this area has been identified ~4th a consensus
approsimating unanimity as an affront to human dignity, as a serious
impediment to individual well-being, and as a grave threat to internation-
al peace and security. It is not tomuch to Saythat one of the foundation
stones of international peace iç the establishment and implementation of
international standards pertaining to racial discrimination, and this
marks a vast advance, as the Court will be aware, frorn the Covenant of
the League to the Charter of the United Nations.
Sixthly, international society lacks legislative organs, and for this
Teason it has had to rely on other than legislative procedures to change
and evolve international standards and norms, and the Applicants will
consider shortly the implications of this requirement. The need has
.grown acute, in the light of expansion of international society and the
increasingrole of international institutionsFor this reason scholars have
increasinglyurged that suitable and, in appropriate cases, quasi-legislative
-effect be given to officia1acts of international institutions.Only thus
can an important gap in the international legal order be filled.
The absence of a legislative capacity as such in the international order
has an important bearing, of course, üpon the outlook of international REPLY OF MR. GROS 345
judicial organs, As Judge Sir Gerald Fitzmaurice has written-and 1
refer to his article "Hersch Lauterpacht, The Scholar as Judge", 37
Briti searbook of InternationalLaw, rg61, qIuote from pages 14to 15-
"Domestic courts can, if they wish, plead with some plausibility
as a ground for not going beyond what is bareIy necessary for a
decision that a national legislature exists which can, by legisla-
tive action, remedy any gaps or obscurities in the law. In the
international field there is at present nothing comparable to a
legislature, and the operation of the so-calied law-making treaty is
both uncertain and leaves mmy loose ends. The international
community is therefore peculiarly dcpendent on its international
tribunals for the development and clarification of the law, and for
lending to it anauthority more substantial and less precarious than
can be drawn from the often uncertain and divergent practices of
States, or even frorn the opinion of individual publicists, whatever
their repute."
Seventhly-consideration: closely connected with the need in inter-
national society for at least quasi-lcgislativecapacity in appropriate
situations, is appreciation of the ordering role played by the organs and
speciahzed agencies in the great system of the United Nations itself, of
which this Court forms the judicial arm. The sarne is truc of regional
institutions in world affairs. The world order attributes increasing
importance to the normative functions of international institutions and
acknowledges that actors other than States may evolve authoritative
internationalstandards as well as international legal norms. Fundamental
to such a rnodernization process is the degree to whch a single, recalcitrant
State, or a small rninority of States, may be perrnitted to veto or block
the emergence ofauthoritative standards, or legal noms, in international
society, and thus paralyse the growth and development of international
law itself.
Underlying this question is the extent lvhich the reality of unanimous
sovereign consent is an essential ingredient in the formation of an inter-
national legal norm or international standards binding upon al1 States.
The Applicants contend that the Court should confirm the role of
international consensus as a source of international law within the
meaning of Article 38 of the Statute of the Court and within clear,
practical limitations."Consensus" is used by the Applicants to refer to
an ovenvhelming majority, a convergence of international opinion, a
predominance of view; it means considerahly more than a simple major-
jty, but somcthing less than unanimity. These ~vordsand phrases intro-
duce no ambiguity in the context of this case. Theris avirtualunanirnity
with regard to the practice and policy of apartheid, and the shadings and
nuances of language or terminology are irrelevant here.
Ifthe resourcesof law are not available, only force is left to implement
the preponderant \vil1 of the international community, most rnanifest
in this case.The use of force,ifaccepted in the context of a threat to or
breach of international peace or act of aggression, is accepted without
positing the necessity of the consent of al1 States. The notion of literal
universality should not constitute an impediment to the lcgal order, to
pacific settlement, particularly in the face of governrnental policies
whch have been denounced by the international community to be
sources of international tension and even threats tothe peace.346 SOUTH WEST vAFRICA
The need for judicial settlement by the application of the consensus
of civilized States becomes even more compelling in çuch a situation,
and ifthe use of forceitself does notrest upon unanlmity the maintenance
of peace should rest on no narrower baçis.
A substantial increase in the normative function of the organized
international community is found in the relaxation of the rrequirement
ofunanimous consent in the decision-making procedures of the United
Nations in contrast to the procedures obtaining during the lifetime of the
League of Nations. Such normative capacities of the General Assembly
are relevant to the Applicants' submission that the principle of non-
discrimination is an international legal norm : the relevance is established
in at least two respects.
First, there has been authoritative definition of the scope, character
and applicability to Respondent's policies, of the international legal
norm found in Article 55 (c) and Article 56 of the Charter, read in the
light of the over-al1 affirmation in the Charter of the connection between
human rights and obligations of Mernbers.
Secondly, conclusive evidence is to be found in the many judgments of
member States that the standards evolved by the organs in the United
Nations do in fact constitute an international legal norm. Further
evidence of the law-creating competence of the United Nations is
dramatically evidenced by Article 2,paragraph 6,of the Charter:
"The Organization shall ensure that States which are not RIembers
of the United Nations act in accordance with these principles so far
as may be necessary for the maintenance of international peace and
security."
This provision in itself makes clear the extent to which the international
legal order has found it necessary to abandon the strict requirements of
universal sovereign consent.
The Applicants turn now to a more detailed analysis of the legal frame-
work in -.hich the international legal norm of non-discrimination and
non-separation has evolved, and the reasoning by which it isdetemina-
tive of Respondent's duty to refrain from the policy and practice of
allotting rightsand duties, burdens, privilegeç, and status, upon the basis
of membership in a group or race rather than upon individual merit,
capacity and worth.
Article 38 (1) (a) of the Statute has in a sense been disposed of and
coveredin connection with the discussion of the development of standards.
This material, which was covered in the Oral Proceedings yesterday,
~vould, in the Applicants' submission, be relevant here as well since it
falls within the rubric paragraph (a) of Article38 (1)in the context of the
development of a legaI nom as well as the development of an interna-
tional standard.
The Applicantshave sought to demonstrate that international practice
in conjunction with the humait rights and non-discrimination provisions
aiidpurposes of the United Nations Charter, and of the Constitution of
the I.L.O., have evolved authoritative standards of non-discrimination
and non-separation; and, as 1 have said, the same evidence, the same
materials, the sarne sources, support the Applicants' contention that
these standard-crcating procedures have cventuated in an international
legal nom of the same content and scope.
The essence of the position is that the Articlein question, Articles 55 REPLY OF MR. GROSS 347
(c) and 56, impose legal duties susceptible of definition ayconsensus of
the membershp of the Orgaiiization when such consensus, as in this case,
approachesunanimity arid, indeed, in many resolutions, actual unanirnity
but for the sole dissentingvote arid voicofthe Respondent itself.
Specifically inthis context, the formal acts of the constituent organs
of the United Nations have produced an authoritative construction of
Articles55 (c) and 56 of the Charter, inter alias,uch that the practice of
apartheid islegally impermissible. Thus, the norm of non-discrimination
and non-separation emanates from tlie Charter itself and is binding upon
Respondent as a treaty norm within the meaning of Article 35 (1)(a).
With regard to Article 38 (1 1b)-international custorn, as evidence of
a general practice acceptcd as law-the Applicaiits respectfully submit
the following.
Sub-section (b) of Article 38, paragraph 1,says nothing about unani-
mous consent as a prerecluisite to the coming into being of a customary
norm. It does riot posit tliat practice must be iiniversally accepted, nor
that al1 States in tlieir sovereign capacity must accept this practiceas
law. The language of paragraph I (b) is more in accord with the view
that custom of a preponderant majority of States rnay in appropriate
situationsgenerate norms.
In common parlance, a custom rnay develop and exist despite objection
during its period of ernergence. So long as international society was highly
decentralized it was necessary to rest law-creating proccdures on State
practice. With the growth of an organized international community,
with constituent organs, it is increasingly reasonablc to regard the collec-
tive acts of the compctcnt international institutions as evidence of
general practice accepted as law.
The resolutions of the General Assembly identifying apartheid as
contrary tothe Charter and to international law are,ccordingIy, relevant
to an appraisal by the Court ofthe Applicants' contention that Respon-
dent's policies violate an internationallegal norm of non-discrimination
and non-separation.
As was noted in an authoritative work on the Charter of the United
Nations, by that title-Charler of the United Nations (in the revised
edition, at p. 457-this is the well-known work by Goodrich and
Hambro) :
"Al1 the various organs of the United Nations will simiiltaneously
be engaged in thus interpreting different provisions of the Charter
and wiil build up the practice which will gradually assume the
character of customary law."
XVhere, as here, there is virtually unanirnous agreement among the
various organs as to the imperrnissible and illegal character of Respon-
dent's policy, the views just quoted from the work of these leamed
authorities assume even more persuasive force.
Another authority, Mrs. Rosalind Higgins, Chatham House, London,
in her work-The Dsvelofiment of International Law by the Political
Organs of theUnite Ndations, published in1963 by the Oxford University
Press, has anaIysed the point as follows, and Iquote from page I of her
work :
"Of al1 these sources, that is to Say in Article 38, international
custom is the most flexible, the most fluid and as such is exceedingly
responsive to the changing needs of the international community.348 SOUTH L'EST AFRICA
Customary international law is therefore perliaps the most 'political
rnajority'."rnational law reflecting the consensus of the great
'The criterion advanced in this work is the "great rnajority" and not
"unanimity". Ail human experience demonstrates that whatever
requires reguiation by law will be opposed by some who are to be the
.abject of the regulation; a veto power over tlie process by which custom-
ary law ernerges undermines the capacity of international society to
develop international law to meet developing needs, and the capacity to
develop and give effect ta international custom is not equivalent,inour
.powers or competence. General Assembly with legislaiive law-making
As the authority just quoted, Mrs. Higgins, in the work cited, iurther
stated :
"Resolutions of the Assembly are not persebinding though those
rulesof general international law which they embody are binding on
Alember States, with or ivithout the help of the resolution, but the
body of resolutions as a whole, taken as indications of a general
These resolutions of the Assembly, which deliberately rather than
incidentally provide declarations on international law are invariably
based on other quasi judicial forms of support." (The Deoelopmentoi
InternationaELaw by the PoliticalOrgansof the UnitedNations, p. 5.)
The author here refers to the work of international commissions and
-agencies,such as the InternationalLaw Commission; theforegoing views
are applicable to Respondent's policies in South West Africa in a direct
.and most forceful manner. These policies have been subject to quasi-
Nations as distinctive as the International Labour Organisation andted
Cornmittees of the United Nations in various forms, such as the South
West Africa Comrnittee itself. It is against this background that the
Ap licants contend that the international standard of non-discrimination
an i'non-separation has ripened into a norm of customary international
law within the language and rneaning of Article 38, paragraph I (b), of
.the Statute of the Court.
Respondent argues against the existence of such a norm, largely on the
grounds of its own persistent opposition to its emergence. In the Re-
joinder, V,page 141, the Respondent invokes the dictumin the Fisheries
case to the effect that, and 1 quote from the I.C.J. Repo~t1951 at page
131, that-
"The ten-mile rule would appear to be inapplicable as against
Norway inasmuch as she always opposed any attempt to apply it
to the Nonvegian coast."
On the sarne page of the Rejoinder, Respondent cites an article by
.Judge Sir Gerald Fitzmaurice, which suggests that a State dissenting
from a general norm being formed in the international community may
enjoy an exemption therefrom even if the norm is brought into being for
international society as a whole. Respondent's reasoning,however,ignores
the role and the capacity in whichRespondent appearsbefore this honour-
able Court;it isa Mandaiory. Respondent's citation of Judge Sir Gerald
Fitzrnaurice's apt summary of the traditional doctrine would be rele- REPLY OF MR. GROSS 349
vant onlyifthe subject ofthislitigation wereapartheid within the Republic
ofSouth Afncaitçelf. Theargument indeedbecomesself-incriminating whcn
read in the true light of the posture of the Kespondent in this litigation.
'Thus,the very language of the learned Judge, quoted in the Kejoinder,
may be cited as demonstrating tliat a norm applicable to Respondent as
Mandatory could evolve without its consent, and 1 cite particdarly the
foUowinglanguage from the learned Judge's article in 30 British Yearbook
ofInterltationalLaw, at page 25 (1953).the article quoted by Respondent
in the Rejoinder to which I have referred, where the learned J- - .says:
"... if (i) at some time in the past... any other 'dissenting' State
had in fact, under international law as it then stood, enjoyed rights
wider than those conferred by international law in its present form,
and (ii) on the emergence of a new and more restrictive rule, had
openly and consistentIy made known itç dissent, at the time when
the new rule came, orwas in proceççofcoming, into otherwise general
acceptance, then the dissenting State could claim exemption from
the mle even though it was binding on the community generally
and had becorne a general rule of international law."
If the Applicants analyse this passage correctly, it admits that al1that
is necessary, to establish a norm goveming the interpretation and
application of Article 2, exists in this case. Even if Respondent, as a
protesting sovereign State, codd claim exemption from the norm in
respect of the Republic itself, the Iaw-creating process of the international
society cannot be paralysed by its veto power as appiied to the Nandate,
a territory with an international status, over which the Respondent
exercises an international control, subject to international accountability.
The AppIicants contend that Article 2, paragraph 2,is governed on a
perse basis by existing international legal norms, especiaily because of the
fact that the Mandate itself is an international regime; such contentionis
reinforced by the special claim to exercise controlon behalf of the well-
being of the inhabitants, which derives from Article 22, paragraphs I, 2
and 6, of the Covenant of the League of Nations. A State pua Mandatory
has no basis foraçserting its discretion to violate a norm once it isgranted
that the Mandate rnuçt, above ali clse, be administered in accordance
with international latv. If Respondent could veto international rules
goveming the Mandate. it could effectively destroy the dynamic inter-
national character of the institution itself. Traditional doctrine con-
cerning the formation of customary international law, both as it has been
formuIated by this Court and by international juristç, has encountered a
difficulty, already mentioned, arising from the concept that sovereign
States are bound only by rules to which they give their consent, either
expressly or tacitly-the argument being that custom rests on tacit
consent or at least on acquiescence or the absence of protest. Thus, the
International Law Commissionhas stated-1 quote from the Yearbookof
the International Law Commission V,olume 1, 1950 , t page 275-as
f0lIows:
"The emergencc of a principie or rule of custom in international
law isgenerally thought to require presence ofthe followingelements :
concordant practice by a number of States with reference to a
situation falling within the domain of international relations;
continuation or repetition of the practice over some periodof time;
conception by the States engaged that the practice is not forbidden SOUTH WEST AFRICA
by prevailing international law; and general acquiescence in the
practice by States other than those engaged."
Such a formulation clearly is meshed with the emergence of customary
international law as a consequence of State practice, rathcr than as a
result of the forma1standard and norm-sctting processes of the organizcd
international community, acting through its competent organs. As such,
the statement just quoted overlooks the centralization of the normative
process in international society resulting from the existence and the
expanding role and the ever-increaçing importance, of a decisive nature,
of the iiiternational institutions thenisclves. It is principally in the light
of such an expanding role, and its peculiar relevance to the norm con-
tended for by the Applicants that makes it appropriate to judge in these
procecdings that a broad interpretation of Article38, paragraph r, of the
Statute (especially sub-section (b)) applies to and governs the establish-
ment of an international legal norm of tlie charactcr described and which
has particular reference to the territory under mandate.
The Applicants conceive that thestatuç of customary international law
should be viewed in the perspective set forth recently by Dr. Wilfred
Jenks in his work, The Prospects O/ Internatio.nu1Adjudication, published
in 1964.1 quotc a brief passage from page 225 of Dr. Jenks' reccnt work;
the opening paragraph of this scholar's chapter on customary interna-
tional law in relation to the work of the International Court of Justice
reads as follows:
"In recent times a cataclysrnic rate of political, economic and
social change has produced widespread uncertainty concerning
rnuch which was previously thought to be well-established law. In
these circurnstances the nature and extent of the proof of custom
required in international adjudication may have a decisive bearing
on the extent to which such adjudication promotes effectivcly the
rule of law in world affairs or is afurther unsettling factor which.
constituteç a new source of uncertainty."
Dr. Jenks urges the view that if the requirements for proving custorn
are imposed too rigidly by the Court, the relevance ofinternational law-
to the concerns of men and nations itself is drawn into question. He adds,
and 1quote from the same page of the work:
"A number of International Court decisionç raise in an acute fom
the question of the degree of universality and generality of practice
of which proof must be afiorded to establish the existence of a mle
of customary international law; a thorough re-examination of the
question of proof of custom is therefore a necessary element in any
satisfactory appraisalofthe prospects of international adjudication."
The Applicants consider that itmay be relevant in this regardto take
note of the Fisheries and Asylum cases, both of which rnay be ssid to
embody dicta uncongenial to the approach so strongly urged by scholars
such as Dr. Jenks. These cases, however, when examined more closely,
appear to the Applicants to be irrelevant to, rather than inconsistent
with, the contention of the Applicants that a legal norm ofnon-discrimi-
nation or non-separation may be supported by and found in terms of
Article 38,paragraph I (b),of the Statute of the Court.
In the Asylum case, 1.C.J. Reports 1950, at page 266, as the Court will
be aware of course, the subject-matter in dispute involved the existence REPLY OF MR. CROSS 351
of a norm in the field of human rights; there was placed in issue aii
unreviewable discretion on the part of a State to grant asylum in its
Embassy to a political fugitive. The Court held that:
"The Party which relies on a custom of this kind must prove that
this custom is establislied in such a manner that it has become
binding on theother Party. The Colombian Government must prove
that the rule invoked by it isin accordance with the constant and
uniform usage practised by the States in question, and that this
usage is the expression of aright appertaining to the State granting
asylum and a duty incumbent on the territorial State." (I.C.J.
Reports19 jû, p.276.)
Notïvithstanding the phrase just quoted, "constant and uniform
. usage", the Court rejccted the claim of customary norm on the ground,
and 1quote here again, this time from page 231of the Opinion, that-
"The facts brought to the kno~vledgeof the Court disclose so much
uncertainty and contradiction, so much fluctuation and discrepancy
in the exercise of diplomatiasylum and in the official vieurs express-
ed on various occasions, there has been so much inconsistencyin the
rapid succession of corirrentionson asylum, ratified by some States
and rejected by others, and the practice has been so much influenced
by considerations of political expediency in the various cases, that
it is not possible to discern in al1 thisany constant and uniform
usage, accepted as law, with regard to the alleged rule of unilateral
and definitive qualification of the offence."
Zt would be difficult to find a case in which the situation from a factual
and legal point of view is more in contrast to this one than the pattern
described in the passage just quoted from the Asylwm case. The Asyltrna
case involved an adjustment of directly competing interests of States.
On the other hand, indeed to the contrary, the norm of non-discrimination
and non-separation involves the promotion of common interests and
collective interests of States, and of the organized internationalcommu-
nity taken as a whole. Thesc are, moreover, common interests which rest
upon a widely sl-iared and deeply felt and often eloquently expressed
humanitarian conviction. In this respect apartheid corresponds to
genocide, and the nature of the la~v-creating process in response to both
has been remarkably similar: one in ïvhich the collective will of the
international community has been shockcd into virtual unanimity, and
in which the moral basis of law is most visible. It is precisely because
there isan offender that there has been a drive to create a norm. Ifthe
offender is allowed to avoid the legal condemnation of his actioby stating
a protest, then international law is rendered itnpotent in thc face of a
grave challenge to the values underlying the international social order.
In the Fisheries case the Court affirmed, as 1 have said, tliat "the
teii-mile rule would appear iriapplicable as against Nonvay inasmuch as
she has always opposed anyattempt to apply it to the Norwegian coast".
But the Court emphasized manv other factors as well, includingNorway's
long historical claims, its pecuiiar econornic dependence on fisheri the ,
general toleration of other States,and the acquiescence by Great Britain,
the other party, itself over a long period of time.Here again the alleged
customary norm was a mattcr of adjusting directly competing or con-
flicting interests of States differently situated, littoralStates versus
maritime States; it did not involve the enforcemcnt ofa world community352 SOUTH WEST AFRICA
standard against a sole dissenter who is moreover discharging responsibil-
itieson behalf of that very community. The proof of custom appropriate
to the evolution ofa cuçtomary norm of international lawof thischaracter
isa consensus manifest from the forma1acts of the competent organs of
the internationalcommunity. Sucha law-creating procedure isa function-
al requirement of the conternporary order, even given the rudimentary
nature of the collective processesnow existing. Such a procedure parallels
the evolution of custom by State practice, which is ascertained by the
inter-action of States. Here it is generated througli expressions mani-
festing a collective judgment, a collective will. The Court in the past has
been faced essentially witli daims alleging the existence of norms arising
out of State inter-action. It is in this respect that the Applicants may
perhapsappropriately refer to this case as rare in the annals of this Court
or its predecessor, inasmuch as the background of precedents, two of
which I have cited, is less relevant than rnight at first appeat from the
generality of the language traditionally used by this Court and its
predecessor in cases involving the conflicting or competing interests of
States and the inter-action of States.
The late Judge Sir Hersch Lauterpacht suggested thnt concepts of
sovereign consent and universality, if taken literally, would impoverish
the dynamic possibilities for the growth of international law, as well as
undercut much of the law in being. The learned author asked and re-
sponded to a revealing rhetorical question-1 quote from his work The
Development of Internalional Law bythe International Coud of Justice,
1958 edition, pages 191-192, as follows:
"If univerd acceptance alone is the hall-mark of the existence of
a rule of international law, how many rules of international law can
there be said to bein effective existence? Any such acceptance of the
standard of universality as the test of the existence of a mle of
international law may be open to the objection that it puts into
question the existence of most mles and principIes of international
law. For this would appear to be the result of a judicial method
which declines to treat a wideiy adopted practice as constituting
accepted international law and which elevates the attitude of a
small number of States to the authority of a practice entitled to
equal-r greater-respect."
Respondent's insistence that its protest shouldbe permitted to obstruct
the formation of a legal norrn, even in a context in whicli the world
community fiasan interest asmanifest as in the Mandate, would seem to
paralyse the dynamic aspects of international supervision by aiiowmg
the Mandatory's objection to freeze the content of Articlez, paragraph 2;
the core and essence of the sacred trust itself. Such discretion vested in a
mandatory must be exercised with appropriate appreciation of the
relevance of the will of the organized international community on the
issue ofwhether or not the norm contended forby the AppIicants actually
exists. Such appreciation, if taken together with Judge Lauterpacht's
advocacy of "predominance" rather than "universality" as the rneasure
of general practice andacceptance by nations, makes out an overwhelm-
ing case for the Court to acknowledge the existence of the norm of non-
discrimination and non-separation as a matter of custornary international
law, andonce so acknowledged, makeç its application to the Mandate a
per sematter, in the Applicants' submission. REPLY OF MR. GROSS 353
Article 38 (1)(c) : "... the general principles of law recognized by
civilizednations". This third source of international law has concededly a
somewhat indefinite çcope and application, and yet is helpful as an
independent foundation for the Applicants' theory of the case on this
branch of this legal theory, with respect to the evolution of an interna-
tional legal norm of the sort described in the Reply, IV,at page 493,This
sub-paragraph of Article 38 (1)-sub-paragraph (cj-helps not only as
an independent foundation for Applicants' theory of the case in the
respect relevant here, but also to supplement and reinforce the other
explanations advanced by the Applicants to demonstrate the existence
and applicability of an international legal norm or international standards
that govern the interpretation of Article 2 as amatter of law.
In the jurispmdence of the Court, "the general principles of law" have
been generally used to fiIl in gaps in international law by relying upon
private law analogies, based upon legal rules and institutions commonly
found in municipal lcgal systems. As such, Article 38 (1)(c) provides a
way to enrich international law on the basis of what may be called
comparative law research. There is no tradition, as with customary
international law, of premising the existence of a general principle of law
upon evidence of universality. or the absence of any protest, or upon a
sense of obligation with respect to a duty. As such, itis the source of law
least closely tied to the ideas of Iegal obligation associated with the
approach of legal positivisrn. In this regard, Article 38 (1) (cl has
frequently been identificd asthe manner by which the perspectives of
natural law can be most easily accomrnodated in a developing interna-
tional system. But in addition, in relationto Article 38 (r) (cj, it tvould
seem most appropriate for the Court to confirm the role of consensus as
manifest in the forma1 acts and proceedings of the competent organs of
the international comrnunity as a source or basis of international legal
norms.
In this respect there would be two ways in which Article 38 (1) (c)
might establish, or at least strengthen, the Applicants' contention that
a legal norm of non-discrimination and non-separation has corne into
being in international Society. The first would be to regard the presenceof
laws and regulations against racial discrimination and segregation, in the
municipal systerns of virtualip every State, as establishing, by compara-
tive law analysis, an essential precondition for the assertion of the nom
of non-discrimination and non-separation as a "general principleof law",
within the meaning of Article 38 (1)(c).
The second approach might be to regard the international consensus,
as, for example, evidenced in the Reply, IV, at pages 493-51a 0sa general
principle of law recognized by civilized nations everywhere in the world.
Such an approach would view the interpretation of the sub-disisions of
Article 38 in light of the nceds of the developing international legal order,
giving to Article 38 a dynamic content. and thereby giving full scope to
the fact that the Statute of the Court is an integral partofthe Charter of
the United Nations and is itself capable of, and entitled to, the same
flexibleprinciples ofinterpretation as have been applicd to theremaining
provisions of the Charter itseif. This of course applies withevengreater
force to the mandate instrument, an international regime. The Statute
of the Court, as an integral portion of the Charter, underscores the point
that thisCourt itself is formally constitutedasan institutionalcomponent
of the organized international community, thereby making it highly 354 SOUTH WEST AFRICA
appropriate to give effect to the Iaw-creating processes active in other
segments of this same internat ional community, of which the Court is the
high judicial tribunal.
Al legal systems, of course, have evolved frorn some social consensu
on matters of basic social rights and duties. International law has
developed and established much of its content by crystaIlizations of the
jusgeniium orconsensus gentium,if we may use that phrase, in the period
of its growth over the centuries which preceded the formulation of
Article 38 of the Statute.
Restrictive approaches to the interpretation of Article 38 (1) (c) tend
to reflect either jurisprudential attachment to legalpositivism or-which
arnounts to much the same thing-to absolute doctrines of soverejgnty
which subject al1international legalobligations to the requirements and
the functional requirements of an effective international legal system,
given the needs and structure of international society as it currently
and briefly enumerated in an earlier phase of thiç morning's proceedings
by way of introduction, but would also ignore the close association of
general principles with the ideas of equity and natural justice, wliich
have been present since 1920. For esample, when the Committee of
Jurists drafted the Statute of the Court it was present; for instance, one
of the leading members of the Comrnittee of Jurists which drafted the
Statute of the Court, Baron Dcscamps, referred to this source of inter-
national law in terms of (and 1 quote from Judge Manley Hudson's
book The Permanent Courtof International Justice 1920-rgp, pp. 194-
195) "the legal conscience of civilized nations", a phrase reminiscent
of Judge Alvarez' reference to the "jundical conscience of the peoples"
as a source of international law. M. de Lapradelle, also a mernber of
the same Comrnittee of Jurists inrgzo, said, and I quote againfrorn
Judge Hudson's book, that "the general principles" would enable the
International Court to "judge in accordance with law, justice, and
equity" .
Mr. Rosenne has corne to the following conclusion concerning the
character of Article 38 (1) (c):
"These instances show that the 'general principles of law recog-
nized by civilized nations' are not so muchgeneralizations reached
by application of comparative law .. . as particularizations of a
common underlying sense of what is just in the circumstances.
Having an independent existence, their vaIidity as legal norms
does not derive from the consent of the parties as such, provided
they are norms which the Court considers civilized States ought to
recognize." (The Internalional Court ofJustice, p. 423.)
This, of course, isa conception of Article 38 (1)(c) which dernonstrates
the relevance of general principles of law to (a) the acceptance of the
consensus of the organized international community as a source of
international legal norms, and (b) a construction on a fierse basis of the
meaning and intent of Article 2 (2)of the Mandate in question here.
International crimes, such as piracy, evidence processes by which
the international community ha acted as a wlaoleto uphold its cofnpnon
interests, making use of norms and standards in those cases to confer
an extraordinary power of jurisdiction upon member States and nation REPLY OF 31R.GBOSS 355
States. In the abseiice of international institutionthe manner of dealing
with common danger historically has been the expansion of the normal
cornpetence of States, making each, in this sense, an agent of the whoie,
and to count upon decentralized actions, uiico-ordinated actions, dis-
continuous actions of self-help to realize the common intcrest of the
world, for example, in the suppression of crimes such as piracy.
Professor Charles Cheney Hyde has an interesting passage in his
treatise which alinost exactly coincides with or expresses the position
of the Applicants in this litigation:
". ..the offence of piracy deril-es itsinternationally illegal aspect
from the will of the international society. That society, by common
understanding rcflected in the practice of States generalIy, yields
to each of its members jurisdiction to pendize any individuals
who, regardless of their nationality , commit certain acts within
certain places." (C. C. Hyde, International Law Chicjfy as Inter-
p~fiteund ApPJiedbythe UnikedStates, Vol. 1,p. 768,second revised
edition 1945.)
Jhat of course is relevant is the first part of the passage just quoted.
Professor Hyde thus gives Applicants' conclusion with respect to
apartheid, in as much as the Applicants contend that "apartheid", in
the words of Professor Hyde, "derives its internationally illegal aspect
from the will of the international society".
Similarly, the international crime of genocidehas corne to be accepted
as part of the Iaw of nations. UTithout an cxtended discussioii of this
point, the prohibition of genocide rests principally upon generality of
practice, reinforced by a moral consensus aiid by a common set of
interests in the suppression of that offence. The Court's Advisory
Opinion in the case of Reservadionfo theCowventio~o znthe Preve?ztionof
PecnishmetttofGenocide states:
"The origins of the Convention show that it was the intention
of the United Nations to condemn and punish genocide as 'a crime
under international law' involving a denial of the right of existence
of entire hurnan groups, a denial which shocks the conscience of
mankind and results in great losses to humanity, and which is
contrary to moral law and to the spirit and aims of the United
Nations {Resolution 96 (1)of the General Assernbly rI December
1946). The first consequence arising from this conception is that
the principles underlying the Convention are principles which are
recognized by civilized nations as binding on States, even without
any conventional obligation. A second consequence is the universal
character both of the condemnation of genocide and of the co-
operation required 'in order to liberate mankind from such an
odious scourge' (Preamble to the Convention)." (I.C.J.Refiovts1g5r,
P. 23.)
The foregoing passage is relevant to the issues now before the Court.
The Court relied there, in theGenocideConvelztion case, upon a General
Assernbly resolution to construe the character of an international legal
nom presented for consideration, and, furthemore, the Court found it
legallÿ relevant to discuss the impact of genocide upon the conscience
of mankind, the moral law, and the underlying spirit, purposes and
aims of the United Nations itself. Furthemore, itis apparent from the356 SOUTH WEST AFRICA
quoted language that the Court regarded genocide as violative of inter-
national iaw even without the convention then before it. The law-
creating process operative in the context of genocide seenis clearly, in
the opinion of the Court, to have been the manifest will of the organized
international community.
It is, of course, true that when the Genocide Convention came beforc
the Court no State was defending the practice of genocide. Respondent,
of course, today stoutly defends the practice of apartheid.
The result ofmaking universaiity a literal preco~idition of Iaw forma-
tion is to make the organized international community incapable iralaw
of taking action against an existing practice or poiicy, notwithstanding
the self-evident fact that it is universally condemned.
General principles of law, for reasons set forth in the discussion just
now presented tothe Court, seem to the Applicants to provide a.juridi-
calIy sound basis for a decision that the international standard of non-
discrimination and non-separation does qualify with the status of a legal
norrn. But evcn if the Court should reject the international legal norm,
as such, as ageneral principle of international law recognizedby civilized
nations within the meaning of Article 38,paragraph I (c),this source of
law, nevertheless, would provide in any event the basis for an interpreta-
tion of Article 2,paragraph z, which would establish the practice of
apartheid as a per se violation in the light of the internatioiial standards
for which the AppIicants contend, and which are confrrmed and de-
monstrated by precisely the sarne considerations upon bvhich the Appli-
cants rest their casefocthe establishment of an international legal norm,
as well.
The contention here is that "general principles" should guide authori-
tatively the interpretationby this Court of adocument of an undertaking
such as the mandate instrument. It is by recourse to these "general
principles" that the Court has consistently read arequirement ofequity
and justice into its analysis of legal argument, and especially of treaties
and other similar documents. Judge Manley O. Hudson in tlie Diversion
of Water fromthe Meuse case, 1937,P.C.I.J. Series AIB, No. 70,
pages 76-77, made the point in detail that the authority of the Court
to apply "general principles of law recognized by civilised nations"
gives it-and 1 use the words of the latc Judge Hudson-"sorne freedom
to consider principles of equity as part of the international law which it
must apply".
In connection with the interpretative act itself the Applicants also
cite Judge Lauterpacht's Opinion in the SouthWest Africa (Voling Pro-
cedure) case.
1 would quote briefly from the I.C.J. Re+orts19j5, page 105; there
the learned Judge was emphasizing the principle nemo judex irare swa
in approaching an interpretation of the Mandate, a principle which,
given the character of the underlying instruments, provides a solid legal
basis for resisting the contention of Respondent that Article z, paragraph
I, confers a virtually unlimited discretion in the face of contrary claims
by the competent organs, And as Judge Lauterpacht expressed it,in the
sarne general context :
"In so far as the principle Remo judex in re sua is not only a
general principle of law, expressly sanctioned by the Court, but alço
a principle of good faith, it is particularly appropriate in relation
to an instrument of a fiduciary character çuch as a mandate or a KEPLY OF MR. CROSS 357
trust inwhich equitable considerations acting upon the conscience
are of compelling application. This, too, is a general principle of
law recognized by civilised States." (I,C.J. Reports1955 ,. 105.)
And it is interesting in this context to note the phrase "principle of
good faith", of which we have heard rnuch in these proceedings. It isalso
relevant to regard the recognition of reason and reasonableness as a
premise for interpretation.
Reasonentersinto a determination of whether Respondent, in defiance
of an ovenvhelming consensus in the international comrnunity, a
consensus approaching unanimity, can continue its policy unilaterally
or whether, in the light of its refusa1totake account of relevant inter-
national standards, it bas not committed a +# se violation of jts obliga-
tions. In theRighi of Passagecase the honourable Vice-President of the
Court, Judge Wellington Koo, called attention to reason and reason-
ableness as a fundamental source of interpretative $idance by calling
attention to Bynkershoek's dictum-"In the law O nations, reason is
sovereign".
Finaily and briefly, with the Court's permission, 1turn to a discussion
of Article 38, I (d), in the relevant context. The trend toward le@-
matizing the normative processes of the organized international com-
munity iç evidenced not only by the judgmentç of the internationai
institutions themselves, but also by the writings of international jurists
devoted to the evolving needs of international life in the context of the
traditional system of rights and duties of States.
forma1acts interpreting the Charter were conceived even at San Franciscod
to have acentral role in the developrnent of the law of the Charter. Each
organ was expected to interpret those parts of the Charter concemed
with its particular functions.
Article38 of the Statute of the Court represents a compromise between
the jurisprudentjal traditions of legal positivism and natural law, as
has been pointed out. One of the most convincing expressions of the
relevance of natural law tradition to a construction of the predecessor
of Article 38 of the present Statute is the work by Judge Spiropoulos,
Tlze'oriegénérale du droit internatio(n 193l0)) and the Applicants cite
particularly pages 97 and the. following. Natural law sets off the ethical
conscience ofmankind against the willofa sovereign State; consequently.
the coliective will of the organized international community becomesen-
dowed with a law-creating cornpetencewhichcan overcome the defianceof
a nonconforming State, particularlyone whichstands alone. Such compe-
tence existsa forliwi where basic consideratjons of human well-being are
at stake, and again, a fortiori, where the nonconforming State iscarrying
out the functions of a Mandatory under an authonzation from the
international comrnunity itself.
Consequently, the provisions of ~rtiile 38 should be inte~preted in a
broad and flexiblespirit. And PresidentBasdevant said, at SanFrancisco,
that despite certain inadequacies in the formulation of the sources in
Article 38: "The Court has operated well under it and time should not
be spent in redrafting it." (UNCIO,XIV, p. 120.)
1 have quoted from Mrs. Higgins' work and 1 refer to it again only
because as a major study of the development of international law by the
political organs of the United Nations, it js sjgnificant to note the
apinion expressed. 1 quote from page 2 of the volume cited:39 SOUTH WEST AFRICA
"Collective acts by çtates, repeated by and acquiesced in by
sufficient numbers with sufficient frequency, eventudy attain the
status of law.(The Dmelopmentof1nter~atiorta.L law by thePolitical
Organs ofthe UnitedNations (1963),p. 21.)
The distinguished director of the Legal Division of the United Xations,
Dr. Oscar Schachter, hasexpressed the viewthat a consensus approaching
virtual unanimity, disclosed in resolutions by competent organs, would
establish an interpretation of the Charter certainly entitled to great
legal weight. In his lectures delivered in 1963at the Hague hcademy,
Dr. Schachter said:
"... one rnight start with the principle that an 'authentic' inter-
pretation of a trcaty by the parties is legaiiy binding on them
to the same degree as the treaty itself. 1 believc that it is generaily
accepted that this conclusion would hold for an interpretation of
the Charter adopted by ali the Members (or even 'by the over-
whelming majority' except for some abstentions) in the General
Assernbly; the interpretation would be characterized by interna-
tional laïvyersahaving the same legalforceand effectas the Charter
itself." (Hague Lectures, 1963, 1, p. 186.)
The juristic background for the Applicants' theory of the case has
been developed fuily and explicitly in the writings of Dr. Jenks, to
whom 1 have already referred, and in Ourview most clearIy and persua-
sively in an esay by Dr. Jenks entitled "The Will of the World Com-
munity as the Basis of Obligation in International Law" in his work
entitled Law, Freedom,and WeZfare(1963). Dr. Jenks' concept of the
will of the international community is equivalent to, and analogous to,
the Applicants' reliance upon consensus as a basis of international legal
obligation. In this regard itmay be appropriate to cal1to the attention
of the Court the recent decision by the United States Supreme Court
in the well-known case, Banco Nacional de Cuba v. Sabbatino, 376
United States 398,decided in 1964,whichhas been the subject, ofcourse,
of considerable legal analysis and scholarly writing, even in the short
interval since the decision was handed down.
But it is a case, and it is cited here only as, bearing upon the propoçi-
tion that juridical relevance was accorded to the concept of consensus in
constming the existence of an obligation under international law.
Dr. Jenks views the traditional sources of law in the Iight of the
overriding relevance of the will ofthe world comrnunity.
In conclusion of this discussion of the Article 38, paragraI,rubrics
or sub-sections,1 should Iike to read from the work of Dr. Jenks, Law,
fiedom, ad Welfarepublished in 1963, at page 93. In the context in
which Dr. Jenks was demonstrating the possibilities-as the Appricants
perceive the context-for accommodating law-creating by the organized
internationa1 communitywithin the three main sub-sections of Article 38
(1)of the Statute, Dr. Jenks writes as foIlows,at the cited page:
"The will of the cornrnunity constitutes the basis of obligation
but the law of the community cornes into being by al1the processes
of legal development and growth known to mature legal syçtems.
It isthe will of the community that principles and rules evolved
in accordance with these processes of growth shall be regarded as
binding. Treaty, custom, the general principles of law recognized
by civilized nations, judicial precedent and the opinions of the most REPLY OF MK. GROSS 359
highly qualified pubiicists, al1 faii naturally into placas methods
by which, in accordance with the will of the community, the law
is developed to meet the changing and growing needs of an evolving
society."
This seems to be a fitting place tstop the analysis and now to proceed,
with respect, to a brief point-by-point reference to Judge Sir Gerald
Fitzmaurice's questions in the series propounded by the learned Judge.
The Applicants have aiready ventured to respond to questions Nos. 8
and IO. \Vith reference to question 8, a point of further consideration
remains tvhich will be considered in a few moments.
Following this next section, of a relatively short order, which wiii be
directed to the remaining question of Judge Sir Gerald Fitzmaurice's
series, it will be the intentioofthe Applicants briefly to respond to the
question put by Sir Gerald Fitzmaurice on 13 May with respect to the
rights, ifany, of the Principal Allied and Associated Powers, following
which, the Applicants will undertake to respond to the question pro-
pounded by the honourable President with regard to certain facts rela-
ting to Article 73 of the Charter of the United Nations. Then, following
that, in closing the session, the Applicants lvivill,subjectto reser-
vation of rights which will be stated, make their subm~ssions, and wili
conclude then at the conclusion of the proceedings thîs morning.
On the basis of the discussion just concfuded, it now seerns appropriate
to offer a series of specific replies to Judge Sir Gerald Fitzrnaurice's
çeries of ten questions. Iwill be noted that the Applicants already have
commented upon the language inthe preamble to the series of questions,
and, in this regard, it may suffice to point out that the Applicants have
sought in their comments concerning the preamble to establish a context
for the specific answers-a context which, as was pointed out, consists
of three main aspects.
First, the qualitative element of the obligation embodied in Article 2
of the Mandate; secondly, the authoritative and governing character of
the standards and norm develo ed by the competent ogans of the
international community; and, tpidly, the apparently logical require-
ment that the defences of the Respondent are conhed, under the legal
theories of the Applicants, to disprovjng the qualitative nature of the
allegation, and to sho~vingthat the standards andjor norm do not exist
or are not applicable.
In the discussion just concluded, the Applicants have sought to
vindicate their theory of the case by suggesting to the Court alternative
and cumulative ratz'o~alesof a juridical nature,by which the Court could
find, on an alternative or cumulative basis, that Respondent's conduct
in the sense which has been placed before the Court in the record and
in these Oral Proceedings, is to be constmed as a violation of Article 2,
paragraph z.
To sumrnarize, the Applicants have sought to show, first, that canons
of interpretation,viewed in the mandate setting, provide a basis for the
construction of the obligation contained in Article2, where these canons
of interpretation suggest the authoritative relevance of the international
standards which are reflected in the overwhelming consensus of the
organized international community, upon whom this sacred trust was
laid.By such rneans, the Applicants have sought to give content to the
qualitative aspects of Article 2 and to demonstrate the incompatibility
between the obIigations of the Mandate and Respondent's policies360 SOUTH WST AFRICA
which are sumrnarized and captioned by the term "apartheid" or
"separate development".
This incompatibility is established as a matter of law, in the Appli-
cants' submission, because of the qualitative character of the link
between international standards relating to moral well-being and social
progress, on the one hand, and the policy and practice of apartheid or
separate development, on the other.
Subsidiary to this demonstration of Article 2 as what rnay be called
a mandate norm-tliat is "a mle regulating the mandate", in the words
of the Court in 1950-as a provision in an international treaty (that is
to Say that a mandate norm contained as a provision in an international
treaty), is the view expressed at page 329 of the 1962 Judgment, that
the hlandate establishes "a new international institution" which existç
and ~vhich is viable as an autonomous international regime. It is the
nature of this regime to establish a means whereby the international
community can give effective expression to its overriding intention to
set up a political institution, a device, which upholds the welfare of the
inhabitants of the Territory; the institution, the regime, has no other
purpose. The mandate institution can achieve its ovcrriding purpose
only if the comptent organs of the international community rnay
translate effectively their judgments on the subject of moral well-being
and social progress into authoritative rules \vhich take precedence over
inconsistent judgments, no matter how deeply entertained, on the part
of the agent of the international community, the hlandatory. It is in
this context that the Applicants submit that the purposes of the hian-
dator must take precedence over the purposes of the Mandatory. To
give content to this relationship between the competent organs, speaking
for the organized international community, the Mandator, and the
Mandatory, the Applicants respectfully urge upon this Court the authori-
tative application, as a matter of treaty-and conventional inter-
pretation, of international standards of non-discrimination and non-
çeparation.
Alternatively and cumulatively the Applicants have submitted that,
given the institutional aspect of the mandate scheme, such standards
have evolved into a distinctive normative category, namely that of
international mandate rules.
Thirdly, and again alternatively and cumulatively, itis submitted that
the international standards have evolved intothe quaIity of international
Iaw, and that the hlandatory must be canclusively presumed to have
intended, aIongwith the founders ofthe system, to conduct its Mandate
in accordance with international law. This makes it a rnatter of afortiori
application in the interpretation and construction and application of
the hlandate itself. The Applicants contend that the material, the
evidence, comprised of custom, general principles and the opinions of
jurisconsults-that al1this is evidence of the proscription of discrimina-
tionand non-separation as a matter of international iaw. Ifthe Court
does not accept this contention, it would still rernain convincing beyond
dispute, in the Applicants' submission, that the same evidence, the same
sources and the same considerationsestablish the international standards
even though they may not in the Court's view have attained the quality
and status of an intcmational legal norm.
In question r, Judge Sir Gerald Fitzmaunce asks aboutthe purely juri-
dical basis ofthe normof non-discrimination and non-separation for wkich REPLY OF MR. GROSS 36r
the Applicants contend. In the Applicants' respectful view, their attempt
to show the eniergence of an international legal norm constitutes a
uridical exposition responsive, or intended to be responsive, to the
iearned Judge's basic questioii. In fact the Applicants feel that their
demonstration of the legal effect tobe given to the international stan-
dards either by way of canons of interpretation, or because of the
Mandate as treaty, or because of the special attributes of the inandate
institution (in which case it would beconie a norm of the institution
itself-a nile of the institution) also provides the honourable Court with
a purely juridical basis upon which to construe and apply Article 2 of
the Mandate, viewed as a treaty or as an institution or botli.
The Applicants adhere to their original cliaracterization of the norm
as a narm of non-discrimination and non-separation, as labelled and
defined at page 493 of the Reply, IV, although it would seem with
respect to have the same operative relevarice to this litigation as would
the phrase "non-apartheid nom" as used by the learned Judge in his
question. The Appiicants have stated thcir reasons for this adherence
or, if the Court would prefer, insistence upon their classification or
categorization of the policy by the use of the term "non-discrimination"
or "non-separation", and we have attempted to stâte our reasons for
that at the verbatim record, page 306, sufiva, and the Court will not
be burdeiied with a repetition of that point here.
In his firstquestion. Judge SirGerald Fitzniaurice also calls attention to
"the great importance of the humanitarian and sociological considerations
involved" ; the learned Judge asks also that Ive, the Applicants, "have
regard to the position of the Court as a court of law". The Applicants
wish to assert, and take this opportunity to assure the Court, that such
considerations as have been put before the Court have been regarded
by the Applicants as exclusively relevant to the proper discharge of the
judicial function of this Court. Humanitarian and sociological considera-
tions, of course, form part of the international background of this
litigation; these factors have played an important role, a formative role,
in the crystallization of the very international standards for which we
contend in the field of race relations, so much so that they have entered
into the process by which the standards have developed the legal quality
and status ofa rule of international law-a legal norm.
Nevertheless, the Apphcants ask the Court in the context here to
apply traditional legai canons and principles to the interpretation of the
obligations embodied in Article 2, paragraph a-neither non-juridical
or extra-juridical on the one hand, nor innovational on the other-but
juridical and traditional. In this regard the Applicants :idvance a legal
theory that is quite independent of the sociological and humanitarian
considerations forrning the background of the dispute and entering into
the development of the judgment of the international community. But
the Applicants' submissions depend pureIy on the interpretation and
application of Article 2, paragraph 2,in the light of objective criteria,
ïvhether such objective criteria take the form ofinternational standards
or international legaI norm, or both.
The second question propounded by the learned Judge enquires
urhether, irrespective of the answer given to question 1,the Applicants
contend that, on the language of Article z itself, apartheid, as definedby
the Applicants, "must necessarily and in al1 circumstances be illegiti-
mate". In the Applicants' view the authoritative character of the362 SOUTH WEST AFRICA
governing international criteria, whether accepted as standards merely or
as a legal norm, necessarily do and in al1circumstances make the practice
of apartheid, or separate development, incompatible as a matter of law
with the obligations contained in Article 2 of the Mandate. As the
Applicants have sought to make clear, once the incompatibility exists in
the context of an asserted qualitative violation of the Mandate, then
enquiry into loc~I circumstances, cornparisons with material benefits,
good faith considerations of the Rlandatory's officiais, the scope of
discretion in Article2,paragraph r-al1 of these factorsare in themselves
irrelevant. Testimony or evidence with respect to them would be irrele-
vant. The demonstration of the violation, according to the Applicants'
submission, depends exclusively and solely upon establishing the exist-
ence and applicability of objective criteria and the incompatibility
therewith of the laws and regulations, and the measures and the methods,
of an officia1nature, the existence of which is conceded by the Respon-
dent.
This theory of the Applicantç' case depends upon the iink between
the criteria and the terms of Article z, paragraph 2, of the Mandate,
as weil as upon the entire Mandate setting within which the iiiter-
pretative acts take place, and al1this further within the contest of what
I have called the mandate jurispmdence which has evolved authorita-
tively in this very Court during the past 15 years. Hence the violation
of Article 2 is not in a strict sense based, in the words of the learned
Judge, upon the language of Article 2 itself but rather, in the Applicants'
respectful view, is establiçhed by the language in its inter-relationship
with the appropriate canons of interpretation, and most especially with
the need to import evolving international standards into Article 2,
paragraph 2, asan indispensableaspect of realizing the overriding purpose
of safeguarding the sacred trust.
It iin this respect thatthe Applicants would, respectfully, emphasize
once more that in addition to the fiduciary idea, the fiduciary con-
notation implicit in the Mandate, the mandates system brought into
being a special regime, a novel institution, in the words of this honourable
Court, which is to be administered by the Mandatory on behalf of the
organized international community upon which the trust was laid, in the
words, again, of the 1962 Judgrnent. And the Mandatory has no other
function in the Territory, and the rights which it has are mere tools to
enable it to carry out its obligations, again a matter of established
mandate jurisprudence with respect to this very Mandate.
Thirdly, the Applicants have tried to answer Judge Sir Gerald Fitz-
maurice's third question, in part, by their discussion of his preambular
statement. In this question the learned Judge enquires whether "the
criterion of compatibility with the Mandate" isthe standard or measure
as such, or "the actual results of the measure or practice concerned and
its concrete effectson the well-being and social progress of the perçons
affected".
As the Applicants have subrnitted and would reaffirm, the test of a
qualitative violation is whether the practice or measure is compatible
or not with governing criteria specifying the quality sought .wliether
these criteria take the fom of internationalstandards or an international
Iegal norm. The Applicants contend that apartheid is inhereritly in-
compatible with the objective criteria provided bÿ international organs
competent and responsible for giving an authoritative content to the REPLY OF &IR.GROS 363
meaning of well-being and social progreçs of the inhabitants as, these
termsare used in Article 2 of the Mandate, the essence of the sacred trust.
Fourthiy, Judge Sir GeraldFitzmaurice's fourthquestionaskç whether the
Applicants are prepared, and whether they propose, to furnish the Court
with factual evidence designed to show the actual effects of Respondent's
policies, in the words of the learned Judge. The Applicants, of course,
are prepared or would seek to be prepared to provide the Court with
whatever information or evidence the Court would rule to be relevant
in establishing their theory of the case in respect of Article z, paragra2,
of the Nandate, or in any other respect. Nevertheless, itis the view of
the Applicants that the nature of their legal theory and the sole basis
upon which it rests, and has always rested frorn the earliest pleadings to
the present time, renders irrelevant the calling of witnesses or the
adducing of other forms of evidence designed to show the so-called
"actual effects" of Respondent's policies in the Territory. Factual
evidence of this sort would not, in the Applicants' 'view, have an
relevance to or legal bearing upon their rubrnission that aprtheiz
inherently and fier se, constitutes a violation of the standards or the
norm governing the interpretation of Article 2, or both.
Urithregard to questions 5,6 and7. these deal essentially,asunderstood
by the Applicants, with the position of the Kespondent; although of
course itis understood that the questions have been propounded to both
Parties, this series5,6 and 7 are in relation to the viewsof the Respon-
dent. The Applicaiits have already sought to indicate their ailalysis of
the Respondent's apparent theory of its obligations under Article 2,
especially in connection with their rebuttal arguments and their com-
ments upon the learned Judge's preamble. It sufficeshere, it would seem,
to say insummary form that Respondcnt's submissions concerning the
scope of its discretion, the realitieof good faith and the character of
the so-called actual effects upon well-being seem to the Applicants to be
irrelevant to an assessrnent whether international standards andlor legal
norms of non-discrimination and non-separation exist, and whether they
govem the obligations of the sacred trust embedded principally in Article
2 of the Alandate.
The ninth of Judge Fitzmaurice's series of ten questions seems to put
into focus the essential disagreement between the Parties as to the
character of the obligation embodied in Article 2 ofthe Mandate, wvhich
the Applicants have sought to make clear by the arguments now con-
cluding concerning the reasoning which underlies their distinction
between the qualitative and quantitative aspects of Article 2,paragraph
2, obligations. If this case were brought on tlie theory, which it is not,
that the Mandatory had built too few schoo1sor hospitals in the Territory,
then it might be appropriate to adopt a balancing approach todeterm!ne
ivhether the duties with regard to the promotion of material well-belng
or other kinds of iveil-being were upheld. But this case is brought on
the premise that Article 2 contains a qualitative element, violation of
which jsa breach of the Mandate.
The Applicants feel also that the character of the international
standards andlor of the international legal norm of the same content,
prohibjting discrimination and separation, entails a condemnation of
apartheid in such absolute terrns tliat it excludes reasonable possibilities
of justifying or extenuating the practice by reference to other con-
siderations whicli become extraneous as a matter of law, and 1 include364 SOUTH WEST AFRICA
good faith, local conditions, material progress of a visible, tangible
nature or any other kind. A value judgment, in other words, has been
incorporated into the international standards and norm; the judgrnent
is built into the standards, it is of the essence of the norm, and the
Applicants submit that apartheid is necessarily and in al1circumstanceç
incompatible with the promotion of well-being and social progress of
human beings and, in this case, a fortioriso, because the undertaking is
to accomplish these objectives to the utmost.
1 turn now to a supplemental response to Judge Sir Gerald Fitz-
rnaurice'ç eighth question. The Applicants have been requested to give
further consideration to the status of the French text of the Mandate.
(Thecitation is to verbatim record, at pp.264 to 265,supra.) The Appli-
cants, in earlier response to this question, adverted to the fact that the
English text is authentic and cited the reasons underlying that conten-
tion. The situation now appears tobe as foUows:
As pointed out by the learned Judge, the League Council embodied
both the Englishand French texts in jts resolutioof 17December 1920.
Accordingly, aç was pointed out by the learned Judge, both texts have
bcen treated as official texts. In respect of the legal sigiiificance of the
Couilcil's action in this regard, it seems to the Applicants that the
commentary on the Law of Treaties in the 1964 report of the Interna-
tional Law Commission rnay be a pertinent consideration. 1 quote from
United Nations document A/gSog, which is, as 1Say, the 1964 report of
the International Law Commission:
"iVhen a treaty is pIurilingual, there may or may not be a differ-
ence in the status of the different language versions for the purposes
of interpretation.Each of the versions may have the status oi an
authentic text of the treaty; or one or more of them may be nierely
an 'officia1text', that is, a text which has been signed by the nego-
tiating States but not accepted as authoritative;or one or more of
them may be merely an 'officia1translation',that iç, a translation
prepared by the parties or an individual government or by an organ
of an international organization."
In this case, as has been pointed out, the French translation was
prepared by the Secretariat of the Leaguc of Nations, and in the com-
munication covering circulation of the document the English tcxt was
stated to be the authentic text. It would seem on the basis of thiç
commentary that the English texthas been and remainç the authoritative
text.
Reference also was made by the learned Judge to the Permanent
Mandates Commission; according to the minutes of the First Session,
Second Meeting of the Permanent Mandates Commission of 5 October
1921, a member (1think it was &Ir.de Vries) enquired "which tcxt of the
Mandates shouId be regarded by the Commission as authentic-the
English text or the French text?" The Commission, according to the
minutes from which 1quote, "were agreed thatthe French text sliould be
so regarded in the case of the French and Belgian Mandates and the
English text in the case of the English Mandates". This is from the
PermanentMandates CommissionMinerles, First Session,Second Meeting,
5 October 1921, atpage 107.
Itappears to follow, therefore, from the practice of the Permanent
Mandates Commission. that in the case of the Mandate for South West REPLY OF MR. CROSS 3%
Africa the English text remains the authentic text, which would be
consistent with the communication of the Acting Secretary-General of
the League of Nations.
In respect of any question arising concerning possible distinctions
between the turo texts in terms of meaning or terminological significance
with respect to obligational or substantive requirementorinterpretation,
the Applicants here would respectfully rest their case upon their earlier
arguments and submissions with regard to the legal scope, nature and
content of Article z,paragraph 2,as these matters have been dealt with
in reference to the English text in other contexts of their response to
Judge SirGerald Fitzmaurice's series of questions as wellas to their general
arguments.
It would, in the Applicants' respectful submission, be the same result
with respect to the French text, as understood by the Applicants.
Rut we would rest upon the arguments we have made with respect to the
English text,authentic in this case and appIicable to this area,-argu-
ments and contentions of a legaland substantive nature.
On 13 May, VIIl (Minutes), page 36, the question was propounded
regarding the residual or reversionary rights, interestsor title which
might revive and become operative, that is to Say in relation to the
Principal Ailieand Associated Powers, incertain eventualities suggested
in tlie question. The Applicants would have perhaps preferred an
opportunity to reply to this question following, and in the light of,
Reçpondeht's answer to Judge Koretsky's question, which appears to
be related in one aspect to the learned Judge's question with respect
to the Principal Allied and Associated Powers.
The Applicants respectfully submit their response to Judge Fitz-
mailrice's question with the realization that it is not within the Appli-
cants' cornpetence, legally speaking, to encompass a full answer of the
sort which the importance of the question naturally suggests and brings
to mind at once. The law on the subject isfar from clear,as the Court
will know.
In 1950 the Respondent, appearing before the Court in connection
with the Advisory Opinion proceedings, stated as follows-this is from
page 276 of thePteadkgs, OralAvg~ane%ts D,ocumends in theI&e~nafinmE
Status ofSouth West Ajrica, I.C.J. RePorts 1950 , r.Steyn speaking for
the Respondent-
"That, Mr. President, brings ris io the cm oftlie whole question,
namely, the effect upon the mandates of the dissolution of the
League. In considering this aspect of the matter, it is necessary
to recall that the Principle Allied and Associated Powers were
firncliofici0after the mandate had been conferred and confirmed.
Between the Union Government and these Powers, in their capacity
assuch, there was nofurther relationship, affecting the positionof the
Union Government, in regard to South West Africa. They had
fulfilled their function anhad passed out ofthe fiictecrexcept of
course as Members of the League." (Italics added.)
The Rejoinder, V, at page 84, sets out a discussion of the matter
which the Applicants will not seek to paraphrase or reformulate, but
would respectfully cal1 to the attention of the Court. As understood by
the Applicants, there is here a reservation implicit but not esplicitly
stated, although this again is a characterization with which the Res-366 SOUTH WEST AFRICA
pondent itself might iiot agree or the honourable Members of the Court
might not agree (it is simply an interpretation by the Applicants of the
inteiidment); there appears to be a tentative açsertion with respect to
the possibility that upon legal lapse of the Mandate, the title of the
Kespondent might possibly be based upon "rights of conqucst". This
contention, of course, would affect the possible reversionary interest or
rights of the Principal Ailied and Associated Powers, and it is in this
sense that the Applicants thought they perceived a possible relationship
between the question propounded by Judge Sir Gerald Fitzmaurice and
the question propounded to Respondent by Judge Koretsky.
The Applicants would take a view contrary to that which is implicitly
or tentatively set forth in the Rejoinder, V, at page 84. They would
disagreefor reasons which are related to the jurisprudence of the Mandate
itself. The Court, in 1962, as the Applicants have reminded the Court,
declared that the sacred trust was "laid upon the League as an organized
international community "-that is from page 329, I.C.J. Reports 1962.
In the Applicants' respectful view, the power of disposition of the
Mandate and the tems of such disposition would either rest with the
competent organs of the organized international community upon which
the trust was laid, or it would rest upon an agreement between the
orgrinized international community and any other powers which rnight
assert an interest, reversionary or othenvise, in the matter. Zt would
appear to the Applicants that considerable difference niight be implicit
organ of the United Nations a problem might arise or develop withich
respect to thisweighty matter and it is only with diffidence, therefore,
that the Applicants address themselves to the question at A, impelled
by a sense of duty to the Court to do so. It would seem, in view of the
fact that the Principal Allied and Associated Powers are al1 Members
of the United Nations, that it isthat the United Nations, in the Appli-
cants' view, has replaced the League of Nations as the hlandator, that
the Uiiited Nations has asserted a continuing interest in the alandate,
to understate the matter, that on these, and manyother considerations
of a legal nature, it would be difficultto envisage the disposition of this
Mandate or even the analysis of its legal position assuming certain
contingencies, not now before the Court, without the fullexpression of
view of the United Nations itsdf. Therefore, the Applicants would
respectfully rest on this point their response to the leamed Judge's
question, fu11yaware that from a scholarly point of view or from the
point of view of legal analpsis, it is les than adequate.
Turning to the question propounded to the Parties by the honourable
President with regard to Article 73of the Charter of the United Nations:
during the Oral Proceedings of 13May 1965,the lionourable President
propounded certain questions to the Parties, requesting that they give
consideration to certain facts in connection with the response to Judge
Jessup's question relating to the scope of Article 73 of the Charter of the
United Nations, particularly with reference to the question whether that
Article was intended to, or did, include territories held under Mandate at
the time the Charter was drawn. 1refer to the Minutes at Vm, pages
38 and 40, for the text of the questions propounded by the honourable
~resident.
The Applicants, having made response to the question propounded by
Judge Jessup, address themselves now to a consideration of the facts REPLY OF MR. GROSS 367
enumerated in the series embodied in the question of the honourable
President, and would request that their comments in response to Judge
Jessuy's question, in that context, be considered for.what they are worth
açrelevant to the understanding and fuller appreciation of the Applicants'
views with respect to the specificfactual elementsadduced in the question
now propounded by the honourable President.
The Applicants \vould, ~viththe President's permission, commence by
reference to an important point of background or interpretation, which
may be helpfd in explaining or illurninating their approach to the
specific questions which have been propounded-that it is a range of
considerations which emerges from the practice in the United Nations
itself with respect to this matter. The basic reasons appear most clearly
from the Re ertory oj Prnctice of the United 'Naliolas,Volume IV, and
reference wi1be made to specific page citations in the context of the
brief discussion to foliow, al1by way of background to specificconsidera-
tiTwo rbasic reasons explain why the United Nations has never treated
South West Africa as a non-self-goveming territory within the meaning
of Article 73 (e) of the Charter. The first is that the United Nations was
of the view that Article 73 (e) did not in law apply to mandated terri-
tories, hencea third system, as the Applicants have ventured to cd it,
uras established; secondly, the United Nations has approached the
problem ofwhat constitutes a self-governing territory within the meaning
of Article 73 (e) of the Charter,not in relation to the commencelnetf the
transmission of information in terms of Article 73 (e), but rather within
the context of the cessation of the transmission of information. The
approach ofthe United Nations never has been to increase the list of
non-self-governing territories under Article 73 (e) as orieinally listed in
1946b,ut consistently to decrease the number of territones an that list;
the original list of non-self-governing territories, as I Say,has never been
increased.
As the Repertory of Practiceof the United Natiotrs, Volume IV, points
out at page 86:
"The questions relating to the determination of the territories to
which Chapter XI of the Charter applies, have been examined very
obverse question have not been forrnalized."mation. Aspects of the
The Repertory states also that apart from the original letter of the
Secretary-General of 29 June 1964 addressed to the United Nations
Members, with respect to listing territones which they regardedas falling
within the coverage of Article 73 (e), "the United Nations members"
-and this is quoted from page 87,of the Repertory,Volume IV-
"The United Nations members have not been invited to consider
whether by the examination of factors or otherwise, areas under
their administration should be regardedas falling within the scope of
Chapter XI."
It has been contended!onlthe one hand that the General Assernbly had the
right "to require other countries to transmit information on non-self-
governing peoples under their administration"-that is from page 86,
of the Repertory,Volume IV. 0n:the other hand, it was argued, according
to the Repdory that- SOUTH WEST AFRICA
"those who recogiiized the competence of the General Açsembly to
decide that the transmission of information should be continued,
should also recognize its competence to decide that information
should begin to be sent for a territory in respect which no informa-
tion had yet been transmitted" (p. 86).
This latter contention was never adopted, as far as the Applicants are
aware.
Neither Respondent nor any other administering authority has ever
been requested by the United Nations to add their dependent areas to
the list ofnon-self-governing territories. Thisfact would, in the Applicants'
view, demonstrate that the Assembly's retuctance or failure to trcat
South West Africa as a iton-self-governirig territory within the meaniiof
Article 73 (e)of the Charter was related to no special considerations such
as desirc to avoid encouraging the failure to subrnit a trusteeship agree-
ment, or any other reason of a nature that pertains specially to the
Territory. It would seern rather, from the history of the matter and from
the discussion in theRefiertory,aswellas independcnt research concerning
the history of the treatment of Article 73 (e),that the Assembly's reluc-
tance to treat South West Africa as a non-self-governing territory-and
I use the word "reluctance" here, perhaps improperly-the Assembly's
failure to do so was based upon a common practice, a reasoning and
approach common to al1 dependent territories. The only questions that
arase for forma1consideration, with respect to listed dependent territories
were with regard to de-listing, or. more accurately, the cessation of the
transmission of information. After 1946, as 1 have said, the United
Nations did not bring any dependent territories within the ternis of
Article 73, in addition to those that were on the list. This attitude
towards the territory of South West Africa, accordingly, is completely
consistent and in harmony with the basic approacli toward al1dependent
territories otherthan thosc Iisted.The establishment of the third system,
as we have called it, is especiallyapplicabIe to South West Africa, and
moreover appears to confirm that the United Nations has assumed, as a
matter of Charter construction, that the Territory was not cornprised
within the category of non-self-governing territories to which Article
73 (el applies.
Finally, by way of background, it seems essential to add that the
provisions of Article 73(e) are inappropriate and inadequate to cover the
requirements of safe-guarding the sacred trust, as has been pointed out
in the response to Judge Jessup's question. The contrast between the
reporting requirements of Article 73 (e) and the supervisory functions
rcquisite and essential to the safe-guarding of the sacred trust appears
from the following factors, among others which distinguish the two
systems.
First, ths scope of reporting; Articl73 (e) does :net provide for politi-
cal information. It is rnoreover limited in scopeto "statistical and other
information of a technical nature". Reports as envisaged under the
Covenant and Mandate encornpasçed the uphole performance of the
Mandate, in the words of the Hymans report (to which reference has been
made on more than one occasio11in the earlier stage of these proceedings).
The whole performance of the Mandate could not be regarded as falling
within the reporting scope of Article73 (el.
Secondly, no consultative procedures are envisaged in Article 73 (el.
Thirdly, no right of petition is provided for in Article73 (e). Fourthlj?, REPLY OF MR. GROSS 369
no provision is made or implied in Article 73 (el with regard to the
hearing of petitioners. Fifthly, under Article 73 le), the information
transmitted by administering authorities is sent to the Secretary-General
for information purposes; it is summarized and analysed by the Secre-
tariat, and recommendations are made only in functional areas and not
to particular administering authorities, or in the context of particular
dependent territories.
The Respondent itself has, during the course of the Oral Proceedings,
well summarized the key elernents of the supervisory system which is
appropriate to the Mandate. In the verbatim of 14 April 1905(VIIi,
p. 624) in the context of its discussion that the Court lacked judicial
cornpetence to deal with the alleged breaches of Article2of the Mandate,
Respondent referred to the administrative supervisory system in the
following terms :
". . . positive contemplation of the authors of the mandates systern
that in the functioning of this system mandatories would have the
assistance and the collaboration of the Permanent Mandates Corn-
mission andthe Council of the League-in other words, the assistance
of those processes oi administrative supervision, as well as the tech-
nical assistance, and expert assistance, involved therein which would
really constitute a process of continua1 consultation betwecn the
mandatory and those administrative supcrvisory bodies; a process
of consultation which would lead it from step to step in the applica-
tion of certain policies".
The reporting scopc of Article73 (e) has very Iittlin common ~viththeçe
requirements aç they have been well-defined by the Respondent itself.
As has been pointed out in the answer to Judge Jessup's question,
Respondent itself-perhnps for this reason, one does not know-has
never regarded Article 73 (e) as applying to the Territory. Ithas never
added the Territory to the list of non-self-governing territories. It has
maintained throughout this litigation that Article3 (ej does not cover
the Territory,and this is common cause between the Parties.
These comments aremade by way ofbackground, in order to relate the
answers which will now be given tothe honourable President's questions,
to the context of the broader answers and niore comprehensive considera-
tions adduced in the answers to Judge Jessup's questions; this is because
of the obvious relevance ofthese considerations tothe factsrelated in the
honourable President's questions,to which 1 now turn.
The first question relates to the significance to be attached the fact
that the discussion in Committee 4 of Commission II at San Francisco
was based upon a working paper, introduced by a number of States,
which paper was divided into two sections, namely "A-General Policy"
and "R-Territorial Trustee System".
During the Oral Proceedings of 7 May 1965, at pages 135-138 s,pra,
the Applicants endeavoured to treat the significance of the Working
Paper, which is referred to in the honourable President's first question.
The IVorking Paper was, of course, based upon several proposals put
forward bv six States.(UATCIO, Vol. IO, pp. 641-655T .h)eurording of the
UTorking Paper in Part A, and the division of the Paper into General
Policg and Trusteeship sections, was baçed on the proposal orginally
submitted by the United Kingdom. (UhrCIO, Vol. 3, pp.609-614.)
The several proposals made at San Francisco, the Working Paper itself370 SOUTH WEST AFRICA
and the relevant debates, treated the mandated territories in coiinection
with the trusteeship section of the Working Paper and within the
trusteeship context. There was no indication, of which the Applicants
have been made aware, that mandates were ever conceived of as falling
within the general policy section of the Working Paper-that is, the
section which eventually became Chapter XI of the Charter-in reference
to Article 73 (e). The practice of the United Nations, to which reference
has been made, appearsto establish that a distinction must be drain and
should properly be drawn between paragraphs (a) through (dl of
Article 73-principles which govern a21 dependent territories, and
Article 73 (e)-the reporting requirement-a distraction in regard to
which the United Nations practice is highly illurninating, as lias been
çaidby way ofintroduction to the+responseto these questions.
It appears that of al1 categories of dependent areas to which the
trusteeship systern was envisaged to apply, mandated territories were
the only clearly defined and identified groupof temtories in the context
of this discussion at San Francisco. The Australian delegation to the
San Francisco Conference, asha been pointed out at an earlier stage of
these proceedings, was of the view that rnandated tcrritories al1necessari-
ly had to be placed under the trusteeship system-this was referred to in
the verbatim of 7 May 1965,at page 137, sufiru.Although thiç view did
not gain general acceptance, there were no expressions of opinion that
the Applicants have discovered that mandates could or would in any
event be supervised pursuant to the provisions of what became Article
73 (e) of the Charter. The delegates to the Charter Conference do not
appear to have connected mandates with the general principles of Part A
of the Working Paper, applicable to non-self-governing territories in
respect of a supervisory or reporting function.
The second question relates to the fact that the description of terri-
tories, to which the declaration which was to become ArticIe 73 wos to
a*-ly- read as follows:
"Territories inhabited by peoples not yet able to stand by them-
selvesunder the strenuous conditions of the modern world."
These being, of course, the precise words used in Article 22 (1)of the
Covenant to describe the mandated territories.
The phraseology just quoted was used in section A of the Working
Paper to describe the non-self-goveniing territories to ~vhichthe declara-
tion subsequently to be incorporated in Article 73was intended to appIy.
Considerations relevant to an appraisal of the significance of the use of
such phraseology include the fact that section A, entitled "General
Policy", was intended to apply such principles to all dependent areas,
including mandate and trusteeship areas.
The United Kingdom, in a note concerning its proposal-a proposa1
upon which the Working Paper was largely based-explained that :
"His Maiestv's Government in the United Kingdom draw a
distinction betWeen the prificiple oftrusteeship whichushould guide
Colonial Powers in the administration of their de~endent territories
(and should therefore be ofuniversal application) and the creation of
a special system of international machinery, to apply to certain
specifiedterritones." (UNCIO, Vol. 3, p.611.)
The British proposd andthe LliorkingPaper appear to make it clear that
the "special system of international machincry", referred to in the note 1 REPLY OF hlR. GROSS 37I
have just quoted, was applicable to mandated territories. Thus, the
British proposal States that for certain territories "it is desirable to
establish special machinery" to ensure the application of the principle of
Trusteeship, and thnt among those territories are-". ..territories
administered by States Members of the United Nations under Mandate
from the League of Nations" (ibid., p. 609).
The \?'orking Paper itself says that the trusteeship system should
apply to "territories now held under mandate" (ibid V.ol.IO,p. 678).
The use of Covenant phraseology in the Working Paper therefore
appears to have been of a broadly descriptive intendment,conternplating
an extension of the principle of the Covenant to al1 dependent areas.
As the subsequent history of the treatment of Article 73 by the United
Nations makes clear, a distinction has always been perceived between
paragraphs (a) through (d) of Article 73,on the one hand, and paragraph
(e) on the other. It is significant also in this respect that the Parties,
quite independently of each other of course, have treated Article 73 in
precisely this way in their pleadings-both have assumed the relevance
of Article 73 (a) through (a) without, of course, attaching thc same
significanceto their relevance, and both have excluded from consideration
in their pleadings any thought of the applicability of Article(e).
The third question refers to the fact that the text in the Working
Paper remained unchanged up to gJune 1945.At least as early as7 June,
the same asthat provided for by the mandates systern.A draft of 7 Junet
of section A of the \orking Paper included sub-paragraph (h),which
called for statistical and other information of a technical nature to be
submitted to the Secretary-General of the United Nations. (Russell,
A Histor oythe UnitedNations Charter,pp. 818-819.)
There appears to have been no doubt that the systern of supervision of
Article 22 of the Covenant was more extensive than the re orting
provisions contemplated in the scheme which became Chapter X of the
Charter.
The foiirth question relates to the fact that the text\vas altered for
reasons set forth in the report of the Rapporteur of Comrnittee II14of
20 June 1945 T.he Applicants have been unable to kd any discussion of
this point in the UNCIO record. In A Histor of the United hrations
Charter,just cited, at page 816, a comment is quoted by the delegate of
Iraq ïvho objected to the Covenant wording on the bais that:
"ITery few countries ... werc able to stand alone any more in
terms ofmilitary or economicself-sufficienc;whileamongpolitically
dependent peoples were some with a long heritage of civilization, as
well as those of primitive culture."
This is the only comment relevant toa possiblesignificanceinthe change
of the test and this would, on its face, relate to reasons of a policy nature,
so to speak, in the Iight'of the considerations advanced by the delegate of
Iraq in objection to the Covenant wording.
The fifth question relates to the fact that it was noted in the report of
the Rapporteur ofCornmittee III4 that thetext ofwhat becameArticle 73
"woiild be applicable to all such territories" and to al1"States Members
of the United Nations having responsibilities for the administration of
territories whose people have not yet attained a full measure of self-
government". (UNCIO, Vol. IO,p. 608.)372 SOUTH WEST AFRlCh
The Applicants understand the significance of the foregoing quoted
statements to relate to Article 73 (a) through (d)-the principles.A
literal reading of the statements would include truçtecship territories
witliin the coverage of Article73 (e), as well as ~nandated territories,if
these were given a literal rneaning aç being applicable to Article 73 (e)
as well as Article73 (a) through (d).
The sixth question relates to the fact that in the sarne report there
appear certain tvords, which are quoted in the sisth question.
The considerations relevant to the fifth question appear equally
relevant to the sixth, in the Applicants' understanding. The onlydistinc-
tion appears to be that the passage here quoted in the sixth question
singles out the issue of "independence", which had been the subject of
discussion during the debates. It was pointed out that section A, relating
to al1dependent territories (including those under trusteeship), was not
the appropriate place for reference to "independence".
The principal distinction between sections A and B of the Working
Paper was that which related to machinery for international supervision.
The general principles applied to ail dependent territoriesthemachinery
for international supervision applied, or was designed to apply, to trust
territories; mandates then held were the only group of dependent
territories specifically definecland identified as coming within the category
of potential trusteeship. Mandates were discussed only within the contest
of those territories which would be subject to the extensive form of
international supervision envisaged under tlie trusteeship system.
The seventh question incorporates a series of citations from Field
Marshal Smuts' address introducing the report of Comrnittee II14 at the
San Francisco Conference. In the Applicants' appreciation of the matter,
Marshal Smuts' referenceç, in the course of the two passages first quoted,
to the "scheme of trusteeships" and the "principle of trusteeship" appear
to show that the Marshal was referring both to Chapters XI and XII
of the Charter; although of course it is not demonstrable what his intcnt
actually.was, this would seem to be a reasonable construction of those
words, particularly because they would be consistent with the IVorking
Paper and with the report of the Rapporteur of Committee 1114that
the principles of sectionA were said, or intended to be said, by Marshal
Smuts to bc applied to al1 dependent territories. Wis address did not,
asthe Applicants have studied it, touch on the extent ofsupervision to be
exercised under Chapter XI, nor did it refer to mandate supervision
under XI.
The third citation from Marshal Smuts' address is consistent also
with the assum tion that the principles of Article 73-that is, paragraphs
(a) through ( J-were intended to be applicable throughout the entire
fieldof dependent territories, including trusteeship territories, and were
of general univerçal application. Of course, the tmteeship principles
also apply in the cases of areas put under trusteeship. The fourth citation
from the ùlarshal's address apyears to confirm the assumption that
mandated territories u7ere not intended to corne under the reporting
provisions of Article 73 (ô),the references in question being those to
"colonial powers" and "colonies", indicating a contrary intention-one
which would envisage the extension of a system of international accouiit- I
ability, lirnited though it was, to colonial areas not yet brought into an
international system of any kind; and Marshal Smuts' reference to "that
larger extension" indicates that he tvas speaking of a new development. ! REPLY OF MR. CROSS 373
which of course would not have been the case in respect of the mandates,
-it would have been a backward step in terms of the scope and range
of çoverage.
The sixth and final citation derives from a yaragraph of Marshal.
Smuts' address, which is quoted in the sixth question. The theme of'
the quoted paragraph is that the new plan differs from the mandates.
system in that the trusteeship scheme or principle to which he had
referred earlierwas not to be applied to al1dependent areas; the context.
here would seem to the A~plicants to indicate that he did not conceive
of mandated territories aiIalling within the reporting requirernents of
Article 73 (e) although hcre, as in every other context of his address,
he regarded the principles (a) through (d) of Article 73 as being of
general and universal application. Thiç is also borne out by statementç
made by the Deputy Prime Minister of Australia-reference is made to
UNCIO, Volume 8,page 135, as weil as a speech at the same occasion
by Lord Cranborne of the United Kingdom, and reference is made te
the same UNCIO docunient at page 143.
Perhaps the most explicit recognition that mandates were not to fa11
under the supervisory obligations ofArticle 73iscontained in the addresç
by Mr. Peter Fraser of New Zealand, to which reference hasalready been
made and which isat page 153.
The ninth and tcnth facts to which the Applicants' attention is drawn
for consideration, tliatis to Say that the text of Article 73 was finally
adopted at the meeting of Commission II on 20 June, that the Charter
was signed six days afterwards, and that the text was adopted without.
dissent-these facts would be consistent with the Applicants' hypothesis
conceming the intended scope of Article 73 (e), that is to Say, as an
extension to colonial areas rather than a cover for rnandated territories
which might not fa11under the tmsteeship system.
The conclusion on the point, Mr. President, is that the administrative
supervision system for which the Applicants contend is of minimum and
essential scope and applicability and, moreover, in connection with this
litigation, that the prayers in Submissions3 and 4 that the Court adjudge
and declare that Respondent haçthe duty to cease the practice and policies
complained of in the Territory-that these prayers for relief would be
impossible of effectuation unless the Court should be pleased to uphold
the Applicants' contention in ths regard. These prayers would be
impossible of implementation and effectuation, in the Applicants'
respectful view, if the requirement of accountability were limited to, and
within the confines of, the information reporting requirements of Article
73 (e),leaving wholly apart the fact that such informational reporting-
requirements have not, in the practice of the United Nations, been
Secretary-General.c arcas but to functional areas for analysis by the
In conclusion, Mr. President, the Applicants wouId respectfully
present their submissions and, subject to reservation of rights which the
Applicants respectfully would put before the Court, regard thern as their
final submissions.
The Applicants,having completed the presentation of their arguments-
of fact and law, now respectfully present their submissions. In so doing,
the Applicants retain the right, pursuant to Article 50 of the Rules of
Court, to comment on any evidence given, or to exercise any other right
to which they may be entitled by virtue of the Statute orRuleç ofCourt,374 SOUTH WEST AFRICA
or the practice of the Court, including, but without limitation, rights
under Article 41 of the Statute and Article 61of the Rules of Court,
as well as the right of amendment of submissions prior to the closing of
the hearings.
The JIemorials contain submissions, pursuant to Article 42 of the
Rules of Court. Such submissions have been supplemented by further
submissions in the Reply.
In view of the fact that the submissions, as set forth in the Mernorials
and as supplemented in the Reply, refer to any allegations of fact and
statements of law which might subsequently be adduced before this
of clarity and convenience, now to bring up to date and to consolidate
their final submissions, which they now present to this honourable Cod
in the following form, that is to Say:
Upon the basis of aliegations of fact, and statements of law set forth
in the written pleadings and Oral Proceedings herein, may it ylease the
Court to adjudge and declare, whether the Governrnent of the Republic
of South Africa is present or absent, that:
(1)South M'estAfrica is a territory under the Mandate conferred upon
His Britannic blajesty by the Principal Allied and Associated Powers,
to be esercised on his behalf by the Government of the Union of South
Africa, accepted by hiç Britannic hIajesty for and on behalf of the
Government of the Union of South Africa, and confirrned by the Council
of the League of Nations on 17 December 1920;
(2)Respondent continues to have the international obligations stated
in Article22 ofthe Covenant ofthe Leaguc ofNations and in the Mandate
for South West Africa as well as the obligation to transmit pctitions
from the inhabitants of that Territory, the supervisory functions to be
exercised by the United Nations, to which the annual reports and the
petitions are to be submitted; .
(3) Respondent, by la~vsand regulations, and officia1methods and
measures, which are set out in the pleadings herein, has practised
apartheid, i.e., has distinguished as to race, colour, national or tribal
origin in establishing the rights and duties of the inhabitants of the
Territory; that such practice iç in violation of its obligations as stated
in Article zof the Mandate and Article zzof the Covenant of the Leag-ue
of Nations; and that Respondent has the duty forthwith to cease the
pra(4)Respondent, by virtue of economic,political, social and educational
policies applied within the Territory, by means of laws and regulations,
and officia1methods and measures, which are set out in the pleadings
herein, has, in the light of applicable international standards or inter-
national legal norm, or both, failed to promote to the utmost the material
and moral well-being and social progress of the inhabitants of the
Territory; that its failure to do so is in violation of its obligations as
stated in ArticIe 2 of the Mandate and Article 22 of the Covenant; and
that Respondent has the duty forthwith to cease its violations as afore-
said and to take al1 practicable action to fulfil its duties under such
Articles;
(5)Respondent, by word and by action, has treated the Territory in
a manner inconsistent with the international status of the Territory,
and has thereby impeded opportunities for self-determination by the
inhabitants of the Territory; that such treatment is in violation of
i REPLY OF MR. GROSS 375
Respondent's obligations as stated in the first paragraph of Article z
of the Mandate and Article 22 of the Covenant; that Respondent has
the duty forthwith to cease such actions, and to refrain from sirnilar
actions in the future; and that Respondent has the duty to accord full
faith and respect to the international status of the Territory;
(6) Respondent has established military bases within the Territory in
violation of its obligations as stated in Article q of the Anfandateand
Article 22 of the Covenant; that Respondent has the dpty forthwith to
remove all such military bases from within the Territory; and that
Respondent has the duty to refrain from the establishment of military
bases within the Territory;
(7) Respondent has failed to render to the General Assembly of the
United Nations annual reports containing information with regard to
the Territory and indicatirig the measures it has taken to carry out its
obligations under the Mandate; that such failure is a violation of its
obligations as stated in Article6 of the Mandate; and that Respondent
has the duty forthwith to render such annual reports to the General
Assembly ;
(S) Respondent has failed to transmit to the General Assernbly of the
United Xations petitions from the Territory's inhabitants addressed
to the General Assembly; that such failure isa violation of its obligations
as Mandatory; and that Respondent has the duty to transmit such
petitions to the General Assembly;
(9) Respondent has atternpted to modify substantially the terms of
the Mandate, without the consent of the United Nations; that such
attempt is in violation of its duties as stated in Artic7of the Mandate
and Article 22 of the Covenant; and that the consent of the United
Nations is a necessary prerequisite and condition precedent to attempts
on the part of Respondent directly or indirectly to modify the terms of
the Mandate.
May it also please the Court to adjudge and declare whatever else it
may deem fit and proper in regard to these submissions, and to make al1
necessary awards and orders, including an award of costs, to effectuate
its detcrminations.
This concludes the statement of submissions, and with the President's
permission may there be inserted in the record a very brief explanatory
note, which will not take more than three minutes?
The folIowing forma1 interpretations and explanatory comments with
respect to the foregoing submissions are respectfully presented to the
Court.
{a) The response to the question addressed to the Applicants by the
honourable President during the course of the proceedings of 2s April
1965 a,tpage 96, sz~prn, ishereby reaffirrned, in the following respects.
in particular :
r.The formulation of Submission 4 is not intended in any manner to
suggest an alternative basis upon which the Applicants make or rest
their case, other than the basis which the Applicants present in Sub-
mission No. 3 itself {referencis made to the verbatim record,30 Aprjl,
page 61, su$ra); the distinction between Submissions 3 and 4 being
verbal only, for reasons which have been set out in the cited section of
the verbatim record.
2. The reference in Submission 4 to "applicable international standards
orinternational legal norm, or both" içintended to refer to such standards376 SOUTH WEST AFRICA
.and legal norrn, or both, in the sense described and definedin the Reply,
IV, at page 493, and solely and exclusively as there described and
.defined-reference is made here to the same verbatim record already
cited, at page 60, supra.
It remains then, >Ir. President, to express gratitude on behalf of the
,Governrnents which 1 have the honour to represent, and on behalf of
rny colleagues, to thank the Court for its patient attention and, subject
to the reservation of the rights stated at the outset of these subrnissions,
-to restthe case. Thank you, Mr. President. 17. REJOINDER OF MR. DE VILLIERS
COUNSEL FOR THE GOVERNMENT OF SOUTH AFRICA AT THE PUBLIC
HEARINGS OF 24-27 MAY AND 14-18 JUNE
Mr. President, in presenting this oral rejoinder to the Court in regard
to thelegai issueswhich have been argued, I shall have to refer the Court
to a number of features of the Applicants' oral reply, to which 1 now-
have to offer this further reply or oral rejoinder. Wowever, there are two-
very general features which 1should like to mention straightaway.
The first is that the reply has been a good deal longer than the argu-
ment in chief.
The second is, Jfr. President, that in almost every important aspect
of the case on the legal issues the reply has exhibited a further change
of ground, a change of cause of action to some extent, a change of
motivation to some extent; whatever one calls it technically, in substance
one finds in almost every respect a further, or a new, case made out on
behalf of the Applicants, and this at thisvery late stage of the oral
repIy. 1 do not wish to pursue that matter at this stage; the general.
trend of it would have becn evident and obvious to the Court as the
oral reply of the Applicants gathered momentum. 1 shall refer to details
later.
The sole purpose of referring to these two features at this stage is to
indicate, %Ir.President, that inthe light thereof Our rejoinder \vil1also
have to be somewhat longer, will have to take a somewhat longer time
than one would normally associate with a rejoinder at this stage of the
proceedings; but before any alann spreads in that regard, 1 may hasten
to assure the Court that we certainly do not intend tomake our rejoinder
longer than our argument in chief.
In the course of thc rejoinder we shaU follow the same sequence as
we did in our argument in chief. We shall deal firstly with the question
whether the supervisory functions previously exercised by the Leape of
Xations passed to the United Nations. Thereafter we shall consider the
question whether the Mandate survived the dissolution of theLeague tu
any extent at all, and finaüy we will advert to the interpretation and
the effect of Article2 of the
I may point out at once, Mr. President, one of the significant features
of the further changes which have corne about in the Applicants' case
in the course of ths oral presentation, and particularly in the oral reply
to which 1am now offering this rejoinder. The questionwhether a transfer
was effected of supervisory functions to the United Nations now appears
to have attained increased importance. It was, of course, always a very
important question, both by itself and by reason of its possible influence
on the lapse of the Mandate as a whoie. Rut now, Nr. President, in the
reply the Applicants appear tcihave attribnted further significance to
this issue in the following ways:
They contend, in the frrçt instance, that Respondent's failurto comply
with itsalIeged duty of accountability playsa decisive role in establishing
their charges reIating tamilitarization and aileged unilateral incorpora-
tion of the Territory. 1 can refer the Court to the verbatim record of37s SOUTH WEST AFRICA
12 May 1965,at pages235-24 1oc a, where my learned friendMr.Gros,
on behalf of the Applicants, deaPt with this matter.
Secondly, in their contentions to the Court regarding the effect of
Article z,paragraph z, they rely on the existence of so-called "norms"
andlor "standards", and, as we understand them, they seeln to liave
made it clear that their case in this regard now also rests largely, if not
exclusively, upon acceptance of their case regarding administrative
supervision. 1 Say this guardedly, fiIr. Presidentbecause itisnot
absolutely clear to me whether we do understand them correctly. 1hall
have to revert to this matter in dealing with the case in regard to
Article2, but 1 may refer the Court to this very significant passage in
the record of13 May-1 am sorry 1have not got the page at the moment
-1 willgive it to the Court laterThey said:
"The norm and the standards ... embody the results of a uni-
versa1 assessment of the evils inherent in racial discrimination and
group separation, as such evils have been found, deterrnined and
adjudged by the competent organs of the international community,
vested not only with the right but the duty of administrative
supervision and safeguarding of thesacred trust."
Ilr. President, 1 emphasize those words "determined and ad'udged by
the competent organî of the international cornmunity, vested not oniy
with the right but the duty ofadministrative supervision and safeguard-
ing of the sacred trust".
AU1 wish to point out at the moment is that apparently the Appli-
cants' whole case, as far as the le al issues are concerned and, indeed,
the questions of fact which woulf have to be superirnposed upon the
legal basis of their case,now appears to stand or fail largely by the
Applicants' argument regarding Article 6 of the Mandate.
Now, Mr. President, in regard to administrative supervision itself,
which is the first subject to which we direct this rejoinder, the Applicants
also dea1t at considerably greater lengththan before w-th the problems
involved in the alleged transferof supervisory functions to the United
Nations. Nevertheless, there are very large areas of the dispute to which
they did not refer ataH,as far as we could ascertain, in their oral reply;
and, seeing that this is the rejoinder which comes at the end, which is
not intended to deal with every facet of the whole field of the dispute
again in detail, it may be convenient atthis stage, at the outset of the
argument, to see what the ambit of the reply was, and, in particular, to
see what matters were not dealt with in the reply.
May 1 first point out that the Applicants' argument in chief regarding
Article6 of the hlandate involvedin the main, the following contentions.
Firstly, that the mandate documents, properly interpreted, imposed on
the mandatory a duty of international accountability, in that wide,
indefinite form, which could and did survive the League of Nations.
SecondIy, that after the dissolutioof the League, agreement was neces-
sary for continued operation of supervision under the Mandate, but only
for the purpose of providing a new supervisory organ to render the
continuing obligation of international accountability capable practical
implementation. And thirdly, that such new agreement was, in fact,
reached.
A consideration of these contentions brings about a division of the
case regarding Article6, or a division of the issues regarding Articl6, REJOIZIDER OF MR. DE VILLIERS 379
into two Iarge parts, or topics. The first one relates to the correct inter-
pretation of the mandate documents in the respect under consideration.
It poses the issue which I dehed before as the one of international
accountability versus the Respondent's contention of accountability to
aspecific organ of sspecific organization.The second large topic is con-
cerned with inierences relative to agreement or consent that can pro-
perly be drawn from the events of the transitional period 1945-1946 and
thereafter. We gave an analysis of these issues as they stood at the stage
of the argüment in chief on 31 March, at pages 306 to 320 of the ver-
bath record, VIII.
Now, in regard to the first issue, Mr. President, we contended that the
Respondent's obligation was, as I have said, a specific one, namely to
report to a specific organ, the Council, of a specific organization, the
League of Nations. We based this contention on considerations of
language, of context of the relevant instruments, of probabilities, of
travawx p~éparatoir anes of surrounding circumstances. \Ve dealt with
these on 31 March at pages 322 to 331 of the verbatim record, VIII,on
I April, in the whole of that record, and on z April, at pages362 to370
of the relative rccord, VIII. Now, Mr. President, it is signifrcant thain
regard tothis whole broad topic no single counter-argument was advan-
ced by the Applicants in reply. It itrue that on 12 May, in the verbatim
record at page 241, supra, they made what one might almost term a
forma1 reaffirmation of their submission in this regard. They çaid:
"To the contrary, in the Applicants' respectful submission, the
tems of the Covenant establish the essential principle of a basic
obligation of international accountability, which inheres in a
mandate institution and which must survive solong as the mandate
survives."
It is alço true, Mr. President, that my learned friend maintained the
use of expressions such as "international supervision", "international
accountability", andthe like. But this merely emphasizes the omission to
offer any fresh argument, any answer whatsoever to this extensive
detailed review of the whole situation offered to thc Court in our oral
argument in chief.
The Applicants do not tell the Court which terms of the Covcnant (in
this quotation to which 1 referred) they refer in making this respectful
submission. They do not tell the Court in ivhich way the terms of the
Covenant establish this broad principle for which they contend-this
vague, general obligation of international accountability.We are left in
the dark, and that, I submit, Jlr.President, is a factor not {vithout
significance.I need not labour the point.
We find, therefore, that the Applicants' whole reply in regard to
administrative supervision was confined to the second leg of their
argument, nameiy their attempt to establish consent on the part of
Respondent to a succession of supervisory organs. But even as regards
this topic wefindthat very wide and very important aspects of the matter
were not dealt with at all. 1 cagive the Court a listof those which we
have noted,and 1subrnit that they, too, are not without significance.
The first one not dealt with at all, was our contention that any consent,
not having been given expressly, could be established only on the basis of
necessary inference from al1the relevant evidence. That matter me dealt
with in the verbatim record ofz April,VIII, at pages371 to 373.380 SOUTH WEST AFRICA
The second one was the fact that in all other cases where a succession
or transferf powers or functions from the League to the United Nations
was contemplated detailed and specificprovision was made both by the
founders of the United Nations and by the Mernbers of the Leagueat the
timeof its dissolution. That factor we do not find referred to at al by the
Appficants. The matter was dealt with in the same verbatim record at
pages 382to 383and again at pages 387.
The third was the registration of special arrangements and provisions
for transfer of functions and powers under Article 102 of the Charter
(that we dealt with in the verbatim record of 5 April, VIii, at pag418
did not elict a reply from the Applicants.t pages 422to 424).That, again,
The fourth dealt with in conjunction with the previous factor 1 have
just mentioned, was the treatment of mandates, in contrast with certain
other matters, in the report of the Board of Liquidation of the League
-the Board appointed at the final session of the League Assembly. We
dealt with that matter in the verbatim record of6 April at pages423 to
426.
Number 5, Afr.President, we offered a refutation of a statement by the
Applicants which they introduced into the matter, in so far as they saw
relevance between it and the issues in regard to Article 6, This staternent
of the Applicants read as follows:
"In 1935 Respondent put before the Permanent Mandates
Commission a proposa1 for the incorporation of South West Africa
asa fifth province of the Union, but when met with a critical attitude
by most of the ~nembersof the Commission, decided not to go ahead
with its plan for incorporation." (VIII, p. 139.)
We indicated what the true facts were in that regard, and how signally
inappropriate and completely wrong this statement of the Applicants
was. This was in the verbatim record of 6 April at pages 445to 449.
We have not heard a further word on that topic.
Nurnber 6: the subject of the non-applicability of estoppeI, or pre-
dusion, arising from the fact of Respondent's continued administration of
the Territory. That is a subject with which we dealt on 9 April, in the
verbatim record. VIiï, at pages 513 to 517. That did not elicit a reply
and yet my learned friend continues with a type of submission to the
effect that supervision, international accountability. must continue as
long as thereisadministration of the Tenitory by Respondent.
Number 7: we dealt with the non-applicability of the cy4rhat has not
been replied to.rd of 9 April, VIII, at pages 524 to 525.
Number 8: we dealt with the legal effect of findings ina previous
Advisory Opinion or Judgment on Preliminary Objections, in the same
record at pages 525 to 526. That has not earneda reply.
Nurnber 9: we offered a detailed and, we subrnit, with respect, a very
relevant analysis oftherg62Judgment and opinions, in the same record
at pages 527 to 538, and again in the verbatim record of 12 Apnl, Vm,
at pages 538 to 547. That hasnot been replied to, nor, hlr. President, has
Xumber IO-our analysis of the 1950 Opinion, which we submit to be
equaily relevant and of equally crucial importance-been replied to in the
least. That anaIysis we offered in the same record of 12 April at pages
547 to 557. REJOINDER OF MR. DE VILLIERS 381
Illr. President, in regard to some of these matters we shall demonstrate
in greater detail later that the Applicants, except for a word here or therc,
or a sentence here or there, have, in fact, not replied to the particular
points which we raised. In the case of other points, no demonstration at
al1is needed and it will not be necessary for me to refer to them at al1
again in the course of this rejoinder.
But the point 1 want to emphasize at this stage isthat our case was in
material respects not met by the Applicants, and, as I shali show, the
case upon which the Applicants now rely in regard to Article 6 of the
Mandate, although expounded in the Reply at greater length than in the
argument in chief, rests on a verynarrow and a very lirnited basis.
Eefore 1pursue that point, however, there are two further matters to
which 1should like to refer by way of introductory comment.
The first of these isthat, in the course of their oral reply, the Applicants
at various stages accuçed us of misrepresentation and even of distortion.
For instance, in the record of 13May, at pages 247-248, su$ra, they said
in regard to our rendering of their contentions, that we presented "a
parody of the Applicants' case". We were accused in the same record of
giving "many mis-statements or misrepresentations of the Applicants'
tme legal theory and position". We were accused of "attribution of
extreme and, indeed, unintelligible contentions to the Applicants". We
were accused of holding "Applicants' theory and contentions against a
cracked mirror" and of presenting "mis-statements, and one must Say
diçtortions"of the Applicants' contentions. These remarks in the record
of 13May which 1 have just referred to, Mr. President, are related
particularly to our argument regarding the interpretation and efîect of
Article 2,but similar allegations were made in regard to our subrnissions
on administrative supervision. We heard, also, in regard to Our inter-
pretation of the officia1records to be considered in this regard-the
official records of the League of Nations and of the United il'ations-
accusations of injustice to the context of so-cailed "verbal shredding", of
"strained interpretation", of "exercises in semantics", of "kiliing the
spiritby the letter", even of "ignoring both spirit and letter". We heard
of our arguments "falling between al1 stools". We heard of "pressing
words" of resolutions so as "to squeeze out the obligations in them", and
we heard that tve were employing a very "singular technique" in these
processes, and so forth. One finds these expressions to which 1 have
referrcd,spread over the records of IO,rxand 12May, Mr, President.
Ail I should like to say in this connection is that abuse has never been
a substitute for reasoning. The Applicants are merely turning upon us
complaints which we unfortünately found it necessary to make in respect
of certain presentations which they had made to the Court. But, Mr.
President, there was a difference. We gave chapter and verse for saying
what wedid. We indicated why wesaid it-that certain ofour arguments,
and certain portions of the record, were not presented to the Court in the
manner in which they should have been presented. But the only support
which the Applicants could offer for turning these accusations on us
would be an analysis of the sarne kind as that which gave rise to the
initial complaints on Ourpart. We shall show that in due course, and 1do
not want to elaborate on the matter now. 1 merely want to say that, as
far as we could see (and I shall deal mith the rnatter further in detail), the
Applicants have not been able to demonstrate that in tmth we have, in
any way, been unfair either to the substance or to the context of the382 SOUTH WEST AFRIC-4
records. In so far as they have suggested that, 1 shaI1follow up those
maIn regard to the Applicants' own contentions, Mr. President, al1I can
Say is that we certainly did not claim to understand al1 of them with
certainty al1the time. We never claimed to be certain beyond al1doubt
that we knew exactly what al1 of them meant, nor that we could always
keep up with the swift changes in the Applicants' case. Wemerely trjed
our best, and we shall continue to do so in this oral rejoinder.
It is unfortunately necessary to make analyses of the contentions, of
the way in ~vhichthey are presented to the Court, and of extracts ofthe
record, in the way in which they are presented to the Court. 1 may say
again, as1 did before, that in objecting to the manner in which that isdone
1 am not objecting or raising any objections to perçons or their actions.
1 am analysing in the process, the merits of this case,whichit is sought to
present againstus.
Now, Mr. President, that is the first of these introductory nlatters to
which 1wanted to refer. The second one is this, that the Appiicants have
made it plain beyond al1 doubt that they indeed rely on consent on
Respondent's part to the substitution of the United Nations for the
League of Nations as the supervisory authority in respect of theMandate,
and they make it plain also that they accept the necessity of having to
rely on such consent on the Respondent's part.
In our argument in chief we pointed out what contrary attitudes the
Applicants adopted ateadier stages in these proceedings. It is a matter
to which 1 do not intend to refer again in detail. I merely wish to point
out broadly that we showed how they first sought to base their case in
regard to Article 6 on a theory of succession, how they asked the Court to
reaffirm the 1950 Opinion of the Court, and contended that the Court,
in that Opinion, attributed to Article 80 (1)of the Charter a "positive
quality of 'maintaining rights' to", and how, MT.President, they con-
tended that "none of the decisivereasons underlying the Opinion of 1950
dent, the League of Nations, or the United Nations". We dealt with those-
matters in the verbatirn record of 30 hlarch, VIII, at page 296,and, again,
in the record of 31 March, VIII,at page 310.
In their oral reply, Mr. President, the Applicants have not contested
that they have had to change their case in regard to Article 6 in these
vital resp'ects.,Indeed, they have now further emphasized that their case
rests squarely on consent on the part of the Respondent to the United
Nations supervision. The fact that that is so is particularly apparent
from a statement which my Iearned friend, Mr. Gross, made on xz May
1965,when he stated that-
"The Applicants would like to clear up any possible lingering
doubts ... which may exist regarding their position relating to the
administrative supervision of the Mandate and the basis upon which
ithas survived and continues to survive as an obligation of the Man-
datory." (Supra,p. 240.)
hly learned friend proceeded to state three propositions by way of
summary, when nearing the end of his oral reply, on this aspect of the
case. The first two are not directIy relevant to present purposes-1 shall
refer to thern later. The important fact is that he made it clear, in the
wording of the three propositions, that the third and final one was a REJOIPI'DER OF MU, DE VILLIERS 383
necessary link in the chain. This third, and final, one read as follo~vs:
"Respondent has acknowledged-at the period when it was of
decisiverelevance whether it did or not-Respondent acknowledged
and manifested its consent to the assurnption by the United Nations
of supervisory authority over the Mandate." (Ibid., p240.)
Now, hlr. President, that point, whatever lingering doubts there may
have been, and whatever uncertainties there may have been, is, therefore
made clear.
In the Applicants' oral argument in chief theof course, alsocontended
for such a manifestation of consent on the part of the Respondent. We
dealt with their contentions in that regard in the records as from z April,
at VIII,page 376,running on into those of the next few days. We showed,
with submission, Rh. President, that the attempt, made by my learned
friends in their argument in chief to show such consent on our part, was
completely abortive one.
In these portions of the records which 1 have just mentioned, we refer
to relevant arguments of the Applicants as they had been adduced in
their argument in chief. We give the passages and the references and 1
need not do so again. But 1 wish to point out how far 1vereally took the
matter before reverting to the manner in which the Applicants dealt
witli it in their reply.
We pointed out, hlr. President, that, far from it being merely a case
that the Applicants were unable to establish consent on Our part, the
record very clearly indicated the absence of such consent. We showed,
Mr. President, with submission, that there was an absence, on the part of
Respondent, and on the part of al1the other Mandatories, of any indica-
tion of such consent on their part. We showcd that there was, on the
contrary, on the part of al1 the Mandatories, pertinent indications that
they were not consenting to United Nations supervision over mandates
outside of trusteeship. And, Mr. President, we showed that there was
ovenvhelming evidence that other States, which were Members of the
two organizations at the time, clearly understood that no such consent
was given by any hlandatorv. There is no need for us to cover that whole
field again, particularly in Giewof the way in which the Applicants have
now narrowed down their line of reply to these contentionson our part,
and 1therefore wish to revert to the summary which they gave of their
contentions on 12 May, at page 240, sup~a, "with a view to clearing up
any lingering doubts", as they expressed it. To what 1 have quoted
already, the Applicants added the following:
"Respondent manifested its consent [that is to United.Nations
supervision] and acknowledged its submission according to the
findings of the Courin1950 on the basis,inter dia,of the statements
made before the League ofNations in April 1946, its pledge to the
League Assernbly, its adherence to and support of [or] vote for the
League resolution of18 April 1946 ,nd as has been referred to often
riow, the position it took in the Preparatory Commission with respect
to the temporaiy trusteeship machinery, and the reason assigned
therefor by Mr. Nichols." (Supra,p. 240.)
There is alço a staternent to a sirnilar effect&Ir. President, in the
verbatim record of IO May at pages r73-174, stbpra, indicating the
breadth, or, shall1 Say, by way of contrast to what xvehad before, the384 SOUTH WEST AFRICA
regard to their contention of a manifestation of consent, on the part of
Respondent, and the other Mandatories.
TheApplicantsremark that Mr. Nicholls'statement "has been referred
to often now", was indeed an understatement, Mr. President. Somebody
in our team counted and found that in the course of my learned friend,
Mr. Gross' rcsponse on thispart of the case, Mr. Nicholls' statement was
referred to no less than 30 times on the first two days alone-in other
words, in the records of 7 and IO May-and that is apart from quite a
number of further references on the succceding days.
It certainly took the Applicnnts a long time to find out that Mr.
Nicholls' staternent is reaily the "king-pin" of their whole case against
the Respondent regarding Article 6 of the Mandate, but now that this
great light has stmck them, Mr. President, they are clearly not hiding it
under a bushel. They now tell the Court that everything of relevance is
to be interpretedin the light of blr.Nicholls' statement at the time with
reference to the proposa1 for a temporary trusteeship committee in the
Preparatory Commission of the United Nations. Everything, as 1 Say,
is attributed toand is based on &Ir.Nicholls'statement, and the context
in which it occurred in the Preparntory Commission-or rather, I should
Say, on the significance and the mcaning attached by my Iearned friends
to Mr. Nicholls' statement and to the context of events in that Prcpara-
tory Commission. It does seem to us that when the last word has been
spoken on this subject, my learned friends may weli wish that they had
hitched their wagon to someother star or that there had been some other
star to which they could have hitched their wagon in this regard, because
it appears on analysis, hlr. President, that the whole basis, the whole
foundation, of this super-structure which the Applicants have tried to
build up, is a false one; it falls away and, with it, the whole of this
argument which they offered in repiy in regard to Article 6.
1 should like to begin at the beginning-1 should Liketo analyse first
how this argument was developed by the Applicants, and what appeared
to be the inter-related and the essential links in this argument. 1 should
the AppIicants submittedto the Court in thç regard, then we can proccedat
to deal more easily with the merits of that argument.
It seems, Mr.President, that the first contention of the Applicants, and
the first necessary link in the case which they offered in reply, is to the
effect that Respondent and certain other hlandatories in the course of
debates in the Preparatory Commissionsupported the establishment of a
temporary tmsteeship committee. We have a nurnber of statements in
this regard-I shall refer the Court to some of them. First, there is the
verbatim record of 7 May. at page 14r, supra, where my learned friend
said the following:
"Indeed South Africa, Australia and the United Kingdom, and
this is to be marked, these three Mandatory Powers were in favour
of the proposa1for a temporary Trusteeship Committee."
Next, verbatim record of 7 May, at page 147,s~#ra:
". ..the temporary Trusteeship Committee idea was favoured by the
mandatory powers,including the Respondent-and it was supported
by thern".
We found a similar statement, wkich 1 shaii not quote, in the verbatim REJOISDER OF MR. DE VILLIERS 355
record, ofIO May, at page 152,supra. Theil, we find one on the very next
page of the same record which puts it more strongly. The Applicants
there referred to "the Mandatory's proposa1 for a temporary trusteeship
cornmittee"-it now becomes "their proposal". (The record gives a
singular apostrophe but 1take it thatthe intention wrisa plural "hlanda-
tories" proposal.) We find in the same record, at page 153, supra, the
foilowing statement :
"the proposa1 for a ternporary trusteeship committee made by three
mandatory powers including the Respondent".
And still later, in the same record, at pa155 srtpre:
"Respondent, along wviththe other mandatories, including the
British Government, suggested the establishment of interim ma-
chiner~ to which to report."
So we see, hlr. President, that this contention, like "Topsy", just
"growed". 1t is a feature and a tendency whicli one saw in regard to
other arguments of the Applicants' agent;they begin on a rather rnodest
plane but in the course of time, they grow. Thus, from support for a
proposa1 for a temporary trusteeship committee by three mandatory
powers, South Africa, Australia and the United Kingdom, we end up
with the Mandatorics' proposa1 for such a trusteeship comniittee and
the Mandatories' suggestion for the "establishment of interim machinery
to which to report".
But we are merely analysing now what these contentions amount to.
The second, and a very important link in the chain of reasoning, appears
to be this: the pcoposed ternporary trusteeship committee was intended
by itçprotagonists to be a body which would, i?tteralia, exercise super-
visory functions over mandates even prior to the establishment of the
trusteeship system-that is our paraphrase to the best of Our abiiity.
1 shall refer the Court to thactual wording employed by the Applicants.
On 7 May, verbatim record, at page 141, sz~prathey said:
"The proposa1 for a temporary Trusteeship Committee indicated
the importance nttached to international supervision of mandated
territories,even prior to the establisliment of the Trusteeship
Council."
At the same page, we find this:
"The South Africaii attitude was clearest of all. hlr. Nicholls, the
South African delegate, stated that :
'.. . iseemcd reasonable to create an interim bodas the Mandates
Commission was now in abeyance and countcies holding mandates
should have a body to which they could report'. "
I shall deal latcr with the meaning of what Mr. Nicholls actually said
in the relevant contcst, Rlr. President. \Te are rnerely indicating at the
moment how the Applicants are using Mr. Nicholls' statement to support
this second contention of theirç, in regard to which they proceeded to
state,at the same page of the record:
"The statemcnt illustrates the importance which the founders of
the United Nations generally, and Respondent spcdfically, attached
to international supervision of mandated territories, prior to the
conclusion of other agreed arrangements."
These 1st words which 1 have emphasized, being the important point
made bythe Applicants in this link in their chain.3s6 SOUTH %WSTAFRlCA
There is sorne progression in the argument, Mr. President, aswe find
at the next page of that sarne record the following :
"Mr. Nicholls, speaking for South Africa, expressed the view that
the mandatory powers wereobligated to subject their administration
of mandnted territories to the supervision of the United Nations.
He was so convinced of the fact, as appears from his own statement,
that he advocated the creation of an interim United Nations body
to undertake such supervision until the establishment ofa permanent
body." (Supra, p. 142.)
Now at the next page, Mr. President, we find a little bit of caution-we
find the matter stated this way:
"The Yreparatory Commission debates make clear that at least
sorne of the mandatory powers, including Respondent, certainly
Respondent, wvanted United Nations supervision of mandated
territories and asked for it, even before tmsteeship agreements were
entered into." (Ibid.)
There we have, Alr. President, the contention that Mr.Nicholls was of
the view that the mandatory powers were obligated to submit to United
Nations supervision of mandated territories. Ie see the suggestion that
rnandatory powers wanted United Natioris supervision of mandated
territories ancl asked for it.As 1 Say, there is some caution here; the
statement is limited to at least some ofthe mandatory powers "including
Respondent, certaiiily Respondent", but definitely "even before tmstee-
ship agreements were entered into". This caution is thrown to the wind
some pages later. In the same verbatim record, at page 146, sue, we
read:
"'There was general agreement that the mandated tenitories
should be under international supervision. The mandatory powers
wanted that supervision to be carried out by an interim or temporary
body prior to the establishment of the Trusteeship Council."
And then, Mr. President, still in regard to this link in the chain, there
are t~o further passages to which 1 could refer briefly. One is from the
same verbatim record, at page 145, supra, where it is said that-
"... the proposals for a temporary tmsteeship committee, and for
a series of dedarations or pledges, were techniques for ensuring
continued international supervision of mandated territories."
And we find a statement to a similar effect in the verbatim record of
IO May, a!page 153, supra, to which 1 shall refcr in another context later.
The point 1sthat in al1 theçe statements-some more cautious, some
very much less cautious-the idea of interim supervision over mandated
territories prior to other arrangements being agreed upon by the United
Nations is stated to be a necessary part-a necessary concomitant-of
the proposa1 for an interim trusteeship committee, which was favoured
by, or su ported by, the mandatory powers or even, as my learned friend
suggeste8, proposed by the mandatory powers.
how we corneto the third contention, the third necessary link in this
chain, and that is that the temporary tnisteeship cornmittee proposal
was rejected for the reason that it might delay the establishment of the
Trusteeship Council. In the verbatim record of 19Rlarch, the matters are
put very pertinently, as follows:
"The proposa1 for a temporary trusteeship committee was not REJOISDER OF >IR.(DE VILLIERS 387
adopted by thc Preparatory Commission, primarily on the basis of
the objections advanced most forcefully by the Soviet Union, to the
effect that such a comrnittee might delay rather than accelerate the
establishment of aTrusteeship Council." (YIII,p.152.)
And we find statements to the same effect in the verbatim record of
7 May, at page 141, sufiruwhere my learncd friend referred to this time
factor as a pragmatic reason-to-delay factor and again, in the same
record, at page 147, supra, the same reason isassigned for the action of
the Preparatory Commission, and thc statement is made that the
proposal for a temporary trusteeship committee "was rejected as in-
adequate, and not as going too far".
Then we corne, &Ir. President, to the fourth contention-the fourth
link in this plan-that is, that by plan and design an alternative method
was adopted, namely a systern of pledges whereby the Mandatories
would, and in iact did, undertake to carry out al1the obligations under
their respective mandates, including thc obligation to submit to intcr-
national supervision, even before trusteeship agreements were concluded.
In the verbatim record of 7 May, the Applicants said in this regard-
".. .the authors of the Charter attached importance to international
supervision, even prior to the establishment of the tmsteeship
system.
The historical record indicates that two basic methods were
conceived of by the founders of the United Kations. One was the
proposa1 for a temporary tmsteeship committee, interim; the other
was a proposa1 for a set of pledges to be made by each of the man-
datory powers. There can be no question that these two proposals
were linked to each other, and that each was viewed as a method
for ensuring international supervisionof mandated territories: this
was their purpose." (Supra, p. 143.)
And, Mr. President, in regard to this suggestion of pledges asn sub-
stitute for the other technique-the technique of the temporary tmstee-
ship committee-for ensuring interim supervision of a mandate, the
Applicants argued that two kinds of pledges were envisaged. The first
was a type of pledge which, they Say, was contemplated by h1r.Peter
Fraser of New Zealand when he addressed Commission Ilof the United
Nations Conference at San Francisco on 21 June 1945 . he relevant part
of llr. Fraser's speech is quoted by the Applicants in the verbatim
record of 7 May, at page 139, supra. And they said in this regard that
this type of pledge $vas one which woiild merely, "acknowledge the
authority and the supervision of this Trusteeship Council". At that point
they broke off the qiiotation and they added these words "until other
arrangements were concluded". Then they quoted again the words
"whatever may happen to the Territory afterwards".
&Ir. President, I shall not at this stage analyse what it was that
Mr. Fraser really had in mind. 1 am only pointing to the rendering we
have here of what Mr. Fraser said: some of hisuvords are quoted, then
follow some ~vords of the Applicants themselves, and then are added
again some words of ;\Ir. Fraser. !Ire shallin duc course were this lcads
one to.
That was the firsttype of the pledge, then, ~vhichMr. Fraser was said
to have had in mind.
Secondly, the Applicants suggest that there was a contemplation of a3g8 SOUTH WEST AFRICA
type of pledge which, they Say, was envisaged by the delegates to the
Preparatory Commission. This type of pledge, according to them, "would
have required a declaration of wiliingness, on the part of the mandatories,
to place mandated territories under the trusteeship system" (supra,
p. 144.)And they went on to say, on that page-
"The delegates at the April session of the League in 1946 made
pledges which were inore in line with Prime Minister Fraser's
conception-to acknowledge the authority and the supervision of
the Trusteeship Council when it came to be formed."
They proceed to quote passages from statements made in the Pre-
paratory Commission by representatives of Yugoslavia, New Zealand,
the Soviet Union and China (that is in the verbatim record of 7 May, at
pp. 14j-146, sue) inwhich these Statesproposed that hlandatories should
make declarations of their willingnessto place their respective mandated
territories under trusteeship.
Then, Mr. President, the Applicants argue as follows-it is a somewhat
lerigthy passage, but it is important to get at the real foundation of
Applicants' argument, and I think 1 should, therefore, read it to the
Court :
"Thus, the link between the temporary trusteeship comrnittee
proposa1 and the concept of pledges is evide~it. There was general
agreement that the mandated territories should be under inter-
national supervision. The mandatory powers wanted that super-
vision to be carriedout by an interim or ternporary body prjor to
the establishment of the Trusteeship Council. Mr. Nicholls said so.
This clearly was Respondent's position at that time. However,
other governrnents feared that this procedure would lead to delay
in the establishment of the trusteeship system and pressed for
pledges by the mandatory powers to place these under the trustee-
ship syçtem. What occurred historically, UpQn the Applicants'
carelul anal sis, was a compromise between these two positions.
That is, pler&es were made but not pledges to place the rnandated
territories under the trusteeship system:rather, thepledges were to
carry out al1the obligationsofthe mandate, including the obligation
to submit to international supervision, the essence of the mandate,
until other agreed arrangements could be made." (Supra, p. 146.)
Thus, Mr. President,there were not to be pledges to place the mandated
territory under trusteeship; not, on the other hand, temporary tmstee-
ship machinery andtemporary supervision ovcr mandates not converted
into truçteeships, but thcre was a compromise between these two, it is
said, namely pledges to carry out al1 the obligations of the mandate
including international supervision until other agreed arrangements
could be made.
Now, Mr. President, how precisely this compromise arrangement on
the Applicants' submission came to be made is nowhere stated by them.
They repeatedly assert that in the Iight of the events in the Preparatory
Commission, the declarations made by the different mandatories in
April 1946-that is, not in these initial stages of proceedings in the
United Nations, but later at the time of the dissolution of the League
are to be seen as pledges of the nature aforementioned-pledgeç, there-
fore, agreed upon as a compromise in the difficulty which arose in the
Preparatory Commission of the United Nations. REJOINDER OF MR. DE VILLIERS
389
We find a further development of this argument, Mr. President, or
what really amounts to a repetition thereof in other words, in the verba-
tim record of 7 May, at page 147, sufiruwhich 1 shall not now read to
the Court; but it is on the basis of this submission that the declarations
by the mandatories in April 1946, including that of Respondent, are now
sought to be interpreted, and it is also on this basiç that the Applicants
seek to interpret the two Chineçe draft resolutions which leto the final
League resolution on mandates on 18 April 1946.
The Applicants then proceed to state in the verbatim record of
7 May 1965:
"Viewed in this context, and from this historical perspective, the
purpose of the declarations made by the several mandatory powers
in April 1946 becomes crystal clear. Plcdges had onIy been made
as a means of ensuring the continuance of international supervision,
... The Nicholls' statcment of 29November 1945 and Respondent's
declaration of g April 1946, a few months Iater although not so
explicit, form part of a consistent pattern of behaviour by the
mandatory powers generally, including Respondent. The pattern
uras to reject the idea of making an unqualified pledge that the
mandated territories were [to be placed] ... under trusteeship."
(Supra, p. 146.)
To round off these quotations from Applicants' contentions, and in
order to have afirm understanding of what they mean, may 1 ask the
Court's indulgence to refer to thjs further passage in the verbatim of
IO May, at page 153, supra, where the conclusion is stated as follows:
"The events and transactions which have been described, including
the juxtaposition of the proposa1 for a temporary trusteeship
committee made by three mandatory powers including the Respon-
dent, and the pledging procedures-this juxtaposition sheds light on
the true significance also of the League of Nations resolution of
18 April 1946 ..."
The Applicants then proceed to quote paragraph 4 of that resoliition
in the well-known words, and thereafter to state:
"The phrase 'expressed intentions' in the resolution of 18 April:
1946 refers to pledges, and that word waç used in several of the
statements made at the time; to the pledges which each of the
mandatory powers made pursuant to a plan and design tvhich was
chosen in preference to the proposa1 for a temporary trusteeship
committee to which they would have reported until other arrange-
ments had been agreed between them and the United Nations-that
was the plan."
That is the end of that quotation and it shows, Mr. President, how
the Applicants, building upon their own rendering of theproposal before
the Preparatory Commission for a trusteeship committee, and particu-
larly of &Ir.Nicholls' statement, now arrive at their result where thev
claim to have established that-
"... Respondent acknowledged and manifested its consent to the
assumption by the United Nations of supervisory authority over
the Mandate .. .".(Su+ru, p. 240.)
Briefly stated, Mr. ~rekident,the whole of thiç argument now appears
to rest on the following: firstly, a contention that the mandatorjes,3g0 SOUTH WEST AFRICA
including Kespondent, wanted United Nations supervision of mandates
even prior to the conclusion of trusteeship agreements-in the case of
Respondent the Applicants went further and said that hlr. NicholIs
indicated a consideration, or conternplation,that there was an obligation
to submit to such United Nations supervision, but the contentions are
not quite so explicit about the other mandatories; secondly, that the
Mandatories sought to obtain that supervision via the proposed trustee-
ship comrnittec, but, thirdly, that by plan and design they, the hlanda-
tories, accepted anotlier metkod to the same end, namely a method of
pIedgesby which they consented to the assumption by the UnitedNations
of supervisory authority over the Mandates, even prior to other arrange-
ments. That seems to be the gist of this case. 1 have perhaps analysed it
at some excessive length with reference to actual statements made by
my learned friends in the course of developing their contentions, but it
seemed necessary to do so as a basis for considering the merits of their
contention. 1 have atternpted to do full justice to the way in which they
have put their case, and that gives usa basis upon which we can proceed
to consider the merits of their contention.
For that puipose, Mr. President, it seems necessary to scrutinize a
little more closely than u7edid before some portions of the record of
events in the Preparatory Commission and its Executive Committee
regarding this proposa1 for a temporary tmsteeship cornmittee, and the
rejection of that proposal.
The Interim Arrangements which set up the Preparatory Commission
in June 1945 are well known to the Court, asare the broad purposes of
those arrangements for which the Preparatory Commission \vas estab-
lished, namely to get the various organs of the United Nations into
opcration at their first sessions, to establish the Secretariat, and to
convene this Court. As the Court knows, provision was also made in
these Interim Arrangements for an Executive Committee which would
exercise the powers and functions of the Commission when the Comrnis-
sion was not in sessionAil that we find inU~itedNaliolzs Journal, No. I,
24 November 1945 ,t page 5.
Now, for the purpose of carrying out its functions this Executive
Committee set up ten sub-committees, and may 1mention in passing that
South Africa was not a member of this Executive Cornmittee. Therefore,
throughout al1these proceedings in the Executive Comrnittec, before the
matter came first before the Fourth Committee of the Preparatory
Commissionand thereafter before the Plenary Sessionof the Preparatory
Commission, South Africa had no role in the matter at all. Mr. NicholIs'
comment came at a later stage after the matter had had a considerable
history in the Executive Committee and its sub-committees.
The tenns of reference of Committee 4 of the Executive Committee
were the following :
"This Committee should be concerned with the preparation of
. the Agenda and appropriate documents for the first session of the
Trusteeship Council. It should make recommendations defining the
role of the General Assembly and ofthe Security Council in tmstee-
ship matters and of their respective relations with the Trusteeship
Council. [I omit some ~vords,matters of detail, which do not specifi-
cally concern our purposes.]
The Committee should prepare recommendations for procedures
which might be followed for approving trusteeship agreements, for REJOINDER OF MR. DE VILLIERS
3g1
examining annual reports, for receiving and examining petitions,
for arranging periodic visits to territories and for establishing a
questionnaire as a basis for annual reports. It should study the
questions arising if the Manclates System were tobe wound up and
examine the feasibility of providing for such interim arrangements
as may be possible, pending the establishment of the Trusteeship
Council." (Doc. P.C./EX/II~/R~V. I, 12November 1945 ,. 133.)
Now, 31r.President, the Court wil lecaii that we deal in OurCounter-
Rlemorial, II, with the work of this sub-committee and we point out
that the. sub-committee recommended, with certain exceptions and
qualifications, the transfer of the functions, activities and assets of the
League to the United Nations. Amongst the exceptions were the political
functions of the Leaguc, and in this regard the sub-committee stated
with regard to mandates :
"Since the questions arising from the winding up of the Mandate
System are dedt with in Part III, Chapter IV, no recommendation
on this subject is included here." (II, p. 36.)
'I'Vhenwe advert to this other part of the report, we find that the
Executive Committee, in accepting the proposals or recommendations
of this sub-cornmittee, made the following recommendations to the
Preparatory Commissionconceming the establishment of the trusteeship
system :
"TheExecutiveCornmittee,
Consideringthat in accordance with Article 86 of the Charter the
Trusteeship Council cannot be forrned until a number of territories
shall first have been placed under trusteeship; and
Considering that it is nevertheless desirable that some interim
organ should be established to assist the General Assembly in
expediting the constitution of the trusteeship system and, pending
the establishment of the Trusteeship Council, in taking such other
action in connection with the trusteeship system as may be found
necessary:
Reco?firnend s. .."
and then in the operative part, Mr. President, we find a recommendation
for the establishment and composition of such a Temporary Trusteeship
Comrnittee, and for the adoption of provisional agenda and the Rules of
Procedure for it; and also proposals concerning provisional Rules of
Procedure for the Trusteeship Council itself, and [or the establishment
of the Trusteeship Council as soon asthe necessasr conditions had been
fulfilled.
>Ir. President, 1 had just read out to the Court the recommendation
of the Executive Committee of the Preparatory Commission for the
establishment of a Temporary Trusteeship Committee, 1 read out the
wording of the preamble giving the reasons, the motivation, as seen by
the Executive Committee, and then gave the gist of the actual recom-
mendations. The reference isto the same,Preparatory Commissiondocu-
ment as before, at pages 7 to 8.
Then, Mr. President, in a footnote to this recommendation we find a
recording at page 7 of the same record as follows:
Ir.. [tlhe Gzechoslovak, Soviet and Yugosiav Delegations made
objection to the proposa1 for the establishment of the Temporary3g2 SOUTH WEST AFRiCA
Trusteeship Committee, on the grounds that such action is not
authorized by the Charter and would be unconstitutional".
That is the only reason given at this stage for the objection to the
proposal.
Then, in its relevant report the Executive Committee gave the follow-
ing explanation for its proposal which further explains ïvhat 1 have
aIready read to the Court from the preamble. 1 quote from the same
document as before, page 55:
". ..thcre are at present no Members of the United Nations ad-
ministering trust territories;and, therefore, a Trusteeship Council
composed as laid down in Article 86 of the Charter cannot yet be
formed. Some means of resolving thÎs difficulty must be found, and
the Committee submits the following recornmendations.
........................
The Committee recomrnends that the General AssembIy, acting
under Article 22 of the Charter, create a temporary subsidiary organ
to carry out certain of the functions assigned in the Charter to the
Trusteeship Council, pending its establishment."
1 emphasize those words, Mr. President, "to carry out certain of the
functions assigned in the Charter to the Trusteeship Council, pending its
establishment ".
Noiv, with regard to the functions of this temporary committee, the
report stated the following-1 quote from the same document, page 56:
"The TemporaryTrusteeship Committee would, inter dia,perform
the foliowing functions:
(i) assist the United Nations in expediting the conclusion of
trusteeship agreements by the States directly coricerned, and the
coming into operation of the Trusteeship Systern provided for in
Chapters XII and XII1 of the Charter;
(ii)assist and advise the Geiieral Assembly in the discharge of
any of its functions \\<th regard to proposed non-strategic areas,
including the approval of trusteeship agreements;
(iii) assist the Security Council in such matters as the Security
Councilmight wish to refer to the Temporary Trusteeship Committee
in relation to matters mentioned in Article 83 (3);
(iv) advise the General Assembly on any matters that might
arise with regard to the transfer to the United Nations of any
functions and responsibilities hitherto exercised under the Mandates
System."
In other words. Nr. President, here was a fdl indication of the functions
of the proposed committee as then visualized.
Iliith regard tothe duration of the Teinporary Trusteeship Committee,
the Executive Committee recommended-1 read from the same docu-
ment at page 56-that-
"the tenure of the Temporary Trusteeship Committee should cease
&+en,through the conclusion of a sufficient number of trusteeship
agreements, the conditions in Article 86 have been fdfilled".
Then, in the same document, at page 58, we find that under a heading
"Interirn Powers" the following recommendation was made:
"In so far as the Temporary Trusteeship Committee undertakes
the functions of the Trustceship Council, it shall make use of such REJOINDER OF MR. DE VILLIERS 393
rules of procedure, conceming the formulation of questionnaires,
the examination of reports from administering authorities,the
examination of petitions, arrangements for visits to trust territories,
and the method of communicating observations to the General
Assembly (or the Security Council) and the administering authority,
as it shall have prepared for submission tothe Trusteeship Council.
The Committee shall perform such other functions as may be
provided for in the trusteeship agreements or as may be assigned
to itby the General Asçembly or the Security Council, including
the expedition and consideration of drait trusteeship agreements
and the preparation of recommendations thereon for submission to
the General Assembly or the Security Council."
Now, Mr. President, I have given the Court everything relevant which
we could find in the records of the Executive Comniittee and its sub-
Cornmittees on what was visualized as functions for this Temporary
Trusteeship Committee, and it will immediately strikeone, Mr. Yresident,
that in accordance with the contemplation of its sponsors in the Exec-
utive Committee and its sub-Cornmittees, this Temporary Trusteeship
Committee was not intended to have any supervisory powers over
mandates not brought under trusteeship. Therc is not aword indicative
of any contemplation of that kind in al1 that 1 have read to the Court,
which is al1 we couldfind that is relevant on the subject. And indeed,
on analysis of the wording employed, it seems quite clear that such a
contemplation was not intended to be included in any-thing stated. If
it was intended, one would have expected something to that effect to
have been said. On the contrary, we find that the Cornmittee was
intended to carry out "certain of the functions assigned in the Charter
ta the Tnisteeshjp Council". Ancl ~vhileitwas foreseen that, in the exer-
cise of its interim powers, it could undertake the functiofsthe Trustee-
ship Council regarding supervision of trust territories, there is not a word
about mandates not brought under trusteeship.
jlrith regard to mandates, the only function referred to in aii this
documentation which 1have cited, was to advise the General Assembly-
"on any matters that might arise with regard to the transfer to
the United Nations of any functions and responsibilities I-iitherto
exercised under the Mandates System".
That is, then, as far as the forma1 proposals in the documents are
concerned-I am still talking about the stage where the matter is
dealt with in the Executive Committee and its sub-cornmittees. Indeed,
Mr. President, a study of the documents of the Executive Committee
reveals that, with one single exception, no suggestion was made at any
stage of its proceedings that the proposed Temporary Trusteeship
Committee should be endowed with powers of supervision over mandates
not brought into the trusteeship system.
The single exception is an interesting one. It was a suggestion con-
tained in a mernorandum submitted by the delegation of the United
States of America dated 14 October 1945 ,nd officially referred toas
Document No. P.C./EX/gz/Add, I. The document is available in the
records in the Library-we found it there.hly learned friend Mr. Muller,
who went into the matter, found it by chance when going through the
loose docurncnts, because there isin fact no reference titwhatsoever in
any of the recordedproceedings-certainly not in any of the proceedings or394 SOUTH WEST AFRICA
debates. Now, the fuii text can be referred to in the document. There is
a brief introduction, which does not really takethe matter further. Then
follows the amendment proposed to the recommendation regarding
interiin arrangements, which, it was suggested should read asfollows
(itwould have become No. (v)) :
- "to undertake, following the dissolution of the League of Bations
and of the Permanent Mandates Commission, the functions pre-
viously performed by the Mandates Commission in connection with
receiving and examining reports submitted by Mandatory Powers
with respect to such territories under mandate as have not becn
placed under the trusteeship system by means of trusteeship agree-
ments, and until such time as the Trusteeship Council is established,
whereupon the Council will perform a sirnilar function".
In other words, Mr. President, there was an explicit proposa1of the kind
to which my learned friends referred which would have had this Tempo-
rary Trusteeship Committee exercise the function of supervising ad-
ministration of mandates prior to other arrangements being entered into
in respect ofthem after the dissolution ofthe League of Nations. And, &Ir.
President, the strange thing, the significant thing, is that no effect was
ever given to this proposai. In fact, wefound that the report of Committee
No. 4 of the Executive Committee urhichcontained the proposals of that
Committee regarding the TemporaryTrusteeship Committeewas adopted
at the 27th Meeting of the Executive Cornmittee-that is, on18October
1945-without any reference ivhatsoever to this proposa1 of the United
States of America. The meeting was presided over by the United States
delegate, Mr. Adlai Stevenson, but no reference to the proposa1 can be
traced in any of the debates of the Executive Committee. It appears as
if this wasa document prepared with a view to making a proposal, but
that, in fact, as far as one can ascertain from the records, for some
reason or other lvhich is not explained in the records, the proposa1 was
not made.
Something similar occurred at a later stage-1 shall deal with that
whcn 1 corne to it-that is in the further stages of the matter through
the Preparafory Commission itself-1 shaii then deal further with the
significance of this situation.
The next stage, Mr. President, after the matter left the Executive
Committee, was that it went tothe Fourth Committee of the Preparatory
Commission itseIf. Up to this stage,as 1 have ernphasized, there was
nothing whatever involving a proposa1 of the kind discussed by my
learned friend-the proposa1 that this Committee was to exercise
functions ofsupervision over mandates outside oftrusteeship. The matter
was dealt with in the Fourth Committee of the Prcparatory Commission
at its Second Meeting on 29 November 1945a ,nd that is thedate upon
which Mr. Nicholls made the statement now so heavily relied upon by
my leamed friends. On that occasion the Australian delegate enplained
the reasons underlying the proposal for a Temporary Trusteeship Com-
mittee-one finds the refercnce in PC/TC/z, pages 2 to 3. Immediately
aftenvards the delegate of the Soviet Union stated his Government's
objection to the proposa1 for a temporary body, and he is reported to
have said, arnongst others, the following:
"... the Charter did not provide for the establishment of any
temporary organ on trusteeship. As soon aç trust territories esisted, REJOINDER OF .MR.DE VILLIERS 395
the permanent Trusteeship Council shou1d be established. As there
' was nothing in the Charter about the establishment of a temporary
organ, the creationof the temporary Trusteeship Committee would
not be on a constitutional basis. It was true that the General
Assembly might create an auxiliary organ, but the temporary
Truçteeship Committee as proposed by the Execütive Comrnittee
ivould not be an auxiliary but a substitute organ."
1break the quote for the moment. Thus far, there are objections purely
oii a constitutional basithe basis of law, that it would be impermissible
to have such an organ. Now the objection proceeds on other grounds:
"Considering that there were at present no territories under the
trusteeship system, there would be no work for such a temporary
body. In view of the solemn pledge concerning tnisteesliip in the
Charter,the blembers of the United Nations adrninistering mandates
could inform the General Assembly that they were willing to place
them under trusteeship."
And then we fmd, Mr. President, that further on the delegate also stated
"The temporary Trusteeship Committce would in fact delay these
provisions of the Charter rather than speed them up". So we sec the
three factors: firstly, purely a constitutionobjection; secondly, partly
a legal, partly a factual, contemplation that as long as there were no
territoriesnder the trusteeship system, tliere would be no work for such
a temporary body; thirdly, the fact that the Temporary Trusteeship
Committee would in fact delay the provisions of the Charter rather than
speed them up.
Kow one can see also, Mr. Presidentin what sense this factor of delay
was raised here by the Soviet dclegate. It isnot in the sense suggested
by my leamed friends. that this body would be esercising supervision
over mandates as mandates, outside of truçteeship, and that that would
encourage deIay on the part of the mandatories to put the mandated
territories under truçteeship proper.That is not the sense in which the
Soviet delegate spoke of delay at alI. The Soviet delegate spoke of delay
in the sense that there would be trusteeships, that they would be super-
vised by a temporary body, and that that factor would be a delaying
factor in setting up the proper system of the Permanent Trusteeship
Council. The reference,hlr. President, is to the same document as before .
at page 3.
And we find at the same page that the representative of Yugoslavia
expressed agree~ncnt with the views of the Soviet Union.
It is then that Mr. Nicholls spoke on behalf of the Union of South
Africa. He used the words (quoted by the Applicants in the verbatim
record of 7 May, on p. 141,supra) in the following context, asrecorded
in the records of the debate:
"he had followed the are.ment 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 delegate for the Soviet Union might be right, but
that was a legal question. The Committee must seek legal judgment
on this question if doubt existed among some of the Delegations.
On the question of expediency, it seemed reasonable to create an
interim body as the Mandates Commission \vas now in abeyance 3g6 SOUTH WEST AFRICA
and countries holding mandates should have a body to which they
could report. "
That isfrom the sarne document as before, at page 4.
Now, Afr. President, if this statement is read against the background
and in the context which 1 have indicated, then it becomes immediately
clear that it could never have the meaning and the significance sought
tobe assigned to itby my learned friends. In the firstplacMr. President,
Mr. Nicholls spoke after South Africa had already indicated, through its
representative, &Ir. Smit, at the San Francisco conference, what its
attitude was in regard to South West Africa and its relationship to the
United Nations in that regard. What justification is there uiider these
circumstances to assume that when Mr. NicholIs spoke of mandatories
in general, in this particular context, he had in mind the inclusion of
South Africa in respect of South West Africa?
In the previous indication given of SouthAfrica's attitude in regard
to SouthWest Africa, Mr. Smit had made it clear in the document ~vhich
is on record, in the Counter-Memorial, II, at pages 33 to 34 that:
"the Delegation of the Union of South Africa thercfore claims that
the should be terminated and that the territory should be
incorporated as part of the Union ofSouth Africa".
He intimated that the matter would be raised at the later Peace Confer-
ence and he added :
"As stated in the Memorandum, this is not a rnatter that can be
decided here, but 1 am directed to mention it for the information
of the Conference so that South Africa may not afterwards be heId
to have acquiesced in the continuance of the Mandate or the inclusion
of the territory in any form of trusteeship under the new Inter-
national Organization. "
hlr. President, against that background, as 1 Say, what justification
could there be for assuming that when Rlr. Nicholls was speaking here
in general on a question of expediency, not on a question of lalv, that
he had in mind the incluçion of the case of South West Africa? The
indications are to the contrary. As a rnatter of fact, one need not stop
at what hlr. Srnit had already said at San Francisco. One can refer to
what Mr. Nicholls stated later in this very sarne Fourth Committee of
' the Preparatory Commission, stillin the continuation of the sarne debate
on the same subject-matter. That was at the later stages, before a final
decision had to be taken as to whether there was to be a Temporary
Trusteeship Committee, or whether other propoçals inthat regard were
to be adopted. There was ai that stage already the Yugoslav proposa1
before this Fourth Committee of the Preparatory Commission, broadIv
adopted later, tvhich was to the effect that there should mercly be a cal1
upon mandatory powers to submit tmstcesliip agreements as soon as
possible, or with expedition.
That was a proposal before the Fourth Committee at the time but,
Mr. President, the proposa1for a Temporary Trusteeship Committee was
still there. The Fourth Committee still had to corne toa decision whether
to adopt the one or the other or rnaybe something else. And it is under
those circumstances that hlr. Nicholls made the statement of 20 Decern-
ber 1945 which we cite in our Counter-Mernorial, II,at page 4r. He stated
there-that he- REJOINDER OF &IR.DE VILLIERS 397
"reserved the position of his Delegation until the meeting of the
General Assembly, because his country found itself in an unusual
position. The mandated territory of South-West Africa was already
a self-governing country, and last year its legislature had passed
a resolution asking for admission into Union. His Government had
replied that acceptance of this proposal was impossible owing to
their obligations under the mandate.
The position remained open, and his Delegation could not record
its vote on the present occasion if by so doing it would imply that
South-West Africa was not free to determine its own destiny. His
Government would, however, do everything in its power to imple-
ment the Charter."
That, Rlr. President, was stated as a reservation by the self-same
Mr. NicholIs in the later stages of the very same debate. What justi-
fication, then, is there for my learned friend to suggest either that
Mr. Nicholls thought that there was an obligation on the part of manda-
tories generally to submit to United Nations supervision, outside of
trusteeship, or that lie intended, in speaking of this possibility of report-
ing by mandatories to a temporary body, to include South Africa or the
case of South West Africa in that suggestion at all?
The matter becomes, if anything, even clearer when we see what
Mr, Bicholls said three days later-threedaysafter this last reservation-
when the matter came before the Plenary hleeting of the Preparatory
Commission. Ive quote his statement, made on 23 December 1945 n the
Counter-Mernorial, II,at page 41.The tenor is much the same as the
previous one but there isone particular aspect of it to which 1should like
to invite the Court's attention.1 am not reading the wholc of it; only
the second sentence which reads-
"In view, however, of the special positionof the Union of South
Africa, which held a mandate over South-M'est Africa, it reserved
its position with regard to the document at present under review,
and especially because South Africa considered that it had fully
discharged the obligations laid upon it by the Allies, under the
Covenant of the League of Xations, on the advancement towards
selfgovernment of territories under mandate."
Mr. President, when having that view of the matter, that contem-
plation of the situation, that South Africa had fully discharged its
obligations laid upon it under the Mandate, how could there have been
any contemplation on thepart of Mr. Nicholls that there was to be any
reporting or accounting to a temporary body by South Africa inrespect
of South West Africa? My submission is that it just does not mnke sense.
There is not one iota of justification for suggesting that hlr. Nichoils
to include South West Africa in his remark, whatever his
intended
remark was intended to mean.
Next, Mr. President, on the question as to whether Mr. Bicholls
considered that there was any legal obligation at all, the question is
already partly answered by what 1said in regard to the special position
of South West Africa and the attitude he took in that regard.How could
he have considered that there was any possibility of reservations of the
kind indicated if he thought that there was an obligation to submit to
supervision on the part ofthe United Nations, even outside trusteeship?
But apart from that, taking hlr. Nicholls' view generally in regard to the SOUTH WEST AFRICA
39s
position of mandatory powers in respect of their mandates and with
reference to possible United Nations supervision, it should be observed
that Mr.Nicholls didnot make kis suggestion in answer to the contention
of the Soviet Union that the establishment of a temporary body would be
unconstitutional. In fact, Mr. Nicholls did not purport to take up the
Soviet delegate on that point on a legal basis atau.He indicated that if
there was uncertainty on that matter then legalopinion or legal judgment
had to be obtained in that regard.
he made this remark,lf spon which my learned friends so heavily rely,n
inasmuch as, in his words, "it seerned reasonable to create an interim
body" inasmuch as "countries holding mandates should have a body to
which they could report ".
Now, Alr. President, taking those words "a body to which they
could report" alone, that immediately indicates, according to the
natural meaning of the words, apossible wish on the part of such bodies
to report-a body to which they could report. Furtherrnore, the rnere
fact that he said 'lit seerned reasonable to create an interim body" for
such a purpose, in circumstances where there had never even been a
proposa1 that the temporary body was to serve such a purpose, that
indicated in itself that he contemplated a need for the creation of special
machinery of this kind in order to bring about any obligation at all.
Otherwise, wh would it be necessary to have the special body for such
a purpose, ancrwhy should he have referred to that in the context of a
debate where there was no forma1proposa1 before the meeting at al1to
the effect that this body should have powers of that kind?
So, Mr. President, the ordinary and natural explanation which the
context suggests for this suggestion of hlr. Nicliolls is simply th:sthat
in the case of mandatories who were intending to place the particular
rnandated territories, or some of them, under their control under the
trusteeship system, in those cases it would be reasonable for them to
wish to carry on with a system of international accountability and
reporting, and they rnight therefore, in respect of those cases, wish to
have a body to which to report. And it would therefore, as a rnatter of
expediency, seem reasonable to create a body of that kind-this in
answer, apparently, to the suggestion of the Soviet delegate that outside
ofthe creation oftrusteeships there would be no work for such a body to
do. But there is nothing, Mr. President, nothing in our submission which
suggests any contemplation of an obligation of any mandatory in respect
of nny territory to do so.
So, Mc.President, that is one of the reasons why 1suggested that my
learned friend might have wished for a stronger foundation for his case
than this, so-often referred to, suggestion of AZr.Nicholls.
But the matter goes very much further when we consider it in its
delegates, and, particularly, by other Mandatories. The Court will recall
the passages which 1read out earlier this afternoon in ~vhichmy learned
friends sostrongly relied upon the proposition that other Mandatories,
especially mentioning the United Kingdom and Australia by name,
agreed with Mr. NicholIs in this regard, that they were favouring the
idea of a temporary trusteeship comrnittee with a view to its exercising
this interim fonction of supervision over mandates, even prior to other
arrangements being agreed to. REJOINDER OF MR. DE VILLIERS
399
Mr. President, when one Iooks at the actual records one fiiids that
neither the United Kingdom nor Australia nor any other delegate or
country taking part in the debates favoured such a function for a
temporary body. The United Kingdom and Australia both spoke in
favour of the creation of such a temporary body, that is true, but what
visualized for the temporary body, as set outlated in the records of thets
Executive Committee andits sub-cornmittees, to which 1referred earlier,
without any reference whatsoever to a possible function of supervising
mandates outside of trusteeship.
The record ofwhat the United Kingdom and Australianrepresentatives
said in the Preparatory Commission-that is when the matter came to
the stage of the Preparatory Commission-is in the same document as
before-P.C.T.C. 2, pagc 4, for the United Kingdom, and page 5 for
Australia. Both of these countries had taken part in the debates and
discussions also at the earlier stage in the Executive Committee. (We
could give those references to the Court later-we intended to have them
ready.) But, again, on our checking of the situation, Ive have found
that there %vasnoi onc instance of any of them suggesting that a tem-
porary trusteeship cornmittee was to be created for this purpose-the
purpose of supcrvising mandates outside of tmsteeship. What they did
indicate, and what seems to have been indicated in general in the course
of the debates, was the possibility that there could be supervision of
trust areas after certain mandated territories had been placed uiider
trusteeship, but before the trusteeship committee could beginto function.
In that sense, then, the temporary committee would be exercising, on a
temporary basis, some of the functions contemplated for the permanent
body.
So, Mr. President, in these earlier statements, which 1 read out to
the Court, itwill be quite evident that tlie Applicants were wrong when
they said, for instance, that "the proposa1 for a temporary trusteeship
committee was made bÿ three mandatory powers, including the Res-
pondent", and when they sâid that "Respondent, dong with the other
mandatories, including the British Government, suggested the establish-
ment of interim machinery to which to report" (szrpra,pp. 153and 155).
and when they ended up by saying "the mandatory powers wanted that
supervision to be carried out by an interim or temporary body prior to
the establishment of the Trusteeshjp Committee".
It is on this basis (and, 1think 1 have demonstrated, a false basis)
that my learned friends have sought to elevate Mr. Nicholls' statement
to such tremendous importance in their case, as a basis on which they
now build their whole argument regarding consent by Respondent to the
United Nations supervision of the Mandate. It is on this basis that they
almost challenge us and Say Mr. NicholIs has not found any "niche" in
Respondent's case. We find them saying that, or words to that effect,
has never been necessary for Respondent to find a "niche" for Mr. Ni-t it
cholls' statement anpvhere in its case before, because this is the first
time that we now hear from the Applicants that Mr. Nicholls' statement
is to be given this strange signilicance, and that the other Alandatories
are to be associated withthat significancein the manner suggested by the
Applicants, that is, in such a way that everything that followed after-
wards-including al1statements on behalf of Mandatories and the final400 SOUTH WEST AFRlCA
resolution of the League-is to be interpreted in the light of what was
initially suggested byMr. Nicholls hearing the significance attached toit
by the Applicants.
The Applicants, Mr. President, seem to have forgotten that this was
not the first time that they referred to Mr. NichoUs' statement. This
very statement was also quotcd by nly learned friendç in the 1962 Oral
Proceedings, but then, of course, astheCourt wiii recall and as 1indicated
earlier this afternoon, the Applicants were not attempting tomake acase
of consent by Respondent to United Nations supervision, they were
then contending that the 1950 Opinion was decisive and that consent
played no part in the Court's reasoning in that Opinion. And, sa, it is
quite in keeping with that contention, that we find that their version
then of the evenis in the Fourth Committee of the Yreparatory Commis-
sion took a cornpletely different lineThey did not then associate any of
the other Mandatories with the views of Mr. Nicholls. We find in the 1962
Oral Proceedings, VII, at page 269,that the following was stated-1 think
by my learned friend, Mr. Gross:
"At the same meeting of Comrnittee q of the Prcparatory Com-
mission South Africa supported the view that creation of an interirn
body might expedite the establishment of a Trusteeship Council and
added a proposal, not disciisscd by any other delegation, that a
Temporary Trusteeship Committee might supervise administration
of Mandated territories."
And this we find repeated, hlr. President, at page 271 of that record:
". ..the Respondent strongly supported proposais for establishment
of a temporary tmteeship cornmittee, and even suggested that
it might supervise administration of Mandated territories".
Here Ive have it veq definitely, "a proposal,not discussed by any other
delegation", which, of course, is true-that isas it was. If my Iearned
friend had only added there that hlr. Nicholls' statement waslaointended
to apply to a11mandated territories, then it would hardly have been
possible to have had any quarrel rvithit whatsoever.
Nom, Mr. President, not only it iscIear that Mr. Nicholls' suggestion
was not discussed by any other delegation, not only is it clear that there
\vas at that stage no proposa1whatsoever before the relevant bodies (which
was in this case the Fourth Committee of the Preparatory Commission),
for interim supervision of the kind suggested by Mr. Nicholls, but it
appears also, from a further and a closer study ofthe record, that there
is certain very material and crucial evidence, which is not before the
Court and lvhich was not before the Court in 1950. In fact, we found
that the library record of this Court was, in this respect, incomplete, and
we only came to know of the further evidence, to which 1 should now
like torefer the Court, during the course of the Applicants' reply, through
certain reçearches conducted by my learned friends here, which led them
on to the track of the particular documents and which we eventually
obtained from America-from the United Nations records themselves.
Ie have certified copies available for the Court. The matter raises a
formal question of documentation.
In the course of studying this matter, my leamed friends came across
the document PC/EX/gz, Addendum 1,which is the one from which 1
quoted earlier-the written proposed amendment by the United States
of America regarding the functions of the proposed ternporary body, REJOINDER OF MR, DE VILLIERS 401
as already drawn up inOctober at the stage when the matter was before
the Executive Committee and its sub-committees. That document is on
record here.
My learned friends a1çofound a part of a document which was num-
bered PCITCJII, which appeared to be also a proposed amendment
fded by the United States of Arnerica at a later stage in the proceedings-
this is after the matter had come to the Preparatory Commission itself,
in its Fourth Comrnittee. As1 Say, the document is incomplete-there is
only one page of it in the records of the library of this Court-istops
at the end of the first page and it seems to be obviously a document
that runs on.We, therefore, obtained the original of this document from
the records in America. We have ten certified copies of it available.
We aIso obtained a certified copy of another document lvhich is missi~ig
here, namely PC/TC/3o, which was a circulated speech of Mr. Green,
the representative of the United States of America, at the Ninth Meeting
of the Fourth Committee of the Preparatory Commission, which is a
speech which has some bearing upon the matter. The whole of this
document is missing from the Court's records and, as 1 Say, part of the
former document is missing.1 do not know whether the Court would
prefer us to go through the ordinary stages of presenting a new document.
It rather seems to be just a case of omission in the records. We have
a number of certified copies available which could be made available
in the library too. Perhaps the forma1 aspects of it couldbe discussed
later-the Court could indicate to us through the Registrar what it
~vishes in that regard. lile have available ten certified copies of each
document for inspection by the Court and by my learned friends.
&Ir. President, this first document which is PC/TC II,is dated 4
Decernber 1945. It is headed "United States Delegation", and it reads
as follows:
"PROPOSE DMENDMEN TT PARTIII, CHAPTEIR V, SECTIO N,
PARAGRAP 4, CONCERNING FUNCTIONS OF THE TEMPORARY TRUSTEE-
SHIP COUMITTEE.
I.The Report by the Executive Committee makes no provision for
any organ of the United Nations to carry out the functions of the
Permanent Mandates Commission. In Part III,Chapter IX, dealing
with the League of Nations there occurs the following statement:
'Since the questionsarisingfrom the winding up of the Mandates
system are deait with in Part III,Chapter IV, no recommendation
on this subjectis included here.' (Sectio3.paragraph 5,page 110.)
No specific reference to the functions of the Permanent Mandates
Commission is to be found, however, in ParIII,Chapter IV.relating
to the trusteeship system. Sectio n, paragraph 4 of that Chapter
(page 56) merely assigns to the Temporary Trusteeship Committee
a general advisory function in this field: '(iv) advise the GeneraI
Assembly on any matters that might arise with regard to the transfer
to the United Nations of any functions and responsibilities hitherto
esercised under the Mandates system.'
2. In order to providea degree of continuity between the mandates
system and the trusteeship system, to permit the mandatory powers
to discharge their obligations,and to further the transfer of man-
dated territories to trusteeship. the Temporary Trusteeship Com-
mittee (or such a cornmittee as is eçtablished to perform its functions)402 SOUTH WEST AFRICA
and, later, the Trusteeship Council should be specifically enlpowered
to receive the reports which the mandatory powers are now obligated
to make to the Permanent Mandates Commission. The existing
obligations and rights of the parties involved under the mandates
system with respect to any mandated territory continue in force
until such territory is placed under trusteeship by an individual
trusteeship agreement or until some other international arrangement
is made. To bridge any possiblegap which rnjght exist betlveen the
termination of the mandates system and the establishment of the
tmsteeshipsystem, it would appear appropriate thatthe supervisory
functions of the Permanent Mandates Commiçsion should be carried
on temporarily by the organ of the United Nations wliich is to
handle trusteeship matters.
3. Inorder, therefore, that the report of the Preparatory Commission
may be compiete in this respect the following amendment is pro-
posed.
4,Amendment
Add a new subparagraph (v) to paragraph 4of Part III, Chapter
IV, Section 2,to be worded as follows:
'(v) undertake, following the dissolution of the League of Nations
and of the Permanent Mandates Commission, tu receiveand examine
reports submitted by Mandatory Powers with respect to such
territoriesunder mandate as have not been placed under the
tmsteeship system by means of trusteeship agreements, and unti1
such time as the Tmsteeship Council iseçtablished, whereupon the
Council will perforrn a similar function'"
This proposa1 then, Mr. President, was filed on 4 December, five
days after Mr. Nicholls' speech of 29 November, in the course of the
same proceedings in the Fourth Cornmittee of the Preparatory Com-
mission.
The Court will note a contemplation here, a rcference in the second
paragraph to the fact that the mandatory powers were then-that was of
course before the dissolution of the League-"obligated to make reports
to the Permanent Mandates Commission". One sees a contemplation
further that as at that stage the existing obligations and rights of the
parties involved under the mandates system would continue in force.
They would continue in force either until the territory was piaced under
tmsteeship by an individual tmsteeship agreement or until somc other
international arrangement was made-another international arrange-
ment as contemplated at the stage of the writing of this document,
including possible arrangements at the dissolution of the League. So one
finds that the very next sentence goes on to speak of this problem of the
bridging of "any possible gap which might exist between the termination
of the mandates system andthe establishment of the trusteeship system".
And it ifor the purpose of bridging thatgap that itis suggested that the
supervisory functions of the Permanent Mandates Commission should be
carried on temporarily by the organ of the United Nations which is to
handle trusteeship matters. This goes further, therefore, than al1 the
previous contemplations that this temporary body was to esercise
temporarily functions of the permanent body but not that it was to
exercise functionç of the Permanent Mandates Commission. In this REJOINDER OF MR. DE VILLIERS 403
document, however, there was a specific proposa1 directed to the end of
securing that result.
We found that according to the records this proposa1was placed on the
agenda of the Fourth Cornmittee of the Preparatory Commission for the
Ninth Meeting held on IO December 1945 .1-hatwe see in the document
PC/TC/3r at pages 21 and 22.But when we corne to that meeting, Mr.
President, we find that the proposa1 was not discussed at ail. We find
that the representative of the United States, Mr. Green, delivered a
lengthy address at that very meeting, which is on record, and in that
address he did not even mention this proposal contained in PC/TC II
which 1have just read out.
Nr. President, in dealing with the practical advantages of the idea of a
ternporary trusteeship committee, which idea he was supporting, he
showed concern only with regard to territories that might be submitted
to trusteeship before the coming into being of the permanent Trusteeship
Council. He showed concern that in those cases there would be no organ
which could exercise supervision until the permanent Council came into
being. So we find, hlr. President, that he posed this question in his own
words :
"Who looks after the territories which have been submitted to
trusteeship (in the absence of the Trusteeship Council)?(PC/TC/~I,
p. 23, and PC/TC/p, p. 8.)
\jTehave, therefore, this very strange but in my submission very
significant situation. Here is a specific written proposal by the United
States which went on record and which was intended to be dealt wvithon
the agenda of a particular meeting but when the meeting is held, no
mention was made of it at all. It was simply dropped and nothing was
said.1 submit that the inference is inescapable that there must have been
some reason for tliat, and the most probable renson inthe circumstances
would be discussion between the United States delegation and other
delegations which resulted in the matter being seen in a different light
or a proposal of this kind not being proceeded with. In other words,
3Ir. President,a situation very nearly the sarnein principle as we found
in regard to the first proposaby China at the last meeting of the League
Assembly, which after discussion had tu be superseded by another
proposal, leading to the obvious inference that itas made clear that the
first one could not have obtained the necessary support.
It may well be, Mr. President (we are speculating, 1 do not know, the
record does not say), thatthe other mandatory powers might have said to
Mr. Nicholls and rnight have said to the United States: this is Our
business; we have to negotiate trusteeship agreements eventually with
the United Nations in respect of the territories which we intend to place
under trusteeship. For that purpose, we wish to obtain satisfactory terms.
If we areto be placed bythe United Nations, by our consent beforehand,
under general supervision as wide as that which operated in the case of
the League systern, then our bargaining position may weii be affected.
It may well be that these mandatory powers indicated to Mr. NichoUs
-"vou cannot talk for us, when you have excluded yourself from this
situation-~ve do not want it" andit may well be that anattitude of that
kind \\*asindicated to the United StatesofArnerica. 1 do not know, 1 am
merely pointing to the record ~vhich,in my submission, is a very signifi-
cant one in this respect.404 SOUTH WEST AFRICA
That provides us with the basis, Mr. President, for considering the
further suggestion by my Iearned friends about the compromise which was
said to have been entered into between two ideas-the pledges system.
Now, it is significant in that regard, first of all, that in the Fourth
Cornmittee, that is of the Preparatory Commission, various delegations
proposed that instead of having a temporary trusteeship committee, the
mandatory powers should make declarations of their willingness to put
their respective mandated territories under the trusteeship sy stem. We
found that Yugoslavia made thatsuggestion in PC/TC4, at page 8; India
in PC/TC 32, at page 24, and China in PC/TC32, at page 26. That was
then a suggestion that there should be a decision to the effect that
mandatory powers should make declarations of their willingness to place
their mandated territories under the trusteeship system, but thisugges-
tion also, as we know, was not accepted because in the end the resolution,
whch is on record, and which eventuaiiy became resolution XI at the
first part of the First Session of the General Assembly, in effect, as the
Court will recall, merelycalled upon mandatory pou7ersto expedite the
submission of trusteeship agreements, in order to submit them for approv-
al preferably not later than the second part ofthe First Session of the
General Assembly. There was no calling upon them to make any state-
rnents whatsoever whether in the final resolutions of the General Assem-
bly or in the resolution eventually adopted for recommendation in the
Fourth Committee of the Preparatory Commission or in the Plenary
Session of the Preparatory Commission itself, because at that stage
already the report of the Fourth Cornmittee, as one sees from PC/TC 41,
at page 2,contained what eventually became the Assembly resolution XI
with very minor variations in wording.
Now, Mr. President, we find that the reasons why the temporary
trusteeship committee proposa1 was rejected by the Fourth Committee
were explained at the Fourth Plenary Meeting of the Preparatory
Commission held on 23 December 1945 .Ve find that explanation in the
United Nations Jot~rnal,No. 27, at pages Iand 2.The first reason given
was that the delegations of certain States objected to the proposa1 for a
temporary committee on the ground that the formation of such a body
was not authorized by the Charter, and that the establishment of such an
organ would therefore be unconstitutional. The second reason Ras that
the delegates were divided on the question tvhether the proposed ternpo-
rary committee would have the effect of accelerating or delaying the
establishment of tlie Permanent Trusteeship Council.
The Applicants were therefore, inOur submission, clearly wrong when
they said, as theydid on 7 May in the verbatim record:
"The proposal was turned down essentiallÿ for the pragmatic
reason that it might tend to encourage delay in setting up the
Trusteeship Council." (Supra,p. 141.)
The main argument advanced by the Soviet Union and other States
which objected to the establishment of the temporary body was that it
would be unconstitutional.
The Applicants' argument, Mr. President, entirely ignores this fact
and also ignores the fact thatthe Soviet Union was the main objector and
stated explicitly that until other tmsteeship agreements had been
concluded there would be no work for such a temporary body, which is
entirely in keeping, incidentally, Mr. President, with the attitude REJOINDER OF MR. DE VILLIERS 4O5
consistently taken by the Soviet Union in this matter, viz., that there
was to be no legal continuity between the mandates system of the League
andthe trusteeship system of the United Nations.
Now, to revert, Mr. President, to these suggestions that there should
be a decision or a resolution calling upon Mandatories to state their
willingness or their intent to place their Territories under trusteeship,
which was not accepted, we find that the Applicants' argument is that
by plan and design a different systern of pledges was devised as a com-
promise, namely pledges "to carry out al1the obligations of the Mandate,
including the obligation to subrnit to international supervision . ..until
other agreed arrangements could be made". That is quoted from the
verbatini record of 7 May, at page 146, supra. Yet, Mr. President, we
have seen that there was no resolution whatsoever to which they could
refer, no resolution calling for any statements whatsoever by any
mandated powers. Yet my leamed friends Say, on the one hand-Iet us
see what were the opposing ideas between which this compromise solution
was arrived at-"the mandatory powers wanted that supervision [that
is of mandated territories] to be carried out by an interim.. .body prior
to the establishment ofthe Trusteeship Council", while, on the other hand,
they Say "other governments ... pressed for pledges by the mandatory
powers to place these territories under the trusteeship systern". Soitwas
between these two that the c.mpromise was reached. (These quotations
are from p. 146, supra.)
The system of pledges, Applicants Say, \vas decided upon by plan and
design-by plan and design there was to be a system of pledges-although
they can point to no resolution in that regard. But that system of pledges
was not designed to place mandated territories under trusteeship. It was
to be a system of pledges to carryout a11the obligations of the Mandate,
including the obligation to submit to international supervision until
other agreed arrangements couid be made.
&Ir. President, in the first place the Applicants offer no evidence
whatsoever in support of this so-called compromise plan or design, they
do not point to any part of the record which shows that tliere was such
a compromise, that anybody was aware of it, that anybody spoke of it,
that there is any kind of arecord of it whatsoever. Indeed, they cannot
point to anp evidence, Mr. President, because the whole suggestion is,
with the greatest respect and with the greatest submission, a figment of
their imagination. It is entirely in confiict with the true history of the
events. In any event, Mr. President, before we proceed with the factuaI
record, ivhat kind of a compromise would this have been? In my sub-
mission, it does not work out, it does not make sense.
On the one hand, we have mandatory powers, which as suggested by
the Applicants, now wished to have a temporary body which could
supervise mandatory administration even outside of trusteeship. 1 have
alreadÿ sho~vn that factually that is a false premisebut let us take it at
its face value for the moment. That is not agreed to by the other States
because thev think that too much delay would be involved through
following a process of that kind. Now, we already have inherent in this
whole clash ofideas that the Parties are agreed, according to the Appli-
cants,about the ideals and objectives; they are ageed about the objective
of having the trusteeship system operating as soon as possible; they are
agreed about the objective of having continuity of supervision over
mandatory administration. Those are the objectives, but they are dis-40~ SOUTH WEST AFRICA
agreed upon the methods which are to be resolved upon with a view to
attainment of those objectives. So we have a contemplation, on the one
hand, that machinery 1s to be created-special machinery-in order to
provide for this contiauity, the contempiation, therefore, that this
machinery is necessary, but also a contemplation, from the other side,
that it iç undesirable to have that macllinery and that, therefore, there
slxould be no suc11machinery.
Mr. President, in those circurnstances what sense does it make to say
tliere was neverthelessacompromise to the effect that mandatories would
pledge themselves to carry on with al1their obligations under the man-
dates systein, includingan obligation of accountability, until the tnistee-
ship system might eventually corne into operation or until other arrange-
ments were made, when by that very same contemplation there would
nol be the necessary element of the provision of machinery for that
purposc? The two ideas are so fundarnentally in conflic~4th one another
that it shows that the whole suggestion of the compromise plan and
design in this respect just does not make sense. But, in addition,a1have
said, it iwotin accord with the actual facts on record.
[Public heaviflgof 25May 19651
Jlr. President,1 promised yesterday to give the Court references to the
participation by the United Kingdom and Australia in the debates of the
Executive Comrnittee of the Preparatorjr Commission on the subject of
the proposa1 for a Temporary Trusteeship Comrnittee. 1 have here the
loose minutes, as they are probably known tothe Court, of the Executive
Committee in Plenary Session, dated 19October 1955 ,nd the references
are from page g onwards. The Court will see that the representatives of
the United Kingdom, Professor Webster, at page IO, hlr. Haslock of
Australia, at page II, and the Chairman, who was frorn the United
States, took part in the debates; and then again, at page 12, the rep-
resentatives of France, Auçtralia, and the United Kingdom. 1 think
those will give a representative indication of the attitudestaken in the
Executive Cornmittee.
At the conclusion yesterday, Mr. President, 1 was dealing with tIie
Applicants' suggestion of a "compramise plan or design" which was said
to have been arrived at in the United Nations Preparatory Commission
between the mandatories and other States. As the Court will recall, the
suggestion was that the mandatories wanted supervision by an interim
body, whereas other States wanted pledges by mandatories to place the
mandated territories under trusteeship. The compromise was said to be
that the mandatories were to piedge themselves to carry out al1 the
obligations of the mandates, incIuding submission to international
supervision, until other arrangements were agreed upon.
1subniitted, Mr. President,with respect, that this doenot make sense,
even on the AppIicants' own premises, for the reasons which 1 indicated
yesterday; and 1promised to demonstrate to the Court. also, that the
submission was in any event in complete conflict with the true factsas
they emerge from the record.
In the first place,as we have indicated, the Applicants are entirely
wrong when they say that the mandatorp polvers, in supporting the
proposal for a Temporary Trusteeship Committee, wanted supervision
of their mandated territories before trusteeçhip agreements were con- REJOINDER OF MR. DE VILLIERS
4O7
cluded. We have shown, also, what Mr. Nicholls apparently meant in
that regard, and we have show that the other mandatories obviously
did not agree even with his limited suggestion. That, in itself, would
really dispose of the Applicants' argument.
But, Mr. President, the argument is in our submisçion further com-
pletely controverted bywhat actually occurred when the proposa1for the
the proposa1 was rejected there was also a rejection of the other proposa1
which 1 mentioned yesterday, namely that mandatories skouId be called
upon to make declarations of their willingness to submit their mandated
territories to the trusteeship system. In place of both these proposals
came the proposai that the General Assernbly should merely caUupon
the mandatories to expedite the submission of trusteeship agreements,
which proposa1was eventually ado ted in the General Assembly resolu-
tion No. XI of g February 1946. (1f'p. 43.)
So, Mr. President, in the result there was no calling upon mandatory
powers to make any pledges at all. Yet we find that the Applicants
speak of pledgeswhich were linkedwith a speechwhich the New Zealand
Prime Minister, Nr. Peter Fraser, had made at the San Francisco Con-
ference. I referred the Court yesterday to the verbatim record of 7 May,
at pages 139 and 143, supra, and 1read an extract showing the manner
in which this point was dealt with by the Applicants. It may be as well
to check first on that aspect beiore referring to the further events which
followed those in the Preparatory Commission. Mrehave to go back to
the San Francisco speech by Mr. Peter Fraser.
hIr. Fraser in this speech was referring to the provisions of the Charter
for the establishment of the Trusteeship Council, and he then said the
following :
"The work immediately ahead is how those mandates that were
previously supervised by the Mandate Commiçsion of the League
of Nations can now be supervised by the Trusteeçhip Council with
every mandatory authority pledging itsclf in the first instance as the
test ofsincerity demands, whatevermay happen to the territory after-
wards, to acknotvledge the authority and the supervision of thjs
Tmsteeship Council." (Szspra,p. 140.)
Noxv,JIr. President, 1 would, with submission, Say that the natural
interpretation of this statement is that Mr. Fraser was enjoining the
mandatory powers to place their mandated territories under trusteeship.
There are mkny reasons, quite apart from the text which appears to be
clear, why he cannot be understood to have suggested that mandatories
should acknowledge the authority and the supervision of the Trusteeship
Council in respect of mandated temtories not converted to trusteeship.
The Court will recall from the record that no mandatory in fact ever
gave a pIedge to acknowledge the authority of the Trusteeship Council
outside of the trusteeship system.
And the Court will further recall from passages which 1 cited to the
Court on the attitude of New Zealand-passages which 1 cited in my
argument in chief-that New Zealand was, on occasion, very emphatic
in denying that itowed anyduty of accountability to the United Nations
outside of trusteeship.
Thus, al1 the indications-the natural rneaning, the context, the
probabilities as to what he meant are that Mr. Fraser was simply urging408 SOUTH WEST AFRICA
the mandatory powers to place tlieir territories under trusteeçhip and,
in that sense, and for that purpose, to acknowledge the authority and
supervision of the Trusteeship Council whatever might happen to the
territories aftenvards, "aftenvards" meaning after tmsteeship.
The impression to the contrary which the Applicantç creato, Mr. Pres-
ident, is, my submission, dueentirely tothe interpolation in Mr. Fraser's
speech of the words to which 1 drew attention yesterday, viz., thewords
"until other arrangements were concluded", words which occur in the
vcrbatim record of 7 May, at page 143, supa, but which Mr. Fraser, in
fact, did not use.
But, %Ir. President, what is perhaps the most important factor of
ailto refute the Applicants' suggestion of a compromiseplan, or design, is
the veryfact that declarations wereindeed made by themandatory powers
very shortly after the deliberations in the Preparatory Commiçsion, but
that these were not declarations or pledgeç of the nature deçcribed by the
Applicants. That is perhaps the surest test of all, in order to ascertain
whether they are correct in suggesting that there was a basic plan,
design, or compromise, in pursuancc of which the mandatory powers
acted afterwards. Because whcn that is put to the test, we find that
imrnediately after the matter went frorn the f'reparatory Commission
to the General Assembly itself, certain declarations lvere, in fact, made
by mandatory powers. Thiç was in the First Part of the First Session of
the General Assembly, when the report of the Preparatory Commission
was under consideration.
In Our Counter-Mernorial, II, at pages 41 to 42,we citeextracts from
declarations made by certain of the mandatory powers-South Africa,
the United Kingdom and France-on this occasion. Itisvery clear, in
our submission, from those statements, that not one of these mandatories
had in mind any pledges of the nature contended for by the Applicants.
South Africa's statement, which is to be found at page 41 of that
VoIurne, was a reservation of the same nature as before-a reservation of
its whole position regarding South West Africa-for substantially the
same reasons as those given before-pending consultation with the
people of South West Africa as to the fom which their own future
government should take. There was therefore no suggestion whatever of
a pledge of the nature contended for by the Applicants.
The United Kingdom statement, or the extract therefrom lvhich tve
cite,içto be found at page 42 of that Volume. That indicated willingness
on the part of the United Kingdom to place certain territoriesunder
trusteeship, but depending on the negotiation of satisfactofy terms. The
position regarding Palestine was explicitly resemed pending the report
of the Anglo-American Cornmittee of inquiry, and the intention was
further expressed to accord independence to Transjordan. Again,
Mr. President, there wasno rcference to carrying on with mandate obliga-
tions pending new arrangements, and certainly nothing regarding super-
visionin the interim.
France, in a staternent cited at page 43 of that sarne Volume of the
Counter-blemorial, indicated an intention to enter into trusteeship
regarding Togo and the Cameroons, again subject to satisfactory terms
being agreed upon. Furthemore, the same remarks apply as inthe case
ofthe United Kingdom in regard to the suggested pledge.
The other mandatories also made declarationç. To these we refer at
page 43 of the same Volume of the Counter-Mernorial without, however, REJOlNDER OF hlR. DE VILLIERS 4O9
quoting them there. It may be significant to refer to portions of the texts
of certain of these declarations.
The representative of New Zealand stated the following (the reference
is to the GeneralAssembly, OficialRecords, 14th Plenary hleeting, 18 Jan-
uary 1946, at pp. 226 to 227).
"The New .Zealand delegation has studied with interest the
Chapter of the Report of the Preparatory Commission which
concerns trusteeship. It welcomes the fact that the Commission did
not see fit to proceed with the proposal of the Excutive Cornmittee
for theestablishment of aTemporary Tnisteeship Committee, i11order
that the trusteeship machinery described in the Charter may be set
up. Three stepsare necessary for that. The first is that al1the Powers
liaving responsibility for the government of dependent peoples
should announce their willingness to place their respective territories
under trusteeship. The second is that trusteeship agreements should
be concluded. The third step is that the Trusteeship Council should
be set up."
The representative of New Zealand then announced his Govemment's
preparedness to place Western Samoa under trusteeship. Again, hIr.Pres-
ident, there is not a word ofa compromise plan, or design, or of a pIedge
to submit the Mandate to United Nations supervision outside of tmstee-
ship.
The Australian delegate's speech is to be found in the same record to
which 1 have referred, at page 233. He stated the following:
"At the Executive Committee stage of the Preparatory Commis-
sion's work, my colleague, 13r.Evatt, was responsible for yutting
fonvard the first coiicrete proposals for ensuring the early operation
of tl-tese chapters [i.ethe proposa1 for a Temporary Trusteeship
Committee]. At tlie Preparatory Commission itself, the Australian
delegation, in a spirit of conciliation, accepted the alternative
procedure which has now been recommenced." (G.A., O.R., 14th
Plenary hleeting, 18 January, 1946, p. 233.)
The alternative procedure was, of course, that the General Assembly
should cal1 upon the mandatory powers to expedite submission of
trusteeship agreements, as we noted beforc.
The Australian delegate procceded to announce his Govcrnment's-
"... intention of negotiating an appropriate trusteeship agreement
with a view to bringing the RIandated Territory of New Guinea under
the international trusteeship system ...". (Ibid.)
Again, hlr.President,there is no word of a compromise plan, ordesign,
or pledge of any intention regarding obligations pending entering into an
appropriate trusteeship agreement.
The representative of Bclgium's statement is to be found in the same
record, at page 238. 1 shall read an extract:
"... the Preparatory Commission has passed a recornmendation that
the General Assembly should adopt the resolution according to
which States administering territones under a mandate from the
League of Xations shall be invited, in agreement with the other
States directly concerned, to takc the nccessary measures forputting
into effect Article 79 of the Charter which provides for the conclusion SOUTH WEST AFRICA
of trusteeship agreements in respect of each territory to be placed
under this system. Desiring to promote the application of the trustee-
ship system at the earliest possible date, Belgium hereby announces
her intention to start negotiations irnmediately with a view to
placing under trusteeship the territory of Ruanda-Urundi .. ."
Again, &Ir.President, the sarne comment applies as in the case of the
previous citations.
In its eventual resolution of g February 1945, resolution No. XI,
the General Assembly, prior io calling upon the mandatory powers to
expedite the submission of trusteeship agreements, also-
"... Welcome[d] the declarations, made by certain States ad-
ministering territories now held under Mandate, of an intention
to negotiate trusteeship agreements in respect of some of those
territories and in respect of Transjordan to establish its indepen-
dence". (II,p. 43.)
We have here a surnrnary rendering of the gist of the staternents of
some of the rnandatories prepared to negotiate tmsteeship agreements.
It emphasizes by careful wording that it did not apply to al1mandated
territories, and also, by omission, the point 1 have just been making,
namely that tliere wasno reference whatsoever to the type of pledge to
~vhichmy learned friends referred.
Mr. President, in rny submission, these declarations in themselves
destroy the whole idea of the Applicants' so-called compromise "plan or
design", in support of ~vhichno evidence whatsoever was tendered by
them to the Court.
From this, Mi- . resident, it foliows, if we move along toward the last
session of the Lcague Assernbly, that the Applicants' whole approach
to the declarations made by the mandatories on that occasion is also
unsound. There is no support whatsoever for the suggestion that those
declarations by the rnandatories are to be read as emanating from an
a firiori plan, or design, for pledges to submit to United Nations super-
vision.On the contrary, that suggestion is in conflict with althe events
with ~vhichwe have just dealt.
It is quite clear, Mr. Preçidentthat the Applicants' analysis ofthese
declarations, as they now present that to the Court in their oral reply,
indeed proceeds on the basis that their version of the proposa1 for a
Temporary Trusteeship Cornmittee and of the reason for the rejection of
the proposal, is correct. We find that they deal with this matter in the
verbatim record of 7 May-there is a relevant passage at page 148,
supra, which confims what Ihave just stated, and 1need not read that
because in the same record of 7 May, at page 150. sujtwa, there isa
further passage which substantially repeats the earlier one and takes it
a little furtherIt reads as foliows:
"The fact that the Preparatory Commission rejected thiç çpecific
provisionforsupervisory machinery for obviousreasons ofexpediency
and policy, read in the light of the viewçof the mandatory powers,
including Respondent, that there should be such rnachinery until
other arrangements were concluded, is consistent with the inference
that the members of the Preparatory Commission felt that there was
no need for special provision and that the United Nations, if it
wished and if it became necessary, would assume powers of mandate
supervision in residualand exceptional situations, which is precisely REJOISDER OF MR. DE VILLIERS 4I1
the case preseiitedby South West Africa and, as 1have said, no one
ever spoke against United Nations supervision over mandates in
1945 or in 1946; Respondent's representative, to the contrary,
illrNicholls, explicitly favoured it. Hence, as we have already noted,
the relationship betrveen South African support for the temporary
Trusteeship Committee and the South African pledge to the League
of g April 1946 become very meaningful, and precisely the same
pattern may be seen in the pledges made by each of the other
mandatory poiirers. "
The importance lies in this last link, "the relationship between South
African support for the temporary Trusteeship Committee and the
South African pledge to the League", is said to be "very meaningful",
and the conteiition is that precisely the same pattern may be seeninthe
pledges made by each of the other mandatory powers.
hlr. President, 1 repeat that this approach to the decIarations made at
the last League sessionis untenable for the simple reason that the premises
upon which itrests are entirely wrong, the premises being the Applicants'
version of the proposa1 fora Temporary Trusteeship Committee, of the
reasons why certain mandatory powers favoured the proposal, and of the
reasonswhy the proposa1 was rejected. Those matters 1dealt with yester-
day and made it very clear,in rny subrnission, that those premises of the
Applicants are unfounded.
Consequently, the whole basis upon which the Applicants attempt to
criticizeour analysis and interpretation ofthe several declarations made by
mandatory powers is aiso, in rny subrnission, without foundation. That
attempt to criticize our analysis is to be found in the verbatim record of
IO May, at pages 151-15 7,pra, where it will be observed that this
prernise of their interpretationof the earlier eventsof the Preparatory
Commission-js the basic feature, the premise upon which the criticism
rests and, if that falls away, the whole criticism itself, as now tendered,
faIls away.
That they carry this false premise through also to the interpretation
of the League resolution of 18 April, Mr. President, is evident from a
passage in the verbatim record of IO May, at page 153, st@~a, which
1 quoted to the Court yesterdajr-the passage in which they cite para-
graph 4 of that resolution, with certain comment.
In the comment they said, inter alia, that the word "pledge" "uras
used in several of the statements made at the tirne". lfr. President, that
is not correct. We checked on it and we found that the word "pledge"
waç, as far as we could ascertain from the record, used only twice during
the whole ofthe relevant discussions at the last Assembly of the League
of Nations. It waç used once by the representative of Australia, but not
with reference to a pledge with a content such as contended for by the
Applicants. It was used quite clearly as referring to Australia's assurance
regarding cornpliance with the substantive provisions of the Mandate,
that is, in the words used,"to continue to administer the present man-
dated territories, in accordance with the provisions of the Mandates, for
the protection and advancernent of the inhabitants". The context in
which the word "pledge" was used, Mr. President, will appear from the
following statement which is well-known to the Court because we have
cited the whole of it before:
"In due course these territories will be brought under the tmstee-41z SOUTH WEST AFRICA
ship system of the United Nations; until then, the ground is covered
not onIy by the pledge which the Government of Australia has given
to this Assembly to-day but aIso by the exphcit international obli-
gations laid down in Chapter XI of the Charter. .." (Lmgae O/
Nations, Oficial Journal, Special Suppl. No. 194, p. 47.)
So the pledge refers to the undertaking, the assurance, the expressed
intention to comply with the substantive provisions of the mandate
regarding administration of the territory, and it is stated that the ground
is further covered by "the explicit international obIigations" laid down
by the Charter-the point with which 1dealt before,viz., the conception
of the Australian representative that there would be reporting, or the
giving of information, to the United Kations under the provisions of
Article 73 (e) of the Charter.
The only other occasion on which the word "pledge" was used was
during the speech of the delegate of Switzerland, who in the relevant part
of his speech spoke solely of the technical activities of the League which
were to be transferred to the United Nations. He said:
". ..this last General Assembly is important in so far as it expresses
the will to transmit to the United Nations Organization the technical
activities in which the League has bcen engaged, often very success-
fully: in the social sphere through the International Labour Or-
ganization, in the sphere of public health through the Health Or-
ganization and in many others referred to just now by M. Paul-
Boncour. The instrument of work forged at Geneva, which we are
handing over body and rnind to the Organization of tomorrow, will
constitute a.pledge for the future." (Ibid., p. 37.)
Jt is clear, Mr. President, from the record, that the word "pledge" was,
in fact, never used at the dissolution of the League in the sense contended
for by the Applicants.
The declarations by the mandatories at the last session of the League
Assembly were al1made, as the Court will recall, in Plenary Session. Xow,
apart from statements made by mandatory powers, the only delegates
who referred in the debates in the Plenary Session to the uestion of
rnvndated territories at all, were those of China, India and ggypt, and
their statements made it clear that they perceived no pledge on thepart
of the mandatories as is now corttended for by the Applicants.
Dr. Lone Liang of China first spoke in the Assembly in its PIenary
Meeting on g April 1946; this was even before the first proposa1
raised by him. He spoke after the United Kingdom had reserved its
position with regard to Palestine and had made its declaration of intention
regarding its other mandates. He mentioned not a word, Mr. President,
about "pIedges" or "undertakings" in the sense contended for by the
Applicants. After expressing gratification at Lord Robert Cecil's state-
ment in regard to the mandate system, he referred to the institution of
the trusteeship system and stated the following:
"Some of the mandatory States administering these territories
have already taken the lead during the first Assembly of the United
Nations in answenng this caLl ["this call", if 1 may interrupt refers
to theinstitutionof the trusteeship system]. Ztis tbe hoped that the
Trusteeship Council of the United Nations will soon be set up to receive the torch of freedom and humanity from the League."
(Ibid p.,31.)
Now this same delegate, Mr. President, spoke later in the Plenary
Session when he proposed a second draft resolution, a rnatter to which
I have made extensive reference before. We have checked the speech
again and it isclear that he made no mention of anything in the nature of
a pledge. (We find the speech in the same Supplement at pp. 78-79.)
The representative of India, speaking after the United Kingdom,
South Africa, France, New Zealand and Belgium had made their state-
mentç, merely said the following:
"The declared intention of several of the present mandatory
Powers to transfer most of the territories to the trusteeship system
isa good and healthy augury for the future. May I express the hope
that the sarne vision and statesmaiiship will inspire a11the Powers
in respect of the mandated territories, and thus eliminate what may
well become a potential cause of unrest in vnrious parts of the world."
(Ibid p.46.)
Again there is no reference to any "pledge" of the nature contended for.
Then there was the representative of Egypt, with whose attitude we
dealt before. The Court will recalI that his attitude was that the "Man-
dates [had] terminated with the dissolution of the League of Nations".
(II p. j1.j
So itisclear from the ~vholedebate and from what was actually said
by the mandatory powers and the others in response thereto that there
was no concept of an a firiorcompromise plan, or design, for pledges to
submit to United Nations supervision in an interim period, or at all.
Now Mr. President, the next step in these proceedings is that relating
to the two Chinese draft proposals. Here agaiwe find that the Applicants
attempt to explain the events purely on the basis of their alleged com-
promise plan, or design. Thus, they Sayin the.verbatim record, oro May,
at page 160, strpra:
".. .the first Chinese draft was, in essence, an attempt to return to
the first alternative proposa1 favoureby mandatory powers inthe
debates of the Preparatory Commission".
They embroider on this basic submission in more detail at the next page;
it is unnecessary for me to read itout to the Court because the way in
which the false premise affects the conclusion is so obviouas to require
no further elaboration. That, Mr. President, therefore, is the whole basis
upon which they approach this matter. The Applicants are so carried
away by this false premise that they even go so faras to suggest that
Respondent and the United Kingdom would have preferred the first
Chinese draft proposa1 to the second one. We find çtated in the verbatim
record of IOMay, at page 161,supra, and later in the verbatim record of
II May, at page 189, su@a, they went so faras to say this:
"It is therefore at least as plausible, in the Applicants' vmore
plausible, to infer that it was perhaps the Respondent or other
mandatories or a group of them al1 acting together who [were]
overruled when the Assembly decided not to accept the Chinese
draft resolution which would have set up the very machinery the
mandatories had proposed in the Preparatory Commission."4I4 SOUTH WEST AFRICA
I added the word "were" before "overruled"-that seems to be the con-
text and it appears to have been omitted from the verbatim record. But,
Mr. President, when regard is had to the true factual position, these
suggestions are, of course, entirely ludicrous. The United Kingdom and
South Africa had explicitly reserved their positions regarding Palestine
and South West Africa, respectively. In both cases they made it clear
how uncertain the future waç in regard to those territories. Yet the
suggestion is that these two States would have preferred the first draft
which would have made it obligatory, in respect of al1 mandated terri-
tories to recognize, or submit to, supervision on the part of the United
Nations organs.
New Zealand, hIr. President, had in January welcomed the fact that
the Preparatory Commission did not see fit to proceed with the proposal
to establish a temporary tmsteeship cornmittee: that appears from the
statement which 1 read to the Court a littlwhile ago. Yet we still find
in thislast submission of the Applicantç ~vhich 1 read out,the words that
the Chinese draft resolution "would have set up the very machinery the
mandatories iiadproposed in the Preparatory Commission". Mr. Presi-
dent, one's greatest amazernent is that a submission of this kind could be
seriously made. If the mandatories did not oppose the first Chinese draft
proposal, who wouid have opposed it, I might ask? The Court will recall
that we deal in the Counter-hlemorial, II,at pages 46 and following, with
the events at the final session of the League Assembly, and we refer to
certain facts in that regard which, as far as we know, are entirely un-
disputed. We Say at page 46:
"The session was scheduied to last less than two weeks, and
delegates knew that it would not be possible to discuss the future of
the Mandate System at any length in an appropriate Comrnittee.
Informa1 discussions were consequentIy initiated between those
Members of the League most directly concerned, with a view to
securing the greatest possible measure of agreement before the
matter was officially considered in the Committee."
And then at page 49, we indicate that after the first Chinese proposa1
had been raised, the informal discussions svere renewed, the Chinese
delegations also participating therein, and that-
"the final outcorne was that when the question of Mandates ivas
reached in the First Committee, on the 12th April, 1946, the Chinese
delegate, Dr. Liang, himself introduced a new draft of which Sir
Hartley Shawcross of the United Kingdom said, when seconding the
proposal, that it-
'had been settled in consultation and agreement hy al1countries
interested in mandates, and he thought it could, thercfore, be
passed without discussion and with complete unanimity'." (II,
P. 50.1
Now, Mr. President, accepting those facts, how could it be imagined
that there wodd have been opposition, as there must obviously have
been to this first Chinese proposal, if it did not corne from the manda-
tories-if the mandatories were, as rny learned friends suggest, in favour
of that proposal, they really wanted such a transfer of supervisos.
functions, and wanted to be subject to interim supenrision, but were
thwarted in this intentionby an undisclosed attitude on the part of other
States? REJOINDER OF MR. DE VILLIERS 4I5
Surely, Afr. President, if that had been the position, one would have
expected one orother of the mandatories to have referred to that, even
if only obliquely, in one of their statements in the debates. Surely one
would have expected one of them to have said "we would like to go
further than what we are stating here, we would like to report in the
interim and to subject ourselves to supervision in the meantime, even
before new arrangements are agreed upon, but we have been prevented
from doing so because there is an unwiliingness on the part of some
States to do what may be necessary in order to create the necessary
machinery".
For instance, it would have fitted very well, Rfr. President, in the
statement of the Australian representative which we cite in the Counter-
Mernorial,II,at page 4s. In the second sentence of the passage which we
cite, the Australian representative stated:
"After the dissolution of theeague of Nations and the consequent
liquidation of the Permanent Mandates Commission, it will be
impossible to continue the mandates system inits entirety."
Surely, if there had been any intention, any wish, on the part of the
mandatory powers to support this first proposal to create rnachinery to
which they could report and account in the meantime, it would have been
unnecessary to rest the matter on the basis that itwould be impossible to
continue the mandates system on its entirety. It would then also, Mr.
President, have been very strange that, aIthough we have this contempla-
tion of a pledge on the part of the representatives of the mandatory
States and, therefore, also on the part of the Australian representative
(this is the basis upon which we argue or on which we analyse the Appli-
cants' contention) the Australian representative should then have gone
further and have stated a contemplation that Article 73 (e) would
govern the situation in the interirn penod in regard to the furnishing of
information. On the one hand there would be a pledge, or contemplation
of a pledge, to comply with al1the obligations of the mandatory system
in the interim period, including an obligation of accountability. Yet,
although there was a specificproposa1for creating machinery that did not
obtain approval, the contemplation stjll stood. But in spite of that con-
templation we find the only explicit rcference to furnishing information,
or reporting, or anytliing of that kind, in the interim, was one based on
Chapter XI of the Charter, section 73 (el,which my lenrned friend
himself conceded in his argument was an obligation of a much lesser
content than that provided for in Article 6 of the Mandate for South
West Afrjca and corresponding Articles in the other mandates.
Yet, Mr. Preçident, that is apparently the inference urged upon this
Court that itshoufd draw as to the attitude of the various mandatory
powers, and there seems to be a serious suggestion that the Court could,
by a process of necessary inference, corne to a conclusion favourable tothe
Applicants' contentions.
1 subrnit, $Ir.President, that the more one analyses the record, the
more one analyses the successive, varying contentions advanced by the
Applicants to the Court in this regard, the more it becornes absolutely
clear that there isnobasis whatsoever for such a finding in the Applicants'
favour.
1 rnay, just by way of summary on this aspect of the case, refer to
some of the material facts on the record which stand out as irrefutable416 SOUTH WEST AFRICA
indications that the Respondent did not, either before or at the dissolu-
tion of the League, consent to transfer of supervisory authority over the
Mandate to the United Nations.
The first ofthese is the fact that no provision was made in the Charter
of the United Nations for supervision of mandates other than by putting
mandated territories under the trusteeship system.
The second is the fact that Respondent had, at the earliest opportunity,
that is,at the3an Francisco Conference, declared its intention to have
the territory of South West Africa incorporated in the Union of South
Africa, and that it therefore reserved its position with regard to the
territory in the termswhch I cited to the Court again yesterday.
Thirdly, there is the fact that the proposal for the Temporary Tmstee-
ship Committee, which was intended, inler alia, to supervise trust
territories prior to the establishment of the Trusteeship Council, waç
rejected mainly because the step was considered, at least by a certain
number of States, as unconstitutional. In conjunction with this we have
the written proposa1 by the Uiiited States ofAmerica that the functions
of the proposed Tempornry Trusteeship Council should be extended also
to cover supervision of mandates. We have the fact that that written
proposa1 was not even raised by the proposer, the United States, nor
even discussed in the debates.
Itis only reasonable and logical, >Ir. President, in our submission, to
assume that if the temporary body with its functions as originally
proposed was regarded as unconstitutional, it would a fortiorhave been
regarded as unconstitutional with the proposed extended functions.
Next, hIr. President, we have the reservations made by hlr. Nicholls in
the Fourth Cornmittee of the Preparatory Commission on 20 December
1945, and in the Preparatory Commission itself on 23 December 1945,
with regard tothe position of South West Africa in the terms to which I
referred again yesterday. And therc was alike reservation by Respondent
before the Plenary Meeting of the General Assembly on 17 January 1946.
Al1 these indicate quite clearly that there would, as far as Respondent
was concerned, be no supervision by the United Nations over South
West Africa, either by way of trusteeship or otherwise.
Next we have the first Chinese proposa1 at the last session of the
League which specifically provided for a transfer to the United Nations
of the League's supervisory powers over mandates and the very obvious
inferences ~vhich are to be drawn from the fact that this proposa1 had to
be dropped and superseded by the resolution actually adopted. Our case
in that regard has not been affected in any way whatsoever by what has
now been offered to the Court by my learned friends, in reply.
Next, there is the fact tliat the declarations made by the different
mandatories-eachand every one of them-merely contain an expression
of intention regarding continuecl administration of the respective
rnandated territories and that some of them contain very pointed
indications that there ~vould be no reporting or accounting under the
mandates. Again, our analysis of this matter as offered in Our argument
in chief has in no way been touched by the Applicants' argument in
reply. The whole Iine of attack offered by them in this regard has fallen
away because of the false premise upon which itrests.
Next there is the fact that the League resolution of 18 April 1946
rnerely referred to the "expressed intentions" othe mandatory powers to
continue to administer the territories in a certain manner. REJOINDER OF MR. DE VILLIERS 4I7
Einally, there is the tremendous impact of the differencein the treat-
ment of mandates, on the one hand, and of other matters, on the other
hand, whcre transfers to the United Nations were indeed intended, in
the corresponding United Nations and Leagueresolutions, in the registra-
tions under Article 102 of the Charter, and in the actions and the report
of the Board of Liquidation.
Upon ali this evidence, of which I have mentioned some of the most
salient examples (1haven't tried to deal with it aiiagain because it is
ali on record), but upon thisevidence as a rvhole, hlr. President, the
Applicants' contention that the Respondent consented to United Nations
supervision of the mandate at or prior to the dissolution of the League
must, in our subrnission, without any doubt be rejected.
That brings us to the argument offered in reply by the Applicants on
the question of Respondent's alleged conduct after the dissolution of the
League.
In the verbatim record of IO May the Applicants surnmarized their
contentions in thisregard as follows:
"In surnmary, up to the autumn of 1947, the South African
Government had-
(a) recognized that in law the Mandate of South West Africa
continued in full force and efîect, notwithstanding the dissolution
of the League, and this isnow cornmon cause;
(b) advocated the establishment of interim rnachinery for the
supervision of Mandates pending other arrangements since, in the
words of Mr. Nicholls at the Preparatory Commission 'the Mandates
Commission was now in abeyance and countries holding mandates
çhould have a body to which they could report';
(c) had taken part in the system of pledges by which each of the
mandatory powers in terms undertook to carry out al1of the obliga-
tions of the mandate until the concIusion of other agreed arrange-
ments ;
(dj had submitted the issue of the incorporation of the Territory
of South West Africa and the termination of the Mandate to the
General Assembly as the competent international orpnization for
judgment ;
(e) had associated itself in a letter to the Secretary-General of the
United Nations with a Resolution of the House of Assembly of the
Union Parliament, calling for reports to be rendered to the United
Nations as heretofore under the hlandate.
Not üntil September of 1947, did Respondent's Government
begjn to question openly the supervisory powers of the United
Nations and only in 1948, did it for the first time begin to question
the legalexistence of the hlandate aa whole." (Supra,pp. 173-174.)
The summary provides a useful basis on which to base our Rejoinder.
We begin with the allegation under (a) that Respondent recognized "in
law [that] the Mandate of South West Africa continued in full force and
effect, notwithstanding the dissolution of the League". We dealt in our
argument in chief, Mr. President, with the attitude of theSmuts Govern-
ment, which remained in power untii May 1948, on the question of the
existence of the Mandate as such after the dissolution of the Lea
of Nations as distinct frornthe question of accauntability to the
ted Nations, and it isunnecessary to repeat what \ve said in that regard.418 SOUTH WEST AFRICA
Our attitude is stated in the verbatim record of 6April, VIII,page 428,
Then, in paragraphs (6) and (cj, we find a reference again to Mr.
Nicholls in the Preparatory Commission, to the system of pledges, which
we have fully dealt with. It is unnecessary to refer to thagain.
So it remairs to deal with the last two on the list, "(dand (el.(d) is
that South Africa "had submitted the issue of the incorporation of the
territory of South West Africa and the temination of the Mandate to the
General Assembly as the competent international organization for
judgment", and (e) refers to the Respondent's letter of 23 July 1947 to
the Secretary-Generd of the United Nations containing a reference ta the
resolution of the Wouse of Assembly. 1 propose to deal with these two
matters in turn.
Now in regard to the proposa1 for incorporation, we have dealt with
this matter fullyin Ouroralargument in chief and the rcferences aretobe
found in the verbati~n record of 6 April, at VIII, pages 430-448, and
again in the record of g April,ai VIII, pages 517-523. Inasmuch as, in
our submission, the Applicants have hardly adduced any rlew argument
on thissubject, itisnot necessary for us toSay much in response.
The Applicants repeat their previous argument that there is an essential
link between Articles 6 and 7 (1)of the Mandate. This argument rests
entirely on the Applicants' proposition that consent to modification of
the terins of the Mandate must be "informed consent" and, that being
the case, the body £rom which such consent is ta be obtained must of
necessity, so theycontend, be the body which exercises supervision. The
argument is put in that way in the verbatim record of ro May, at page
165, sybra,-1 need not quote the exact words used, 1 think 1 have
rendered the effectthereof fairly.
The Applicants then proceed to set out again the so-caiied ttvo "intoler-
able situations" which would be created by "the lapse of Articl6 andthe
consequent falling away of Article 7 (r) of the Mandate". These two
intolerable situations would be, and1 quote from the verbatim record of
IO May, at page 165, supra:
"... either the Mandate would be frozen in its prcsent form in
perpetuity, for reason of the absence ofan ocgan whose informed
consent would be required to a modificatiori, or Respondent would
have the right unilaterally to modify the terrof theMandate in the
absence of an organ whose consent would have to be obtained before
such modification .. .".
And on this basis thev round offtheir argument by saying the following
-1 think this will reiterate the effect of the argument whicImentioned
before:
"The Applicants accordingly see the need for an organ the consent
of which is necessary for modification of the terms of the Mandate
as evidence of the need for the existence of a supervisory organ. The
Applicants think it, and respectfully submit it to be a logical pro-
position, that if Articl7 (1)must be considered to have remained
in effect because of the intolerable alternatives which would follow
ifit were not; that if, as the Applicants sübmit, a comptent
organ must exist whose consent is required to modification, and if
that consent must be an informed consent, then the survival of
Article 7 (r)has a direct and logical relationship with the question
ofthe survival of Article6." (Supra,p. 167.) REJOINDER OF MR. DE VILLIERS qr9
ilZr.President, ïvhen the argument is put nakedly in this way it becomes
very difficulttu distinguish it, if that is possible at from a legislative
argument-an argument as to what the law azdghtto be.It is an argument
which one would expect to be raised before a legislative body which has
the power of making law or altering the law as it thinks fit: before such
a body one rnight expect an argument of this kind, i.e., that it very
necessary, or very desirable, that if consent is togiven to a modification
of a mandate, such consent must be given by the same body as exercises
supervisory jurisdiction, i.e., it must be an informed consent; that to
have the two things çontlected with each other in one body is necessary,
essential or desirable. But, Mr. President, surely that is not a legal
argument directed at interpreting the law as it is; it merely amounts to
saying to the Court tvhai the Applicants would like to have the situation
to be, and to giving their reasons as to why that would be a desirable
result. Even then, the argument rests, in my submission, on two basic
fallacies. The first fallacy isthat consent can only be an "informed
consent" as a result of prior exercise of a supervisory power by the body
concerned. This is, of course, not so.Itis very often not possible to have
a position where the body which is to give consent to an alteration in
status, or something siniilar, would have hadthe prior opportunity of
operating as a supervisory body, and in that manner to have become an
informed body. So give an example : the General Assembly of the United
Nations was empowered by Article 85 of the Charter to approve of
trusteeship agreements-in other words, to consent to the modification
of mandates converted to trusteeshipand yet there was no contempla-
tion that when acting in that way the General Assembly would alrertdy
beforehand have exercised any supervisory power in respect of mandates.
It just could notbe possible under those circurnstances, of course if could
not be, but that was the best arrangement that could be made under the
circumstances.
The same applied, of course, in respect of territories other than man-
dates which were brought under trusteeship or could be brought under
trusteeship-the colonies or the ex-enemy territories, which are referred
to in Article73 ofthe Charter, and the following Articles.
Then there is also the role of the Security Council under Article 83 of
the Charter regarding strategic areas brought under the tnistee-
ship system. The Security Council would not have been able to inform
itseif beforehand as to what would be desirable by way of a change of
status in those cases through having previously exercised a supervisory
power.
Mr. President, itjust cannot be possible under al1circumstances, and
where it cannot be possible then the body which is asked to assist in
bringing about a change of status, has to inform itself ad hoc for that
particular purpose as best it can. In the case of Palestine, whose problem
was submitted to the GeneraI Assembly for that very purpose, the bodyT
concerned, i.e., the General Assembly, informed itself by appointing a
special commission which had to go into the facts, into the law and into
all attendant circumstances so as to be able to inform the General
Assembly as to what it considered to be the best solution. We referred
in this regard in Ourargument in chief (in the verbatim record of 6 April,
VIII,at p. 431)to the Iast resolutioof the League of 18 April 1946,which
contemplated that there could be other arrangements agreed upon
between the mandatory powers and the United Nations-there again,420 SOUTH WEST AFRlCA
the same applies; the change need not necessarily apply only to conver-
siThe Applicants' only argument in this regard, Mr. Prcsident, is to fd
back on the alleged pledgeç supposed to have been given by the manda-
tories in April 1946 (this we find in the verbatim record of IO May, at
page 169, supta) and, of course, on the statement of Mr. Nicholls (thiwe
tind in the same record at that page), which are matters with which we
have fully dealt.
1do not need to take it further, 1submit. Although itmap be desirable
under circumstances where it can be achieved, that a body which is
required to give consent to a changeof status, should be a body that has
properly informed itself through exercising a supervisory function, it is
surely not an essentiality in any sense, as contended for by the Appli-
cants.
The second fallacy upon which the argument rests, Rir. President, in
my respectful submission, is the Applicants' assurnption that if Article7
(1)has Iapsed there would be no means of modifying the terms of the
Mandate. Now this assurnption is, of course, entirely wrong. \!Je dealt
with the matter fully in our argument, which is in the record of g April,
and 1 submit that my learned friends have offered really nothing to
controvert that argument, nor the support which it derives from the
separate opinion of Judge McNair in 1950, as we cited it at VIII, pages
519and 5zr of that record.
In principle Oursubmission stands that consent by a collective inter-
national body representative of a large number of States may be a very
useful rneans of achieving a change in status, a change ian international
situation requiring consent or acquiescence on the part of other members
of the international community, but that is surely not the only way in
which such consent or acquiescence, where necessary, could be obtained.
There are more difficult, more onerotis processes possibly, but, neverthe-
less, processes which are in principle alwaysavailable in law, and that is
exactly the manner in which the point was dealt with also by Lord
McNair in his separate opinion in 1950; he came to the conclusion that
Article 6 had lapsed, that Article 7 (1)had lapsed, but indicated that it
was nevertheless not impossible to bring about an alteration in the
status of the mandated Territory or in the terms of the Mandate by
processes still available to the Respondent.
Now, in regard to this opinion of Judge McNair, the Applicants
advance a contention which, in my respectfui submission, puts a rather
far-fetched interpretation upon it. The Applicants Say in the verbatim
record of ro May at page 167, supra:
"... Judge AfcNairdealt with the effect of lapse of Article 6 upon
the fate of Article 7, para aph i, and the learned judge concluded
that the Lape of Article rdby reason of the ensuing irnpossibility
of obtnining the consent ofits[that is, the League's] Council'meant
that Article 7alsohad lapsed".
In other words, Mr. President, they attribute to Judge McNair this
reasoning: that Article 7, paragraph r,lapsed because Article 6 had
Iapsed, andthat that came about by reason of the ensuing impossibility
of obtaining the consent of the Council. But, Mr. President, when one
adverts to what the learned judge actuaily said, oneseesthat is something
entirely different. The words used in the passage from the I.C.J.Reports REJOINDER OF MR. DE VILLIERS 421
1950 .t pages 162-163, which 1quoted to the Court previously, were the
foliowing :
"What then is the effect of the disappearance of the League and
the ensuing impossibility of obtaining the consent of its Council?
In my opinion, the effect is that the first paragraph of Artic7eof
the Mandate has now lapsed."
That is a sufficient quotation for present purposes. In other words,
Mr. President, the effect that Article 7 has lapsed, is an "effect of the
disappearance of the League and of the ensuing impossiblity of obtaining
the consent of its Council" in terms of Articl7itself. There is no sugges-
tion that Lord McKair first found that Article 6 had lapsed, and then
found that because Article 6 had lapsed Article 7 (1)rnust therefore also
be deemed to have lapsed. Il'hat istrue is that he applied similar reason-
ingin the two instances-he found that Article6 had lapsed, and he found
that Article 7,paragraph 1, had lapsed, and it is true that his reasoning
in both respects was basically the same, but he did not Say that Artic7,
paragraph 1,had lapsed because ofthe lapse of Articl6.
The Applicants, in our submission, also give a wrong rendering in this
regard of the reasoning of the majority of the judges in 1950, In our
argument in chef we pointed out how Applicants in their argument
created a rnisleading impression of the Court's 1950 Opinion in this
regard by taking two unrelated passages from the Opinion and putting
them together with words of tlieir own. 1refer to the verbatim record of
6 April, at VIII, pages 441-443 where we dealt with this matter. The
Applicants now offer a differently worded argument, but it is to much the
same effect. They commence, in the verbatim record of IO May, at
page 164, serpra,as follows:
"The Court in 1950, of course, explicitly held that the organ
vested with supervisory powers is alço the competent international
body to determine and modify the international status ofamandated
territory."
Now, hlr. President, in our submission this is a rather cryptic way of
describing what the Court actually said, which is to be found in the
I.C.J. Refiorts1950, at page 141 :
"Article 7 of the Mandate, in requiring the consent of the Council
of the League of Nations for any modification of itsterms, brought
into operation for this purpose the same organ which was invested
with powers of supervision in respect of the administration of the
Mandates."
In other words, Mr. President, the Court merely stated a fact which is
self-evident upon reading the mandate instrument itself, that. the
hlandate brought into operation for this purpose the same organ as it
brought into operation for purposes of supervision under Article 6; it
did not Say, in Applicants' words, as they render it, that "the organ
vested with supervisory powers is also the competent international body
to determine and modify the international status .. .". The Applicants
proceed to embroider on this submission as follows in the verbatim
record of IO May, at page 165,su+ra. They Say:
"The Court evidently took the view thatthe vesting in the League
Council both of a supervisory role and a cornpetence with regard to
modification of the terms of the Mandate, was not merely coinciden- SOUTH WEST AFRICA
ta1 but logical, and the Court suggested that by the same logic the
competence ofthe General Asçemblyto supervise mandates extended
also to the matter of approving changes in the çtatus of the Terri-
tory."
And then the Applicants take it a stage further, in the sarne record of
IO May, at page 168, supra, without advancing any reasons for their
contention. They Say:
"It would seem clear that the Court in 1950made no distinction
between the international organ cornpetent to determine and modify
the status of the mandnted territory and the organ competent to
supervise the administration of the territory. Not only did the Court
~iinkeno such distinction, but it indicated the linknge between the
two articles, and it would scern fair to conclude that the Court in
same-the leorgan under Article 7andthe organ under Articlend t6eshould
be the same organ."
That is the cm of this contention. In Our submission, Mr. President,
there is nothing in the 1950Opinion to justify thiç conclusion that in the
view of the Court the organ under Article 7 (1)must be the same asthe
organ under Article 6.
The Court dealt separately with Article 6 and with Article 7,paragraph
I. In dealing with Article 6 the Court made no reference in its reasoning
to Article 7, paragraph I.On the basis of a finding of tacit consent on
Reçpondent's part, as we submitted before, the Court held that the
League's supervisory powerç passed to the General Assembly of the
United Nations-that was its holding in regard to Article 6. Inen it
came to deal with Article 7, paragraph 1, it first noted that thisArticle
referred to the same organ as that referred to in Artide 6, that is, to the
League Council. The Court then referred to itsholdin that the powers of
supervision under Article 6 "now belonged to the 8eneral Assembiy".
Thereupon the Court noted the powersof the GeneralAssembly under the
Charter to approve trusteeship agreements, and alterations or amend-
mentsthereof, andthe Court then said the following (I.C.J. Reports1350,
at p. 142) :
"Ry analogy, it can be inferred that the same procedure is
applicable to any modification of the international status of a
territory under Mandate which would not have for itspurpose the
placing of the territory under the Trusteeship System. This conclu-
sion is strengthened by the action taken by the General Assembly
and the attitude adopted by the Union of South Africa which is at
present the only existing mandatory Power."
ing of the Court that there must necessarily be a linkbetween supervisionason-
and consent to modification-that is quite obvious from the passage
which I have just quoted. Secondly, hlr. President, it iç clear that the
Court reasoned from Article 6 to Article 7. In other words, it first held
that Article 6 was in force, and it relied upon this finding in its reasoning
that Article 7 (r) was stillinforce. It did not approach the matter in the
converse ~vay,as the Applicants now do, by using a finding or motivation
relative to the existence of Article 7(1)in support ofits reasoning relative
to Article 6, or by arguing, as the Applicants appear to do, that, because REJOINDER OF MR. DE VILLIERS 4z3
there must be a body competent to provide for a change or modification
in the status of the Territory, or in the terms of the Mandate, that body
must also be a body exercising or holding a supervisory power.
hlr. President,1 was dealing with the first of two questions raised by
the Applicants in regard to Kespondent's attitude subsequent to the
dissolution of the League of Nations and prior to September 1947. 1
virtually concluded with this first one, which is the question of the sub-
mission of Respondent's incorporation proposa1 regarding South West
Africa to the General Assernbly of the United Nations for judgmeiit, as it
was put in a particular statemcnt. And 1 was dealing with the reliance
placed in that regard by the Applicants upon the suggested relationship
between Article 6 and Article 7 (1)of the Mandate, and particularly the
reliance which they placed upon the 1950 Opinion as supporting their
contention in that regard. Our subrnission is that the Court's Opinion
does not support their contention. The Court did not argue, as the
Applicants appear to do, from Article 7,paragraph I, to Article6.
In particular, Mr. President, the Court discussed Respondent's sub-
mission to the General Assembly of its incorporation proposa1 in the
context of its views regarding Article 7 (1)of the Mandate, and it made
no mention of anything relative to Article6.And it did not, in its discus-
sion of Article 6,refer to nnything which it said in regard to Article 7,
paragraph 1.
Therefore, Mr. President, when the Applicants state the following sub-
mission, which 1 shall readout to the Court, 1submit that they do not
derive support for it from the Court's Opinion in 1950. The submission is
stated by them in the verbatim record of IO May, at page 168, szrpra:
". ..the Respondent'ç submission in 1946 of the question of the
status of South West Africa to the competent international organ
for a judgment, in the words of the submission, clearly evidenced
Responden t's recognition of the United Kations as the international
body competent to supervise administration of the Territory".
1submit that the argument which we addressed to the Court on this
matter in our argument in cliief, as tothe distinction to be drawn between
the two things of submitting to international supervision and utilizing
with an international body
the facility of coming to possible agreement
regarding a possible change of status of the Territory,1submit that that
argument stands inevery respect and has not been affected by anything
adduced by the Applicants.
We then corne, Rlr. President, tothe second of these two rnatters relied
upon by the Applicants in regard to Our attitude in the period which I
have just mentioned, and that is the letter of 23July 1947 to the Secre-
tary-General of the United Nations. The Applicants referred to portions
of this letter in their argument in chief, in support of their contention
that Respondent had recognized the supervisory authority of the United
Nations. One finds the references in the verbatim record of 19 March,
at VIII, pages 158 to 159.
The Respondent dealt fully with this matter in its argument in chief.
1 could refer the Court to passages in the verbatim record of 6 April,
at VIII,pages 449 to 450, and again in the record o7 April, pages 452 to
453 and 462 to 463.
The Applicants have now advanced further argument regarding the
significance of this letter, in relation to their contention that Respondent424 SOUTH WEST AFRICA
recognized United Nations supervision over the Mandate. They refer to
a fact which we pointed out in our argument in chief, narnely that the
reference in the Court's1950 Opinion to a phrase in theresolution of the
House of Assembly regarding the rendering of reports to the United
Nations was (1quote our words) "not a reference to anythng said by, or
on behalf of, the Union Government to the United Nations, or in any
international context". We pointed out, as the Court will recall, the
distinction between something said in a resolution of one of the houses of
the Parliament of the Kepublic of South Africa, or the Union asit then
was, and the attitude of the mandatory government itself expressed to
international organs, or to the outside world, or in any international
context.
But the Applicants with reference Cothat distinction argue-that-
"... nowhere, that the Applicants are aware of, [Respondent]
adverts to or seeks to explain why this resolution was referred to in
Respondent's officia1 communication of July 23, 1947, to the
Secretary-General". (Supra, p.172.)
Mr. President, if1 have to give an answer to that it is plain. There
were many practical reasons why the resolution was referred to, but one
considcration in that regard is quite crucial, and that is that if the Union
Government at the time thought that the wording of this resolution
differed from the attitude which it had already taken in its relationship
to the United Nations through the speech of General Smuts the previous
year in Decernber, then it would have been hardly likely that the resolu-
tion would have been included in this letter at d. 1 indicated before,
hlr. President, in our argument in chief, that there was a link between the
four very relevant salient events: Respondent's statement at the dissolu-
tion of the League; General Smuts' statement in December 1946 to the
Fourth Cornmittee, if 1 remember correctly, ofthe General Assembly of
the United Nations; then, the next stage, this letter of 23 July 194,nd
finally, Mr. Lawrence's staternents of September and November 1947,
1 pointed out that General Smuts in his statement to the United
Nations in December 1946 referred back to thestatement which had been
made on behalf of Respondent at the dissolution of the League. And he
said thatifthe proposed incorporation was not acceded to that staternent
would be abided by, and he added something which had not been said
before, namely the voluntariiy subrnitting of information for the informa-
tion of the United Nations in accordance with Article 73 (e) of the
Charter.
The next stage of communication was this letter, and in its actual text
the letter referred to the previous speechby General Smuts, not in so
many words, but by stating that the Union Government had already
undertaken to submit reports on their administration for the information
of the United Nations. So the link there isestablished.
And, as 1 pointed out finally, Mr. President, when klr. Lawrence made
his statement in September 1947there was again a link because he was
asked forclarification of a certain document and that document was this
self-sameletter, which then camebefore the organsof the United Nations.
It was in regardto clarification of what was stated in this letter that he
made itperfectly clear that the willingness to submit information for the
information of the United Nations, was not based upon any concept of
accountability to the United Nations, but that, on the contrary, the REJOINDER OF MR. DE VILLIERS 425
basiç would be that there was no such supervisory jurisdiction on the
part of the United Nations and that the submission of the information
would be entirely voluntary.
So, hlr. President, it becomes very clear, in that context, how this
consistent line was taken by the Union Government. In the first place, it
is rnost unlikely that this resolution of the House would have been
intended to deviate from that line taken by the Union Government as
intimated by General Smutsto the United Nations the previous year in
December. In the second place, it is most unhkely that, if the Union
Government thought that thiç resolution intimated anjrthing else than
what its consistent attitude had been, the resolution would then have been
referred to in these terms in the letter. The mere fact that the resolution
is quoted and that the subject of giving information is then referred to in
the terrns1 have just quoted, makes it clear that in the contemplation of
the Union Government there was no difference whatsoever between what
the resolutionurged upon it and wliat its attitudehad already been, and
would in future be, toward the United Nations.
Apart from that, there are other very pertinent indications, reasons of
fact, why this resolution was quoted in fullinthat letter. The letter was
addressed to the Secreatiy-General in response to the invitation of the
General Assembly, in its resolution 65 (1) of 14 Decernber 1946, that
Respondent "propose, for the consideration of the General Assembly a
trusteeçhip agreement". In this letter the Respondent explained why
Respondent was not prepared to propose a trusteeship agreement, and
Respondent, for this purpose, again drew attention to the wishes of the
inhabitants of the Territory, who wanted incorporation. Respondent
stated in the letter that it had "no aIternative but to maintain the slatus
quoand to continue to administer the Territory in the spirit of the existing
Mandate". (Counter-Memorial, II, p. 55.)
It is evident, hlr. President, that in this context it was appropnate to
refer to the resolution of the House of Assembly, which resolution
expressed the "opinion", first, that-
"the Territory should be represented inthe Parliament of the Union
as an integral portion thercof, and requests the Government to
introduce legislation, after consultation with the inhabitants of the
Territory providing for its representation in thUnion Parliament".
(11,p. 56.)
The resolution further expressed the opinion-a rnatter to ~vhichwe have
referred-that "the Government should continue to render reports to the
United Nations Organization as it has done heretofore under the hlan-
date".
The opinion and the request of the House of Assembly regarding
provision for representation of South West Africa in the Union Parlia-
ment, "after co~sultata 'itn theinhabitants ofthe Terrilory" (italics
added), was clearly relevant to the proposa1 of the United Nations that
the territory should be brought under trusteeship. And that affords a
major reason why this resolution was quoted in the letter. Respondent in
the letter indicated that "steps will therefore be taken indue course to
carry out the required consultation". (Verbatim of IO May 1965p ,. 173,
s~pra.) In fact, these steps were taken during 1947 when meetings were
held throughout South West Africa to acquaint the non-White inhabi-
tants with the General Assembly's resolution 65 (1)inviting a trusteeship426 SOUTH WST AFRlCA
agreement, These meetings showed that the ovenvhelming majority were
still in favour of incorporation. And tlie South West Africa Legislative
Assembly, likehvise, on 7 May 1947, unanimously adopted a further
resolution urging incorporation. That we deal with in the Counter-
Mernorial, II,at page 56.
The wishes of the people were thereafter again communicated to the
United Nations in aspecial report which wedeal with in the same Volume,
at page 56.
The letter, as 1have said, in referring to the request in the resolution
that the Government should continue to render reports to the United
Nations, merely stated that "the Union Government had already
undertaken to submit reports on their administration for the information
of the United Nations". (Verbatirn of IO May 1965, p. 173, su$ra.) The
previous statement by General Smuts in the Fourth Cornmittee, to which
this referred, read, astheCourt will recaI1,as follows:
". ..the Union would, inaccordance with Article 73, paragraph (e)
of the Charter, transmit regularly to the Secretary-General of the
United Nations 'for information purposes, subject tosuch limitations
as security and constitutional regulations might require, statistical
and other information of a technical nature relating to economic,
socialand educational conditions' in South West Africa". (II,p. 54.)
There is no substance, in Oursubmission, in the Applicants' contentions
that, in referring in thisletter of 23 July 1947to the resolution of the
House of Assembly, Respondent "intended to make officia1representa-
tions to the Secretary-General in terms of the Resolution itself". .Su.ra.
P. 173.)
We find, on the same page, the following submission:
"The resolution made two rcquests for action on the partaof
Respondent's Government; in both cases the requests were carried
out by the Governrnent, were treated as obligatio$ts which the
Government would implement or had already carried out .. ."
There is, hlr. President, no reason for saying that the two requests to
which I have referred were treated as obligations. Let us take, first, the
request regarding consultation of the people of South West Africa and
the later introduction of legislatioii for the representation of South West
Africa in the Union Parliament. Surely, there was never any treatrnent
of that subject contemplating any obligation on the Union Government.
Respondent did, in fact, consult the people with that purpose, but it was
under no obligation to do so.
Nor, Mr. President, can it be said that itever regarded itself as under
an obligation to render reports to the United Nations as if that organiza-
tion had supervisory powers over the Mandate. The terms of the letter
itselfmake that perfectly clear, in referring back to General Smuts'
statement to submit information in accordance with Article 73 (e), and,
indeed, the oficinl explanation of the letter given on the very first
occasion when it was asked for in the United Kations, made that point
explicitly clear.
The Applicants have offered no answer whatsoever to our de~nonstra-
tion that the clarification given on 27 December 1947 was indeed in
response to a request to clarify this particular letter and the Applicants
have offered no argument in response to the fact that this letter \vas
merely one link in the consistent chain to bvhichThave referred. Nobody REJOINDER OF MR. DE VILLIEKS 427
at that time questioned the Respoirdent 'sattitude or the explanation
which was given by Mr. Lawrence.
Therefore, Mr. President, when the Applicants Say, asthey doin their
verbatim record of IO May, at page 174,supra, that "not until September
of 1947, did Respondent's Government begin to question openly the
supervisory powers of the United Nationsu-that is not a truc rendering
of the history of events. At no stageup to November 1947 and everi for
some tirne thereafter, had anybody contended that the United Nations
had supervisory powers over the Mandate in the sense that the United
Nations was vested with the powers formaliy exercised by the League of
Nations under the Mandate.
I shall deal presently wjth the attitude of the United Nations as
expressed through its Members, but with regard to the letter of
23 July rg47 1 just want to point out further that the Court in 1950 did
not rely on this letter as evidence of recognition on the Respondent's
part that the United Nations had supervisory powers over the Mandate.
The Court referred to the letter in support of its finding that the Mandate
as such remained in force despite the dissolution of the League-that
matter was dealt with in the I.C.J. Reports19 jû,at pages 135-156. It was
only after having made reference to the letter in this context and after
having disposed of the question of the continued existence of the Mandate
as such that the Court proceeded to deal separately with the question of
Article 6 of the Mandate, as it did at pages 136 and following, of the
Opinion.
Although the Applicants are, therefore, correct in çaying that "In the
1950 Aclvisory Opinion, this honourable Court regarded the letter under
discussion as one of the decfarations constituting in the Court's words,
'recognition by the Union Government of the continuance of its obliga-
tions under the Aiandate' ",they omit to state that the Court was not,
in that context, dealing with obligations under Article 6 ofthe Mandate,
which matter was dealt with quite separately by the Court. That is, in
truth, how the situation was dealt with by the Court.
In concluding our argument on this aspect of the case, 1can only Say
it is significant that in attempting to prove that Respondent, after
dissolution of the Ixague, rccognized the supervisory authority of the
United Nations, the Applicants rely only on these two matters with
which 1have just dealt, namely Respondent's submission of its proposa1
for incorporation to the United Nations and Respondent's letter of
23July 1947 A.pparently these were the only two remaining which were
considered of any use to the Applicants' case to refer to,but for the
reasons 1 have indicated neither of these affords any basis for theAppli-
cants' case-certainly, no basis for drawing any necessary inference
favourable to the Applicants' contention.
Now, hlr. President, we corne to the next phase of the case in regard to
Article 6 and that is how Respondent's attitude was understood by the
other States concerned, and what attitude was adoptcd, particularly in
the United Nations, in the years of transition and shortly aftenvards, on
the question whether the United Nations had supervisory power in
respect of the Mandate of South West Africa or not, but before dealing
specifically ulth the various aspects of this matter may 1 makeitclear in
what contert we spoke in our argument in chief, and what context we are
stillspeaking, of asupervisory poweron the part of the United Nations.
It is necessary to draw that distinction, Mr. President, because in428 SOUTH WEST APRICA
Applicants' argument, in reply, we find that a power or a competence in
regard to supervision is spoken of as something which could be derived,
for instance, from an article hke ArticlIO of the Charter of the United
Nations, dealing with the competence of the General Assembly. We find
also that the Applicants in their argument oII May refer to a contention
which we advanced to the Courtin our argument in chief, when we said
that-
"The Trusteeship Council [to which the first and the only report
in accordance with Article 73 (8) subrnitted by Respondent was
transmitted] did not consider that it was required to exercise a
supervisory power [in that regard]." (Su+ra,p. 192.)
Firçt may 1refer to what Applicants stated at that same page:
"Today, Respondent appears to argue, as understood by the
Applicants, that the Tnisteeship Council was not at that time
seeking to exercise or intending to exercise a supervisorauthority.
So we understand their contention,and perhaps we are wrong in the
way we interpret it."
At the same page, the Apphcmts indicate on what portion of the record
they base this interpretation of our contention. They say-
"Applicants' statement in this regard reflects the comment made
by Respondent in the verbatim record, VUI, at page 468, from
which 1 quote: 'The Trusteeship Council did not consider that it
\vas required to exercise a supervisory power in respect of this
report.' That refers to the report of46,submitted by Respondent
to the United Nations."
Now, &Ir.President, on this basis the Applicants proceeded todeal for
more than a day, if 1 remember correctly, with an analysis directed at
sho~vingthat what the Trusteeship Council, in fact, did amounted to the
exercise of a supervisory power, and that Respondent at the time com-
plained thereat and offered that as a reason why it would submit no
further reports. Applicants made high play of a so-called "conflict"
between our present attitude and the attitude adopted at that time.
There is, of course, no such conflict whatsoever. It is perfectly true that
what the Trusteeship Councilactuaiiy did in that regard and the attitude
taken by the majority of its members as to what it should do in practice,
ail amounted in effect to the same as what the exercise of a supervisory
power would have been. That we never intended to dispute. That indeed
we referred to in portions of our record as the reason given by us at the
time, and correctly given at the time, why the submission of the reports
would be discontinued, and there isno conflict whatsoever between that
attitude and the attitude we take now. The miçunderstanding, Mr,
President, or the reason why our argument and that of Applicants have
passed one another isbecause ofan anibiguity in this questioofwhat the
exercise of a supervisory power in this context means. For two purposes,
both because of the A plicants' references, to which I shall refer again
later, to ArticlIO of t e Charter of the United Nations, and because of
Council, it is necessary at the outset to make clear what our contention
in regard to a supervisory power means and has always meant. In the
Counter-Memorial, II, at page 117, we stated the folIowing: REJOINDER OF MR. DE VILLTERS 429
"Although commentators reque~itlyemploy the broad descriptive
terms 'League supervision'and 'supervisory functions of the League',
such phraseology did not occur in the relevant provisions of Article
22 of the Covenant or of the Mandate instruments."
Ive then examined these provisions of the Covenant and we concluded,
Mr. President, at page 118, "It is evident, therefore, that the essence of
Leagwesupervision or the supemisory functiorzs of the League was the
Mandatories' obtigutioftto reportaladaccountto the Council of the League
in respect of cornpliance wth the substantive obligations pertaining to
administration of the territories and protection and development of the
inhabitants". We made itclear throughout Ourfurther treatment of the
subjectin the pleadings, and indeed 1should havethought 1 made it clear
in the treatment of the subject here in the Oral Proceedings, that that
was the sense in which we spoke of supervisory powers, supervisory
functions. The problem before the Court iswhether supervisory functions
in this sense have passed to the United Nations, in other words, whether
Respondent is now obliged to report and account to the United Nations
as successor to the League of Nations. The essence is the question of an
obligation on the part of the Respondent. The superviso~ power in the
sense in which we discuss, is a counterpart of that obligation, and asthe
Applicants now concede, such a succession from the League of Nations
to the United Nations, in respect of a supervisory power in that sense,
required consent on the part of the Respondent. The main issue between
the Parties js whether such consent was given. Therefore, Mr. President,
when considering the attitude of other States and, in particular, of
Members of the United Nations, the nature of this issue between the
Parties must be firmly kept in mind. Although, when viewing the matter
from the point of viewof the United Nations, the question ai issuemay be
posited as being whether the United Nations now possess a supervisory
power in respect of Mandates, it must never be forgotten that the ex-
pression "supervisory powers" is used in this context in a special sense,
viz., as denoting the power that would be exercisable by reason of an
obligation on the part of the Respondent to report and account under the
Mandate to the United Nations-that is the only sense in which we
speak in thiscontext of a supervisory power. Whether the United Eations
in fact possesses, or whether some blernbers consider that it possesses,
supervisory powers ofa different nature or arising in somedifferent way-
that is not directly relevant tthe issues before the Court at all. It would
be material only to the extent to which it tends to prove or to disprove
the existence of a right of supervision under the Mandate in the sense in
which 1 have described it.
One may perhaps, as a matter of words, distinguish in this regard be-
tween the concept of a supervisory power of the organization being the
counterpart of the obligation on the part of the Mandatory, and, on the
other hand, a supervisory competence of a particular organ; meaning that
if there should be a power in the organization of the type of which we
speak, then a particular organ may or may not be competent to exercise
that power on behalf of the organization. That isa constitutional question
within the organization itself, but it does not and cannot affect the
question whether the organization as such has a superviçory power in the
senseinwhich wespeak ofit, for the purposes inissuebetween the Parties.
Mr.President, that this constituted the true issuebetween the Parties,
and that our argument in chief proceeded on that basis, 1 submit is430 SOUTH WEST AFRICA
perfectly clear, The passagewhich 1 cited earlier, an expressionwhich we
üsed in relation to what the Trusteeship Council didin this regard, is of
course arnbiguous when taken by itself, when taken out of its context,
standing al1 by itself and reading that the Trusteeship Council did not
think it \vas esercising a supervisorypower. Of course, the expression
"supervisory power" could be an ambiguous expression, taken by itself,
but when taken in the context of the argument as submitted to the
Court, after the same expression \vas used throughout, even on both
pages on eithcr side of the expressio~irelied upoby Applicants, it must
have been perfectly clear what our trüe contention was.
On 30 hlarch, Mr. President, in commencing the exposition of the
issuesbetween the Parties on this aspect of the case, we stated at VIII,
page zSoof the relative verbatim:
"... these legal issues are whether the Mandate is still in force and,
ifso,whether Respondent isobliged to report and account in respect
thereof to the General Assembly of the United Nations, as it was
obliged to report fomerly to the Council of the League, and whether
itisobliged forthat purpose also to transmit petitionsfrom inhabi-
tants of the Territory to the General Assembly"
-the accent being, Mr. President, on the obligatioii.
Later on the same day, at page 283, we stated: "The fundamental
question is. ..whether by some process or principle of laa substitution
of supervisory organ has been effected in sucha way as to be binding in
law on the rnandatory, in such away as to convert the original obligation
of the rnandatory to report to organA into as being now a new obligation
to report to organB. That is the fundamental question.The Respondent's
submission is tliatthere has been no such substitution of the supervisory
organs. The Applicantç sajr that there has been a substitution of the
supervisory organ, and that is the fundamental issue with which 1 have
to deal in this first part my argument."
1 can give the Court references to similar statementsin the verbatim
records ofz April, atVIII,pages 371, 372 and 391, of 5April at page 391,
and of 7 April, at page 459.
Having regard more specifically to the practice of States to the attitude
espressed by States, we said in the verbatim recorof 30 March, at VIII,
page 288:
".. .we submit that analysis of the events during the establishment
of the UnitedXations and the dissolutionof the League sho\vsciearly
a general understanding between the States concerned. The under-
standing was to the effect that outside of a tmsteeship agreement or
other special arrangement between a mandatory power and the
United Nations, no mandatory would be obliged to report or account
to the United Nations regarding cornpliance with its mandate
obligations. We submit that that general understanding emerges
very clearly.
FVe submit further that the understanding is furtherconfirmed
by attitudes expressed shortly after 1945-194 and in particular
during the years rg47, 1948 and 1949 ,y United Nations Members
in debates and proceedings of the United Nations. We submit that
the analysis fiirther shows that the Respondent itself in fact never
agreed, either expïessly or by implication, either to a trusteeship
agreement or to any other special arrangement involving account- REJOINDER OF MR. DE YILLIERÇ 43 I
ability under the mandate to the United Nations. And, Mr.President,
it is very important because it bears on the same point, that Respon-
dent waç never understood by other interested States as having
agreed to such accountability."
That indicates from the start, Mr. President, the context in which
we undertook an analysis of the attitudesof the various Staes, and the
sense,to which 1referred before, in which the expression relied upon by
Applicants was used.
On7 April, in the verbatim, very near this particular statement relied
upon by the Applicants-I am not sure whether it was just before or
just afterwards-we stated-
". . . But as faras immediate reactions were concerned, reactions
indicating the manner in which the other governments-the other
Members of the United Nations-had understood the Union's
attitude, there was absolute unanimous confirmation ofwhat 1 have
been submitting to tlie Court, namely that outside of tmsteeship
there would be no obligation on the part of the Union Government
to report and account to the United Nations in respect of its ad-
ministration of South West Africa". (VIII, p. 466.)
That, Mr. President, occurred in the middle ofpage 466 of the record
of 7 April, just a fewpages before the statement we niade that "the very
body to which the report referred, namely the Tmsteeship Council, did
not regard it as such".
I may just point out that it wasin this same sense that we went on to
state at page 468 of that record:
"That is the preamble of this very resolution relied upon by the
Applicants, a preamble indicating a contemplation exactly in
accordance with what 1 have been advancing to the Court al1 this
morning and part ofyesterday, on what the attitude was as expressed
by the Union Government to the United Nations." (VIII,p. 468.1
Then followed an indication of the original contention of the Applicants
in this regard, nameiy that:
"Although the Council, in the exercise of its cornpetence, did not
agree upon the extcnt of supervision, there was no doubt as to the
lega1authority of the CounciI to examine the report of the mandatory
power and submit observations thereon. Notwithstandiiig the
dissolution of the League, it ivaagreed that the Mandate continued
in full force and effect, and that the United Nations was tlie proper
supervisory authority." (Ibid.)
That was the question to which we then directed our further analysis,
and we said at the very next page:
"In these circumstances 1 shall analyse the attitude adopted by
each of the member States of this Tmsteeship Council in the order
1 have indicated, i.c., the attitude they adopted with regard to
Respondent's obligations to the United Nations in respect of its
administration of South West Africa." (VIII,p. 469.)
Air.President, 1should have thought that in that context the purpose
of the analysis was perfectly clearIt was not to sec whether the Trustee-
ship Council could in some sense, under the particular circurnstances, Fe
said to be doingsomething which in practicewould amount to the exercise
of supervisory power. The analysis was not related to the question432 SOUTH WEST AFRlCA
whether a particular organ of a particular body would have competence
to esercise a supervisory power ifthere was an obligation on the part of
the mandatory concerned. It was concerned with an obligation on the
Mandatory's part, and more particularly the attitude of the various
States on that question of such an obligation. And that is so, was made
absolutely clear when we came to the conclusion of our treatment of this
topic, Le., the attitudes of the States in the Tmsteeship CounciI. That
conclusion is stated in the verbatim report of '8 April and it read as
follows:
"Xot inone single case, therefore&Ir.President, of these members
of the Trusteeship Council, do Ive iïnd an attitude supporting, or
corresponding with, that taken up by the Applicants in this case.
Not one of them took up the attitude that there was agreement,
consent, acquiescence, on the part ofthe South Africaii Government
to a substitution of supervisory organs, and that on that basis the
United Nations had supervisory functions or powers outside trus-
teeship." (VIII, p. 486.)
Those were the concludingwordsof this review. That was the argument
to which the Applicants were required to address a reply, ifthey had
anp reply. The effect of their treatment of the rnatter is therefore,
Mr. President, that they never addressed themselves in their reply to the
real issue between the parties at al]. They spent, as 1 said, more than a
day in demonstrating something which never was in issue, demonstrating
a situation which, if it in fact occurred, ~vould have been ofthe same
nature in practice as the exercise of the supervisory power. They never
addressed thernselves to the real demonstration on Our part, that as far
as an obligation to submit to such supervision outside of trusteeship on
the part of the Union Government was concerned, there was no State
which could point to any basis of consent, agreement or the like, orcould
have even attempted to do so, in suggesting that any such obligation did
exist, that the greater majority of the States made it perfectly clear as a
matter of law that they realized that there was no such obligation, and
that in the case of the three States which showed uncertain attitudes in
that regard, not one of them based the attitude they took on an allegation
of consent on the Respondent's part.
So hlr. President, since the issue between the Parties is whether
Respondent is obliged under the Mandate to report and account to the
United Nations, it is unimportant to determine which organ of the
United Nations would have supervisory cornpetence if such an obligation
existed. The crucial issue relates to the powers of the organization, and
not tu the interna1 arrangements which would be required if such powers
existed. Consequently, a distinction must be drawn between the powers
exercisable by the United Nations as an organization, and the powers, or
an organ of the United Nations. The extent of the polvers of the Generalas
Assernbly can on@become of relevance if it has been established, or if it
is assumed, that the United Nations has competence in respect of the
matter under consideration. LVeshall show that a confusion between
these two concepts apparently underlies the Applicants' argument,
particularly as regards the application of ArticleIO of the Charter.
And the further dernent of confusion is the one to which 1 have
referred, namely regarding the sense in which one could speak of super- REJOINDER OF MR. DE VILLIERS 433
vision, orasupervisory power, with respect to what was actually done in a
particular body. Where the United Nations has performed certain
activities pursuant to a voluntary act, or an ad hoc consent on the
Respondent's part, such as occurred with respect to the report for the
year 1946, the question still remains whether the performance of such
activities provides any relevant indications as to the existence of an
obligation on Respondent's part to report and account under the Mandate
to the United Nations. The mcre fact that the activities may or may not
appropriately be called supervision is not by itself of any importance.
The question is whether such activities invalved a contemplation or a
claim that Respondent was obliged by virtue of operative consent on its
part to report and account under the Mandate.
So 1 shall demonstrate, Mr. President, in what follows now, in some
more detail than previously, that because of this confusion, becauseof a
failure by the Applicants to address themselves to the real question at
issue between the Parties, Our case in thcse major respects in tmth
stands unanswered. The demonstrations by the Applicants on both these
matters, viz., on ArticleIO of the Charter and on the fact that ivhat was
done in the Trusteeship Council in practice amounted to the exercise of a
supervisory power, that did not meet Our case at all, and Our real case
stands unanswered.
IIay 1 revert kst to the effect of Article IO, and the Applicants'
argument in that regard? The Applicants Say in the verbatim record of
IO May, at page 174, SUPY : U
"The United Nations . . was vested by Article IO of the Charter
with competence to undertake the task of devising special methods
for dealing with anymandated territory which might not be brought
into the trusteeship system."
IVith respect, the Court would see that the contention isthat Article IO
vested such cornpetence in the United Nations.
And then again, in the verbatim record of 12 May, at page 240, supra,
they Say-
"The United Nations is endowed by Article IO,it is invested by
the Charter with competence to supervise the Mandate."
And we find this contention advnnced and developed in other parts of the
present Oral Proceedings. 1 could refer the Court also to the verbatirn
record of 7 May, at pages 117-119 and 120,supra; the verbatim record of
IO May, at pages 173-17 and also page 176, supra; the verbatim record
of II May, at pages 190-214 t;e verbatim record of 12 May, at pages 220
and zz4-227,supra.
Now, $Ir. President, this contention requires a more specific examina-
tion of the purpose and efTectof Article IO. 1 have already indicated in
broad outIine what our contention is in that regard, but it may be desir-
able to have brief regard to the whole scherne of the Charter, in so far
as it is relevant.
After the Preamble, the Charter is divided into a number of chapters.
Chapter 1 sets out the purposes and principles of the United Nations as
an organization. Chapter IIdeals with the topic of membership of the
Organization, and provides for the acquisition, lossand suspension of the
rights and privileges involved in such membership, Chapter III enu-
rnerates the organs of the OrganizationIn terms of Article7,the principal
organs are the following:434 SOUTH WEST AFRICA
"... a General AssembIy, a Security Council, an Economic and
Social Council, a Trvsteeship Council, an International Court of
Justice, and a Secretariat".
Thenext chapter, Chapter IV, is headed "The General Assernbly", and it
is follo~ed by Chapter V,~vhichbears the heading "The Security Council".
Chapter IV, dealing with the General Assembly, cornprehends Articles
9-22 inclusively. Articl9 issub-headed "Composition" and, as the head-
ingindicates, sets outthe composition of the General Assembly. The next
article is Articleo, with which we are now concerned, and the heading
of the Article is "Functions and powers", and it reads as foilows:
"The General Assembly may discuss anyquestionsor any matters
within the scope of the present Charter or relatinto the poxversand
functions of any organs provided for in the present Charter, and,
except as provided in Article12, may make recommendations to the
Members of the United Nations or to the Security Council or to both
on any such questions or matters."
Article12, to which reference is made inArticle IO, qualifies the wide
ambit of Article IO by limiting the powers of the General Assembly in
respect of matters being dealt ~4th by the Security Council-that isa
qualification; otherwise the scope is as indicated by the wording of the
Article.
It will be clear, Mr. President, in Our submission, that both by its
wording and by its position in the scheme of the Charter, Article ro
relates only to the functions of the General Assembly as a particular
organ of the United Nations. It does not purport to define the functions
of the Organization-that isdone in Chapter 1.Consequently, if a dispute
were to arise whether any particular rnatter falls within the cornpetence
of the United Kations, Article 10 could not be of any assistancein resolv-
ing such a dispute-that would be a prior question. On the other hand,
once itis established that a matter does fall withithe competence of the
United Nations, and the problem is merely to ascertain which organ could
appropriately deal with it, ArticleIOwould in most instances provide the
answer.
Mr. President, what I have just stated is so obviousin my submission,
that one finds as a practical resiilt that commentators generally do not
devote much attention thereto. We find that Kelsen in hisTheLaw ofthe
U~ilted Nations (1950 s)ys, very broadly, at pages198-199:
"By Article IO the General Assembly is cornpetent not only to
discuss any matter within the competence of the United Kations
but also to make recommendations on any such matter."
A very correct: short statemcnt, in Our submission, Mr. President-"a~iy
matter within the competence of the United Nations", the prior question
therefore being posed xvhether that matter is withinthe competence of
the United Nations.
Goodrich and Harnbro Say in their Charter O/ the Ulzited Natioies,
2nd edition, 1949 ,t pages 151-15 under the headirig "Scope of General
Assembly's Power" :
"Article IO of the Charter empowers the General Assembly to
discuss 'any questions or any matters within the scope of the ...
Charter or relating to the powers and functioris of any organs
provided for in the ...Charter'. The very fact that this Articlehas REJOINDER OF BIR. DE VILLIERS 435
been put at the beginning of the enümeration of the powers of the
Assembly suggests the importance to be attached to it. It is the key
to the whole role of the General Assembly in the United Nations.
The General Assembly has thereby been designated as the open
conscience of the world. It isa world forum where aii important
questions within the scope of the Charter can be discussed."
We submit, Mr. President, that this interpretation was also the one
placed on the Article by this Court in the 1950 Opinion. The Court said
at page 137:
"The competence of the General Assembly of the United Nations
to exercisesuch supervision and to receive and examine reports is
derived from the provisions of Article IO of the Charter, which
authorizes the General Assembly to discuss any questions or any
matters within the scope ofthe Charter and to make recommenda-
tions on these questions or matters to the hIembers of the United'
Nations."
In OurCounter-Memorial, II,at page 143 , e said that this statement-
"is concerned merely with the determination within the United
hTationsof an organ which would be competent to undertake the
supervision: but this would have no relevance in the enquiry unless
there should be an obligation to submit to United Nations super-
vision".
And we added that this passage "clearly proceeds on the basis that
such an obligation has been affirmatively established by the first three
stages" of the Court's reasoning. This construction of the Court's Opinion
is, in our submission, the only one whichiscompatible with the language
used by the Court aiid the language of the Article itself. Indeed, Mr. Pres-
ident, if the Court had considered that Articlc IO could in some way
authorize the General Assembly to incrense the power of the United
Nations by imposing a duty upon Respondent to render accounts to that
Organization, which duty did not exist by the Respondent's consent,
then there would have been no necessity for the Court to refer to any of
the other reasons in support of its conclusion; then it would simply have
based its Opinion on Article ~o-it need not have said anything else. Iis
quite clear that such a constmction of Article IO would have been
completely unjustified, and that it was, in fact, not a construction
intended by the Court.
It is not clear from the Applicants' argument whether they agree with
this interpretation,or whether they attempt to give a wider effect to the
ArticIe.If they invoke Article IO onIy as a vehicle for establishing that
the General Assembly, as a specific organ, wns competent to examine
the reports which the Respondent allegedly uildertook to submit to the
United Nations asan organization, then we would not quarre1 with their
interpretation of Article IO; our dispute would then be lirnited to the
factual questions whether such an undertaking was indeed given, and
whether the General Assembly purported to exercise powers of super-
vision pursuant to such an undertaking. However, Ah. President, if the
Applicants contend (and their repeated references to Article IO would
suggest that they do contend) that Article ro possesses any wider
significance, and can in some way operate to impose an obligation of
accountability on the Respondent which the Respondent did not volun-436 SOUTH WEST AFRICA
tarily assume, then we submit, for the reasons I have given, that such a
contention would be untenable.
This bnngs me, Mr. President, to the question of Palestine, as now
dealt with in this context by the Applicants in their oral reply. It may
be convenient to set out hst, briefl , the history of references to this
issue. In our printed Prehinary 8 bjections at 1, pages 334-336, we
quoted certain extracts from the Report of the Special Committee on
Palestine (U.N.S.C.O.P.) as showing the Committee's-
"understanding that there was, as from the dissolution of the
League, no supervisory authority in respect of the administration
of Palestine and no obligation on the part of the Mandatory to
submit to any supervision". (1, p. 335.)
- -
This was the sarne formulation of Supervisory authority as being the
counterpart of .the obligation on the partof the Ilandatory to submit
to any supervision.
This contention we repeated inthe Oral Proceedings on the Preiiminary
to70.tThe passages in question read as follows:morial, II, at pages 68
"(c) The case of Palestine was investigated and reported upon by a
United Nations Special Committee, consisting of representatives of
the following eleven Members of the United Notions: Australia,
Canada. CzechosIovakia, Guatemala, India, Iran, the Netherlands,
Pem, Sweden, Uruguay and Yugoslavia.
The following are extracts from the Cornmittee's report dated
3rd Septernber, r947,al1from portions unanimusly agreed to by the
Committee.
'Following the Second World War, the establishment of the
United Nations in 1945 and the dissolution of the League of
Nations the follo~vingyear opened a new phase in the history of
the mandatory régime.The mandatory Power, in the absence of
the League and its Permanent Mandates Commission, had no
internationalauthorityto whicRit wight swbmitreportsa& gene~ally
acco~ntfor the exercise of its responsibilitiesin accordance with
the termç of the Mandate. Havingthis inmimi, at the finalsession
of the League Assembly the UnitedKingdom rq5resentativedeclared
that Palestine ~ould be administered "in accordancewith the
generalprinciples" of the existing Mandate until "fresh arrange-
ments had been reached".'
After recommending unanimously that :
'The Mandate for Palestine shall be terminated at the earliest
practicable date',
the Committee commented as follows:
'(d) Itmay be seriously questioned whether, in any event, the
Mandate lvould now be possible of execution. The essential feature
of the mandates system was that it gave an international status
to the mandated territories. This invoIved a positive eIement of
international responsibility for the mandated temtories and an
inter.nationalaccountabilityiothe Council of the Leagweof Nations
on the part of each mandatol for the well-being and development
of the peoples of those territones. The Permanent Mandates
Commission was created for the specific purpose of assisting the REJOINDER OF MR. DE VILLIERS
437
Council of the League in this function. But the League of Kations
and the hfandates Commission have been dissolved, and tlzereis
now no means of dischargingfe~llythe international obligationwith
regardto a mandatedterritoryotherthan by+lacingthetevritoryunder
theInternational TrusteeshifiSystem of the United Nations.
(8) The International Trusteeship System, however, has not
automaticallyhken overthe funclionç of the mandates systern with
regard to mandated territories. Territories can be placed under
Trusteeship only by means of individual Trusteeship Agreements
approved by a two-thirds majority of the General Assembly.
If) The most themandatorycouldnow do,therefore,in theeventof
thecontinuationof theMandate,wouldbetocary out iisadministra-
internationatobligationsin accordancewilhthei~zlerlotf themandatess
syslem. At the tirne of the termination of the Permanent Mandates
Commission in April, 1946, the mandatory Power did, in fact,
declare its intention to carry on the administration of Palestine,
pending a new arrangement, in accordance with the general
principIes of the Mandate. The mandatory Power haç itself now
referred the mattcr to the United Nations.' " (II, pp. 68-69.)
air. President, 1have read the whole of this long quotation again and 1
have done it for a purpose. The purpose is this: to make it clear that our
attitude, which we have stated as from the Preliminary Objections stages
already, and consistently throughout these proceedings, about this
UNSCOYreport on Palestine, is one which is based not on a word here or
be taken out of its context or rnay be viewed on itç own so as to open the
door for a retort:weli,that iswhat you rely upon but when you look at al1
the circurnstances and al1the aspects of context you are not correct in
relyingon that view of the report of this Cornmittee. The whole of this
portion which 1 have read to the Court, in three or four passages of
different wording, makes the contemplation of this II-nation Committee
so perfectIy clear. It makcs it soclear that thcir contemplation was that
with the disappearnnce of the League and with the disappearance of the
Permanent Mandates Commission and the Council, there was no other
body to which reports çould be made.
This is so directly in conflict with any suggestion of an understanding
or a contemplation on the part of any of the States concerned that there
was a continuing obligation to report and account, because how could
that obligation exist or be operative without a body to which those
reports could be made?
There are portions of these extracts to which no anstver has at any
stage been oflered by the Applicants in their pleadings or in their oral
presentation. The followingis one instance:
"The rnandatory ~ower, in the absence of the League and ii
Permanent Mandates Commission, had no international authority
to which it might submit reports and generally account for the
exercise of its responsibiliti.. ."
That, Mr. President, as far as 1 can recall, thc Applicants have never
attempted to reply to in al1their dealings \vit11the matter.
Sirnilarly, this other sentence:
"But the League of Nations and the Mandates Commission have RE JOINDER OF MR. DE VILLIERS 439
into the discussion, through the pleadings.1 indicated how wefirst raised
it with reference to extracts from the UNSCOP report, how the Appli-
cants' attitude was at first confined to defence, and how they did not
attempt to derive positive support from the events regarding Palestine,
but how they have tried to do so in these Oral Proceedings, by contending
that the handling of the Palestine problem by the United Nations showed
that it wasconsidered that the United Nations had authority to supervise
the administration and termination oi the Mandate.
Our submission in that regard, to which 1refer again,isthat the whole
basis upon which the United Nations could act in the matter, in those
respects, was submission of the rnatter to the United Nations by the
mandatory power concerned, the United Kingdom, and that the compe-
tence of the United Nations arose from the United Kingdom's consent
and request.
Proceeding from there, Mr. President, it is also, in our submission,
noteworthy that the recommendations of the Special Committee went
very far beyond anything comprehended in the ordinary processes of
supervision in respect of mandates. In the verbatim record of 8 April
we considercd the nature of the recommendations of the Committee and
we showed that such recommendations could not have been, and did not
purport to be, based on any suggested power of supervision in respect of
mandates, but were clearly based on the request of the United Kingdom.
1can refer the Court tothe record of 8April, at VIII, pages493-500.
The Applicants in their reply, in the first place, conceded tliat in order
to deal with the exigencies of the situation the United Nations exercised
far wider powcrs than the League of Nations could have exercised under
the Mandate. They also conceded that these United Nations activities
could not have been undertaken Save lvith the consent and CO-operation
of the United Kingdom-when 1 Say "these activities" 1 mean these
which went beyond the ordinary confines of supervision. That, 1 think,
appears clearly from what they stated in the verbatim record of IO May.
ai pages 179-18s 0upra.
Jt woiild thereforeseem, hlr. President, to be common cause that thc
actual activities of the Commission, at any rate in so far as they tran-
scended the exercise of normal supervisory functions, required the consent
of the United Kingdom, and the dispute seems to centre around the
question of the ordinarqr supervisorv functions.The question is whether
there is anything to suggest that, in the absence of specific rcference by
the United Kingclom, the Committee or the United Nations generally
woutd, in any event, have possessed ordinary supervisory functions under
the Mandate.
Now, in our submission, the absence of such functions is clearly
indicated by the terms of the Cornmittee's report, which 1 quoted to the
- Court again yesterday, and which could hardly be clearer. Despite that
very clear tenor of the report (and, as 1 pointed out yesterday, the
Applicants have never in their argument realiy met the crucial aspects of
that report-of those esiracts which 1 read again yesterdap), \ve find
that the Applicants nevertheless make statements to the contrary effect,
such as: ". ..the basis of United Nations cornpetence was rooted in the
proposition that the United Nations was exercising supervision over a
Rlandated territory" (p. 176, supra). In the çame record, at page 179,
supra, the Applicants stated: "The Assembly was supervising a mandate
-that is clear, obvious-but it was doing something much more, in44O SOUTH WEST AFRICA
addition, andthe accomplishment of that additionai burden and function
depended largely upon the CO-operationof the Riandatory Power".
In the verbatim record of Ir May, at page 186supra, they said:
"The General Assembly, at al1times, evidenced a broad conception
of its competence in the Palestine question, a competence which was
based on the Assembly's supervisory powers under the Mandate,
even though it went far beyond the limits of those powers to meet
the exigencies of the proble~n."
And then, in the same record, at page 187,theystated :
"... references to consent of the United Kingdom, read in the
context of the problem itself, merely show that the United Nations
supert*içorypower over the mandate but wliich, in addition, went
far beyond the normal exerciseof such administrative authority",
JIr. President, as 1 have said, my iearned friends never made any
serious atternpt to reconciIe statements of this kind luith the very clear
terms of the report, to which 1 referred yesterday. The question is
whether there was anything else whatsoever to which my leamed friends
could referin support of these subrnissions. They did refer to a number of
factors but, in our submission it becornes quite clear, on analysis, that
not one of those factors supports them.
They say, first of al], that the mandate was regarded "as still in
existence" (p.177, supra). It seems clear, Mr. President, that this was
widely acceyted, interdia, by the Special Cornmittee, with the reserva-
tionç which were expressed in that regard and which we noted again
supen~isory functionshinrespect of mandates had passed to the United
Xations, seems equally clear, particularly from the passage of the report
which we quoted.
Then, Bk. President, atpage 177 ,ttfirof the same record of IO May,
thereis a reference to the so-called "British pledge". The contention is
really put in the negative. 1 should like to refer the Court to ttemç
thereof:
"To interpret this as a grant ofspecial power to the United Nations
to carry out normal responsibilitiofsupervision under the Mandate,
as if that did not exist without this grant of pobver,if it may be
called one, would çeem to me to involve a strange construction
indeed of the British pledge and the British position historically."
That was the way in which it was put by my learned friend at the page
indicated.
Now, hlr. President, that British statement of April rg46, which is
apparently the one referred to as a pledge, seenls in itself, with its .
reference to the general principles of the Mandate, to exclude a contem-
plation of accountability towardç the United Nations, and, when it is
read in conjunction with the passages from the UNSCOP report which 1
read yesterday, the matter becomes clear beyond doubt. This is alço a
point ivhich has never been met by the Applicants in anything which
they havesubmitted to the Court-Le., the rnanner in whch that British
pIedge is dealt with in the UNSCOPreport.
Next, Mr. President, they stated in the same record, at page 178,sufra,
that the Cornmittee did not question "or deny the competence of the REJOIXDER OF MR. DE VILLIERS 44
United Nations to serve as the international agency for givjng efiect to
the central obligation of submitting to supervision". But, Mr. President,
how can itbe said that the Committee did not question, or deny this,
in the face of the passages froin the report which1 read yesterday, and
which are not met or dealt with?
Then, Mr. President, my lesrned friends relied strongly on certain
discussions in theAd Hoc Committee on the Palestinian Question. That
wefind inthe same record of IO May, at pages 180-182 supra. Ncverthe-
Iess, it is, in Our submissionhighly significant that the Applicants can
point to no single statementby any delegate which based the competence
of the United Nations on any transfer or succession of supervisory polvers
in respect of mandates. The delegates on that occasion-on the occasion
of deciding whether there was to be a request for an Advisory Opinion-
were divided into two categories. There were those who held that the
Mandate had lapsed and that, for that reason, inter alia, the United
Nations could not exercise further rights in respect of the Territory.
Thecontrary view, which one can put broadly as being that action by the
United Nations was inlra vires,eventually carried the day. That view
was fomulated by different speakers on a number of bases.
The delegate of the United States of America, to whorn we can refer
as an example, stated the following:
"The mandatory power had requested the United Nations to make
recommendations for the future Government of Palestine and had
unilaterallydeclared that it was relinquishing its responsibjlity.
Hence any legal objections to the actions of the General AssernbIy
must be formal in character. The United States delegation would
support the proposais of Sub-Cornmittee 1 which, inits view, met
the request of the filandatory Power." (G.A.,O.R., Second Session,
Ad HOC Committee on the Palestinian Question, p. 169.)
Thus the delegate, Mr. President, firmly based the attitude of the United
States on the request of the mandatory power and the declaration that it
was relinquishing its responsibility.
The importance of the attitude of the United Kingdom Government
was also stressed bythe Polish delegate. He said, in that same record, at
page 160, the following:
"The situation was that the Mandatory Power had notified its
decision to terminate thc Mandate and to withdraw from Palestine.
Tthad requested [the mandatory power] the General Assembly to
make recommendations for the future govemment of the country.
It had, however, made it clear that it did notwish to participate in
the irnplementation of a solution which did not meet with the approv-
al of both Jews and Arabs. Neither of the plans submitted satisfied
that condition and ilwas highly improbable that such a plan could
be dram up. Since the United Kingdom had stated tliat it was
prepared to transfer its powers only to an organ of the United
Nations, the United Nations was obliged to establish such an organ."
This statement came, Mr. President, fairly near the beginning of the
speech in which the delegate of Poland was replying to various points
which had been raiscd in regard to the report then under consideration,
including the question of the competence of the United Nations to
proceed with the matter at all. He started off with the actions of the442 SOUTH WEST AFKLCA
mandatory power-its consent, its decision and its reference of the matter
to the United Nations-and he proceeded, Mr. President, with regard to
the General Assembly's right to make recomniendations, to refer to
Articles IO and 14 of the Charter, particularlyArticle IO.That is in the
same record, at page 161.
As we iioted yesterday, ArticleIO granted competence to the General
Assembly only in respect of questions falling within the scope of the
Charter. That aspect of the matter was also referred to by the Polish
delegate. Followiiig up the question whetlier this was a matter falling
within the scope of the Charter, he took the view that thequestion to be
decided was essentially that of the future government of a territory whose
population was not yet self-goveming. He therefore regarded the pro-
visions of Article I of the Charter and of Chapters XI and XII of the
Charter as being applicable: these provisions would then bring the matter
within the scope of the Charter, and Article IOwould bring it within the
scope of the competence of the General Assembly.
In regard to Article I, he specifically referred to the objective, or
purpose, of specific settlement of disputes endangering general welfare or
friendly relatioiis, andin regard to Chapters XI and XII he stated,
particularly with regard to Articles77 and 79,as follows:
"Those Articles had been included in the Charter for the purpose
of emphasizing that the United Nations should assume the responsi-
bilities of the League of Nations in respect of peoples who had not
yet become independent." (C.A., O.X. ,econd Session, Ad Hoc
Committee on the Palestinian Question, p. 161.)
This,Mr. President, was the expression of a broad view of the competence
of the United Nations to deal with a question of this kind-a question
which the Polish delegate defined, as 1 have said, as being, essentially,
one of the future government of a territory whose population was not yet
self-governing.
Finally, in dealing with the disputed validity of the Mandate, the
Polish delegate used the words quoted by the Applicants. They read as
foiiows(at pp. 161-162 of the same record) :
"... that the question had not been examined, but that it was
impossible to dispute the validity of theMandate conferred by the
League of Nations and confirrned by the terms of Article 80 of the
Charter. Altliough the functions ofthe 1-eague of Nations had corne
to an end, that did not mean that al1controt was thereby abolished.
That responsibility now rested with the United Nations."(G.A.,O.R.,
2nd Session, Ad Hoc Committee on the Palestinian Question,
pp. 161-162.)
In the lighof the whole of this speech, of whic1 have attempted to give
certainsalient features to the Court, it becornes clearMr. President, in
Oursubmission, that the responsibility to which the honourable delegate
referred was clearly related to that which he considered to be provided
by Chapters XI and XII of the Charter-and particularly by Articles77
and 79, in the sense which he had ascribed to them-plus, perhaps, the
purposes of the arganization as set out in Articler of the Charter-the
purposes rclating to specific settlement of disputes.
In the whole of this address thereforereading it inits proper context,
therc isnothing to suggest a contemplation on the part of the PoIish
delegate that, independently of consent on the part of the Mandatory, REJOINDER OF MR. DE VILLIERS 443
there would, or could, be any normal function of supervision of the
Mandate, or of mandatory administration by the United Nations.
Then, Mr. President, the Applicants quote, from the debates, further
references to Article ro of the Charter. These references are given iri the
verbatirn record of xo May, at pages 176 and 182, supru. However, as wc
noted before, Article IO serves only to grant competence to the General
Assernbly, as a particular organ of the United Nations, to consider
matters falling within the ambit of the Charter. ArticleIO does not define
which matters faIl within such ambit. 1 dealt with that fullyyesterday,
and in our submission it is quite clear that ArticleIO can never serve to
establish United Nations competence in a matter. In the case of Palestine,
United Nations competence in respect of the solutions actually proposed
could, and did, arise only from the consent of the parties directly inter-
ested, as the Applicants indeed concede.
If, in addition,RIr. President, a general power to discuss the future of
non-self-governing territories and to make non-binding recommendations
thereon, was granted by Chapters XI and XII, as conternplated by the
Poiish delegate, that grant would also not support the Applicants' thesis,
and the same would apply to any recornmendations regarding specific
settlements of disputes under the purposes contemplated in Article I of
the Charter. So reviewing the whole of these various attitudes expresscd
by various delegates with reference to Article IO, it becomes quite clear
that they do not, in any way, assist the Applicants' contention. It follows,
therefore, that the Applicants have not adduced anything to suggest that
the activities of the United Nations regnrding Palestine were based on
any supervisory power in respect of mandates exercised by the United
Nations as a successor to the League of Nations, in the sense that there
was an obligation on the part of the manclatory power to subrnit to such
supervision. Thejr statement, in one of the passages on record which I
have read. to the cffect that this was a "givenU-that the powcr to
exercise normal supervision was a "given" in the situation-is really in
our submission a pure ipse dixit. It is something which is not established
by aiiy material upon which the Applicants could rely or to which they
could refer the Court.
Finally, BTr.President, we find that some issue is made of the attitude
of the United Kingdom Governrnent; we find that done in the verbatim
record of IO May, at page 183, supra, and in the record of II May, at
page 184, sr~pra.In these passages, rny learned friends sought to draw a
distinction between on the one hand, accepting the sole responsibility
and, on the other hand, burden-sharing or acceptance of United Nations
recommendations in that regard. They said the attitude of the United
Kingdom Govcrnment was that it did not want the sole responsibility but
it was prepared to accept United Nations recommcndations on a bnsis of
"burden-sharing". That, Mr. President, does not, hoivever, invalidate
the Respondent's point, which is that the United Kingdom Government
reserved the power in certain circumstances not to accept or carry out
United Nations resolutions. The principle of that situation is of impor-
tance in regard tothe issue between the Parties.
Whether the United Kingdom Government was reasonable or un-
reasonable in reserving its rights as regards particular situations, is a
question of policy and is nota matter ivhich affects the issue between the
Parties as a question of law. The fact is, that the circurnstances which the
United Kingdom Government indicated as circurnstances under which SOUTH WEST AFRlCA
444
it would not accept any resolutions, were indeed wider than those
suggested by the Applicants; it was not mereIya rnatter of avoiding sole
responsibility. Thus, Mr. President, 1 can refer the Court to an extract
in the records we cited before, at pages 3-4.HOC Committee, appearing
"The United Kingdom Government was ready to assume the
responsibility foriving effect to any plan on which agreement was
reached by the Arabs and the Jews. If the AsçembIy were to rec-
Arabs, the United Kingdom Governrnent would not feel able tohe
implement it. It would then be necessary to provide for some alter-
native authority toimplement it. The United Kingdom Government
was not prepared to undertake the task of imposing a policy in
Palestine by force of arms. In considering any proposal that it
should participate in the execution of a settlement, it would have to
take into account both the inherent justice of the settlement and
the estent to which force would be required to give effect to it."
G.A., O.R., 2nd Session, Ad Hoc Cornmittee on the Palestinian
bucstion, pp. 3-4.)'
That makes it perfectly clear, Mr. President, in Our subrnission, that
the matter \vent very far beyond rnere concern about having sole res-
ponsibility. The matters in respect of which the position ofthe United
Kingdom Government was reserved with a view to not necessarily
accepting recommendations, extended far beyond that.
1conclude therefore, hfr. President, in regard to the Palestine question,
by saying that what the Applicants have added in their oral reply in
this regard, has provided no support for their case and has in no way
shaken or altered the fim support which the UNSCOP report provides
for Respondent's case in regard to Article 6.
1now proceed to revert to the Tnisteeçhip Councildebate on the report
for 1946which was in fact submitted by the South AfricanGovernrnent
for the information of the United Nations.
As 1 pointed out yesterday, the contention of the Applicants which
gave rise to the review which we gave on this point in our argument in
chief,was to the effect that there was in the Council "no doubt as to the
legal authority of the Council to examine the report of the mandatory
power and submit observations thereon". The quotation proceeds:
"Notwithstanding the dissolution of the League, it was agreed
that the Mandate continued in full force and effect, and that the
United Nations was the proper supervisory authority." (VIiI,
p. 160.)
In other words, &Ir. President, the topic was introduced by the
Applicants inan attempt to establish agreement among members of the
Tmsteeship Council to the effect which 1 have just mentioned. The
expression "proper supervisory authority" clearly refers to supervisory
authority under a mandate in force; that is the context of it: it was
agreed that the Mandate continued in fullforce and effectand that the
United Nations was the proper supervisory authority. And in support of
this contention the Applicants referred to statements by China, Belgium
and the United States of America-that was in their argument in chief,
and the reference is tothe sarne record of rg March, VIII,p. 160.
Now, Mr. President, the circumstances under which the South African REJOINDER OF BIR. DE VILLIERS 445
report was submitted to the United Nations have been discussed. It will
be recalled that the report was dealt with by the United Nations in terms
of the General Assembly resolution 141 (11).It wiIl also be recaued that
in the preamble to that resolution the Assembly acknowledged, amongst
others, that the Union Government had "undertaken to submit reports
on its administration for the information of the United Nations", and this
was, therefore, the basis upon whch the General Assembly authorized
the Trusteeship Council "to examine the report on South West Africa
recentIy submitted by the Government of the Union of South Africa and
to submit its observations thereon to the General Assembly". The whole
basis was that it was a report which had been submitted for the informa-
tion of the United Nations-a basis clearly so understood on both
sides.
In our oral argument in chief we, with submission, completely refuted
the Applicants' contention regarding the alleged agreement between the
12 States represented on the Council. After reviewing the attitudes taken
by each one of them at the tirne, both in those debates and in other
debates in other organs of the United Nations at the time, we reached
certain conclusions which we set out in a summary form in the verbatim
record of 8 April, at VIII, pages 485-486, and 1 should like to refer very
briefly to the gist of those conclusions with a view to taking the matter
further aç regards the issues that arose from the reply stage of the
Applicants.
Our first conclusion was that there were at least five of these States
which took up the attitude that the Mandate had lapsed on dissolution
of the League and that there was a sixth State, the United States of
Arnerica, which, through one of its representatives, statedthe contempla-
tion that the Mandate had lapsed and, through another, that it was still
in existence, but without accountability.
Secondly, we pointed out, we concluded, that nine States, including
the six just mentioned, took up a very clear and unqualified view to the
effect that, outçide ofa tmsteeship agreement, there was no supervisory
power on the part of the United Nations.
That left only three States-Cuba, the Philippines and Belgium. In
the case of Cuba and the Philippines, we submitted in the final summary
that their attitude was the following-
"that, although, in general, there was no supervisory power on the
part of the United Nations outside of trusteeship, there was an
opportunity for the Trusteeship Council to perform functions
sirnilar to those which had been performed by the Permanent
hlandntes Commission". (VIII, p. 486.)
In the case of Belgium, the twelfth State, wesubmitted that its attitude
was the following :
".. .on the one hand, that by virtue of ArticIe 80 (1)of the Charter
the people of the Territory were entitled to have the Territory
supervised . ..but on the other hand, Belgium recognized that there
had been no agreement by South Africa to have United Nations
supervisory organs substituted for those of the League". (Ibid.)
Then, in summary, we said:
"Not in one single case, therefore,Mr. President, of these mernbers
of the Trusteeship Council, do we find an attitude supporting, or SOUTH WEST AFRlCtZ
corresponding with, that taken up by the Applicants in this case.
Kot one of them took up the attitude that there was agreement,
consent, acquiescence, on the part of the South African Government
to a substitution of supervisory organs, and that on that basis the
United Nations had supervisory functions or powers, outside
trusteeship." (Ibid.)
That, iherefore, was the co~iclusioii, Mr. President, to which the
Applicants' reply was required to be directed. From the nature of the
argument to which we were replping at the time,as well as of the argument
which we werepreçenting,it wasquiteclear that theexamination relatedto
the questionwhether the Trusteeship Councilregarded itself asexercising a
power ofsupenrision under the Alandate as a successor to the Permanent
Mandates Commission or the League Councii a power which would have
involved a corresponding duty on the Respondent to report to the
Council. This point 1 also stressed again yesterday. The argument did
not deal with the question whether the Council's activities pursuaiit to
Respondent's voluntary transmission of information could or could not
appropriately be callcd supervision, or whether it couId or could not
appropriately be regarded as amounting to supervision, in practice.
That wüs not the question, tkat was not the point, asfar as the arguments
in chief were concerned. Yet, Mr. President, we find that it is to this point
that the Applicants chose to address themselves in their reply in the
verbatim record of II May, at pages 191, et seq., supra, andas I pointed
out yesterday, tliis realiy means that Our real argument on this subject
and Our real demonstration in that regard stand unanswered.
It is hardly necessary for me to Say anything more about the treatment
of the rnatter in the debates of the Trusteeship Council, but 1 may point
out that the Applicants clearly indicated an abandonment of their
contention which they originally advanced with reference to some hand-
picked statements. They abandoned the contention of an agreement
said to have been manifested in the Trusteeship Council that the Mandate
continued in full force and effect and that the United Nations was the
proper supervisory authority. They did not proceed to attemyt to estab-
lish that. We are told now, on the contrary, that :
"... there was confusion and there was considerable discussion of a
nature which, looked back upon now in these dusty records, is
ambiguous: one reason for the request for the 1950 Opinion".
(Supra, p. 198.)
In the context, air.President, of the argument in the verbatim record
of II May, at page 198,serfiraitseems perfectly clear that this statement
relates to these very proceedings in the Trusteeship Council-that it
at least inchdes a reference to those proceedings. As it would seem to us
from the context, this particular passage relates specifically to those
proceedings.
1 can also give the Court a reference to page 199, supra, of that same
record, where the Applicants stated this:
'1. . . the Iraqi view, as was the case of so many others at the time,
does indeed reflect confusion, with al1 respect to the distinguished
delegate of Iraq at the time, confusion and ambivalence".
Ilr. President, in rny submission, this concession by itself negatives448 SOUTH WEST AFRICA
Organization as the successor of the League of Nations as supervisory
organ in respect of mandates, in the sensc which 1have just mentioned.
regard it,andethe Applicants' demonstration that many States, including
the Respondent, regarded such an examination as amounting, in practice,
to supervision, which, Respondent asserted, was not justified, cannot
serve to alter this basic reality-the basic reality that there was no
contemplation of asupervisory power inthe proper sense to which I have
referred-a power binding the mandatory by way of an obligation on its
part-nor can it serve to assist the Applicants in any way.
The attempted distinction whichthe Applicants sought.to draw between
a wider and a narrower basis of supervision by the Trusteeship Council,
does not, Rlr. President, heIp in any way whatsoever in this inquiy-it
has no relevance. The wider and the narrower bases of supervision,
favoured by various hlembers of the Security Council, related to what
was being done in fact andinpractice. They did not relate to the question
whether there was a supervisory power on the part of the Organization
inthe sense under discussion.
The Applicants did not in any way attempt to refuteouï-evidence that
not one of the Members of the Tmsteeship Council expressed a view that
Respondent had, through consent, become obliged to submit to United
Nations supervision, and that nine Membersweredefinitely of the opinion
that,outside of trusteeship, there was no such obligation. Tlierefore,
Mr. President, to complete the remarks on these debates in the Trustee-
shipCouncilit is again a case of the argument in chief which wemade out,
standing unaltered and unaffected.
That brings us to the list o25 States. 1 may here also, for setting and
background, refer very brieflyto themanner in wkich this question arose.
The basic issue, of course, with which we are dealing, is the question
whether Respondent consented in 1945-194 6 accept the United
Nations as successor to the League of Nations for purposes of supervision
consider whether other Rlandatories manifested such consent. It isant to
hardly likely that there \vould have been any material difference in the
attitudes taken by the various Mandatones on this question, and,
Mr. President, inasmuch as a consent cannot be given in vacuo, a highly
relevant further test is whether the other States concerned-the other
States present at the final League Assembly in April rg46 and/or the
initial Members of the United Nations-understood that such a consent
had been given, either by Respondent or by any of the other mandatory
powers.
This test of establishing how the situation was understood by the
other States concerned, can best be applied by having regard to the
attitudes which were expressed bp such States immediately after the
events of 194j to 1946-in other words, during the ears 1946 to 1949.
That was the time rvhen the events of r945 to 194 were still fresh in
memory, and ivhen the same question of the possibility of United Nations
supervisory power outside of trusteeship arose in various practical
circumstances with reference tovarious mandates. The political alignment
in each instance was not alwayç the samc; there were different practical
considerations invoived in regard to this question with reference to
the manner in ~vhichit arose in regard to South IVestAfrica, and in regard
to various other Mandates-Palestine, the New Zealand Mandate of REJOINDER OF MR. DE VILLIERS 449
Samoa, and so forth-also the issue which arose in the Security Council
about the former Japanese Mandate, and as to the competence of the
Security Council jn that regard, a matter to which we referred before.
There, again, the political questions involved were different, but,
Mr. President, it is therefore very significant to see what was the con-
templation of the various States in these first years in relation to these
various tvays in which the question ~nanifested itseIf.
It is important when embarking upon this examination not to lose
sight of its purpose. The purpose must always be to ascertain firstly ,
whether the mandatories man~fested the consent in question in 1945 to
1946 and, secondly, whether such consent involved an undertaking to
give effect to Articl6 of the Mandate by rendering reports, as provided
for in that Article, to the United Nations as successor to the League of
Nations, on a cornpulsory basis.
Now, Mr. President, to this inquiry no direct answer is provided by
various rnatters which have been introduced into this discussion-
matters such as, firsty, the consideration that some States regardeditas
desirable, or considered it obligatory, foi-former hlandatories to conclude
trusteeskip agreements, does not aid the inquiry whether there was an
obligation to submit to United Nations supervision outside of trusteeship,
or whether there had been such a consent on the part of the mandatory
powers in 1945 or 1946.
Secondly, Blr. President, the consideration that some States regarded
Article 73 (e) as applicable and binding upon former Mandatories, does
not suggest a positive answer to the question whether there was an obli-
gation to report and account under Article6 of the Mandate, or the corres-
ponding Articles in the other mandates.
And, tliirdly, the consideration that some States considered the United
Natioiis competent to examine information voluntarily supplied by a
former Mandatory, or to make recomrncnclations and give advice on
matters subrnittcd to it by a former hlandatory, again, is an irrelevant
one; at least,it does not provide a favourabte answer for the Applicants
on the real question being investigated.
These matters, Mr. President, cannot by themselves be of relevance to
the issues before the Court, Save and except to the extent to which
expressions of opinion regarding them may bear upon the actuni issue,
narnely whether consents were given whereby former Mandatories were
obliged under the mandates to render account to the United Nations.
It was, therefore, in consideration of this question that the Respondent
embarked upon an inquiry in the pleadiiigs, an inquiry which was
repeated, to a large extent, in the oral presentation. The result thereof is
summarized in conclusions stated in the Counter-hlemorial, II, at
pages 140 to 141. /
The first element in the conclusion was an important one, and related
solely to the first year in which the South West Africa question came to
be extensively discussed-the year 1947. We pointed out that, up to the
end of that year, 41 States had taken part in debates on South West
Africa; we pointed out that South Africa, through its representative,
Mr. Lawrence, had in September, and again in November, of that year
made explicitly clear its attitude that, outside of trusteeship, therwas
no accountability on its part to the United Nations.
We pointed out also that New Zealand had adopted in that year a
simjlar view in relation to Western Samoa which was expressed at the450 SOUTH WEST AFRICA
United Nations, and yet one fouiid, Mr. President, that of al1 those
41 States which took part in the debates, and ofal1the others which did
not take part, not a single one voiced any contradiction to the attitude
so explicitly statedby hlr. Lawrence; not a single one.
Then we stated inthat concIusion that over the ycars 1947 to 1949 at
least 24 States, hIembers of the United Eations, other than the Respon-
dent itself, in participating in the debates and procecdings of organs of
the United Nations, or in expressing views in its agencies, whethcr iii
regard to the Mandate for South West Africa or to other Mandates,
demonstrated clearly, either expressly or by clesr implication, that in
their view, in the absence of a Trusteeship Agreement, the United Nations
would have no supervisory powers, in the sense under discussion, over a
mandated territory. And we gave the list of those 24 States. 1 need not
repeat the details again.
iVe pointed out, further, in this conclusion that up to 1949 only five
States voiced any contradiction to that proposition. ï'hey were Belgiurn,
Brazil, Cuba, lndia and Uruguay. In the case of the lut-inenlioned thrce,
we pointed out that their attitudes were inconsistent at various stages,
and we pointed out, further, that in nocase was the contradiction by any
of these five States based upon a suggested agreement or understanding
(other than Article 80 (1) of the Charter)-save for that qualification
there was no suggestion of an agreement or understanding arrived at
during the transitionaI period of1945 to rg46.
We pointed out further that up to 1949 there was at no stage any
contradiction of the kind under discussion, tvhich was voicedby either of
the two Applicant States, Liberia and Ethiopia.
That was the case we made on this point, and that waç the case which
we substantiauy repeated before the Court in dealing with the rnatter
in our prcsentation in chief.
Now let us see, Mr. President, how the Applicants attempted to whittle
down the significance of this analyçis. First, in their argument in chief,
with reference to what we have set out in our pleadings. and before we
could deaI with the matter in our oral presentation, rny learned friend,
Mr. Moore, sought to etirninate, firstly, the six States which were included,
as they said, merely because they had signed the Palestine report
(verbatim record of19 March 1965, at VIII,p. 165).1shall omit comment
for the moment, and 1 shaii merely give a summrtry of what his attitude
was at the time.
He proceeded, further, to attempt to elirninate Cuba, India and
Urupyay, which, as we had noted ourselves, had taken inconsistent
attitudes. They had spoken first in favour of non-accountability under
the hlandate, and had Iater switclied their position. That is very clear
from the record, as1had understood from my learned friend's contention.
There was riever any dispute on their part that there was such an in-
consistency.
Thirdly, they sought to elirninate the United States of America, which
had argued before the Court in1950in favour of accountability towards
the United Nations. On that basis they sought to exclude the United
States.
And, finally, they sought to exclude China and the Philippine Republic
on the strerigtli of certain statements made by them, again showing, in
their submission, an inconsistency, but not arguing away the original
statements on which we had relied when we put China and the Philippine REJOlNDER OF MR. DE VILLIERS 451
Republic on our list. That we find in the same record 19 3Iarch atVIII,
pages 165to 166.
Now in our argument recorded in the verbatim record of S April 1965,
atVIII, pages 499 and the folIowing, we pointed out the fallacy of this
argument of the Applicants, and we demonstrated that the most that
could be said in favour thereof was that,inaddition to Cuba, India and
Uruguay, the Philippines and the United States of Arnerica might
possibly be regarded as having been inconsistent on tlic point in issue. On
the other hand, it was submitted that Mexico should be included in the
list of States which had indicated a positive view that no succession of
supervisory functionshad taken place. Be that as it may, one major point
remained untouched. The major point was that there was no general
understanding among 3Icmberç of the United Nations to the effect that
the United Kations would have supervisory powers in respect of man-
dates not converted into trusteeships, but that the general consensus,
whatever figures involved, was to the contrary. In addition, &Ir.President,
we pointed out triaithroughout these debates no refereiice was made to
any "pledge" in April 1946 ,or, indeed, to any agreement or consent
said to have been given nnpvhere within the period 1945-1946.
In their reyly, tlie Applicants returnedtotlic fray. Eut we find that
here also they now restricted themselves to a very limited objective,
compared with the wide scope of the issue between the Parties as dealt
with in the arguments in chief. This limited objective was to show the
following:
". ..confusion and inconsistency, of course, attendedthe anomalous
situation created by the single, residual Mandate other than Palestine
itself, which confronter1 the United Nations with the necessity for
making a decision which it hoped it would never have to make but
which itpossessed power to make if necessary, and which it did
exercise, when it became necessary. And this situation of doubt,
confusion and ambiguity, of course, led to the submission by the
General Assetnbly of its request for an Advisory Opinion 1950 . . ."
(Supra, p. 224.)
Mr. President. this statement by the Applicants, by itself, and on its
face, establishes Our contention.Ifthere had been aclear understanding
in the years1945 to 1946,as aliegedby the Applicants, it seems absolutely
incomprehensible that there should have been this doubt,this confusion,
this ambiguity about the question in these years1946 to1949.
Surely,àlr. President, if an agreement and understanding had arisen
by implication, had been in the minds of the parties and was so clear that
they found it unnecessary to express it, then surely one or other of the
States involved would have said "but the position is so clear, there was
this agreement; there was this understanding; why should there be any
doubts, or any confusion or any ambiguity about it whatsoever"? On
that basis it becames quitc clear that the Applicants cannot, on a
foundation of a nccessary inference from circumstances, hope to establish
their contention. But Mr. President, in fact the mntter docs not end there.
An examination of the materinl adduced by the AppIicants does not
show any support for their theory of consent in April 1946 or in1945 to
1946 generalIy, and it does not seem, in any material way, to ~vhittle
down Our demonstration of the substantial consensus ïvhich, in fact,
existed in favour of our contention.452 SOUTH WEST AFRICA
The Applicants now attempt to reduce the list of 24 States, or 25 with
Mexico, even more than before-perhaps 1should Say 25 or 26, because
South Africa itçelf now cornes intoplay. We find this attempt of theirs in
the verbatim record of 12 May,at pages 220,supraand the foliowing.
Firstly, they return to the attack asregards the six signatories of the
Palestine Commission, of whom they say that they rnerely signed that
report. Mr. President, surely, for the reasons which we have givcn, this
attack inust again be regarded as conipletely repulsed. 'l'fiereaI point,
as it appears in the most significaiit passages of that report, has never
been met by my learned friends.
Also Cuba, India and Uruguay are again brought under fire, and the
position remains exactly the same as before. They are brought under fire
merely because the? were inconsistent-that that was so, was conceded
by us, but that does not take away the fact that they initially expressed
themselves in iavour of the Rcspondent's contention on this Iegal
question, and that they later became inconsistent with themselves in
that regard, and that is why we put them on the list. That they did
initially express those views, is not and cannot be contested.
In the case of the United States, it isnow said that it was not only
inconsiçtent, but that it was always doubtful of the correctness of its
statement regarding supervision, and that that doubt, or difficulty was
apparently first cleared up when the United States presented an argu-
ment to this Court in 1950 . ay I rcfer again, &Ir.President, to the way
in which this matter was now dealt with 1 should like to begin by
referring tothe verbatirn records oII Mayand SApril.
In the record of II May my learned friend, hlr. Groçs, was dealing
with a statement by hlr. Gerig to which we had referred earlier in our
oral presentation, and quoting from our previous presentation, he read
the following:
". ,.froin this quotation Respondent concIudes, quite categorically,
and 1 quote Respondent's statement, that nir. Gerig-
'... proceeds from the basis that the Mandate is in existenceas a
clear and explicit view to the effect that the UnitedNations had no
supervisory authority in respect of the Mandate'."
1 am reading from page 205. stcfira,othat record of Ir May.Mylearned
friend went on to point out that hfr. Gerig ended up his statement by
using the words "its duties under the present Mandate, admitting that it
exist", and he indicated that hlr. Gerig "was just doubtful about the
whole proposition"-thoçe were the words he used. Now, Mr. President,
in the first place there is a mistake here. In the record of 8 April, to
which my learned friend was replying, we had referred to two statements
of Mr. Gerig, not onlv to this one. We referred. first, at VIII, page 482,
stbpraof the record of8April to thestatement ofMr.Gerigon IDecember
1947 in the Trusteeship Council. That statement included this sentence,
which had, incidentally, been quoted by the Applicants before". . it is a
mandated territory, recognized as such by everyone, including the Union
of South Africa." (VIII, p. 160.)Then 1 went on to quote the statement
by Mr. Gerig of 12 December of the same year, some 12 days after the
previous statement, and it was there that Mr.Gerig said:
"It was said here earlier this afternoon, and 1 did not hear any
member object, that while we al1hope-my deIegation as much as
any delegation feels that way-that there will be a trusteeship REJOIXDER OF LIR.DE VILLIERS 453
agreement for this territory, we do not, in the absence of a trustee-
ship agreement, have supervisory functions over this territory.
Therefore, 1do not think we ought to irnply that we do have super-
visory functions to ensure that the Union Government discharges its
duties under the present mandate, admitting that it exist."(II,
p. 281.)
I proceeded to point out that there were two speakers on behalf ofthe
United States: the first one had been hlr. Dulles, who had expressed the
view that the Mandate had lapsed, and then Mr. Gerig, Rlr. Gerig's
attitude was contrasted with that view; and then followed the sentence
mhich my learned friend quoted. There is a mistake in the recordiofthe
sentence1 spoke of a speaker proceeding "from the basis that the
Mandate was in existence to a clear and explicit view to the effect thatthe
United Nations had no supervisory authority in respect of the Mandate"
the "to" unfortunately was rendered wrongly in the record as "as". 50,
the clear and explicit view did not relate to the question whether the
Mandate was in force or not ;it related to the fact that the United Nations
had no supervisory authority in respect of the Mandate, whether or not
the Mandate was in existence-that was the gist of what I stated in
regard to Nr. Gerig's attitude in contrast with that of Mr. Dulles.
Now my learned friend says to us thatMr. Gerig, at the end of that
address, indicated that there was uncertainty in his rnind.1 may refer
again to the address in the Tmsteeship Council. 1 read the relevant
portion of itagain to the Court-it is perfectly cIea1.may also refer the
Court to that me page (505) in the Trusteeship Council records of
12 December 1947 asto how Mr. Gerig began. He began by stating:
"1 am among those who always have believed that the mandate
doeç continue in force, but there are others who do not take that
view. Therefore, because of some doubts hcre1raised that question."
He was refcrring back, apparently, to his carlier statementIoDecember.
He then made an addition, Mr. Presidcnt, in the context of replying to a
speech by JIr .iu Chieh of China, who had been the previous speaker-
the speech to which 1 referred before, in which it was suggested that the
Council could seewhether the Union Government discharged its responsi-
bilities undertheMandate. Replying to that suggestion, he stated:
"1 would add that even if it does remain in force, that thought,
namely whether the Union Government is discharging its duties
under the mandate, looks as ifwe have certain supervisory functions
to see toitthat the Union Government discharges its responsibilities
under the mandate."
This, as Ihave said, was stated by way of reaction to the Chinese state-
ment. Mr. Gerig objected immediâtely that approaching the matter in
the way suggested by the Chinese speaker would look as if the Trusteeship
Council had certain supervisory functions and had to see thatthe Union
discharged its obligations under the Mandate. Then followed that state-
ment which wc have quoted-"It was said here earlier thisafternoon,
and 1did not hear any mernber object ...". So, MT. President, this was
&Ir. Gerig's reaction, his irnmediate reaction: "but surely we have no
supervisory functjons of that kind." Mr. President, the fact that he then
ended up by stating:
"1 cannot help but feel that there are difficulofthis kind which454 SOUTH WEST AFRlCA
we should not take up at this point. I am willing to consider it in
Junc, but 1 do not now fecl clear in my mind that the Trusteeship
Couilcil has implied or cxpressed supervisory functions over that
territory. However, 1 should lilte to hear the thoughts of the other
members of the Trusteeship Council".(Supra, p. 206.)
The fact that he said that at the conclusion of his speech surely does not,
in the contest, indicate that tliere wasany substantial doubt in his own
mind. This was merely another way of saying that he certainly could not,
at that stage, agreewith a view tllat there was any supervisory pomer on
thepart of the United Nations Organization in the sense under discussion,
and in the sense suggested by the Chinese delegate, i.e., that such a
function shouId be excrcised by the Trusteeship Couiiçil. Itwas another
way of putting a view on his part, but to say that that indiçated any
substantial doubt upon the rnatter realIy takes it completely out of
context. If there was such a substai.itia1 doubt, if this view which had
been esyressed so explicitly, came under reconsideration at a later stage
during thosc same debates, or at a later stage in siinilar debates on the
South West Africa question, one mould at least have expected the United
States to have indicated sometliing of the kind at some stage in the
debates at the United Nations, but there was no such indication whatso-
ever at any stage.
>Ir.President, 1 was dealing with the Applicants' attempts in their
oral reply to reduce the list of States25 or 26, which we said indicated
a clear agreement during the pars 1946 to 1949, with the proposition
that outside of trusteeship there was no supervisory power, in the sense
under discussion, on the part of the United Nations over the Xandate
of South \Vect Africa. or over mandates in general, and I was dealing
more specifically, Mr. President, with the question of the attitudeof the
United States.
Apart from hlr. Gerig's statement, with which 1have again dealt, there
is of course still the statcment of hlr. Dulles to which, as far as I can
recall, the Applicants offered no reply, and with reference to both Rlr.
Gerig's attitude and to Mr. Dulles' attitude, we certainlydo not see any
reason why the United States sllouldbe taken off that list.
Then, to China, the Philippines,New Zealand and the Soviet Union.
The Applicants sought to eliminate them because they expressed the
view that the United Nations was empowered to coiisider the South West
Africa report or the matter of Palestine. But, Mr. President, in both cases
these were questions which had specifrcally been referred tothe United
Nations by the administering powers-the actual South West Africa
report for 1946 which came before the United Nations and tlie specific
case of Palestine. And, therefore,there is again here a confusion between
the two senses in which one couId spcak of, Say, supervisory competence
as a mattcr of constitutional arrangement, so far as a particular organis
concerned, and a supervisory power in the sense under discussion,
implying a right as a counterpart to an obligation to submit to super-
vision.
Applicants' reference to the attitudes taken up by these States on the
question of the South West Africa report, or on the question of Palestine,
istherefore not relevant at ail tothe question under consideration. They
do not meet our point. There is no inconsistency between the attitudes
taken up by these States in this regard and the attitudes explicitly
expressed by them-the reasons why we put them on the list-as REJOISDER OF MR. DE VILLIERS 455
indicating that outside of trusteeship there woiild be no obligation of
accountability.
France, hlr. President, is sought tbe excluded because its representa-
tive espressed a desire that information should be transniitted. The
expression used was "he urged the submission of reports". But, Mr.
Presiderit,1 suppose that other delegates did that too. Some of them
said that they were sorry to see that the Union of South Africa decided to
send no further reports and that itwould be a good thing if they were to
do so. But that is no indication of the existence of an obligation on the
part of the South African Government to do so. There is no such indica-
tion on the part of the representative of France, or any representative of
France at any stage, and the real and the clear reasons, which we gave,
why France should be put on the list were not touched upon or substan-
tialiy affected in any analysis of the Applicants. The place where this was
dealt with by my learned friends uras the verbatim record of 12 May,
at page 223,supra, and 1submit that their attitude in regard to France,
thereforc, is also without substance.
The Applicants also now refer to a statement by the delegate of
Pakistan-that isin the verbatim record of 12 hlay, at page222, supru.
However, hlr. President, reading the passage as a whoIe, it seems quite
clear tliat the delegate did not seek to convey a view that the United
Nations possessed any powers in respect of mandates qzra mandates.
What he said is recorded in the Opcial Records of theGeneralAssembly,
Third Session, Part 1, 1948, Fourth Comrnittec, page 315. A portion of
what he said was quoted by the Applicants in the verbatim record of
12 May, at page 222, su$ra. The point to which 1 wish to direct the
Court's attention occurs in certain words which were not quoted, and 1
should for that purpose like to read the full passage:
"The Mandates Commission of the League of Nations had had
supervisory powers for twenty years. Reports had been submitted
annually by Mandatory Powers and scrutinized with jealous care by
the Mandat es Commission.
The Leaguc of Nations had been replaced by the United Nations,
which had taken over the functions formerly exercised by the
League."
If 1may break there, that was the portion specifically relied upon bymy
learned friends. The quotation proceeds:
".. .several provisions of the Covenant of the League of Nations
relating to mandated territories had been included in the Charter.
[Icorne now to the portion that had not been quoted] Article 77 and
Article 80, paragraph 2, clearly indicated that there must be no
lindue delay in the negociation [sic] and conclusion of Trustecship
Agreements. The Union of South Africa claimed that its authority
procecdcd from the mandate under the terms of which South West
Africa could be integrated with the Union of South Africa. However,
if the mandate was no longer in existence,neither was the authority
proceeding therefrom. The Union Government could not claiin its
rightsand reject its obligations."
And later the delegate said, in a passage which was quoted by the
Applicants :
"... the United Nations should retain the rcsponsibility ofcontrolling456 SOUTH IYEST AFRlCA
the mandated territories, and that the Union of South Africa was in
no way justified in defying the repeated recommendations made to
it to submita Trusteeship Agreement".
Mr. President, reading the passages as a whole it seems clear that the
delegate regarded Respondent as being under an obligation to enter into
a trusteeship agreement; he regarded that as the legal obligation. It was
by virtue of the trusteeship system, therefore, that the United Nations
had, in his view, taken over the functions of the League regarding
mandated territories. It was in that sense that there had been a taking
over of functions-not a taking over of functions outside of the trustee-
ship system. That appears to be the clear purport ofthe words, and ofthe
passage read as awhole in its context.
There is consequently no warrant for holding that the delegate ex-
pressed a viewthat a duty ofaccountability existed outside oftrusteeship.
Indeed, that view would have been clearljr inconsistent with the state-
ment made by another Pakistan representative in 1947 , hich we quote
in the Counter-hlemorial, II, at pages 278 to 279, and which was the
reason ~vhywe put Pakistan on the list. It is submitted, therefore, that
there is no reason for removing Pakistan from the list.
Finally, the Applicants suggest that the often-quoted comment by
Mr. Nicholls should serve to disqualify South Africa itself for inclusion
on the list, That we finclin the verbatim record of12 May,at pages 222
to 223, sufiruMr. President, in view of the very evident collapse of thiç
rvholeNicholls story, 1 think my learned friends may also be relieved i1
say that further comment is unnecessary.
'Then,in addition, Applicznts suggest that in some way "the 25States
which voted against asking the Court for an advisory opinion concerning
the competence of the General Assembly with respect to the Mandated
Territory for Palestine" should be regarded as having indicated a con-
viction that there had been s transfer of supervisory powers to the
United Nations. We find that argument stated, if we understand it
correctly, in the verbatirn record o12 May, at pages 221 and 223, supra.
However, Mr. President, as me have shown, the competence ofthe United
Nations regarding the Palestine question rested on an entirely different
basis,
The Applicants have not attempted to show that, in this regard, any
reliance was placed by any State on any alteged consent in 1945 or 1946
to United Nations supervisory jurisdiction. None of these States tookup
an attitude that an such a basisthe United Nations had, in any event,
supervisory jurisdiction and that, for that reason, the United Na t'ions
was competent to deal with the Palestine question in the form in which
it was subrnitted to the United Nations.
So, hlr. President, to summarize, even acceptance of the Applicants'
submission that there existed doubt, confusion and ambiguity asregards
the transfer of supervisory powers in respect of unconverted mandates
must sound the death knelt of the Applicants' contention of a clear,
generally understood, pledge in April 1gq6-or generally in 1945 to
1946-which pledge was, so the Applicants said, the outcome of a
planned process which had already commenced in San Francisco in the
iummcr Ôf1945.
In view of the fact it is for the Applicants to show the existence of such
a planned process (such a generâi understanding, pIan, compromise,
agreement, cal1 it what you will) by a process of necessary inference REJOINDER OF MR. DE VILLIERS 457
consistent .with al1 the tme facts and excluding aii other reasonable
inferences, the mere fact of the existence of such doubts, confusion and
ambiguity, suggested by Appiicants, makes it quite clear that they
cannot succeed on a contention of that kind. But, in fact, Mr. President,
the analysis shows that the case against the Applicants is even very much
stronger. There was, in trutli, very little, remnrkably Little, confusion on
this crucial question at issue between the parties, the prevailing attitude
being acceptance that supervisory functions under the hlandate had not
been transferred to the United Nations, and the fcw Statewhich adopted
a different view,did not rely on any agreement in 1945 or 1946.
So,there again, the substance of our case in regard to the attitudeof
the States, how they understood the attitudes adopted by Respondent
andthe other mandatory powers, stands unaffected.
Before leaving this subject entirely-the reaction of the other States,
their understanding of the situation-tliere is still the Applicants'
contention to be found in the verbatim record of 12May, at page 224,
supra. It reads:
"Respondent disputes the contention that the General Assembly
resolutions 141 (II),227 (III)and 337 (IV) calling for reports from
the Respondent were designed to establish international supervision
over the mandated territory."
The truth is, Mr. President, that Respondent never disputed this
contention for the simple reason that no such contention ;vas advanced
by the Applicaiits in their argument in chief or at any previous stage.
It first came in this forin their oral reply.
What the Applicants did contend in their oral argument in chief-and
this was the contention which we disputed-was that:
"The iinderstanding of the United Nations that the Mandate
continued inforce and that the obligationsofinternational acçount-
ability were owed to the United Nations, tkus appears clearly from
the General Assembly resolutions 65 (1) of14 December rg46 and
141 (II) of I Novcmber 1947, as weli as227 (III)of 26 November
1948 ,nd 337(IV) of 6 December rg4g."(VIII, p. 165.)
As the Court will see, this was a completely different contention and the
way itwas put again, in that same record, nt VIII, page 165, was as
follows:
"... the view of the United Nations, as a ~vhole,expressed through
its resolutions on the subject, clernonstrated its understanding that
the mandate remained in full force and effect, and that the United
Nations had supervisory authority over the Territory".
Those were the original contentions. We dealt with them and in Our
submission showed that there was no substance in them whatsoever, no
justification, no evidence in substantiation for them on the records,
pro erly understood.
gow the Applicants retreat from thex original contentions and the).
put it in this forni, they speak now of a contention that these particular
resolutions were designed to establish internationalsupervision over the
mandated territory, and when we analyse what they savin that regard, it
is a contention to the effect that here there was an establishment of-a
SO-calledthirdsystem, or an establishment ofthe necessary procedure, in
order to exercise supervisory jurisdiction t'jthat jnrisdiction shouid exist458 SOUTH WEST AERICA
by way of a power being a counterpart of an obligation. They deal, in
other words, with that question without reference tothe crucial question,
the question of the obligation of accountability, or othenvise, on the part
of the mandatory. In dealing with it in that way, of course, they, this
respect also, with reference to the true significa~iceof the resolutions and
the true understanding indicated therein, leave untouched our point,
our argument, and our demonstration in that regard in Our argument in
chief.
But the Applicants go further and they speak of an "acid test"which
is tobe applied to this matter, namely tlic reaction of the Uiiited Nations
in 1949 after thc Kespondent had dccided and announced its intention of
sending no further reports on its administration of thc Territory. ive
find this position stated in the verbatim record of12 May, at page 224,
su$ra. The "acid test" is to see how the United Nations rcacted under
those circumstances.
They then refer to a resolution adopted by a vote of 25 to 15 in the
Fourth Cornmittee,a resoIution to hear a petitioner from thc Territory of
South West Africa-to accord an oral hearing to a pctitioner. Having
quoted the views expressed by a few delegates in the Fourth Cornmittee,
the Applicants thcn concluded, at page 226, supra, of tliat record of
12 May:
"The system of supervision, accordingly, was actually estended
by the United Nations over the territory in the face of Respondent's
decision to cease submissionof its reports. This, in turnsheds Iight
on the original purpose of the resolutionç of the Açsembly, cailing
for the submission of reports, and in the Applicants' view demon-
strates that the General Assembly did indeed attempt through those
resolutions to cstablish a system whereby Rcspondent's account-
ability to the United Nations would be made effective."
One sees here, Mr. President, no reference to the question of the
obligation on the part of the Respondent to submit to such supervision.
We have never disputed that in 1949 some 3ïembers of the United
Nations began to express the attitude that Respondent was legally
obliged to account to the United Nations in respect of its administration
of the Territory, even outside of tnisteeship. We includecl those five
States (perhaps tliere ought to be seven on furtheranatysis) in our oral
presentations on the subject-five States who began to voice attitudes
of that kind tolvards the end of 1948 and in 1949.Some of them indeed
did so, particularly on this very occasion ofwhich we speak, namely in
reaction after the South African Government had indicated that itwas
no longer sending reports.
But we pointed out, ilIr. President, in the verbatim record 8April, at
VIII, page 50j, that even "there were very few ofthem and they then
found a basis which did not relate to any consent on the part of the
Respondent in the transitional stage".
It is, intself, in Our submission, highly significaiit that tliis kind of
reaction first camc from some States after the Respondent had made
known this particular decision-that in itself is highly significant. At
a stage when itwas thought that the Respondent was contesting itç
obligation but that it was, nevertheless, submitting certain reports, even
though only for the limited purpose of the information of the United
Nations, some of theçe States did not see their way clear, apparently, to KEJOINDER OF &IR.DE VILLIERS 459
contesting the Respondent's submission that there was no obligation of
accountability outside of trusteeship. Some of them went so far as to
associate themselves with that submissioii, but contended for something
else which they would have liked to see achieved. However, when the
Responderit said: but you (meaning a ccrtaiii number of States in the
United Nations) abused .the facility afforded to look at these reports
which 1sent toyou; you actcd as ifyou really liad a power of supervision
which, in tmth, 1 never conceded to the United Nations, we find this
reaction. And, on analysis, it becomes clcar, >Ir. President, tliat in
substance the reaction was a political one; it was not a legal one; it was
not based oii any attitude of law which in any substantial sensesupports
the Applicants' attitude or their contentions in this case.
It becomes clear, on Iooking more closely into the debate in question
leading up to thisvery resolution relieclupon by rny learned friends, that
the grounds upon which these various delcgates relied in supporting the
resolution were rather confused, that some of these grounds were not
legal grouncis at all,and that nobody, cvcn theri, sought to ground an
obligation on any agreement or consent on the part of the Kespondent.
In order to dernonstrate this, 1 propose to refer very brieflyto the
attitudes adopted by some of the 25 dclegates in the Fourth Comniittce
who voted for the resolution. Applicants have quoted the viewsesprcssed
by four reprcsentatives, those of Cuba, Brazil, Thailand and Illexico,but
in the passagcs cited by the Appiicants only the representatives of the
first two States (Cuba and Brazil) espressed an opinion that the Respon-
dent was obliged to recognize United Nations supervisory jurisdiction
over the Territory. The other two did not found their attitude on a legal
obligation. It is therefore convcnient firstto examine the grounds upoii
which thcse rcpresentatives ofCuba and Hrazil based their attitude.
At the 130th Meeting of the FOUIth Conimittee on 21 November 1949,
the representativc of Cuba, hlr. PErez Cisneros, cxplained why he was of
the opinion that the Committee was entitled to l~carpetitioners. He said :
"No Trusteeship Agreement had in fact been concluded in respect
of South West Africa. Attention should be drawn, however, to
Article 80 of the Charter wliich explicitly stated [and then he
quoted the contents of Article So (1).I tieed not read that and 1will
continue with the quotation] Ttwas therefore clear that the situation
which hacl prevailed under the Mandate System should not be
clianged in the case under discussion. The rights of the people
concerned were clearly comproniised when the international
community ceased to receive information on how they were being
administered, and when the pcoplc themselves coulù no longer
esercise their right of petition. He considcred that the Committee
was faced tvitlia flagrant violation of Article 80 of the Charter, n
violation which had not yet been sufficiently emphasized in the
General Assernbly." (G.A.,O.R., Fourtli Session, Fourth Committee,
p. 216.)
It will be observed, Mr. Preçident, that the attitude was a very vague
one. Itinvolved a complete reliance on Article 80, paragraph I, of the
Charter, in a sense which the Applicants themselves no longer seck to
support in these proceedings.
The same attitude was later expressed by another representative of
Cuba, Mr. Lopez, still during the course of the samc debates on 23 No-460 SOUTH WEST AFRICA
vember 1949 . need not read the passage to the Court, it is at pa236
of the sarne record.
We corne then to the views expressed by the Brazilian delegate, cited
bythe Applicants atpage 225, supra, of the verbatim record of xz May.
AU that he said that seems to be pertinent was the following:
"South West Africa was not a sovereign state but a territory
pIaced under the mandate system of the League of Nations, and
consequently, was under the supervision of the community of
nations, namely, the General Assembly."
That iç from the same record at pages 223-224, A vague, general
attitude, Mr. President, is to be observed indicating no precise basis,
certainly no basis of alleged conse~lton thpart of the Respondent to a
substitution of supervisory organs.
Inthe case of Thailand and Mexico, the other two States referred by
the Applicants, as 1 have said already, they did not rely on a legal
obligation. 1 may point out further that Thailand was one of the six
countries tvhich abstained froni votingon the Guatemalan draft resolu-
tion, which was eventually adopted, that a hearing should be grantcd to
petitioners-that appears from page 241 of the record.
During the course of the debate, a nurnber of delegates sounded a
warning that the Guatemalan dra t resolution in effect prejudged the
question which it, the Fourth Committee, had not yet answered in the
affirmative and which was proposed to refer to this honourable Coiirt,
namely the very question whether Respondent was obliged to submit to
United Nations supervision. Yerhaps the clearest expression of this
attitude was given by the representative of Belgium with whom several
other delegates later associated thernselves to a greatcr or lesser extent.
That representative, Air.de Bruyne, spokein the same record at page2~7.
and 1quote:
"If South M1estAfricw aas stilgoverned by the provisions ofthe
Mandate, those provisions should obviouçly be applied; in that case,
however, there aroçe a prelirninary question, namely, by what right
the Fourth Committee substituted itself far the Permanent Man-
dates Commission of the League of Nations, what its juridical
foundations were, and what the source of its legal cornpetence was.
Thus, it would seem that reference to the continuation of the
Mandate Systern would not solve the question of hearings of rep-
resentatives.
A final possible solution might be provided in Chapters XII and
XII1 of the Charter. Under Articles 80 and 87 of the Chapter. the
Tmsteeship Council couldreceive and examine petitions. Theobvious
facthad to be faced, however, that South West Africa had not been
placed under the Tmsteesliip System, that might be regrettabIe but
it was undeniable.
The question ofthe status of the territory was precisely what the
Commission was trying to solve. Yet those discussing the problem
seerned to prejudge the outcome of their discussion. That was a
grave rnistake."
He sounded this very clear warning about the absence or the possible
absence of a legal basis for the Committee todo what was proposed in
this proposa1 beforc it; a matter on which there was already a proposa1
toobtain the opinion of this Court. REJOINDER OF MK. DE VILLIERS 46r
We find that çimilar views which, as I have said, to a greater or lesser
extent associated themselves with this statement by the Relgian rep-
resentative, were expressed by representatives of Israel (ap. 229 of the
same record), Canada (p. 229),Francc (pp. 230-z~I), Greece (p. 232),
the United Kingdom (p. 233and Australia (p.238).Therefore, Mr. Presi-
dent, we stiU see tlus aspect of the matter strongly emphasized even at
the stage my learned friend has now chosen as his battle-field or the
stage of his acid test, which came at the time when the South African
Govemment said it was no longer sending reports. The most important
point, holvever, is that whilc 26 countries voted in favour of the draft
resolution proposed by Guatemala, the representatives of only five
countries expressed a more-or-less firm view that Respondent was
obliged to recognize United Nations supervision, and none of them bnsed
their view an any agreement or consent by Respondent to do so. 1 have
already dealt in that regard with statements by the representatives of
Cuba and Brazil. 1can also very briefly note the views of delegatesof the
other three countrics-the Philippines, India and China. They have
already been referred to very briefly in earlier stages in another contest,
but 1 may, for purposes of completing the record in this regard, refer to
them very briefly again. The representative of the Philippines adopted
the attitude that Respondent was accountable to the United Nations
because of the provisions of Articles 77 and 80of the Charter; in other
words, the provisions relating to the trusteeship system and Article 80.
He moreover said that Kespondent's decision not to send any further
reports was in violation of Article 73 (el of the Charter-that we find
in the same record nt page 206.
The attitude of Alr. Liu ofChina was apparently that Respondent was
obliged to account to the United Nations because, and only because, it
was legally obliged in his view to enter into a trusteeship agreement.
That uras the attitude tben stated by the Chinese representative:
there was a legal obligation to enter into trusteeship agreement and on
that basis Respondcnt was to be regarded as obliged to account to the
United Nations. One finds that at pages 208 and the following of thc
same record.
The representative of India, Mr. Shiva Rao, placed a very vague kind
of relianceon the 1946 League resolution. Aftcr he had indicated in the
debate that he agrecd with another delegate to the efiect that the legal
questions were for the Court and the olitical questions for the United
Nations, one finds his attitude stateBat pages 210 and 211, and the
Court will recall,of course, that in the next year India advanced a sub-
mission to the contrary in this respect to this Court.
It may then be asked wliy 26 States voted for the draft resolution
which was eventually adoptcd if althe representatives concerned were
not of the opinion that the United Nations had supervisory authority in
respect of the Territory. An answer to the question issuggested by some
examples of other attitudes which appear from the remarks made by
particular delegates. Of course, 1 cannot say to what extent they were
representative ofStates which did not explain theirvote, but the examples
are somewhat significant.
\Ve begin with the rernarks made by the representative of Haiti at the
rynd Meeting of the Fourth Cornmittee, on 22 November 1949. He
said the following, at page228:
"The draft resolution submittecl by the GuatemaIan delegation46~ SOUTH WEST AFRICA
çonforrned in cvery way to the noble purposes of the Organization.
An absolutely impartial white man wislicd to speak, in his capacity
of clergyman to make the truth known. On procedural or legal
grounds, it was proposcd to reject the appeal of that defender of
populations ivhich had no otlier rneans of mnking themselves heard.
If the Committee were to refuse, on purely forma1 grounds, to
ascertain the truth, it \rrould be judged severely by wodd public
opinion and by the conscience of its own meinbers."
At the same meeting, the Liberian representative said the following:
"Human rigtits shmld be respectcd by a11States AIembers of tiie
United Nations. Ilow could certain populations bc prevented frorn
benefiting frorn thosc rights merely bccause they ïvcreürider
forcign administration. The populations of South West Africa should
be given an opportunity of being heard by world public opinion."
(P. 228.)
So, $Ir. Presideiitorlesees herc a reliance on non-legal considerations
which were surnmarized by Mr. Garreau of France, as followsat page 230:
"As regards hrimanitarian arguments, the rcpresentatives of
Haiti ancl Libcria liad observed that truth and jtistice came bcfoi-e
legal quibbling. When dealing witli poputütions who were thougiit
by some people to be oppressed and deprivetl of the fundamental
rights proclaimed in the Charter, the Gcneral Assembly could
disregard legal tests and ought to takc a humane decision."
l'hat was the interpretatirin put by the French i-cpresentative upon
those two attitudes.
Mr. I'resident, at the conclusion yesterday 1Iiad very nearlconcluded
a bricf rcview of attitiidestaken up by various States in the debates in
1949 which led to the resolution, passecl by tlie Fourth Cornmittee by
a vote of 2j to Ij, to hrar a petitioner from South West Africa. 1 had
indicated towards the concIusion that certain States, of which I quoted
two esamples-Haiti and Libci-ia-indicated attitudes which did iiot
particularly rely upon a certain view of the legal situation. These attitudes
amounted to this: that therc were factors outside legal considerations
wliich, in the view of the delegates concerned, 'ustified the proposed
action. Aiid the action taken by ruch States did mot, tharefore, imply
any attitude on their part which would be of nny relevance to tlie Appli-
cants' legal attitudein this case regarding the pomers or otherwise oftlie
United Nations to supervise administration under the Naridate in
Soiith \trest Africa, or a corresponding obligation on the part of the
South African Govcrnment to subrnitto such supervision.
There \vas one further quotation bvhich I wish to give tothe Court-
front the speech of the representative of the sponsor of the draft resolu-
tion. At the 13znd Meeting of the Fourth Committee, Mr. Mendoza of
Guatemala said the following-it is at page 229 of the record to which
1 rcfcrrcd before:
"The Conimittee was faced urith a situation that was tantamount
to the annesation of Soiith \frest Africby another State. Tn tliose REJOIXDER OF >IR.DE VILLIERS
463
circuinstances, it was justjfied in granting a hearirig to a represen-
tativc of the populations of South West Africa, who would state
whether or not those populations were in favour of such a situation."
Again, Mr. President, there was on the part of the very sponsor of the
resolution eventually adopted, an attitude alhich waç not baser1upon any
legal view affording any support for the Applicants' contention.
It follows, therefore, from thjs rcview, that no value can be attached
to the Applicants' conclusion as stated iii this regard in the verbatim
record of 12 May, at page 226, satern,to the effect that the adoption of the
GuatemaIan draft resolution by the Fourth Committee-
". .. sheds light on the origir~al purpose of the rcsolutions of the
Assembly, calling for the submission of reports, aiiin theApplicants'
x-iexvdernonstrates tliat the General Assemblÿ did indeed rittempt
through those resolutions to establish a system whereby Rcspon-
dent's accountability to the United Nations would bc made effec-
tive".
I rcspectfully subrnit, Mr. Prcsident, that there is nothing in the record
which supports that conclusion, and that even the "acid test" whicli
my Iearned friendç chose to put in this regard asa whoIe fails to provide
any realsupport fort. Applicants in their issue with Reçpondcnt regard-
ing Article 6. It merely affords lurther confirmation of liespondeni's
analysis of the situation in the United Nations up to 1949.
So tliat, 31r. President, concludcs the further review of attitudes
espreçsed by various States over the years.in question at the United
Nations, considered necessary by way of rejoinder for thc purpose
whicli I indicnted yesterday. Our subrnission is that nothing wliich uTas
said at the rcply stage has detractcc1 anything from the nnaIysis which
we gave to the Court in that regard in the first instance, but that, on
the contrary, the further discussiori has servedta confirm that analysis.
It is pcrfcctly clcar that, on the wholc, there was no understanding to the
effect that there was an obligation of accountability on the part of
Respondent to the United Mations, and that a substnntial number of
States were definite in their view that, outside of trusteeshiy, there was
no such obligation.
1 refer again, Air. President, to the summary which the Applicants
gave in the form of three propositions-the summary of their contentions
regarding Article 6 of the Mandate. The Court will recall that 1 referred
earlier to those three propositions, which were stated by the Applicantç
as heing tendereci to the Court for the sake of clearing up riiiy lingering
doubts. They were given to the Court on 12May, at pngeç 239-240 s,pua.
1 have dealt with their third proposition, which related to Respondent's
alleged consent to assumption of supervisory authority over the 3'lan-
date by the United Nations. 1promised at the time to revert latcr to the
first two.
The second of the propositions, blr. President, has also been disposed
of,although 1 did not again rcvert toit by narne. The second proposition
read asfollows:
"Secondly, the United Nations has replaced the 1,eague of Nations
in the capacity as embodying or representative of-it matters not
which way itis put-the organized international community upon
which the 'sacred tnist was laid as a responsibility'in the words of
the 1962 Judgment. The United Nations is endotved by Article IO, SOUTH WEST AFRICA
it is invested by the Charter with competence to supervise the
Mandate." (Supra,p. 240.)
Now, hlr. President, as regards the reference to the "organized inter-
national community"-the view taken of the situation, of seeing the
United Nations as embodying or representative ofthe organized inter-
national community, wedealt very fullyin our pleadings with contentions
of that nature on the assumption that they were intended to carry some
legalsignification. 1can refer the Court to our Rejoinder, V, at pages 31-
53, but, if 1 understood my learned friends' oral argument correctly,
they indicated in a passage occurring in thc verbatim record of 22 March,
VIII, at pages 197-200, that they no loiiger rely upon this description
as having any legal significance in itself.It was merely a broad form of
description to cover their real submissions as to the legal situation,
based on what had occurred, and, in particular, this form of description
did not render it unnecessary for them to rely upon consent on the part
of the hlandatocy to a substitution of supervisory organs. The only
contention of real legal çignificance contaiiied in this second proposition
is, therefore, to be found in the lsst sentence, which statcs: "The
United Nations is endowed by Article IO, it is invested by the Charter
with competence to supervise the Maiidntc." 1 have already dealt with
the submissio~i,as far as Article IO was relied on, for saying that the
United Nations, as an organization, was endowed with certain powers,
as distinct from particular functions having been assigned to an organ
of the Organization, the GeneralAssembly, once it had been decided that
the Organization was endowed with a power. 1need not take tliat matter
any further-I dealt with it fuUy yesterday.
The sentence, however, also suggests, more generally, that the United
Nations is invested by the Charterwith competence to supervise the Man-
date. Mr.President, in that regard my siibrnission isthat the Charter, quite
clearly, could not gir-eto the United Nations a power which it couId not
have without the consent of the Respondent, and it has not been so
suggested in the Applicants' argument anywhere. In fact it seems to be
common cause hetween the Parties that as far as the provisions of the
Charter are concerned they, by thernselves, do not providc for an obliga-
tion on the part of the Respondent to submit to supervision on the part
of the United Nations in respect of the performance of ils obligations
under the hfandate. t2t most, this description of the Charter providing
for a certain competence or for certain powers on the part of the General
Assembly of the United Nations can be taken in that alternative sense
of the words "supervisory competence" or "supervisory power". It
can only relate to the cornpetence ivhich the Organization wbuld, as a
constitutional matter, be able to exercise ifthere were an obligation on
the part oi the Respondent to submit to itssupervision.
That, therefore, takes the matter no further. The crux still lies in the
third proposition which alleged conscnt on the Respondent's part, but
this proposition rnust, in my subrnission, for the reasons I have given,
be taken to have faiIed.
The first proposition was concerned with the suggested necessity of
the element of international accountability, and read as follows in the
verbatim record of 12 May:
"In the first place. administrative supervision as an obligation
isan essential part of the mandate system, inescapably linked to HEJOIKDER OF hlR. DE VILLIERS 465
thedue performance of the obligations of the Mandatory towards the
inhabitants and the organized international community; again,
in the mandate jurisprudence of this honourable Court, to excludc the
adrninistrativc accountability of tlie Kespondent would be 'to
exclude the very cssence of the Mandate', at page 334, I.C.].Reports
1962." (Supra, p. 240.)
Now, Mr. President, 1 should like to take up, first, this reference tothe
"mandate jurisprudence of this honourable Court". We submitted in
regard to the rg5o Opinion, and we have consistently advanced this
subrnission to the Court in the pleadings and again in our oral argument
in chief, that it did not treat the element of accountability under Arti6le
as an essentiai partof the Mandate in the sense that the rest of thehfilan-
date could not exist without it. 1 need not rcpeat my argument because
it has never been answered, 1 am merely drahving attention to that.
Secondly, as far as the 1962 Judgment on the Preliminary Objections is
concerned, it is at least very highly questionablc whether this expression
referring to the exclusion of "the vcry essence of the Mandate" was
intended to refer tothe obligation under Article6 at all.On the contrary,
we submitted to thc Court that, on a proper analysis of that judgment,
the indications are that its authors were of tlie opinion that supervision
under Article 6 had lapsed, or may well have lapsed, to put it ai its very
lo~vest;and that argument on our part has also not been met in any way
by the Applicants.
91r.President,there is alço in the proposition a reference tothe elenient
of essentiality, and1 should like to Say sornething more about that. The
Applicants place considerable emphasis on this factor of necessilyof
supervision in respect of the Territory,and they do it in a rather peculiar
way. It was, of course, a recurring theme of the Applicants' case at
earlier stages of the proceedings, and we have had occasion to point out
in the past that the existence of such cssentiality could have servcd to
cause the lapse of the Mandate as a wholc upon dissolution of the Lesgue,
but that it could not have served by itsclf to keep the Mandate alive nor
a fortiori could have served to provide a new supervisory organ to replace
the Leape. For those things new consent would have been necessary.
But, &Ir.President, we find that in the oral reply, to which we are nouF
offering this rejoinder, the Applicants again relied very heavily on
various submissions in regard to necessity of supervision, as an argument
~vhy the Court should find that accountability still exists, and they
illustrated itwith certain new examples. For instance, they ascribed a
role to the administrative supervisory organs as being necessary, inter
alia,for the establishment of the standards to be applied by the Court,
whic1.iiça point with which we shall deal in the later portion ofthe case
regarding Article 2 of the Mandate. They relied on that necessity for tlie
effectuation and the implementation of any judgment which the Court
might deliver in this case. That the Court will find in the verbatim
record of 12 May. ai pages 232 and 234, supra. They rely on it as being
necessary for the supervision of the implementation of thc Odendaal
Commission report-that we find in the same record, at pages 232to 234.
They also rely on such necessity to ensure that the Territory would not
become "effectively militarized in two or three dayç". Those were their
words and they are to be found at page 232 of the same record.
Aqain, Jlr. President, our subrnission is quite simply that these are not
legal arguments. They are legislative arguments in the çense which 1466 SOUTH WEST AFRICA
ascribed to that term earlier. They do not relate to any basis upon which
the Court conId decide in accardance with principles of law. At most,they
are arguments which show why a particular measure could be considered
desirable, depending upon the outlook of the person who has to decide
whether it is desirable or not, rather than arguments showing that it is
something wliich exists. We frequeiitly einphasized that this Court is a
court of law anclnot a court of expediency. lt may be preferable in many
situatioiis of which one can think, to have international control of them;
it rnay well be considered desirable to have supervision in respect of
particular territoriesor particular countries because of what is allcged
to be happening in those countries, but that would not juçtifp a court's
departirtg from its legal function of determining w-hether there does or
does not exist a Iegalarrangement rvhei-ebysuch supervisioii can law(uf1y
be exercised, or whether there is an obligation on tlie part of the Govern-
ment coiicerned to submit to çuchsupervision. 1may refer, as an esainyle,
3ir. President, to a rather msing incident: after we had offered to this
Court the invitation to undertake an inspection of the Territory of South
West Africa and proposed that there should be an inspection of other
territories, we received documents from an organization calling itself
"Thc Ethiopian People's Movement Couricil", in which there arc al1
kinds of allegations of alleged oppression iii the State of Ethiopia.
Whether they are true or whether they are not, nobody knows of coursc.
but, nevertheless, that mas a reaction which one found. The style of
writing is reminiscent, indeed, of the style which one finds in many of the
petitions which have been submitted on behalf of inhabitants of South
West Africa to the United Nations. Whether the authors are the same,
or are related, one does not knolv; it mny be, on the other hand, tliat this
is a perfectly genuirte case, and that there are complaints of this nature.
The mere fact that one does not know may possibly serve as an argument
that it is desirable in circumstances of that kind to have a system of
international supervision to probe into the facts-to find out whether
such aliegations are true or not. Rut, hlr. President, the Court can take
no account of a desirability of that kind, iior even of a suggested necessity
of that nature.
Recciitly, Mr. President, there were reports in the Press about com-
plaiiits by a certain International Federation of Airline Pilots Associations
about nllegcdIy very serious maltreatrnent of,and denial of human rights
to, two of its pilot members in Liberia-that was the gist of the accusa-
tion. Tt was said that thatwas the result of official action in Liberia, and
the Federation took such a seriouç view of it as to forward the complaints
in writing to governments al1over the world, including the South -4frican
Government. hlr. President, again the same remarks apply: where there
are allegations of that kind it may uvellbe desirable, or it may well be
argued that it is, or wouIbe, desirable, or necessary to have a systern of
supervision, but thatisnot an argument for this Court. 1would not suggest
that, on the basis of such allegations having been made, this Court ought
to find that there is an obligation on the part of those governments to
submit to international supervision.
Thercfore, Mr. President, 1 submit that the iirst proposition of the
Applicants, and the way in u-hich they elaborated it in their oral reply,
take the mntter no further.
That brings me to the 1950 Opinion of the Court. As we have noted,
the Applicants did not deal with our analyçiç of that Opinion with REJOINDER OF hlR.DE VILLIERS 467
reference to the question now under discussion, and it is, consequently,
not ~ieccssaryto repeat the basis which we contend the Court adopted in
reaching its decision, but there are one or two points which cal1 for
comment.
In the verbatim record of 12 May 1965, the Applicants said the
foilowing :
"Itcarne as sonlething of a surprise to the Applicants to learn that
any proposition ~vhich they could seriously advaiice could furnish
tlic basis for a reconsideration de qzovo or otherwise of the 1950
Advisory Opinion-we are still at a loss to understand what such
a motivation would be grounded ripon." (Szcpra,p.240.)
We did think, &Ir. Presideiit, that we had made clear which of the
Applicants' propositions, advanced in al1appareiit çeriousness, furnished
a basis for a reconsideration of the 1950 Gpinion-in conjunction, of
course, witli other factors.
These propositions in the ilpplicnnts' contentions weie thc following:
Firstly, there was the Applicants' admission that, in order to succeed,
they werc obliged to establish thnt Kespondent had,as a fact, co~isented
to a substitution of the United Nations for the Leape as çilpervisory
organ in respect of mandates, in tlie transitional period 1945 to1946 or
thereafter. 'Thisadmission, is of course, in direct conflict with the inter-
pretation which they formerly placed on the Opinion, particularly in
1g6z, during the Oral Proceedings on the prelimiriary objections, tvhen
they said that none of the decisive reasons underlying that Opinion
rested on a premise of tacit consent.
Consequentljr, Mr. Preçident, one of two alternatives must be appli-
cable; either the Applicants'1962 interpretation of the Opinion is correct,
and that thcy consequently now regard the Opinion itself as hsviiig been
incorrect in the respect in question, or it follassan alternative tliat the
Applicants' 1962 interpretation of the Opinion was wrong and is now
admitted by them to have been wroiig.
Secondly, the Applicants' contention that the Court crrcd in 1950 as
regards the correct interpretation to be placed upon ArticleSo,paragraph
1, of the Charter (that was stated in the verbatim record, 31 AIarch, at
VIII, p. 303)~is a further relevant consideration. In the Oral Proceed-
ing in 1962. however, the Applicants, as the Court knows, coritended
that Article 80, paragraph r, played an important role in the Court's
reasoning and consequently hcre again, there are two possibilities
inherent in the Applicants' present attitude: their present attitude must
be either that the Court was wrong in 1950, or that the A~iplicants'
interpretation was lvrong in 1962.
In the result, hlr. President, the hpplicants' contentions involve
that the Court erred in major respects in its reasoning i1950, or thatthe
reasoning of the 1950 Opinion is in material respects open to widely
divergent interpretations, or botli. On any of these bases, their conten-
tioiis, if seriously advanced, indicatc, in our submission, at lcast$rima
facie additional need and justification for a thorough re-appraisal of the
whole matter: that is, in addition to whnt we submit to be tlic real reason
why it is desirable to have such a re-appraisal of the situation having
regard to the facts which were not bcfore the Court in 1950.
It is significnnt that the only attcmpted answer prescntcd by the
Applicants to these arguments of ours, which we stated earlier and which
are re-stated briefly with a vielv to noting their reaction, ito be found465 SOUTH WEST AFRICA
in the verbatim record of 12 May at page 240, su$ra, where they said the
following:
"... the Applicants rely upon the rg5o Opinion and consider that it
should be followed and if it is possible to make that contention any
more clearly than the Applicants have made it, the Applicants
welcome this opportunity to assure the honourable Court to that
effect".
The Applicants do not, however, hlr. President, tell us upon which
basis they rely on the 1950 Opinion; they do not Say whether it ison a
basis ofres jrcdicataor on a basis of "the law of the case", which was one
of the expressions they used, or on the basis of "the mandate jurispm-
dence", which is another of their expressions, or on the principle of
Easterrz Cadia. Al1 of these, Mr. President, have been propounded at
some stage or another by the Applicants as the basis for reliance upon the
1950 Opinion. They do not tell us whether they rely on the Opinion for
some formal reason or another of this nature, or whether they rely on it
on the basis of its reasoning. If the Applicants suggest the reasoning of
the 1950 Opinion as forming the basis for their reliance thereon, thethe
further questions arise: How do they suggest that the reasoning is to be
interpreted? Must it be interpreted, Xr. President, as involving a doctrine
of succession, oran application of thecy-@ès doctrine? Must it be inter-
preted as resting on consent on the Respondent's part in 1945 or 1946?
Must it be interpreted on the basis that lack of consent in 1945 to 1946
is irrelevant? 1s it relied upon, Mr. President, on the basis of its heavy
reliance on the positive effect of the "conservatory clause", i.e., the
heavy reliance ascribed to it by the Applicants, of course, on Article So,
paragraph I, ofthe Charter, or is it relied upon by the Applicants on the
basis of ascribing toita very heavy reliance on Article IO of the Charter?
1s it relied on as being based on what the Applicants cal1 the "interna-
tional ruIes regulating the mandate", or on the objective elements of the
situation, or on wliat else?1 am not mcntioning theçe thirigs in order to
be facetious, hlr. President. The fact is that the Applicants tell us from
time to time that this is the basis on which they rely on the Opinion.
This is the meaning they ascribe to it and when they mn into difficulties
they drop that one and they corne on to another one.
The Applicants do not tell us clearly or exactly where they now stand
when assuring us that they rely on the Opinion. That is very significant,
because our attitude has alwavs been a consistent one to the effect that
the Opinion rested upon a finding of fact concerning tacit intent on the
part of the interested parties during the transitional years. Inasmuch aç
that was, in our submission, the tme basis for interpretation of the
Opinion, it becomes so relevant to have regard to the facts which were
not before the Court in1950 and could not therefore have been considered
by it in 1950 but could reasonably be cxpected to have influenced the
decision at which the Court arrived eventually, had those facts been
before it.
The Applicants have consistently sought to evade this view of the
situation.They have tried to minimize or rule out the possible çigniticance
of new facts. We find that even in the oral reply to which we are now
offering this rejoinder, the Applicants still quote th1962 Judgment as
saying-"al1 important facts were before the Court in 1950"-that
quotation appears in the verbatim record of II May, at page 197, supra.
Nevertheless, it seems that they now, even if only for a brief interlude, REJOINDER OF MR. DE VILLIERS
469
relented somewhat in that rigidattitude. They did that when they found.
something which they thought could assist them as a new fact, namely
this Nichoh' story, the story about Mr. Nicholls' statemcnt and the
attendant matters in the Preparatory Commission. And so we find,
Mr. President, that they Say in the verbatjm record of II May, the:
following:
"A careful reading of the submissions before the Court i1950 of:
the arvents before the Court in 1950 ,hows tliat there was not
an elaborate or eveiia studied demonstration or representation to
the Court in 1950 concerning the actual circurnstances witliin the
Preparatory Commission at that time-the Applicants have now.
endeavoured to lay these before the Court in perspective. Itwould.
seem reasonable to assume that if the Court in 1950 had known,
foresample, about &Ir.Nicholls' proposa1 for the establishmenof a.
temporary machinery to which to report, if the Court had known
that other hlandatories had supported a simiIar procedure, if the
Court in1950 had known that there was substituted for this proposa1
the technique of the plcdging procedure-if the Court had known
this i1950 ,t seems to the Applicants,farfrom changing their view
with regard to the proper interpretation of the circumstances, they
would have regarded their view to be fully confirmed and justified."'
(Sup~u,p. 188.)
Aiid in the same record, hlr. President, at pag189,the Applicants even.
went so far as to contend that the two dissenting judges in 1950, Judge
Reed and Judge McNair, might then have agreed with the rnajority
judges ifthey had merely known about these new facts.
Now, Nr. President, that the whole contention about the episode of
llr. Nicholls' speech and attendant circumstances has collapsed-as we
submit itclearly has on a proper reviem of al1 the relevant facts-one
wonders what the Applicants' attitude is now going to be;are they going
to withdraw into their shcll again and Say that there are no new facts'
which could assist the Court, or which could have affected the judgment
of the Court in 1g50? Ie subrnit, Mr. President, that the still deeper.
probing into the facts has advanced our contention about the 1950,
Opinion considerably further-that there are facts which werc not before
the Court in 1950 and which could and, in Our submission, ccrtainly
would have exerciscd an influence on it had they been known. The
further probing into the mattcr asa result of the Applicants' contention.
about Rlr. Nicholls' speech and about the attitude of the other manda-
tories in that regard has brought to light the proposal bp the United
States of America in the Preparatory Commission, the proposa1 which,
although put on the agenda, was eventually not further referred to at
all-a further very significant feature, with lvhich 1 have deaIt, and
which 1 need not repeat. We submit that had these full facts, as now put
before the Court, been before the Court in 195-as the Applicants noxv
admit was not the case-then it isinconceivable that the Court in its.
Advisory Opinion could have come to the conclusion that Respondent
consented to United Nations supervision over the hfandate.
That brings me, Mr. President, to the various questions which were
put by Members of the Court and to the argument addressed to the Court
by the Applicants in regard to the possible applicability, or non-applica-
bility of Articl73 of the Charter to the case of South West Africa. On470 SOUTH WEST AFRICA
14 April 1g6j1, the following question was put to the Parties by the
honourable Judge Jessup :
"In the interpretation and application of Article73 of the Charter
of the United Nations, is South West Africa to be considered one of
those territories whose peoplcs have not yet attnincd s full measure
of self-government, as this phrase is used in that Article?"
On 13 MayZ, the Presideiit asked the Parties to give consideration to
certain stated facts, nine in nuinber, in the response which tlie Parties
would inake to Judge Jessup's question. This series of questions, AIT.
President. raises very important issues, ïvhich have, or mai have, far- -
reaching legai and political implications. As the Court is aware, tlie esact
scope and content of the Article have never been defined to the satisfac-
tion of everybody concerned. In this regard,1 rnay convcnicntly refer at
the outset tothe facts set out by the honourable President in the questions
to which 1 have referred-dealing, as they do, witli eveiits at the San
Francisco Conference. Witli the greritest respect, Mr. Presideilt, we have
checked on the facts for accuracy and context as you askcd us to do, and
we say, respectfully, tllat they are, indeed, as far aswe caIi ascertain,
accurate extracts frotn the record.
It seems clear from facts r to 4,inclusive, that the gencral purpose of
Article 73 of the Charter wns to estend the main principle of triisteeship,
of guardianship, of tliemandates system to colonial territories generally.
This, of coursc, does not b~. itself answer the question whether former
rnandated territories werc intended to fa11within the terms of the Article.
It \vas an iiitent to extend thcse principles, broadly spcaking, to colonial
territories generally, but the nnswer in regard to mandated territories
does not automatically follow from that. The intention may \.el1 have
bccn to limit Article 73 to colonial territories and to provide for former
rnandated territories only witiiin the context of the trustceship system.
As a matter of textual interpretation alone there is much to bc said for
a contention to the latter effect. 1 may refer the Court in this regard,
respectfully, to the oral address to this Court by the South African
representative, Dr. Steyn, in the 1950 Advisory Proceedings. That is to
be found in the Pleadings,OralArgzlmeizts, Docz~mentsof those proceed-
ings, at pages 304-312.
As far as the actual discussions at the San Francisco Conference were
concerned, it would appear, frorn the facts nunibcred 5 to 8 mentioned
by the honourable President, that there existed considerable support for
the attitude that territorieç then held under inandate did indeecl fa11
within the terms of .4rticle73.
However, Rlr. President, there also exist strong indications to the
contrary about attitudes then taken by various delegates, riswas shown
by Dr. Steyn in his address, at pages 308 and 309,
This difference of opinion whicl-iesisted is one factor of difficulty in
relation to the question which liasbeen put. A further source of difficulto,
Mr. President, in answering the question of Judge Jessup, is that it
relates to the present applicahility of the Article to tlie Territorp. In
order to answer it, Respondent would consequently not only have to
consider whether Article 73 \vas regarded by its autliors as applying to
tSee VIII,hfinutes, p16.
Ibid.. pp35-40 REJOINDER OF MR. DE VILLIERS 47I
territories then held under mandate, but, with a view to assessing the
implications of the situation, legallp,litically, practically and othenvise,
but also have regard to the extent to which subseqiient developmentç
may have affected the position. These deve~opmciits are of a twofold
nature. In the firsplace, the political development of the Territory itself
has advanced bcyond the stage at which it was in 1945. Secondly, the
manner in whicli Article 73 has been sought to be applied by majorities
in the organs of the United Nations has changed to such aIiextent as to
raise the question whether an adrninistering authority, even in a case initi-
ally falIing undcr the Article, woulnot now be entitled torefuse tosubmit
to the obligations under the .Article bp reason of non-cornpliance there-
with by these very majoritics-the majorities holding sway in the organs
of the United Xations itself. That is a very important practical and
juridical question which wouid arise if one were to go fullp into the
question as it has been put to the Parties by the honourable Judge
Jessup. As an illustrationof this possibilit1 sliall shortly rcfer the Court
to certain of the salient features just by way of cxample of what has
occurred in this regard.
In view of these circumstances, Mr. President, a proper answer to the
question put by the honourable Judge would require a great deal of
rcsearch and tliought, and would involve implications of a legal and a
political nature stretching very far beyond this case itself. Whereas these
considerations would not have deterred us had the question related to a
matter directly in issue, we must, with the greatest respect, point out
that that is not the position he*. Tlie Applicants have not asked the
Court to determine that Article 73 is applicable to the Tcrritorÿ, and in
vie~vof the provisions of Article 7, paragraph z, of the Mandate, which
are relied upon as the sole source of the jurisdiction of the Court in
respect ofthis case, the Court would, in Ourrespectful submission, possess
no junsdiction to make such a determination if it were formally asked to
do so in these proceedings.
The Applicantshave not asked the Court to make such a determination,
they have indicated an attitude in tvhich they strenuously contest the
applicability of the Article. In these circumstances, hlr. President, the
question is, therefore, as a matter of law and as a matter of fact, not one
which js subniitted to the Court for determination. And, in view of al1
these circumstanccs, we must regretfully, and with the greatest respect,
decline to express a definite point of view on the question put by the
honourable Judge Jeçsup. Tt is, of course, with great reluctance that we
adopt this attitude, biit the practical implications, particularly in the
light of the esamples to which 1 shall now refer the Court, are suck as to
leave us, in ourjudgmciit, no alternative.
May 1, in referring to certain exarnples of the practical implications,
refer to the analysis which the Applicants have ventured in this regard
as to the scope of Article 73. InOUT submission, not only have the Appli-
cants given an incomplete rendering of the historicnl record with regard
to the inception of Article 73, but their analysis of the scope of the
Article also calls for commcnt in the ligIit of actual occurrences at the
United Nations.
Firstly, the Applicants made the point that the United Nations does
not decide which territories should fa11under Article 73 (e)of the Charter
and does not enlarge the list of such territories, it having been left to the
hlembers to decide which territories should be taken up in such list. That472 SOUTH WEST AFRICA
.the Applicants very clearly submitted to the Court in the verbatim
record of 19 Xay, at pages 367-368, supra.
Secondly, hIr. Presideiit, with regard to the scope of reporting under
.Article73 (e), the Applicants made the following subrnissioiis:
At page 368 of that record that "Article 73 (e) does not provide for
political information" ;
That Article 73 (e) "is .. .limited in scope to 'statistical and other
information of a technical nature' ";
That "no consultative procedures are envisaged in Article 73 (e) ";
That "no right of petition is provided for in Article73 (e)";
At page 369, "no provision is made or implied in Article 73 (e) with
regard to the hearing of petitioners";
And this further quotation, from page 369, that-
"under Article 73 (e),the information transmitted by administer-
ing authorities is sent to the Secretary-General for information
purposes; it is summarized and analysed by the Secretariat and
recommendations are made only in functionaI areas and not to
particular administering autliorities or in the contextof particular
dependent territories".
Now, when the actual record of developments in the United Nations is
examincd, it becomes clcar that there isan enormous difference between
-this interpretation and application of Article 73, as gihlenby the Appli-
cants,and the present practices in purported application of the Articleat
the United Nations, practices which, 1 rnap sa?, are enthusiastically
participated inby the Applicant States.
To attempt to deal exhaustively with the developments in the United
Nations in this regard would, in our submission, be an enormous task.
T am, therefore, offering oiily some very brief illustrative events and
:aspects-hringing them to the attention of the Court so as to give some
indication of the nature of the problem which confronts one.
Let us take the first point made by the Applicants, narnely that the
United Nations does not decide bvhich territories should fall under
Article 73 (e) of the Charter. It is true, >Ir. President, thno provision
was made in Article 73, or anywhere elre in the Charter, that any organ
of the United Nations would have competence to decidc which territories
fall iinder Articl73. And the General Assemblj?, indeed, intiiaHy left it
to the Membersconcerned to determine which territories fell within the
.category of non-self-governing territories.
Mernber States, initially. in fact decided for themselves in respect of
which territories information was to be transmitted, and they also
decided when it was no longer necessary to transmit information. To
mention only a few examples, the United States ceased to transmit
information on the Panama Canal Zone, the United Kingdom ceased to
transmit information on Malta and France ceased to transmit information
on a number of territories after 1947,including French Guiana, Guade-
loupe, Martinique, Réunion, New Caledonia, French Oceania, and others.
The information in thisregard, Mr. President, is given in a publication
of the United Nations in 1950 .t is given the reference number A/g15
andit is entitledNon-Self-GoverîtingTerritories :Sümmariesand Analyses
of Information transmitted ... during rgqg (U.N. Pub. 1950, VI.B.r),
Volume 1,pp. 7-8. REJOINDER OF MR. DE VILLIERS 473
But this position, Mr. President, changedin due course, first gradually
and then apace. Itwould require very considerable research to trace the
developments through their various stages, and 1do not propose to do so.
as we have not instituted the necessary fullenquiries. Sufice it to Say
that by 1960 the matter had progressed to a stage where the General
Assembly adopted resolution 1541 (XV), of 15 December 1960, which
formulated certain "Principles which should guide Members in deter-
mining whether or not an obligation exists to transmit the information
called forunder ArticIe 73e of the Charter".
On the very day of the adoption of these "principles" they were
applied in fact to a number of Portuguese territories despite Portugal's.
protest, having been a bone of contention for some time whether Portu-
guese territories were to be treated under Articl73.
In the very next numbered resolution, No. 1542 (XV), the General
Assembly declared that-
"... an obligation exists onthe part of the Government of Portugal
to transmit information under Chapter XI of the Charter concerning
these territorie. ..".
That was adopted on the very same day, 15 December 1960.
Later, Rlr. President, with regard to Southern Rhodesia, the General
Assembly went even further. Although the constitutional provisions
applying to Southern Rhodesia quite clcarly made that territory self-
governing, in the economic, the social and the educational fields at least,
the General AssembIy adopted a rcsolution in 1962 in which, in apream-
ble, it bore in mind that, according to one of the principles stated in the
resolution to which 1have referred,
".. .the constitution of a Non-Self-Governing Territory giving it
self-government ineconomic and social matters has to be established
through freely elected institutions".
Further, in this resolution it relied on "the fact that the indigenous.
inhabitants have not been adequately represented in the legislature and
not represented at ailin the government"; and the General Assernbly
resolved to request the Special Committee on "The situation with regard
to the implementation of the Declaration on the granting of independence.
to colonial countries and peoples", which was created in 1961, to consider
whether Southern Rhodesia was not a non-self-governing territory. The
resolution was No. 1745 (XVI) of the Sixteenth Session, 23 February
1962 . hat was the request, then, to this Special Committee on imple-.
menting the granting of independence to colonial peoples and territories.
That Cornmittee was to go into the question whether Southern Rhodesia
was not a non-self-governing territory : it wno Ionger left to the author-.
itics concerned.
And on 28 June 1962 the General Assembly, despite legal objections,
affirmed that Southern Rhodesia was a non-self-governing territory
within the meaning of Chapter XI of the Charter, and designated the-
United Kingdom as the administering power. That was resolution 1747
of the Sixteenth Session, 28 June 1962.
It is interesting to note, Mr. President, that Ethiop\vas a member of'
the Special Committee of Seventeen, now known as the Comrnittee of
Twenty-Four, namely the Committee on the Irnplementat ion of the.
Declaration of Independence, and that both Applicants, in fact, supported.474 SOUTH Ik'EÇT AFRICA
the development which 1have just mentioned, and yet they Sap to this
Court-
"Neither Respondent nor any otlier adrninistering autbority ever
Ilas been requested by the United Nations to add their dcpendent
areas to the list of non-self-governing territori(Szcprnp, . 368.)
Mr. President, in regard to the second set of points made by the
Applicants, concerning the scope of reporting under Article 73 (el and
the method of dealing with such reports, there an even more strikiiig
change has taken place in the actual practices of the United Natioiis. 1
nlean here, of course, the various points which the Applicants madeabout
no political informationbeing provided for, nor petitions, nor hearings of
petitioners, and about recommendations being made only infunctional
areas and not with regard to particular authorities or particular terri-
tories.
The pressures against this initial situationstarted very early, and it
would again be a tremendous task to trace their various phases of
developnient. From time to time one knows that there were resolutionç
encouraging and later exhorting Mcmbers to transmit political informa-
tion voluntarily, as itwas put in those resolutionç. But this concept of
,<voluntririness", if 1 may use that urord, was dropped after 1959. It
diçappenred entirelp from the resolutions, never to return.
Resolution 1535(XV), dated 15 Dccember 1960, of the Fifteenth
Session, which we noted bcfore, i~zleralia, in paragraph7-
". .. ?loteswith regret that ... the absence of information of a
political and constitutional character on a majority of these Terri-
tories renders jt impossible to assess the extent of their progrcss
towards the goals of the Charter;
8. Considenthat a fullknowledge of the political and constitutional
developments in Non-Self-Governing Territories is essential not
only to aproper evaluation of the progressof the Territories towards
independence but also to that of their economic, social and cultural
advnncement ;
9. Urges once again the Adminiçtering Members concerncd to
evtend their full CO-operation to the General Assembly in the
performance of its functions by transmitting information of a
politicaland constitutional character."
Ry resolution 1700 of the Sixteenth Session, rg December 1961 he
GeneralAssembly broadened the terms of reference of the Committee
on Information, and decided that this Cornmittee should examine
political or constitutional informationas well as information relating to
the functional field.
These functions of this examining Committee were linked to those of
the SpecialCommittee for the implementation of the granting of indepen-
dence to colonial peoples and countries. The linking of these functions
occurred in resolution 1654(XVI) of27 November 1961.
And on 19 Decernber 1961 the Gcncrnl Assembly reacted to Portugal's
refusal to transmit information under Article 73 by adopting a further
resolution in that regard. That was resolution 1699 (XVI) of the Six-
teenth Session, adopted on rg Decernber 1961 as 1 have said. A salient
feature of this resolution was the establishment ofa Special Committee,
inter alia-
,. .. to examine as a matter of urgency, nithin the contest of REJOINDER OF hlR. DE VILLIERS 473
Chapter XI of the Charter aiid relevant resolutions of llzeAssembly,
such information as is available concerning Tcrritories uiider
Portuguese administration, and to formulate its observations, -
conclusions and recommendations for the consideration of the
Assembly and any other body which the AssembIy tnay appoint ta
assist iinthe implementation of its resolution 1514 (XV)".
Tlic resolution referred to, Mr. President, \vas the Declaration on the
Granting of Independence to Colonial Countries and Peoplcs, and the
other body was, of course, the Committee appointed for the implemeii-
tation thereof.
There was here, quite obviously, no longer any limitation to non-
political information, or to functional areas. In addition, the General
Assembly, in paragraph j of that resolution relating to Portugal, autho-
rized the Special Committee "to receive petitions and hear petitioners
concerning conditions prevailing in such territories".
Thetrend was not confined to the reporting provisions of Articl73 (e),
but extended also tothe substantive provisions of the ArticlAs filembers
of the Court may be aware, Article 73 (b) and Article 76 (b) reflect a
compromise in their wording, a compromise which was arrived at in
San Francisco whereby tlic latter article, Artic76 (b), spoke of "devel-
opment towards self-government or independence", and the former,
Article73 (b), referred only to, "to develop self-government". The word
"independence" was not used in Article 73 (b) specifically as a reçult of
the compromise arrived at. The history ofthe matter is dealt witli, inter
aliab,y Goodrich and Hambro in Charter O/ the Uniteh drntions,revised
edition,1949 ,specially at pages 410 and 422 to 423.
The idea was that the term "self-government" in Article 73 (b) miglit,
but need not necessarily,include independence.Some of the administering
powers insisted that this degree of elasticity should be alloweand that
insistence on their part becarne part and parcel the compromise. It was
uphcld in the compromise and therefore we find that "independence" is
nat referred to inso many words in Article 73 (6) but is referred to in
Article76 (b) dealing with the tmsteeship system.
But, Mr. President, as from about 1960 the cry of the majority in the
General Assembly was for nothing but independence in relation to Article
73 territories, and then independence of a very special kind. Resolutio~i
1514 (XV) of 14 December 1960 of the General Assembly. that is, the
declaration on the granting of independence to colonial countries and
peoples, provided, interaliat,hat-
"Immediate steps shall be takcn, in Trustand Non-Self-Governing
Territories, or al1 other territories which have not yet attained
independence, to transfer al1powers to the peoples of those terri-
tories, without any conditions or reservations, in accordance witli
their freely expressed will and desire without any distinction as
to race. creed or colour,iiiorder to enable them to enjoy complete
independence and freedoin."
The special committee for the implementation of this declaration,
originally kno~vnas the Special Committee of Seventeen and now known
as the Comrnittee of Twenty-Four, gradually took over complcteIy from
the committee on Information from Non-Self-Governing Territories, and
in 1963 the General Assembiy formally requested the committee on
implementation to take over the functions of the other comrnittec and.
the latter was then dissolved. -476 SOUTH WEST AFRlCA
In addition, the same resolution requested the special committee on
. implementation to study the information submitted by administering
.authoritieand to-
"take it fuIly into account in esamining the situation with regard
to the irnplementation of the Declaration on the granting of indepen-
dence to colonial countries and peoples in each of the Non-Self-
Governing Territories, and to nndertake any special study and
prepare any special report it may consider necessaxy in addition to
itsactivitiesunder General Assembly resolutions 1654 (XVI) and
1810(XVII)" (Resolution No.1970(XVIII) dated 16December 1963).
This special cornmittee, Mr. President, therefore has a very free hand
.and apparently it exercises it very freely, as the records indicate. It
concentrates on examining the situation in specificterritories; it receives
petitions; it hcars petitioners; it çends visiting missions to wherever it
wishes. The committee has been deeply concerned when visiting missions
have not been granted access to territories which they wished to visit, but
they have proceeded to remedy the gap by sending missions or sub-
.cornmittees to adjoining territories in order to grant audience to political
refugees and others, and in this manner the desired information is then
.obtriined. Only this last week-end we read in the press, hlr. President,
that the entire cornrnittee with officials, constituting a full mission of
about 60 strong, waç on its way to Africa again. The Committee has
.further bccn specifically invited, by the General Assembly amongst
others, "To continue to seek the most suitable ways and rneans for the
speedy and total application of the Declaration to al1 territories which
'have not yet attained independence" (Resolution 1810(XVII), 17 De-
cember 1962) And ailthe adminiçtering powers have been exhorted to co-
operate in the implementation of this taskby the committee. Wefindsuch
.exhortation, forinstance, inresolution 195(XVIII) of II December 1963.
Therefore, Mr. President, we find that from a legal situation which was
intended to involve very much less than supervision initially, there has
now evolved a factüal situation extending very far beyond supervision.
'Theprotests ofthe administering States have been to no avaiI+The whip
is cracking for nothing but independence without delay-independence
,ofthe special kind ofwhich we have already taken note.
In these circurnstances, hlr. President, the Court wil, with respect,
have little difficulty in appreciating the far-reaching legal and political
.considerations that would be involved in an attempt to answer fuily the
question of the honourable Judge Jeçsup and the considerations which
have had a practical bearing üpon our decision to decline, with the
greatest respect, the offer of an answer to a question which does not forrn
.part of the dispute before the Court.
That concludes my repIy to the questions put in regard to Article 73
and the arguments offered in that regard by rny learned friend. It also
*concludeswhat 1 had to Say in regard to the general subject of Article 6
and of the Mandate and matterç peculiarly concerned therewith.
It remains for me to offer some brief rernarks on the subject of the
lape of the Mandate and toanswer two question psut by Xembers of the
Court in that regard.
Mr. Preçident, on zz April, reported in the verbatim record1, the
l See VIIl, Minutep. 18. REJOINDER OF MR. DE VILLIERS
following question, which I read in its translated form, was put to the
Respondent by the honourable Judge Koretsky:
"If the Mandate for South West Africa lapsed on the termination
of the League of Nations, wliat, in Respondent's vicw, iç now the
legal nature of the right of the Republic of South Africa to administer
South West Africa?"
Mr. President, the question, in our respectful submission, arises
logically from the Respondent's contention that the Mandate, as a whole,
has lapsed. That this is the case, has quite obviously been consistently
acknowledged by Reçpondent in these proceedings. 1can refer the Court
in this regard to the Oral Proceedings on the Preliminary Objections, at
VII, page 354, to the Counter-Mernorial, II, ai page 173, and to the
Rejoinder, V, at pages 82 to 84. Ho~vever, hlr. President, equally con-
sistently and with the greatest respect. Respondent has also pointed out
that the question does not fa11to be consideredor decided for the purposes
of the present case. We did so at these very sanie places in the record to
which 1 have referred the Court.
In the Counter-Mernorial we only stated this fact as being an obvious
one. Rut in the Reply the Applicants' reaction was that, is so doing, the
Respondent was "curt" townrds the Court. That was the word used by
the Applicants in the Reply, IV, at page z*, and the rnanner in which
they there dealt witli the matter suggested that Respondent had also
becn evasive in this regard.
Consequently, in the Rejoinder, we went into more detail than before,
in order to show that these suggestions on the Applicants' part were
unfounded.
At page 82 of the Rejoinder, V, we cited a statement of the Applicants
in their Reply which read as follows:
"Applicants respectfully submit that .,.there isnobasis whatever
other than the Mandate itself, for the continued exerciseby Respon-
dent of rights of administration, or of any other right, title or
interest in orto the Territory."
We continued then to point out, Mr. President, in the first place that if
that submission were to be a forma1 one, in terrns of which the Court
were asked to adjudge and declare, this Court would unquestionably have
to decline jurisdiction to doso.
IVe pointed out further, that,as far as we could see, the submission
could not even indirectly be of assistance to the Court in the decision of
the case which was actually before it, the case, narnely whether the
Mandate existed and, ifso,whether it contained an obligation of account-
ability. We still with the greatest respect maintain this position.
The Applicants' case is not that the Respondent is committing a
tresfiassby being in possession of South West Africa and continuing to
administer it,or that the Respondent's occupation of the Territory, or
its administration of the Territory, is in any way unlawful. Ifthat were
the Applicants' case, then the submission in question would, of course,
be highly relevant. But, in truth, the Applicants are asking the Court to
adjudge and declare that the Respondent is in law/uEoccupation of the
Territory, and that it has a right of administration-both of these in
terms of a Mandate which the Applicants contend to be in existence.
But the AppIicants ask the Court to adjudge and declare that certain
provisions of the Mandate are being violated by the Respondcnt.47s SOUTH WEST AFHlCA
It needs no demonstration that the Applicants' case as it is now before
the Court would fa11to the ground, without more, if the Court were to
hold that the Mandate kad lapsed, and tlicse iurther questions would not
arise.
In Sun&, therefore, the position is as follows: ln the first place the
dispute before the Court isbascd, as [ai -sjurisdiction isconcerned, upon
a clause providiiig for adjudication of disputes "relating to the interpreta-
tion or the application of the provisions of the Mandate". A dispute
whether, on the lapse of the Nandate, the Kespondent would have any
right or title to administer the Territory, and if so, what the source and
legal nature of that right or title could be, would clearly be a dispute
relating to something outside of the interpretation or the application of
the provisions of the Mandate. Consequently the jurisdiction clause does
not in Eatvpermit adjudication upoii siich a dispute.
Secondly, Mr. President, in keeping witli the legal situation, thAppii-
cants' forrnal submissions in fact do not asli for adjudication of such a
dispute.
We therefore, still, respectfull!: contend that the subject raised by the
honourable Judge's question does not either legally or factuaily form part
of the case before the Court, althougli it would, in contests outside of
this case, arise ina logical and a practical way from a finding that the
Mandate has lapsed.
It is for this reason that we have riot, in the pleadings, dealt fully and
systematically either with the ffactual basis upon which the answcr to
such a qiiestioii would have to be sought, if and when it should arise for
decision, or with the Iegal conscquences which would flow frorn such a
factual baçis.
It stands to reason, AIr.President, that we are stillnot in a position to
offer a full legal argument on that question, and that we must, wifh the
greatest respect, desist fromany nttempt to do so.The foundations have
not been laid; there is no foundation for the proper investigation into al1
the facts and into the legal questions that worild arise, on the pleadings
beforc the Coiirt.
But this does not mean, Mr. President, that the South African Govern-
ment seeks to evade the question, or that it is unable to render any
valid account of itsattitude in regard to the question.
In particular, the South African Government has no objection to
stating succinctly what its attitude is, as distinct from arguing or
canvassing the question as if it werea matter calling for a decision in this
case.
In the Rejoinder, V, at pages83 to 84, the Respondent mentioned some
of the facts by reason of which it has never had any qualms as to the
validity ofits claim to title on the basis thatthe Mandatehas lapsed.
The question enquires about the legalnatztreof the right to adrninister
the Territory. The Respondent says, Mr. President, that the legal nature
of its rightis such as is recognized in international law as flowing from
military conquest. South Africa's right of administration originated in
the act of siirrender of the German forces in 1915 ,n pursuance ofwhich
the Territory was lawfully governed and administered by the South
African Government for several years prior to and until the mandate
arrangement, to which the South African Government was, and in law
necessarily had to be, a partÿ. There could not have been that mandate
arrangement on the basis of what had already occurred, as far as South REJOINDER OF >IR. DE VILLIERS 479
ilfrica's occupatioii of the Territory was concerned, without the South
African Government being a party to that arrangement.
Upon the postulatcd lapse of the Mandate in 1946-not through any
fault on the Mandatory's part, but as a result of something done bjr
general consent of al1 the interested parties-then in law the status quo
ante revived, in other words, the same legai right of administration as
had existed prior to the mandate arrangement was still held by the
South African Government.
In fact the Tcrritory had,under the Mandate, been administered as an
integral part of the Union, as between rgzo and 1945e ,ven as it was from
1915. In fact the Territory had because of these devclopments to a large
extent beco~neadmiriistratively integrated with South Africa itself, and
econornically dependent upon South Africa. The South African Govern-
ment, in these circumstances, in maintaining the legal right as it existed
prior to the Mandate, does so subject to the policy of continuing to act
in the spirit of the Mandate. In purçuance of this policy the South
-4frican Government is engaged upon a positive programme for Ieading
the peoples of the Territory towards self-determii~atio~iIt considers that
this position must endure until the sacred trust which it originally
assumed vis-Ù-vis the different pcopIes of South West Africa, and in the
spirit of which the 'Territory continues to be adrninistcred,has been fully
discharged.
That concludes the answer to the question put by the honourable
Judge Koretsky, and that leads me immediately, hlr. President, to the
answer to the question-the question put to both Parties-by the
honourable Judge SirGerald Fitzmaurice, on 13 May 1965 l,and reading
as follows:
"IVhat, in the opinion of the Parties resyectively, is the present
and potential objective legal position relative to the mandated
territory of the Powers which, at the end of the First World War,
came to be known as the Principal Allied and Associated Powers,
namely, (in their then French alphabetical order) the United States
of America, Frniice, Great Britain, Italy and Japan? When these
Powers, in favour of whom sovereignty over the future mandated
territories was renounccd under the Peace Treaties, consented to the
arrangements whereby the territories were placed under League of
Nations mandate, did they thereby divest themselves of a11right,
titleand interest relative to the territories, or did they, as a matter
of law, retain a residual right of sovereignty or other right, title or
interest which would revive and become operative in the event, for
instance, ofa dissolutionofthe League of Nations, or ofa termination
of the mandate on a basis other than self-government or indepen-
dence for the territory concerned-and, if so, what is the nature and
extent of such right, title or interest and how may it operate?"
Now, Mr. Presideiit, it seems to us that there are two postulations
towards the end of this question and it \vil1be convenient to deaI with
them separately.
The first one isto consider the position on the assumption that the
Mandate has continued in existence despite the dissolution ofthe League.
In this regard we submitted in the Preliminary Objections, 1,at pages307
l SeeVIII,Minutes, p.36.480 SOUTH WEST AFRICA
to 308, and in the Counter-Memorial, II,at pages 205 to 207, that no
function was contemplated for the Principal Powers as such in the opera-
tion of the mandate system. ive abide by this contention, Mr. President,
the validity of which would not, in our submission, be affected by the
falling away of League supervision, because on that assumption the
Mandate as such ïvould still continue in operation and there was no
contemplation, in Our submission, of a function for the Principal Powers,
in their capacity as Principal Powers, in the operation of the mandates
or the mandates system.
Now, that brings us to the second postuIation. The answer 1 have
just given does not, of course, necessarily cover the situation if the Man-
date as a whole has lapsed. The question of a possible revival of rights
on the part of the Principal Powers in such event is a different and a
difficult question. From our reply which 1have just given tothe question
of the honourable Judge Koretsky, it \vil1folloxv that such a possible
revival of rights on the part of the Principal Powers, if any, could, at
most, constitute some form of qualification to the rights or title which
Respondent possesses on the basis to which 1 referred in that reply.
Iihethcr such rights do exist, lvhat their content would or might be are,
however, very difficult questions of Iaw and they have practical implica-
tions extending far beyoncl the present case. Apart from the inherent
problerns involved in an enquiry of this sort, further complications arise
from the history subsequent to the grant of the Mandate aiid, in particular
the events of the Second World !Var and the settlements following
thereon. This history very profoundly affected the political and the legal
relations betwcen the States whicli were formerly the Principal Allied
and Associated Powers, those relationships amongst themselves and with
other powers, including the Kespondent.
In order to provide a proper ansrver to the question putby the honour-
abIe Judge, these various matters would require very thorough and very
extensive canvassing and consideration. The matter is not in issue; in fact
the Applicants have not presented any forma1 submission on this point
to the Court and, in law, it seems that in thelight of the compromissory
clause they could not properly have done so. In view of these facts, and
of the implications which would be involved in the presentation of amore
definite answer by Respondent in this regard, we must, regretfully and
with great respect, decline to express any view thereon. We arrive at the
result with regret and reluctance, but the practical, legal and political
implications are such, coupled with the fact that the matter is not
presented to the Court for its decision, as to leave us, in our judgment,
no alternative.
Mr. President, then in regard generally to the issues between the
Parties on the question of the lapse of the Mandate as a whole, the
Applicants have, as far aswe can ascertain, offered nothing in their oral
reply which seems to us to cal1 for a further treatment in addition to
what we have already sfated in Our argument in chief. In particular, we
may point out that they have offered no argument in reply tothe detailed
presentation ~vhichwe gave to the Court on the proposition that ifone
assumes that accountability to the League organs was intended to be an
essential part of the Mandate, then the result of disappearance of the
supervisory organs without more must be the lapse of the whole Man-
date and not, as the Applicants contend, the survival of the Mandate
with accountability to organs not agreed to by the mandatory. \;Vedealt REJOINDER OF MR, DE VILLIERS 481
with that mattcr very fullyin our presentation on 13 April, which isto
be found in the verbatim record of that day at VII1, pages 577 to581,
and, as far as we could see, no anslver to that was offered by the Appli-
cants, nor havc they offered any further argument on the proposition
which they had advanced earlier to the effect that continued administra-
tion,in fact must in law involve contjnued accountability to some inter-
national organ. We, in our respectful submission, refuted that contention
in our argument on 9 April, at VIII,pages 513 to 517, and we again
referred to it on 13 April, and dealt with itaVIII,pages 580 to 581 ,nd
asI have said, nothing further has been offered by the AppIicants in that
regard.
The Applicants havc maintaincd that there are in this respect only
the two extreme alternatives-either a survival of the Mandate in toto
with accountability to the United Nations, or a Iapse of the Mandate
i? foto,and that there is no possibility of something in between. hlr. Pres-
ident, ifthat is so, itis not clear to us what has beconle of one of the
Applicants' contentions, ofieied iiiitially to this Court in its oral presenta-
tion as being a basic one, nameIy tliat the obligation provided for in
Article 6 of the Mandate was to be seen generally as an obligation of
international accountability, which obligation could su~vive even the
lapse ofthe particular supervisorp organs.
On the basis of that contention, when the League became dissolved
there would have been nothing affecting the obligation of accountability,
it would still have existed. But the Applicants suggested that on that
basis and on the analogy of the Barcelona Traction case the obligation
might become a dormant one. That seemed, ,on the presentation of the
Applicants' case initially, to be an inherent possibility lying in between
the two extrernes, but yet in the Reply it does not seem that they still
make provision for that possibility. That is in keeping with the factor to
which Ireferredbefore, MT. President, tl~at,apart frorn aformalreaffirma-
tion of their submission in that regard, the Applicants offer no further
argument in reply to our submission that the Mandate obligation under
Article 6 related to specific organs and wasnot a general obligation nor a
vague one of international accountability.
The Applicants have also, on the basis that one views the matter in the
light of the Respondent 's content ion of an obligation relating to specific
organs, not taken the matter any further on the question of whether the
obligation was to be regarded as a severable one from the rest of the
Mandate provisions, or as an inherent one. The arguments have been
repeated as before, but they have been taken no further and the possi-
biljties, the various alternative possible conclusions, at which the Court
might arrive in that regard, rernain the same as before.
We abide by our contentions, which are set out in a summary form in
the verbatim record of 13 April (VIII, p. 584).We abide by the conten-
tions as to the various possibilities which exist in regard to the issues as to
accountability and as to the existence or otherwise of the Mandate,
alternatives which exist for the Court as possible findings on those issues.
The alternatives are summarized in that record of rj April, at VIII,
pages 582to 584, and Ivecontinue to ask, Mr. President, fora determina-
tion in our favour in accordance with the alternatives which we stated in
that record, at page 584. SOUTH WEST APRICA
Mr. President and honourable Members of the Court, it will, with
respect, be evident to everybody that a dramatic change has conie about
the Applicants' casein the whole basis of that case regarding Article 2 (2)
ofthe Mandate. 1had occasion to refer to a sirnilar phenomenon in regard
to Applicants' case on Article 6 of the Mandate, the issue of international
accountability-the lapse or othenvise thereof and issues attendant
thereto. In this particular instance the change is, if anything, even more
remarkable. In relation to intemationd accountabiiity one could stiii
Say that the ultirnate effect of the contention rernains the same, namely
that the accountability is now owed to the United Nations, but that the
various grounds upon which it was sought to substantiate that contention
changed from time to time. In this instance one cannot even Say thrat
as a matter of substance. As a rnatter of form one might still Saythat the
contentions aIlalong have been that there has been a violation ofArticlez
(2) of the Mandate through policies appliedby the South African Govern-
ment inSouth WestAfrica. That reniains the same, Mr. President, butthe
whole substance of the case has changed: the proposition which is
advanced to the Court as to the manner in ivhich obligation has been
violated, asto the aspects of policy which may be said to violate the
obligation. Ali that has changed entirely, in substance and not only in
form, so that one can reaily speak here of a totally new case, which has
been brought for the first time ai the reply stage of the oral presentation
of the case in Court.
We shall have occasion in due course to deal fully with tlis whole
rnatter, with the manner in which this change came about gradually in
stages from the inception of the proceedings until now, and we shall
suggest to the Court the reasons ~vhythe Applicants found it necessary to
to raise the matter very briefly and very generally in an introductory way.
My sole purpose is to indicate very broadly what the case now is that
Respondent is called upon to meet, how it differs from the case initially
brought, and how we now propose to meet this case in the altered circum-
stances. 1 must emphasize, hlr. President, that I am doing so very
broadly, becriuse al1the aspects of this matter will have to be s~lbjected
to more detailed treatment at a later stage, and 1 should not like to
burden the Court with unnecessary repetition. But it does seem necessary
to have some initial reference to this aspect.
Mylearned friends are fond of referring to what they cal1the annals of
litigation. hIr. President, it mightbe said that seldom in the annals of
litigation can it have occurred that a party has taken such a long time
over realizing what its real case is, the case that it mants to bring; that
it has taken that party nearly five years to do so; that the party should
have had four occasions on which to state itscase, four attempts at doing
SU-in the Memorials,in the Reply, in the oral arpent in chief,and then
again inthe oral reply-and that on each occasion it should corne with a
new version, until on the last one the wheel has turned full circle and we
find something which is virtually the opposite of what was advanced in
the beginning.
At this stage 1 only want to compare in a bruad sense the two eu-
tremes-the one with hi chthey started, and the one as it now is.
In the Memorials, Mr. President, the Court will recall that the charge REJOINDER OF MR. DE VILLIERS 483
was undoubtedly one of deiiberatc oppression of the Native inhabitants of
South West Africa-it was that and nothiiig else-and that charge,
hlr. President accorded entirely witli the yrevious and subsequent
history of the dispute in the United Nations itself. The Court will recall
that the previous history of the dispute in the United Nations was relied
upon by the Applicants in order to substantiate jurisdiction, in ordcr to
show that thcre was a dispute which had proved to be incapable of
settlement by negotiation. For that reason very full reference was made
to an earlier dispute at the United Nations, a matter which we shall
follow up in due course. Ail 1 want to say at this stage is that, when that
is done, it will becomc apparent that that \.as the type of case made
against South Africa at the United Nations-one of deliberate oppression
of the Native peopIes of South Vrcst Africa. And that was the case which
was taken over in the Memorials of the Applicants and presented to this
Court. There was then no charge based on an alleged norrn or standards
of the nature now contended for. There was indeed, hlr. President, no
mention of such an alleged norm or standards of so-callednon-discrimina-
tion or non-separation. The norm then rclied upon, if one could cal1it
that, was a norm of non-oppression-a simple basic norm to which
nobody wouId have any difficulty of subscribing-and, indeed, Mr. Pres-
ident, a norm which undoubtedly and indisputably foms part of Arti-
cle2 of the hlandate itself. Artic2eof the RIandate enjoins the mandatory
to promote to the utmost the well-being and progress of the inhabitants
of the Territory, of al1 the inhabitants of the Territory, and it stands
to reason that if a mandatory pursues a policy of oppressing some
inhabitants for the benefit of others, thenitmust ipso factoand ipsojuris
be violating Article 2 of the hlandate. That norm of non-oppression is
containcd in Article z of the Mandate. It was not necessary to hunt about
the decision and the activities of an arnorphous body called the organized
international community in order to find a norm of that kind, But,
hlr. President, that reliance upon thnt norm required the substantiation
of a caseon bct, a case which established that the policies applied by the
South African Government in South West Africa in fact amounted to
deliberate oppression of the Xative peoples. And that was the case which
ought to be made in the particularization provided in the Memor-
ials.
That is where the Applicants' difficulties started. We came in the
Counter-Mernorial and we dealt at length with those charges and we
indicated, Mr. President, in what manner they were totally unfounded.
Although differentjatjon was practised in regard to the different popula-
tion groups of South West Africa-because of their natural condition.
because of the fact that they did not at any stage forrna unified popula-
tion but in fact formed sepârate groups at varying stages of development
-it was for that reason, and with a purpose and effect not of oppressing
some for the benefit of others, but of uplifting al1 in accordance with
their own needs and capacities, and particular circumstances, that the
differentiation ivas practised.
That was the answer we gave, and \ve gave chapter and verse for every
detailed aspect of it. And that was where the Applicants' difficulties
started. They found that it was not so easy in this Court as it was at the
United Nations to assert oppression and then to find that itis generally
accepted thatthe assertion is as good as substantiation. They found that
in order to make a case here tothat effect itwaç a case that would require484 SOUTH WEST AFRICA
proof, and proof in the face of very strong and very cogent opposition.
That was why we found at the Reply stage that the Applicants came to
mention a ço-called norm of non-discrimination or non-separation, which
was then alleged to be binding on the Respondent as a matter of inter-
pretation of Article2 (2)of the Mandate. But in additionto the norm the
Applicants still persisted throughout the Reply, ifthe Court wiil recall,
with their original charges of improper motives and oppressive conduct
on the part of the Respondent, so that the only reasonable interpretation
we could give to that Reply at that stage was that the Applicants,
although not specifically saying so, were still resting their case on two
alternatives-m this norm on the onehand and on the original charges of
deliberate oppression on the other hand.
That was the case lvhich the Respondent came to this Court to meet.
We came prepared to meet that case, hlr. President, not only by way of
legal argument but alsoby way of a fullfactual inquiry into Respondent's
policies, their purposes, their motives, their effects, their objectives, and
their implications, and also the actual results achieved by those policies.
In substantiating that case, hlr. President, the Respondent intended to
cal1a number of witnesses to testify with reference to al1these aspects
which 1 have just mentioned. But al1this has now becorne unnecessary,
because the Applicants have changed the whole basis of their case, with
the result that the dispute which the Court is now requested to adjudicate
upoThesApplicants' case, and their only case now, is that Respondent has
acted in breach of a norm of non-discrimination or non-separation
andlor on standards of the same content as the norm.
They havemadeit abundantlpclear, and wecould give the references to
the record to the Court at a later stage, as we develop the argument, to
the statements by the Applicants which made it perfectly clear that they
now nolonger rely on any casein which they allegeoppressive conduct, in
which they allege improper motives, in which they allege bad faith, in
which they alIege awrongiu1 intent or purpose on the part of the Re-
spondent, Mr. President, on the one hand, or on the otherhand,inwhich
they allege that, measured according to resultç, Respondent's policy has
contravened and violated Article z of the Mandate. We will give those
references Iater.
Mr. President, what 1 want to point out by way of general comment
at the start js.this: thatafter discovering theid ifficultiesinrespect of
substantiatingtheir original case on the facts, the Applicants have sought
to meet their difficulties by raising the standard of the norm on which
they rely. They elevate that standard from a commonly accepted one of
non-oppression ta one which is now called "non-discrimination" and
"non-separation", but which on analysis, Mc.President, we maintain still
amounts to non-differentiation in defined spheres-non-differentiation
which results ina position that even if a policy involving contravention
of the norm should in fact be intended for the benefit of a population,
and should in fact enure to the promotion of well-being and progress of
the population, that poIicy would still be contravening the norm.
The nom therefore, in that sense, Mr. President, is a technical one-
technical because it does not invite this Court to FrIiditself that thereis
anythng bad attached to Respondent's policies, that Respondent 's
policies in fact injure the population or that these in fact have been
improper motives attached to them. It is simply a technical norm against REJOiNDER OF MR. DE VILLIERS
485
which the policy is to be tested because, it is said, the policy difierentiates
in certain spheres, and that differentiation is illegal, it is contrary to the
norm. It wili be evident that in order to arrive at that position, it was
necessary for the Applicants to elevate the norm to this new plane.
That was necessary in order to obviate an enquiry into the facts, the
matter with which AppIicants found the difficulty. And in order to do
so the Applicants ran into new difficulties. They ran into the difficulty of
findingjustification for saying thatthat norm or the equivalent standards
were standing at this high level and were binding upon the Respondent
ivehement and consistent protests.despite the fact of Respondent's
hlr. President, for the purposes of establishing thiase the Applicants
have to go very far, and they attempt to do so. They Say they rely on
standards, and what does their case amount to in essence, in basic
substance, in regard to those standards? They say that there is a peculiar
relationship betweea the Respondent and the organized international
community, whereby the Respondent as Mandatory is obIiged to take
orders, as it were, from the organized international community-to be
ordered and directed by the organized international cornmunity-as to
the manner in which it is to seek to achieve the objectives of the Man-
date of promoting well-being and progress to the utmost.
They say that that discretion rests with the organized international
community, and by virtue of that discretion the organized international
comrnunity can decide and Respondent is bound in Iaw-it must obey.
That they Say, Mr. President, despite the fact that they cannot point
to any sirnilar position having obtained in the time of the League, the
international organization under which the Mandate was intended to
operate. They cannot point to a situation in the League time where
supervisory organs, admitted supervisory organs, could lay down
standards or norms which would be binding upon the Mandatory,
independentIy of its consent, and despite its opposition. They cannot
point to that.
In fact, Mr. President, the situation,as we have shown and as we shail
endeavour to show again, was exactIy the contrary. They cannot even
point to such a situation obtaining in the new regime of the United
Nations relative to the tmsteeship system. They cannot point to a
precedent there, or to a principle there, to the effect that States, ad-
ministenng authorities tvhich have put territories under trusteeship
under the auspices of the United Nations, would be bound to comply
with directives given to them by the very supervisory organs of the
United Nations itself contempIated in the Trusteeship Agreement ; that
they cannot show. Yet, Mr. President, the effect of their contention is
that despite al1 this the Respondent-who did not place the mandated
Territory under tmsteeship,and theyadmit that there was no obligation
on the Respondent's part to do so, the Respondent is in the worse
position. It is in the position now that the organized international
community can order it about-not only the superviçory bodies of the
United Nations which supervise administration under trusteeships, and
powers in respect of the Mandate-notantsonly those bodies, Mr. President,
can order it,but also other bodies said to represent the organized inter-
national community in some way or other, such as the International
Labour Organisation. That is the length to which the Applicants find it486 SOUTH WEST AFRICA
necessary to go, in order to substantiate their case as far as standards
are concerned.
Now when it cornes to the norrn, the position is even very much more
far-reaching. The norm is alleged by the Applicants to have been estab-
lished by the "consensus", by the "collective judgment", by the "collec-
tive will" of the "organs of the international community". All those
xvords 1have stressed are the words actuaiiy used by the Applicants in the
course of the statement of their argument, in the verbatim record of
I May rg65. They are dl to be found at one page also-page 352, supra,
O? that record.
The effect of this case appears toe, hlr. President, if we understand it
correctly, that there is now a kind of a legislative power, quite indepen-
dently of a mandate arrangement or something similar. There is a
legislative power on the part of the organs of the sa-çalled organized
international community to bind States that do not agree with tbat
so-called consensus, or collective judgment, or collective will. In other
words, hlr.President, we now find acollectivist approach inthe organized
international community, something in the nature of a legislature or
legislation which by a collective wilcan bind dissidents, caribind people
who do not agree with that collective will.
That the proposition is a novel one, aiid that it is very far-reaching,
hIr. President, with implications extending very far beyond this case,is
a factor which 1 need not stress. It will be obvious and patent, with
respect, to every Member of this Court. The implications on the whole of
the international order, ofwhich this Court forms a part, are indeed of a
startling nature. 1do not intend to elaborate upon that now. It is enough
to Say at this stage that they could threaten the very existence of that
whole international order. This whole orgnnized international community,
al1the organization, al1the achievement that has gone into the interna-
tional order up to this stage, stands threatened, Mr. President, by the
implications of what is suggested to this Court under this "nom"
contention of the Applicants. But I shall leave it there for the moment;
it isa matter which willrequireelaboration at a later stage of the argument.
The Applicants are not unaware of the factthat they are coming here
with an entirely novel and almost revolutio~iary proposition to this Court.
They thernselves admit,and 1 quote from the verbatim record of13 May
1965, at page 262,su@ra,that:
". ..they perhaps rest upon a law-creating process which has not
heretofore been considered or passed upon by this honourable Court".
That is the end of that quotation, and in the verbatim record of
19 May, page 352, sutra, they said they "... may perhaps appropriately
refer to this case asrare in the annaof this Court orits predecessor ...".
Mt. President, in the light of the real implication of the contentions
which they advance, these rnay perhaps be called the under-statements of
the year. But even taking them on this level of the AppIicants' own
admission it is rather evident what a long way the Applicantshave corne
from the good old days of the Memoririls, in which they said at the very
beginning oftheir statement of the law regardingArticle2 of the Mandate :
"In the present case, ... the issues of fact and law, and of the
application of law to fact, do not involve conjecture. The violation
of the duty to promote 'material and moral weI1-being and social
progress' isbeyond argument." (1,p. 104.) REJOINDER OF MR. DE VILLIERS 487
That was the note, Mr. President, on which this litigation started,
Also, in the Memorials, at 1,page 166, also the Court wil1recall the refer-
ence there to the "polar disparity between the duties of the [Mandatory]
... aiid its conduct in the administration [of the Territory]". As 1 Say,
that was the tone on which we started. We now end up with a tone of
law-creating process which has not heretofore been considered or passed
judgment upon by this honourable Court.
I do not intend to take this matter further at the present stage. It
will be dealt with in detail later, as 1have said.
It is sufficient to Say tliat thivolte-facon the Applicants' part has
rendered it unnecessary for us to enter upon their original charges. The
only issue before the Court now is whether the norm andlor thestandards
as cotitended for by the Applicants exist, and whether they apply in this
case. ils 1 have said, 1 shall indue course give the Court the necessary
references to the record which make that clear beyond any dispute.
We therefore no longer have to meet those original charges, and in a
our full case before the Court in respect of them. But then, Mr. President,
as in al1courts, the Applicants are the domini Eitis.They, by the charges
they bring, and by the charges they alter as they goalong,determine the
ambit of the dispute. We shall not, as we intended, with respect to the
original charges, lead evidence or otherwise canvass a case in answer to
charges as raised in the pleadings but now dropped.
We have given serious consideration, Mr. President, to the question
whether in these circumstances it would be necessary, or desirable, to
have oral evidence at all. For reasons which we shall explain in more
detail later, wehave considered it desirable to have evidencenevertheless,
particularly inasmuch as it may be of assistance to the Court to consider
that evidence in anslver to the Applicants' contention that a norm (or
standards, or both), of the nature suggested by them, exists or is appli-
cableto the administration of Respondent in South West Africa.
We shall, at a later stage, explain the nature and the purpose of the
evidence in more detail. That we shall do partly in the course of elabora-
tion of our lega-alrgument and partly in the course of the introductory
statement upon the facts which we intend to makc at a Iater stage, Le.,
the introductorystatement upon the evidencewhich we intend to lead.
Broadly speaking, Mr. President, one can Say that the matter, nar-
rowed down asit noivis, fallsunder two heads. The first concerns the norm
and standard creating processes. The question is whether they exist as
suggested, i.e., in the form andwiththe effectsuggested by the Applicants
and, if so, how such norm and standard creating processes have come
into existence, what it is that has eIevated them into being binding upon
dissenting and protesting States, and what the implications are of those
contentions generally.
The second aspect on which we intend to present a case to the Court
-and that is mainly whcre the evidence will come in-is that of the
suggested actuaI application in practice of a norm and standards of the
content now contended for by the Applicants. One will have to investi-
gaie-and that is largely a question of fact-to what extent such a norm
and such standards are indeed souniversalty or even widely accepted and
practised as is suggested by the Applicants. Those are features of the
difficultiesinto ~hich the Applicants have now run and on which we shall
have more to Say,bothby way of argument and by way of presentation488 SOUTH WEST AFRICA
of evidence to the Court at a later stage, quite apart from the other
important factual aspect, nameIy the implications which the application
of such a norm wiU have in circumstances such as pertain in Southern
Africa and alsoin some other parts of the world.
One caii Say, in eflect. Mr. President, that it is now no longer the
Respondent's policies that stand in the dock and have to be defended.
What has to beanalysed here, andwhat really stands in the dock noiv, is
the suggested norm and suggested standards which form the basis of the
Applicants' case. And that will largely be the centre of gravity in the
further canvassing ofthe issues in ths caseregarding Article 2, paragraph
2, of the Mandate.
Now, before pursuing the matter further with regard to the Applicants'
case aç now presented to the Court, it is necessary for me to revert, even
if only briefly, to the contentions which we advanced to the Court in
regard to the proper interpretation and appIication of Article 2, para-
graph 2, of the Mandate, in so far as the issues before the Court are
concerned.
Our case in that regard rnay now be said to have become largely
academic in view of the change that has corne about in the Applicants'
case tu which I have just referred. But insome ways, Mr. President, we
find that the Applicants seek to build, in support of the case which thcy
are now advancing, contentions of their own on comments which they
pass upon our original legal contentions with regard to Article 2 of the
Mandate. They pass comments on our argument in that regard; in part
they oppose us; in part they agree with us; in part they put a certain
intcrpretation upon those arguments and then, on that baçis, they try
to build arguments in purported substantiation of the case which they
now put to the Court.
For that reason, it may serve some purpose and be ofassistance to the
Court if 1were to revert briefly to what oiir contentions amount to and
to clear up any possible rnkunderstandings that may have arisen in
regard to them. The Court wiIlalsorecall the questions put to the Parties
in regard to their respective contentions by the honourable Memberof the
Court, Sir Gerald Fitzmaurice on 7 May l.To a large extent, many of the
questions put tous in that regard have nowalsolargely become academic
in view of the factors to ivhich 1 have referred,but again, in order to
clear up any misunderstanding which might have arisen, in order to have
complete clarity as to the attitude we took and in so far as that rnay be
of assistance to the Court in regard to the case which is now stilI before it,
it seemsdesirable to revert very briefly to our attitude.
The Court wili recaII that Ourfirst and main Iegal contention regarding
Article 2, paragraph 2, of the Mandate is that the paragraph ivas not
intended to be justiciable at all, at any rate, not at the instance of a
State which has nodirect interest in the matter either for itself or through
its subjects or citizens. Our alternative contention is that in the total
effect of Article2 no act or omission on the part of the Respondent could
constitute a violation of the Article unless that act or omission was
actuated by an intention or was directed at a purpose other than one to
promote the interests of the inhabitants of the Territory.
Now, Mr. President, in their opening oral argument in this Court the
AppIicants went into some detail in their attempt to show that our main
1 See VIII,Minutes, pp.30fï. REJOINDER OF MR. DE VILLIERS 489
contention was untenable. We reacted to that by analysing al1the argu-
ments adduced by the Applicants and in our submission we showed
conclusively that those arguments were devoid of substance. It is perhaps
of some significance that in their oral reply the Applicants have not
revcsted to this sphere of controversy. They have remained singularly
silent asregards Ourmain contention wliich tliey termed Ourfirst alterna-
tive contention. ln so faras they referred to it at all, the references have
been mostly to no greater effect than to register surprise at the fact that
the matter is still raised by us atal1 after thc Court's 1962 decision. But
those references, of course, omit any indication of the margin by which
their decision was reached. They omit any reference whatsoever to the
merits of the controversy in that regard and tothe analysis which we put
before the Court.
On the contrary, Mr. President, as we shall show, the Applicants now
adopt attitudes which go very far towards confirming the correctness of
Our first contention, i.e., bythe attitudes which thep have put forward
in regard to their norms and their standards. The effcct of this argument
in regard to norms and standards is, of course, tliat to the extent provided
for in the suggested norm and in the suggested standards, the Respon-
dent's obligation under Article 2, paragraph 2, is justiciable.Eut, Mr.
President, itisonly to the extent provided for by the suggested scopeof
the norm and of the standards. What is important is that the Applicants
have not sought, either in their written or in their Oral Pleadings, to
advance or to formulate any general basis upon whch the obligation is
said to be justiciable, any general basis, that is, upon which it would be
possible to adjudge any conceivable allgcd violation of the Article. They
go only so far as the scope of the norm and the standards. They go no
further.
Afay 1 illustrate the difficulty with an example? Let us assume, Mr.
President, that the Respondent has applied in the Territory a gcneral
policy of integration between the various groups, but that purely for the
purposes of protecting the Bushmen. an area has been set aside for the
sole and exclusive use of the Buslimen an area ofwhich the Bushmen rnay
avail thernselves ifthey wish and in which they need not stay if they do
not wish. Accarding to the Applicants' contentions, if 1understood them
correctly, such differentiation would have bcen entirely permissible. Now
let us assume, >Ir.President, that the dispute then comes before this
Court under Article 2 ofthe Mandate, because it is alleged either that this
area given to the Bushmen iç too small to cater for their needs properly,
or that it is too large and takes away too much territory from the other
inhabitants of the territory. Let us assume that that kind of dispute cornes
before the Court. How do the Applicants suggest that a dispute of that
kind is to be justiciable under Article 2, paragraph 2, of the Mandate?
How does their contention in regard to a norm or standards assist at al1
with a view to solving a dispute of that kind?
Let us assume, Mr. President, that the Court is merely asked to adjudge
that the Respondent has applied a wrong or an antiquated economic
policy to the Territory generally, a policy impeding the material progress
of al1 the inhabitants, without any reference to colour policies or to
distinctions between groups and so forth. Let us suppose that that is the
dispute uphich comes before the Court-raised by somebody in the
interests of the inhabitants-and that itis alleged that the economic
policy is antiquated, inadequate and wrong.490 SOUTH WEST AFRICA
Mr. President, how do the Applicants suggest that a dispute of that
nature is to be adjudged by this Court? It would be evident that their
contention in regard to the norm of non-separation or non-discrimination,
or the so-called standards to the same effect, would be of no assistance,
for the simple reason that they do not constitute general criteria by
which divergent policies and practices can be tested for legality.
Nowit rnay be, ofcourse, that the Applicants may contend that outside
this particular norm and these particular standards, there are othernoms
and other standards governing other aspects ofa mandatory's conduct.
But, Ah-. President, that already begins to throw doubt upon the accept-
ability, or even plausibility, of this whole approach through the medium
of nornis and standards settled by the organized international commu-
nity. Could it really sel-iouçly be suggested that the organised inter-
national community would have concerned itself with the evolution of
norms and standards for each and every aspect of governmental policy
and practice in rnandated territories or in such territories generally? If
the Applicants cannot suggest that the whole field isnow covered by
such norms, clearly evolved norms, practices or standards, then it is
quite clear that the whole fieldof possible dispute under Article 2 would
not be covered by their legal contention at all, and that there would
rernain a residuum in respect of which Article 2,paragraph 2, is not
justiciableat sll.
Ifthey do contend, Rlr. President, that there are standards, or a norm
and standards, for al1the spheres, then 1have not heard them suggesting
that yet. 1submit that such a contention would be absurd. If one looks
at al1the trouble andthe difficulty that the Applicants have encountered
in trying even to define the content of this single norm and the cor-
responding standards on which they seek to rely, and in trying to show
that it is a matter of general acceptance, one wonders how interminable
the disputes would be if they were to try to show that the whole field is
covered by relevant and applicable noms and standards.
However, Mr.President, the fact remains that the only counter which
has been offered by the Applicants to the Respondent's main contention
that Article 2 was not intended to be justiciable, is that based upon their
norm and their standards, and it is inadequate to the extent I have
indicated. It is also the only counter which is offered by the Applicants to
our alternative contention as to the limited basis upon which the Article
would be justiciable, ifat all.
The field is then narrowed to the questions of the existence, the
applicability,and the binding nature or otherwise ofthe suggested norrn
and standards, and to the questions whether thcy have the content
ascribed to them by the Applicants, and whether they bind us.
It isin these circumstances that rny remarks apply that to deal with
Our contention, Our alternative contention, and the legal arguments and
the legalprinciples involved, urould largely be academi;but nevertheless,
for the reasons 1 have indicated, 1shall now proceed to deal briefly with
the alternative contention, and 1propose to start to do so by refeienceto
the questions put by Sir Gerald Fitzrnaurice.
The Court will recall that questions 1-4of that series put on 7 May1
related to the position of the Applicants. Questions 5-7 related to Our
position, and questions 8-10 related to the position of both Parties. We
Sec VIII, Minutes, pp. 30 ff. REJOINDER OF MR. DE VILLIERS 4gr
shall deal first, Rlr. President, with the questions wkich relate specificaiiy
to our position, and which are addressed to us; in other words 5-7
relating specifically to Our position, and8-10 relating to the position of
both Parties. Thereafter we shall in general revert to an analysis of the
merits or other~viseof the Applicants' case.
Question 5 reads as follows:
"lt is soiely on a basis of general principle that the Respondent
claims for the Mandatory an absolute discretionary power to deter-
mine for itself by what methods Article z of the hlandate shall be
implemented-subject only to good faith and correct intentions?-
or does the Respondent claim that a discretionary power of this
kind is to be dcrived from the language of Article 2 itself?"
Mr. President, itwill be noticed that this question as so worded seems
to impute to us an abstract legal contention to the effect that as long as
the Kespondent acts in good faith it has an absolute discretionary
powcr to determine for itself by what methods Article 2 of the Mandate
shall be implemented.
\trith the greatest respect, Mr. President, it seems tous, on analysis,
that this would perhaps put too highly what we intended to convey in
our argument. Perhaps the rnistake is ours; perhaps we did not make it
as clear as mreshouid have, what it is that we really and in fact contend
for; and, ifso, 1welcome this opportunity ol clearing up any misunder-
standing there rnigktbe in that regard.
Let us go back to the Rejoinder, V, at page 157, where we said:
". ..the Court can detcrmine whether a legislative or administrative
act or policy constitutes an infringement of Article 2, paragraph 2,
only by examining whetheror not the exercise of a discretioninvolved
in such act or policy, was directed at the purpoçof promoting to the
utmost the well-being and progress of the inhabitants. Such an
examination would, in the circumstances, involve an enquiry as to
the good or bad faith of the Mandatory".
Istress the words "in the circumstances", Rlr.President, because they
have a significance; they refer back toa more extensive treatment of that
point, to which 1shall return.
We have aIways endcavoured to indicate in terms ofthis alternative
contention that in theory the Respondent's policies and practices can be
tested by the Court in the same rnanner as administrative acts and
decisions are tested by courts in municipal systems, and that tliis could
include a finding of invalidity on bases which are quite independent of
bad faith.
But, Alr.President, our contention has alïvays been that in view of the
particular circumstances pertaining to the Mandate-the practical
circumstances pertaining to the hlandate and the territory-a judgment
to the effect that Respondent has abused or excceded its discretionary
power would in practice and effect necessarily amount to a judgrnent
that Respondent has acted in bad faith. That was the effect of what we
tried to convey. We did not suggest that good or bad faith could always,
in relation to discretionary powers, or in theory, in relation to this
particular discretionary power, be the only basis upon tvhich an act, or
a policy, or a practice coiild be invalidated. But we said that, having
regard to the particular practical circumstances that was very much the
practical result at which one arrived.4g2 SOUTH WEST AFRICA
We dealt with this matter, for instance, in the Counter-Memorial, II,
at pages 385 to 3Sg; we dealt with it in the Rcjoinder,V, at pages 157 to
159; we dealt with it again in our oral argument in chief in thepresent
proceedings, especially in the verbatim record of 14 April,VIII, at pages
612 to 621.
There we demonstrated the basic theme that the Respondent's powers
iii terms of Articl2 of the Mandate were of a discretionary nature.We
based our arguments on an interpretation of Article 2 of the Mandate
itself, read in the lighofArticle 2z of the Covenant, and we referred to
strong authority in support of Our arguments on the basic proposition
that the Rcspondent's powers in terms of the Article were of a discre-
tionary nature.
In their oral argument in chief the Applicants did not dispute Our
contention that a discretion was conferred upon the Respondent. They
joined issue withus only in respect of the rnanner in which an exerciseof
that discretion could be tested by the Court. In effect, they said that
the Respondent's discretion was curtailed by the nom and by the
standards for whch they contended. One finds our treatment of tlie
Applicants' attitude in that regard in the verbatim record of 14 April,
at VIII, pages 623 to 625, and again in that of 22 April,at pages 633 to
639.
But now, in their oral reply, &Ir.President, the Applicants adopt what
seems to be a new attitude, namely that the Alandate in effect conferred
a discretion on the organized international community to decide by what
methods the interests of the inhabitants of the Territorÿ should be pro-
moted. And they seem to contend that the Mandatory has to bow to this
discretionary power. As 1 have said, we shall deal with that attitude at a
later stage. 1 am concerned for the moment with an analysis of Our
contentions in regard to Article 2;1 merely wish to point out in passiiig
that the Applicants didnot contest the discretionary elernent in thegrant
of power.
What 1want to ernphasize is that the discretionary nature of the power
for which we contend is derived from the language of Article zitself, read
in the light of Articl22 of the Covenant and of the mandate instrument
as a whole.
The language reflects a grant of full power of administration and
legislation.Those are the words of the grant itself-"full power of
administration and legislation". That full power issubjected to a general
limitation as to purpose or objective, and to a few specific limitations
about particular subjects in Articles3 to 5 of the Mandate.
Inasmuch as that concept, as used in Article z, viz.,a power of ad-
ministration and legislation, is inherently a discretionary power, and as
the limitations are such as merely to circumscribe or qualifp the discre-
tionary element, and not toremove it,we Say that the discretion follows
from the language of the Article itselfTt flows from it. It is part and
parce1 of an explicit gant of power.
However, Mr. President, whcn we corne to the grounds upon, or the
circumstances under, which a court can adjudge that Respondent has
abused or has exceeded the limits of the discretionary power, then, of
course, we rely upon ordinary, or general, principles, of law and logic
as recognized in al1 civilized municipal systems of which we are aware.
But, in doing so, we must respectfully point out that here, too, we do not
conceive ourseIves as proceeding from principles of an apriori character, REJOINDER OF 31R.DE VILLIERS 493
as is suggested, with respect, in the introductory portion of the question.
\Ve do not, in the wording of that introductory portion, postulate an
inherent discretionary power in the Mandatory. kVesubmit, with respect,
that the power is explicitiy granted; it follows from the grant, the
discretionary clcment which is included in the grant, and ittherefore
follows frorn the wording of the grant,and not from any a prioriassump-
tion of something inhering in the Mandntory, independently of the graiit.
Ive Say, likeivise, Mr. President, that the principles for determinjng
whether a violation of the discretionary obligation has occurred find
their application as a resulof the language ernployed. They flow frorn it.
They do not find their application by way of being invoked a p~tori in
order to put a forced constmction upon the language. We construe, with
respect, the language first, and we submit that from the meaning of the
words employed, from their significance, there flow certain consequences
as regards the discretionary nature of the power granted, certain con-
sequences whicli then follow inlaw as to the principles upon which it can
be found that the discretion has been violated.
This answer, Mr. President, in our submission, partiaily aIiswers
question 5 put by Sir Gerald Fitzmaurice. In order to fornulate a full
answer to the whole question it remains to consider the grounds upon
which, according to our contention, iwould be possible to say, ilaw,that
the Kespondent has abused its discretion.
In the course of dealing very briefiy with this, Nr. President (1 do
not want togo into itat any length), 1 should also iike to indicate, witli
respect, that to Say that we lay claim to an absolute discretion perhaps
puts the matter too highly. It is not an absolirte discretioItis certainly
a discretion which is relative to a certain defined sphere. Tt is a discretion
wvhichis in some way lirnitedby curtailment, by qualifications, but which
is then left to operate in a residual field without qualification but still
within the limits of that field.
Becausc of certain remarks made by the Applicants in answer to our
contention about the discretionary nature of the power and about the
legal consequences which flowed from itwc werit into this matter again
rather fully before this rejoinder stage. We thought, having regard to
some of the Applicants' remarks, that perhaps wvcmight have misunder-
stood the relevant legal principles in some municipal systems and tliat it
might be necessary for us to check on Our own appreciation of those
principles,so we went into the matter as fully as we could. We obtained
such expert assistance as we could even from a continental professor in
administrative law, but, hlr. President, we found that, in the words of
Omar Khayam, "in the end we came out by much the same door as in we
went".
It seems, with respect, that Our exposition of the basic principles has
been substantially correct thus far, subject only to a possible misunder-
standing that rnayhave arisen from statcments which we sometimes used
by way ofa shorthand description, and which may therefore have created
an impression of over-simplification. IYe dealt with the matter in more
detail inother passages of the record and we thought that we had left no
room for misunderstanding of the nature manifestcd by the Applicants in
their comments, but it seems that we were wrong in that respect.
In our pleadings and in our oral argument in chief we submitted that
jt was a logical proposition, inherent in dl cases where courts have to
decide on the legality or othenvise of the exercise of a discretionary494 SOUTH WEST AFBICA
power, that the Court is not entitled to substitute its own discretion for
that of the authority upon which the discretion has been conferred. Ili
other words, we submitted that the Court cannot conclude that such an
authority has abused its discretion in a legal seiise merely because the
Court does not agrer: as a matter of merit with the decision, or with the
çteps taken by that authority. If the Court were to do that, we submitted,
it would be the very negation of the concept of a discretion.
We submitted, further, that in view of the provisions of Article 2 of
the Alandate, no act or omission on the Respondent's part would con-
stitute a violation of this Article unless such actor omission was actuated
by an intention, or was directed at a purpose, other than the purpose
espressed in the Article, narnely to promote the interests of theinhabitants
of the Territory.We made itquite clear thatin advancing this proposition
we were concerned only with the particular situation obtaining under
Article 2,and that wewere not to be understood as suggesting that in al1
cases where a discretionary power was confcrrcd upon a person or a
body, the possibility of judicial interference with the acts of the holdeof
the pou7ermust necessarily be equally limited. 1 may refer the Court to
certain passages in our pleadings in that regard just for convenience: in
the Counter-Mernorial, II, at pages 340-393, in the Rejoinder, V, at
pages 158-162, in the verbatim record of 14 April, at VIII,pages 620-622,
and again in that of 22 April, at VIII, pages 627-625 I. these passages
we referred to a number of grounds, to which one could perhaps add a
few more, on which courts in municipal systems can set aside an exercise,
or a purported exercise, of a discretion-grounds of a special nature
pertaining to particular circumstances which can find no application in
the present case. 1can rcfer to them quickly in passing.
In the first place, we indicated thatan act can be set aside if it is not
the act of the person or body competent to exercise the discretion in
question.
Secondly, powers may have been exceeded in regard to subject-matter,
in regard to place, in regard to time, or the like-Le., of course, if lirnits
were imposed upoii the power in regard to subject-matter, place, time, and
so forth.
Thirdly, a court rnay interfere if a body or a person haç faiIed to
comply with specified forma1 requirements before taking a decision,
or before taking steps in relation to which a discretion was conferredupon
it, for example, if there has been a failure to do something of the nature
of a prerequisite, such as sending a letter of dernand before taking other
action, and so forth.
Fourthly, a purported exercise of a discretion may run counter to a
prohibition or restriction ofa material or substantive nature, as distinct
from a merely farrnal one. attached to the grant of power. That pro-
hibition, or restriction, rnay be an express one or it rnaybe an implied
one. Such restrictions, we Say, are contained in Articles 3 to j of the
Mandate. le are nothere concerned with allegcdviolation of any of those
Articles. Also, the Applicants say that their norm, or standards, con-
stitute a substantive basis of [imitation which has been violated by the
Respondent's policy and acts. That, too, is a matter which we shall
consider at a later stage. Rut, independently of that, Mr. President-
independently of Articles 3 to 5 and AppIicants' suggestion as to a norm
or standards-we find nothing whatsoever which suggests a curtailment,
a prohibition or restriction of a substantive natureattachedto the power. REJOINDEK OF MR. DE VILLIERS 495
Fifthly, the statute or the treaty conferring tlie discretionary power
rnay itself prescribe a legal criterion according to which a court may
review an exercise of the discretion. We find that in many municipal
systems the court is sometirnes empowered to set aside an act or a
decision ifthe court is of the opinion that it is unreasonable, grossly or
othenvise.
Then, in the sixth place, in the case of bodies exercising judicial or
quasi-judicial powers there are special requirementsrelating to observance
of the so-called rules of natural justice, for esmple, the audt alterrtm
partena rule in cases where it appiies. Tlie reviewing court can iriterfere
where those principles have not been applied. This, too, Rlr. President,
iç a special typeof situation which does not apply here.
In the seventh place, a court majr interfere if the personor the body
concerned has, as a result of an error ofaw, rnisconstrued the scope ofhis
or its discretion, or of his or its power, or the lirnits thereon, or the
obligations imposed upon hm, or it.In the event of such a misconstruc-
tion, which may be entirely bona fide, there may be a failure to exercise
the discretion which the legislature intended the holder oi the pou7erto
exercise. This, too, we suggested, for the reasons we gave, that that did
not seem to be of possible practical application to the circurnstances of
this case. And the same, of course, applies to the whole list which1 have
now given.
And that brings us back, Mr. President, to the more general criteria
applied by courts or by other reviewing bodies in various legal systems in
circumstances of this kind. As one might espect, the approach and the
manner of formulation of these criteria in various legal systems are not
identical. Onc finds certain differenccs between various municipal legai
systems which are sometimes referred to by writers and commentators.
Some commentators give more emphasis to differences, others give less
emphasis-less significance-to those. On the whole, however, it seems,
on analysis, thnt those differences relate more to matters of approach,
and to practical or technical considerations, than to matters of substance.
As an example we may point out that the law of France dcveloped in
this respect around the activities of the Council of State. One finds that
there isa much greater inclination on the part of such a reviewing body,
which ispartly an administrative one, togo into the motivesof a particular
administrative act and to uncover what it considers to be some trickery
or some concealed abuse in the professed exercise of powrer, than there is
on the part of courts of other countries, which are generally reluctant to
do the same thing. But the principles applied are still the same, in so far
as their basic substance is concerned.
In considering these general principles applied in the various legal
systems, we are to keep in mind that we are dealing here with a typical
example of a power which is defined with reference to a stated purpose or
objective. Apart, then, from the special possibilities which we have
excluded, on what grounds, as recognized inthese various legal systems,
can the exercise of such a power, or an act purporting to be an esercise
of such a power, be interfered with?
All the legal systems which we know appear to agee that the appro-
priate test is whether the purpose of the holder of the power, the purpose
with xvhichhe acts or uith ~vhichhe inspires hjs action, is in conformity
with the prescribed purpose, i.e., the purpose for which the power was
conferred. Those two things have to be compared-the purpose of the4g6 SOUTH WEST AFRICA
instrument, the purpose for which the power was conferred; and, on the
other hand, the purpose of the holder of the power, the purpose with
which he acts, the purpose with which he inspires his action. Those are
basically the tu70matters to bc compared.
So we find that in the French law there is this exposition by the
commentator Wdene. 1 refer to IiisDroit Administratif, the seventh
edition, at page417, and to his exposition of the doctrine ofdétounzement
de pouvoir, which, if\Te understand it correctjy, is the specific ground of
interference in a case where it is said that the motive, or purpose, does
not concur with the authorized one. 1give our own translation:
"This case of invalidating administrative acts differs profoundly
from al1 others, in that it does not concern any longer an objective
appreciation of conformity or non-conformity of an rict toa legal
provision, but the making of a double research into subjective
intentions: it has to be ascertained whether the incentives or
motives [the author uses the word 'mobiles') which have inspired
the author of an administrative act are such as, according to the
intention of the legislator, should have inspired him."
In other words, those incentives or motives, the "mobiles", which
inspired the author of the act, must be those ~vhich according to the
intention of tlie legislator, should have inspiredim.
After a few paragraphs the author continues as follows:
"In order to eçtablish détourneme?z dte pouvoir,the judge should
enquire:
(a)for what purpose or object [the word 'but' is used in French]
the legislator has coiiferred a certain power on administrative
authorities;
(b) for what purpose, in fact, this authority. in the case subjectto
litigation, has uçed these powerç;
the judge approaches these two purposes in order to ascertain
whether the second is in conformity with the first; iiimore simple
terms, the judge enquires whether the administrative authority has
used its power in order to nchieve a purpose which iç among those
which the legislator has actually had in mind in conferring such
powerç."
Ive find that a simiiar description is given by Kokham and Pratt in
Shadiesin FrenchAdmirzisfrative Law, at page 37 of the Library edition:
"The doctrine of détournemen te fiou~~oirontemplates a situation
in which an administrative agent hasaccomplished an actwithin the
scope of his powers; he has observed al1the forms prescribed by law;
but he has performed the act from motives other than those for
which tlie power was conferred."
Then 1 quote again from pages 37 to 38:
"But the question of dWoztrneme~zdte fiouvoir presupposes an
inquiry into the mind of the agent, into his secret intentions which
he has probably made every effort to conceal. Each case thus
resolves itself inta t~vofoldinquiry into: (1) the purpose for which
the la\\: vestedthis particular power in the agent; (2) the purpose
for which the agent actuaIly exercised it. If the motive fails to
measure up to the purpose for which the power was conferred, the
act is nullified." REJOINDER OF MR. DE VILLIERS 497
Mr. President, these authors, at least, would have found somewhat
misplaced my learned friend, Alr. Gross' suggestion that our argument
alternated like a metronome between the purposes of the Mandatory and
the purposes of the Mandate. The Court wili recal that that expression
was used by liim quite a few times-in the verbatim record of 28 April
at pages 40 and 42, supra; of 13 May, at page 253, supra, and of
18 May, at pages 3x1 and 322,supra.
We did exactly, Mr. President,with subrnission, what these authorities
require us to do, i.e., to see whether the purposes of the Mandatory, the
purposes and intentions of the Mandatory, agrce with, correspond to,
those tvhich were prescribed for it-the purposes of the Mandate, the
purposes which ought to be pursued by the Mandatory. And that this
is the basic principle to be applied in cases of this kind, appears not only
from Frcncli law but in al1other legal systems of which we are aware.
1 can refer the Court to Dutch law-merely by way of rcference,1 an1
not going to read any extracts-to Kranenburg, lnleiding ila het Neder-
landsch Admiuistratief Kecht, at pages 50 to 52: and to a note in Neder-
laladsJurisprtidensie for 1949, at page 1062. As regards Belgian law 1
refer to Mast, Overzichtvan h~tBelgascAAdlninistratief Recht, pages 388
to 390. As regards Italian law I refer to Galeotti, to a work writtcn by
him in English called Judicinl Conlrol of I1tiblic AtcthoritinsEnglnnd
arod Italy, atpages 109 to 115, As regards English larv, 1 refer tu de
Smith, Jrtdiciul Reviezvof Admi7tistrative Action, at pages go to r94;
to Griffith and Street, Principles of Administrative Law, at pages215 to
217; and to Keir and Lawson, Cases in Conslitutional Law, second
edrtion, at pages 138 to 139.
As long ago as 1866 Lord Cranwortli said in Gulloway v. Londott
Corfioratiotz(1866) Law Reports, I,House of Lords, page 39,at page 43,
in regard to powers exercised under legislation :
"... the personç sa authorised cannot be allowed to exercise the
powers confcrrcd on them for any collateral object; that is, for any
purposes except those for which the Legislature has invested them
with extraordinary powers".
In Arthur I'eatsCompany Proprietary Limited v. Vegetnble Sced
Committee, a decision in the High Court of Australia, reported in(1950)
72 Commonweallh Law Reports, iitwas said at page 37 with respect to a
legislat ive powe:
"If a power is conferred in terms which require itto be used only
for a particular purpose, then the use of that power for any other
purpose cannot be justified."
Mr. President, thus far, in dcaling with the principles in the various
Iegal systems which involve a compariçon of the purpose ofthe author ofan
administrative act with the purpose prcscribedin the grant of power under
which he acts, I have done so without reference to the question of good
or bnd faith. Thus far it has been in essence a question of cornparison of
theçe two purposes. The question then arises how the concepts of good or
bad faithenter into the pictureat all, and befor1 attempt to answer that
it may perhaps be necessary to clear up some misunderstanding asto the
various senses in which the terms good or bad faith might be used.
particulariy in relation to an enquiry of this kind. One could speak of
good or bad faith in the sense of whether the author of the act wishes to
achieve a result which he considers to be good-in other words,one might4g8 SOUTH WEST AFRlCA
have the situation wherc the author of the act knows that there is
prescribed for him, a certain objective or purpose which he is allowed to
pursue, and that he isnot allowed to use his powers for another objective
purpose, but he thinks that anotller objective or purpose is a laudiblc
one and he then uses his powers for that purpose. Or, on the other hand,
he rnight know that the purpose for which he wishes to use his powers is
really abad one; it isa corrupt one and morally bad. It might be possible
in some senses of the use of the terms good and bad faith to use that as
the criterion for distinguishing between the two, whether in that sense
the author of the act has in mind a good or bad purpose, but that,
Mr. President, is not the sense-the relevant sense-in which the concept
falls into the picture here. It is obvious that if there is rnerely one
authorized purpose and the power is usecl for a different purpose, even
.-~ugh. the aùthor means good in general, then nevertheless his act is an
illegat act.
Altematively, the expression good or bad faith may be used in relation
to the question whether the author of theact endeavours to conceal what
it is that he is rcally doing. He rnay pretend to be using his porver for
purpose (a),whereas, in fact, he is using it for purpose (b), or he may
pretend that he justifies his action on a basis or a causa (a), whereas lie,
in fact, justifies it on some other basis. That againisa sense in which one
can speak of good or bad faith, but again it is not the relevant sense for
an enquiry of tliis kind. Whether a pcrson conceals his action or does not
conceal his action does not make any clifferencein law. It niiglitrnake
the factual enquiry a more dificult one, one might have io go behind
the cloak to see what was really tliere in substance before one could
appIy the law, but again the concept of good or bad faith in that
particular sense is not relevant here. The relevant sense in which good or
bad faith arises here is this: it iswhether there is a knowledge on the
part of the actor that the purpose for which he acts is not the prescribed
purpose.
Ifthe actor-the person acts, the hoider of the power-knows the
purpose which he isauthorized to pursue, and in interpreting that purpose
thinks that allows him to do so-and-so but misinterprets the purpose, and
then bona fide iiscs his powers, in fact, for another purpose, his act will
still be an illegal one, but he will be acting bona fide in the sense under
consideration. If, however, he knows and realizes that what he is doing is
to pursue a purpose other than the authorized one, then he is acting
nzlllJidein the relevant sense under discussion, and that is the sole sense
in which u7esought to use the terrnmala @e earlier, and the sole sense in
which we suggested it does enter into the picture at aI1.
NOW,al1legal systems that iveknowof seem to agree that, 011 proof of
bad faith or ntala fidesin this sense, the exercise of the discretionary
power orthe act purporting to be done iinder the discretionary polver is
bad faith, that heedwass bribed, or was seeking to achieve an improper
purpose, or even if he knew that he was sccking to achieve a yurpose
which he thought to be a good and a laudible one but which, he knew,
was an unlawful one, as soon as it is established that thal is the basis
upon which the person or the body acted, then that in itself is a ground
for invalidating the action. We can refer the Court to deSmithi, n regard
to theEnglish law, ut pages 199-200 of the work to tvhichwe have referred,
to Hamson,atso the work to which we have referred, atpage195,and. in REJOINDER OF MR. DE VILLIERS 499
general (1 need not refer to allthe authorities) one finds that that is the
position recognized in the various legal systems. If one does establish bad
faith in tliis sense it leads to invalidation of the act, but the contrary is not
necessarily truc.
It isnot necessarily true that, in order to invalidate anact on the basis
that the purpose is not the authorized purpose, there must necessarily be
bad faith in the sense under discussion. 1 might quote in that regard
from ProfessorGaleotti, in the work to which 1 have referred, al *ages
118-119,
". .. if it is true that any case of bad faith can be reduced to a
de'totirnemendtepouvoir, the oppositecannot always be true, .. . The
variance in the purpose set by law and the one pursued by public
authority may result not only in a wrongful, fraudulent use of power,
as it does when the authority is acting mala fide; it may well occur
from an authority pursuing bolta fidean object, which is at variance
with that allowed or sct by law,without being aware of it. This kind
of case may even be said to bc (as opposcd to m.& fidescases),the
genuine, unsophisticated instance of detolavnemen dtepouvoir. lndeed
jt exhibits variance with the purpose prescribed by Iaw, without
attempting to conceal it under a pretence and colour of the right use
of power,which is, on the other hand,the necessary ingredient in the
mala fidescases"
The Court willsee that this author speaks of the branch of, or species of
mnla fideswhich concerns the hiding of what has really been done, but, as
1 have said beforc, that is nota relevant consideration, as far as1 can see,
in law under any çircumstances, because the court, for legal puryoses,
lifts the cloak and sees what the real substance is. The author, however,
stresses that the délourwemennteed not necessarily consist of an act of
bad faith.
We find, however, that in municipal legal systems there is a further
general ground upon which the courts inay interfere with the exercise of
a discretionarypower; it is one which almost runs into the basicprinciples
of a détournement ,ut in some Iegal systems we find the two separated
from oneanother. In other legal systems, the English system for instance,
there is sorne difference of classification as to whether al1 the principles
run together or whether they are to be separated.
This ground of challenge occurs every time that an administrative act
issues on the erroneous assumption or acceptance that a certain set of
facts is existent or non-existent, or when there is a failure to find, or an
absence of justification for finding, facts which serve as a necessary pre-
requisite or a cause or a causa for the exercise of the powers. In this
context the French use the word "motif", meaning, as we understand it,
the legal cause or the justification for an action, something whicli is to
exist as a prc-requisite for the authority. The holder of the power jsto
satisfy himself as to the existence of certain facts before exercising his
power.
The word "motif" is the one used by Walene in the work to which 1
have referred, at pages 409-410 The author explains that such a "motif"
must be a legal one. And 1 quote at -ag- 409 (our translation):
"For example, a functionary rnay bc dismissed, but on condition
that he has committed a fault of such a nature as to justify a
disciplinarj~measure ;the fault is then the legal motif of the decision."50° SOUTH WEST AFRICA
At page 410, the author proceeds in paragraph 722,headed as follows,
to say:
"EachJecisionshould veston u motif
There must always be a motif for an administrative decision, and
above ail when it affects the situation of a third person or a public
liberty.
Thus, when in the pleadings in an action for escess of power, the
minister has been unable to indicate any motive for his decision,
thisdefect alone brings with it the annulment of the decision."
The word "motif" here, hir. President, is quite clearly used not in the
sense in which we use the word "motive" in Englisli. It is used in the
sense of being a pre-requisite, a causa, a justification for an act. And the
principle is thatifthe reviewing court finds that the neccssary cawsadid
not exist, then the reviewing authority is entitled to set aside on tliat
ground the action of the authority of first instance. But, >Ir. President,
this is the important point, the authorities make it clear thaa court may
not interfere merely because it disagrees with the finding or reasoning of
the administrative agency on which its action was based. The finding or
the reasoning must be such that no reasonable person or body could have
arrived at or adopted the same. In other words, the situation must be
such thrtt it gives rise to one of two inferences, either thatthe agency
must havc acted in bad faith, for an improper motive or for an uii-
authorized motive, or on the otlicr hand, that it failed to apply its mind
properlp to its task. The situation must be such an estreme one, on
principle, before the reviewing authority will act. That is of course
independently ofwhat 1 ~nentioned before, viz., a greater readiness on
the part of administrative tribrinals sornetimes to interfere, than would
be the case with a reviewing court of laïv. But that ia matter of inclina-
tion, of particular approach: itis not one which affects the principle of
the situation.
This again stresses the difference between the concept of review and
appeal. Lt is not for the court to go into the question and Say, well, there
was some evidence tending one way, there were some factson which it
rnight have been found that this necessary cazdsaor "motif" esisted.
On the other hand, there was evidence tending the other way, so as to
show that it did not exist. The authority of first instance preferred to
accept the first-mentioned evidence and found that the causa did euist.
1, sitting hereas a court, going into the evidence again, tînd that perhaps
the balance goes the other way and the authority should not have found
that that fact existed. That is not the proper approach for a court under
these circumstances-that is what the authorities make plain. The
authorities make plain that the court can only interfere when there is no
basis upon which the authority could reasonably have acted, whether the
court agrees on merit with the authority's findingon that particular point
or not.
In the case of the French laiv, we can make further reference on this
point to Jean-Claude Venezia, Le Puervoir Discrétionnaire(1j 9g), at
pages 137 and the foliowing, where he stresses that the facts or the
appreciation of the facts on the part of the administrative body must
havc been "obviously wrong". We can refer also to Hamson, in the work
1 mentioned before, Executive DiscretionaltdJudicial Conlrol,at page 197,
who says that if the administration has acted on a ground- REJOINDER OF MR. DE VILLIERS 50r
". ..which might on some ralio?salwiew possibly be suyposed to be a
justification for the exercise, the court will not further inquire into.
the matter ...".
If the court finds that the grouncl on which the adininistration acted,
might on some rational view poçsibly be supposed to be a justific t' n ion.
for what theauthority did, then the court enquires no further; it does not
interfere.
We found, Mr. President, that the same attitude haç been adopted by.
the Italian administrative courts. Professor Galeotti, in the work to
which I have referred, says at page 130, that this particular ground of
which we are speaking,
". .. recurs any tirne that an administrative act issues on the
asçurnption that a certain set of facts is existent or non-existent,
whilst from the material collected, they appear to be unquestionably
the other wap round".
And he proceeds at pages 132 to 133 to quote the following passage
from a decision in Polenta c.Min. dellaEducasioneNazionale:
"In the complainant's opinion the impugned order would be
unlawful on account of absence of the facts upon which it is based;
it rnust be borne in mind, however, that this kind of'eccessdi fiolere'
esists only when there is positive evidence of the non-existence of
such facts, or, at any rate, when evidence on their existence is totally
absent. In the former case there is a coiitrast between the order and
the actual truth; in the latter, there in contrast betlveen the order
and what may aptly be called 'recorded truth' . . . This latter case
may be said to be equivalent to the former, since both Iogically and.
legally, the statement on the truth of a fact cannot be kept apart
from nctual evidence; henceforth its total and absolute absence
makes that çtatement without :iiiy foundation. inen, on the othcr
hand, the findings of fact in the administrative proceçs conflict one
with another-in the sense that there are circumstances in favour
and others against the truth of the facts-the order ~vhich trikes
those facts as tme iç the result of an appreciation which cannot be
but a subjective view. In such a case it is not possible to perceive a
contrast in either of the described forms; nor can the judge of the
legality of the order...be allowed to remake the decision which waç
issued by the administrative agency, nor to substitute his own
discretion for that of the public authority."
Clearly 1 think, Mr. President, this puts the matter, in other words, on
the same basis as 1attempted to do before.
In regard to the German law we can refer to Ernst Fo~tsho8,Lehvbuch
des Verwaltungsrechls, 8th edition, Volume 1,at page 86. 1need not quote
from that. The effect ismuch the same.
In English law the position is similar. If anything the reluctance to
interfere is stronger tllere than on the Continent. Some critics Say the
reIuctance is too strong, it is a matterof appreciation, but the principle
is the same.
In Smith v. Ead Elloe Rural DistrgctCozrncil (~956) 2 JVeekly Law
Reports 888, at page go$, Lord Reid adspted the following words of
Lord Green, the Master of the Rolls, in an earlier case:
"It is tme to say that, if a decision on a competent matter is so SOUTH WEST AFRICA
unreasonable that no reasonnble authority could ever have come to
it,then the Courts can interfere. That, 1think, is quite right: but to
prove a case of that kind would require something overwhelrning. . ."
It is tyyical, Mr. Presidentof other cases,ofwhiclzRlembers of the Court
rnay be aware; similar pronouncements werc repeatedly made in the
English practice in this regard. It is in exact accordailce witii the law of
our own country,as we know it and as wc practise it.
In Eiolland this ground has, together with the others that arc applied,
been set out çrjsply but clearly in a ~iumber of decisions of the highest
court,the Hoçe Raad,and, in commenting on one of these decisions, we
find thatD. J. Veegens says in a note in NederlandseJurisprude~~sze ,949,
at page 1063:
"This ground is not present if the judge, had he sat on the seat of
the administration, would have given another decision, ... but
only if the deciding authority, afterweighing up the interests to be
taken into consideration, could not reasonably have come to that
decision, and ifthis can therefore only be regarded as an arbitrary
act ... As long as the judge must still acknowledge the possibility
that the administration could hnvc taken its dccision as it stands
there, he has to refrain from interfering."
We can refer the Court to threeother decisions of the HogeRaad on the
same point; Iinerely give the references: I want to deal only with the
third one. The rcferences are to that on 25 February 1949 reported in
hTederlalzdseJurisprudensie, 1949, at page 1045 and those on S December
1961 and 19 January 1962, reported in ATederla?zdseJurisprudensie
r962, at pages 222 and 417, respectiveiy.
Now this last decision, Mr. President, is of special interest for Our
purposes because it concerned the application of a treaty, narnely the
European Convention on Human Rights, which was referred to by the
Applicants in their Reply at IV, page 50% Article 9,paragraph 1, of this
Treaty provides that the nationals of the States parties to the Treaty
should have "the freedom,either alone or in cammunitywith others aiid
in public orprivate, to manifest his religion or belief", that is, the freedom
of religion or belief, but expressed in this form, he shall have the freedom,
either alone or in comrnunity with others and in public or private. to
manifest his religion or belief.
Nour, in terms of Article g (2) this freedom may be curtailed by the
governments or relevant authorities ofthe States parties only by such
restrictio~is "as are prescribedby labvand are necessary in a democratic
society in the interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others". This then, provides exempted circumstances where there could
be an exception to the main principle, where there may be a curtailmeat
by legislatiori or othenvise.The question which arose in the case under
consideration was whether certain Dutch legislation was in conflict with
these provisioris of Article 9 of the Treaty. The legislation prohibited,
arnongst others, the practising of religiony means of a procession along
a public road.It said that religion might not bc practised bya procession
along a public road, and it made that a criminal offence. There was a
prosecution and the matter came to the Courts of First Instance, and,
eventually. to the Hoge Raad, on appeal. The Hoge Raad held that
Article g, paragraph 2, of the Treaty conferred on the parties thereto REJOINDER OF MR. DE VILLIERS 5O3
-that is on the State governments-a discretion to determine wliether
restrictions should, or should not, be ylaced on the freedom of worship
for the purpose ofprotccting the public order, and so forth, a discretion
also to determine whether existing restrictions directed at this purpose
should be retained, and, on the basis of finding that there was such a
discretion conferred in terms of Article g (2),the Court concluded (and
1give it in our translation):
"... that the judge, confronted with the question whether the
application of a specific provision, containing a restriction on the
freedom to hold public religious meetings outside buildings and
confined spaces, is in conflict with Article g of the Treaty, rnay
answer that qucstior~in the affirmative only if it should be regarded
as completely untlGnkable that a legislature faced with the necessity
of making provision with a view to protecting the public order,
could reasonably make or maintain such a provision . ,.". (Neder-
landse Jz~risprerde7rsie,62, p. 421.)
So, here again, $Ir. President, the basis of testing the matter where the
discretion is found to existisput on the same plane.
These are, then, the several relevant general grounds upon which
municipal courts would interfere in cases which may be said, in the
respects 1 have mentioned, to be similar to the present case.
hly learned friend,Mr. Grosskopf, reminds mc that we refer also in our
Rejoinder, V,at page 158,to a number of authorities. Some of them have
again been mentioned in this review I have given; some I have mentioned
have been additional, and, in particular, the Court is referred tliere to a
summary of a convenient comparison of laws (1refer to footnote No. 4 at
p. 159) of France, Belgium, Luxembourg, the Netherlands, Italy aiid
Germany, in respect of détournement de jbouvoir, vide in Lagrange,
ChrottiqueEurofie'enne (The rest of the reference is given there and the
page reference also.)
So, Rlr. President, when we apply these general principles to the
present case with wliich we are dealing, the promotion of well-being, as
prescribed in Article z,paragraph 2, is, in oiir sub~nission,to be seen as a
preçcribed purpose or objective, the "but", according to Walene's usage.
ive submit that the promotion of well-being isthat purpose or objective,
the "but", rather tlian a pre-requiçite or a catbsafor action, described as
the "motif". lt is an authorized purpose for which an authority rnap act,
and, accordingly, if we are correct in saying that, the only appropriate
enquirp would rea11y be along the lines of an alleged détournementde
fiouvoirrather than along the lines of enquiringinto an alleged absence of
a molif or a causa.
But, Mr. President, we do not want to be technical about that; we
have no objection whatsoever to viewing the matter on the broader basis
of asçuming that either or both of these approaches could be an appro-
priate one. Let us then see urhether on that basis a bona fide violation
could possibly have occurred, in the circumstances of thisparticular case,
regard being had to the provisions of the Mandate, and their practical
implications.
Ifwe approach the matter along the lines of an alleged détournegnel at
pouvoir, a bona fide violation could have occurred only if there was a
wrong concept on the part of the hiandatory-a wrong concept or a
misunderstanding of the scope and the purpose of his power, or of his5O4 SOUTH WEST AFRICA
dutics. In the circumstances of this case, wherc it isso clearly said what
the purpose ofthe power is-the promotion of the well-being and progress
of al1 the inhabitants of the Territory-it hardly seems possible that
there could, in any relevaiit way, have been any misapprehension or
misunderstanding on the part of the Mandatory as to what the scopc of
its powerç is.And, tlierefore, hlr. President, even in the initial formulation
of their case against the Kespondent-the initial formulation of a case
allcging oppression-the Applicants did not suggest that there was any
question of a bona fide misunderstanding on the part ofthe Kespondent.
The allcgation was very firmly one of a deIiberate and intentional
oppression. That iç why we say, approaching the natteralong tliose
lines, that it does not scem tous that in a practical sense, as distinct from
a theoretical one, tliercould be any suggestion of a bona fideviolation of
obligation.
Approacliing the matter, now, along the lines of an alleged absence of
causa or molif. tlie principle is that the court can interfere only if the
action of the holder ofthe power is su unreasoiiable that it is unthinkable
that any reasonable authority, acting honestly and properly in the
circurnstances and, applying its mind to the matter, could have taken
such action. That test puts the rnatter on a plane where it, in effect,
means that the inference from this extreme situation is such that the
holder of the power rnust have had a wrong idea of the purposc of his
power; he must have iiiterprcted it wrongly, or he must have had a wrong
purpose, knowing that it was a wrong purpose. 'I'heonly other possibility
seems to be that in an arbitrary way he failed to apply his mùld to the
matter at all; he did not consider it properly, he misinstructed himselfin
some way or other, or he did not think of it properly at all, and that
failure to apply the mind again could possibly have been a bona fide ora
mala @e one.
Again, Rlr. President, hnving regard to the practical situation with
which we are dealing, and in the light of the charges that were brought,
in the light of the suggestion that the Mandatory has not been acting
properly, or Iegally, with reference to some of the inhabitants of the
territory, as distinct from others, itseerns almost impossible to suggest
or to think of any examplc of a case where it could be said that the
Mandatory has acted unlawfully in this particular sense, without at the
same time realizing that it was acting unlawfully.
We have racked oiir brains, my colleagues and 1, in trying to find
examples where it could be said that the Mandatory's conduct is so
unreasonable that no reasonable authority would have done this; but
then ifwe look at the practical example it becornes so obvious that it
must have been a case then where the Mandatory itself must have
realized that it was not serving well-being and progress, and that conse-
quently itis unla\vful.
My learned friend liked to refer tothe example ofgenocide, the example
of the Xandatory thinking that it might be a good thing for other
inhabitants of the territory ifit should practise genocide on a particuiar
population group.
Surely, Mr. President, the Mandatory would know under çuch circurn-
stances that itwas acting improperly, that itwas acting in conflict with
the provisions of Article 2 requiring it to promote to the utmost the
well-being and progress of al1the inhabitants of the territory, and not to
killsorne off. REJOINDER OF h1R. DE VILLIERS 505
The same applies to other examples, 1 do not want to clairn perfection
in ths regard. it may be that the Court, or hlembers of the Court, could
think up exarnples of which 1have not been able to think, wl-iereit could
possibly be said that applying thcse general principles one could corne to-
a conclusion that the Mandatory has exceeded the line of iegality wiihout
knowing that he has done so. If the Court, or a I\lember of the Court,
could think of an example ofthat kind, it still would not invalidate our
argument. Our argument is that these basic principles which 1 have
mentioned are the ones which are to govern the approach. They govern
only the extreme cases where the Court can fmd that the purpose has
been a different one, or where the Court can find, alternatively, that the
action has been so unreasonable that no reasonable authority could have
exercised the power in the same manner.
The application of those tests as they stand are suficient for my
purpose. I only add the comment that as far as ure can see it must
inevitably result in a situation in wliich it would appear, whether the
Court formally finds jtor noi, thatthe Mandatory must have been acting
in bad faith.
The position in that regard might arise in the form that the Rlandatory
knows beforehand, when he passes a particular law, when he takes a
particular administrative decision, or formulates a particular policy,
that that policy is notlikely to be conducive to well-being and progress.
That is one form in which the relevant mala fidescould exist.
Another form in which it could exist, Mr. President, is that the hlanda-
tory starts completely in good faith and genuinelÿ on a certain poiicy,
with acertain measure, or ~4th a certain line of conduct, thinking that it
will serve weI1-being and progress. And after the matter has proceeded
for a certain time, then it becomes quite manifest that that particular
measure does not serve well-being and progress-it has an oppositc effect.
Well, ifit becornes so manifest to evcrybody concerned that the Court
could possibly make a finding to that effect, then itmust have become
obvious to the Mandatory also. Thcn the Mandatory's persistence in
that line of policy, or with that particular measure, after it became
convinced of itsil1effects, in itself would constitute bad faith.
That, Mr. President, is the background of principle against which our
contentions are to be weighed, and that is the background against which
we propose to.answer Sir Gerald Fitzrnaurice's question No. 5.
That question states that-
"Respondent claims for the Mandatory an absolute discretionary
power to determine for itself by what methods Article 2 of the
Mandate shall be implemented, subject only to good faith and
correct intentions."
For the reasons, hlr. President, which 1 have indicated in this review,
and in order to avoid any misunderstanding in that regard, we ~ould
respectfully preferto re-word the claim which we make for the Mandatory
as follows:
"Respondent daims for the Mandatory a discretionary power to
decide upon the measures and methods whereby itseeks to promote
well-being and progress, as required by Article z, paragraph 2. The
discretionjs subject to the provisions of Article3-5 of the Mandate.
Decisions made in purported exercise of the discretion rnay be
invalidated REJOINDER OF MR. DE VILLIERS 5O7
thing outside the scope of its powers or pursuing a different objective.
The goocl intentions-whether the intentions are good or bad in that
sense-could not affect the question of legality at all; it couid not be
relevant.
On the other hand, Mr. President, ifthe Court should find that the
practice is so obviously and clearly injurious that there cannot possibly be
any scope for an honest and reasonable difference of opinion, tlien the
Court would indeed, on the basis of this alternative contention, be
entitled to conclude that Respondent has violated the Mandate. As we
have indicated, this would alrnost inevitably rnean that the Mandatory
must have bcen ~laalafide,either as at the stage of deciding on the practice,
or at the stage of continuing with it after the injurious effect became
manifest. This in itself, therefore, excludes a possibility of "good inten-
tions" relative to the prescribed objective, and "good intentions" in
any otlier sense would be irrelevant. The mere fact that the Mandatory
must almost inevitably, if the Court arrives at such an extreme finding, be
aware of the illegality of its actions, in itsclf excludes any question of
relevance of "good intentions".
Then Ive corne to question No. 7, which reads as follows:
"The Respondent has contended that, on the correct interpretation
of Article 2, the Mandatory's obligation does not extend beyond
endeavouring honestly and in good faith to carry out the Article
according to its own judgment of what is required for the purpose.
Admitting that the Mandatory must possess a certain latitude, can
therc be more than an initial presumption in its favour? Suppose
a prima facie case were made out for the view that certain meaçures
instituted by the hlandatory were in fact detrimental to well-being
or social progresç-would the Respondent still maintain that the
Court was incompetent to assess or pronounce on the matter,
except on the basis of the Mandatory's good or bad faith, and the
nature of its purposes and intentions, or would the Respondent be
prepared to agree, having regard to the language of Article 2, that
it must in such an event rebut the allegations on their actual
merits?" (VIII, p. 32.)
Mr. President, here again, for reasons which we have indicated, the
rendering of Respondent's contention in the first sentence of this question
may perhaps be çaid to elevate the subjective element higher than was
intended in our contention, and 1 respectfully refer in this regard to the
formulation which 1gave in reply to question No. 5.But in regard to the
actual question, we find that it refers to the possibilit~ ofa prima facie
case "for the view that certain measures are in fact detrimental to well-
being and social progress".
We respectfully submit, Mr, President, that the same distinction arises
here as in our answer to the previous question, No. 6. If a prima facie
case were made out for the view that the measures areso clearly ancl
obviously detrimental to ~vell-beingand social progress that there could
be no room for an honest and reasonablc difference of opinion as regards
the effect of the measures, Respondent would agree that it must then
rebut the case on its merits. But "on its merits" then has a pecriliar
meaning. In rebutting that case on its rnerits it is not necessary for
Respondent to persuade the Court to agree with itsviews on the meritç
of its particular action. It is not necessary for it twalk out in the end508 SOUTH WEST AFRlCA
and to Say, weI1, the Court agrees entirely now; that is also what the
Court would have decided if it had to take the decision in the first
instance.
inen weighing the matter irithe end, namely the prima facie case
together lvith the rebutting or ansxveringmaterial which the Respondent
has put before the Court, the Court would then again have to apply the
same basic legal criteria which 1 mentioned before. Only if the Court is
then satisfied,having regard to aii the evidence before it, that no reason-
able mandatory could possibly have adopted the policies or practices in
.question, may the Court, with respect, adjudge that there has been a
brcacli of the Mandate.
In the light of our contentions as to the legal situation we do not, with
respect, perceive that there could in any other sense be a prima facie
case on facts for us to meet.
We hope, &Ir. President, that wvhatwe have stated will serve as a
fullanswer to Sir Gerald Fitzmaurice's questions Xos. 5,6 and 7, together
~vith the introductory remarks bearing thereon, and clear up any mis-
understanding that mai Iiave existed or mây have arisen from Our
previous expositions. If any further lack of clarity should exist, and if
.we could assist in clearing it up, we shouId gladly do so.
Then, Mr. President, that leares questions Nos. 8 to IO, but before we
proceed to answer those there are one or two comments of the Applicants
to 7, ande T think it would be convenient first to revert very briefly to
thoOn several occasions the Applicants professed surprise at the fact that
.uleused the words "intentions, or purpose, or good faith" in one breath,
soto speak, or in the Applicants' own xvords,"in juxtaposition". Ive can
refer the Court to the following verbatim records on this point: on
28 April, at page 37, sztpra;on 13May, at page 253, supra; on 18May,
at page 311, supra. On n8 April, at page 38, the Applicants insisted on
a distinction; saying that-
". ..intention or purpose, on theonehaiid, isclearly a state of mind,
a fact, whereas goad faith, on the other hand, isa legal character or
quality, attributable to a state of mind or intention in a given
context".
Mr. Prcsident, we do not quarrel with that distinction. mat causes us
some surprise is the apparent failure on the part of the Applicants to
grasp that we use these concepts "in juxtaposition" precisely because,
in a given context", good or bad faith, as the case might be, is "a legal
character or a quality attributable" to Respondent's intentions or
purposes. It is precisely for that reason that we use them in juxta-
position, where aparticular intention lvould almost inevitably mean also
'bad faith; or a particular intention tothe other effect, viz., directed at an
authorized purpose, \vould mean good faith. Certain intentions or
purposes would amount to bad faith in relation to the known objective or
.purpose which Respondent is obIiged to pursuc, and 1 need not spend
any further time on that point.
This, Mr. President, really also disposes of the Applicants' suggestion
that the Respondent uses the term "good or bad faith" in three different
senses: firstIy as synonymous 14th intentions or purposes, secondly in the
sense of an authorized purpose, and thirdly in the sense of pursuing an REJOINDER OF MR. DE VILLIERS
509
authorized orunauthorized purpose. We find that contention advanced in
the verbatirn record of 28 April, at pages 37 and 38, supra.
That, of course, is an entirely erroneous rendering, Mr. President.
We simpïy Say that in particular circumstances intent directed at an
unauthorized purpose wouldamount to bad faith, andin other circumstan-
ces intent directed at an authorized purpose would amount to good faith.
"purpose" in different senses are, in our submission, as sirnply answerable
as this particular one and 1 need not take up any more of the Court's
time iifollowing up al1those.
What is more serious, hlr. President, is that apparently on the basis of
such word games the Applicants procceded to attribute to the Respon-
dent a theory which we never propounded, and the Applicants then tried
to turn that theory to their own advantage in the advancement of thcir
case, as it is now put before the Court. They attributed tous a contention
that the purpose of the Mandate should be ascertained by looking at
Respondent's purposes or intentions. That is what is attributed to us.
The Applicants Say this is wrong only in so far as one çhould not look at
Respondent's purposeç or intentions, but one should look at the purposes
or intentions of the competent organs of the organized international
community. Therefore, hlr. President, by misrepresenting what Our
argument was the Applicants associate themselves with it and then on
that basis they find some support forthe argument whichthey advance in
regard to a suggested cornpetence on the part of the organs of the
organized internationa1 comrnunity.
In the verbatim record of 28 April, at page 41, supra, we find the
suggestion that according to Respondent's theory,
"The objectives of the Mandate would become, in effect, whatever
Respondent, in the exercise of its full power of discretion, defines
them to be ..."
That is what the Applicants attribute to us.
In the verbatim record of 18 May, at page 311, supra, the Applicants
sâid :
"... according to the conception which appears to be advanced and
which underlies the Respondent's case, the objective of the hIandate
is appraised and evaluated in light of the Respondent's intention
or purpose or good faith. ..".
And they Say in the same verbatim record, at page 322, that Respon-
dent-
"... construes the position which Ieads to a construction of Mandate
purposes in terms of the Mandatory's purposes. The purposes of the
Mandate become what the Mandatory says they are, subject only to
the outrageous Mandatory test."
Needless to Say, Mr. President, these and similar statements contain a
wholly unfounded representation of our contention. We never said
anything of that kind. The effect of what we çaid was that the purpose of
the Mandate, the purpose for which discretionary powers were conferred
upon Respondent, was tobe found quite clearlyin the Mandate itself and
in the Covenant. The purpose is, of course, the promotion of the weI1-
being and progress of the inhabitantç of the Territory. No difFicult
questions of construction or of any kind enter into it: the prescribed510 SOUTH WEST AFRICA
purpose stands there plain and alive for everyone to see-the purpose of
promoting to the utmost the well-being and progress of the inhabitants.
That is, of course, the piirpose of the Mandate.
We said further that the enquiry was whether Respondent had, in
fact, exercised its powers for that purpose, in other words, whether
Respondent's purpose corresponded ~4th the purpose stated in the
Mandate. Kow surely, Mr. President, nothing in that contention suggests
that the Court should determine the purpose of the Mandate with
reference to Respondent's purposes, or that the purpose of the Mandate
could change in accordance with Respondent's decisions asto what the
purpose ought to be.
It is small wonder, hlr. President, in Our submission, that the Appli-
cants should grope around for support for the rather amazing contention
that somcbody unnamed, at some stage or another, conferred a discre-
tioriary power on a mystic entity, the organized international com~nunity.
We shall say more about that contention later, but for the moment 1am
merely pointing out that that contention certainlÿ does not derive
support from anything which has been said by us.
1 can now revert to Judge Sir Gerald Fitzmaurice's questions 8 to IO.
By way of introduction we can Say that the questions relate to specific
aspects of the wording of Article z. We have already explained that our
argument is baçed upon and ernanates from that wording. In developing
our argument we referred to a possible arnbiguity arisingfrothewording
alone. The wording, purely asa matter of language, could be read either
as enjoining that a certain result must be reached, namely the result of
promotion to the utmost, or it could be read asenjoining that a certain
purpose or objective should be pursued, namely that of promotion to the
utmost. Although the language of the Articlemap be capable of bearing
either of these meanings, Mr. President, the latter meaning was, in our
submission, the only practicable one, apart from being in accordance with
a general trust concept, and being supportedby the context of the instru-
ment as a whole, by general principles of law and logic applying al1over
the civilized world, andby strong authority which we cited to the Court.
Al1 those led to the conclusion that what was meant here was not a
judgment of the Mandatory's conduct by result, in order to deterrnine
its validity or invalidity, but a judgmentof its conduct on the criterion
of ascertaining whether the purpose or objective corresponds with the
prescribed purpose or objective.
Now we find that questions 8 to IO draw attention to further aspects of
the wording of Article z, aspects which in somc instances alsoinvolve a
possible ambiguity but which in other instances amount to possible
indications of intent on cluestions which may be relevant to the issues as
they originally came before the Court. We are therefore, with respect,
grateful for the opportunity of replying to these questions becausc, in
our submission, the factors to which théy draw attention in many ways
serve to support Our basic argument, and to refute Applicants' case as
based on the nom and the standards.
In question No. 8 Ive find the differences between the English and the
French text of the Mandates referred to. In substance we find that the
question has two aspects, namely first, what approach should in Jaw be
applied towards any differences which might exist in the two texts; and
secoiidly, what is the result, in the case of the Mandate, of following that
approach? KEJOINDER OF MR. DE VILLIERS
511
Kow, Mr. President, the Applicants dealt with these questions on
13May, at pages 264 an.d265, sufiru,of that verbatim record, and again
on 19May, at pages 364 and 365; and tliey, if 1 have understood them
correctly, contended that the English text alone is authenticand authori-
tative, but that in any event, there are no differences of substance or
meaning between the two texts. For convenience we shall deal with the
two aspects of the question separately.
To takethe first aspect then-the general approach in a case where two
texts exist:
lt seernsto be conceded by the Applicants arid it seemsto be established
by the record,with respect Afr.President, that both texts xvereembodied
in the League resolution of 17 Decernber 1920 and both texts were in
League practice treatcd as official.I can refer to the verbatim of19 May,
at page 364, supra, where the Applicants dealt with this matter. That
would seem to be comrnon cause. We are, therefore, not quite surewhat
the effect is of the Applicants' contention that the English text is "au-
thentic" or "authoritative". It clearly cannot rnean that no regard at
al1may bc ïiad to the French text. Indeed, Mr. President, the attitude of
the Permanent Court was directly contrary to any such suggestioii.
In the Mavrovnmatis case (1924). P.C.I.J. AJz, at page 19, the Court
stated as follows with regard to Article II of the Palestine Mandate:
"The Court is of opinion that where two versions posçessingequal
authority exist one of which appears to have a \vider bearing than
the other, it is bound to adopt the more limited interpretation
~vhichcan be made to harmonise with both versions and which, as
far as it goes, is doubtless in accordance with the common intention
of the Parties. In the present case thisconcliisioq is indicated with
especial force because the question concerns an instrument laying
down the obligations of Great Britain in her capacity as Mandatory
for Palestine and because the original draft was probably made in
English."
It will be noted, Mr. President, that the Court attached relatively
limited weight to the fact that the original draft waç, as it was put,
"probably made in English". We may refer also to comment on this
point by Schwarzenberger, International Lam, 3rd Edition, 1957, at
Pages 503-504.
The ernphasis falls rather on the desirability of attempting first to
reconcile any apparent inconsistencies, which is the normal approach of
interpretation. This necessity of attempting to reconcile the two officia1
versions of a treaty appears alsofrom the case ofthe German Reparations
under Article 260 of the Peace Treaty of Versailles (1924), I Reports of
Ifiternaliona1Arbit~ation Awards, page 429 at page 439, where the
following was said :
"The situation is consequently as follom: there is a clear text-
the English text-and a text which is not clear and the meaning of
which must be ascertained by Roth have been submitted to thetext.
The t~vo tcxts are authentic.
Parties for signature. In çucha case, it does not seem pennissible to
ignore the English text and interpret the French test as if the
English text does not exist. On the contrary, the clear text, the
English text, furnished the better means for the interpretation of SOUTH WEST AFRlCA
the French text. The two texts are evidently intended to express the
same ideas. If there are two equally clcar texts, wkicli do not agree,
one could support the view that the text which carries lessobligations
for the party bound merits preference. But if one of the texts is
clear and the other is not, the solution to be arrivcd at isthat of
interpreting the less clear text in the Light of the other text and in
conformity with the meaning resulting from the terms of the latter
text."
We can refer also, Mr. President, to the Advisory Opinion on the
Compete?zco eftheInternntio?talLabourOrganisation in the records of the
Permanent Court Series B 213, page 35, and further to Lord McNair on
The Law of Treaties, 1961, at pages 434-435. 1 may Say, Mr. President,
with respect, this is a difficuity which arises aIso in South African law,
due to the existence of the two officia1languages and due to the pro-
mulgation of Statutes and other officia1 measures in both languages.
There isan Interpretation Act to the effect that where there is an irre-
concilable conflict between Statutes,tken preference is to be given to the
one which was officially signed by the Governor-General, now by the
State President. Theg are signed in one or the other language alternatively
but that interpretation clause is treated by the courts as a measure of last
resort only. Tt is only in the case of an irreconcilable conflict that
it is applied. sefore one reaches that stage,one sees fïrswhether the two
texts can be reco~lciled and then it does not matter whether it is the
unsigned version or the signed versioii which assists in the reconciliation.
Eoth are made at the same time, both are intended to be authentic and
even if one does not speak of being authentic in a technical sense in a
particular instance, one at Ieast finds the same considerations as wouId
apply to any contem~oraneae:xfiositio or subseczttztobservatiae. There
is an authoritative attempt made, a detailed interpretation given in this
translation of every aspect of the officia1trcaty orthe officia1instrument,
given at the very same time when al1concerned can seewhether it is a
proper one or not, a factor which applies with particular force in the case
of the League practice where the League organs dealing ~vithmandates
had to deal with thern from day to day and where the practice was of the
nature that the French text was regarded as authoritative or the one to
be used in respect of French territories and the English text in respect of
the British Mandatory Territories.
So, llr. President, whatever technical weight, whatever technical
significance one attaches to authenticity or lack of authenticity, one has
this factor: that the two texts at Ieast form an aid in the interpretation,
the one of the other. My submission is, therefore, that the correct ap-
proach would be to have regard to both texts and, in the event of
differences, to reconcile them wiih a view to ascertaining the true
intention of the parties.
And it remains to apply that approach to the provisions of the Man-
date, particularly to the differences referred to in the question by the
honourable Judge. The two differences as we understand them are the
following. Firstly, the French version speaks of "increased well-being,
etc.", or words having that meaning as against the English version of
"to promote well-being", and so forth. Secondly, the French text
contains an expression meaning "by a11means in its power" or "by al1
available rneans" instead of the English "to the utmost".
Mr. President, in comparing the two texts one cannot treat these REJOINDER OF MR. DE VILLIERS 5I3.
two differences separately; they, after al], have a bearing upon one
another, they run into each other as it were. It would seem that the
French text is, in these particular respects, clearer and more explicit
than the English text. The vital element which is emphasized bÿ the
French text is the subjective nature of the Rlandatory's obligation.
The expression "by al1 available means" or "by al1 the means in its
power" clearly negates any suggestion that the Mandatory's endeavours
or results should be measured by any absolute criterion or yardstick.
When 1 Say "the subjective nature of the Mandatory's obligationJ'
perhaps that is not a very apt expression. 1 should perhaps Say "the
manner in which the performance of the Mandatory is to be seen in
relation to its own peculiar circumstances".
That, Mr. President, is a reason why we say that the French text
indicates there was no question of applying an absolute criterion on the
basis of results, and saying "thisis the optimum which could have been
achieved by way of promotion and independently ofyourpeculiar circurn-
stances, independently of your particular situation, your resources,
your means" and so forth, this is the stage of promotion to the utmost
which isrequired of you by law. The French text makes it clear that in
deciding whether the Alandatory has or has not promoted to the degree
required of it, regard is to be had to the Mandatory's peculiar situation,
its peculiar circumstances, the means at its disposa1 and the peculiar
situation of the mandated Territory itself.
The English text, on the other hand, is in that particular respect,
merely as a matter of language, perhaps ambiguous. 1 stress "mercly as
a matter of Iariguage" because it seems inconceivable to me that one
could even, without the aid of the French text, have proceeded to a
construction of the English text to the absolute effect that 1 havemen-
tioned. The words "to the utrnost" are even in their imrnediate context,
but rnerely as a matter of language, capable of more than one meaning.
They can either mean "to the utrnost of the Mandatory's power or
available rneans" or they can mean "to the utmost degree to which the
weI1-being of the inhabitants could possibly be promoted regardless of
the resources, power, available means or other special circumstances of
the Mandatory. It is, in Our submission, to Say the least, unlikely that
the words were intended to have this latter meaning. Not only is the
first-mentioned meaning, namely "to the utmost of the Mandatory's
power or available means", the more likely to have been intcnded, and
therefore one which could have been arrived at in the context purely on
the basis of the English text alone, Mr. President, but the correctncss of
that interpretation is, in Our submission, confirmed by the French text.
On the basis of the legal approach which should be followed in cases
of this kind with which 1 have dealt, we accordingly submit that the
English text should be interpreted to have the same meaning as the
French text; in other words, the Mandatory is obliged to promott: well-
being by "al1 the means in its power" or "at its disposal" or "bu al1
available means".
That finishes my answer to question 8, Mr. President.
[Public hearing ofgJune 19651
hlr. President and honourabIe Members, 1 corne to question No. 9 of
the series putby Sir Gerald Fitzmaurice on 7 May. Itrends: "Supriose
that certain measures instituted by the Mandatory have had abeneficial5I4 SOUTH WEST AFRICA
effect but that others have not. In these circumstances, would it be
correct to say that ifon balance there has been a promotion of, or increase
in, the sum total of well-beingand social progress viewed as a whote, then
the provisions of the Mandate have been compIied with, or would it be
correct to Say that, irrespective of any total increase in well-being and
even ifthere ha5 been such an increase, any particular measures which
are or prove to be detrimental constitute pro tanlo a breach of the Nan-
date?"
Mr. President, the question postulates ngain the testing of the validity
of measures, or of al1 measures constituting a policy, as the case might
be, on the basis of the effect wliich tlic measures in fact have-whether
or not they have, or have had, a beneficialeffect.
In the light of the narrowing down of the -4pplicants' case in the
manner which 1 attempted to describe yesterday, it follo\vs that Our
answers to questions put on the basis of such a postulation are now
really, to a large estent, academic in these proceedings. 1 may point out
in passing that the Applicants made that position abundrintly clear in
respect of this very question; in giving their answer to this question they
said the following in the verbatim record of 19 May, ai page 363, supra :
". . . the Applicants have sought to make cIear by the arguments
now concluding the reasoning which underlies their distinction be-
tuTeenthe qualitative and quantitative aspects of Article 2, para-
graph z, obligations. Ifthis casewere brought on the theory, which it
is not, that the Mandatory had built too few schoots or hospitals in
the Territory, then it might be appropriate to adopt a balancing ap-
proach to determinewhether the duties with regard to the promotion
of materinl well-heing or other kinds of well-being were upheld. But
thiscase is brought on the premise that Article 2 contains a qualita-
tive element, violation of which is a breach of the Mandate."
As 1 Say, with respect, that makes it clear that the case the Applicants
bring is not one of judging by effect, and they make that clear in this
passage, inter alia,with reference to this particular question. They make
it clear with respect to their caseas a whole in other passages, to which
we shail later refer. But, nevertheless, for the same reasonç as1 indicated
in regard to other questionsyesterday, we propose to answer the question
as best we can.
The question visualizes a situation in which it can be said, as a matter
of fact, that certain measures instituted by the Mandatory have had a
beneficiaI effect, while others have not, and the question then suggests
two methods of determining whether there has been a breach of the
Mandate in such circumstances.
I should like to deal first with the factual situation visualized, and
particularly with the basis upon which it can be conceived that a particu-
lar measure has hnd a beneficial effect or not. In a territory such as
South West Africa, which is inhabitated by different popuIation groups
standing at different stages of development, good government requires
the adoption of policies which take due cognizance of these particular
circumstances. Consequently, legislative and administrative measures
may then have, as thev in fact do, difierent effects upon the different
groups, or even on different members within the group. That applies,
Mr. President, whether one applies an approach of differentiation inthe
measures themselves or not. Even if one applies a non-differentiation REJOINDEH OF MR. DE VILLIERS 5I5
approach in the measures adopted-in the legislative and the administra-
tive practical measures-one will find that the cffects would be different
for different inhabitants of South IYest Africn and, particularly, for
different groups of the inhabitants of South West Africa, and, also, for
individual perçons within those groups. Let us take an example. Suppose
one should have a law which permits anybody to prospect anywhere
within the whole Territory. Such a measure, Bfr. President, would, under
present circumstances, mainly benefit the Europeans, and perhaps also
some members of the colourcd community who are interested in pros-
pecting anci who have reached a stage of developnient where they have
techicai appreciation of what is involved in those opcrations. One rvould,
on the whole, then, have the situation that, whereas there would be
large-scak prospecting within tlie Xative areas by others from outside
those Sative areas, i.e., by Europeans and, perhaps, by some members
of the Coloured community, onewould have very little, if any, prospecting
by Xatives within u-hat is now calied the Europcan area, or the White
area. Under the systern of differentiation which npplies there is, however,
a special protection of interests of the Natives as far as theirown areas
are concerned. Therefore, if one takes away that differentiation which
applies-if one has a non-differential measure applying throughout the
Territory-the operation would be on balance against the interests of the
Xative population and not in their favour.
Ifone wcre to take the snmc position in regard to, say, farmland, if the
whole area-the whole Territory-were thrown open to farming enter-
prise, so as to allow the purchasof land bp anybody anywhere within the
Territory for faming purposes, the result would probably be that within
a very short while the whole Okavango would become a Europcan-
farmed irrigation area, because it is adrnirably suited for that purpose.
But, Mr. President, conversely, one would find that very few Natives
would be able to avail themselves of the oyportunitp of buying land
within what might now be cnlled the IVhite or the European area.
One finds, therefore, that an approach of non-differentiation in the
measures could, equally within the approach of differentiation, have
different results for different population groups and for members within
those different population groups.
A law prcscribing compulsory education for cverybody would certninly,
for reasons pertaining to stages of development, stages of interest taken
in education, and so forth, result in manÿ more prosecutions amongst the
indigenous groups than amongst the European, the Coloured, or the
Baster groups.
Now, let us take an example going the other way-an example of a
differential law, or a differential body of laurs-namelthe example of the
influx control laws in South West Africa, the laws controlling the influx
of Natives-of members of the indigenous groups-into the cities. It is
true that they operate generally in respect of the Native people, and not
in respect of Europeans and Coloureds, but even amongst the Natives,
BIr. President, one finds that the Jvay in which the interests of various
people-or the position of various people-mai be affected is different.
Sorne of the Natives are settled in Xative urban areas and these laws also
protect their interestagainst a flooding oftlielabour market, ag,?inst the
creation of overcrowded conditions, slum conditions, and associated
evils of crime, disease, aiid so forth. Other Natives are outside the urban
areas. Though they may want to enter, the facilities for them arc re-516 SOUTH WEST AFRIGA
çtricted, and the way in which their position is affected is, therefore,
different. On the whole, however, the restrictions are beneficial even for
them, because it obviates the situation arising where they would corne to
stay in a citytvhere there may be no liverihood for them, or no housing, or
neither of these two.
But no doubt, Alr. President, when one ha control mesures of this
kind it must happen in some instances that there are hard-luck cases
which are affected by them. That is why we say that it follows that any
particular measure which requires to be scrutinized with a view to its
validity, with its cornplianceor otherwise with Article zof the Mandate,
might, although it may be intended to have, and in fact has an over-al1
beneficial effect, have in a particular respect, or with reference to particu-
lar persons, a negative, or even a contrary effect. That is the situation
which one necessariïy finds in a territory like South West Africa where
the legislation largely has to take into account a balancing of opposing
interests, claims andaspirations.
NOW,Mr. President, assuming for purposes of argument that a legal
criterion for vülidity of a particular measure can be the actual effect of
that measure, as is postulated in this particular question, it seems to
stand to reason that when applying that criterion regard cannot only
be had to the negative effect which the particular measure has for some
persons, while the positive or beneficial effect which it has for others, or
in the over-al1 picture, is ignored. A weighing-up process is, therefore,
probably necessary in respect ofevery single measure. If that weighing-up
process has been undertaken in respect of a particular measure, and if the
result should be that the measure is not conducive to progress but has an
opposite effect, then, Mr.President, çtillpostulating that one tests on this
basis, 1should find it vérydifficult to justify a proposition that onecould,
nevertheles, say that such a measure is in conformity with Article 2
because over-al1there has been a promotion of a total amount of well-
being and progress. That seems to be one of the incidents of the question.
But 1Saythat is a situation which arises if one approaches the matter on
this basis of testing according to effect, and if one can find that one
its possibIe beneficial,itsmvarious, effects in different ways, one then
cornes to the conclusion that there is nothing to be said for it, Le., that it
isdetrimentaland not beneficial. Ttisonly on that basis that 1 Saythis.
Immediately 1 have to add that a very important attendant factor
arises, and that is that a particular measure in itself may, if viewed in
isolation, appear to have no beneficial effect but only a negative or a
detrimental effect. But still, it may be unsound to condemn that measure
by itself, for the simple reason that it may form a necessary part of a
total complcx of measures, governing the lifeof the inhabitants af the
Territory, which total complex may have an over-al1beneficial effect as
compared with the onIy available alternatives. So that is also a factor
always to be borne in mnd if one is totest in accordance with effect. One
may have to see whether that particular measure for which, if taken in
isolation, it rnight seem that nothing can be said, does not play an
important roIe of linking,a necessary link in the chain ol a total complex
of Iegiçlation which, on the whole, has a beneficial effect.
The field of inquirywould, for purposes of such testing,naturally be a
very wide and a complex one, but it seems that it would be one that
would necessarily have to be covered on the postuIation of testing aJOINDER OF MR. DE VILLIERS 5I7
according to effect. The very wide ambit of the inqujry which would have
to be undertaken by the Court is further demonstrated by the answer
which Ive shall give to Judge Sir Gerald Fitzmaurice's question No. IO,
which deals, amongst others, with the power which the Respondent
possesses of administering the Territory as an integral portion of South
Africa, and of applying the laws of South Africa to the Territory.
Zt becomes possible, Mr, President, that in the cornplex of legislative
measures which apply to South Africa and the Territory viewcd together,
the Territory being govcrned as an integral portion of SouthAfrica-in
that whoie complex-a particular measure might forrn a necessary and an
interlocking part of the whole. That particular measure rnight possibly
have adverse effects in South West Africa, but it might appear that it
could not be severed from the coinplex which, as a whole, has a beneficial
effect forthe Territory.
Those are some of the problems whch arise when one postulates a test
of validity according to result. In view of these considerations it would,
in our respectful submission, seem impossible, even on the basis of an
effects test, to find that any particular measure constitutesa violation of
Article z without embarking on an inquiry into the whole complex of
laws which are applicable i~iSouth West Africa, having regard, further,
to the fact that South West Africa is a territory administered asan inte-
gral portion of South Africa. The object of that inquiry would be to
determine whether the measurc, having regard to its part in the whole,
has a beneficialeffect or not.
This, Mr. President, would in itself seenl to be an enormous and an
almost impossible task for any court of law ta embark upon, particularly
when it is borne in mind that that difficulty is cornplicated and increased
by a further factor. Even if itwere possible to separate the good from the
bad on the basis of the effects which different measures have, or the
different effects which the same measure may have, the question arises,
how does a court weigh the good against the bad, in an exact manner, in
order to determine where the balance lies? What weight is to be given to
the effect which the differcnt rneasures have, or to the different effects
which a particular measure may have, in attempting to determine
whether on balance there has, in fact and in effect, been a promotion of,
or an increase in, well-being and social progress?
The mere posing of these difficulties, Mr. President, as 1have stated
them thus far on the basis of the postulate that one tests according to
effect, demonstrates, in our submission, or goes to support, our contention
that a testing on the basis of effect could not have been intended; that
apart from our main contention which is also considerably supported by
these considerations, viz., that theCourt was not intended to adjudicate
upon such questions under Article 2 at all. These considerations afford
support also for Our alternative contention as to the more limited basis
upon which a court can test in accordance with what 1 might call the test
of purpose, in the sense which 1 explained yesterday.
There is in regard to a test on the basis of purpose also a balancing
process, a similar balancing process to be taken into account by a court,
and then it becomes a feasible proposition. The balancing process is one
which is, in the first instance, to be applieby the adrninistering author-
ity, the mandatory: it seems obvious that that is part of its duty.It is,
indeed, necessary and essential for itto take those balancing factors into
account in the measures which it provides. sr8 SOUTH WEST AFRICA
Therefore, Xr. President, if a court tests on the basis whether a
particular measure could have been decided upon by a reasonable ~nanda-
tory, i.e., bvhether it could conceivably have been decided upon by that
mandatory as one which was likely to promote well-being or yrogress,
then naturaliy the sarne basis of approach is adopted by the court. If a
court then, on the basisofthis approach, condemns a rneasure, or decides
'that it cannot condemn a measure, the court would do so after taking that
balancing process into account. But then one will firid that only if the
result isan extreme or an obvious one, unfavourable to the mandatory,
then the court will intcrfere-if it is extreme in the sense thatthe court
comes to the conclusion that no reasonable rnandatory honestly applying
its mind to the situation could have corne to the conclusion that this
measure could possibly be conducive to well-being and progress. If,
however, the court finds that the matter, having regard to the need for
balancing, falls in a category where there could be differencc of opinion,
where it cornes intoa sphere in which esact balancing becomes necessary
in order to see whcre the balance lies, theii it becomes obvious thatthat is
a case where the court in law cannot interfere, and the exact balancing
yrocess is rendered unnecessary for the court. I may refer again to the
wording of one of the authorities on French law to tvhich we referred
yesterday, which is so very apt in its descriptioof thistype of situation.
It appears in Harnson's ExecîctiveDiscretion and Jz~dicinlControl, at
page 197 . here he said that if the administration has acted on ground-
". .. which rnight on some ralioî~alview possibly be supposed to be
a justification for the exercise, the court will not further inquire
into the matter: ...".
Applying the logic of that,Mr. President, ifthe court then finds that
on applying the balnncing process, it bccomes a rather neat matter of
deciding where the balance lies, then the court will decide: "Well, there is
no further function for me; that is the function of the mandatory; the
mandatory had to decide that and there was a reasonable basis upon
which the mandatory could have decided in the wajrthat it did, whether
1 agree with it or not." Therefore, that is the differencein principle, in
its practical aspects and in its technical aspects, betiveen testing on the
basis of effectand testing on the basis of purpose.
If the court were to attempt to weigh in the exact manner which would
be required if it were to test on the basis of effect, then it would run
counter to the proposition which 1 read to the Court earlier frorn the
Judgment of the Permanent Court in the Lighthorisescase (it is mentioned
in Our Counter-Xiemorial, II, at p. 387), where the matter is so aptly
expressed. That function, &Ir.President, of weighing exactly and of then
deciding where the balance lies, of according exact weight to the counter-
parts of a situation, would seem to accord entirelywith what is said in the
Lighthouses case.1 quote from the saiclpassage in the Counter-Mernorial,
II, at page387 :
"It is a question of appreciating political considerations and
conditions of fact, a task which the Government, as the body
possessing the requisite knowledge of the political situation, ialone
quaiifiedto undertake." (Italics added.)
Mr. President, that is readily to be understood with reference to the
practical situation with which one has to deal. One may have to weigh in REJOINUER OF MR. DE VILLIERS 5I9
the realm of education the factor of children being separatcd in schools
according to membership of a race or an ethiiic group. One may have to
balance that factor againçt the factor of the total number that rnay
become educated, or of the standards to which they could become
educated, by one system as opposed to the other.
The mandatory's appreciation of the situation rnay be, or the facts of
the situation, the demonstrable facts, rnay be, thatby applying a spstem
of separation in education one can educate more efficiently and to a
higher standard amuch larger number of Native children than would be
possible in an integrated school system. That is then a benefit which
would accrue from applying a differential çystem, whereas, on the other
hand, the idea rnay be that one ought not to separate at all; that in itself
is a factor to which weight is tobe given. But how does one weigh those
two factors, the one against the other? 1s not that a matter for apprecia-
tion of the political implications, political in a broad sense, by the
governing authority? And how does the court substitute its judgment as
a matter of law for that of the governing authority by saying: "1 put
more weight on this factor than the governing authority does. 1 think the
factor of separation in itself rnust weigh more heavily than the factor of
educating more children and to a higher dcgrce"?
Let us take another example from those quoted by my Iearned friend
-the mining legislation inSouth West Africa. Were wehave a weighing
process, hIr. President, on the one hand of the fact that possibly a few
Natives rnay be affected, rnay be deprived of an opportunity of employ-
ment in certain positions in mines: how many is a matter for evidencc.
Let usassume it can be shown that the number is relativelysmall bccause
that is in accordance with the facts aswe sl-iallpresent them to the Court.
JIr. President, then we have to weigh on thother side,or the Respondent
Gel-ernrncnt finds it has to weigh on the other hnnd, certain political and
sociological considerations which could arise if that type of legislation
waç not applied in the mining sphere-difficulties which could arise in
the labour force in the mines-difficulties which could affect the whole
possibility of having mines running effectively atal].Those are factors of
a political nature-again ina broad sense of the word "poIitica1"-which
have to be taken into account and have to be weighed. Again, Mr.
President, how does the Court Say "1 weigh that in a different way from
that in which the Government has done"?
1have taken these exarnples to show the criteria to be considered, and
perhaps they have gone somewhat beyond answering this particular
question, but 1 think it has been important to get to the real basis-the
real foundations-as to why tvesay that nat only in a legal sense, but also
practjcal considerations demonstrate that it would not be a leasible
proposition and it would not be correct in law, for a court to attempt to
test on the basis of effects, the test could at most be a test on the hasis of
purpose. Ifone tests on the basis of purpose then this exact balancing
becomes unnecessary for the reasons 1 have indicated. Then aCourt need
merely go so far as to say whether a manclatory could or could not
reasonably have corne to its conclusions. If the result is an estreme one
then obviously no exact balancing is required to find that.As soon as
exact balancing is required, then the Court finds that its function ceases.
Tliat concludes our answer then to question No. g and it brings us to
question No. IO.
This question concerns the relationship between the first and the520 SOUTH WEST AFRlCA
second sub-paragraphs ofArticle 2 of the Mandate. After referring to the
respective provisions of the two sub-paragraphs, the honourable Judge
Sir Gerald Fitzmaurice stated "neither çub-paragraph is specifically
subordinated to the other", and he then raised the following questions:
"Should either nevertheless be read as being so subordinated, and
if soin what sense and to what extent? If not, and if the twoclauses
are independent ofone another, what isthe resulting legalsituation? "
{VIII,Minutes, p. 34.)
Now, Mr. President, as we conceive the position, itis easy to state
initially that the two sub-paragraphs are not independent of one another.
In terms of sub-paragraph (1) the Mandatory is vested with ". ..full
power of administration and legislation over the Territory .. .as an
integral portion of the Union of South Africa" and it is empowered
".. . to apply the laws of the Union of South Africa to the territory
subject to such local modifications as the circumstances ma). require".
(1,p. 201.)
Sub-paragraph (z),on the other hand, stateç an obligation, it States the
purpose. or the objective, which the Mandatory is obligedto pursue in the
exercise of its powers. Sub-paragraph (2),therefore, serves to.qualify the
powers mentioned in sub-paragraph (r) by reference to a spec~ficpurpose
which the Mandatory iç obliged to pursue, narnely that of promoting the
well-being and the progress of the inhabitants. In a sense sub-paragraph
(1) can, therefore,be said to be subordinate to sub-paragraph (z),but we
would prefer to say that it is qualified by sub-paragraph {a)in the sense
which I have stated. The word "subordinate" may, perhaps, just as a
matter of shade of meaning, create a wrong impression.
In the event of an absolute clash between the power granted in sub-
paragraph (I}and the obligation stated in sub-paragraph (2) 1 suppose
the power would have to yield to the obligation-there is that qualifying
relationship between the two-but the possiblearea ofclash would appear
to be, in Oursubmission, relatively small.
The resulting Iegal situation, is therefore, that while Respondent is
own territory, and while it may apply its own laws subject to such itslocal
modifications ascircumstances may require, it is obliged to exercise these
powers with a view to achieving the prescribed purpose or objective.
Mr. President, in saying thatwe agree that in this sense sub-paragraph
(1) can be said to be subordinate to sub-paragraph (z)that weprefer to
Say that it is qualified by sub-paragraph (z)we agree substantially with
a conclusion also stated by my learned friend in argument on behalf of the
Applicants. He dealt with the matter in the verbatim record of 13May,
pages 265-268, supra, and 14 May, pages 268-278, supra. He used a
number of arguments in order to bring him to this conclusion and when
I Say that we, to this extent, agree with the conclusion, it doeç not
necessarily mean that ~veagree with al1or any of thoçe arguments. There
are somewith which wedo not agree but it is unnecessary to pursue that
question, since the mattcr really affects only the conclusion at which we
arrive.
The obligation of promotion to the utmost, and of having regard al1
the time to that objective and purpose, is to be observed both in framing
separate laws for the Territory-laws, policies and other measures-and
in extending the Respondent's own laws to the Territory. But, Mr. REJOINDER OF MR. DE VILLIERS 5z1
Preçidcnt, there are very important practical aspects bearing upon this
obligation as a result of the provisions of sub-paragrap(1) of Article2.
Firstly, there is the element of discretion in the sense already described,
that iç,with regard to the particular methods to be adopted in promoting
well-being and progress. 1 need not deal with the significance of that
again, 1 have stressed that before.
Secondly, and this 1 want to stress on this occasion, there are the
implications flowing from the provision and the contemplation that
Respondent could and would adininister South M'estAfrica as an integral
portion of its own territory. Not only does Article 2of the Mandate Say
that Respondent may do so, but Article 22 of the Covenant, the Court
will recall, in paragraph (6) stated explicitly that the Territory could
"best"be so administered. That was the formulation used in the Covenant
and that is what is referred back to in Articlez (1).In other ivords, the
intent and the contemplation of the foundcrç of the mandates çystem
thcinselves were that the Territory could best be administered as an
integral portion of the then Union of South Africa.
Doing so u~ould necessarily invoive certain inherent advantages for
the Territory, it might also necessarily involve certain inherent dis-
advantages for the Territory as compared with what its situation might
have been if it had not to be treated or administered as an integral
portion of South Africa. The weighing up of the pros and cons in that
regard was already done by the founding fatherçwhen coming to this
conclusion that the Territory could best be administered as an integral
portion of South Africa.
Trcating the Territoryas an integral portion of South Africa visuaIizes
a situation in which a whole body of laws, not the ~vholebut a whole
body of laws, of South Africa would be operative in the Territory and it
would be for the Respondent to decide to what extent circumstances in
South West Africa required local modification of such Iaws. It rnay well
be that in evtending the over-al1 benefits of the integrated system to
South West Africa certain aspects of, or provisions in the system could
be less beneficial in themselves than might have been the position if
South West Africa were not, for administrative purposes, integrated with
South Africa, but it may also be that those provisions could nol practi-
cably be modified in the framework of the integrated system without
detrimentally affecting the whole system, One can surelp then not look
in isolation at a particular measure or a provision which in itself has a
less beneficial effect than could possibly have been achieved for South
West Africa outside of the association with South Africa and then say
that Respondent has failed in its duty merely becauçe, in that respect,
South West Africa is now less well off that it would have been outside
the association.
Itis again a matter, Mr. President, of a taking of the rough with the
srnooth. A balancing process tva~necessary there too and, as 1 said, that
balancing process was already cornpleted, was already taken into account,
by the founding fathers. So to require the Respondent to eliminate such a
particular measure could sometimes mean that the Respondent should be
precluded from treating the Territory as an integrated portjon of South
Africa, in ufhole or in particular respects, which would have the result
that the progress and the well-being of the inhabitants could not on the
whole be promoted as it was contemplated that it should be done or, on
the other hand, it could mean that the Respondent should, in order to522 SOUTH WEST AFRICA
continue to aclminister the Territory as an integral portion of South
Africa, adapt its laws for application in South Africa itself-one would
then have a case of the tail wagging the dog.
Ifthere should be a requirernent, as I have said, that a particular
measure should be eliminated [rom the lvhole cornplex merely because
that measure, when viewed in isolation, might be less advantageous for
South West Africa than the position would have been if South West
Africa had not been in this association, wliefeas that measure might well
be a necessary link in the whole chain and it might bc something which
foliows essentially from the fact tliat SouthAfrica isapplying its approach
and its body of laws, with the necessary modificatio~is, to South West
Africa-if that requirement is to bc put, Rlr. President, then as I have
said, one might find one of these two situations: either not treating the
Territory as an integrated portion which is contrary to the original
contemplation and which would not produce the necessary measure of
progress, or othenvise South Africa might be forced to do something in
the adjustment of its o~vnlaws in order to comply with what it thinks it
ought to do in South West Africa.
That this latter position could arise, Mr. President,is well illustrated
by the very attitude which the Applicants now adopt in this case.
They rely on a norrn, or standards, said to have been created by the
organized international community andwith which,upon the Applicants'
argument, the Respondent would be obliged to comply in South West
Africa. Respondent must then either apply the norm in South West
Africa as well as in South Africa in order to be able to continue to ad-
minister the Territory as an integral part of South Africa, or it must
cease to administer the Territory as an integral part of South Africa if
this approach were to be followed.
This in itself, in our submission, shows how completely untenable it
is to suggest that the Mandatory can be ordered by the organized
international community to comply with general norms or standards
said to be applicable to al1 mandated territories without variation and
without regard to the peculiar circumstances either of the particular
territory or of the mandatory itself.
It would be contrary, hlr. President, to the statement by M. Orts
at a reIatively early stage in the application and operation of the man-
dates system, which statement as itappears in the Counter-Rlemorial,
reads-
"The development of primitive peoples could be carried on by
different rneans, and these mcans would be such as were proper to the
native genius, traditions, and the political and philosophical
conceptions of each mandatory State.. .Thc mandatory States
would fail in their task if a system and method foreign to their
mentality were imposed upon them." (II, p. 388.)
That endorses, Mr. President, the significance of the fact that there is
this relationship between sub-paragraph I and suh-paragraph 2 of
Article 2 of the Mandate; that in adjudging whether the mandatory has
complied with its duty of pursuing the prescribed objective,one is not to
lose sightof the peculiar implications which arise from the conteniplation
that that territory may be administered, and was contemplated that it
could best be administered, as an integral portion of the Union of
South Africa. REJOINDER OF AlR. DE VILLIERS 523
l'hat, Mr. President, complctes our reply to the questions pirt by the
lionourable Judge Sir Gcrald Fitzmaurice, subject to any further elucida-
tion we may be able to give, if that should bc required, and we would
naturally do that with pleasure. That also concludes, subject to the same
rcservation, our further survey in explanation of our contention as to the
true basis of justiciability of Artic2e(2)of the hiandate,ifat all,and we
now proceed to a further consideration of the case of the Applicants-a
more detailed consideration of the case of the Applicants as now brought
by them and based upon their suggested norm and/or standards.
First, it is necessaryto devote some attention to an exact analysis of
what that case is and how it has developed up to the present. Tliat part
of the argument, ifit plcases you, Mr. President, will be addressed to the
Court by my learned friend Mr. Grosskopf. 18. REJOINDER OF MR. GKOSSKOPF
COUNSEL FOR THE GOVERXNEWT OF SOUTH AFRICA AT THE PUBLIC
HEARINGÇ OF g AND IO JUNE 1965
Now, Mr. President, as rny learned senior said,I shall commence the
argument dealing with the Applicants' case.
As a convenient point of departure, reference may be made to their
Subrnissions 3 and 4 as they are now formülated. In these subrnissions
the AppIicants now ask the Court to adjudge and declare that:
"3. Respondent, by laws and regulations, and officia1 methods
and measures, which are set out in the pleadings herein, has prac-
tised apartheid, Le., has distinguished as to race, colour, national
or tribal origin establishing the rights and duties of the inhabitants
of the Territory; that such practice is in violation of its obligations
as stated in Articl2 of the Mandate and Article 22 of the Covenant
of the League of Nations; and that Respondent has the duty forth-
with to cease the practice of apartheid in the Territory;
4. Respondent, by virtue of economic, political, social and
educational policies applied within the Territory, by means of laws
and regulations, and oscial methods and measures, which are set
out in the pleadings herein, has, in the light of applicable inter-
national standards or international legalnorm, or both, failed to
promote to the utmost the material and moral wcll-being and social
progress of the inhabitantsof the Territory; that its friilure to do so
isin violation of its obligations as stated in Art2cof the Mandate
and Article 22 of the Covenant; and that Respondent has the duty
forthwith to cease its violations as aforesaid and to take al1 practi-
cable action tofulfiits duties under such articles;"(Supra, p. 374.)
On the same day, at page 375 of the verbatim record, AppIicants'
Agent presented what he called "formal interpretations and explanatory
comrnents with respect to the foregoing submissions". These forma1
interpretations read as follows,asthey are set out atpages 375 and 376:
"1. The formulation of Submission 4 is not intendedin any manner
to suggest an alternative basis upon which the Applicants make or
'rest their case, other than the basis upon which the Applicants
present in Submission No. 3 itself ... thedistinction between Sub-
missions 3 and 4 being verbal only, ...
2. The reference in Submission 4 to 'applicable international
standards or international legal nom, or both' is intended to refer
to such standards and legal norm, or both, in the sense desctibed and
defined in the Reply,IV, at page 493, and solely and exclusively as
there described and defined .. ."
The case now brought against Respondent is, consequently, only that
of an alleged contravention of this norm andjor standards. Although in
their current usage Applicants mention onIy one "norm", in the singular,
othenvise than in the pleadings where they referred to "norms", in the
lural, they still retain thisreference to "standards" in the plural.
kowever, MI-.President, reference to the Oral Proceedings herein clean RE JOINDER OF MR. GROSSKOPF Xi
up any ambiguity which might othenvise have existed. Thus, Applicants
explained in the verbatim record of 13 May, at age 259, supra, that
they rely on-". . . an international legal norm OP the same scope and
content as the standards in question. . .",and they said, on the same
day, at page 261 :
"When the Applicants speak of standards goveming Article 2
they refer to rules of conduct having a content similar to, but not
an equivalent degree of legal authoritativenessof a legal norm."
The same point is made later, on the same page, where they also
emphasize that the content of the standards is exactly the same as that
of the norrn.
So,fiIr. President, in effect, the Applicants have now rendered it quite
clear: firstly, that both their Submissions 3 and 4 are based upon the
existence of a norm andlor standards; secondly, that the content of the
norm and standards is ideritical; but that, thirdly, the norm and the
standards differ as regards lcgal effect.
Itwill consequently be convenient to consider first the matter which
is common ground between the norm and the standards-that is, the
alleged content of the rule of conduct which Respondent is alleged to
have violated. Thereafter, in the later part of the argument, we shall
deal with the manner in which rules of conduct can in laivbecome legally
binding upon Respondent, and the manner jn which such rules can
become justiciable in these proceedings.
Finaliy, hlr. Presidcntas the finalpart of our argument, which will
be an enquiry which will cncompass certain factual elements as well,
we shall consider whether any rule of conduct of the nature relied upon
by AppBcants can be said to have arisen, either as binding upon Respon-,
dent, or at alI, or as being justiciable in these proceedings.
That brings me, hlr.President, to the firstleg of the argument, and
that is the contents of the norrn and standards, and, as I have noted,
they are said to have an identicai content. In determining what this
content is, the authoritative statement is, of course, that which one
finds in the Applicants' submissions. In this regard, reference may be
made to Submission 3 as it is now formnlated and which objects to
Respondent's policy on the ground that the policy ". .has distinguished
as to race, colour, national or tribal origin in establishing the rights and
duties of the inhabitants of the Territory". 1emphasize, hlr. President,
the word "distinguished".
The norm andlor standards on which this submisçion is based must
consequently be one ~vhich prohibits, at least, distinctions as to race,
colour, national or tribal origin in establishing the rights and duties of
the inhabitants of the Territory.
That, then, as regards Submission 3, and, of course, any norm, the
content of any norm which relates to Submission 3,must be the same
as that which relates to Submission 4, because we are told they are both
based upon the same norm entjrely-the same norm and/or stan-
dards.
In Submission 4 they arereferred to merely as "applicable international
standards or international legal norm", which, in terms of AppIicants'
formal interpretation, to iirhich I referred earljer, are described and
defined in the Reply, IV, at page 493. Therc the norm is referred toas
one of "non-discrimination or non-separation", terms which are defined526 SOUTH WEST AFRICA
on the same page. The definition has been quoted to the Court before,
but for completeness 1 rnay repeat it just once again:
". .. the terms 'non-discrimination' or 'non-separation' are used
in their prevalent and customary sense: stated negatively, the terms
refer to the absence of governmental policies or actions which allot
status, rights, duties, privileges or burdens on the basis of mernber-
ship in a group, class or race rather than on the basis of individual
merit, cnpacity or potential: stated affirmatively, the terms rcfer to
governmentat policies and actions the objective of wliich is to pro-
tect equality of opportunity and equal protection of the laws to
individual persons as such". (IV, p. 493.)
Now, Xr. President, in view of the deciçive importance which the
norm ancilor the standards have iiow attained as the basis of the Appli-
cants' whole case regarding alleged violation of Article 2 (21, the defini-
tions referred to above, in our subrnission, merit close scrutiny.
Starting with the definition embodied in Submission 3, one noteç that
the allegeù incompatibility between Respondent's policies and the norm
andjor standards would appear ta result from three elernents in Kespon-
dent's policies, namely :
(a) The fact that such policies distinguish between different persons.
That is the first element.
(b) The fact that such distinctions relate to the establishment of rights
and duties of such persons.
(c) The fact that such distinctions are based upon race, colour, national
or tribal or-gin.
Those are the three elements which one finds in the subrnission in
question.
Now, the feature to which we would draw particular attention at this
stage is that the first and basic element in Applicants' contention, as
here analysed, is that it relates to the act of distinguishing-that is the
word used in the subrnission-that is, the act of treating people differ-
ently, or of differentiating between them. And the only respects in which
this act of distiiiguishing is said to be wrong, are thnt this act relates
to the establishment of rights ancl duties, and that it is based upon race,
colour. national or tribal origin. In particular, Mr. President, the con-
tention, thus derived from the submission, does not involve that the act
of distinguishing poseses any qualitati fvatures.
In other words, it does not involve that the act of distinguishing mas
well-intentioned or ill-interitioned, that it was realistic or unrealistic,
that it was well-considered or arbitrary, that it was advantageous or
disadvantageous, or that it was good or bad. It would follow that the
norm and the standards themselves must, then, also prohibit the act of
distinguishing in the respects in question whether or not any of these
qualitative elements are present.
Mr. President, this feature of the norm and/or the standards as we
read them namely that thev allegedly prohibit absolutely the act of
distinguishing in the reçpects"in question, appears also from the definition
at page 493 of the Reply. IV, which definition, as I have noted, is in-
corporated by reference in Submission No. 4. This definition, when read
in its ordinary sense, hvould appear to prohibit firstly, the ailotment of
status, rights, duties, privileges or burdensand, as a second element, on
the basis of mcmbership in a group, class or race. Those are the onIy two REjOINDER OF hlR. GROSSKOPF s27
elements contained in the definition reading it in itç ordinary sense.
Once again, therefore, Mr. President, the basis of the norm and also,
of course, of the standards, consists in the alleged proliibition on the
differential allotment of status, rights, duties, privilcges or burdens
wherc the difference is based not upon individual qualities, but upon
membership in a group. And, once again, Mr. President, there is no
suggestion that the norm prohibits this differential allotment only
where the differentiation is inspired b; improper motives, or is in its
nature unfair, or oppressive, or gives rise to undesirable results, or has
any other qualitative aspect of that sort.
So, by reason of the foregoing, this definition having already been
found or been inserted inthe Reply, we understood the ço-called "norm
of non-discrimination or non-separation" as there defined as allegedly
proliibiting any form of differential allotment of rights, duties, burdens,
etc., on the basis of group membership. As a convenient term, we
sometimes refer to it as a norm of non-differentiation-a term which,
in our view and submiçsion, is not only less cltirnsy than the one coined
by Applicants, but which more appropriately conveys the essential
rneaning of the nom as it is defined. And we pointed out in the written
pleadings, and also herein that no such absolute norm could possibly
exist.
As we shall show, hlr. President, Applicants now indignantly deny
that their norm does prohibit differentiation as such. However, for a
proper understanding of Applicants' attitude in this connection, it will
be necessary firsl to have brief regard to the practical reasons which
apparently induced Applicants to introduke their norm theory at the
Replystageand which, inour submission, still providc the key also to the
subçequent changes in thcir case which have now finally culminated in
the situation with which we are presented.
It will be recalled, Mr. President, that Applicants' case as initially
presented was, largely, a factual one. It dealt with, and 1 quote from the
Memorials at 1,page 16x, "apartheid ... as a factand not as a word, as a
practice and not as an abstraction ...as it actually is and as it actually
has been in the life of the peoplof the Territory ...".This is aquotation,
as 1 said,at page 161 of the Memorials, in fact, itcornes from para-
graph 189, which was originally incorporated in Applicants' Submission
No. 3. And, in7an carlier reference in the Memorials, Applicants said:
"Since this section of the Memorial is concerned with a record of
fact, it deals with apartheid as a fact, not as a word. It deais with
a artLwid in practice, as itactually is and as it actually has been in
tle life of the people of the Territory and not as a theoreticai
abstraction. A sober and objective appraisal of the factual record,
as hereinafter detailed, compels the conclusion that apartheid, as
actually practiçed in South IYest Africa, is a deliberate and system-
atic process by which thc Mandatory excludes the 'Natives' of the
Territory from any significant participation in the life of the Terri-
tory except insofar as the Mandatory finds it necessary to use the
'Natives' as an indispensable source of common labour or rnenial
service." (1,pp. 108-109.)
That is the end of the quotation, and the aspects upon which I wish to
place particular emphasis are that both these referenccs refer to the
factual elernent, the factual condemnation which the Applicants wereY8 SOUTHWEST AFRICA
asking tlie Court to make. And thesc passages, being of an introductory
nature in the Memorials. set the note for the whole general theme which
one found in the hlemorials themselves and which was to the effect that
apartheid, as a fact, was a deliberately oppressive policy designed to
benefit the European rnembers of the population at the expense of the
Natives. 1rnay refer the Court to passages where we deal with this aspect.
They are in the Counter-Mernorial, II, pages 392 to 395, the Rejoinder,
V, pages roo to 107 and the verbatirn record of 22 April, at VZII,
pages 640 to652.
In answer to these factual aver~ncnts, we set out, in the Counter-
Mernorial, full details of the fncts alid circumstances in South West
Africa, and, hlr. President, since then, in our subrnission, Applicants
have been attempting to escape the factual enquiry which they themselves
set in train in the Memorials.
Now, in the Reply, various methods were employed in attempting to
prevent a fu11cxamination of the facts by the Court. The first attcmpt,
the first method, wasthe introduction of the norm ofnon-discrimination
or non-separation. As wehave shown, in the verbatirn record of 23 April,
VIII,at pages 655 to 661,Applicants relied in the Rlemorials upon norrns
said to be derived from the Charter, but that those noms really only
represented ainisto be pursued by Respondent, and consequentlydid not
rnaterially assist Applicants.This new norm of non-discrimination or
non-separation introduced in the Reply, was clearly designed toeliminate
this weakness. Itwas designed to establish an objective criterion against
which certain admitted features of Kespondent's policies could be
measured and found wanting, without the necessity of any factual
enquiry. And, Mr. President, since in Applicants' apparent strategy the
main function of the norm was to eliminate any enquiry into the facts, it
follows that alsoas regards the source and origin ofthe norm a factual
enquiry had to be rendered unnecessary, othenvise it would not have
served its purpose. For a proper understanding of subsequent changes in
Applicants' case, these aspects, in Our submission, have to be kept in
rnind, since they, as we submit, clearly provide the key to the whole
situation. The norm was designed for the purpose of rendering unneces-
sary any factualenquiry, and consequentlyApplicants were constrained to
define the norm insuch a rnanner as to prohibit absoluteIy certain policies
whichwere admitted. And, also, it was necessary to exclude circurnstances
in South West Africa from the material from which Applicants sought to
derive their norm.
But, 3lr. President, in addition to introducing this norm of non-
discrimination and non-separation at the Reply stage, Applicants
retained their charges of deliberate oppression. Inthis regard, however,
they also attempted to eliminate the need for any factual enquiry. Now,
in our submission, itmuçt be rare in the historyof the law that a party
which set out to urge the Court to find that conduct was deliberately
unlawful, at the same time exerted al1its efforts to prevent any reference
to the facts. Nevertheless that is what Applicants, in our submission,
attempted, and the method employed bu them was the so-called "... uni-
versally accepted axiom that, in the absence of evidence to the contrary,
the predictable consequences of conduct are presumed to be intended".
(IV, P. 257.)
This axiorn, the Court will recall, swast contended, would enable the
Court to determine that Respondent deliberately oppressed the Natives, RBJOINDER OF &IR.GROSSKOPF 9.9
but without giving the Court the irksome task to have regard to the facts
presented by Respondent, which facts show the charge to be unfounded.
That waç the purpose for which this axiom was advanced. In some way
the contention seerned to be that, by applying this axiom, the Court
could have regard only to the facts set out or alleged by Applicants and
admitted by Respoiident without having regard at al1 to any furthcr
facts or explanaiions or anything of that sort.
Now, Applicants persisted in invoking this so-called principle in the
Oral Proceediiigs, whichwas rather straiige, since at this stagethey denied
that their case involved any allegation of intentional or deliberate
oppressioii at all, so that this axiom, which was designed as a measure of
facilitatingproof, was still relied upon at a stage when the fact which it
was said to prove was no longer allegcd.
We dealt with this matter, and showed that the axiom could never
serve to exclude evidence which is relevant to the question of intent,
where intent is in law a necessary elemcnt ina given case, and we did that
in the verbatim record of zz April, rit VIIL, pages 640-652 Now, Mr.
President, it remains only to note one last reference to this axiom, and
that is in the verbatim of 12 May, at page 239, supra, where the Appli-
cants said:
"It might be desirable at this point to Say that the Applicants
have submitted, and will continue to submit, that Respondent's
subjective intent, motive,or purpose, with regard to its performance
of its obligations under the Mandate, are wholly irrelevant factors,
particularly ço with regard to Article z (z),inasrnuch as a fier se
violation of thc international legal norm and applicable international
standards is contended for by the Applicants."
And they then continued
'
"With respect to the question of design or plan for use of military
installations, or of methods of association between the Territory and
the Respondent, here, as in the case of the sacred trust itself, in
Article z,intention, purpose, or plan, is to be inferred on a basis of
the Respondent's conduct."
So, Mr. Fresident, wc have these two çtaternents; firstly, that the
intent, motive, or purpose are wholly irrelevant factors, and, secondly,
that they are to be inferred on a basis of the Respondent's conduct.
Applicants do not explain why facts which are "wholly irrelevant" are
to be inferred on any basis at all, orhy the Court should consider at al1
whether such facts can be inferred. However, in the light of the changes
in the issues, and of the full treatrnent of thiser by us in the pleadings
and in these Oral Proceedings, it will not, in Oursubmission, be necessary
to Sayany more about this at all. The only reason for referring to it in the
first place was to show the various rnethods by which Applicants,
starting at the reply stage, have sought to eliminate the need for any
factuaI enquiry. Now, at this stage, apparently realizing that their
universally accepted axiom cannot assist thern for that purpose-for the
purpose of eliminating a factual enquiry-they have entirely abandoned
their previous effort to persuade the Court to find that Respondent's
conduct was intentionally oppressive. The quotation which 1 have just
read is apparently to be explained as a failure to keep up with the changes
in argument.
Mr. President, a particular facet of evidence which the Applicants539 SOUTHWEST AFRICA
expressly sought to exclude was that relating to comparisons between
circumstances in South West Africa and those in other territories, and in
particular with the circumstances in the Applicant States themselves.
It may be convenient at this stage to c1ear up an apparent rnisunder-
standing between the Parties. On 3 hlay 1965 Ivesaid:
"It is perfectly obvious that the Applicants cannot faceup to this
factual enquiry, they cannot face up to a comparison of standards of
well-being and progress in their owii countries and those in South
West Africa. They had to find a formula to rule out the whole
proposa1and, in doingso, they eniphnsized the fundamental weakness
oftheir case in law, in fact, and in rnorals." (Suprp. 108.)
This comment, the Court will recall, was made when we were dealing
with the application for an inspection, and the "formula" referred to in
the quotation related to the attitude adopted by the Applicants as
regards that application, thatis,the application for an inspection.
In reaction to this statement which 1 have quoted, on 4 May, at
pages 132-133, sztpra, of the verbatirn record, the Applicants brought
certain aspects of the pleadings to the Court's attention which showed
that even at the licply stage the Applicants attempted to exclude any
cornparison between circumstances and standards in South West Africa
and those in the Applicant countries and other territories in Africa.
Of course, Rlr. Prcsident, we did not mean to suggest, when we were
dealing with the inspection proposal, that it was oiily then that the
Applicants had to adapt their case in ordcr to exclude comparisons with
their own States. If they understood us in that sense., then we rnust Say
that that was not intended at all. We did not suggest that it was only
when the inspection proposal urasraised thattheyattempted to eliminate
any comparison between the various tcrritories. Zn fact we concede
readily that they were quite correct in pointing out that this had already
commenced in the Reply, a feature to which we drew pertinent attention
in the Rejoinder, V, at pages 115-116.
Another method which the Applicants also already introduced in their
Reply and whereby the' sought to prevent an independent appraisal of
the facts by thisCourt, was to enhance the significance to be attached to
reports and resolutions of the United Nations, its organs, and iagencies.
In theearlier pleadings, that is,in the Mernorials and the Observations,
the history of events in the United Nations and the various resolutions of
its organs and agencies were adduced as proof of the Applicants' conten-
tion that there \vas a dispute between the Partiesand that such a dispute
could not be settled by negotiation. 1 may refer the Court to Our treat-
ment of this topic in the Rejoinder,V, pages 112-115.
In the Reply, however, Applicantssought to elevate the importance of
thcse resolutions, although, I may add, not to the height to which they
have done now. There they said:
"Applicants respectfully submit that the reports and resolutions
of the United Nations and itsagcncies and organs, in and tlirough
which Applicants have sought to settle their dispute with Reçpon-
dent, are highly relevant tothe Court's judicial function in adjudging
the legality of Respondent's administration of the Territory, and are
entitled to great weight and respect as authority thereon." (IV,
P. 259.)
1shall deal later with the change in significance which has now in the REJOIXDER OF MR. GROSSKOPF 531
Reply stage been attributed to such reports and resolutions. At present
we are concerned only to show that, already at the Reply stage, there was
a very apparent desire to avoid any independent factual enquiry by this
Court-a desire which also led to the changes in the content of thc
Applicants' alleged norln, which is rcally the topic directly in issue at the
moment.
In the light of the above features in the lzeply, to which 1 have just
drawn attention, we said as follows in the Rejoinder, V, page 118:
"To summarize, Applicants ask this Court to deterniirie an issue
of factby-
(a) ignoring al1evidence tendered by Respondent in respect of the
said issue;
(6) giving consicleration solely to the evidcnce tendered by Appli-
cants; and
(c) giving effect to the reports and resolutions of a politicaI body
which (apart from any other criticism) admittedly has not
attempted or had an opportuliity for a judicial enquiry into the
fncts.
In short, -4pplicants ask this Court for a complete abdication of
its judicial functions."
hIr. President, before the adjournrnent 1 noted briefljr how the Appli-
cants' charge, which in the Mernorials was a facturtl one relating to alleged
oppression, as from the Reply stage became in various ways changed, and
1 pointed out in particular that at that stage they introduced a norm
with the object of avoiding a factual enquiry, that, in so far as they still
relied on the allegations of oppression, tliey tried to establish them by
applying the so-called universal axiorn, and that they attached more
significance to reports and resolutions of thc United Nations organs and
agencies than had been attached to thern in their carlier pleadings. And
1 submitted that the purpose of al1 these changes was to eIiminate the
need for any factual enquiry, and,.as a particular aspect thereof, to
remove the necessity of the desirability of comparing standards in South
West Africa with various other territories, and, in particular the Appli-
cant States themselves. Just before the Court adjourned 1 quoted a
certain passage from the Rejoinder in which we summarized these
various aspects, and pointed out that the Applicants' purpose apparently
was to ask thiç Court for complete abdication of its judicial functions.
Now, in reacting to this line of argument, the Applicants increased th'e
efforts directed at avoiding a finding of fact by this Court and they dso
particularIy inthe context of trying to eliminate the necessity or desirabil-
ity of any cornparison between circumstnnces in South West Africa and
the Applicant States themselves. This issue, of course,achieved increased
importance as a rcsult of our inspection proposa1 which, aa part thereof,
the Court will recall, involveda suggestion that also the territories ofthe
Applicant States should be visited.
Now, right at the outset of the oral prescntation, Applicants made it
clear that they did not allege any irnproper or oppressive motives on the
part of either Respondent or an- of its officials, an attitude which they
have since then often repeated. They have now sought to make it
abundantly clear, they have çaid often and repeatedlj and explicitly that
they do no longer allege any improper motives on the part of any of
Respondent's officialsor of Respondent itself.532 SOUTH WEST AFRICA
Also, Mr. President, they made it clear, in a lengthy piecemeal process
which culminated in the amendment of these submissions and in the
forma1 interpretation thereof, that they now rely only and solely on the
norm and the standards and that these norm and standards possess an
identical content; that they no longer rely on anystandards or principles
or theoriesoutside or beyond this norm or standard ofnon-discrirninatioii
or non-separation, astheyhave called it, and in the manner in which they
have defined it. For present purposes it is not necessary to dwell at length
on each of the changes in the case-with each part of this lengthy process
which f-inallyculminated in the amendment and in the forma1interpreta-
tion to which 1 have referred. Nevertheless, sornething requires to be said
regarding the various submissions that have been advanced as to the
content of the norm.
Now, air. President, as wehave noted, the norm wasfirst introduced in
the Repiy. \Then 1 Say that, Imean that isthe first occasion certainly
when Applicants called the norm, or any norm, a norm of non-discrimina-
tion or non-differentiation, or the first occasion on which they defined
any such norm. It is true that they Say, and they said in the verbatim
record of 17 May, at pages 281-282, supra, that they already had this
norm in mind when they dralted the hlemorials, and they referred to a
paragraph in the Mernorials which reads as follows, and 1 quote from the
hlemorials, 1,page 107 :
"It is submitted that the terms of the second paragraph ofArticle
2 of the Mandate and Paragraph I of Article22 of the Covenant and
their stated purposes, rcad in the Iight of the terms and stated
purposes of Chapters XI, XII and XII1 of the Charter, estnblish
clear and meaningful norms marking the duties of the Manda-
tory."
Now, Aïr. President, Applicants Say that in this paragraph somehow
there iscomprehcnded the norm of non-discrimination and non-separation
which they then subsequently formrilated in the Reply. Somehow, by
some process of second-sight, one should have read into this paragraph
such a norm on which they now rely. All we can Say, Mr. President, is
that if Applicnnts intended by these words to allcgc the existence of a
norrn with a scope, content and origin of the subsequently rnentioned
norm of non-discrimination and non-separation, they ceriainly concealed
their intentions very well indeed, even to the extent of disguising the
norm by referring to it in the plural, and, of course, of saying not a word
about non-discrimination, non-separation or non-differentiation, inthe
list of duties which they said were marked by this nom. That is inthe
Memorials, 1, pages 107-108.
The only reference to anything even resembling non-discrimination or
non-separation to which they could point, was the quotation of Article76
of the Charter which was included in sorne articles from which they
purported to cxtract verÿ clear and meaningful norrns, as they then
called them.
But Article 76 was only one of the sources, one ofa number of Articles
upon which they relied and to which they apparently attached equal
weight in sceking to derive the normson which they relied atthat stage.
NOW, Mr. President, as regards the overriding importance which
Applicants now say their reference to Article 76must be given, some light
isperhaps cast thereon if one has regard to the Observations. 1 should REJOINDER OF MR. GROSSKOPF 533
like to quote from page 462,I ,f the Observations where this rnatter was
ais0 dealt with. There the Applicants said the following:
"The words used in Article 2-'material and moral well-being',
'social progressl-are akin to other words such as 'due process' and
'equal protection' which national Courts are frequently called upon
to interpret.Such words are broad in scoye, but in the context ofthe
society to which they pertain they ernbody meaiiingful norms. In
the international society, the norms applicableto 'the administration
of territories whose peoples have not yct attained a full measure of
self-government' reflect the consensus of al1 the Rlembers of the
United Nations. They include the foiiowing principle and doctrine."
And, then, hIr.President, follows a quotation from Article 73 of the
Charter, which, as the Court is aware, does not deal with any non-
discrimination or non-differentiation, or anything of that sort. And, after
quoting Article 73,Applicants continue:
"And in the exerciseof Trusteeships which in essence reflect the
saine internatioiial concern as Mandates, Members of the United
Xations have agreed that Trust Territories shall be administered so
as 'to encourage respect for human rights and for fundamental
freedoms for al1 without distinction as to race, sex, language, or
religion, and to encourage recognition of the interdependence of the
peoples ofthe world.
It cannot be said, thcrefore, thathe Court in interpreting Article2
of the Mandate would be engaged in an essentially 'political activity,'
whatever Respondent may intend to connote by use of that undefined
phrase." (1,p.462.)
As the Court will see, with respect, Mr. President, Article 76 isrelied
upon only as one of the sources frorn which a number of meaningful
-clear and meaningful-noms were said to be derived in the earlier
pleadings. In particular, there was no suggestion at al1that in some way
Article 76 was to be read as providing the key, or the background, of the
purpose against wliich al1 the other norms, or al1the othcr duties, whjch
the Applicants quoted or reIied upon, were to be read. 1 sliould like, in
this connection just to read briefiy from the verbatim of 17 May, at
page 281. supra. There the Applicants said, referring to the hlemorials,
that :
"The purport, the intention, as would seem clearly to be indicated
hy the context, and particularly in the light of the introductory
paragraphs to which 1 have referred-the purport and intent of
these eight enumcrated duties [those are the duties, the Court will
recall, which were set out in the hIemoriaIs relating to various facets
of administration] is to set forth for convenience sake in categories
eight general ranges of duties, each of which must be carried out in
accordance with the nom and the standards for which the Applicants
contend."
I repeat the last words "each of which must be carried out in accordance
with the norm and the standards for which the Applicants contend".
Now, Mr. President, if it was the intention of the Applicants to make a
suggestion in the Memorials that each ofthose eight duties was to be read
subject to any norm of non-discrimination or non-separation, al1 we can
Say is thatthey certainly concealed the intention very well indeed.534 SOUTH WEST AFRICA
But, be that as it may, Mr. President, the purpose of the nornl in its
present forrn is to exclude the necessity for this Court to conduct any
independent factual enquiry as to conditions in South West Africa and,
in particular, on a comparative basis, which wouId also involve the
Applicants' own States. It follows tliat in order to serve such a purpose
the norm aildlor standardsmust be so defined as to prohibit Respondent's
admitted policies without requiring any further factual esamination by
the Court. If the norm does not serve to exclude factual examination by
the Court, itwould not have served the purpose for which itwas obviously
introduced.
On the other hand, the norm andior the standards must not be dcfrned
so as to render illegal certain forms of differential aliotment of rights,
burdens, etc., which are of unquestionable legality and moralit3.. Those
are the two estremes between which Applicants' norm has to fit in ifit
were to serve their purpose. If,on the one hand, the norm were to be
defined so as still to require a factual esamination by the Court, it would
not have served its purpose, but, on tlie other hand, if the norm were
defined in such a rnanner that itwould, if applied, aho affect other forms
.ofdifferentiation than those practised by Rcspoi-ident, and, in particuiar,
if it were to be so defined as to prohibit forms of differentiation which
everybody would accept and which nobody could condemn, then it would
also not have scrved their purpose. So, it is between these two extremes
that Applicarits were forced to go and these then represented their
Scylla and Charybdis between which they had to steer their course. The
course which they steered we shall trace briefly.
Wow, blr. President, as we have said, the norm as defined by the
Applicants at page 493 of the Reply, IV, prohibited absolutely the
official allotnient of rights, duties, privileges. etc., on a grobasis,and
it will also be recalled thatin Submission No. 3 the word used by them
was "distinguish", which is a neutral word which does not connote any
qualitative element of oppression, or discrimination, or anything having
a bad connotation in that sense. Nevertheless, after we had in the Re-
joinder poiiited to the anomalies to which this formulation would lead,
the Applicants repeatedly in these Oral Proceedings sought to cxclude
certain forms of differential allotment of rights, privileges, burdens, etc.
They sought to show that although in other instances, in other examples
which we quoted, or which they quoted, one could also find a differcntial
allotment of rights, duties, privileges, burdens, etc., on the basis of
group membership, in some uray such differential allotment was not
covered by the nom, tvhereas, in terms, itof course was.
Now, this matter was brought to a head as a result of a question from
a Member of this Court. On 28 April, Judge Sir Geraid Fitzrnaurice put a
question to the Agent for the Applicants, the first part of which rcad as
follows:
"... was the Applicants' contention about 'apartheid' to be
understood in the sense that a policy of group differentiationisin al1
circumstances, necessarily and in itself, contrary to Article 2 of the
Mandate, irrespective of any other steps taken by the Mandatory for
promoting the welfare of the inhabitants of the Mandated Territory?"
(VIII, Minutes, p. 22.)
Mr. President, this is of course the very nub of the problem as far as
the content of the norm and the standards is concerned. TO what extent REJOIXDER OF MR, GIIOSSKOPF 535
and in what way does it prohibit differentiation? 1s itabsolute, or is it
qualified? If qualified, what are the quatifications? And since this is to
such a large extent the central problem with which 1 am dealing, 1 shall
unfortunately have to quote at some length from the answer, which was
in the same vcrbatim record. It rcads as follows:
". . . a policy tvhich differentiates among individuals as such, or as
members of indentifiable groups, would be permissible and indeed
desirable in appropriate circun~stances. Ive have in that connection
cited the hlinorities Treaties, among other esamples, in tvhich it is
just, prudent, wholly desirable for governments to take account of
differences between individuals and between individuals as mernbers
of groups, therebp leading to the conclusion that differences are
permissible with respect to the treatment of groups as such. There
are instances k~iownto al1 of us in al1of Our countries of such exam-
ples of differentiation .of groups, the protection of minors, the
protection of other segments of the population, arranged in accor-
dance with their choice, normnlly-sometimes by reasons of other
considcrations, in which their choice were possible, plays a very
important and, indeed decisive role-their clioice as individuals.
The problem, therefore, in the Applicants' respectful submission,
is not sumrnarizcd in terms of, or is it aiiswerable in terms of, the
expression 'group differentiation' except in a sense which is
mutuaHy understood between the questioner and the responder.
There is, in thiscase, no submission on the part of the Appiicants
which condemns or attacks, or criticises, differentiation between
individuals as such, or as members of groups, in, for example, the
aspects which 1 have mentioned as illustrations." (Supra, pp. 44-
45.)
IfI may pause there for a moment, Mr. President, the learned Agent
for the Applicants merely refers back to certain examples which were
given. As yet, he does not essay ariy attempt at definition.
If 1may then continue the quotation:
"Respondent has paraphrased, ostensibly for the convenience of
itself or for the convenienceofthe Court, the characterization ofthe
legal norm for which the Applicants contend as a norm of non-
differentiation, in Respondent's phrase.
The Applicants' formulation does not rest upon the use of that
word at all. The Applicants' formulation relates to the polic~ of
discrimination and separation and the distinction is more than a
verbal one between those words and the general concept of differen-
tiation." (Supra, p.45.)
If I may pause again for a moment, Mr. President; the distinction is
sought to be drawn between, on the one hand, discrimination and separa-
tion and, on the other, a general concept of differentiation.
1 continue the quotation:
"Members of churches, organizations of various kinds-I have
mentioned minors, those of non-age and so forth, as groups, are
differentiated among and mithin themselves frequently, interms of
the protection which they are offered as a matter of good govem-
ment and decent Society. This is just part of the human condition
and human experience." (Ibid.)536 SOUTH WEST AFRlCA
Now, again interrupting the quotation, Mr. President, this part of the
answer which 1 have read up to now, although it does make clear that
mere differentiation perse is not contrary tothe Applicants' alleged norrn
and standards, nevertheless does not seem to provide any assistance in
showing which are the elements which allegedly render differentiation
either legitirnateor illegitimate. Certain examples are quoted, which the
Applicants Sayare quite in order even although they involve differentia-
tion and the differential allotment of rights and burdens, but, apart
from the quoting of exarnples, no formulation is given, no criteria are
suggested, no elements are laid down which would bear on the distinction.
In particular, very littleif any, guidance is furiiished as to what are
the appropriate circumstances-to use the Applicants' phrase-in which
it would be "just, prudent, whollp desirable for governments to take
account of difierences between individuals and between individuals as
memberç of groups". Also, >Ir. President, very little, if any, guidance is
provided as to what are the elements in the distinction between, on the
one hand, differcrrtiation and,on the other, discrimination or separation.
In the passage just quoted no answer at al1 is given to this question. Al1
that is done is that certain examyles are supplied of instances in which
the Applicants Say it would be in order, it would bc deçirable, it would
be just, to differentiate.
However, these exarnples may be read as supplying certain hints as to
the features which might distinguish between official discrimination,
which is not permissible, and officia1 differentiation. ahich is. And in
particular, in that answer the following formulation may have been
intended to be of general application as defining the elements which
rendered differentiation permissible. I quote the words which 1 have
already read to the Court:
".. . the protection of other segments of the population, arranged
in accordance with their choice-normally, sometimes by reason of
other considerations, in which their choice, where possible, plays a
very importaiit and, indeed, decisive role-their choice as individ-
uals".
Now, Mr. President, if this formulation was intended to be a definition
of what is perrnissible, then 1would only wish to point out that the two
elements which it comprises are the element of choice and the element of
protection. Those are the two elernents which my learned friends ap-
parently suggest could, in a fit case, make differentiation legal or legiti-
mate, or even desirable. At a later stage we shallmake further reference
to those two elements.
First, however, 1 should like to complete the quotation which the
Applicants gave to Judge Sir Gerald Fitzmaurice's question, because in
the next part of the answer they purport expressly to define the essential
elements of impermisçible discrimination or separat ion. This isactually
the part where they set out to expIain what are the elements which
distinguish between permissible conduct and impermissible conduct in
the field of allotment of rights, burdens, etc., on the basis of group
membership. Thus they say, at page 45, supra, of the same verbatim
record :
"A policy of differentiation, however,which allots rights, burdens,
status, privileges, and duties on the basis of membersldp in a group
by reason of race, colour or other circumstance of a simiiar nature, REJOINDER OF MR. GROSSKOPF 537
whether called ethnic, tribal or otherwise, on such a basis, which does
not pay regard tothe individual quality, capacity, mcrit or potential
is, in the Applicants' view, an impermissible premisc and an im-
permissible policy at al1 times, under al1 circumstances and in al1
places."
Reading this passage at its face value, it would appear that the
important element in the Applicants' case is the fact that the distinction
is on the basis of membership in a group by reaçon of race, colour, or
other circumstances of a similar nature, whether calied ethnic, tribal, or
othenvise. Those appear to be the essential elements in this definition
which the Applicants gave.
In other words, this passage wouid appear to indicate at its face value
that the distinction between permjssible forms of differentiation and
impermissible forms thereof does not lie in the quality of the differentia-
tion, but in the nature of the groups between or among which the dif-
ferentiation takes place. That would appear to be the prima facim eeaning
of this passage.
Therefore, if we read this passage correctly, it would mean that a
government would be entitled to allot rights on the basis of membership
of, Say, for example, age groups, çcx groups, income groups, or reljgious.
groups. but not on the basis of racial groups, colour groups, ethnic
groups, or tribai groups.
However, Rlr. President, if this is rcally the element on which the
Applicants rely in their case, it would follow, for instance, that the
minorities provisions which were concludcd after the First World War
and which allotted privileges and rights on an ethnic or a tribal basis,
would be unlawful in tems of thjs definition. It would also mean,
hlr. President, that provisions in the Mandates regarding the supply of
Ijqnor to Natives or the protection of Native land, would alsobc unlawful
because they allot rights, burdens, privileges upon the basis of member-
ship in an ethnic, or a racial, or what-have-you, group, and not on anp
other group.
And, of course, finally, such a formulation would be much narrower
than the wide ambit of the norm of non-discrimination or non-separation
as it is defined in the Reply aIV, page 493, and on which the Applicants
still relyin their submissions. There the words used are, "the bais of
membership in a group, class or race"-& wide tems "group, class or
raceH-not limited to groups based upon circumstances of race, colour, or
tribaI origin.
So that, surnming up, Mr. President, the answer to the question put
by Sir Gerald Fjtzmaurice would clearly not solve the Applicants'
problem of properly defining the norm so as to make it applicable to
Respondent's policies, and only to Respondent's policies.
In theiroral reply, the Applicants again indignantlydenied that their
norm of non-discrimination or non-separation could appropriately be
referred to as a norm of non-differentiation. Thus, right at the outset of a
portion of their argument dealing with what they call-
"... certain potentially misleading aspects of Respondent's repeated
imputations to the Applicants of positions which do not in fact or in
law reffect the AppIicants' contentions or theories" (swpru,p. 246),
in dealing with these "misleading aspects of Respondent's ...imputa-
tions", the Applicants Say (1quote from the same page) : SOUTH WEST AFRICd
"A cardinal, though by no means exclusive, misinterpretation of
the Applicants' theory of the case is implicit in Hespondent's
repeated references to the norm and standards under the designation
of 'norm of non-differentiation'. This is, of course, more than amere
matter of semantic distinction. On the contrary, it strikes at the
very heart of the true significance of the Applicants' designation of
the norm and standards."
Tlie Applicants object very violently to the norm being called anorm
of non-differentiation, because they Say in truth it is one of non-dis-
crimination, or non-separation, and the distinction is more than a merely
verbal one.
Later they Say,in the verbatim record of 18May, at page 338, supra-
". .. the misconception which arises from the Ialse equation of
differentiation, as such, with discrimination or separation which, of
course, are forms of differentiation but happen to be impermissible
forms of differentiation".
Agrrin, Mr. President, the distinction between differentiation as a
wide concept, and whicli includes as part of it separation or discrimina-
tion, which are impermissible parts of the whole, but there again, no
attemptis made to define the distinguishing line. Hoivever, Mr. President,
when they do make an attempt at distinguishing betwecn discrimination
or separation, ivhich is impermissible, and differentiation, which is not,
Appticants remain, in Our çubmission, completely obscure. Thus, they
say in the verbatim of 13May, at page 247, supra:
<... prudent and fair governmentç, aç well aç international institu-
tions, often recognize the need for protection of individual perçons
in their quality as rncrnbers of a claçs or group. Civilized social
orders obviously and necessarily differentiate minors orincompetents
from adultç or competents, and accord them protection as individ-
uals on that baçiç.
The question at issue is much more fundamental than so axiornatic
a premise of the social order itself. The legal issue is whether the
differentiation in question is based upon, or determined by, an
officia1policp which allotç burdeiis, privileges or status on the basis
of rnernbership in a group, class or race, rather than on the basis of
individual quality or capacity. This type of differentiation is
impermissible. "
Itmay be noted in passing, Mr. President, that here Applicants revert
to the wide formuIation of group, class or race, which would suggest that
the conclusion reached earlier-that the nomi is limited to racial,
colour, ethnic or tribal groups-was not correct, but that indeed the
norm has a much wider effect. Here the distinction agnin appears to be
between, on the one hand, the allotment of righis, privileges, duties, etc.,
on rnembers of a group and, on the other hand,the protection of menibers
of the group. The allotment of rights is wrong, the protection of members
iç right, but, as we have had occasion to mention previously, these two
concepts are, of course, not opposites. On the contrary, it is difficult to
imagine how any form of group protection would be possibIe without the
allotment on a group basis of rights, privileges, duties, and so forth, on
members of the group to be protected, as well asthe group against which
the protection ista operate.
FVehave quoted various examples, for instance, the prohibition on the REJOINDER OF MR. GROSSKOPF 339
supply of liquor, which one finds in the Alandate. It clearly isa burden,
itmay be n right, it may be a privilege, butal1 these thiiigs are allotted
on a group basis. For the man wlio would Iike to buy liquor, is not able ta
do so, and the man who would want to supply hirn, may not, and al1thiç
on a group basis regardlesç of the individual qualities of the perçons
affected one way or the other.
Now, Mr. President, this confusion which is iaherent in distinguishing
between concepts which are clearly not distinguishable appears also
from a further passage of the same verbatim, where the Applicants say:
"The minorities treaties, for example, of course involve permissible
differentiation on the basis of ethnic, [and I emphasize the aords
'on the basis of'] linguistic, national or religious groupings. The
miiiorities treaties do so, however, not upon the basis of nllotting
rights, privileges, burdens on the basis of group classification but for
tlie reason-the essential reason-of protecting the individual
iiien~berof a group, wl-iich norrnally he cliooses to adhere to, from
suffering adverse consequences by reasoIi of his menibership in the
group, which, as 1 Say, he is normally frec to quit." (Sn~prn ,.247.)
If 1 may summarize it, it involves permissible differentiation on the
basis of grouping, it does so not on the basis of allotting rights to dif-
ferential groups. but for the reason of protecting. In other words, the
distinction lies between the basis of allotment, on the one hand, and the
reason for allotment, on the other, which, of course, are entirely diffcrent
things-they are concepts which are not comparable. An allotment of
rights on a group basis does not cease to be such because the reason for
the allotnient isof a particular nature; it is still an allotment. The reason
for tlie allotment could possibly, iii an appropriate case, affect its
morality, its legality, its justifiability, but it couId never affect the nature
of the allotment as being based purcly on group membership. Similarly,
the fact that the group is a voluntary one does not affect the question
whether as a fact certain rights, burdens, privileges, what have you, are
allotted to members of such a group purelv on the strength of their
rnembersliip. So that, whether the group be voluntary, whether the reason
be a laudable one or not a laudable one, whatever these features may be,
the fact still remainç that the allotment ison the basis of the group, and
that js the elernent that Applicants continiially Say is wrong, is im-
permisçible-it is that allotment which, they Say, renders differentiation
discrimination, which is an illegal policy.
Mr. President, it is not necessary to quote more exampIes. The Court
will recall that throughout the oral reply the Applicants insisted that
their norm prohibits discrimination and separation, as a distinct type of
differentiation, whilst at the same time, they still clung to definitions
which in termç would prohibit any group differentiation in the official
allotment of rights, burdens, privileges, etc. Awhvard examples, such
as the minoRties, or the pro\?çions in the Mandate, or the position of
minors or women, such awkward examples are sirnply brushed alvay, in
the manner which we have noted, by pointing to the laudable reasons
which maÿ exist for differentiation, or by pointing to the normally
voluntnry nature of such grouping.
Howevcr, Mr. President, although Applicants did not appenr in the
oral argument to appreciate the difficulties which they had in that
regard, itis now clear that they must have been aware of the weakness540 SOUTH WEST AFRICA
of their position and have now altered their argument in conformity, or
rlither, altered the argument to elinlinate such wcakness. The concession
that there may, in suitable cases, be sound reasons for the officia1allot-
ment of rights, etc., on the basis of group mernbership, and that in such
cases the allotment would be legitimate, naturally presented very
difficult problems. Such a concession necessarily affected the absolute
nature of the norm and the standards which, for the reasons we have
çaid, they could not afford to abandon. As soon as they formally sban-
doned the absolute nature of the norrn, they would in efiect be back
where they were-they would have either to define it in such a way,
with some exactitude, which would then affect or might not affect
other forms of differentiation,or to define it in such a way that it would
not affect other forms ofdifferentiation, and thcn they would be back at
a factuaI enquiry, which they want to avoid. It is extremely difficult,
1 should imagine, and as appears from the course which the proceedings
have taken, to define discrimination in such away that it does not affect
also provisions such as the minorities provisions, while at the sarne tirne
excluding a factualenquiry by the Court. Ifthey were to define discrimina-
tion as being something oppressive, something unequal, something
having oppressive intent, or having undesirable consequences, thcn they
woulcl be right back whcre they started and they would still have to
persuade this Court that Respondent's policy is, in fact, discriminatory
in that sense. On the other hand, as was made clear, if they define it
as prohibiting any forrn of differential allotment, purely differential
-without any of the other undertones or overtones, then they strike at
al1sorts of differential practices which exisin every State in the world.
And, in particular, as we have seen, i\lr. President, the minorities pro-
visions presented them with great difficulties. Frequent reference was
made to the minorities provisions, and they were then distinguished
in the manner which 1 have demonstrated above.
This commenced already early in the Applicants' oral presentation,
when they attempted to explain away these minorities provisions and
to distinpish thcm on the basis that they entailed "protection as
distinguished from coercion". (VIII, p. 263.) In our oral argument, on
23 April, at Vm, pages 664-666, we showed that this formulation in fact
did not assist Applicants; if one were to adopt the general principle that
one may protect withaut coercion,it stilllft unresolved the question as
to who would decide as to the need for and the methods of protection.
There would still have to be. a discretion somcwhere in somebody to
decide that a particular group needed protection, to decide upon ap-
propriate measures of protection for such a group, and as against whom
or against which other group,or even whether such a groupdid not require
protection against its o~ni weakness. Also, we showed that protection
and coercion are not mutually exclusive concepts, that the former-
that is protection-very often required some form of coercion, particu-
larly either where a group isprotected against its own weakness or its
awn backwardness, or in other circumstances where there are various
groups to be protected one against the other.
Diiring the argument on the application for an inspection, the Appli-
cants attempted to explain more fully why the minorities provisions
would not be covered by the terms of the norm. They did this, however,
not by contrasting the minorities provisions with the terms of the norm,
but by showing what the difference was between apartheid, as they KEJOINDER OF MR. GROSSKOPF 54I
understood it, and the minorities provisions, and their argument in this
regard and which may be found in the verbatim record of 3 Rlay, at
., page 87, sera, and the folloiviingpages, may be surnmarjzed as follows:
(a) Applicants regard the individual as the basic social unit, whereas
Respondent regards the group asthe basic social unit.
(b) The minorities treaties were perceived as a means of assuring that
the individual does not sufier by reason of his inembership in a
group.
(c) Under the minorities treaties, a member of a group cm, as an
individual, normally quit his group.
(d) Under apartheid, on theother hand (Applicants Say,and 1 quote frorn
p. 88, su$ra, of the verbatim of 3 May) "the individuai person
is subject to burdens ... because of his membership in a groupa
group, moreover, of which he is made an irrevocablc life member",
and this position is not altered even if the burdens are imposed for
the protection of the group or groups. (That is also at p. 88 where
Applicants render it clear that even if çuch burdens werc imposed
for the protection of the groups, that wouId not answer the objec-
tion.)
Now, al1ths is summcd up in the following passage:
"Under the minorities treaties, as has beeri said. ..an individua
may claim protection of his individual rights, if they are thwarted
by reaçon of his membership in an ethnic, religious, linguistic or
other group, which he normaliy is free to disclaim. Under apartheid,
by definition, the individual's membership in a group largely
determines hiç rights ..." (S~pra, p. 89.)
Now, Rlr. President, it must be borne in mind that, although the
purpose of this argument was to show why the minorities provisions did
not faIl within the terms of the norm, the method whereby it was pre-
sented was by comparing the minorities provisions with apartheid, and
in the reçuIt, the differences between the minorities provisions and
apartheid, as appreciated by Applicants, would appear to be: firstly,
that the purpose of the minorities provisions was to protect the individ-
ual, whereas the purpose of apartheid is to protect the group; and,
secondly, that under the minorities provisions, an individual is normally
free to quit his group, whereas under apartheid he normally is not.
Whether or not, however, Mr. President, thesc propositions indeed
accurately reflect the differences betrveen apartheid and the minorities
provisions, the important point is that, for present purposes, they could
not serve to take the minoritieç provisions out of the wide terms of
Applicants' norm, so that even if there are these differencesbetween the
minorities provisions, on the one hand, and apartheid, on the other,
which we do not concede, that does not assist Applicants because that
still does not show why these differences would have the effect that the
one would be covered by the nom and the other not.
They are differences which do not bear upon the definition of discrimi-
nation as given by Applicants at aI1;they would appear to be entirely
irrelevant to the questions whether and why the minorities provisions are
covered or are not covered by the definition, because, Mr. President, the
terms of the norm as defined do not permit the differential allotment of
rights, duties, privileges, etc., even where the purpose of such allotment
is the protection of the rights of the individual member of the group.542 SOUTH WEST AFRICA
There is nothing in tlie definition which says that allotment of rights
would be in order if it were imposed for protection: that is not a part of
Applicants'definition. It is also no part of their definition that diffcrenti+l
allotment of rights, burdens, etc., would be unlawful only ifit re1ated to
g~oups which were not voluntary. There is no element of voluntariness or
lack thereof in Applicants' definition, and, indeed, the Applicants
usually use the phrase "a group which an individual is normally free to
quit", so that even when giving esamples they do not suggest that the
ability of an individual to quit his group must necessarily be present
before an allotmeiit of rights to sudi a group could be justified. They
always qualify it by the word "norrnally".
So that in the result, blr. President, our submission is that even if
Applicarits werc to be correct in their analysis of the basic difierences
between apartheid and the minoritics provision, that does not nssist them
to show that the latter are not covered by their norm. lt inay also, in
passing, be notcd that tnany groups do not possess the qualities clairned
for the minorities and yet are the subject of permissible, or at least
widespread, differentiation. One thinks, for instance, of minors, or
women-one could hardly- Say that wonien are norrnally free to quit their
group, or thnt rniiiors are norrnalljr free to quit their group; nevcrtheless,
there are protective measures and differentiating rneasures in many or
most countries of the world. And of course, Mr. President, we do not
concede that our policy is aimed only at protecting the group. We Say
that it is designed to protect the individual as much as, or more so than,
the group of wliich the individual forms a part, so that that distinction
which Applicants seek to draw between apartheid and the rniiiorities
provision is, in our submission, a false one.
That Applicants' Iiorm did in terms cover the minorities provisions,
and that itwas impossible for them to re-define it so as to exclude these
provisions without at the same time excluding Respondent's policies,
was apparently realized by the Applicants, because after pointing to the
above alleged differences between apartheid and the minorities provisions,
which Applicants said also reflect differences between the Parties, they
continued to çay, at page 88, "accordingly, Mr. President, the perspec-
tives of the Parties tothese Proceedings clash, attempted legal definitions
blur". That seemed to be the basic problem with which the Applicants
were faced, viz.. that the attempted kgal definitions always included
things they did not want included and cscluded others that tliey wanted
to include, so that, as a result, in the oral reply, Applicants have now
finally abandoned al1 attempts to find a general definition which would
distinguish between the forms of differentiation which are permissible
and those which they term discrimination and separation.
After repeating the definition of the alleged norm of non-discrimination
or non-separation, as set out in the Reply, IV, at page 493, the Applicants
said. in the verbatim record of 13 May:
"However, the Applicants attach no particular significance
either to tlie designation oto the precise words used in the definition
of the norm and of the international standards having the same
content and scope. What is relevant, and what is essential to an
understanding of the Applicants' case, is the submission that such
international standards and such an international legal norm exist;
that they have been found and declared by those responsible for its
creation as being applicable to Respondent's policies of group REJOINDER OF MR. CROSSKOPF 543
separation in the Territory. Respondent's policy of apartheid,
indeed, has outraged the organized international community to an
extent which has generated its unanimous-but for Kespondcnt
itself-repeated and authoritative use of al1normative processes at
its disposa1 to bring the standards and the legal norm into being.
In view of so indisputable a reality, there is no reasonable basis for
Respondent's deniai that such standards and norm are of uncertain
application to the Territory. Almost any standards or legal norms
have instances of uncertain application, but that fact does not
provide a basis of attack upoii their validity so long as they clearly
cover the phenomena to which they are addressed.
The Applicants have tried to exclude this extraneous issue by
their contention that the minimum content of the norm is the
prohibition of apartheid; that if a norm of non-discrimination or
non-separation exists, it applies, and clearly so, to the policies of
group scparation or apartheid applied by Respondent in the Terri-
tory." (Supra, p.246.)
I may just for cmphaçis repeat two parts of this quotation, Mr.
President. The first isthe following:
".. . the submission that such international standards and such an
international legal norrn exist; that they have been found and
declared by those responsible for its creation as being applicable to
Respondent's policies of group separation in the Territory".
And later in the passage there is the proposition that "the minimum
content of the norm is the prohibition of apartheid". So that, Mr.
President, when analysed, this passage would appear to Say, firstly, that
the organizcd international community haç created a norm and/or
standards which it isnot necessary to define in precise terms because the
organized international community has itçelf declared that this norm
and/or these standards apply to Rcspondent's policies, and indeed that
the organized international community created this norm andlor these
standards specifically for the purpose of rendering Respondent's policies
illegal, so that in effect, Mr. President, there is no longer any norm,
there is just a specific prohibition or, putting it in anothcr way, thcre
is this undefined norm which has been declared applicable to Respon-
dent's policies, by a purely ad hocprocess.
But, Mr. President, the Applicants went even further than that. In a
passage following on the one just quoted they said:
"An analogous consideration likewise should be noted, lest it
confuse the central legal issue under discussion. The Applicantsdo
not rest their case upon the degrec to which the norm-creating
process at work in international Society has been correct or fair in
its appraisal of the incoinpatibility bethveen apartheid as practised
by Respondent and the material welfare of the inhabitants of the
Territory." (Supra, p. 246.)
And later they said in thesame verbatim record:
"Standards relevant to interpretation of legal instruments or
institiitions are not to be attacked as bnsed upon faulty appraisal of
the underlying facts; once the standards are established by the
competent organs, then in the Applicants' view the Court should544 A SOUTH WEST AFRICA
accept them as part of 'the legal given' annot as themselves subject
to judicial redetermination."(Supra, p. 255.)
This argument was illustrated by Applicants' Agent by referring to
Our contention that this Court should make its own determination
whether Kespondent's policies are, as has been alleged in international
circles. based on a concept of racial superiority or racial hatred. Appli-
cants' comment was, in Our submission, iliuminating. Applicants' Agent
said, at page 256, sufra, of the sarne verbatim record, "the Applicants
respectfully disagree", that is, Mr. President, they disagree with our
contention that thisCourt should itself determine whether racial hatred
is the motivating force behind Respondent's policy. With this proposition
the Applicants say they respectfully disagree, and they then continue :
". . . the cornpetent organs have perceived and characterized
Respondent's policies of group separation as based upon a concept
of racial superiority or racial hatred, and have done everything
within their cornpetence to indicate the incompatibility of apartheid
with international standards governing the Mandate and with intcr-
national law itself.
What more could the organized international cornmunity do by
way of characterizing Respondent's policies and practices as
irnpermissible under the Mandate and as illegal under international
law? What more could they have done or said?" (Supra, p. 256.)
And that, Mr. President, is now the central therne of Applicants' case
which they repeat time and again. The therne is that the organized
international community has laid down a norm andlor standards; it is
not necessary to define this norrn and/or standards because the organized
international community has itself declared that they apply to Respon-
dent's policies. In so far as such declaration involves a factual inquiry,
Applicants Say that the organized international community has spoken
the last word about the facts.
In short, Mr. President, the organized international society is, in
Applicants' argument as now presented, legislator, witness, judge, jury,
rolled into one, and itdoes not need any charge sheet because it canvicts
purely by fiat. \mat then, hfr. President, is the role of theCourt in this
process which.App1icants have described to the Court?
Applicants themselves assign the following role to this Court in the
verbatim record of 13 May, where they Say:
"Although the A plicants have no doubt thnt the norm-creating
process was fair aa correct in its evaluatioof the policy complained
of, the Applicants do not ask the Court to Say so. Nor do they
suggest that the Court undertake the task of second-guessing the
competent international organs responsible for the development of
the norm. There is no question of the Court rubber-stamping the
judgments of the competent international organizations, in Respon-
dent's phrase, any more than the Court can properly be expected to
veto such judgments, even though they are explicitly directed ai
conduct complained of in these cases.
If the standards and the legal norrn for which the Applicants
cnntend do exist, as a matter of law, then they should be applied by
the Court as part of its duty to decide thisdispute in accordance
with international law, and in accordance with the international rule
regulating the mandate institution itself."(Supra, p. 246.) REJOl?iDER OF MR. CROSSKOPF
And they said later, filr. President, in the verbatim recordISfMay:
". ..there is a sfructura1 and functional interrelationship between
administrative supervision on the one hand and judicial protection
on the other; that the applicability of criteria in the judicial form
necessarily depends upon and presupposes their formulation in the
administrative organ; that this Court, and nocourt, by reason of the
very nature of the judicial process, has the facilities or the responsi-
bilities to reach judgments, to formulate standards, of the sort which
are uniquely within tlie cornpetence of administrative organs and
which reflect political aiid moral and social considerations of which
they are specially competent to judge and evaluate". (Supra, p. 326.)
So that, Mr. President, summarizing, it would appear that, on the
Applicants' latest theory, the Court has only a limited, ifnot, indeed, an
insignificant, function. Its duty, according to the Appiicants, is to apply
the nom andlor the standards as formulated by the organized inter-
national community. The norm andlor the standards, as we have
attempted to demonstrate, do not consist only of objective legal prin-
ciples,or of one objective legal pri~iciple,which couldbe applied to facts
determined by the Court, but these noms and standards also already
include the determination that Respondent's policies violate the lcgal
principles which are applicable, and the Court is not entitled, in Appli-
cants' phrase, to "second-guess" such a determination.
It follows, hlr. President, that the Court's only function, according to
Applicants, is now to determine whether the administrative organ,
whether the organized international community, has spoken, and then to
record such a fact. Thereafter, in Applicants' view, the organized inter-
national community will take over again.
Once the Court has recorded the facts that the organized international
comrnunity has spoken, the Court will be functus oflcio and on Applicants'
theory the organized international community would once more take
over the future proceçs.
In this regard, Applicants said in the verbatim of xz hlay, at page 232,
supra: ". ..effectuation and implementation of such an adjudication and
declaration {that iç,by the Court] ... evidently would necessitate the
effective functioning of a competent international administrative organ,
vested with powers adequatc to the purposes". So that, the Court once
having spoken, the matter should be returned to the organized inter-
national community togive effect to it.
Consequently, as we have said above, the organized international
community in AppIicants' contention would now combine the functions
of legislature, witness, judge aiid jury, andtthis we should perhaps add,
in view of this last passage, also that of executioner. The Court is inter-
ested only in the mechanical function of signing the warrant. Needless to
say, Mr. President, this insignificant mechanical role which the Appli-
cants now ascribe to the Court, represents a very major change in their
whole case and it is instructive to note how Applicants' views in this
regard have changed.
In the Memorials, Applicanis did not fiilly set out their submissionç
regarding the role to be played by the Court and its relationship with
administrative supervisory organs. However, they clearly contemplated
that the Court would have some sort of a role of judicial supervision.
In this regard they said in the Memorials: SOUTH WEST AFRICA
" Judicial supervision isan indispensable feature of the Mandates
System, since, ifadministrative supervisionshould fail,as in this case,
there is no other rnethod of enforcing the sacred trust which
the mandatory power has assumed on belialf of civilization." (1,
P 91.1
That is the end of that quotation and a further one at the same page
reads: "If the Mandate is in force, judicial supervision must likewise be
in force, since the former is empty without the latter." Of course, Mr.
President, the supervisory role ~hich was then ascribed tothe Court was
tied up with the nature of the finding which the Applicants requested the
Court to make-a finding whch, at that stage, was to the effect that
Respondent's policies amounted, as a fact, to intentional oppression.
Clearly, as long as they ask the Court to make a finding of that sort, they
must contend that the Court would have the capacity to make such a
finding. However, ifthe Court's only function is to ascertain whether, in
fact, the administrative supervisory authorities have condemned a
particular policy and if the Court were then to be asked only to declare
that such a condemnntion has occurred, it is difficult to see how such a
function could be appropriately described as involving supervisio~i of
any sort at al].One can hardly imagine that a function of that sort can be
supervisory in ans sense of the ~vord;i.e., if the Court were only tohave
regard to what has been said by the administrative organs and then only
to declare that that has been said. And also, of course, one does not
appreciate how such a function of the Court could l~eof any importance
and 1quote ". ..ifadministrative supervisionshould fail .. .", which was
what Applicants said at that stage, Moreover, it is difficult to see why
such a function should be an indispensable feature of the system or why
the Mandate should be empty without it. Ifthe Court's function is a
purely mechanical one of this nature, a purely forma1 one, why then
should the hfaiidate be empty vith ho i? Why shouId it be an indispens-
able feature of the system? Exactly the sarne effect could, in Our sub-
mission, have been achieved simply by the direct method of rendering
pronouncement of administrative supervisory aüthorities binding upon
the Mandatory in the same way as Orders of Court. If that were the
pusition, then one would not have had to go to court at all; and that
would certainly have been a preferabIe course than to give the Court
powers which amount only tothe function of recordingwhether something
has or has not been said by administrative organs.
That then, hlr. President, was the position as it existed in the Rlemo-
rials. The whole question as to the function to be exercised by the Court
and its relationship with administrative supervisory organs has, however,
more pertinency as the result of the. Preliminary Objections. In their
Observations the Applicants were at pains to emphasize the important
role played bjr the Court and, of course, this emphasis was part of the
argument which they employed towards persuading the Court that the
compromissory claiise must have survived. Prior to this approach,
Applicants stated esplicitly that the compromissory clause could clearly
exist in the absence of any supervisory authority at al1and consequently,
of course, that this Court could exercise its functions even if there werc
no supervisory administrative authority rttall.
Thus they Say, in tIieir Observations:
"Respondent does not appear to make the argument that because, REJOINDER OF MR. GROSSKOPF 547
in its opinion, Article 6 is not in force, Article 7 is not in force.
Indeed, sucli an argument would be uiitenable." (1, p. 428.)
There, Applicants said it would be untenable to argue that because
administrative supervision had lapsed therefore the functions of the
Court would nlso have ceased. It was ari argument which they then
considered to be entirely untenable. Nevertheless this would appear to be
exactly the effect of tfieir present argument, at any rate, as far as alleged
violations of Article 2 are concerned. As regards such allegatioiis, they
now say that the Court must depend on the judgments which the ad-
ministrative organs have already pronounced.
In a later passage in their Observations Applicants showed a specific
contemplation of the possibility that the Court might be asked to come
to a different finding than that reached by the administrative super-
visory authorities. The Court wiIIrecall that that sort of problem was
considered quite estensively at the Prcliminary Objection stage. The
question was then aslted what would happen, for instance, if a Mernber
of the League were to bring an action ngainst the mandatory in respect
of a matter on whicli the Council had already expressed an opinion?
And, in terms of Applicants' present aigument, such a problem \vould,
of course, present no difficulty at all. In terrns of the present argument,
once the organized international community had spoken, this Court
would bcbound by it, so that in that hypothetical case which exercised
the minds of the Parties and the Court at the Preliminary Objection
stage, if another AIember of the League were to come to Court after the
Council had saiictioried certain conduct, there would have been no
problern. The Court nrould simply have had to say "We are obliged to
apply the law as declared by the Council, by the organized international
community". But that, of course, was not the answcr which Applicants
gave in 1962. At that stage it suited them to ascribe a much wider
significance to the functions exerçised by the Court. Then they said in
their Observations :
"Respondent expresses concern that hypothetically a Mandatory
might 'sntisïy' the Mandates Commission, yet be attacked judicially
on the sarne point. This argument inerely underlines the importance
of judicial jurisdiction in order to obviate unresolved disputes be-
tween the illandatory, on the one hand, and member States on the
other. If the Jlandatory's position in such a dispute were to be based
upon dccisions or policies of the Council and Commission, the Court
would no douht give due weight to such a record." (1,p. 461.)
At that stage, hIr. President,the Applicants said the Court would onIy
give due weight to such a record. According to the present argument the
Court must nttnch decisive significance to such a record and may not
depart from any such decision or finding or policy expressed by the
Council and Commission.
So that, at that stage, no suggestion was made that any binding
standards were laid down by administrative supervisory organs. Tndeed,
the standards which the Applicants relied upon at that stage were of
quite a different order and arose in quite a different way. Then they
said, in their Observations :
"Article 7 empowers the Court to adjudicate cases relating to the
interpretation and application ofal1of the provisions of the Mandate;
itmakes no distinction between Article z and other Articles. While REJOINDER OF MR. GROSSKOPF 549
The norm with which we are concerned at the moment was introduced
in the Reply. By its terms, and according to its definition, it entailed
an absolute prohibition on the differentialailotment of rights, burdens,
obligations, etc., on the basis of group or class or race. As we showed,
this leads to ridiculous results and consequently various attempts were
made by Applicants to define the norm in terms which would exclude
such ridiculous consequences. However, Nr. President. these attempts
at definitions, as1 sought to show yesterday, invariably failed and as a
last resort Applicants have now abandoned their attempts to dehe the
norm, and now they contend that the norm, although undefined, exists
and that it is applicable, so that now its applicability to the case before
the Court depends not upon its definition and an application of such defi-
nition to facts established to the Court's satisfactionbut purely on the
basis that the norm has allegedly been declared applicable by the
organized international community.
This attitude, Mr. President, is in sharp contrast to the attitude
expressed by Applicants earlier, and in this regard 1 should, with the
Court's permission, like to refer to a passage which 1 did not quote
yesterday and which, in my submission, clearly points to the contrast
between the attitude adopted earlier, the approach adopted earlier, and
the submissions xvhich are now presented to the Court. The passage
occurred during the argument on the inspection application and one
can find it in the verbatim record of3 May. It reads aç foilows:
"The Applicants are aware that the nature, scope and content of
such an international legal norm and international standards muçt
be defined by them to the satisfaction of the Court iftheir sub-
missions are to prevail. The argument is still in progress on legal
issiles, Mr. President, in which the Applicants are anxious to
address thernselves to these very questions and this phase of the
proceedings has been suspended by reason of Kespondent's injection
for the proposa1 of inspection. The Applicants accordingly confront
some difficulty in addressing themselves to Kespondent's query for
clarification concerning the nature, scope and the content of the
international legal norm aiid the international standards, for which
the Applicants contend." (Sztfirap. gr.)
So that even at the çtagc of the inspection proposal, Mr. President,
the Applicants expressly acknowledged that itwas encumbent upon them
to define the nature, the scope and the content ofthis international legal
norm and the international standards to the satisfaction of the Court if
their submissions were to prevail; and they then clearly indicated that
they were stiii busy with that ptocess of definition. However, AIr.Presi-
dent, uTehave now reached the stage where these attempts have been
abandoned; there is no attempt any more to define the nom in general
terms at al1, and the only contention which the Applicants put before
the Court is that the applicability of the norm has already been decided
by the organized international community, and that this Court is bound
by such decision.
Ry the same stages in which the content of the nom was changed,
as I have indicated, the AppIicants necessarily enhanced the significance
of United Nations resolutions. In their first pleadings these resoIutions
were relied upon as showing that negotiations had taken place between
the Parties, that there existed a dispute between the Parties and that5.50 SOUTH WEST AFRICA
such dispute could not be solved by iiegotiation. In the Keply stage these
resolutions were said to constitute authority entitled to great weight.
Now,however, Mr. President, we have reached the stage where theyhave
been upgraded to the position where they posçess normative capacities,
ivhere these resolutions establish legal norms, or IegaI standards, which
are binding upon the Court.They are not only authority but are actually
binding rules from which the Court, as Applicants contend, would not
be entitled to depart.
These arguments naturally led to the question as to what the role of
the Court would now be, and our submission is that the role which the
Applicants now assign tothe Court, is that of rnerely recording what the
organized international community has already decided. It merely
records thnt a norm of undefined content has.been created, and that
such norrn has been declared applicable to the circumstances of the
Territory. And then Applicants say that after that the Court is funct~s
oficio and the organized international community must take over again.
Just before the adjournment yesterday 1 was showing that thiç
conception of the Court's function was entirely different from that
previously contended for. 1 pointed out that in the Mernorials and inthe
Observations no suggestion was made that where the Council had ruled
upon a particular matter that would be decisive. The Court wiIl recall
that that formed the subject of some debate duririg the Preliminary
Objections proceedings. Also, 1 showed that the standards which the
Applicants relied upon at that strige were entirely different ones. They
were standards which were said to be contained in the Charter and in
the Covenant. They were said to be a distillationofa century of colonial
esperience, and were standards said to be existent as at the stage when
the Mandate was conferred. They were not the present standards, ïvhich
are said to have arisen subsequently.
1 also showed that in the Jfernorials the Court's function was described
as one of supervision, and that this supervisory function was said to be
an essential part of the Mandate. Rut hlr, President, that could hardly
be said of the function which is now being attributcd to the Court.
AIso in the Observations, in keeping with the relütionship suggested
then by the Applicants as existing between the administrative super-
visory organs and the Court, Applicants still emphasized that the Court's
funct~on was essentially a supervisory one, and they still ernphasized
that that was an essential part of the Mandate and an essential function
for the Court to perform. Thus they said, inter aiia,the Respondent's
contention, and I quote from the Observations at 1, page 440, ". . . mis-
conceives the purposes of Article 7 and the importance of judicial super-
vision in the scheme of the hlandntes System ...".
And,later in the Observations, at page 443, they said the following:
"Administrative and judicial supervison of the Mandatory by the
international community, as hss been noted by Applicants, is a
key feature of the Mandates System. It represents the 'securities for
the performance of this trust' required under Article 22 of the
Covenant of the League of Nations. Secessarily, the framers of the
Mandates System entnisted such supervision to the appropriate
international institutions created at the time the System itself was
devised. Thus administrative supervision was entrusted to the Leagire
ofNations and judicial supervision was entrusted to the Permanent
Court of International Justice. The judicial supervision was to be REJOINDER OF MR. GROSSKOPF 5s
accomplished through the invocation of the con~promissory clause
of the Mandate instruments by States whicli had become Rlembers
of tlieorganized international community by joining the League ..."
Again, &Ir. President, the ernphasis is on supervision as an essential
part of the Mandate, and the sarne feature can be found in the Obser-
vations at 1,pages 458 to 459 and at page 471. This whole concept of
juclicial supervision was also defended and argued in the 1962 Oral
Yroceedings. At page 324 (VIL) of the Oral Proceedings Applicants said:
"Counsel stresses the fact that the League Covenant makes no
explicit mention of judicial supervision over the Alandate. That
is true, but he draws the conclusion that thereforitis, in his words,
'unlikely' that 'Artic7eof the Mandate was intended to establish a
form of judicial supervision'. Rut, as we atternptto show, at pag49
to 55 of our Observations, judicial and schoInrIy authority combine
to refute this inference."
Again, hir. President, this theme, whichin the early stages was found
in the whole of Applicants' argument, that one has a system of judicial
supervision which necessarily, of course, implies some considerable
power, or authoritjr, or jurisdiction, on the part of the Court.
But even in the Reply, hlr. President, the Applicants did not advance
the contention that binding norms and/or standards could be laid down
by the organized international community. Even in the Reply they did
not seek to reduce the Court's function to a rnerely mechanical one as
they have now done.
l'hen, again, turning their minds to the bearing of decisions of the
administrative supervisory organs on the Court's function, the Applicants
said :
"Respondent argues also that ifits obligations toward the inhabi-
tants were covered by the clause [that ithe compromissory clause].
the Permanent Court would have been in a position to overrule
decisions of the Council approving the manner in which the hlan-
datory performed its obligations; the drafters could not have
intended this result. This also begs the issue. It assumes that the
obligations of the Mandatory were not legal in nature, hence that
they were for the Council to decide rather than for the Court."
(IV,P. 545-1
This argument, ïvhich had been raised before Applicants Say, "begs the
issue becaiise it assumes that the obligations of the Mandatory were not
legal in nature, hence thnt they were for the Council to decide rather
than for the Court".
Now, as we noted in the Rejoinder, Mr. President, inV, page 96,this
line of reasoning is not particuiarly clear. One does not understand
exactly wliat the Applicants mean by it. Itmay be read as suggestlng
that since the Respondent's obligations were legal in nature, therefore
onlv the Court and not the Council could decide disputes arising from
such obligations. That isa possible reading, in our submission, of this
passage. On the other hand, it may be read as suggesting that the legal
natiire ofthe obligations necessarily entailecl that the Court should be
entitled to overrule a decisionofthe Council on allegations of violations
ofsuch obligations.In one rirayor anoiher, the Applicants sought to
attach importance to the fact that the obligations wereof a legal nature,
and the fact that they were of a legai nature, in their submission, gave53 SOUTH WEST AFRICA
the Court some function; either a function of alone deciding whether
there had been a violation or else, on an alternative reading of this
passage, the function of overruling the Council if and when the Court
thought that the Council had made a mistake. But, Rlr. Yresident, the
important point for present purposes is that whichever of these two
constructions may be correct, this passage is in direct conflict with the
contention now advanced, nmncly not only that the Council was em-
powered to decide upon alleged violations of the Mandate, but that its
decisions created standards binding upon the Mandatory and the Court.
The attitude in the Reply was that the Court must eitlier be entitled or
able to overrule the Council or, alternatively, that it alone can decide.
Whichever of those two meanings was intended by the Applicants, they
certainly did not Say, and neither ofthese meanings would be compatible
with any contention, that the Council was empowered not only to decide
but finally to lay clown binding standards from which the Court would
not be able to depart under any circumstances. Certainly that contention
would be entirelp inconsistent witli this passage from the Reply.
NOW,in consonance with the quotation I have just given the Court,
Applicants, in the Reply, also suggested a wide field of material froin
which the Court could derive standards or bases for adjudicating on
alleged violations of Articlez (2). In tlus regard they said:
". . . courts have found no dificulty in dealing with political,
economic or humanitarian issues. even den formulated in general
terrns.
When passing upon issucs of this character, courts-both inter-
national and tiationai-customarily apply knowledge extracteci from
expericnce, from social, physical and political sciences, and from
al1 other sources from which man derives guidance in the conduct
of his life and rclationships witli others.
... international tribunals have often derived their judgments from
sources, and upon the basis of considerations, which Respondent
would characterize as 'social,ethnological, economic and political'."
(IV, P.485.)
And also in the Reply they said:
"It is, of course, in the highcst traditions of courts in al1civilized
systems to draw upon humane, moral and political standards in
deriving the sources of law." (Ibid.,p. 487.)
If 1 may quote one further passage from the Reply, Applicants listed
what they called "relevant evidence" in support of a proposition "That
Respondent's poIicy and practice of apartheid fails to promote the well-
being and social progress of the inhabitants". (Ibid., p. 277.)
The evidence which they listed, and which they presented to the Court
in support of such a proposition, consisted of four categories, including
the judgrnents of qualified perçons, the officia1views of governments in
al1 parts of the world, and "espressed, inter alia,through the United
Nations, .. .as well as through findings and resolutions of the United
Nations itsel". (Ibid.) Further evidence adduced by them included the
weight of scientific authority and the history and character of homeIands.
Now, Mr. President,in this regard we wish to place particular emphasis
on the fact that these official views of governments, which they said
were "expressed, interalia, through the United Nations, as well as
through findings and resolutions of the United Nations itself ", that REJOIXDER OF hlB. GROSSKOPF 553
these views were theii not regarded as laying down standards which
svere bi~iding upoii the Court or norms from which the Court could
never depart, even though the Court might feel that they are wrong.
Then al1this was adduced only in support nntl only as relevant evidence
for, the proposition that Respondent's policy and practice of apartheid
fails to promote the well-being and social progrcss of the inhabitants.
What was then purely evidence lias now, in Applicants' submission.
become tlie sources or the manifestations of binding standards and
norms, and 1 have already rcferred to the lurther submission prcsented
in the Reply to the effect that the resolutions of the United Nations, its
organs and agencies, were merelÿ authority possessing great weight.
In sum, thereforc, Mr. President, in the Keply the Applicants were
still concerned to offer the Court a wide scope of enquiry. They invited
the Court to have regard to a \vide range of topics in deciding the case
before it, and, hIr. President, this attitude persisted even up to thc
Oral Yroceedings. In their main argument-in their first argument-
in these Oral Proceedings Applicants contended that the Court was
intended to exercise a type of review jurisdiction-that was the word
they usecl-and thcy likened it to the activities of tribunals applying
the minimum international standards to the treatrnent of aliens; they
also compared it to the activities of the Permanent Court in regard to
the minorities treaties, and to the Court's position in regard to the
International Labour Organisation Constitution and the Conventions.
I may in this regard refer to the verbatim record of 24 March, VIII,
page 240, where the Applicants, when describi~ig the function which
they sub~nitted the Court should exercise, said the following:
"The concept of judicjal review of international obligations was
fnmiliar to the founders of the mandates system. One illustration
arnong rnnny is to be found in the area of State responsibility for
denial of justice.
This legal doctrine oftenhad been applied to policies and practices
of execiitivc and legislative authorities, as weIl as to decisions of
judicial tribunals.
Inasmuch as the doctrine of dcnial of justice applies to treatrnent
of aliens, international statal responsibilities often are involved in
the application of the doctrine. International judicial review of
governmental policies and actions with respect to alienç involves
consiclerations of law and justiciability analogous in important
a respects to governmental policies and practices affecting inhabitants
of mandated territories."
And also as regards minorities, reference rnay be made to the same
verbatim record at page 241 and as regards the International Labour
Organisation to the same verbatim record, at page 242.
After referring to al1 these examples, Applicants summarized their
contentions regnrding the role assigned to the Court and the basis upon
which the Court should adjudicate the disputes now before it in the
following words :
"In the premise then, Mr. President, it is not at al1 surprising,
giving the numerous examples and wide kno\vledge and acceptance
of the principle of international judicial review of governmental
policies, including those encompassing political, economic and tech-
nical aspects, that the authors of the mandates system, not only SOUTH WEST AFRXCA
should have bestowed a like power upon the Permanent Court,
butthat they did sowithout objection and even without discussion."
(VIII,p. 243.)
Sow, Mr. President, it hardly needs argument to show that this
function of judicial reviexvwhich the Applicants attributed to the Court
at the inception of thcse Oral Yroceedings has nothing in cornmon with
the function which they now assign to it,of mereiy recording condem-
nations by the organized international community and nothing more.
As to the sources which the Applicants contended should be applied
in exercising such a power of review, they also on the very first day of
the argument cited the Browa case in the United States of America
and other authorities as-
". . confirming that the judicial process in civil law systems, as
well as other syçtems, draws upon humane, moral, political and
scientific standards as sources of law, and does so particularly
where legai rights and dutieç are broadly forinulated"(Ibid p.,19.)
Later they said:
"It is our submission, Rh-. President, that Respondent's legal
obligations under Article 2,paragraph 2, of the Mandate, are to
be measured by legal norrns which are deriveci, interalla, from
political, social and scientific sources and standards. This is the
correct relationshipin the concepts of standard and norm, in the
appreciation of the Applicants.
Among such sources of legal noms are the standards established
by competent organs of the United Nations and by the International
Labour Organisation.
As 1 have pointed out, the Applicants likewise rely upon the
views of authorities, induding those of governrnents, of social and
poIitical scientists and other experts, as and among the sources
contributing to and illuminative of the generally accepted inter-
national human rights norm ..." (Ibid., pp.259-260.)
The point to be emphasized here, hlr. Preçident, is that the standards
established by the competent organs of the United Nations are here
included in a whole mass of material from al1 of which the Court waç
then açked to derive sources for its judgrnent.
In an earlier refercnce, in the same verbatim, the AppIicants said:
"The Applicants conceive that legal principles and legal rlorrns
arc based upon, and reflect,human expericnce and the human
condition. In the celebrated maxim: 'experience is the life of the
law.'
Thestandards rcferred to in the Reply are of course ofa political,
moral and scientific character. They are set out with nuinerous
illustrativeexamples in the Reply, in the following contcxts."
(VI11 p9.237.)
Applicants then proceed to refer to views of govemments and to
contemporary scientific nuthority, The point here again we wish to
emphasize is that the standards in Applicants' submission were, of
course, of a political, moral and scientific charncter.
NOW,Mr. President, in the light of the above propositions, and in the
light of the Applicants' case thus presented, we submitted that the
Applicants had made it clear- REJOISDER OF MR. GROSSKOPF 555
".. . that, when they speak of standards in that regard, they
derive those standards from the spheres of the political and social
sciences-from the weight of scientific authority, from the practices
of governments and frorn the standards currently operative in
modern socicty in regard to methods of government, fairness, equity
and so forth .. .".(Supra, p. 102.)
That, Mr. President, is how we u~icterstood their case, and 1 submit
that that is what their case actually was.
Now Applicants no longer want the Court to venture on to al1 these
terrains, they only want the Court to give effect to the judgment and
the condemnation already reached and given by the organized inter-
national community. Consequently, they 110 longer agree with this
summary of what we said the argunient was. The now say:
"Such a misunderstanding of the Applicants' position arises from
a confusion between the evidence used to demonstrate the existence
of standards and the content of the standards themselves. ... Theo-
ries of experts and views of governments are indicative of the social
facts which give rise to the standards but they do not constitute
the standards themselves." (Supra,p. 260.)
Now, hlr. President, what is the explanation of this change of attitude
on the Applicants' part? In Our submiçsion it may well lie, inter alia,
in the following passage in our argument, which Ive presented to the
Court on the application for the inspection, where we contended that if
Applicants wished to avoid a factual enquiry, Applicants' Agent would-
"... have to make clear ... that in support of his norm he no longer
relies upon what he calls the 'overwhelming weight of scientific
authority', because that is an aspect upon which again,. ..there
isa vital dispute of fact between the Parties on the record as to
what is the overwhehing weight of scientific authority in this
regard". (Su+ra,p. 81.)
hlr. President, we pertinently drew attention to the fact that AppIicants
could not rely upon noms having a factual basis or being derived from
factual material unless they were prepared to enter into a consideration
and an examination of the facts.
We continued to say:
"If my learned friend relies on factual justification for his norm,
then obviously we would like to bring in that evidence on Our side
and that evidence may well be very vitally illustrated by examples
and by what one can see in South West Africa and in other parts
of Africa." (Szt+ra,p.81.)
Mr. President, pointing out that featurc to the Applicants may well
have been one of the reaons why they have now discarded al1this other
material as sources of the norm and standards.
In addition, of course, once the Applicantscontend that the norm and
standards need not be defined because they have been declared applicable
by the organized international community-once that becomes their
attitude in order to escape the difficulties of definition, then they are
obviously also forced to the contention that the organized international
community can in law lay down Iegally binding standards. The one
necesçarily involves the other, and that contention again logically leads556 SOUTH WEST AFRICA
to the position that there would be no necessity. and that there would
even be no justification,for Iooking at any other possible sources of the
nom or standards. If the organized international community can say
the last word,' and if its judgments are final and decisive, then clearly
the Applicants are forced to the position that nothing else isrelevant;
that one does not have to have regard to anything else, and that al1
other sources or norms or standards, that al1 this other material which
they invited the Court to Iiave regard to, becomes entirely irrelevnnt.
It is interesting to note, Mr. President, that by this circuitous route,
which 1 have sketched above, the Applicants have now substantially
reached the sarne conclusion as that consistently contended for by
Respondent, namely that this Court was not intended to adjudicate at
al1 on alleged violations of Article 2 (2) of the Mandate. They now
use words and express themselves in ways whicli arealmost identical to
what we have been saying al1 along. 1 may refer to a passage in the
verbatim record of 17 May, the Applicants Say:
"For if the Respondent isupheld in its claimof inherent discretion
of a breadth foruphichRespondent contendç, or appears to contend,
the only way the Court could pass judgment on asserted breach of
Article 2, paragraph 2, would be to make a choice between the
Respondent's conception of well-being, moral and material well-
being and social progress, and that of the Court's.
Such a decision, whatever the outcome, could tiot rest upon
authoritative or objective criteria. lt would not possess the juridical
attributes properly to be associated with the tradition of this
honourable Court." (Supra. p. 299.)
Imay Say,of course, Xlr. Prcsident, that the gloss or the interpretation
which the Applicants place upon our argument is entirely errorieous.
As my learned senior pointed out yesterday, our contention involves
quite different considerations altogether, but the point 1 wish to em-
phasize is that Applicants now concede that to mnke a choice between the
Respondent's conception of moral and material well-being and social
progreçs, and that of the Court's, is not a function which a court can
assume; that "Such a decision, whatever the outcome, could not rest upon
authoritative or objective criteria" (in their words), and that such a
decision, such a comparison between the Court's conception ofwell-being
andRespondent's conception of welI-being"would not possess the juridical
attributes properly to be associated with the tradition of this honourable
Court". This is a contention, of course, Mr. Prcsident, which we have
advanced al1 1 ,but it iinteresting to note that Applicants thcmselves
have now reacaeOn,!the same situation and the sarne position.
Later. Rlr. President, they contended in the verbatim record of
18 May:
"... that this Court, and no court, by reason of the very nature oi
the judicial process, has the facilities or the responsibiIities to reach
judgments, to formulate standards, of the sort which are uniquely
within the competence of administrative organs and whicli reflect
political and moral and social considerationç of which they are
specially competent to judge and evaluate." (Supra, p.326.)
Mr. President, 1 would ernphasize their contention that it is especially
within the competence of administrative organs and not the Court's to REJOINDEK OF ,?IR. GROSSKOPF 557
reach judgments and formulate standards ulhich reflect political, moral
and social considerations.
Now, th attitude stands jisharp contrast to the attitude adopted in
the Reply, to which reference has been made, and even to the attitude
adopted in the early stages of these Oral Proceedings. 1 would just refer
to one passage in the Reply, IV, at page 485,where the Applicants said
that-
". .. courts have found no difficulty in dealing with political,
economic or humanitarian issues, even when formulated in general
terms".
They "found no difficulty".
At page 491 of the Rcply, TV, the Applicants said:
"The second fa1l:icy is [in Respondent's contention] that, for
reasons i~nexplained, Rcspondcnt appears to açsurne that it is not
as difficult for a political body to deal with a generally sstated
obligation, or with one based upon economic, social or political
considerations, as it iç for a court. Hiiman cspcrience, both in
respect of national and international parliamentary bodies, belies
such an assumption."
In the Replp, courts found it easier to dcal with these things than
administrative bodies. Now, in the oral reply in these procecdings, courts
cannot deai with these at all, only administrative bodies can do it. 1may
also referin this regard, Mr. President, to the separate opinion of Judge
Jessup in 1962 as an indication, not only of the vicw held by the learned
Judge, but alsq of the light in whjch he ssw i\pplicnnts' case as then
formulated, particularly for the latter purpose. He said, at page 429 of
the I.C.J. Refiorts1962 :
"There is no reason why this Court should be unable to determine
whether various laws and regulationç promote the 'material and
moral well-being and the social progresç of the inhabitants' of the
mandated territory.
If courts can pass on such questions, there is no reason ïvhy two
governments should not diçcuss them (and such discussion would
constitute a negotiation) and reach agreement that the measures
were improper; or that the deficiencies allegcd to exist were not
established; or failing agreement, resort to thiç Court."
Herc is aclear indication, Mr. President, of the light in which the Appli-
cants' argument was seen and the view held by the learned Judge as to
the issues which were then before the Court.
Now, Mr. President, these various contrasts in attitudes are not shoivn
for any derogatory purpose, theyare in fact, in Oursubmission, significant
as emphasizing that the Applicants no longer rely on any supervisory
function or any right of review which should be esercised by the Court,
and, indeed, that they tiow concede that such a function or such a power
could not have been intcnded for the Court. They now concede that the
Court was not intcnded and would not have becn intended to erercise
such a power.
It wouId follow that if their contentions ivere norv taken to their
logicnl conclusion, the only basis on which the authors of the Mandate
could have inter~ded the Court to adjudicate on alleged violations of
ArticIe 2 (2)would be if the League organs were empowered to lay down558 SOUTH WEST AFRICA
legislative standardsor norrns binding on thc mandatories and the Court.
If I may arnplify that for a moment, Mr. President, their case now is,
apparently, that a court has no general power, no general functioii to
consider and weigh up humaiiitarian, social, political, economic factors
in order to corne to a decision thereon. They Say that the Court cannot
express a view asto wliat cloesor does not prornote well-being and pro-
gress. All that the Court can do, they say, is to give effect to the noms
and the standards, the judgments and the condemnations which have
already been reached by the organized international comrnunity. If
that is the function of the Court wow, then surely that must always
have been the function of tlie Court. And that must also have been the
function of the Court in ~gzo-the function whiçh the authors of the
Mandate must have cansidered or intended the Court to exercise. Tliat,
in turn, necessarily entails that the authors of the Mandate must then
have intended the expressions of view or the expressions of opinion of the
organized international community to be binding on the mandatory
men then, because if they were not binding tlren,ifthe Court did not
have jurisdiction forsuch purpose then,how could the Court's jurisdiction
have been increased in the meanwhile? It is a position which, in our
submission, IogicalIy follows from the attitude which the Applicants now
adopt. It logically follows tliat the Court wouldhave had no jurisdiction
unless the intention was that the supervisory organs, the administrative
supervisory organs could, even in 1920, have laid down binding standards
and binding norrns which would bind the exercise of the Court's function.
If, Mr. President, no such power was intended for the League organs,
if the League organs were not intended to possess pourer to lay down
such binding standards, it follows, in our submission, thatno jurisdiction
as regards breaches of Article z,paragraph 2, was intended for the Court
at all, which, of course,accords of course with Ourmain subrnission on this
point. And, since, as we have already demonstrated and we shall again
show the Court, the legal position was indeed that the League organs
possessed no power to lay down binding standards or binding norrns or
binding interpretations of Articlez, paragraph 2, it clearly follows that
the Court was indeed not intended to possess such a jurisdiction. That,
in Our submission, must necessarily be so, &Ir.President.
As soon as one accepts the position, which wr:submit to be clear, that
the organs of the League were not empowered to lay down such standards
or norms which could bind the Court, as soon as that position içaccepted
and also, in the light of Applicants' admission which they now rnake,
that the Court cannot decide on the facts whcther provisions promote
or do not promote, then what possible jurisdiction could have been
intended for the Court in 1920 as regards Article 2, paragraph z? In
Our submissio~~,none at al]. And ifno jurisdiction as regards Article 2,
paragraph 2,was intendecl asat that stage, how could such jurisdiction
have arisen subsequently? Certainly, Mr. President, not without the
consent of the Party bound thereby, namely the Respondent.
No subsequently arising norms, standards or customs could have
altercd this basic factThe onty thing that could have effectedanalteration
or a change or an enhancernent of the Court's jurisdiction in that regard
couId have been the consent of the Mandatory and no case whatsoevcr is
made by Applicants on the basis that the Mandatory, that is, the Respon-
dent, ever consented to accept an increased obligation or ever consented
to an increased jurisdiction of tliat sort. REJOih'DDR OF 3IR.GROSSKOPF 559
Now, in conclusion, Mr. Presidcnt, to summarize briefly what 1 have
said, the Applicants commenced with a case based upon deliberate
oppression. After reccipt of the Counter-Memorial, they realized that
tliey could not succeed on that basis, or on any other basis which would
involve an independent enquiry by the Court as to the circumstances in
South West Africa and, p:irticularly, as to the circumstanceç in South
West Africa compared with those in other territories iiiAfrica, so that,
by degrees, they abandoned these charges of deliberate oppression.
First, they went half-way and sought to establish them by some sort
of legal fiction which \vould eliminate the necessity of looking at facts,
but when they saw that that one would not run, they abandoned the
chargc altogether. So that, consequently, by dcgrees and as a result of
practical necessity, the AppIicants urere forced brick on to their norms
andstandards. However, difficulties in defining these norms and standards
so as,on the one hand, to avoid a factual enquiry but, on the other hand,
to exclude unassailable forms of officia1differentiation, have now forced
them to the contention that they need not define the norms and stan-
dards-that the organized international community has not only estab-
lislied the norm but declared it applicable to the circumstances of
South West Africa.
This contention entails, of course, that there is,at the moment, no
definition of the norm. The definition which the Applicants said, during
the inspection proposal, that they were obliged to furnish in order to
establish their case, has not been forthcoming. Al1 that there is, is a
gerieral formulation which applies to a \vide variety of subjects, çomc of
which are entirely unassailable on any basis and then, in addition,
certain exceptions conccded by the Applicants which they explain on an
ad hoc basis without, hoivever, taking them out of the \vide arnbit of the
norrn. Therefore the net effcct, &Ir.President, is that wc really have no
proper definition of the norm. And the only basis on which it can be
dcclared applicable, the only basis on rvhich they seek to declare it
applicable to South West Africa, isto say that it has been declared so by
the organized international community.
Following on this change of the content of the norm, Applicants
naturally also were obliged to Iimit the sources frorn which the norm and
standards are sought to be derived, and such limitation of sources also
serves the useful purpose for them of eliminatin any factual enquiry
which might have been required for proper consi eration of the sources
originally relied upon. The wide field, the wide nature, the wide class of
sources which they originaliy suggested, has now fallen by the wayside.
In conclusion, >Ir. President, 1 might just Say that the purpose of this
argument is not to criticize the Applicants or their lepl representatives
or to be derogatory in any other sense; the purpose is purely to show the
bearing of al1 this on the merits of the Applicants' argument as now
advanced. It must, in our submission, be unique, Mr. President, in the
annals of this Court that an Applicant has, at so late a stage as its oral
repIy, raised and propounded and advanced an entirely new case to
this Court. Ifthat is not unique, Mr. President, they must at least have
set a new precedent by presenting a new case cvery timc they expressed
themsclvcs-firstly in the hfemorials, then in the Reply, thcn in their
oral statements and then in their oral reply-a new case on basic aspects
each tirne.
IVhere, aswe shall show in more detail later, their case now rests largely SOUTH WEST AFRICA
560
on international custom, it is, in our submission, at least worthy of
comment that it ha. taken them five years and four expressions of view,
before they decided to back this particular horse. It has taken tlicrnfive
years to realize that this international custom, tliis consensus, of which
they speak with such enthusiasm now, exists. If it exists, the Courtmay
well ask why did not the Applicants realize itearlier? \$%y do they only
present it now? And also, Mr. President, it rnust be significant,in our
submission, that these changes in their cases, this raising of a new case
at the very last stage of the Oral Proceedings, was occasioned not by a
new insight or a new view or a new idea which the Applicaiits have
suddenly obtained, but that, as I have showri, these various changes and
this final change culminating in the amendment of their submissions,
have been induced only by considerations of expediency; that it has been
only for practicaI reasons, for practical reasonsof drafting, of dcfinition
and of truth, that they have been forced to change theircase to this very
narrow basis on which they now rest.
I thank you, Mr. President, rny learned senior will continue. 19. REJOINDER OF MR. DE VILLIERS
COUIU'SELFORTHE GOVERNMENT OF SOUTH AFIiICA AT THE PUBLIC HEARINGS
OF 10-15 JUNE 1965
Alr. President, honourable hlernbers of the Court, befor1 proceed to a
more detailed consideration of the merits of the Applicants' case as now
advanced, there are, 1 am afraid, certain further aspects of analysis
which have still to be put to the Court. 1am afraid it is a long drawn-out
process aiid parts of it may be tedious but it seems to us to be absolutely
necessary, in the circumstances which have aris.cn, where, as rnylearned
friend, Rlr. Grosskopf, has just stressed to the Court again, we are faced
with a substantially new case-one which developed by degrees from
something else which was earlier before the Court. It is necessary,
therefore, to obtain absolute clarity as to what this case now is and
what it is not.
1 promised, in that respect, in my opening addrcss to the Court on
Tuesday, to lurnish references to the record which rnake it perfcctly clear
that the Applicants now rest their case onty on the contentions in regard
to an allcged norm and/or standards, and that they do not bring a case
on either of the oniy turo alternative possible cases that could have been
brought on the basis of Articl2, paragraph 2,of the Mandate-the only
tirloother possibilities that havbeen mentioned in the discussions at al],
narnely either a case on the basis of purpose or on the basis of the
effccts of the Mandatory's policies.
We have already drawn the Court's attention to the Applicants
formal Submissions, numbers 3 and 4, as they are now reformulated and
redefined. My Icarned friend, Mr. Grosskopf, read them again to the
Court yestcrday and I do not intcnd to rcad them out to the Court in
detail now, but I shouId like to refer to certain salient aspects of thc
wording as itnow stands as distinct from what the wording was before.
The originai wording of Submission No. 3, the Court will recall, in
both cases contained a reference to "the respects set forth in Chapter V
of this Mernorial and summarized in Pnragraphs 189 and 190 thereof ...".
Those were the words of Submission No. 3. And then in Subrnission No.4
we found something sirnilar, aithough not identical, "by virtue of ...
[various] policies..., which are describcd in detail in Chapter V of this
Mernorial and summarized at Paragraph rgo thereof ...". In both
cases, these words 1 have quoted have now been omitted from the
reformu1atcd submissions. As Submission No. 3 is reforrnulated, it now
said that Respondcnt, "by laws and regulations and official methods
and measures which are set out in the plcaclings herein has practised
apartheid. ..". And then there jsa definition of apartheid, concurring
entirely with the content of the norm and of the standards noiu relied
upon. In other words, it reads ". ..i.e., has distinguished as to race,
colour,national or tribal origin in establishing the rights and dutiethef
inhabitants of the Territorv", making it clear, &Ir.President, that that
is the sole basis upon which this adjudication is now asked for.
It is significant, 1 might point out, with respect, that in this context
the e'rpreçsion apartheid itself has now changed itssignificance.It was562 SOUTH WEST AFRICA
formerly defined in consonance with the Applicants' case as it was appar-
ently then seen. It was defined in the Rlemorials in terms bvhichattributed
deiiberate oppression to the Rlandatory government. It is now formulated
in terms which relate only to one aspect, viz.,to the allotment of rights
and obligations, privileges, and burdens, on the basis of mernbership in a
race, group or class.
So that position has been maGe clear even by the wording, quite apart
from the official explariation which followed and which ernphasizcd that
aspect.
Again, in Submission No. 4, where forrnerly the reference was to
"the economic, political, social and educational policies applied within the
Territory", and as more particularlÿ set out in ChapterV and surnmarized
in paragraph 190, we now find omission of the word "the". It is now
"by virtue of economic, political, social and educational policies applied
within the Territory"; and then these words are inserted, "by means of
laws and regulations, and official methods and measures, which are set
out in the pleadings herein"; and then further words are inserted, "has
in the light of applicable international standards or international legal
norm or both failed to prornote to the utmost . . .".
Again, this is wording which is on its face designed to narrow down
the case iiierely to the basis of the standards and thenorm, except that
this wording does not explicitly say which standards or which norrn is
being relied upon.
The Applicants, however, make that explicitly clear in thc forma1
interpretation provided by tliem. 1refertopage 375,supra,of the verbatim
record of 19 May where Applicants provide: "... the following fornial
interpretations and explanatory comments witli respect to the foregoing
submissions .. .". It imade perfectly clear there that ".. . Submission
No. 4is not intended in any manner to suggest an alternative basis upon
which the Applicants make or rest their case other than the basis upon
which the Applicants present in Submission No. 3 itself"; and it is said
further, specifically:"the distinction between the two Submissions 3 and
4 being verbal only, for rcasons wkich have been set out in the cited
section of the verbatim record".
Then, in the next paragraph of this forma1 interpretation and ex-
planatory comment, the norm and the standards referred to in Sub-
mission No. 4 are unmistakably indentified. It is said that "The reference
in Submission 4 to 'applicable international standards or international
legal nom, or both' is intended to refer to such standards and legal
norrn, or both, as described and defined in the Reply at IV, page 493,
and solety and exc1uçiveIy as there described and defined ...".
So, Mr. President, that is made very clear in the re-formulation of the
subrnissions bg itself and reacl with this forma1 interpretation and ex-
planatory note.
Now, the Court will recall that the allegationin the pleadings related
to improper motives, to wrongful intent or purpose on Respondent's part,
to oppressive conduct towards the Natives, anci failure to promote well-
being or progress in any significant degree whatever. We now find that
the submissions as now defined, and particularly in the light of the
significance ofthe amendments as compared with what they referred to
before, make positively clear that the Applicants found their case purely
and exclusively on the basis of the norm and/or the standards, and
negatib'ely, that these earlier bases, or possible bases, of their case, REJOINDER OF MR. DE VILLIERS 563
suggested by the wording of the pleadings, are not relied upon by the
Applicants any more. That is made clear by these submissions and ex-
planatory interpretation or officia1explanation.
But it is made clear also in another way, Mr. President. It is made
clear by specific and explicit statements bearing on both those aspects,
both on the positive aspect that that iç the Applicants' only case, and
on the negative aspect that no case whatsoever is being brought any
longer on the basis of either motives or effect of the policy1 say "any
longer"; that accords with our iitterpretation of what the position was
before, sincc we submit to the Court that there very clearly was a case to
that effect before. The Applicants Say, of course, that in fact their case
has always rested, and has always been intended to reçt, on the norm
and the standards alone, and that they have now only sought to avoid
niisunderstanding by the arnendment of their submissions, coupled with
the explanatory note.
Be that as it may, we find these statements, Ive find them in the
record, and they make that position in our çubmission abundantly clear.
Kow, 1 begin by referring the Court to the verbatim record of Tueçday,
27 April. 1 shall take these in chronological sequence as far as possible.
II 1 remember correctly, this was at the stage of 'debate on the proposa1
for an inspection. At page 17,supra, of the verbatim record for27 April,
my learned friend, Mr. Gross, stated:
"The Applicants' contention that such policies and practices
violate Respondent's obligations in accordance with and pursuant
to the relevant provisions of the Covenant and of the Mandate does
not place at issue Rcspondent's motive or statc of mind and such
submissions do not, explicitly or implicitly, request the Court to
take such motive or state of mind into account, nor to adjudge and
declare with respect thereto. On the coiitrary, as the Applicants
repeatedly have sought to make clear, the basis of their case with
respect to the alleged breaches and abuses of these articles renders
any such considerations irrelevant and foreign to the cause ofaction
truly embodied in their submissions."
Ithardly seems that one could be more explicit in making clear that
the submissions, the contentions, do not rest on any case brought with
rcference to purpose or motive.
At page 20, supra, of that same record we find this:
"The Applicants have made clear that their purpose of setting
forth in considerable detail the facts concerning the measures of
implementation, the laws, regulations, administrative practices-
none of which is in dispute, and ifany is in dispute, the Applicants
do not rely upon them-that these facts, systernatically applied, in
the Applicants' submission, do establish a violation of the inter-
national legal norm, for which the Applicants contend, if the
Applicants' views in that respect are not correct, if the Applicants'
case upon its own theory is not niade, the iesult must be obvious."
That is not what we çaid, Mr, President. That is what the Applicants
said.
Then, at page 23, supra, of that same record of 27 April we read:
"The Applicantç likewise repeat and reaffirm that neither their
Submissions 3 or 4, nor the legal conclusions, which 1 have just
quoted frorn the Memorials, nor any other statements orarguments564 SOUTH WEST AFHlCA
made by Applicants, that neither Submissions 3 or 4,nor the legal
conclusions which flow from the undisputed facts of record, directly
or indirectly, explicitlyor implicitly, place in issue Respondent's
motive, purpose, objectives or state of mincl or tliat of any of
Respondent's officiaisfrom time to time in office."
Even more extensive and explicit, if that were possible, the Applicants
contend at page 28, supya, of that record-
". .. that ali factç relevant or necessary to adjudication upon its
submission are not only in the record of the proceedings but are,
indeed, undisputed. That 1have sought to make clear."
1 proceed to give some quotations (1 could give more but I think ,
these shouId suffice) from the record of the next day, 28 April 1965:
"It is the Applicants' case [my learned friend stated], rightly or
wrongly, that the policy and practices complained ofas a matter of
the international legal norrn, and the universally accepted standards
upon which that legal norm is based and which it reflects, that sucha
policy cannot inliercntly promote the welfare of individual inhab-
itants of the Tcrritorÿ. Any contention to the contrary is an attack
upon the norm itself. Of course it is permissible for the Respondent
to question the validity, existence and content of the legal norm,
that is a principal issue joined in these proceedings. But any con-
ception that would lcad to a doubt or an inference or an assumptioii
that promotion of the welfare and progress of an individual is
compatible with the aliotment of the riglits, burdens, dutics and
privileges, upon the basis of Iiis rnernbershiin a group rather than
iipon hjs quality, merits and potential as an individual person is
irnpermissible, inconsistent and such a policy is repugnant to the
legal norm which we assert covers the situation.
The condition of the individual's health, his happiness, ostensible
happiness, or other factors which are frequently referred to, do not.in
these circumstances, have a rele\lance to the validity and content
of the norm ifit esists, as the Applicants respectfully submit that
it does.
In view of the fact that the practice and policy complained of is
inherentIy incapable of promoting the welfare and progess of the
inhabitants, that it inherently and ter se is repugnant to and
vioIates the international legal norm; this makes it necessary to
conclude that the phraseology 'irrespective of any other steps taken
bv the Mandatory for promoting the welfare of the inhabitants
of the Temtory' does not, in Our respectful analÿsis, have any
bearing." (Sitpra, pp. 45-46.)
If 1 may pause there for a moment, the quotation of the words "irre-
spective of any other steps taken by the hfanclatory forpromoting the
welfare of the inhabitants of the Territory", it will be recalled, uras
taken from a question in thiç regard by the honourable Member of the
Court, Sir Gerald Fitzmaurice, and it was in response to that question
that the Applicants stated that that consideration could not, "in [their]
respectful analysis, have any bearing".
1 proceed with the quotation:
"It [in other words, that phraseology] would seem to rest on the
assumption that considerations of the promotion of the welfare REJOlNDER OF MR. DE VILLIERS
56
of the inhabitants of the Territorymust be and can be evaluated in
some manner other than against the admitted conduct as applied
to the norm contended for."
Again, Mr. President, this makes.it clear in aiiother way how this
"norm contention", as it was then called (the Applicants have since
made it clear that they include standards in that connection), is the only
basis upon which they bring a case-that anything falling outside of
that would not be relevant to thc case at all.
Then at pages 47-48, supra, of that record of 28 April 1965, we find
the following:
"No standard of achievement anywhere in the world woutd be
high enough or low enough, as the case may be, to justify and
estenuate the policy of apartheid, in the Applicants' submission.
'I'heinternationallcgal norm and standards which exist are not
subject to, or conditioned b ,or affected in any manner by,any
question concerning standard s 'f achievement. A contention tothe
contrary does notand connot be asserted in extenuation or explana-
tion of the policy and practice of apartheid. Rights, duties, burdens,
obligations, cannot be allotted on the basis of race, tribe or rnember-
ship in a group, without regard to individual rncrit, capacity or
quality."
The words I want to emphasize, Mr. President, are "the international
legal norm and standards . ..are not subject to",and not "conditioned
by, or affected in any manner by, any question concerning standards of
achievement". In other worcls, resultsalso are foresworn as being the
basis upon which the violation of Article z is said to have occurred.
At page 56 of that record we read:
"The Applicants arc either correct or incorrect, they are either
right or wrong, in thcir submissionswith regard to what the inter-
national Iegal norm applicable to this case stands for, what its
content is."
1 proceed to page 57 of that same record:
"There can be no question of promotion of.welfare that could be
relevant to the practices andpolicies which are complained of and
which are the subject of the undisputed factual content of this.
record."
May I pause, Mr. President? It seems that the Applicants almost came
tu a point of despair in these following words:
"Kow many times is it necessary to repeat that is the hcart and
sou1of the Applicants' case, and if the Applicants are wrong, they
will be told so, of course, by this honourable Court in due course?"
I pause again: that which "is theheartand soiilofthe Applic.mts' case''
is this contention:that "no question of promotion of welfare could be
relevant to the practices and policies lvhich are complained of and which
are the subjectof the undisputed factual content of the record. And the
next sentence in this record makes it clear whÿ that submission is
advanced, because here the Applicants said:
"The Applicants have confidence in the legal propositions upon
which they rest their submissions and will, it goes tvithout saying,
Mr. President, endcavour to clarify those submissions to the fullest566 SOUTH WEST AFH1C.X
extent of their capability to do so. But on the basis of the sub-
missions, as the Applicants intend and respectfully present them-on
the basis of the undisputed facts of this record, the Applicants
respectfully submit, iind accordingly through the Court advise the
Respondent, that the Applicants rest their case upon the proposi-
tions asserted, and that tlie acceptance of these propositions would
make irrelevant, unnecessary, for ail the reasons the Applicantshave
endeavoured to explain, the introduction of fnrther evidence, either
at the seat of the Court or elsewhere ..."
That takes us to the next stage, the record of 30 April,
Mr. President, proceeding then with these extracts from the verbatim
records indicating the scope of the Applicants' case as they themselves
conceived of it and explained it to the Court, 1 refer to the verbatim
record of 30 April, at pages64 and 65, slspra. There they quoted a passage
fro~n our Rejoinder and they stated that it "removes any vestige of
doubt that Respondent clearly understands the basis of the Applicants'
case" {p.64). They yroceeded to quote this passage from the Rejoinder
and the crucial portion of it as it stands in that quotatiorl is found at
page 64 of that record, and it reads as follows:
"If indeed Article z of the Mandate must be read as containing
an absolute prohibition on 'the allotment, by governmental policy
and action, of rights and burdens on the basis of membership in a
"group" ',Applicants would sufficiently establisha violation ofthe
Articie by provingsuch an allotment, irrespective of whether it was
intended to operate, or does in fact operate, for the benefit of the
inhabitants of the Territory."
There again, they were indicating in another way how the issue is now
confined.
Going to the record of 3 May, we read:
". ..Applicants have statcd explicitIy that the ... laws and regula-
tions, the official methods and measures by which they are effectua-
ted, ... constitute a per se violation of the relevant provisions of
the relevant Article of the Mandate. It necessarily follows that the
Court is not requested by the Applicants to pass an adverse 'value
judgrnent' either as to the purpose or as to the effcct or as to both,
of the Respondent's policies in South West Africa." (Sufiru,p. 92.)
Again, Blr.President, one could hardly have itmore explicit.
Then at the same page of that record, the following passage appears:
"If the phrase 'an enquiry whether such a norm js a factually
valid and a justiiîed one' is intended to suggest that the Court
should conduct an enquiry, or hear expert testimony, as to whether
the norm and standards are 'justified', then the Applicants, respect-
fully, diçagree."
1 could quote many more passages, Mr. President. 1 do not want to
overload the record with these quotationç but 1 think they areimportant.
1 have a few more to show that this line waç consistently taken right up
to the end, leading up to the amendrnent of the subrnissions on the final
day, rg May. First 1quote an extract from the verbatim of 12 May:
"It might be desirable at this point to Say that the Applicants
have submitted, and will continue to submit that Respondent's
subjective intent, motive, or purpose, mith regard to its performance REJOINDBH OF %IR. DE VILLIERS 567
of its obligations under the Mandate, are wholly irrelevant factors,
particularly so with regard to Articl2 (z),inasmuch as afier se vioia-
tion of the international legal norm and applicable international
standards is contended for by the Applicants." (Supra, p. 239.)
The verbatim of rj May has some relevant passages. First, there isone
at page 248:
".. .as the Applicants have sought tomake clear repentedly, tliey
do not seek to- establisli improper motives on Respondcni's part ;
they regard the subjective intentions of Respo~ident's officials who
may be in office from time to time as irrelevaiit to the basic legal
proposition presented to this Court by the AppIicants".
Again at page 253 of that verbatim record, fiIr. Yresjdent, there is the
following passage :
"As the Applicants have sought to make clear.. . the Applicants
çuggest that the intentions or purposes of Respondent's oficials,
who rnap be in office frorn time to time, are irrelevant to thequestion
of the legal. . [validity] of the administration of the sacred trust."
Then at the sarne -ag- tve read:
"The Applicantç have ... insisted and do now reaffirrn [their]
insistence that they rcject the good faith test, notwithstanding
Respondent's warniiig that the Applicants cannot Iiope to prevail in
this litigation unless they follow the road indicated by the passage1
have quoted from II,page 391, of the Counter-Mernorial."
Again at page 299 of the verbatim record of 17 1965 it is stated
that :
"The Applicants contend that international standards and an
international legal norm of an apriori character exist whicb provide
authoritative criteria of an objective nature for the interpretation
of Articlez, paragraph z, of the Mandate and of Article 22 of the
Covenant. This theory of the case, if sustained, eliminates eutra-
judicial considerations. It has never been part of the Applicants'
case that the Court make a subjective evaluation of Respondent's
policies of discrimination and separation."
On 14 May in the vcrbatim at page 273, it is stated: "As was said
yesterday, the good faith test in any event is irrelevant legally in the
Applicants' vjew ..."
\lie corne now to the last three days. 1 quote from the verbatim of
17 May, at page 299:
"It has never becn part of the Applicants' case that the Court
make a subjective evnluation of Respondent's policies of discrimina-
tion and separation. "
1 proceed to 19May, the very last day. There are just two passages.
The first is at pag363 of the verbatirn:
"Nevertheless, it is the view of the Applicants that the nature
of their legal theory and the sole basis upon ~vhichit rests. and has
albvays resied from the earliest pleadings to the present time,
renders irrelevant the calling of witnesses or the adducing of other
forms of evidence designed to show the so-called 'actual effects' of
Respondent's policies in the Territory. Factual evidence of this sort
woulcl not, in the Applicants' view, have any relevance to or legal SOUTH WEST AFRICA
bearing upon their submission that apartheid, inherently and fierse,
coiistitutes a violation of the standards or the norm governing the .
interpretation of Article 2, or botli."
And the other is at the same page:
"It suffices here, it would seem, to Say in sumntary form that
Respondent's submissions conceriiing the scope of its discretion, the
realities of good faith and the character of the so-called actual
effects upoii well-being seern to the Applicants to be irrelevant to
an assessment whether international standards andlor legal norms
of yon-discrimination and lion-separation exist, and whether they
govern the obligations of the sncred trust embedded in Article z of
the Mandate. . ."
So, hlr. President, that wvasthe basis upon whicli the Applicants
proceeded to state their submissions and the formal interpretation of the
submissions, in the terms to which 1have already referred, on that same
day, at the conclusion of their argument before they rested their case.
Mr. Yresident, when a party makes it so clear that that ishis case
and nothing else, then however inconsistent that might be with what he
.has said before it would seem that tlie other party, being calIed into
court in order to answer a case made against it, has no alternative but to
accept that that is the situation. That, in practice, is now the dispute
between tlie Parties whicli the Court is called upon to adjudicate.
Article 38 (1) of the Statute, as the Court will rccall, refers to the
Court's function as one whjch is "to decide in accordance with inter-
-national law such disputes as are submitted to it". As the honourable
JudgeMorelli pointedout in his dissenting opinion in the 1962 proceedings
concerning the Preliminary Objections, the question whether there is in
such a practical sense a dispute between parties can be said to be one
that is even niore fundamental tlian jurisdictional questions. And in truth
it must be so.
If one Iooks purely at the submissions and, in so far as may be neces-
sary. at tt~c officia1interyrrtation given to them, it becornes manifest
that the Applicantshave at lcast made clear,whatever other uncertainty
there rnay be in their case, that thcy do not rest their case on either of
the two other possibilities that have been raised in discussions as to the
basis upon which a case could possibly have been made under Article 2,
paragraph z, namely a case on the basis of either Respondent's purposes
or the effectsof the Respondcnt's policies.
That >vas already made clcar in the formal expositions, and if we
further rcad the repeated exptanations given in different contexts and
for different purposes, \vc find that the Applicants ahsolutely confirm
fhat in what they Say to the Coiirt. It would seem to us-we considered
the matter very carefiilly-that that attitude of Applicants now defines
the limits to the dispute whic11u7eare called upon to face in this Court,
whatever the disputemay have been initial].. And that is the basis upon
which we intend to proceed.
\%'eshall proceed on the assumption that the dispute is now so limited.
1 know that there is no way in which the Court can give us advice on this
subject and that we shsll have to read the situation as best u7ecan.
In a municipal court Irnay have asked the court forwhat we cal1 "ab-
-solution frorn the instance", which is a testing, at the stage hvhere an
lapplicant or a plaintiff rests his case or closes his case,of the position REJOINDER OF MR. DE VILLIERS 5%
whether there is any case at al1 which the respondent or defendant is
called upon to meet at all. It does not seem to us that there is provision
for that type of procedure in the Rules and the Statute of thc Court, and
the Court has already given a general niling as to the rnnnner in which the
case is to proceed.
No doubt if we proceed on a mistaken basis as to what the dispute
really is then there is some way of informing us of that, even if it is by
way of questions put to the Parties. But, hfr. President,that is the way
in which tvesee the situatiao tnthe moment, and that isthe wap in ivhich.
we intend to proceed.
We shall direct our further argument and evidence to the merits or
othenvise of this case, which we understand to be the sole one which the
Applicants are making against us now. The Applicants are the domini
litisthey control what is to be the scope of the clispute. We assume and
we submit that the view which will be taken of the matter will be a
practical one, and that regard will be had bot11to the submissions and
to the forma1 explanation given for the submissions. These really suffice
for this particular purpose, whatever other uncertainty there may be as
to the case which the Applicants are actually bringing. Those uncertain-
ties persist, but there is no longer, it seerns to us, any uncertainty on the
question that the sole case is asthere defined that outside of the suggested
norm and standards as now defined the Applicants do not bring any case
against us regarding Article 2, paragraph z, of the Mandate.
And so we corne to an ai-ialysis of the merits of the contentions re-
garding the norm and/or standards, and we begin with the standards.
Here agnin, 1 am afraid that sorne further initial analysisis necessary,
in order to see what exactiy the Applicants' case is or appears to be
before we can properly answer it on its merits. But in that way we shall
gradually be coming to grips with this contention as to its suggested
merit.
When ive consider a concept of standards,the Applicants immediately
start with this disadvantage, that they have to admit that standards
as an ordinary concept would not +er se have any binding effect in Iaw.
That they realize this is made clear by certain portions of the record.
They themselves distinguished between the standards on which they rely
and upon the norm for which they contended in thc following terms in
the verbatim record of 13 May, at page 261, szt+ra. There they spoke of
standards as "mles of conduct having a content similar to, but not an
equivalent degree of legal authoritativeness of a lcgal norm". And then at
the same page they said that the standards differ from the legal norm-
". .. only in the respect that adherence to them may not itself
be a matter of independent legal duty pursuant to an international
legal nom".
So at least, Mr. President, that fundamental consideration seems to be
common cause between the Parties.
Obviously, if the standards are not general Iegal rules of conduct,
as isvery clearly the case, tfiey cannot inthemselves have any binding
force. It was therefore necessary for the Applicants to find some formula
-some basis-upon which to contend that the standards, not being legal
mles in thernselves, could neverthelesbe sriid to be legally binding upon
Respondent in the circumstances of this case. The Applicants did this
by importing the standards into the mandate instruments by a process570 SOUTH WEST AFRlCA
which they called "interpretation". But, as we shall show, this process
(called "interpretation" by them) undenvent a remarkable change from
the stages of the written pleadings and the Applicants' opening oral
argument to the stage of their oral reply.
'TheCourt will recall that both in their written Reply (the glcading
called the Reply) and in their oral argument in chief in these proceedings,
the Applicants stressed the foiiowing (1 quote from the Reply, IV, at
p. 515, a passage which was taken over in the verbatim record of 18
March, at Viii, p.118):
". ..the judicially perceived necessity to interpret broadly-formu-
lated, constitutional-type obligations, on the basis of current
standards, rather than on the basis of the presumed 'intentions
of the parties' at the time the obligations were conferred and
accepted".
The Court sces that a contrast was Iiere drawn-a distinction was
draxvn and a contrast postulated-between interpreting these obligations
on the basis of current standards,and interpreting them on the basis of
the presurned intentions of the Parties.There \vas an antithesis postulated
and advanced there between those two concepts. This is, as 1 say, at the
stage of the written Reply and of the opening oral argument.
At page 514 of the Keply, IV, the Applicants said the following: "The
obligations crcated by Article 22 of the Covenant and the Mandate must,
accordingly, be construed in the light of current standards ..."
We pointed out, Rlr. President, in the Rejoinder,V, at page 135,that
in these contentions. as then advanced by the Applicants (that was at
the stage of the written Reply), there was a basic confusion between the
concepts of interpretation and application. FVe also demonstrated, in
principle and with reference to a number of authorities-amongst others
with reference to the principle of contemporaneity, or the more general
principles of inter-temporal law-that an instrument is to be interpreted
to bear the meaning which it wouid have borne as at the stage of its
execution and that that meaning iiever changes-the meaning of the
norm asdistinct from the way in wliich it is to be applied to facts that
may be changing as tirnegoes on. We dcalt with that inthe Rejoinder, V,
pages 120 and following.
However, Mr. President, the Applicants advanced exactly the same
contention as before in their oralargument in chiefin this Court,virtually
ignoring in effect what we had said in that regard in the Rejoinder, and
so jt was ~~~~~~ry for us in Our otvn oral argument in chiefto come
back to this subject and to revert to these basic principles concerning
interpretation and application of written documents, and in particular
also of the so-calIed broadly formulated const itutional type documents.
In doing so, hlr. President, in Our oral argument in chief we cited
further authorities which, in our submission, offered more than convin-
cing support for our arguments and refuted the suggested approach ofthe
Applicants. We can rcfer the Court to the argument put by us on that
subject in the verbatim records of 13 April, at VIII, pages 584-594, of
14 April, at VIII, pages 594-595 and of 22 April, at pages 634ff.
It is not necessary for us to go into the details again, hlr. President.
It is sufficient to reiterate Our basic contciition, namely that by no valid
process ofinterpretation-ertainiy no process of that kind relied upon
by the Applicants up to the stage of the oral argument in chief-can the REJOINDER OF hlK. DE VILLIERS 57I
Mandatory's obligations be said to be governed by current standards.
Interpretation, properly so-called, caniiot lead to that co~iclusion, and
there was no process of interpretation, properIy so-called, oriwkich the
Applicants in fact, on analysis, relied up to that stage, which coulcl be
said to lead to such a result.
The standards referred to by the Applicants, in the way in which they
refcrred to them up to that stage, could, however, in terms of the con-
tention as we addressed it to the Court, conceivably have been considered
as part of evidence bearing upon the question offact, whether a specific
measure or a cornplex of measures could have been intended to enure,
or could possibly in fact enure, to the promotion of well-being and
progress. In other words, such standards may, in this sense, be relevant
as regards the application of the Mandate, having regard to the fact
that the duty of promoting well-being and progress has to be complied
with over a period of tiine in which circumstances may change. Conse-
quently new methods and new approaches ma. possibly be required, as
time goes on, in the application of a hfandatory's duty because of
changed circurnstances or changes in the general factual situation in
which the duty is to be complied with. This does not, however, mean
that the duty itself in any way changes.
In their oral reply, hIr. President, the Applicants did not sec fit to
deal with the authorities wliich we had cited in support of our arguments.
Tlie Court will recall that these authorities included extracts from
articlesby Sir Gerltld Fitzmaiirice, a discussion by Schwarzenberger, an
Opinion of the Permanent Court, a judgment of the Privy Council, and
an extract from the separate opinion of the honourable President in the
Exfienses of the United Nations case. And in the Rejoinder we had also,
in addition to some of these, referred to various other judgments and
opinions of this Court, for instance, those in the Morocco case, ii-ithe
Minquiers case and in the Rigkt of Passage case.
The Applicants did not refer to these at all. Instead, in the verbatim
record of 18 May, at page 321, supra, they professed to have been
completely "baffled" by the "purported distiiictionç sought to be drawn
between interpretation and application", ancl, as a reason for being so
"baffled", they merely citcd a passage frorn Judge Cardozo's The Nature
of theJudicial Process. Mrhen one looks at that passage, Mr. Yresident,
one finds that thelearnedJudge dealt with the so-called "mighty phrase"
of Chief Justice Marshall that "it is a constitution we are expounding".
And the central theme of Judge Cardozo seems to have been found in
these words "A constitution states or ought to state ... principles for an
expanding future"iprinciples for an expandiag future. In this way then
he contrasted a constitution with an ordinary type of statute, which
may have exact rules, which may have to be changed in different circum-
stances. A constitution's function, howcvcr, is to state these broad
principles which can find altered application in accordance with altered
facts, and it was in this context that the learned Judge proceedcd to
speak of what he cnlled "interpretation" "adopted to modem conditions".
He referred, for instance, to a French Chief Justice who had spoken of
such interpretations in relation to what was, apparently, as far as we can
make out, the Napoleonic Code. As the Court would know, these codes
of Continental Europe are perhaps even more broad in their formulation
of general principles than one finds in constitutions, and it is of course
a task of application, as one goes along, of broad principles to new and 572 SOUTH WEST AFRICA
.ever-varying circumstances. That is the task of the law and of the
courts.
It seemed perfectly clear what the Judge meant in speaking of "inter-
pretations" in this context. He used that word, in my submission, with
the greatest respect, in asomewliat loose sense but which was not mis-
leadiiig whatsoever in that context. What really alters is, as we have
.submitted, the application of the basic principle to the changing facts,
and that is the point which was made so clear in these various authorities
to which we referred and to whch the Applicants offered no reply
whatsoever.
Why, therefore, Mr. President, this reference to the passage from the
writings of Judge Cardozo sliould have baffied tlie Applicants, in the
light of the very clear expositions in the authorities which we cited, is,
in turn, sornewhat puzzling to us-unless, of course, our learned friends
-preferred to be baffled.
But it seems unnecessary for us to go again into this very real distinc-
tion between interpretation and appIication because we find that perhaps
even that argument has now becomc academic in that the Applicants
here also have brand new contentions about the type of interpretation
on which they rely.
Let us go bnck to the Kcjoirider, V, at page 140, where we stated the
following:
"The only basis upon which interprefationof the relevant texts
could produce a result whereby current norms govern the content
of the Mandate, mould be if Article z was ab igiilio subjecto some
qualification such as: 'The Alandatory shall, when exercising its full
power of administration and legislation, give effto such standards
ornorms as may at the time of such exercise be generally applied by
other States'."
That, we suggested, would have to be found by a process of inter-
pretation as having formcd part, right from the start, of Articlz of the
Mandate. That would have been a broad principle, then, which wouId
have been capable of this type of ready application to the facts of a
changing situation. The original obligation, the law or the norm, as
originally prescribed in the mandate instrument itself, would provide in
advance for the binding nature of standards as they may come into
force in future time, and the Mandatory would, by his consent to the
.mandate arrangement, bind himseif in advance, then, to having such
standards binding upon him. But that would, therefore, in ouï- submis-
sion,have been the necessary basis upon which a contention of this kind
wouId have to rest. Appiicants would have to get such a qualification
into the Mandate in sorne way or other-by normal processes of inter-
pretation or implication.
We then proceeded to state, still at the same page of the Rejoinder:
"Jnasmuch as no such qualification was included in the express
terrns of the Mandate instrument, Applicants would then have to
contend that it must be read into the Mandate as a necessary
implication."
Mre then pointed out, Mr. President, that it was unthinkable that the
authors of the Mandate would have decided upon, and that the Manda-
tories would have consented to the imposition of such an obligation, and
we concliided : REJOISDER OF MR, DE VILLIERS 573
"Since Applicants do not rely on such an implication, and no
material has been adduced to suggest the existence thereof, Res-
pondent will not devote any further consideration thereto."
We rcverted tathis matter in ouroral argument in chief in the vcrbatim
record of 22 April, atVIII, page 638, and there we pointed out that the
Applicants in their opening oral argument had declined to state wlietlier
or ~iotthey coritended that the mandate instrument did contain such an
implied obligation.We pointed out further that, in the verbatim record
of 24 March, at VIII,page 261,the Applicants had quoted thisstatement
for the Rejoinder, and they had then said that they found it unnecessary
to comment further on it.
In the oral reply of the Applicants, Mr. President, this however,
became another story. In the verbatim record of 18 hiay, at page 3x9,
supra, the Applicants once again quoted this statement from the Rejoin-
der, and they said that "Except for the last clause" thestatement was
preciselp what the Applicants contended for. They proceeded to Say:
"in essence, that Article z, paragraph 2, rnust be interpretcd and
read as if it did explicitly stabinitio and include the qualification
that 'The Mandatory shall ... give effect to such standards or norms
as mây at the time of such exercise be generally applied by other
States1-1 would substitute for 'other States' the 'competent inter-
national organs' ".
That is the way my learned friend then put it: that thatwas precisely
what they contended for with only the one alteration. To get it perfectly
clear then let us read it aii in one piece as now intenbydthe Applicants:
their contention is then that, on a proper interpretationof the hiandate,
Article 2 is subject to this qualification:
"The hlandatory shall, when excrcising its full power of ad-
ministration and legisIation, givc effect to such standards or norms
as may at the time of such exercise be generally applied by the
competent international organs."
That seems, on the basis of what the AppIicants themselves said, to be
what they contend for, as something to be found in the Mandate by
intcrpretation, as they say, of the mandate instrument.
Now, RIr. President, such a so-called interpretation can obviously be
based only on the intentions of the authors of the Mandate, and indeed,
we find that the Applicants Say that it is their contention, that itis
based on what they cal1 the presumed intentions of the authors of the
Mandate. They started wjth.this topjc rjght at the beginning of the
record of 18 May. On the very first page of the text of the argument,
which is page 311, supra, of that record, my learned friend, Mr. Grosç,
stated this :
"Mr. President and &rembers of the honourable Court, the
Applicants will commence discussion of the relevant international
standards with certain general observations."
So he ivaç comrnencing the subject of the standards now, as distinct
from the nom. He continued :
"These observations are designed to demonstrate why accepted
canons of interpretation, especially as applied to treaties and
conventions, support the Applicants' basic contention that the
international standards generat ed by the competent organs of the SOUTH WEST AFRICA
international commtinity govern the interpretation of Article z.
paragraph z, of the Mandate by providing authoritative, objective
and relevant criteria whicli should be nccepted and applied by this
honourable Court."
So, Mr. President, we find that in this argument interpretation plays
a role in three ways. First there is the interpretatiofthe basic mandate
instrument so as to contain a qualification of the nature I have just
referred to. Then on the basis of that interpretation, effect is giveii to
such standards as might come into existence by interpretation of the
mandate provisions by the organs of the organized international com-
munity. That is the second stage of interpretation. Those organs interpret,
and their interpretation becomes authoritative. l'hen we come back to
the Rla~idate, and when we again interpret the mandatc instrument, the
authoritative interpretation is said to apply, tgovern the interpretation
of Article 2of the Mandate.
It al1restsas the Court wiilsee, on this basis of first getting this initial
qualification into the basic jnstmrnent, the Mandate itself.
At pages 315 and 316, supra of the record of 18 May, the discussion
on this point, the discussion which had started off frorn the accepted
canons of interpretation in this context, was further developed. There
was further reference to the presumed intentions of the authors of the
mandates system; and then at page 317 of that record the Applicaiits
statcd the following:
"The founding fathers of the mandates scheme, the Respondent
itself as mandatory in undertaking the obligation, must con-
clusively be presurned to have undertaken the obligation ofacontent,
scope and naturc which the Applicants contend for."
At page 318 they proceeded:
"The mandate instrument must, as 1 say, be intcrpreted in.
accordance with thc intentions of the Parties in 1920 but it rnust
be interpreted thus in the light of its nature, spirit and purpose.
When Respondent undertook in 1920 the obligation to 'promote tu
the utmost' the well-being and 'the social progress' of theinhabitants
of the Territory of South West Africa, Kespondent thereby under-
took an obligation to apply evoIving and developing standards in
the light of modern conceptions and knowledge with regard to the
well-being and development of dependent peoples, as appreciated
by the international organsvested with the duty of supervision as a.
safcgz~ardto effectuate the purposes of the sacred trust."
The Court will recall this quotation is from page 318 of this record.
It then runs on, until wc come to page 319, where the qualification to
which 1 have referred as one sought to be read into the Mandate by so-
called interpretation is esplicitly formuiated. and ~vherethe Applicants.
explicitly Say that that isexactly what tliey contend for.
Now, 3Ir. President, the passage which 1 have just read is a long one.
Perhaps I should stress again certain features of the passage which 1
submit are sipificant. The emyhasis is vecy definitely on the intentions-
of the Parties i1920, as being the basis on which the Mandate must now
be interpreted. It must be interpreted thus in the light of its naturc, spirit,
and purpose, the Applicsnts said, but basically in accordance with the
intentions of the Parties in 1920. Theinterpretation then is that Respon-
dent undertook this peculiar type of obligation which would render REJOINDEK OF AIR. DE VILLIERS 575
binding thestandards to be laid down in future by organs of the organized
international community.
Now, may 1point out in the first place that in that respect the Appli-
cants are very far removed from the stages which lasted up to the oral
address in chief in thiç Court, when they spoke of the neceçsity of inter-
preting the mandate instrument on the basis of current standards rather
than on the basis of the yresumed intentions of the Parties nt the time
of the execution of the instrumcnt-where they stated those two things
as standing in antithesis to one another.
The two concepts are now linkcd, and it seems, Mr. Preçident, that the
Applicants have corne around to accepting that it is necessary for their
contention to link them in this way, and that the only way in whicli they
could make those standards binding would be first to lay the fondation
by way of ordinary interpretation of the mandate instrument.
In the second place, the reference in this last passage to the "inter-
national organs veçted with the duty of supervision" seems to give
specific content to the phrase "the competent international organs"
which the Applicants used in their re-formulation of the qualification
which we suggested they would have to read into Article z of the Man-
date.
The Court will recall that in that qualification, as re-worded by the
Applicants, it was stated that the Mandatory must give effect to çuch
standards or norrns as may at aiiy particular time be generally applied
by "the cornpetent international organs". Now, in the passages I have
just read to the Court, there the reference is to "the international organs
vested with the duty of supervision as a safeguard to effectuate the
purposes of the sacred trust".
It therefore seemç that these two concepts are intended to be equated
with one another, that by speaking of the competent international
organs the Applicants mean the organs vested with the duty of super-
vision of the Mandate. 1 emphasize that that seems tobe the fiosilion,
because we run into difficulties later if our assumptions about questions
of that kind are too absolute.
There are other statements made by the Applicants during the course
of their oral reply, which also appear to confirm this understanding of
their latest contention. So, in the verbatim record of 17 May the Appli-
cants said thiç: .
"There must be applied to the process of interpretation of the
mandate, treaty or institution, the current body of intcrnationally
binding and valid ruleç, crystallized in the ovenvhelmingly accepted
judgrnents of the competent supervisory international organs
and embodied in what the Applicants have called 'international
standards'." (Supra, p. 307.)
So there again, the concept is the competent supervisory international
organs.
At page gro of the same record is the following:
"The standards which, likewise of course, have the same content
~vhich similarly relates to non-discrimination and non-separation,
govern the interpretation and application of Article2 of the Mandate
as authoritative interpretation by the compete~it international
organs responsible for çuperviçion of the Mandate, and which form
a part of the network of protection of which the principal links are576 SOUTH WEST AFRICA
the administrative organ and the judicial body in this honourable
Court."
Again, "competent international organs ;csponsible for supervision of
the Mandate" are mentioned.
Then, in the verbatim record of 18 May, at page 315, sup~a. the
Applicants submitted that Kespondent, as the so-called "agent of the
international community ... is obliged to defer to international stan-
dards". The Applicants immediatelr proceeded to make it clear what
they meant by "international standards". They said, stiil on page315:
"In particular, the Applicants contend that the organs of the
Unitcd Kations, the supervisory agency, if the Applicants' legal
theory is sustained-which is based upon that of the Court's
holding in 1950 and, in Our sub~nission, reaffirmed by necessary
implication in 1962-the organs of the United Nations, with such
supervisory authority, have competcncc to dcfine the standards of
well-being which provide authoritativc criteria for the interpreta-
tion of Article2."
So, again, there is mention of the United Nations as the supervisory
agency. Now, 1 further drawattention to the expression here "competence
to define the standards". The Court will recall that, in the reformulation
of what we suggested the Applicants would have to read into Article2,
the word used was "applied" in the phrase "standards applierl by the
competent international organs", but here the word is "competence to
define the standards". It is interesting to see what other terms the
Applicants use iiithis regard to indicate what this competence of the
organs in fact amounts to. In the record of 18 May they stated:
". ..itis imperative thnt international supervision is able to traiisbte
itself into obligatioiis of the Mandate by means of the standards
fomallÿ set forth by the competent international organ and the
capacity of the competent international organs to do so,under the
scheme of the Mandate, rests in this Court's handç". (Supra, p.319.)
This isa statement which perhaps requires some examination on its own,
but it would take us off at a tangent if 1 were to pursue that now, so
1 shaU corne back to it at a later stage.
For the moment 1 refer to the concept of international supervision
being "able to transIate itself into obligationsby means of standards
forrnally set forthby the competent international organ".
Then at page 325, supra, of the same record, the Applicants spoke of:
"... the judicial role in applying the standards and judgments
evolved by the competent administrative organ to which the
Mandatory is accouiitable and upon which the sacred trust is laid".
The same tenor we find in the following passage, from the same
record, at page 317:
"The very concepts of moral well-being and social progress
demand and cry out for objective determination on the part of the
competent international organs whose responsibility, rather than
mihoseright, is fixedby the mandate itself ..,"
So, hlr. President, it seems that this qualification, which one would
have to read into the mandate instrument, is to be read in the light of
these various expressions as to what was the nature of the compctence
which was intended by the mandatory and by the founding fathers at REJOISDER OF MR. DE VILLIERS
577
the time when the mandate arrangement was arrived at. It \vas variously
described as a competence to apply currently applicable standards, as
a competence to definethose standards, of translating supervision into
obligations for the mandatory, of setting forth those standards formally,
ofevolving standards and judgrnents, and of objective determination of
the obligations of the mandatory. Al1 those concepts, in their various
differences of meaning, the mandatory must be taken to have agreed to
in advance as being functionç of the cornpetent organs, whose exercise of
these functions would then be binding upon the mandatory and upon
this Court.
These passages make it clear then that the Applicants' contention is
that on a proper interpretation of the Mandate, based on the intentions
of its authors, the Resyondent is bound to give effect to standards defined
or prescribed (or any of these other verbs),by the competent supervisory
organs.
Now, in support of this contention,and 1 am not sure whether it is an
alternative or just asupporting argument, the Appljcants would seem to
rely also on the so-called "quality of the Mandate as a constitutional
type document". It would, however, seem, Mr. President, that this
contention is also based upon the presurned intentions of the authors
of the mandates system, and that itis therefore just an additional
argument proceeding on that sarne basis. 1 can refer to a few passages
lvhich would seem to indicate this position.
In the verbatim record of 18 Rlay the Applicants said the following:
"It is not only from the expressed terms of the Mandate that
Applicants derive the Respondent's duties to confom to modern
standards, as objectiveiy determined, in promoting to the utmost
the well-being and socialprogress of the inhabitants,it ialso because
of the quality of the Mandateas a constitutional type document, .. ."
(SU~YU p. 320.)
Then, at that page of that verbatim record, there is a passage ivhich
reads as follows:
"For if, as the Court said in its 1962 Judgrnent, at page 329,
the mandates system involves, inter alia, 'the recognition of a
"sacred trust of civilization" laid upon the League as an organized
international community', then it necessarily follows that that
cornmunity requires the competence and possesses the responsibility
for specifying the dparnic content of \wll-being and moral and
social progresç by the establishment of authoritative standards-
how else could it carry out its competence?"
Mr. President, 1 am not sure that 1 fully understand Applicants' con-
tention, but it would seem to arnount to one of two things-either itis
purely a legislative argument-legislative in the sense that it depicts
what would be a desirable position and then asks the Court to find that
such a position exists. Otherwiseitmeans that, on the baçis of the original
intentions of the founders of the system, as interpreted by the Court in
1962 (Le., as arnounting to a recognition of a sacred trust of civilization
laid upon the League as an organized international community), it
follows by way of implication, that there must have been an intention to
bestom a competence and a responsibility on the supen~isory organs, the
competent organs, to specify the dynamic content of well-being and
progress, and to establish authoritative standards.578 SOUTH WEST AFRICA
So it would seem that either the argument is purely legislative and
therefore not intended for this Court at al1, properly speaking, or it
must relate also to the basic question of interpretation or implication,
based upon intentions, presumcd or othenvise, of the fouriders of the
system.
At page 322 of the same record we find this further passage:
''Insurnmâry then, whethcr one iriteryretsthe Nandatc agreement
in accordance with the intentions of the Parties at the time when
the agreement was entered into, or whether the Mandate is inter-
preted andlor applied in accordance with contemporary standards,
the result is identical. Respondent's obligations under Article 2,
paragraph 2, are to apply and to cary out the recognized and
accepted minimum international standards of non-discrimination
aiid non-separation, ..."
That cornes as a surnmary towards the end of this discussion of 18 May,
which started off on the premise of applying the accepted traditional
canons of interpretation to the situat'ion.
So,hlr. President, in both these two variants of the argument whether
one regards this reference to the constitutional-type document as
somcthiiig alternative, or as something just in support of the main
argument, it al1does seem to rest on the same basis.
It seems, therefore, that the Applicants now accept the necessity of
relying basica1Iy upon the intentions-real or supposed-of the authors
of the mandates system for the interpretation, and the ultimate result
contended for by them. That, in our submission, could hardly be other-
wise. How else, Ah. President, could standards which, by the Applicants'
own dcfinition, couId not be binding $er se, how else could they be said
to be binding upon the Mandatory unless one finds by some construction
that the Mandatory consented to be bound? There isno allegation that
the Mandatory consented specially at tlie stage when the standards came
into existence or thereafter-in fact it seems to be common cause that
there was no such consent on the Mandatory's part-so how else could
they be binding upon the mandatory qua standards unless the Manù:~tory
were found by a process of interpretationto have agreed initially to be
bound in that way?
The only other alternative would be that there has been a law-creating
process operating independently of the Mandatory's consent and that the
Mandatory is, nevertheless, bound by the results of that law-creating
process. That argument, however, in so far aç it is relied upon by the
Applicants, would seem to fa11under their norrn contention and not
under their standards contention because, if I understand them correctly,
they Say that their contention as to standards is the one at lvhich they
arrive via the mandates instrument, white the contention as to the norm
is one at which they arrive independently of the mandates instrument.
And the latter involves, by definition, also the creation of a norm which
isper se binding on us and upon others, independently of an instrument
like a inandate or something similar-it is different in concept in that
regard from standards. May 1refer the Court in that regard to the ver-
batim record of 17 May, wherc rny learned friend stated:
"The anly differencebetween the two Ziindsof governing objective
criteria, standards on the one hand, the legal nom on the other,
arises from ~vhether they would be binding on Respondent in- KEJOlNDER OF hlR. DE VILLIERS 579
dependently of the hlandate or because of the Mandate. .." (supra,
P. 3051,
and, as he went on to explain, if 1understood him correctly, the stan-
dards bccarne binding becauseof the Mandate, the norm became binding
independently of the hlandate.
Now, Mr. President, if the understanding of Applicants' standards
contention is correct, Le., that they find it necessary to rely on the
intentions of the founders of the mandate system, including the Alan-
datory, three issues would crisply arise.
The first is, does the mandate instrument contain an implied or tacit
provision to the effect that the Mandatory is bound to give effect to
standards to be defined or prescribed by supervisory organs? Secondly,
have such organs defined standards of non-discrimination and non-
separation with the content ascribed to them by Applicants? And,
thirdly, are Respondent's policies and practices in confiict with such
standards as may have been laid down? These would be the clear crisp
issues arising if one could, in an unqualifieway, understand the Appli-
cants' contentions in the rnanner which 1 have been expounding them
thus far.
i\lr. President, perhaps it was hoping for too much to think that there
could be so much clarity about the position because, when one starts
having regard to the implications of the contention of the Applicants
and the sources from which the standards are said to emanate, the
apparent clarity ~vhjchwe have obtained rather disappears again in
somewhat of a smokescreen. If the position was, as 1 have just put it,
thrit the Applicants rest basically and exclusively for the standards
contention oii the presumed intentions of the authors of the hlandate,
then two implications would neccssarily follow. The first is that the
whole case regarding standards would fa11to theground if this honourable
Court were to hold that Article 6 of the Mandate has lapsed and that it
was not replaced by any siniilar obligation to report and account to any
supervisory organ at all. That is an implication which would follow from
the whole wap in which the contention was formulated as we have
understood it thus far.
The second implication would be that only the General Assembly of
the United Nations Organisation which, according to the Applicants,
possesses the supervisory jurisdiction over the Mandate would have,
at present, the cornpetence to prescribe new standards. To this could,
perhaps, be added subsidiary organs ofthe General Assernbly acting on its
specitîcauthority forthat purpose, as distinct from merely acting in an
advisory capacity, subsidiary organs which report back to the General
Assembly so as to acquire its sanction. That would seern to be the total
ambit of competent supervisory organs inthis context. Standards to be
defined by other organs, any other international organization or organ,
would therefore be completely irrelevant in this context. Standards
defined by such other organs and organizations rnight, of course, con-
ccivably be relevant as evidence of the existence of the norm for which
the Applicants contend but, as 1 have said, we are concerned for the
moment only with the standards. And that jswhere we are truly baffied.
How do these other organs corne into the picture in respect of the stan-
dards argument? And yet the Applicants bring them intothe picture in
that regard. They bring them into the picture and it is in both of the
respects 1 have just rnentioned that we arrive at confusion as soon as we580 SOUTH WEST AFRICA
look at'the sources from which the standards are alleged to emanate.
In the verbatirn record of 18 May, at page 326, supra, the Applicants
by which the relevant standards have evolved ela..."tand then they wentes
on to Say this, at page 327:
"The standards by whch Respondent's obligations should be
measured are the authoritative judgments which have evolved
principally within the context of the United Nations Charter on the
one hand and the Constitution of the InternationalLabour Organisa-
tion on the other, of both of which organizations the Respondent has
been a member."
And in the discussion foliowing on these remarks, the Applicants went
on to cite or to refer to, inter alia, provisions of the United Nations
Charter and the I.L.O. Constitution, and resolutions and Conclusions of
the General Asscmbly, the Security Council, the Cornmittee on South
West Africa, the Trusteeship Council and the Committee on Non-Self-
Governing Territories, as well as conventions of the International
Labour Organisation, resolutions of the Governing Body of the Inter-
national Labour Officeand the reports of the Cornmittee on Questions
concerning South Africa. Al1those are referred to.
Now, >Ir. President, on the basis of a contention so explicitly and
repeatedly stated, that Respondent is Iegally bou~id ta give effect to
standards prescribed by the competent supervisory organ, narnely the
General Assembly, what can the relevancy be, of, for example, the
resolutions of the Security Council or the Governing Body of the Inter-
national Labour Office?
As far as we know, Mr. President, nobody has ever suggested that
either of these organs, the Security Council or the Governing Body of the
I.L.O., enjoy supervisory authority in respect of the Mandate. Even the
Applicants, which have been most ingenious in bringing startling pro-
positions to the Court, have, as far as we know, not suggested that. But
forth of organs of the United Nations and the International Labour and so
Organisation. In the verbatirn record of 19May, at page 341, supra,the
Applicants said that further sources of their standards are set out in the
Reply, IV, at pages 493 to 510, that is, the written Reply, the pleading.
On reference, Mr. President, to those passages, we findthat these sources
include, amongst others, a number of regionai treaties and declarations
such asthe Charter of the Organization of Arnerican States and a draft
declarationprepared by the Inter-American Juridical Committee. Rut the
Applicants failed to explain the link between these regional organizations
and the competent supervisory organ, or any link making any such non-
binding standards specially binding upon the Respondent (apart, of
course, from the norm contention with which 1 shall deal subsequently).
Surely the Applicants could not have had such organizations in mind
when they spoke of the applicability of,". ..standards . . prescribed by
the organized international cornmunity, which is vested with the respon-
sibility and which bears the burden of supervision and safeguarding
the sacred trust ..." as they did in the record of 13 May, at page 363,
supra, or when they said that the standards govern the Mandate:
"as authoritative interpretation by the competent international organs
responsible for supervision of the Mandate ..." (Supra,p. 310.) REJOINDER OF h1R. DE VILLIERS 58~
Now, Mr. President, how must one explain this, the reliance of the
Applicants on al1 these various sources as regards the existence and
applicability of their standards, which are said to be binding upon the
Respondent as standards and without having attained the status of a
norm? It seems to us that there is only one possible basis upon wkich
they could al1 be brought under the umbrella and that iç, by assuming
that the Applicants' contention means that the Mandate bound the
Mandatory to give effect from time to time to such standards as may be
prescribed or defined by the so-calledorganized international community
in generai. The standard-creating body would then be, not the competent
supervisory organ as such, but the so-called organized international
community in general, which could apparently be just as ïvide as the
Applicants choose to regard it.
After allMr. President, the organized international cornmunity in the
sense in which the Applicants want to use that expression in their
argument (Le., noby way of general reference ïvhich is quite justifiable),
has no Charter; it has no constituent instrument other than the concep-
tion of it which happens to suit the Applicants' contention for the
moment. &Ir. President, whether the Applicants indeed intended to
advance such a contention as to ïvhat is to be read into the Mandate,
alternatively andlor cumulatively or othenvise as they said, we,ofcourse,
do not know. They have not told us, nor have they told the Court, but
this would seem to be the only basis which would make sense whereby the
reference to al1 these resolutions and al1 these organizations could be
brought under the same umbrella of the Applicants' contention in regard
to standards.
[Pztblic hearingof II lune 19651
>Ir. President and honourable Members of the Court, before the ad-
journment yesterday I was analysing the Applicants' contention in
regard to standards,and we concluded that the Applicants were relying
upon reading into the Mandate, by applying ordinary principles of inter-
pretation (they said traditional principles of interpretation) a basis
whereby standards to be laid down by organç of the so-called organized
international community would be rendered binding upon the Respon-
dent as Mandatory.
On analysis, it seemed, on the one hand, that the Applicants were
relying in this regard on something relating to standards to be laid
down by competent organs, competent in the sense that they were to
exercise supervisory jurisdiction. But, then, again, having regard, on
the other hand, to the vanous organs of the so-called international
community, of which it was said that they played a role in laying down
these standards which are now to be applied, one finds that organs are
brought into the picture of which it is not even suggested that they
exercise or have any supervisory jurisdiction at all.
So it would seem that this qualification which the Applicants attempt
to read into the mandate instrument is to be taken as relating to standards
to be laid dom, either by competent supervisory organs andlar by the
organized international community generdy. That isthe basis on ivhich
we shall deal with their submission, although of course we cannot be582 SOUTH \EST AFRICA
absolutely sure that as regards this latter part we are interpreting it
correctly.
The Applicants do Say something which lerids colour to this under-
standing of their submission, in the verbatim record of 17 May, at
page 304, supra. There they said that it was iithe context of the Iegal
criteria "which apply in governing the interpretation of Article 2 of the
Mandate" that they invoked "the judgments of the competent organs
of the international community with respect to the practice of apartheid
in the territory".The AppIicants proceeded to state that "the judgment
of the competent organs which are moreovcr endowed, in the case of the
United Nations, in the Applicants' legal theory, with the supervisory
responsibility over this particular Mandate". One sees there, therefore,
Mr. Presidcnt, that the general phrase "the competent organs", is used
apparently in the context of the organized international community, of
which, in the case of the United Nations, they are moreover endowcd, in
the Applicants' theory, with supervisory responsibility, so that "com-
petent" would appear, on the one hand, to relate to an organ cndowed
with supervisory authority, but, on the other hand, not necessarily so.
So, Mr. President, as 1 Say, we shall deal with the Applicants' sub-
mission as if itwere relntcd to two alternatives in this respect: the
competent organs in the sense of supervisory organs andjor the organized
international community generally. Even on this basis, it is very difficult
to see how they bring in some of the declarations or resolutions or
organizations to which they refer, such as, for instance, the American
Declaration on the Rights and Duties of Man. The Conference of Amer-
ican States which produced this declaration may conceivably be described
as an organized Amcrican comrnunity, but surely not as the organized
international comrnunity.
Nevertheless, before we conclude this analysis of the Applicants' case
on standards, and before dealingwith it further on its rnerits, there is one
further aspect to note.
In the verbatim record of 13May the Applicants contended as follows:
"... Respondent's consent to the organic law of the United Nations
and the International Labour Organisation Constitution likewise
entai1 consent to the processes of such institutions for giving
authoritative, evolving and dynamic content to the provisions of a
constituent charter, or ordinances, of such institutions". (Supra,
p. 262.)
Now, this passage, Mr. President, was linked with a discussion of the
norm contended for by the Applicants, in this particular place where it
occurs, but its relevancy to standards is shown by other passages-for
instance, this one in the verbatim record of 17 May:
"Both the norm and standards ... are derived from the same
sources and identicai contexts. Both emerge, inter alia,from the
authoritative interpretations given to the United Nations Charter
and to the constitution of the International Labour Organisation by
the memberstates thereof by anoverwhelming consensus approaching
unanimity. Both the standards and the legal norm contended for
likewise emerged from authoritative interpretations of Article 2 (2)
of the Mandate itself by the competent organs of the international
community over the years." (St@ra, p. 309.)
So one sees this argument, Mr. President, based on the membership REJOINDER OF MR. DE VILLIERS 583
of the Respondent. Respondent's consent to the cançtitutions in question,
is applied specifically also to the case on standardsAnd in the verbatirn
record of 18 May the Applicants said that reports, resolutionç and con-
clusions of the International Labour Organisation- .
"... form authoritative interpretations ofthe Constitution and, as
has been said, if they are authoritative interpretations ofa conven-
tion or constitution to which thc Respondent has üdhered-an
organization of which it has been a Blember-then such interpreta-
tions provide an authoritative basis for -the interpretation and
application of the standards embodied in the mandate instrument
itself..." (Supra, p.340.)
So, Mr. President, on anaiysis of these contentions Ihave just referred
ta, it would seem that the AppIicants contend that the Respondent is
bound not only by standards emcrging from so-called authoritative
interpretations of the Mandate itself, but also by standards emerging
from so-calleci authoritative interpretations of the United Nations
Charter and the Constitution of the I.L.O.
We have already noted on what basis, according to the Applicants,
so-called interpretatiorisof the Mandate by the supervisory organ or by
the organized international community are relevant. But, yr. President,
why should these authoritative interyretations of the Charter and the
I.L.O. Constitution be binding on the Reçpondent as hlandatory? Why
must we go so farafieldto see what the mandate instrument means, and
what its legal effect is? The Applicants Say: because Respondent, by
tiecorning a Member of these Organizations, consented to be bound by
the provisions of the Charter and the Constitution in question, and also tu
authoritative interpretation thereof as regards Respondent's obligations
as a Alandatory. Or, to put it in another form, they Say Respondent has
consented to regard the provisions of the Charter and the Constitution,
and authoritative intcrpretations thereof, asgoverning the interpretation
of the Mandate. So why, therefore, Mr. President, must one read the
consent to the qualification being read into the mandate instniment?
The argument seemsto amount tothis: that Respondent became a party
to, firstly, the hlandatc, secondly, the Charter, and, thirdly, the Con-
stitution of the International Labour Organisation. Now, al1 of these,
the Applicants say, are interpreted (so-called interpreted) by attitudes
taken by rnajorities in these bodies from time to time. That, they Say,
isto be seeri as interpretationand itduesnot matter ïvhether jt is on the
basis of political or similar views that these majority attitudes are taken,
or whether they are really and genuinely attempted as çcrious legal
interpretations of wliat the provisions of the constitutions may be.
In the end, Respondent's obligation under the Mandate is then to be
ascertained by looking not at that instrument and seeing what it means
by ordinary processcs of interpretation in its context, but at this long
subsequent hiçtory of what has happened in these various organs of the
organized international community, as my iearned friends put it, and
secing to what lengths they have gone with their so-called processes of
interpretation. Mr. Presjdent, if that is the law, then it would indeed ae
strange law lvhich this Court is asked to apply.
In regard to the United Nations Charter the Applicants have another
trump card up their sleeve. They Say that the resolution of the League
of Nations of 18 April 1946, ~vhichreferred to Chapters SI, XII and584 SOUTH WEST AFRICA
XII1 of the Chartcr, ". ..is in itself a clear indicatioof the relevance
to and applicability of Charter provisions to the mandates scheme".
That xvefind in the verbatim record of 18May, at page 329,swpra.And
they say that this resolution made it clear that the Mandate was to be
interpreted in the light of the provisions of the Charter, whatever that
phrase might mean, and on this basis they speak of-
". .. the interpretation ... and application of the terms of the
obligations under the Mandate whch must be read in light of the
Charter . ..".(Sz@ra, p. 336.)
Mr. President, after al1 this it seerns to us that we could reasonably
and safely summarize the Applicants' basic contention in regard to their
case on standards in these terms: firstly, that on a proper interpretation
of the Mandate, Article zis subject to the qualification that Respondent
is obliged to give cffect to standards that may be defined or prescribed
by firstly, the competent supervisory organ, andlor secondly, the
organized international cornmunity in general. Sccondly, that by be-
coming a Member of the United Nations and the International Labour
Organisation, the Respondent consented to be bound by the Charter and
the International Labour Organisation Constitution and so-called
"authoritative interpretations thereof", and somehow these are to be
seen as governing authoritatively also the interpretation ofthe Mandate.
of the Charter. So at last we can begin to come to gnps with these light
contentions and we intend to deal with them in that order.
In regard to this first contention, as to the basic qualification to be
read into the mandate instrument, we propose to deaI first with the
competence sought to be assigned to the alleged supervisory organ, and
thereafter with the competence sought to be assigned to the so-called
organized international community in general. Our arguments addressed
to the first of these aspects, Mr. President, will, in our submission,be
more than sufficient to covcr also the whole of the Applicants' contention
in regard to the second of these alternatives, bwe shall in regard to that
second alternative advance additional grounds which, in our submission,
further show concIusiveIy that the contention is a completely untenable
one.
Now, it wiIl be recalled, Mr.President, that this contention rests, as
the Applicants Say, upon an interpretation of Article z of the Mandate,
an interpretation apparently sought to be based on the intentions of
the authors of the mandate instrument. This iç the attitude they now
take in contrast to what their attitude was before-that they first came
with this attitude in the oral reply in this Court. The development of
this argument is to be found in the verbatim record of 18 May, particu-
larlyas from pa e 3x6, supra, onwards. The Applicants commenced by
saying that the %etennination of the presumed intentions of the authors
of the Mandate could most convincingly be appraised by the application
meaning: that basic canon of interpretation the Applicants said theyy
tvere applying to this argument.
And they \vent on to Say, in that verbatim record:
"In this case, it would seem that the normal and ordinary and
natural meaning of the words used in the Covenant-in paragraphs
rand 2 of Article22,in the concept of the safeguards in paragraphs REJOINDER OF MR. DE VILLIERS 935
6,7 and 8 of Article 22, in the words of the mandate instrument
itself, in theanguage of Articles2 through 5, which constitute the
core, of course, of the sacred trust-would exclude a good faith
test. But the spirit, theurpose and the context of the instrument
imperatively lead to the judgment that these words mean what they
say." (Supra, p.316.)
Now, hlr. President, that contention somewhat puzzled us. One sees that
the first long sentence is directed at the proposition that the Articles
and provisions referred to would exclude a good faith test; in other
words, it is directed at our contention which we advanced to the Court,
itis not directed at furthering the Applicants' contention at all.
The last sentence in that quotation is dirccted at the furthering of the
Applicants' contention and it simply tells us that these words mean
what they Say. So we are stiil left entirely in the dark asto the assistance
which the Applicants seek to derive from this canon of construction.
They do not tell us what it is that these words Say, and which words
mean what they say-which words the Applicants Say, are in any way
helpful at al1to their suggested qualification which is to be read into the
mandate instrument. Instead of quoting and analysing the words of the
instrument itself, Mr. President, the Applicants proceeded to quote
certain words used by the Court in 1962, wliere the Court spoke of "a
régimeof tutelage for each of such peoples to be exerciseby an advanced
nation as a 'Mandatory' 'on behalf of the League of Nations' ". That is
in the same record at the same page as before, page316. And the Appli-
cants said that that was the context in which the Court further said the
following:
"The rights of the Mandatory in relation to the mandated territory
and the inhabitants have their foundation in the obligations of the
Xandatory and they are, so to speak, mere tools given to enable it
to fulfil its obligations."
That is al1 perfectly correct; that is what the Court said, but one
wonders what bearing it has on this particular contention advanced by
the Applicants, which is sought to be founded on the principle of giving
to words of an instrument their ordinary and natural meaning.
Parenthetically,the Applicants went on and asked:
"1s the Respondent to be heard to say that the purpose of the
tool is to be determinedby its intention asto how the tool should be
used?" (Supra, p. 317.)
hlr.President, we, of course, never advanced such a contention, that
the purpose of the mandate instrument or of the powers given to the
Respondent are to be determined by the Respondent's intention as to
how tlie tool shouldbe used. 1dealt with that matter earlier;1 need not
go into the detail of that again.
But leaving that aside, it is very difficult to see how this line of reason-
ing supports the Applicants' contention whatsoever-the Applicants'
contention here under consideration-that the Mandate authorized the
supervisory organ and/or the international community to lay dom
standards binding upon the Mandatory as to the rnanner in which the
tool is tobe used. As we shall see, hlr.President, to that question the
Applicants give no ansïver. They never answer the question as to what
words they reIy upon which bring them anywhere as far as this contention
is concerned.gS6 SOUTH WEST AFRICA
They proceed, ilIr.President, at the very sarne page, to cite furtlier
from the Court's Judgment in 1962 the following:
"The fact is that each mandate constitutes a new international
institution, the primary overriding purposc of which is to promote
the well-being and development of the people of the territory under
mandate." (Supra, p. 317.)
These words, the Applicant said, mark "the spirit, the purpose and the
context of the clause or instrument in which the words are contained,
asthe Court said in196zt',and the Applicants proceeded ".. . 'the spirit,
purpose and context' is one of the highest standrirds of fiduciary re-
sponsibility toward the inhabitants of the Territory, on the one hand,
and toward the organi-cd international commuriity, on the other".
(Supra, p.317.)
So,Blr.President, what have we got so far, along this process of giving
a meaning to words of an instrument? We find that the Court said that
the overriding purpose of this new international institution, the mandate,
is to promote the well-being alid development of the inhabitants. That
is obviously true; secondly, that the Court said that these words rnarked
the spirit, purpose and context of the clause or instrument in whicli
they arc contained. Again this is an obvious staternent, but still the
relationship with the argument under consideration is obscure. Finallp,
Mr. President, the point is made that this spirit or purpose is one of the
higkest standards of fiduciary responsibility towards the inhabitants of
the Territory and the organized international community. Now, Mr.
President, again it would be perfectly tme to Say that by assuming the
obligation to promote to the utmost the Respondent indeed assiiined
what may broadly be termed a fiduciary responsibility towards the
inhabitants of the Territory. Whether the reporting obligation, the
obligation of reporting to the Council or, as my leariied friend says, to
the organized international community, could also be fitly described as
a fiduciary responsibility towards those institutions, that is a different
question, but stil1 it is a matter of words as far as this argument is
concerned, h,lr. President. Assuming that, for the moment, that could
also be regarded as a fiduciary responsibility-and I shall have more to
Say about that at a later stage-the point is that one still does not see
how it established the Applicants' contention that it was the intention
of the authors of the mandate that the supervisorÿ organ and/or the
international community should have any competence, exclusive or
otherwise, to make a binding determination as to what methods the
Respondent should adopt in its administration of the Territory. Even
if the relationship is fiduciary, as is thaof a trustee towards the bene-
ficiaries under a trust (the beneficiaries under a trustin ordinary muni-
cipal law may be major perçons perfectly capable of looking after their
own interests, but still the trustee does not take orders from these
beneficiaries unless there is some specificprovision in thetrust instrument
to that effect), one does not know even bp giving that label to the
situation how this helps the AppIicants at all, especially on the baçis of
seeing what the words of an instrument mean, because we do not yet
know which words of the instrument are the words on which the Appli-
cants rely.
Rut, Bir.President, that this factor leads to the Applicants' conclusion
of such a cornpetence on the part of supervisory bodies or competent IiEJOINDER OF &IR. DE VILLIERS 587
bodies, that is exactly what the Applicants go on to say, that leads to
the result. The words in which they put this argument require sorne close
scrutiny for I must Say that we find them somewhat mjlstifying in more
ways than one.
We find that passage. which seems to be an important one, in the
verbatim record of 18 May at page 317, sufinr, and 1 should like to
invite the Court's attention to the contents so as to give thern close
scrutiny and to sec,with respect, avhether they couid in nny way be said
to relate to the Applicants' contention, or to assist it or to support it,
because we find the connection extremely obscure. The passage reads:
"And the presumed intentions of the authors of the Covenant and
of the Mandate, must, it seems to the Applicaiits, be read in this
light. 'The international regime' was the wajr thiç Court has de-
scribed the Mandate itself."
One does not know, Mr. President, whether tlie word "regime" u7as
the one fastened upon by the Applicants, perhaps in a literal sense
conveying that tlie regime must irnport into itself soine concept of being
able to order, or authority which can be enforced upon somebody elçc.
Of course, if that wcre to be so it would be interpreting the word "regime"
as used by the Court and not any word usccl in the instrument at al1
and it would, witli respect, be taking that word "regime" entirely out of
the context inteiided by the Court because the Court never, anywhere,
indicated that it intended that ïvord to have a meanjng or a connotation
of that kind. But be that as itrnay, this is mere speculation because
the AppIicants nowhere suggest that it is on the word "regime", as
such that they fasteri for an implication of this kind. The quotation
proceeds :
"The character of such a regime must conform to the changing
needs of international life, asobjectivelÿ determined, not as de-
termined by the wishes, the dl, or the whim of administrators or
governors, who may be in office from time to time. This would be
an intolerable standard for application by the international com-
munity. It would be inconceivable."
Now, hlr. Presidcnt, here again, what do we find? The character of
the regime must conform to the changing needs of international life, not
those of the population of the mandated territory-the changing needs
of international life. Mr. President, where do we find anywhere in the
instrument any words which suggest a concept of that kind, any words
of which it could be said that their ordinary and natural meaning ieads
to a conclusion of this kind?
Then the passage goes on tosay that those "changing needs of inter-
national life" must be objectivelÿ determined, "not by the wishes, the
will, or the whim of administrators or governors, who may be in office
from time to time" because that would be an "intolerable standard for
application by the international community. It would bc inconceivable".
AIr.President, the Rcspondent, as far as 1 know, ncver claimed the right
to interpret tlie changing needs of international lifc for the organized
international community and then to tell the organized international
community, those are your changing needs, and 1 tell you so.
But even taking that element out of it, let us assume that the Appli-
cants really intended to speak here of the changing needs of the popula-
tion of the mandated territory. Then it is stilla caricature of the Re-588 SOUTH WEST AFRICA
spondent's argument to Saythat we contended that those changing needs
are to be detennined by the wishes, or by the wiiI,or by the whim,of the
administrators or governors lvho may be in office from time to time.
It is perfectly clear, Mr. President, that in giving full efiect to the
diçcretionary element in tlie Respondent's powers, an action on the
basis of rnere wishes, ora rnere will, or a mere whm, would surely rank
as an arbitrary one if not, under particular circumstances, as a mala fide
one, and would therefore be a violation of the obligation undertaken by
the Illandatory. It would clearly be so, on Ourown construction. Whether
that violation is one which was intended to be deterrnined by acourt, or
whether it \vas one to be determined sole1yby the supervisory organs
then contemplated, Mr. President, that of course isa matter dealt with
in our first contention, Ourmain contention, as regards the justiciability
or otherwise of Article 2 and it is a matter which 1 need not take any
take,eviz.,that itwas for the Court to adjudicate or only the adrninistra-
tivc supervisory organs to do so, the fact remains that in law an action
merely by way of a wish, or a will, or a whirn, would be a violation of
obligation. Yet this appears to be attributed to us as the argument, and
then it is said that this would be "an intolerable standard for application
by the international community. It would be inconceivable". Still,
Mr. President, we see no connection whatsoever with words used in an
instrument of ~vhichit is said that the ordinary meaning 1sbeing given
to them.
The statement proceeds: "The concept of moral well-being and social
progress involves the determination and the protection of inter~iationally
determined criteria and objectives."
Mr. President we arenot toId where this comes from-why the concept
of moral well-being and social progess involves the determination and
the protection of internationalIy dctermined criteria and objectives. It is,
as far as we can see apure ipsedixif; there is nothing by way of argument
or supporting material which goes to support it at all.
Then this part of the statement follows:
"Each man's notion of moral well-being and of social progress is
a reflection of his own subjective attitude toward life, toward the
role of the individual, toward the role of the goup, and the relation-
mind, or purpose or intent, be marked in any other maliner thante of
by his persona1 appreciation and evaluation of his own role toward
the social order. The very concepts of moral well-being and social
progress demand and cry out for objective determination on the
part of the competent international organs whose respoftsibility,
rather than whose right, is fixed by the mandate itself ...
Mr. President, again one is puzzled. How can this be said to be
interpretation of anything at all? Is it not rather something in the nature
of an address in a body svhichconsiders what would be desirable in the
international order, rather than one which is to determine what the
Iaw is?
My leamed friend seems to be entirely at large with these arguments
which he uses, ~vhatever their merit may be. They are not arguments
directed at the determination of an intent of authors of an instrument
or directed at çeeing what the instrument says. They seem very much REJOINDER OF MR. DE VILLIERS 589
more to be arguments which might have been appropriate in an address
to, Say, a study group, on the need for reforming the international order.
Nevertheless, let us see what they amount to, Mr. President, whether
they could have any bearing on a process of interpretation or constmc-
tion.
The steps in the argument seem to be these: firstly, the Court has
described the Mandate as "an international reghne"; secondly that being
so the Alandate muçt conform to the needs of international life; thirdly,
the Respondent not being the international comrnunity cannot objec-
tiveiy determine these needs of international lifeand fourthly, the needs
can, on the contrary, be objectively determined only by competent
international organs. From these steps the jump is taken to the quod est
demonstrandum,31r. President, vjz., the Mandate must be taken to have
bestowed on the competent organs the exclusive power to make an
objective determination of these needs, and consequently to prescribe
standards with which the Mandatory is obliged to comply.
1 have pointed out already, Mr. President, that why one has to refer
totheneeds of international life instead of to the needsofthe inhabitants
of the Territory,I do not understand. Even if one makes thiscorrection,
even if one regards tlie contentioas being intended to be directed at the
needs of the inhabitants of the Territory rather than at tlie needs of
international life, then one still finds, Mr. President, that there areno
words whatsoever in the instrument to be considered as going to support
any such notion that it is the organized international community or
any international organs rather than the Mandatory itself which has to
determine what those needs are.
The mandate instruments, Mr. President, on the contrary, contain
words which very clearly confer a full power of government and legis-
lation upon the Mandatory and they say that the Mandatory is obliged
to promote the interests of the inhabitants. Article z says so very
specificallp. If the words used in the Article have any meaning at all,
they oblige the Mandatory, not any supervisory body, to have regard to
the needs of the inhabitants, not to the needs of international life; for
obviously, if the Mandatory does not have regard to such needs, it can
hardly promote the interests of the inhabitants. But according to the
Applicants' argument, the Respondent's primary obligation is to have
regard, not to the needs of the inhabitants, but to the needs of inter-
national life as objectively determined by the supervisory organs.
Presumably, Mr. President, this must be so even if the needs of inter-
national life as "objectively determined", clash with the needs of the
inhabitants, and that may be a very important consideration. And why
do the Applicants Say so? Simply because the Court in 1962 spoke of
"the international régime" which, as 1 have said, was a perfectlg fit
description in the context of what the Court was describjng, but istaken
out of itscontext here in the way in which tKeApplicants seek to apply it.
In any case, their argument does not relate to any words or language used
in the instrument which, it issaid, is being construed.
Now, hlr. President, as 1 have said, even if one now takes the argument
as relating to the needs of the inhabitants of the Territory rather than
the needs of the organized international community or of international
life, lets see whether there is anything in the words, or in logic or in
probability, which could be said to support this argument that the
standards fordealing with those needs are to be laid down internationally590 SOUTH WEST AFRICA
by international organs and are not to be determined by the Mandatory
itself in the esercise of its discretion in determining whatthe needs are
and how it is to deal with thern.
The argument, &Ir. President, as 1 have said, does not rest on words
in the instrument but it seems to reston this notion that different people
have different ideas as to how social progress especially, social progress
and moral well-being are to be achieved, and that seems to lead my
learned friend to the conclusion that there rnust therefore be international
determination of the approach and not determination by a particular
Mandatory.
Nr. President, is not the logical inference directly the opposite when
u7e look at the presumed intentions of the autliors of an instrument?
1s iiot the inference this-that just as individual perçons may differ
in their outlook as to how the problem of moral well-being and social
progress is to be dealt with, just so differenStatcs i~loulddifier in their
outlook as to how such a problem is to be dealt with? Now those different
States constitute the international bodies-tlicy are the members of
those international bodies. 'Shep corne there with their different, their
opposing, ideas as to how the problem is to be tackled. Must they now,
in debate and with one another, must they now decide how the problem
is to be dealt with in rnandated territories generally or in a particular
mandated territory?What if they cannot agree, Mr. President? What if
they are so divided amongst themselves that no answer can be obtained
according to the voting procedures in the particular organisation?
What, Mr. President, if they are substantially divided but there is a
majority one way or the other? hlust the majority then decide? Or wliat
if, as so often happens in international life as a constructive featuof it,
they arrive at a compromisebetween different ideas-a comprornisewhich
now satisfies everybody? Can one under those circumstances be satisfied
that that is the most effective way of dealing with the needsof particular
people in a particular territory? Would not the approach rather be the
other way? That one says, here is a Mandatory which 1, the international
organization, trust-I trust it as a trustee.He can report to me from
time to time so that I see what he does and so that 1 can criticize him
if he does not do his work, but the manner in which he is to do it, that I
leave to him, because Ithink that he is the most suitable mandatory for
this particular task, so that 1do not have this possibility of a cornplete
cIash of views as to how these problems are to be tackled. 1 know that
I have entrusted it to that particular trustee and he, or that nation, in
accordance with its particular outlook, will tackle those problems.
1 shall not interfere with the manner in which it exercises that discrction
even if 1might feel that in some way or other 1might have dealt with it
differently. 1shall certainly make suggestions to the Mandatory-1 shall
certainly indicate to the Mandatory that 1 should like it to do this or
1 should like it tdo that. But, 1 cannot say tothe kIandatory that 1am
to enforce my will upon it-1, being an international organization
composed of these various States with their various possible views upon
the rnatter.
The anlilogy, Mr. President, is complete with the situation ofa tcustee
in ordinary municipal law, a trustee which may have to report to some
go\;erning body from time to time, as in the case of church congregations
~vhich,as very commonly happens, organize their affairs in such a way
that their business matters, i.e., property transactions, financial trans- RE JOINDER OF MR. DE VILLIERS 59I
actions and so forth, are handled lor theinby a trustee or by a board of
trustees, two or threeofthem. Let us suppose that that trustee or board
of trustees must report, as would very commonly be the position, from
time to tirne on their adrniiiistration to the governing body of the
congregation, which rnay be the Church Council or the general meeting
of the congregationitçelf.
Then surely, hIr.President, that esact situation obtains. The purpose
of the reporting is to enable the supervisory body to see whether the
trustee is doing his work, whether he is settingabout it properly, whether
he is settingabout it honestly, wllether the wholc situation appears to be
in order, and whether he keeps withiii the limits of whatever instrument
there rnay be defining his powers and his obligations. If, for instance,
that instrument would say to hirn "you may invest surplus funds only
on firstmortgage and in shares ofbuilding societies", then Rlr. President,
the supervisory body would see to it that there isno investment, for
instance, in the shares of an ordinary Company, other than a building
society, or that there is no other form of investment of a type not
authorized.
Eut, Mr. President, when that trustee exercises his discretion in
deciding that he is to invest with building society "A" and not with
building society "B", then surely this governing body does not interfere
with his discretion and tell him "you should have acted otherwise".
If it did he wouId turn round and Say "No, that was a matter for me to
appreciate". 'ïhere rnay be suggestions to him, of course, but there could
not, in this situation, be a suggestion ofa binding power in law on the
part of the supervisory organization-not ordinarily. There may be
exceptionally aparticular stipulationof that kind but that would not be
the ordinary position. And that, Mr. President, is surely the analogy
which applies here, and if one gives such force, as rny learned friend
does, to the fact that different people would have different approachesas
to dealing with this problern. then 1 submit, hIr. President, the logical
answer is that that supports the conception that the task would have
been left to one trusted trustee rather than being assigned to an inter-
national supervisory body composed of different elements where there
may be opposing and clashing views on the subject.
That, Mr. President, is indeed what the words of the instrument
indicate. The words of the instrument do not, in any way, assign any
fimction or any potver to a supervisory body to lay clown standards in
this respect which would be binding upon a Mandatory. Nowhere is
anything said of that kind. On the contrary, the grant of power and of
discretion is to the hlandatory-the obligation of the trust nature is laid
upon the Alandatory and itis said that the hlandatory has to report
once a pear, as tothe manner in which it has acted in regard to its trust,
to a supervisory body.
Those words, for the reasons 1 have endeavourecl to indicate, make
sense. And therefore, &Ir.President, when one has regard to words used
in an instrument, and gives to them their natural and their ordinary
meaning, and has regard also to the question whether they do make
practical sense, rvhether thj could or could not have been so intended,
then the argument goes al1one way, hIr. President. The argument for the
Applicants is not even based on any ~vordson which thep can rely.
how we find, 3Ir. President, that the AppIicants do seek to place
reliance on some particular words which they extract from the instru-5g2 SOUTH WEST AFRICA
ment. So, for instance, the words "social progresç" in Articl2,are relied
upon as denoting something fluid, since they say society itself evolves
and changes constantly, while progressis, again in the Applicants' words,
". ..by its termç ...not a constant but a variable, and predicates the
natural processes of dynamic change ...". That we find in the record of
18 :iIay 1965, at page 317,supra.
The Applicants then proceeded to cite a passage from the Keply, IV,
pleadings):2, where they said (that is in thcir written Reply in the
"diçcharge of the obligation t$romoie well-being and socialprogress
necessarily involves continuous dynamic and ascending growth".
(Sirpra,p. 318.)
That is the end of the quotation. Now, Mr. President, admitting aF1
this, it is still very difficult to understand, it is completely obscure how
thiç can be said to indicate that the dynarnic aspect isto be taken into
account and to be given effect to by organs of an international body,
rather than by the hfandatory itself which is charged with the task of
promotion, of well-being and social progress. Nothing relied on in this
argument indicated that there isto be that preference. But the Applicants
say that Article zz of the Covenant speaks of a safeguard, and they
suggest that that solves the problem. That, at any rate, is how we
understand their argument asthey put it, in the verbatim of 18May 1965,
at page 318, supra, and 1quote this passage to the Court:
"When Respondent undertook in 1920the obligation to 'promote
to the utmost' the well-being and 'the social progress' of the in-
habitants of the Territory of South West Africa, Respondent
thereby undertook an obligation to apply evolving and developjng
standards in the light of modern conceptions and knowledge with
regard to the well-being and development of dependent peoples, as
appreciated by the international organs vested with the duty of
supervision as a safeguard to effectuate the purposes of the sacred
trust. The stress, Mr. President, is on the word 'safeguardJ-that is
embodied and embedded in the Covenant itself."
So, Mr. President, the word "safeguard" in the Covenant is apparently
now fastened on as being the word to which effect is to be given in its
ordinary and natural meaning in the context. \mat is that rneaning in
the context &Ir.President? Le have, of course, never denied, if1 may
go back to this passage which 1 have just read, thatthe Mandatory is to
have regard to ever-changing and evolving circurnstances and so forth,
changing with the times, in the exel-ciseof its discretionary power, and
in complying with its obligation. That we have never denied, but Mr.
President, why the word "safeguard" in Article zz should mean that the
hlandatory is in that respect to be bound by standards prescribed by
supervisory bodies, that is something which again we do not understand.
Let us see where that word occurs in Article 22.It occurs, Mr. President,
in paragraph 6 dealing with the C Mandate. That paragraph reads:
"There are territories such as South lest Africa and certain of
the South Pacific Islands, which owing to the sparseness of their
population, or their small çjze, or their remoteness from the centres
of civilizationor their geographical contiguity to the territory of
the Mandator)., and other circumstances, can be best administered
under the laws of the Mandatory as integral portions of itç territory, REJOINDER OF MR. DE VILLIERS 593
subject to the safeguards above mentioned in the interests of the
indigenous population."
So we look back, Mr. President, to see where there is a previous
reference to "safeguards". And we find that previous reference in the
immediately preceding paragraph 5, dealing with the B Mandated
territories, in terrns lvhich are weii known to the Court, where it \vas
said that :
".. . the Mandatory must be responsible for the administration of
the territory under conditions which will guarantee freedom of
conscience and religion". [1am sorry, 1 said the tvord "safeguards"
isfound there. The word isnot foundthere, but the concept 1sfound
there.]
And it goes on about the prohibition of abuses, such as the slave-trade,
the armç traffic, the liquor trafic, and so forth.
So those, obviously,Mr. Yresident, in this context, arethe "safeguards
above mentioned in the interests of the indigenous population". There is
nothing eIse ~vhichconforms to that concept whatsoever, anywhere, in
what has gone before. And what is important, Mr. President, is that in
what has gone before, in Article 22, no concept of reporting whatsoever
cornes in, no conceptof reporting or accountability to a supervisory body
or of any power on the part of a supervisory body, becauçe after al1 the
reference is to the "safeguards above mentioned", and as 1 Say in the
above-rnentioned portion there is nothing of the kind. It is only in the
next paragraph following on this one, namely paragraph 7, that provision
is made for n report to be rendered by the Mandatory to the Council, an
annual report in reference to the territory committed to its charge.
So, hIr. President, again, in so far as my learned friend seeks to rely
on the word "safeguards" as supporting hs argument, it wouId seem to
have nothing whatever to do with it.
These, asfar as we can see, arethe only essentialarguments produced
by the Applicants in atternpted support of the proposition which is now
under consideration, the proposition that the Mandate itself is tbe seen
as being subject to the qualification that the bIandatory, inthe exercise
of its functions to promote progress and well-being, is bound to comply
with standards to be laid down by either supervisory bodies or by the
organized international community in general. There are, of course,
certain passages of repetition,there are certain assumptions stated
sornetimes, certain i se dixit, but Mr. President, on a close search of the
record, ivecould fif no other arguments which seemed to be intended to
serve the purpose of advancing this proposition.
In the result we find that not a single one of these ar@rnents which
we have now very closely scrutinized, not a single one of them, can bear
any scrutiny whatsoever. The plain fact is that there areno words which
could possibly bear the meaning of çuch a qualification. There are no
words which can be construed as bearing that meaning. Applicants could
not possibly rely upon an interpretation, properly so-called. TheywouId
have to rely on an implication, and as we have indicated before, a
qualification, or anyterm or provision can be implied into an agreement,
particularly a written document, only if it is a necessary inference, to
the exclusion of a11otherreasonable inferences which one cm draw, that
the parties to the document, in fact, intended tliat sucha provision was
to govern their relationships. It must have been a case, we as indicated594 SOUTH WEST AFRICA
before, where the understanding between them was so clear that they
did not trouble to express it.
Now, hlr. President, one findç that the Applicants do not evcn addreçs
themselves to an enquiry of this kind with a view to seeing whether
they could justify this suggested qualification to be read in the mandate
instrument; and that is small wonder, because when one does approach
the matter along the lineç necessary for sucli an enquiry, one finds that
al1the available evidence as to the probable intent of the founders of the
systern goes oneway, and tliat is certainly not in favour of the Applicants'
contention; it is in directly the opposite direction.
Lct us turn first, llr. President, to theactual provisions of the relevant
instruments read in their context. The first question which strikes one,
then, is that if the authors of the Mandate did indeed have the intention
attributed to them by the Applicants, why didn't they give esplicit
effect to their intention? LVhy didn't they say so, instead of merely
saying that therc isto beareport to the Council of the League? Woulcin't it
have been a naturaI thing for thern to say that the Council is here, quite
exceptionally in international life after al], that the Council is to have
a special and a peculiar power in respect of the Mandatory. Surely it
would have been the most natural and the easiest thing in the world to
have inserted an appropriate clause in the mandate instrument. Perhaps
it would even have had to be foreshadowed in the Covenant itself in
order to have bee~itaken up in the mandate instrument; but nevertheless
the nature of the clause, or the wording of the clause, could have been
somewhat along these lines :
"The Mandatory will be obliged to give cffect to decisions of or
to standards prescribed by the Council, either by a majority vote
or by a unanimous vote save for the Ilandatory, in regard to
methods to be adopted for promotion of the well-being and progress
of the inhabitants of the Territory."
That;Mr. President, would have been a very casy clause to have
inçerted if there had indeed been any intent of that kind.
Ifwe look at the provisions of the Covenant in order to see to what
extent any proviçion whatsoever is made for States to be bound, in-
dependently of their consent, to decisions or resolutions that might be
arrived at by League organs, we find, %Ir . resident, that that matter is
treated as being one of an exceptional character. In the uvhole of the
Covenant it occurs very sparingly, and if it does occur, and where it does
occur, very explicit words are used with a view to giving espression
thereto.
In the first place, the Courtmay recaIl that the outstanding example
of this type of provision waç in Article15 of the Covenant,with reference
to that inost important consideration of peace-keeping, the Article
dealing with a reference to the Council of disputes likely to cause a
rupture. There, the Court will recaI1, provision was made for a report to
portion of ArticIet15 provided:n certain circumstances, and the rclcvant
"If n report by the Coiiiicil is una~iimously agreed to by the
members thereof, other than the Representatives of one or more of
the parties to the dispute, the filembers of the League agree that
thev will not go to war ~vithany party to the dispute which complies
with the recornmendations of the report." REJOINDER OF hlK.DE VILLIERS 595
That, hlr. President, is one of the exceptional cases where a decision
of the Council could also bind other Members of the League, although
those Mcmbers of the League had not given their assent to the particular
deciçion; but that was explicitly provided for in these tems, as we see.
We find in Article 5 there is the other well-known exception, the one
relating to procedure. There it is provided:
"Al1 matters of procedure at meetings of the Açse~nblyor of the
Council, including the appointment of committees to investigate
particular matters, shall be regulated by the Assembly or by the
Council, and may be decided by a majority of the Rlembers of the
Leaguc represented at thc meeting."
So therewas an exception to the unanimity principle; a majority could
bind a minority, but purely on questions of procedure.
Then, in regard to the Secretariat, the expenses of the Secretariat,
there was the basic provision in Article6, of course,wherc the Jlembers
undertook that "The expenses of the Secretariat shall bc borne by the
Members of the League in accordance with the apportionment of the
expenses of the International Bureau of the Universal Postal Union".
That in itsel+vasan agreement between al1the Members of the League,
but the Council was given a power in respect thereof in Article 24,
referring to International Bureaux,wherc the last portion of the provision
was to this effect: "The Council may include aspart of tlie expenses of
the Secretariat the espenses of anp bureau or commission which is placed
under the direction of the League."
The power is, again, very circumscribed, hlr. Presidcnt. Only in the
cases where those bureaux were placed under the direction of the League
could the Council take the decision that their expenses were to be
included inthe total pool to be apportioned.
Then there was one other provision; 1 think Artide 7 provided that
"The Council may üt any time decide that the Seat of the 1,eagushailbe
cstablished elsewhere", elsewhere heing elsewhere than at Geneva.
FinaHy, there is one portion of Article zz itself, namely paragraph 8,
which may be constnied-there may be possible differences of opinion-
as authorizing the Council to take a decision which rnay be binding even
on States that have not agreed thereto. That is the well-known one, that
"The degree of authority, control, or administration to be exercised by
the Mandatory shall, if not previously agreed upon by the Members of
the League, be explicitly defined in each case by the Council". The
question is whether even that could be made binding upon Rfandatories
without their consent. There are various possible views about it, but
there is the possible view that here was authority in advancc given to
the Council to rnake a binding determination of that kind, but again,
closely within the framework of the substantive provisions of Article 22
which had gone before.
Ry way of contrast we find, in the very important matter relating to
arrnaments in Article 8 of the Covenant, that provision is there made
for plans for production of armamcnts to be drawn up by the Council,
and then cornes this provision:
"After these plans shallhave been adopted by illeseveral Govern-
ments, the limits of arrnaments therein fixed shall notbc exceeded,
without the concurrence of the Council."
So here, 3Ir. I'resident, in thiç very important matter, even though5g6 SOUTH WEST APRICA
the Councilwas given the function and the power to draw up these plans
after taking al1 the factors into account, the plans were yet hst to be
submitted to the several governments concerned, to be adopted by them
before there was to be any binding nature in the determination made by
the Council in respect of these plans.
That, ;\Ir. Yresident, waçobviously the general basis upon which this
Covenant was drafted. It was a basis of proceeding by consensus, con-
sensus in the proper sense of the tenn, i.e., there was to be unanimity.
Where an exception was intended, where a State was to be bound by a
decision of any organ of the League, by any particular voting procedure
which would make it possible for that State to be bound without having
given a further consent, there were these explicit and ver- careful
provisions in these exceptional cases.
illr. President1was dealing withthe argument that al1the indications
afforded by the wording of the relevant basic instruments-the mandate
instruments themselves and the Covenant of the League-militate very
strongly against any suggestion that mandatories were to be bound,
againsttheir willand independently of their consent, by any instructions
that might be given them by a supervisory body, or by any standards
to be laid down for them by a supervisory body-if there was any
suggestion of anything of that kind. 1 had just dealt with the strong
indications afforded by the Covenant itself in that regard.
1 turn to the provisions of the instruments themselves-the mandate
instruments-but, let me turn, first, more particularly, to Article 22
of the Covenant under which the mandate instruments were issued.
The whole scheme which one finds there, Mr. President, again re-
futes entirely the idea which is suggested here, of a yower being
conferred upon a supervisory body to take decisions binding upon a
hfandatory, against the wiü of that Mandatory and without its co-
operation.
Paragraph I of Article 22 of the Covenant speaks of the principle
that the well-being and development of peoples of the colonies and
territories concerned form a sacred trust of civilization. And, then,
paragraph 2 proceeds tostate:
"The best method of giving practical effect to this principle is
that the tutelage of such peoples should be entrusted to advanced
nations who, by reason of their resources, their experience, or their
geographical position can best undertake this responsibility, and
who are willing to accept it, and that this tutelage should be exer-
cised by them as Mandatories on behalf of the Zeague."
That is where the League cornes in, hlr.President-that the tutelage
is exercised by these advanced nations "as mandatories on behalf of the
League", but the tutelage itself is entrusted, according to these espress
words, not to the League; it is entrusted to the "advanced nations"
themselves, and for specific reasons: by reason of their resources, by
reason of their experience, by reason of their geographical position-
those reasons ~vhichbring about that they, in the words of this provision,
"can best undertake this responsibility". The words could hardly have
made the situation more clear.
We go on, Mr. President. In paragraph 4 of Article 22, we see that,
where the A rnandated territories are dealt with, the role of the Manda-
tory is seen as that of "the rendering of administrative advice and REJOINDER OF hlR.DE VILLIERS
597
assistance by a Mandatory until such time as they [the cornmunities] are
able to stand alone".
Again, Mr. President, the advice and assistance are to be rendered
by a Mandatory. There is no suggestion here that the Mandatory in
rendering that advice and assistance is to comply, in its turn, with
instructions to be given to it by a superior body, in the form of standards,
or in whatever form it may be-that the hlandatory is to be bound in
that respect.
Then we go on to the much more explicit wording, in this context, of
paragraphs 5 and 6, relating to B and C Mandates.
First, paragraph 5 reads: "Other peoples, especiaIly those of Central
the administration of the territory under conditionse r..."nAgain, there
are the explicit words "the Mandatory must be responsible for the
administration of the territory", and the sarne is contemplated in the
wording of paragraph 6, even to a further degree. There the position is
stated to be that, owing to the various considerations mentioned with
respect to particular territories, including South West Africa, these "cm
be best administered under the laws of the Mandatory as integral portions
of its territory, subject to the safeguards above mentioned ...".
So, Rlr. President, again the position is rendered so absolutely clear:
it \vas the Mandatory that was to exercise this task, this function of
government, or administration, and not a council or any other body
superimposed upon it to give it instructions.
The provision which gives rise to the situation of accountability to
a supervisory organ is in paragraph 7 of Article 22, which simply says
that "In every case of Mandate, the Mandatory shall render to the
Council an annual report in reference to the territory committed to its
charge".
As we have said before, if thawas to carry with itthe contemplation
that the Council could, on receipt of such reports, deal with them in
such a way that it could, without the concurrence of the hlandatory,
give instructions to it or lay down bindi~igstandards for it, then one
would surely have expected that to be said.
Mr. Preçident, the wording is given added significance if recourse is
had to the history leading up to the compromise which went into Article
22 of the Covenant. We dealt with that at length in Our argument in
chief and it is unnecessary for me to enter into that matter in any detail
at ali at this stage. I can refer the Court to the record oI April which
deals with it overa number of pages, but, particularly, at VIII,page 351
of that record we surnmarized the situation with reference to the records
of that time on this particular point-that the original ideas, which
existed on thepart of certain of the leading personalities and States that
took part in the discussions of the Peace Conferences, the idea which
related to the possibility of control or anything ofthe nature of powers
of government being vested in the League; that the League was to give
out the Mandates on that basis (revocabie mandates, revocable at the
pIeasure of the League); that the Mandatory could, for instance, be a
national agency and need not necessarily be a State. and that sort of
thing, al1 that graduaIly developed into a new concept during these
discussions and because of the practical objections raised to notions of
that kind. It developed into a new concept, namely that the Mandatories
would be responsible and the League's function would be one of super- 5g8 SOUTH WEST AFKICA
vision, the control would, however, be in the hlandatories, as such. The
supervision woutd bc of the relatively Iesser kind, itwould be confined
to the questions wliether the legal obligations laid down in the mandates,
or the legal limits to powers, had been observed, and, further, it xvould
merely be a matter of CO-operating with the Mandatory, of giving it
advice and assistance, but not of instructing a Mandatory how it \vas to
exercise its discretion.
As 1 have said, that portion of the record deals with the matter very
clearly and enplains the compromise, and al1that evidence goes to refute
the Applicants' suggestion that there was to be read into the instruments
this contemplation of s power of laying down binding standards on the
part of a supervisory organ.
The mandates. themsclves, air. President, are of course to be read in
the light of Article22 ofthe Covenant and many of the features which
appear in Article22 of the Co1;enant apply to the mandate instruments
themseives. We find that there is an express grant of power to the
hlandatory, but no espress grant of power, whatsoever, to the League
or to an orgaiiizcd international community or to anybody other than
the Mandatory.
There is an express obligation placed upon the Mandatory "to promote
to the utmost", but no obligation placed upon anybody else in that
regard. The discretion is to be that of the Mandatory, as flows from the
~vording, and the Applicants' suggestion is really that one is to read
the grant of power and the grant of discretion as being subject to a
further limitation,one which is not exyressed at al1and one which runs
counter to the whole tenor and the whole scherne of the instrument.
Let us have a look at that scheme again as one findç it, for instance,
in the Mandate for South West Africa. Apnrt from the grant of power
andthe laying down of thebroad obligations "to promote to the utmost",
- we find Articles 3-5containing those specific obligations, which we noted
before, Article 6 containing the obligation to report, and Article 7 (1)
contemplating a consent as between Mandatory and the Council of the
Leagüe with a view to modification of the terms of the Mandate.
The ~vording of Article 6, MI. President, indicates that what is con-
templated by way of a supervisory function is something which looks
backward atwhat the Mandatory has done, not forward at what is to be
done by the Manclatory in thefuture, which, after all, is laid dowin the
basic instrument. The hlandatory's powers and obligations have been
defrned. It is not for the Council to define them again. It is for the Council
to see, in terms of this contemplation, this particular wording, what
rneasures have been taken to carry. out the obligations assiimed under
Articles 2,3, 4 and j.
Article 6 contemplates that :
"the Mandatory shall make to the Coiincil of the League of Nations
an annual report to the satisfaction of the Council containing full
information witli regard to the territory, and indicating the measures
taken to carry out the obligations assumed under Articles z, 3, 4
and 5".
Now, &Ir. President, let us test the scheme of the Nandate, taking
Articles 3 to 5 into account in conjunction with Article 7,paragraph 1,
on the basis of the AppIicants' contention, the contention that there was
intended for the Council a role of determining standards as time goes on, REJOINDER OF YR. DE VILLIERS 5'39
those stniidards then to be binding upon the Mandatory and to be applicd
for the bcnefit of the population.
If that was so, hlr. President, the question arises, why was it necessary
to have Articles 3 to 5 at ail? IVhy was it then necessary to have a
specific provision of thikiiid,that the supply of intoxicatiitg spirits and
beverages to the Natives shall be prohibited? 1 choose that one, Mr.
President, because itrelates in practice to something about which con-
ceptions might very easily change as time goes on. Why does the Council
in deter~nining the terms of this Mandate, tic its owrnhands as \vell as
that of the Mandatory-tie its own hands in the sense that if it wants
to aiter that provision, because it is now specifically stipulated Iiere, it
~vouldhave to act under Article 7,paragraph I,and obtain the Manda-
tory's consent? Why does not the Council sirnply reserve to itsclf the
positionof dealing with that matter by way of a standard being laid down
and beirig adapted and altered as the Council pleases as time goes on?
One could cite other examples here of matters in respect of which
conceptions could change with time, as time gocs on. Take, for example,
the whole scheme of prohibition against militarization except to the
Ijmited extent allowed for by Article 4. One knows thatby the time when
it came to a question of trusteeships those conceptions had already
changed. But the same argument applies here, Mr. President. Why did
the Council tie its own hands as well as those of the Mandatory? And
one could cite various other examples from Articles 3 to 5 which dern-
onstrate that same point. '
Looking at mandates in general, Mr. President, and looking at their
wording agninst the background of the conipromise history, surely the
suggestion of the Applicants would destroy the whole basis of that
compromise. In line with the argument 1 have just addressed to the
Court, the Court will recall the history of the concern on the part of
France to have a special stipulation in regard to the training of Natives,
in particular those of the ~nandated territories.Ifthere was a contempla-
tion that the Council could chop and change as itwished in regard to
laying down standards and so forth, why was France so rneticulous about
this? Why did France iiisist, in terms of whüt it said was a prcvious
cornpromisc idea, that that should go explicitly iiito some of the mandate
instruments, as in fact it did, in order to make her yositiori pcrfectly
clear for the future?
Mr. President, the suggestioii of a Council which could ovcrrulc al1
that by further standards to be laid down, simply does not fit in either
with the history or with the wording.
Now let us look at evidence which is virtually contemporary, evidcnce
as to how the matter was viewed in practice in the League circlcs.1 should
like to refer the Court to the report by M. Hymans, which has been
referred to so often for vnrious purposes in thcse Oral Proceedings, the
report of September 1920. This Ras even before the mandate instru-
ments had been completed and issued.One finds the report as a whole in
the League of Nations Oficial Jottrnal of September 1920, Xo. 6, as from
page 334. The headjng given to this portion of the 08ciaEJournal con-
faining this reportis a vcry significant one. The heading is this, "Obliga-
tions faHing upon the League of Nations under the tems of Article 22
of the Covenant (Mandate)". So, hlr. President, the name nlreadv
indicates, by referring to obligations falling upon the League undcr the
terms of Article 22,that if there was any conteniplation of a cornpetence600 SOUTH WEST AFRICA
on the part of the League of the nature contended for by my learned
friend, this wouldbe the place where it would be dealt witli: bccause this,
as the Court will recaii, was a very comprehensive report, indicating to
the organs of the League what was considered necessary, what steps were
to be taken, in order to bring this mandates system into operation,
how it would operate, and what the respective roles would be of different
organs of the League and of the mandatories themselves. So one wouId
certainly expect that that very important contemplation of a function on
the part of supervisory organs, to lay down standards as time goes on,
would at least be mentioned in this report.
But, Mr. President, one not only hds that it is not mentioned, one
finds the very opposite contemplation indicated, as 1 shall show. The
first page is introductory, referring to the provisions of the relevant
articles of the Treaty and of Article 22 of the Covenant. Then the
question is put in paragraph 2 at page 335 of this Journal: "LVhat are
the measures to be taken to ensure the observance of Article 22 and to
apply the mandatory system?", again indicating the broad scope of
this report.
At page 337 of this Journal M.Hyrnans then dealt with stcps to bring
the system into opcration. There we corne to a section headed "Deter-
mination ofthe terms of the Mandates", and in that wefind this passage:
"The degree of authority, control or administration issofar as 'B'
or 'C' Mandates are concerned, a question of only secondary im-
portance.
In the former case, as in the latter [that is, as I understand it,
in the case of B as well as oC mandates], the Mandatory Power will
enjoy in my judgrnent a full esercise of sovereignty, in so far as
such exercise is consistent with the carrying out of the obligations
irnposed by paragraphs 5 and 6 [paragraphs 5 and 6, of course, of
Article 221. In paragraph 6, which deaIs with 'C' Rlandates, the
scope of these obligations içperhaps narrorverthan in paragraph 5,
thus allowing the Mandatory Power more nearly to assimilate the
Mandated territory to its olvn. I, therefore, concludc thût it is not
indispensable that 'R' and 'C' should contain any stipulation
whatever regarding the degree of authority or administration."
hlr. President, of course the learned author of the report indicated
later, as I shall quote to the Court again, that it was a controversial
matter as to where the fulIconcept of sovereignty in the traditional sense
of the word would lie,and his remark about sovereignty here is to be read,
of course. subject to that observation. But even then he says that in his
judgrnent the mandatory power \vilenjoy "a fullexerciseofsovereignty"
-the concept of the exercise of sovereignty, that is to be vested in the
mandatory. If there had been any conteinplation on the part of this
author that in regard to the exercise of sovereigmty there was to be a
reservation or a qualification, in the scnse that part of that would be
vested in the Council, as the supervisory body, which could lay down
civilizing mission, then surely, Mr. President, that would have been said
and this statement would not have been made in this unqualified form.
But the matter does not end there. I turn over a page or two and 1
corne to the section headed "The Extent of the League's Right of
Control", control here in the context, as commentators have indicated, REJOISDER OF MR. DE VILLIERS 601
clearly meaning supervision, used in that sense. Let me refer totheactual
wording here. But before 1do so, Mr. President, here again, if there had
been any contemplation of the type of function seen for the Council by my
learned friend's contention, surely one would have expected it to have
been dealt with here. But we find that in the very first paragraph the
very opposite is indicated :
"1 shall not enter into a controversy-though this would certainly
be vcry iiiteresting-as to where the sovereignty actually resides.
\Ve are face to face witli a new institution. Legal erudition will
decide as to what extent it can apply to this institution the older
juridical notions.In the sarne way, whether the League of Xations
is responsible in respect of the Alandatory Powers appears to be a
moral rather than a legal question. For there is no legal respon-
sibility exceptin respect of another person."
1 pause there for a moment. It seems that that sentence is intended to
indicate that onecannot speak of a legal responsibility, a legal obligation,
unless it is an obligation in respect of another person. The theme appears
to be that that is a factor which indicates that, asfar as the League was
concerned, one could speak only of a moral obligation and not of a legaI
obligation. In fact, the author proceeds to make that point explicitly.
1 quote again:
"Now, the responsibility of the League of Nations could only
occur in respect of the populations who are under Mandatory rule.
But it is difficult to seein what way this responsibility would be
organised or what measures could enforce it. Quis custodietipsos
custodes? The responsibility of the League before the public opinion
of the civilised world will in point of fact be a moral one."
So,Mr. President, here is direct refutation of this suggestion that the
real trust obligation in lawwasconferredupon the League as an organized
international community or as the organized international community.
The author specifically says in his contemplation, "the responsibility
of the League before the public opinion of the civilized world will in point
of fact be a moral one".
We proceed and come to a passage which has often been quoted to the
Court, in these proceedings also, for different purposes, but the passage is
significant for present purposes and therefore 1 should like to refer to
aspects of it. The author states:
"The practical and positive question appears to me to be the
foIlowing:
\mat will be the responsibility of the Mandatory Power before the
League of Nations, or in other words, in what direction will the
League's right of control be exercised?"
Here, especially, we come to the stage where, if that relationship between
the League and the mandatory power would involve for the League this
standard-creating cornpetence, this is where one would expect it to be
stated. But what does the author proceed to state? He concerns himself
only with the two questions referred to before, namely-
"1s the Council to content itself with ascertaining that the
Mandatory Power has remained within the limits of the Poii-ers
which were conferred upon it, or is it to ascertain also whether the
Mandatos. Power has made a good use of these powers, and tvhether602 SOUTH WEST AFRICA
its administration has conformed to the interests of the native
population?
It appears to ine that the wider interpretation should be adopted.
Paragraphs I and 2 of ilrticle22 have indicated the spirit whch
sIiould inspire those who are entrusted with administering peoples
not yet capabIe of governing theinselvcs, and have deterrnined that
this tutelage should be exercised by the States in question as
Mandatories and in the name of the League [an interesting way of
expressing that concept 'in the name of the League']. The Annual
Report stipulated for in Article 7 should certainly include a state-
ment as to the whole moral and material situation of the peoples
under the Mandate. It isclear, therefore, that the Council also should
examine the question of the whole administration. In thismatter the
Councilwill obviously have to display extreme prudence so that the
exercise ofits right of controshould not provoke any justifiable com-
plaints, and thus increase the difficultieof the task undertaken by
the Mandatory Power."
This iswording, bfr. Yresident, indicating that what is spoken of here
as a right of control, or a right of supervision, is to relate to the whole
administration-to the question of what the Mandatory has done-
~vhether it has remained within the limits of the powers, and also whether
ithns made a good use of these powers, and intimating in this latter
respect that extreme prudence jsto be exercjsed by the Conncil in the
exercise of its function.
So, Mr. Presideiit, that,1 subrnit, is the most pertinent cvidence one
could have, almost esactIy contemporaneous, indicating thetotal absence
of any such contemplation as is contended for by the Applicants, and,
indeed, a very opposite contemplation, viz., that there was to be no
legal responsibifty on the part of the League.
Shortly aftenvards, Mr. President, in the League time, we find the
practice of the actuaI supervisory organs again throwing further very
significant light on the contemplations in this particular respect. The
matter is dealt with by the well-knowvncommentators Quincey Wright,
Duncan Hall, and Norman Bentwich, but wc did not find the Applicants
referring to any of these, or any single authority, in support of this
contention, Mr. Presidcnt, for the simple reason that, as far as we could
ascertain, there is none which even contains a vestige of support forwhat
the Applicants are urging upon this Court.
LVedealt fulIy with an earlier attempt which the Appiicants had made
to rely upon a passage in Quincy li7right, in Our argument in clüef in
the verbatim record of 26 April, at VIlI, pages 684-685, and we pointed
out there that what emerges very clearly is that the author quoting
what had been said by the various organs of the Leaguc, spoke of the
functions of supervision consisting of two parts-one of criticismby law,
in which no hesitancy was shown at all-in other words, seeirig whether
the Mandatory complied with the spccific provisions and obligations
laid upon it-and, secondly, the other function of CO-operatingwith the
Mandatorv; there the field of possible action was a much wider one,
but the attitude displayed was a much more reticent one, and we find
that the author specifically states that for thatpurpose standards were
laid down from tirne to tirne, but purely as non-binding suggestions-
in other words, standards in the ordinary sense of the term-standards,
as the author himself stated, for the guidance of the organs themselves REJOINDER OF &IR. DE VILLIERS 603
and subject to modification by experience. That, 1 think, hlr. President,
is a very fair reflection-asfair as we can make it-of what Quincy
Wright explicitly States in this regard, and have had no nnswer to that
in the oral reply.
Our main addition now, seeing the nature of the contention which has
now been advanced to the Court in the oral repiy, will refer to Duncan
Wall,Mandules, DependenciesaladTrusteeshi$, and 1refer to the following
passages at pages 48-49, to commence with:
"4. The Mandates Commission and its Proccdures
An effective international supervision over the working of the
mandates was secured largely though the Permanent Mandates
Commiçsion. An important feature of this supervision was that it
waç exercised long after the event, through it could affect, and
often did, the existing and future action and policy of the adrninistra-
tion of a territory."
If 1 may break there, Mr. President, the author went on to explain
how it came about that the report might cover a particular year and it
might be a long period, six to twelvernonths, ïvhich might elapse before
the report was considered and he mentioned extreme cases that might
occur :
". ..in the extreme case the Commission might not actually examine
a situation whicli occurred in January,1935 until June or October,
rg36"+
He proceeded to state:
"By the time it had received and examined answers toits questions
in the next annual report a further six to twelve rnonths might have
elapsed. Therefore the supervision exercised by it was essentially
srtpplemerztary;since during the actual course of the year süper-
vision had already bcen esercised by the national government and
parliament of the mandatory power as in the case of any normal
dependency.
Not even the outbresk of a world war could deflect the Commission
from its rule that itwas precluded from enquiring into the events
of the current year unless the accredited representatives chose to
supply data in advance of the annuaI report'TheCommission's report
to the League Council on its last (thirty-seventh) sessi011jn De-
cember, 1939, under the hcading 'The Mandated Territories and tlie
War', stated:
'The Commission has deliberately refrained from anticipating
the events of 1939 by examining the situation created by the
present war in connection with territoriesplaced under the
mandate of belligerent Powers. It 1511do so in the light of the
information with which these mandatory ISowerssupply it when
they give an account of their stewardship during 1939. "'
Thcn, Mr. President, at page gr, after furthercliscuçsion upon these
lines, towards the bottom of the page and running on to the next page,
the author stated a conclusion, as follo\vs:
"In practice its main rôle [that is the maroleof the Commission]
tended to be of an Old Testament character. It was the keeper of the
Ten Commandments of Article zq of the Covenant. It looked on
itsclf as charged with bringing to light breaches and urging their6~4 SOUTH WEST AFRICA
rectification. It was zealous, though very diplomatic, in the exercise
of its legal powers. But it was reluctant to step outside these powers
and to offerpositive suggestions to the mandatory powers as to how
the territories should be adrninistered alid developed. In short, its
attention was fixed mainly on judging past events and particular
situations, ratherthan upon prescribing future action."
The practical importance of this attitude, Mr. Yresident ,is stressed
further by these remarks, which runon to page 52:
"Its reports to the League Council (as Lord Kailey, one of itç
members, has pointed out) usually consisted of 'requests for further
information, or in expressions of hope that the next annual report
will indicate an improvement in an unsatisiactory situation'. Thus
few, if any, of the maiiy important positive developments that took
place in Africa in the way of increasing self-government, health
measures, sanitation, education, the application of science to the
problems of the African environment, labour legislation, and many
others that are chronicled in An Ajrican Sncniey,were due to any
direct initiative on the part of the Mandates Commission."
These remarks are entirely in keeping, hIr. President, with the
submission 1 stated to the Court before-a contemplation. that the
Mandatory was to be trusted with tasks of that kind. The Mandatory
was to seewhat the needs ofa particular people and a particular territory
were. The Mandatory was to minister to those needs thus ascertained.
This is something entirely in conflict uith the suggestion of the nature
made by the Applicants that there are to be general standards laid dom
by international bodies which are sitting overseas, as far as the mandatory
territories are concerned, making general rules of an a priori character
to be applied to the administration of mandated territories generally.
Then, in the same work by Duncan Wall, a further reference to the
attitude, not only of the Commission, but also of the Council of the
League, is made at page 206. There the author referred to a reaction
which came about in the Councilin 1926,when it was thought that there
were signs that the Permanent Mandates Commission might be assuming
to itself too many powers, or powersofatoo far-reaching nature,in respect
of supervision of mandatory administration. 1quote from page 206:
"Warnings given fromtime to time in the Councilthat it must not
seek to enlarge its powers and play a political r6le culminated in the
storm over the enlarged questionnaire when the latter came before
the Council in 1926."
The Court will recall the suggestion of an enlarged questionnaire
which came from the Permanent Mandates Commission itself. The
quotation proceeds :
"The Council on that occasion not only had before it the new
questionnaire, which increased the number of questions put to ,
governments from 60 to nearly 300, but also the suggestion of the
Commission (in its report on Syria) regarding the possibility of
hearing petitioners in person. Sir Austen Chamberlain (Great
Rritain) objected in the Council that the questionnaire was 'in-
finitely more detailed, infinitely more inquisitorial', than the pre-
vious one and that there was a tendency on the part of the Com-
mission 'to extend its authority to a point where the government REJOlNDER OF MR.DE VILLIERS
605
would no longer be vested in the mandatory Power but in the
Mandates Commission'."
May 1 break off there for a moment. That tendency, which was
thought to be perceived in the actions of the Permanent Mandates
Commission, was firmly resisted in the Council. The passage proceeds:
"The South African representative, hZr. Srnit (who again rep-
resented his country at the tnisteeship discussions at San Francisco
in 1945). said ahat 'the jmpressjon had grown in the mandated
territory ... that the more it developed constitutionally the greater
the assumption by the Permanent hlandates Commission of power
to direct the government in the territory'. Al1the representatives
of the mandatory powers at the Council opposed the enlarged
questionnaire, and their governments, to whom the question was
referred by the Council, supported them."
Now, the next passage is a significant one. It reads this way:
"This episode in some ways marked aturning point in the history
of the Commission. The continuity of its membership gave it ample
time to store up and reflect upon its experience. The rcsult was that
maximum results. That policy was one of collaboration with theïv.ethe
govemments, combined with a firrn adherence to the principles of
the mandates system. The classical passage in its proceedings, in
which it laid down this line of policy at its eighth session, reads as
follows:
'The task of the Commission is one of supervision and of co-
operation. It is its duty, when carefully examining the reports of
the mandatory powers. to determine how far the pnnciples of the
Covenant and of the Mandates have been truly applied in the ad-
ministration of the different territories. But at the sarne time it is its
duty to do the utmost that lies in its power to assist the mandatory
Governrnents in carrying out the important and difficult tasks
which they are accomplishing on behalf of the League of Nations,
and on which they render reports to the Council'."
We pause there for a moment to stress the author's reference to the
same dual aspect of the function as referred to by Quincy Wright.
The quotation from the report of the Permanent Mandates Commission
itself, continues to read as follows, and this part seems ta me, ivith
submission, to be particularly significan:
"Supervision and CO-operation are functions which, though
neither incompatible nor in conflict with one another, may yet be
accompanied with genuine difficulties when they have to be carried
out simultaneously. If the task of the Mandates Commission were
mereiy to supervise the administration of the mandated territories,
it would be natural thrit, in al1 difficult cases, it should propose to
visit these territories itseif, or should recommend the holding of
enquiries on the spot. If, on the other hand, the rble of the Mandates
Commission were rnerely to facilitate the task of the mandatory
Power, it should offer it lavish encouragement and abstain from
passing any critical judgments which, if conveyed to the population
the Government more difficult of execution."nd render the task of606 SOUTH WEST AFRICA
Mr. President, if 1 may pause there again fora moment, tliis inter-
relationship which the Commission çaw between the two aspects of its
functions, seerns to be of the utmost importance. Even in its function of
criticizing in accordance with law, superviçing in that respect, the
Commission saw that it was to exercise tact and discretion; but the
Commission said that if it were to fulfil that function in a11detailed
aspects, it would probably have to do more than it was doing at this
stage; it might have to visit the territory and conduct enquiries on the
spot. But that, Mr. President, would militate against wkat was seen as the
function of the filandatory Power in which this Commissionwas supposed
to CO-operate. The Mandatory Power might then be embarrassed in its
relationship to the population of a territory; and therefore, even in that
respect, this Commission was to exercise reticence. If it was exerciçing
that reticence even in regard to its admitted functions of seeing whether
the provisions of the mandate instruments and the obligations laid
down by the Covenant were properly complied with, if it was cxercising
reticence in that respect, Mr. President, how much more wouId it not
have exercised reticence in respect of a suggested function, such as
underlies the Applicants' contention-a function of ordering the Nan-
datory as tothe way in which it waç to proceed in its discretionary field-
a function of laying down standards intended to be binding in that
respect. One could just imagine what the reaction of the Mandatory
Powers ~ould have been.
The author proceeds to discuss, at page 207, the manner in which the
Commission proceeded :
"It felt its way forward cautiously and with restraint; working,
as the Covenant intended it to work, on the basis of the annual
reports; trailing therefore necessarily six to eighteen months after
eventç; keeping up n steady pressure of skilful questions; rarely
criticizing, and whereitcriticized, not failing to commend the action
of the mandatory powers where cornmendation seemed called for;
and still more rarely making recommendations which had a bearing
on the future. Socarefully had the Commissionsucceeded in avoiding
political rôles that when in 1939 itwas called upon to express an
opinion on the British White Paper on Palestine (which itproceeded
to do), Professor Rappard drew the attention of the Commission to
the significance of the request. l'lie Commission was açked, he
pointed out in substance, to give its views on a political intention,on
a program of future action."
1think that issuficient from Duncan Hall, &Ir.President, to emphasise
the limit which was set to the supervising Lunctions inpractice; a very
far cry from the extension to the wording of the instruments contended
for by my learned friend.
In the last place 1 should like to refer just to a brief passage from
Bentwich's The Ma?zdatorySystem, at page 116. He states:
"The Commission, however, has been at pains to make it clear
that it is not concerned itself, and that the Council of the Leagile is
not concerned, with the administration of the mandated territory,
which is the esclusive function of the Mandatory Power. Thus, in
dealing ~ith a report on Samoa in 1927 ,fter there had been trouble .
in the island due to an agitator who aroused the people with stories
that the Council of the League would interfere on their behalf, KEJOIKDEK OF hlK. DE VILLIERS
607
the Commission stated ernphaticalty that the Mandatory alone is
responsible for law and order."
Ço, Mr. President, that givesa picture-clearer1 submit it could hardly
be-of how the matter was viewed and put into practice in the time of
the Lcague, entirely cotitrary to this subrnission of the Applicants.
That being so, Mr. President, surely the whole bottom falls out of this
contention of the Applicants. Where can they go beyond the League
tirne, in the absence of findirig that the law and the practice asat that
stage showed support for their contention?
We subrnit, of course, that with the dissolution of the League the
supervisory function-the supervisory powers-the obligation of ac-
counting at al1 to a supervisory authority-fell away and if we are
correct in that respect, Mr. President, as we submit we are, theri it seems
that the whole basis upon which the Applicants still argue, that the
Respondent is standing in some relationship to an organized international
community which would require itto take orders from that community,
would fa11away altogether.
But let us for the moment, for purposes of argument, view the matter
on the basis upon which the Applicants put it, namely that there is
accountability now owed to tlie United Nations. They relp in that respect
on the finding of this Court in the1950 Opinion, and they ask the Court
for reaffirmation of that Opinion.
Now, the Court will recall that, towards the end of dealing with this
question of supervision, at page 138 of the 1950 Opinion, there occurs
ü statement xvhiçh led to two further requests in the 1950s for advisory
opinions. That statement came in this passage at page 138:
"It follows from what is said above that South-West Africa is
still to be considered as a territory held under the Mandate of
Ilecember 17th, 1920. The degree of supervision to be esercised by
the General Assembly should not therefore exceed that which applied
under the Mandates System. and should conform as far as possible
to the procedure followed in this respect by the Council of the
League of Nations. These observations are particularly applicable
to aiinual reportsand petitions."
That is the whoIe passage in its context. One secs, Mr. President, as
far as that middle sentence is concerned, the two idcas: "The degree of
supervision to be exercised by the General Assembly should not therefore
exceed that which applied under the &fandates System." This relates
back to the previous sentence to the effect that South West Africa is still
to be considered to be a territory held under the Mandate.
So the basicidea here appears to be this, Mr. President, that this was
a continuation of a situation which had existed in law under the mandates
systern. There was a differencc of opinion later whether it related to the
actual practices in some respects or to the legal situation itstood then,
but for the purposcs of rny argument that difference of opinion is not
relevant. 1 am only concerned with that idea of continuing with a situa-
tion as under the Mandate.
Now, Mr. President, we analysed the situation as under the Mandate,
and as it is necessary for my learned friend to take that as his basis for
moving from the Mandate to the new regime of the United Nations, how
could he possibly hope to contend for this power on the part of suggested
supervisory organs within the United Nations?608 SOUTH WEST AFRICA
So, Mr. President, the argument 1have just addressed to the Court,
in my subrnission, conclusively shows that there is no justification
whatever for reading into the Mandate the suggested implications, even
only in respect of supervisory bodies and a fortiorin respect of an
organized international community or the organized international com-
munity in general.
I turn nevertheless, Mr. President, to the United Nations regime in
regard to trusteeship, because it is significant in furthering the refutation
of the Applicaiitç' suggestion. Do wc there find the powers contended
for by the Apylicants on the part of the supervisory bodies, even in
respect of trusteeship? The answer, Mr. Presidcnt, is again-having
regard to the wording of the relevant provisions and the practice and
comment in that respect-very clearly in the negativethat is, despite
the fact that these tnisteeship agreements di contained a provision in
terms of which the administering authority bound itself "to collaborate
fully with the General Assembly of the United Nations and with the
Trusteeship Council inthe discharge of al1their functions as defined in
Article 87 of the United Nations Charter".
That is an innovation, of course, which did not find its place in the
mandates system and nevertheless, there was no suggestion in practice,
which I could find or on the part of cornmentators or authoriti esat
there was any binding authority given to supervisory organs in respect
ofOnhethesucontrary, the commentators emphasized that there was no
binding nature in the ~esolutionswhich could be taken bythe supervisory
authorities in that regard. We find the relevant provisions of the various
trusteeship agreements citedby Kelsen, in thLaw of the Uded Nations,
at page 630, in footnote 8. The author specifically addresses himself in
the text to the question of the precise effect of actions of the General
Assembly and the Tmsteeship Council in the sphere of tmsteeships, and
he states at that page,630:
"As pojnted out,the supervision of the trusteeship administration
is exercised by actions of the Organisation determined-withrespect
to those within the cornpetence of the General Assembly and the
Trusteeship Council-bp Articles 87 and 88 of the Charter. ihat is
the nature of these actions relating to the administering authority?
Do they have the character of mere recommendations or are the
unilaterai acts binding upon the adrninistering authority? Chapters
which can be answered only in accordance witherring ta trusteeshipon
agreement by which the respective cornpetence is conferred upon
the Organisation."
Having examincd the various agreements, hlr. President, the author
then concludes as follows, at the sarne page: "None of the trusteeship
agreements establishes a strict obligation of the administering authority
to comply with a unilateral decision of an organ of the United Nations."
That is the end of the quotation from KeIsen.
An occasion on which judicial consideration was given to this matter
was when the opinion was requested of this Court in the VotinProcedure
view as was expressed by Kelsen, whichin 1 have just read to the Court,
was expressed very forcibly by Judge Lauterpacht in his separate REJOINDER OF MR. DE.VILLIERS 6~
O inion, and with reasoning and quotation of relevant material in support
Of that view. He concluded that resolutions of the General Assembly
normaily referred to recommendations: ". ..whose legal effect, although
not always altogether absent, is more limited and approaching what,
+ when taken in isolation appears to be no more than a moral obligation."
That is in theI.C.J. Reports1955,at page 116.Then follows, Mr. Presi-
dent, this significant passage at the same page:
"This, in principle, is also the position with respect to the
recommendations of the General Assembly in relation to the ad-
ministration of trust territories. The Trust Agreements do not pro-
vide for a legal obligation of the Administering Authority to comply
with the decisions of the organs of the United Nations in the matter
of trusteeship. Thus there is no legal obligation, on the part of the
administering authority to give effcct to a recommendation of the
General Assernbiy to adopt or depart from a particular course of
legislation or any particular administrative measure. The legal
obligation resting upon the Administering Authority is to administer
the Trust Territory in accordance with the principles of the Charter
and the provisions of the Trusteeship Agreement, but not necessarily
in accordance with any specific recommendation of the General
Assembly or of the Trusteeship Council. This is so as a matter both
of existing law and of sound principles of government. The Ad-
ministering Authority, not the General Assernbly, bears the direct
responsibility for the welfare of the population of the Trust Territory.
[May 1 pause there for a.mornent, still basically the sarne position
as in the case of the League with regard to the Mandate.] There is
no sufficient guarantee of the timeliness and practicability of a
particular recommendation made by a body acting occasionally
arnidst a pressure of business, at times depnved of expert advice
and information, and not always able to foresee the consequences
of a particular rneasure in relation to the totality of legislation and
administration of the trust territory. Recommendations in the
sphere of trusteeship have been made by the General Assembly
particular recommendation is binding in the sense that there isch a
legal obligation toput it into effect is to run counter not only to the
paramount mle that the General Assembly has no legal power to
legislate or bind its Members by way of recomrnendations, but, for
reasons stated, also to cogent considerations of good government and
administration." (I.C.J. Reports 1955.)
Therein is an exact endorsement, with respect, Mr. President, of the
argument 1 have addressed to the Court this morning with reference to
the League System. The quotation proceeds:
"In fact States administering Trust Territories have often asserted
their right not to accept recommendations of the General Assernbly
or of the Trusteeship Council as approved by the General Assembly.
That right has never been seriously challenged."
Examples are then given, hlr. President, which are rather interesting,.
a British Mandate where there had apparentlye concbeennga suggestion that
r... the existing tribal structure in Tanganyika is an obstacle to the
political and social advancement of the indigenous inhabitants ...".610 SOUTH N'EST AFRICA
The Adrninistering Authority rejected this on the ground that-1 quote
at page 1x7-"the great mass of the people everywhere are strongly
attached to their tribal institutions and in most cases offer strong
resistance to any suggestions of serious modification". One might Say,
Mr. President, there is a suggestion there of an applicationof something
like a standard of non-differentiation seriously opposed by the adminis-
tering power.
Then there was an example in regard to Western Samoa where there
waç a recommendation for the introduction of a syster? of universal
suffrage applicable to al1 inhabitants of Western Samoa. The Adminis-
tering Authority informed the Council that-
"it would be entirely wrong to force on the Sarnoans any radical
change in their customs since the introduction of universal sufirage
at this stage would be incompatible with that respect for Samoan
culture to which it and the Government of Western Samoa are
equally urged by the Trusteeship Council".
The next exarnple related to a case in Nauru where the Australian
Government, as the Adrninistering Authority, explained that it was
unable to act upon a recommendation regardhg investment of funds;
and the last one concerned the Pacific Islands Trusteeship Agreement
in respect of which the United States was the Administering Authority.
There, the recommendation was the reconsideration of a head tax in the
Pacific Islands. The Administering Authority explained why, in its
opinion, this was a satisfactory and desirable form of tas under the
economic and political conditions prevailing in the Trust Territory.
Mr. President, having referred to these esamples, the learned judge
proceeded to state that while administering authorities are not bound
to give effect to a resolution or recommendation, they are at least bound:
"to give it due consideration in good faith" (p. 119). The relevant
passage thereafter reads as foIIows:
"Both principle and practice wouId thus appear to suggest that
the discretion which, in the sphere of the administration of Trust
Territoriesor territories assimilated thereto, isvested in the Members
of the United Nations in respect of the Resolutions of the General
Assembly is not a discretion tantamount to unrestricted freedom of
action. It is a discretion to be exercised in good fait.. .Althotigh
there is no automatic obligation to accept fully a particular re-
commendation or series of recommendations, there is a legal obliga-
tion to act in good faith in accordance with the principles of the
Charter and of the System of Trusteeship. An administering State
may not be acting illegally by declining to act upon a recomrnenda-
tion or series of recommendationç on the same subject. L3utin doing
so it acts at its peril when a point is reached when the cumulative
effect of the persistent disregard of the articulate opinion of the
question has became guilty of disloyaltp to the Principles ande in
Purposes of the Charter. Thus an Administering State which con-
sistently sets itself above the solemnly and repeatedly expressed
judgment of the Organisation, in particular in proportion as that
judgment approximates to unanimity, may find that it has over-
stepped the imperceptible line between impropciety and iiiegality,
between discretion and arbitrariness, between the exercise of the REJOINDER OF MR. DE VILLIERS 611
legal right to disregard the recommendation and the abuse of that
right, and that it has exposed itself to consequences legitimately
following as a legal sanction." (I.C.J. Repor2s 1955, p. 120.)
Again, Mr. President, 1 may juçt Say by way of comment, that that
concurs completely, in our submission, xvith the argument we have
addressed to the Court on situations of this kind-a difference between
acting iiiegally automatically and an element of fact which can be taken
into account in order to see whether a discretion has been uçed lawhilly
or whether it has been abused.
[Public heuring O/14 Jtrne 19651
Mr. President and honourable Members, the Court will recall that at
the conclusion of my address on Friday I had just finished quoting to
the Court a rather lengthy extract from the separate opinion of Judge
Lauterpacht in the Voling Procedure case in 1955T .he context of it, the
Court will recall,was that of our answer to the Applicants' contention
relating to standards as distinct from noms. The Court will recail that
the Applicants' "standards" contention is to the effect that standards
could be laid down either by the organized international community in
general, or by specific supervisory organs in respect of mandatory
administration, and that those standards would then be binding upon
the Mandatory in its administration of the territory; they would consti-
tute authoritative interpretation~ binding upon the mandatory and
binding upon the Court in regard to the interpretation and application
of Articlez,paragraph 2, of the Mandate.
The Applicants started with a basic difficulty in that standards, as a
matter of notion or as a matter of concept, are in themselves never
binding rules. The Applicants therefore had to find a bais for saying
that standards could in this context nevertheless be said to be binding
in law upon the Mandatory, and theyattempted to find that by reading
a qualification into the mandate instrument itself, a qualification to the
effect that in its administration of the Territory the Mandatory would
be bound by standards laid down either by the organized international
community or by specific supervisory bodies. CVepointed out, Mr.
President, that that contention was said to rest upon an interpretation
of the mandate instrument, but that, in tmth, it could not rest upon
interpretation because there were no words, no provisions whatsoever,
in the mandate instrument or in the attendant, basic instrument,
Article 22 of the Covenant, which could lend any colour whatsoever to
that contention-no words which could be interpreted to that effect.
Therefore the argument had to reçt upon an implication in the basic
instruments, an implication based on necessary inference from al the
relevant evidential material as to the probable intent of the founders
of the mandates system. \Ve dealt with the whole field in that regard,
and indicated that the evidence and the relevant indications al1tend
one way and one way only, and that is not in favour of the Applicants'
contention; it is directly contrary to that contention. We dealt with
the wording of the relevant instruments and the indications afforded by
them and, also by the Covenant of the League as a whole. We dealt,
Mr. President,with the relevant antecedent history, with the compromise
history of Article22 of the Covenant and with the pertinent indications
that it afforded,We dealt with the virtually simultaneous, or contem-612 SOUTE MTST AFRICA
poraneous exposition in the report of Mr. Hymans. We dealt with the
indications afforded by the actual practice of the League supervisory
organs, as stressed bythose organs themselves according to the relevant
records and by commentators upon their activities. That brought us,
then, to the end of the League period.
Wecame to the regime ofthe United Nationsrelative tothe trusteeship
system, and also relative to possible supervision of the Mandate for
South West Africa on the basis of assuming, for purposes of argument,
as the Applicants do, that the Opinion of the Court in 1950 on that
question was correct. And we pointed out that there also the conternpla-
tended directly against the Applicants' contention, and in no way lent
any colour to it whatsoever. It waç in that context that we cited the
extracts from the separate opinion of Judge Lauterpacht in 1955i, n the
Voting caçe-extracts which, as the Court wiii recall, alço referred to
very pertinent attitudes taken up by various administering authorities,
States administering trusteeshipç under the regime of the United Nations
tmsteeship system, that is, instances where the administering authorities
very firmly took up the attitude that they were not bound by recommen-
dations made by the supervisory bodies, and that they would, in the
particular instances, decline to follow them because they did not regard
them as being in the best interests of the inhabitants of the respective
territories.
1 proceed then, Mr. President, to the separate opinion of Judge
Klaestad in those same proceedings and in the same context. If anything,
his view to the same effect was stated even more ernphatically. 1 quote
from the I.C.J. RePorts1955,at pages 87-88:
"Article 18[that is, of the Charter] does not make any distinction
between 'decisions' and 'recommendations'. It refers to 'decisions'
as including 'recomrnendations'. These decisions of the General
Assembly on 'important questions' are of different categories. Some
the election of members of the various organs of the United Nationse,
or decisions approving the budget of the Organization by virtue of
Article 17.Someother decisionsare recommendations in the ordinary
sense of that term, having no binding force. Kecommendations
adopted by virtue of Article IO concerning reports and petitions
relating to the Territory of South-West Africa belong inmy opinion
to the last-mentioned category. They are not Iegally binding on the
Union of South Africa in its capacity as hlandatory Power. Only
if the Union Government bpa concurrent vote has given its consent
to the recomrnendation can that Governrnent become legally bound
to comply with it."
Mr. President, inthe other opinions given in those proceedings-the
Opinion of the Court, and, 1 think, the only one other separate opinion,
that of Judge Basdevant-there were no views in conflict with these
expreçsed by the two learned judges whom 1 have cited, Judge Lauter-
other judges took of the situation, unnecessa- onfor them to enter intoe
this aspect of the matter in any detail at all. The Court will rccall that
all the judges came to the same conclusion ultimately in the inatter which
was put to the Court for its advisory opinion. 1may refer the Court to RE JOINDER OF MR. DE VILLIERS 613
a passage in the Opinion of the Court itself, at page 76, which indicates,
without going into tlis measure of detaii, a broad concurrence of view
in this particular respect. The passage begins by stating:
"lt is to be recalled that the Court, in its previous Opinion,
stated that 'The cornpetence of the General Assembly of the United
Nations to exercise such supervision and to receive and examine
rcports is derived from the provisions of Article IO of the Charter,
which authorizes the General Assembly to discuss any questions
or any matters within the scope of the Charter and to rnake
recommendations on these questions or matters to the Members of
the United Nations'."
That is the end of the quotation from the previous Opinion, and the
passage proceeds :
"Thus, the authority of the General Assembly to exercise super-
vision over the administration of South-West Africa as a mandated
Territory is based on the provisions of the Charter. While, in
exercising that supervision, the General Assembly should not dcviate
from the Mandate, its authority .to take decisions in order to effect
such supervision is derived from its own constitution.
Such being the case, it follows that the General Assernbly. in
adopting a method of reaching decisioiis in respect of the annual
reports and petitions concerning South-West Africa should base
itself exclusively on the Charter."
The general statement of principle is then specifically directed to that
question which \vas in issue before the Court, namely the qucstion of
votiiig procedure, but 1 submit, hlr. President, the Court made the
general contemplation perfectly clear-that what the Assembly would be
doing here would be acting exclusively, as far as its authority was
concemed, as an organ of the United Xations; it would be acting in
terms of the authority given to it in Article IO of the Charter, which
is an authority to make recommendations and nothing more.
So, Mr. President, having regard to al1 the evidence stretching over
a period of 45 years and more of the history of the basic instruments, of
practice within the time of the Lcague in the League organs, of comment
on that practice, of practice within thUnitcd Nations thereafter, and of
comment on that practice, we find that after al1thistimethere is not one
shred of evidence orof comment which favours this suggestion of the Appli-
cants, of an implication to bc rcad into the basic mandate instrument.
Surely if there was any suggestion of even a possibility of a tacit
agreement on that point, of a general understanding which was so
clear that the parties to it did not trouble to put it in writing becauseit
was too cIear, somebody ovcr al1these years would have raised thnt point,
and said:"But these powers of the supervisory organs are not so limited
at all: afteral], we al1perfectly understood tacitly, although we did not
Say so, that these supervisory organs would be able to lay down binding
standards upon the mandatory". We do not find a word, llr. President,
over a11these years. Surely ifa party is driven to these lengths in an
argument which was not just put to the Court in passing, but was put to
the Court repeatedly over a number of days-this ar ment of the
Applicantr based on standards und basecl on this ruggestegnterpretation
of the mandate instrument-if a partg isdriven to such lengths and
there is not a shred of evidence of supporting material for that contention.614 SOUTH WEST AFRICA
and that is the position in a case which started off on a note of being
beyond argument, then surely there is only one conclusion and that is
that the writing must be on the wall.
One rnust, then, begin to expect, as one indeed finds, that aii the
alternative argüments on this theme about standards and a nom have,
in truth, no greater merit than this one, because this one is stretched to
its greatest possible limits and yet one finds notliing in support of it.
1proceed M,r. President,from thicontention,relative to the standards
part of the Applicants' case, to consider an alternative. The contention
which 1 have considered thus far has been specifically directed to the
role to be played by supervisory organs as such. As 1pointed out, the
Applicants had an alternative in that very contention, the alternative
other hand, to a ço-called organized international community in general,e
or theorganized international commuriity, as it wasput bythe Applicants.
Now, Mr. President, since 1demonstrated that thcre is nothing whatever
in the contention with reference to the supcrvisory organs as such,
then a.fortiori there can be nothing in it with reference to this nebulous
concept, the organized international community.
If itwas unthinkable, Mt. President, that the authors of the mandates
system couldbestow upon the supervisoryorgan the exclusivecornpetence
to bind Respondent by defining or prescribing standards, then surely it
would be absurd to suggest that it could have been their intention to
bestow such competence upon a vague concept such as the organized
international community.
As far as we have been able to ascertain, this expression "organized
international community" tvasone which was ~iotused or known in the
League time at aI1,even in non-legal connotations. We may be wrong,
but we never came across it as having been used in that period at ail.
Itseemsto have first reared its head in the United Nations tirne, towards
the end of the rg4os, as far as wecould ascertain. It may be that we over-
looked something somewhere. But be that as it may, the documents to
be interpreted speak only of specific su ervisory organs. \Ve have shown
to the Court before that the wording orthe documents in that respect is
in entire accord with the practical contemplation of the parties at the
Peace Conference, before the documents were drafted, and that it was
a matter of practical importance for them that those specific supcrvisory
organs should be the supervisory organs. and no other.
We have shown, Mr. President, in the argument which 1 have just
concluded, that it could not have been the intention of the authors of
the Mandate to bestow the competence under consideration on this
specific supervisory organ. How could it then seriously be suggested
that they nevertheless intended to bestow this competence on an unde-
fined international community, which would not receive reports, which
would not consider reports, which \vould not be in possession of ail the
relevant facts?
We might ask, &Ir. President, what is comprised in this concept
"the organized international cornmunity"? The Court willrecall that
we had occasion to deal fully with the mattes in the Rejoinder, V, at
pages 49to 53, in the light of the contention which was advanced by the
Applicants in their ~~rittenReply regarding the question of the survival
or otherwise of international accountability, as they put it, after the
dissolution of the League, The Applicants appeared to attach (for the REjOINDER OF MR. DE VILLIERS 615
purpose of that contention of theirs) legal significance to this concept
about tvhich they were tnlking, r7iz., the organized international com-
munity, and we pointed out in this portion of the Rejoinder that such
legal significance could not possibl~ be attached to such a concept. We
pointed to the contradictions and the inconsistcncies in the Applicants'
attempt to give some legal content to this contention-that we find in
the passage to which I have referred-and we concluded, Mr. Yresident,
especially at V, pages 52 to 53, by showing how absurd it wns in a
practical scnse to speak of what happened in the time of the Lcague as
being supervision by an entity to be called "the organized international
community", on the one hand, vis-à-vis mandatory powers, on the
other hand.
Nay 1 cite from page 53:
"In fact, Applicants' whole concept of the 'organized international
community' is in conflict iviththe most basic principles of Inter-
national Law. In order to arme that the 'or~anized international
coiiiiniinity' possesscd lcgal riglits and intcreïts, and grriritcd legally
effccti\,c coiiimis.;ioiisor JIüridates, Applicarits woiild b<tconstrai~iccl
to contend that itwas a legal personu."
That is,Mr. President, in so far as they contended that this organized
international community held rights distinct frorn the rights of the
Members comprising the Organization, and that that Organization as
an entity could then grant legally effective commissions, impose obliga-
tions, and so forth. 1now proceed with the quotation:
"However, it is still an open question whether even the League of
Nations.'a sAecific international bodv with a constitution and with
defined corporate functions, ever Gossessed legal perçonality. A
forliori the 'orrranized international communitv'. an undefined and
'amorphouçcokePt, could hardly, at anyrate ai the tirneof creation
of the Mandate Syçtem, have been acccpted as a legal fiersona."
If1 may interrupt there, we proceeded then to deal with this practical
aspect of the matter to which 1have just referred:
"FinaIIy, the picture of an 'organizcd international comrnunity'
acting as something distinct from the Mandatories and imposiiig its
will on them, is an entirely unrealistic onIn fact, on any conception
of the 'organized international cornmunity' (including that of the
Applicants), the Maladatories largely dictaledthepolicypursued by if
with respect to Mandates. Thus, whether as Allied Powcrs, or as
Mernbers of the Council of the League, or as hlandatories, France;
Japan, Belgium and Great Britain and its Dominions played vital
roles in the creation and operation of the Mandate System."
We then referred, Mr. Presidcnt, to a quotation from Duncan Hall
about the conferences, thc debates, in which the various Dominions
stated their attitudes on the proposals regarding the future of the
German colonies. The quotation reads:
"It was the governrnents taking part in this debate tliat, by their
agreement, created the niandate system. Tt was they that drafted
the self-imposed limitations of the mandate charters. It was they
that put the system into operation, ~veakenedthough it waç by the
absence of the United States."616 SOUTH WEST AFRICA
Duncan Hall continues by stating that it was these governments-
"... that sustained it rie., the Mandates System] and made it
Leagueivduringhethe twenty-six years of the League's life".s of the
The text of the Rejoinder proceeds at V,page 53:
"For the whole period ofthe League'sexistence, the learned author
points out, the relationship between the Lcague and the Mandatory
Yowers remained as described by Mr. Balfour in the Eighteenth
Session of the Gouncil, when he said [again a quote from Haiij:
'.. ." mandates were not the creation of the League, and they
could not in substance be altered by the League". He jecrther
point& out that "a lllandate was a self-imposed limitation by the
coltquerors on the sovereagnty which they exercised over the con-
qtteredterritory.In thegeneral interests of mankind, theAllied and
Associated Powers had imposed thisLimitationupon themselves,and
had asked the League to assist them in seeing that this general
policy was carried out, but the League was not the author of
it ..." '."
hlr. President, after that demonstration in the Rejoinder, the Appli-
cants, if 1 understood them correctly, desisted in their oral argument in
chief in this Court from again atternpting to assign legal significance to
this phrase "an organized international community" or "the organized
international community", although still using it for certain descriptive
purposes. But now, when it cornes to thcir oral reply, and in this new
and novel formulation of their case, we find that this concept "organized
international community" creeps in more insistently and it plays an
ever-increasing and a more and more important part of the suggested
legal significance in the statement of the Applicants' case, both inregard
to standards and in regard to the norm contention to which 1shall corne
later. That is why 1think it worth while to devote some attention to itat
this stage in connection with the standards contention.
Mr. President, let us analyse these various concepts "an organized
international community" and "the organized international community".
The Court in 1962 used the expression "an organized international
community" with reference to the League of Nations; if 1 may Say so,
with respect, that is a perfectly legitimate description, yrovided one
bears in mind that itis a description and nothing more. It has no particu-
lar legal significance apart from indicating that here is a community of
States-a group ofStates-forming an international organization with a
constituent instrument and, therefore, Mr. President, having an institu-
tional existence, and, as such, being able to act as a unit-institutional
either in the sense of being a legal persona or in the sense of being an
association of subjects of international law of the nature of an unin-
an institution, and being capable of acting as such.nse, forming a unit,
Granted that an orgaiiized international community is a fit descrip-
tion, then, ofthe League of Nations, and granted thatthat may also be a
fit description of the United Nations, what brings rny lcarned friend to
the length of saying that both of these represented the organized inter-
national community, and that, in fact,the real institution (that seerns to
be the suggestion of the argument), the rcal entity with which we are
dealing, haç remained the same, having merely a different manifestation RE JOINDER OF MR. DE VILLIERS
617
now frorn what ithad in the League time? How does my learned friend
come to that?
The League and the United Nations are examples of organized inter-
national communities in that sense, contractually established, as 1 have
tried to describe.The organized international community has never been
contractually established, it has no institutional existence, it has no
constituent instrument, it can never be said to be something of the
nature of an artificial person, or an unincorpornted association of
persons. It could, perhaps, be said to be soniething in the nature of a
social concept ;perhapsone could speak of it as a sociological phenomenon,
and in that scnse speak of it as being somethingreal, but if it is not some-
thing real in that sense, Mr. President, then it mustbeeither just a dream
or nothing. It certainly is not çomething lying in between being nothing
and being asoci~logicalphenamenon. It is certainly not, legally speaking,
either an artificial person or an unincorporated associatioii of persons,
somethinghaving an institutional existence in that sensc and being able
to act as an institution, as is possible in the caseof an organized inter-
national community such as the League and the United Nations.
LVhen writers like the late Judge Lauterpacht çpeak of the inter-
national community-1ve find that is a phrase very often used by
writers-then they are speaking metaphorically of the aggregate of
sovereign States; they are not speaking of something in an institutional
sense. I should like to refer the Court, in that regard, also to comment,
first, that on the part of an author, Karl Stmpp. It is in the Hague
Academy Recueil, Volume 47 (1934 1). at pages 323 and 324, and the
following is Our translation of the passage from the French. He stateç
that as regards the international community of nations or similar
concepts-
"If one is content to speak about the community of nations in
the political çense it can only be applauded ...
But, if one mns through the literature, one easily finds that the
definitionsare not clear and that they lack juridical precision. That
is not surprising, in view of the absolute lack of precision of the term
and the absence of a real legally tu-ngiblinternational cornmunity.
[T skip some lines and the learned authar proceeds] But at the
moment that one passes, as isdone, from the notion of the political
domain to that of Znwin order to infer consequences as to the
problem of sources of international law, one ought, in the actual
circumstances (1 repeat this) to protest against such alteration of
factç, whether one callç itcommunity of nations or rather, which
reminds one of the famous European concert with its permanent
disagreements, familyof nations, nothing can mislead as to the fact
that, juridically, a community which haç not been organized can
never create valid juridical noms. The contrary notion is no more
than a pious vow."
1wish to refer the Court also to the work of the honourable Member of
the Court, Judge hforelli, Nozioni di divitfo internazionale,at pages 3-4,
that isin its sixth revised edition, and the followiis our own translation
into English of the relevant passage under the heading In2ernationaE
Community :
"The CO-existenceof several similar entities, which findthernselves
in relationship one with another-a relationship resulting from the SOUTH WEST AFRICA
link (whether of confiict or of solidarity), between their respective
interests-constitutes what is called a society[that is, then, the co-
existence ofthe severalentities whichfind themselves in relationship,
. that constitutes a 'society']. The recognition of the existence of a
nurnber ofStates possessinginterests, amongst whichthere developed
the relationships that have been analysed, thus leads to the notion
of asocietyof States, or an ilateraationa!ommzsnity.
This society had, during the medieval epoch, a hierarchical
structure. The so-called Republic of Christian Peoples (the Holy
Roman Empire), was, in fact, the result of a complex of political
units which, in addition to being bound one to another by relation-
ships of a feudal character, were di subordinate to two supreme
authorities: on the one hand, to the authority of the Gerrnan
Emperor, the successor to the Roman Emperors and the temporal
head of Christianity, and, on the other hand, to the authority of the
Pope, the spiritual head of Christianity. But, later, this twofold
relationship of subordination disappeared. On the one hand, the
States asserted their independence of the Emperor (civilutesupe-
rtorem?mtrecognoscmts); and, on the other hand. even theauthority
of the Pope declined, above al1 as the result of the Protestant
Refonnation, which shattered religious unity. There thus occurred
a profound transformation in the structure of the interiiational
community-a transformation which it is the custom to trace back
to the Thirty Years War (1618-1648).and more precisely to the
Treaties of Munster and Osnabrück (1648c ),rnmonly known as the
Treaties of Westphalia, which put an end to that war. The inter-
national community assurned, that is to Say, the structure of a
society no longer hierarchically organized but paritative, the
members of which, not being subordinate to any power superior to
them, found themselves one towards another in a simple relation-
jhip of CO-ordination.This is the structure which the international
community still retains, notwithstanding the current and ever-
growing tendency towards the organization of groups of States."
Again, here, Mr. President, the contrast-the distinction-is drawn
between, on the one hand, the international cornmunity in that sense,
with no hierarchical structure superior to it, the units in a relationship of
parity, of equality to one another, a simple relationship of CO-ordination
without being organized by any constituent instrumentintoaninstitution
and being able to act as such, and, on the other, to the notion of the
orgSo, Mr. President, that brings us back then to the way in which my
learned friend in his contention juggles around with these notions of an
organized international community, the international community, and
the international society. If one does not keep these distinctions very
clearly in mind, from a legal point of view, this juggling may create a
misleadhg impression, and it may involve what one might cal1a mystifi-
cation with al1kinds of unforeseeableconsequences.
Let us appIy that in a practical sense to the way in which my learned
friend seeks to advance his contention.
My learned friend refers, in effect, not toan organized international
cornmunity, nor to the organized international cornmunity, nor the
community as a unit, or as an entity. He appears to refer to an aggregate
of what might be calIed organized international communities in the REJOINDER OF MR. DE VILLIERS 61g
çense of institutions, or organizations having an institutional existence.
And, so, he refers, Mr. I'resident, to the United Nations, he refers to
he refers to Regional Organizations such as the Organization ofAmericann,
States, and so forth. One wonders where the line is to be drawn. Should
one refer also to other international organizations, such as the Inter-
national Lawn Tennis Federation, or the Olyrnpic Organizatioii? Sllould
one refer to scientific organizations?
Mr. President, this last question is not entirely facetious. Scientific
international organizations can and do lay down standards, or attempt
to lay down standards in their particular spheres of scientific knowledge.
Does rny learned friend suggest that those are also part of the organized
international community, that they can also lay donn standards, and
that those standards would be binding upon the SIandatory? If not,
why does he exclude those? Does he Saythat the organized international
community is to be seen merely as a politically organized international
community, and, if so, Mr. President, why are the political forces in the
world to be so much stro~~gerin the normative processes of law which
are to be binding upon the Mandatory and upon this Court than the
other forces creating standards in the world?
The whole contention, 3Ir. President, makes no sense, and, as I have
said, if one concludes, as1 submit we have conclusively shown that one
must, that there was no contemplation whatsoever of a laying down of
binding standards by the supen7isory bodies, as such, then a fortiori
this whole suggestion of a nebulous body like the organized international
community being endowed with that power must have even less sub-
stance.
That brings us, then, to the Applicants' second contention in regard to
standards. The Court wiIl recall the first one merely rested on these two
legs, the organized international community and specific çupervisory
bodies. !Arecome to the second one which is advanced in the alternative,
and that isto the effect that by becoming a hlember of the United
Eations and the International Labour Orgnnisation, the Respondent
bound itself to give effect to standards embodied in the Charter and
in the Constitution of the International Labour Organisation, and,
Mr. President, to authoritative interpretations of the Charter and of the
International Labour OfficeConstitution-authoritative, soit issuggested
by reaçon of having been given by organs of those associations, very
often by a mere majority vote, although my leamed friend suggests that
the majority vote often approached unanimity. Mre come to those
degrees of refinement at a Iater stage.
1want to makc plain, first, that we are not now dealing with a sugges-
tion that we are to look at particular treaty obligations defined for the
Respondent in the Charter and in the International Labour Organisation
Constitution-obligations which the Respondent accepted conventionally
by becoming a member of those two organisations. These obligations are,
of course, the basis oa content ion upon which the Applicants rely ;they
rely upon them, if 1 understand them correctly, in regard to their norm
contention particularly-they say that there are certain provisions in
the Charter and in the I.L.O. Constitution which impose relevant
obligations upon the Respondent when they are properly interpreted;
that they in themselves must be taken as establishing standards or a
norm of the kirtd contended for bythe Applicants.620 SOUTH WEST AFRICA
That is a matter, Mr, President, which goes to the particular content
of the norm and the standards and the suggested content of specifjc
provisions of theCharter and of the I.L.O.Constitution. 1 do not propose
to deal with thoçe now. Ishall deal with those in relation to the norm
contention, although what 1 shall say in that respect will be equally
applicable to the extent that the Applicants regard this as relevant to
their standards contention.
For the moment, 1 am concerned with the more general question of
how, assuming angr content, it does not matter, what any content for
particular provisions of the Charter and of the I.L.O. Constitution,
are those provisions and authoritative interpretations of them brought
into relationship with the obligations of the Respondent under the
Mandate? That is the question to ~vhich 1want to address myself first,
because that is the important bridge which the Applicants also had to
cross for the purposes of tlieir standards contention.
If one supposes, Mr. l'resident, that there were certain provisions of
the Charter and of the I.L.O. Constitution that were interpreted, applied
in practice, by the organs by majority resolutions and so forth, how do
the Applicants see those as being related to the Respondent's obligation
under the Xandate? If we understand thern correctly, theÿ Say that those
authoritative interpretations are to be seen as laying down standards
which, in their turn, are then governing and are authoritative with
regard to the interpretation of the Mandate.
1 can read from the verbatim record of 18May, at page 340, SN ru.
There the Applicants said that reports, resolutions and conclusions O;Pthe
lnternational Labour Organisation-
". . . fom authoritative interpretations of the Constitution and, as
has been said, if they are authoritativc interpretationsof a conven-
tion or constitution ta which the Respondent has adhered-an
organization of which it has been a Member-then such interpreta-
tions provide an authoritative basis for the interpretation and
application of the standards embodied in the mandate instrument
itself...".
Mr. President, that is, with respect, rather a mouthful. The whole
argument is a very strange one. Here, the Court is concerned with the
interpretation and application of a particular instrument, cal1 it a
treaty or convention, cal1itan instrument of a different kind; it is an
international legaI instrument. That is the task before the Court; the
Court derives its jurisdiction from a provision which authorizes it to
decide disputes in regard to the interpretation or the application of the
provisions of the Mandate. Now my Iearned friend cornes in and says
Iyes, but there are the provisions of other instruments-you became a
party to those instniments. Those have been interpreted and now al1
those are to be relevant to the performance of your obligations under this
first instrument, the Mandate".
Mr. Prcsident, surely, unless rny learned friend can bring about, can
establish, that there is some link between the first instrument and these
laterones,which bring the provisions ofthe Iater ones, as it were, intothe
provisions of the earlier one, where does that get him-either as a
matter of substance, of saying that the obligations of the mandate
instrument have been violatecl, or as a matter of jurisdiction, of bringing
the ~natter within the clause which provides for adjudication by the
Court ? REJOlNDER OF MR. DE VlLLlERS 621
Let uç take an example, Mr. President. Suppose a Mandatory, liaving
entered into the mandate arrangement, at some stage or other, sees fit
to enter into a.deferice pact, another international agreemcnt, with
other States, because it thinks undcr the circumstanceç that that would
be entirely in accordance with theinterests of the mandated population-
it would be a good thing, for the mandated people, for the inhabitants of
the territory it would serveto protect them. The years go by and even-
tually the Mandatory finds that circumstances have changed and that
the honouring of this defence pact may indeed imperil the coritinued
existence ofthe whole of the mandated population. Under those circum-
stances, then,the Afandatory decides not to honour its obligatioiisunder
the Iater agreement. Could jt then ever be said that, although that is a
violation of the Inter instrument, it must alsbc scen as being a vioIation
of the obligations of the Mandatory under the mandate itself, when the
very reason for not complying with this later obligation is the desire to
comply with the obiigations of the mandate instrument of yromoting
well-being and progress to the utmost?
1 have taken an example of that kind in order to demonstrate to you
what would seem to be an obvious proposition, Alr. President, that if
instruments, in which obligations are acceptcd, stand in no relationship
to one another, ifthey do not provide a necessary link whereby the provi-
sions of the later ones are, as it were, incorporated into the earlier ones,
then the question whetlier the later one is complied with ornot, can have
no bearing whatsoever upon the question wliether or notthere has been a
violation of the provisionsof the first instrument.It can have no bearing
upon a question pcrtaining to the interpretation and the application of
the provisions of the first instrument.
So let us then see whether my learned friend succeeded in establishing
any such necessary link between the mandate instrument and these
later conventions. In regard to the United Nations Charter, the Applicants
did make an attempt to establish such a link. The Court will recail that
in the Memorials they relied upon a contention ofilafiari maleria.In the
Memorials, 1, at page 106, they stated-
". ..that Chapters XI, XII and XII1 of the United Nations Charter
are in finrimateria with Article 2 of the Mandate and Article 22 of
the Covenant and, therefore, that the terms of the Charter may be
employed in construing Article 2 of the Mandate and Article 22 of the
Covenant".
Mr. President, we dealt with that contention in OurCounter-hlemorial,
II, at page 395, and we pointed out the followjng-we said:
"It is understandable that where a particular conference adopts a
number of similar conventions, the terms of one of them may be of
some assistance in interpreting another. To assert, however, that a
convention concliided in 1945 can be used as an aid to asccrtain the
intentions of the parties to a convention concluded between different
States in 1920, is, in Respondent's submission, so obviously absurd
as not to warrant serious consideration."
With respect, Mr. President, and with submission, I reiterate that that
is so. If it ia matter of interpreting, of finding the probable intent of
authors of an instrument, and those same authors made different in-
struments more or less atthe same time and expressed themselves more622 SOUTH WEST AFRlCA
or less in the same type of language, then of course the one may assist on
a +sri materiabasis in interpreting the other, either by reason of contrast
or by reason of similarities or the like. But surely when an instrument is
entered into 25 years after the other, how could there be any basis for an
argument of this kind? The Applicants apparently realized this difficulty
because we found that in their written Keply they did not advert to this
matter at al1again.
Again, Mr. Yresident, we did not understand theni to advance such
a contention in thcir oral argument in chief in this Court but now, when
it cornesto the oralreply, in presenting the case now in this last modelled
form to the Court, we find there is a reversion to this pari materia
suggestion, although this time it isnot relied upon in itseIf. Thesuggestion,
if 1 understand it correctly, is that it really finds its basisiiianother
consideration which is really relied upon as the link and that is, the
resolution of the Lea e Assernbly on 18April 1946.The Applicants Say,
in the verbatim of Ik May, at page 327, se@ra, after referring again to
Chapters XI, XII and XIII of the Charter-of their in pari materia
contention in that regard-that the resolution of the League of Nations
of 18 April 1946noted, ilaleaEia[and they quoted from the resolution]:
"that Chapters XI, XII and XIII of the Charter of the United
Nations embody principles corresponding to those declared in
Article 22 of the Covenant of the LeagueW-
and they proceeded to contend, at page 329, supra, of that same record,
that this resolution-
"... is in itself a clear indication of the relevance to and applica-
bility of Charter provisions to the mandates scheme. Respondent
itself is not only a party to the Charter of the United Nations, but
supported and voted for the resolution of 18April 1946, which on
its face establishes the relevance of the provisions of the Charter to
the mandates system".
Now, MT. President, this is not an entirely new argument either,
It first reared its head in the written Reply, with which we dealt in the
Rejoinder, V, at page 139, and we pointed out there that in the League
resolution-
"The word 'principles'is not synonyrnous with 'detailed provisions',
and 'corresponding'does not mean 'identical'. The League resolution
consequently did not purport to convey that Article 22 must be
interpreted as containing al1 the provisions of Chapters XI, XII
and XIII of the Charter, and such a suggestion would indeed have
been absurd. The resolution did not purport to 'note' any more
than that the basic principles underlying the said Chapters of the
Charter are similar to those found inArticle 22 of the Covenant."
The Applicants in their oral argument in chief in this Court, offered
no answer whatever to this. They completely ignored this passage from
the Re'oinder. Nevertheless, when it cornes eventually to their oral
reply, they simply reiterate the same contention as before, and they still
ignore this passagein the Rejoinder. They do not deal with it;they do not
attempt to rneet it in any way. Surely, Mr. President, with respect and
with submission there isno ansxverto what we stated in the Rejoinder.
By referring to the fact, by noting the fact, that those chapters of the
Charter embody principles corresponding to those referred to in Article22 HEJOINDER OF MR. DE VILLIERS 623
of the Covenant of the League, what is this that the Applicants are
suggesting that this resolution of the League accomplished? Surely,
principles corresponding to, do not mean provisions identical with.
Surely the mere fact that those were the cautious wordshe used indicated
that there was no intent whatsoever to indicate that there was to be an
identity-that the provisions as such were being taken over into the
"a re-definition" of what was originally stated in Article n22 bof the
Covenant, which is really the effect of the contention.
If we look at the actual provisions of those particdachaptersof the
Charter, we find that, in fact,they embody underlying principles of the
same nature as those contained in the mandate system. But their
provisions are very very far from being identical, One finds deviations
in al1kinds of respectsofwhich I could give someexamples to the Court.
If one looks at the nature of the supervisory organs, theyare completely
different in ways which Ihave explained to the Court before-1 need not
enter into the details againIfone looks at specificthings, which may be
done in the course of supervision, one finthat Article 87of the Charter
makes specific provision that the GeneraI Assembly may provide for
periodic visitç to the respective trust territories, something which never
occurred in the mandate system, or in any of the provisions relating to
the Mandate.
We find that Article 81,quite apart from the supervisory aspect,
provides that "the administering authority may, interalia, be the
organization itselft'-not a State, not an advanced nation, acting as a
Mandatory on behalf of the League, acting as a guardian in tutelage for
the particular population, but an international organization itself-
again something entirely foreign to the agreement which cventually
went into Article 22 of the Covenant.
So, Blr. President, 1 çtill do not understand, with respect and with
submission, how this resolution of the League could in anway be said to
have provided a link to the effect contended for by the Applicants,
which would in order to assist them have had to have the effect that the
provisions ofthe Charter are now to be read as being incorporated in the
mandate instruments and in Article 22 of the Covenant; and probably
then as governing the mandate instrument itself; a link which would
make them provjsjons relating to the interpretation and the application
of the Mandate. That link, hlr.President, in my submission, has no
substance whatsoever.
And what other links are there? Ive find in the oral reply the manner
in which this case has been set out for the Applicants; we find not one
single further reference to any suggested link; this was the only one
relied upon there.It is true that at one stage the Applicants attempted
to rely on Article 103of the Charter-that was in the Reply, IV, at
page 5x7, but, Mr. President, we dealt with that matter fully in the
Rejoinder, V, at pages 138 to 139. And after we dealt with it there,
that point never raised its head again in the Oral Proceedings, or
anywhere in the proceedinp. At page 138 we quoted the wording of
Article 103,which reads asfollows:
"In the event of a conflict between the obligations of the members
ofthe United Nations under the present Charter and their obliga-
tions under any other international agreement, their obligations
under the present Charter shall prevaiI," SOUTHWEST AFRICA
We proceeded to state:
"The effect of this Article would be that Article73 [that was the
Article then reliedupon in the Keply by the Applicants], if applicable
to Mandated territories, would prevail over any inconsistent provi-
sions ofthe Covenant, or the alandate (that is, assuming that the
Mandate is an 'international agreement'). Such inconsistent provi-
sions of the Covenant or the Mandate would then fa11away, Ieaving
Article 73 of full force and effect. Article 103 would, however,
not have the effect of arnending the Mandate by substituting the
provisions of Article 73 for any inconsistent provisions in the
Mandate.
Since the present action is brought in terms of the compromissory
clause in Article7 of the Mandate, it i.vould accordingly not avail
Applicants to show that Article 73 of the Charter (which is not
covered by the compromissory clause) is applicable, and not Arti-
cle2 of the Mandate (which, it is assumed for present purposes, is so
covercd)."
That is the way in which we stated it in the Rejoinder, and, as 1 have
said, after that the contention never reared its head again. Surely.
hIr. President, it must be as stated. The Charter provision, Article 103.
is an agreement between the parties to the Charter. It provides forwhat
effectis to be given to their agreement, as contained in the Charter, and
the effect of it is, briefly, that no part of this agreement between the
parties to this instrument will be invalidated by reason of conflict wita
prior engagement by any of the parties under any other instrument.
It affects therefore the position as under the Charter. It does not
purport to effect the situation asit might obtain under other instruments
which might not even have been entered into between the same parties.
It could not have intended, and in any event it could not assist the
Applicants inestablishing a contention tothe effect that provisions of the
Charter were now intended to be read into the Covenant or the mandate
instrument. This iswhat they would have to contend in order to get over
the difficulty already mentioned.
That, then, Mr. President, relates to the suggested links between the
Charter and the mandate instruments. In regard to the Constitution of
the International Labour Organisation, we scrutinized the verbatim
record from one side to the other and from beginning to end, but we
simply could not find that any link whatsoever has been suggested
anywhere in the argument.
To be sure. the Applicants said more than once that the Constitution
of the International Labour Organisation is relevant to an interpretation
of the Mandate, but we are still waiting to hear why that is so, and, we
submit, with respcct, that the Court must still be waiting to hear why
that would be so. They never sought to establish any link such as they
would have to establish in order to corne anpvhere with this particular
contention. 1t would not , of course, avail the Applicants to Say that the
I.L.O. Constitution is relevant because it embodies standards defined
by the organized international community-that would pertain to their
other a gument, which I have dealtwith and disposed of already; am
dealing with fhis argument, Mr. President, which takes this form that.
by becoming a party to the Intcrnational Labour Organisation Con-
stitution, the Respondent thereby carne to be bound by authoritative REJOIKDER OF MR. DE VILLIERS 625
interpretations of that Constitution wliich, in sorne way, are to be seen as
authoritative interpretations of the Mandate itself.
Consequently, Mr. President. this argument-either as pertaining to the
International Labour Organisation Constitution or as pertaining to tlie
Charter-must fail for this reason, and for this reason alone-the
absence of the necessary link, in the sense in whch 1 have beeii dealing
with it.
As 1 have said, there are other reasons why we subrnit that those
provisions of the two Constitutions do,not assist the Applicants at all-
reasons going to the real substance of the Applicants' case, as a rnatter of
fact-reasons which pcrtain to the actual suggested content of the
Applicants' standardsand norm, and, as compared there, ~viththe actual
content of the particuIar provisions of those Constitutions. We subrnit,
and we shall later elaborate on that submission, that, in truth, the
Appljcants' case in that respect is also totally unfounded. There is
nothing inthose provisions which supports the Applicants' contention as
to the content of their standards and the content of their norm-a
content which is then posed as in conflict with the Respondent's obliga-
tions under the Mandate, as contendcd for by the Respondent. But that,
as 1 said, is a different matter with which 1shall deal later; it is common
to the Applicants' case both on the norm and on the standards, and 1
shali deal with it when we come to the norm.
Sumrnarising then, &Ir.President, in regard to the standards we Say
that, quite apart from these further considerations, which we shall deal
with when we come to the norrn contention, the considerations which
1 have advanced so far are abundantly sufficient to indicate that the
Applicants' case on standards is without any substance: firstly, because
on a proper interpretation of Article 2 of the Mandate, read in thelight
of Article 22 of the Covenant, and having regard to al1 factors bearing
on the intent of the authors of the mandates system, express or tacit, it is
abundantIy clear that neither Article 2 of the Mandate nor any corre-
sponding provision of any of the other mandateinstruments was intended
to be subject to any quaIification that the mandatory would be legally
obliged to give effect to standards prescribed or defined by either a
supervisory organ or bythe organized international community, whatever
that term might signify. That, Mr. President, as we stressed, is further
confirmed by thc analagous position which applies under the Charter in
respect of trusteeship. This revolutionary innovation, which the Appli-
cants contend for, of a power on the part of supervisory organs to impose
binding standards upon a Mandatory or an administering authority,
wouId therefore if accepted, not, hit at South Africa alone, it would
also hit at the remaining administering authorities under trusteeship
agreements with the United Nations.
SecondIy, Mr. President, we contend that, in so far as provisions of
the I.L.O. Constitution and provisions of the Charter are relied upon,
whatever their content may be, they cannot assist the Applicants'
contention in regard to standards, for the simple reason that no link has
been established between those instruments and the hiandate which
could make thosc provisions themselves or, a fortiori,interpretations
thereof binding upon the Mandatory, or authoritative for, or even rele-
vant to, the interpretation of the Mandatory's obligations under the
basic mandates instrument.
That then, Mr. President, subject to arguments which are common to626 SOUTH WEST AFRICA
both the norm contention and the standards contention, concludes the
portion of the argument in reply to the Applicants' case on standards,
and 1 proceed to deal with the case relied upon in regard to the alleged
norm.
Itmay be useful to begin by referring again to the distinction which,
as we understand it, the Applicants sought to draw between their
standards contention and their norm contention. They sought to render
their standards binding upon the Mandatory via the mandate instrument,
via a peculiar relationship which they said was created through the
mandate instrument between the Mandatory and either the supervisory
organs or the organized international comrnunity. That was the manner
of seeking to make usuaily non-binding standards, binding upon man-
datories.
In the norm contention there isagain an argument to the effect that
standards are to be taken as binding upon the Respondent, in particular,
and 1 take it that that would have had to apply to mandatories in
general and to administering authorities under trusteeship in general.
Here, that contention takes a different forrn: it is to the effect that
those standards have, quite independently of the original instrument,
developed into a norm of general binding application in international
law-binding not only mandatories and administering authorities under
trusteeship but Stateç in international law in general. And, for that
reason, it is said that the norm must be binding upon the Respondent
aIso in relation tothis case.
Mr, President, again it will be appreciated that, quite apart from the
merits of the rather startling contention that, by the processes as de-
scribed by the Applicants, these standards have become binding norms
generally in international law, the Applicants have to face the same
difficulty here, that if that contention should be sound, how do they
relate that norm and questionspertaining to the violation of that norm-
or aiieged violation of the nom-to questions pertaining to the inter-
pretation and the application of the Mandate, and again, in both respects
to the question whether there haç been a violation of the mandate in-
strument, as such, or of obligations undertaken under the mandate
instrument, and to the question of the Court's jurisdiction?
I should like to begin again by referring to the Applicants' difficulties
in this regard, and frorn that 1 shall go over to the Inore substantive
aspects of the suggestion that these standards have become a norm to
the question whether they have been crystallized into a norm in inter-
national law at all.
Itis significant to note, firstly, that the Applicants do not contend that
this alleged nom existed as at the stage when the Mandate was granted.
They Say in the verbatim record of 17 May:
"Forty years ago Respondent 's theory that its racial policies lie
within the ambit of its discretion conceivably rnight have been
arguable, although even then, in the Applicants' view, not con-
vincing[ly. The record says 'convincing', 1 take it that that is just
an error.] Rut the proposition isno longer debatable. With respect
to Respondent's policies of racial discrimination and group separa-
tion, international standards and an international legaI n?rm.of
non-discrimination and non-separation have achieved authontative
status during the very lifetime of the Mandate, so authoritative,
indeed, that it is appropriate, in the Applicants' submission, to REJOINDER OF MR. DE VILLIERS 627
make them applicable as a matter of lawfier seto the interpretation
of Article2, paragraph z, of the Mandate." (Supra, p. 302.)
1 stress, hlr. President, that it is said here that those standards and
that norm "have achieved authoritative status during the very lifetime
of the Mandate". So, however grudgirig the Applicants are in their first
admission or qualification that it might have been arguable 40 years ago,
that it lay in the Respondent's discretion to decide this matter, although
"not even convincingly", nevertheless, they are forced to make this full
admission that this norm, upon which they rely, did not come into
existence prior to the formation of the Mandate. It came into existence
"during the very lifetime of the Mandate", and then, not of the mandates
system which was operating in the League's tirne, but of this Mandate,
becaüse, on analysis, one finds that the events upon which my learned
friends really rely for the establishment of their norm occurred even
after the mandates system, as such, in a practical sense, had ceased to
exist.
Mr. President, in regard to the Applicnnts' case based on the suggested
norm, we pointed out that the Applicarits do not contend that the norm
was in existciice at the stage when the Mandate was granted, and from
the passage Iread to the Court it seems that they admit that the highest
at which they can put it, is that it came into existence during the very
lifetime of the Mandate, but they go on to contend, towards the end of
that passage, that those standards became crystallized into a norm which
obtained authoritative status, so authoritative indeed that it is appro-
priate, in the Applicants' çubmission, to make them applicable as a
matter of law eer se to the interpretation of Article2, paragraph 2, of
the Mandate.
Mr. President, this passage 1 have just read is presumably intended
to be an answer by the Applicants to a very basic and a very fundamental
contention and exposition which we gave to the Court, first in the
Rejoinder and thcn later, also,in Ourargument in chief, the oral argument
in chief in this Court. In the Rejoinder, V, page 127, we briefly put the
contention as follows:
". . . the Mandate System, by its very terms as well as its underlying
philosophy, according to the contemplation oi its authors, the
policp of the Permanent Mandates Commission, and the practical
application of the system by Mandatory Powers, permitted and
indeed required differentiation among various ethnic, linguistic or
cultural groups, and, consequently,amongtheir individual members,
on the very basis of membership in such a group".
In the argument in support of this contention, Mr. President, in the
Rejoinder we indicated that the differentiation there referred to related
to this very fieldabout which the Applicants' standards and norms are
said to be concerned,-the fieId of the allotment of rights, burdens,
priviIeges, and so forth, on the basis of rnembership in a race, class or
group. We dealt with these contentions fully in support of thiç contention
in the Rejoinder, V, at pages 119-127, and we briefly repeated those
contentions and we elaborated them in some respects in the Oral Proceed-
ings, our oral argument in chief-that is to be found in the verbatim
record of 23 April, atMII, pages 667 to 673, and we need not repeat that
argument. The Court will recall its basic substance-the very terms
contained in the mandates system and in.Article 22, in the Mandate628 SOUTH WEST AFRICA
itself relating to the liquor trade, miljtary training, slave trade, trainc
arms and arnmunition and so forth; the terms in the various "B"
Mandates,relating to tribal lands; the differentiation between the various
the mandates system, and so forth, making it perfectly clear that there
was not only contemplated but prescribed asystem of differentiation, and
types of mandates; the vanous types of communities. in Article 22 of
one finds in practice, in the practice of the mandatory powers and of
colonial owers at the time, that differentiation was practised as a
matter O! ordina , current practice to the full knowledge of the super-
visory organs anywith their encouragement in al1 the various spheres.
The Applicants, Mr. President, have not attempted to contest tiiis
part of Our argument, and, indeed, it becomes quite clear that they
cannot contest it, and that js why we get this admission from them to
which 1 referred, dthough it is in these rather pdging terms. They
do not tell us why it might merely have been arguable in 1920 that the
policies lay within the ambit of the Respondent's discretion; why that
could not have been convincingly argued at that stage. That they
certainly do not tell us; they do not try to do so with reference to the
aspect of the matter which we stressed in the contention to which 1have
referred. In other words, in substance they have offered us no answer
at ail, but they admit that the highest at which they can put it, is that
the norm originated in the lifetime of the Mandate.
In effect, therefore, Mr. President, their contention must amount to
this: that not only did the hlandatory-the Respondent-not consent
to this norm being made binding upon it,but in fact this norm isdirectly
in confict with that which was decided upon in agreement between
Respondent andthe other founders of the system in 1920; it isin conflict
with certain of the explicit provisions of the instrument, provisionswhich
required Respondent toact in a manner which differentiated between the
various groups and their members on the basis of membership in the
group, and in many respects contemplated that the Respondent was to
do so.
Now, Mr. President, the contention of the Applicants therefore as
to the existence of this newlyarisen nom immediately raises the question
whether, assuming that contention to be valid, assuming that such a
norm did conie about in international society in general, the allegation
that Respondent js contraveningthat norm amountç to an allegation of
violation of the hlandate, and consequently, ~vhether thiç Court would
possess jurisdiction to determine disputes with regard to alleged violation
of such a norm, assuming it to exist? We have frequently emphasized
that Article 7, paragraph 2, ofthe Mandate bestows jurisdiction only to
disputes regarding the interpretation or application of the provisions of
the Mandate, and that is why this question arises for pertinent decision
byThe Applicants again make an ingenious attempt at providing a link
between such a norm, such a suggested norm, and the provisions of the
Mandate, and we find that in the verbatim record of 17May. The passage
reads as foilows:
"lfthe standards, forwhich the Applicants contend, have achieved
thestatus ofan independent rule ofinternational Iaw,an international
legal norm, they, of course,would be controlling, with respect to the
Mandatory, on the simple proposition that tlie Mandatory, in
undertaking this arrangement obviously must be conclusively REJOISDER OF MR. DE VILLIERS G29
presumed to have undertaken and agreed to comply with inter-
national law in the exercise of the Mandate ..." (Suficprap. 302.)
And then, finally, we find in the verbatim record of ~gMay, the following:
"Even as a sovereign State, Respondent must govern in accor-
dance with international law. Its obligation as mandatory to
promote weil-being and social progrcss, in accordance with the
obligations of the sacred trust, do, of course, require that the
international law, the international legal noms pertaining to the
Kespondent's obligations as a sovereign State and as mandatory,
apply a /ortiorito the Mandate itself. The jurisdiction of the Court
to determine the obligations pursuant to international law, the
international legal norm for which the Appljcants contend, would
be founded on, and cognizable under, the compromissory clause of
the Mandate." (Supra, p. 342.)
What does this amouiit to,Mr. President? It \vould seem to be this:
that although this norm is said to have corne into existence long after
the Mandate, and quite independently of the Mandate for purposes of
this "norm" contention; although the Applicants admit that there was
no agreement on the part of the Respondent at al1 in respect of this
norm, let alone anp agreement to bring it into the Mandate, they Say
the Respondent must be taken to have agreed initially, in undertaking its
mandate obligations, to administer the mandated territory in accordance
with interna6onal law, and that in that way an obliga&on to comply
with international iaw is now to be seen asan obliga-ion of the Mandate
itself.
hlr. President, the fallacy of this contention immediately becomes
apparent on analysis, on two bases. Let us first consider, what does
international law mean in this contcxt? We must remember that we
start off on a basis that the Applicants say that this is international law
to which they admit that the Respondent has not agreed specifically;
they admit that the Respondent has, on the contrary, protested against
its coming into existence. Nevertheless, this is international law which
the Respondent is said to be obligeto comply with in the administration
of the Mandate. hIr.President, surely international law, when used in a
context of that kind, becomes ambiguous. One speaks of customary
international law, of binding international relationships in general,
covering the whole field, applying as between al1 subjects of inter-
national Iaw. But then one also knows that there are international legal
relationships (whetherone can or cannot properly cal1them relationships
of international law is a matter of verbiage, but very often they are
referred to as relationships of international law), although they apply
only between a limited circle or group of subjects of international law. It
could be a treaty relationship between two particular States. It could be a
regional relationship between a nurnber of States in a particular region,
having originated either by custom or by treaty. It could bea multipartite
treaty, but again replating relationships only between the parties to
that treaty, and yet that regulation of relationships could in a sense be
said to be a regulation in international law.
So, Xir. President, where one could Say in municipal law that if I
undertake a cartage contract for somebody and 1 have to cart things
from outside a town into a town, in terms of my contract, there isa
contemplation that 1 would, in performing that contract, be bound by630 SOUTH WEST AFBICA
law, but, of course, the law wkich one contemplates in that respect
would be municipal law which would be ipso facto binding upon a subject.
Tt would not be possible for me to ignore the trafic regulations as 1 was
going into town; 1 would have to observe them. If 1 do not observe
those traffic regulations,if 1 drive through a red robot, then 1 act in
confiict with the law, but that is because that law is binding upon me in
the way it is in a collectivist municipal societywherthe law is made by a
law-giver which imposes its will upon the subject.
Even then, in that example, one would not Say thatby driving through
the red robot the cartage contractor is breaking his contract of cartage.
He isoffending against the law. He might be doing so because he is in a
hurry to deliver on time, so he is making his best endeavours to comply
with his contract. He could never be sued for a breach of contract
because he does that, but he could of course be prosecuted for breaking
the law.
In international societies it is not so simple and itmay be rather
misleading to say that there is a contemplation that a Mandatory is to
act in accordaricc ~ith international law. What international law, one
might ask? 1s it international law which would in the ordinary course
become binding upon the Mandatory because of its consent, or because of
being such a principle of custornary iaw that it is binding upon ail
subjects of international law? Ifthat is so, Mr. President, then why would
it be ncccssaq for the Mandatory to undertake specially to comply with
that law in the mandate arrangement, in accordance with my learned
friend's contention?
If,on the other hand, this espression "international law" relates to
international laxvwhich would not in the ordinary sense become binding
upon the Mandatory but would on ordinary principles of international
law be binding only as between other States and other subjects of inter-
national law, then it would be a rather unusual contemplation, and an
unusual agreement to enter intoat thetimeof the mandate arrangement,
that the Mandatory would, not withstanding its lack of consent, not-
withstanding its possible opposition, notwithstanding xvhat itmay regard
about it, notwithstanding the fact that ordinarily it would not be
bound in international law, nevertheless subject itself to international
law which might corne into existence between other States, between
other subjects of international law. Surely that would be a most unusual
contemplation and one would have to bring a very cogent case in order
to Say that necessarily as a matter of inference, that must have been the
contemplation between the parties to the mandate instmnient, to the
mandate arrangement.
My Iearned friend has brought no case whatsocver, Mr. President,
apart from ail+se dixit. He says, "of course"-that is the expression he
used :
"Its obligation as mandatory to promote well-being and social
progress, in accordance with.the obligations of the sacred trust, do,
of course, requise that the international law, the international legal
noms pertaining to the Respondent's obIigations as a sovereign
State and as mandatory, apply a fortiori to the Mandate itself."
(S~pyfi,p. 342.)
It sounds very nice, Mr. President, when it is said quickly, but when
its implications are analyscd one finds that it reallp hidcs an absence REJOINDER OF MR. DE VILLIERS 631
of any subçtantiation for the proposition which isactually adduced to
the Court.
Now, Mr. President, quite apart from the fact, that international law
might have a coiinotation of something wliich would not in the ordinary
course become binding upon the Mandatory itself, let us take inter-
national law of a nature which ~vouIdbecoine binding upon the Man-
datory. Then still the contention does not make scnse, as 1have said, for
the simple reason that it would be unnecessary to make aspecial agree-
ment about it if it would become applicable to the Mandatory in any
case. But the differencc would be tbs; other international law might
become applicable to the Xandatory quite independently of the mandate
arrangement, and in the same way as in the type of example which we
cited to the Court earlier this afternoon in relation to the Applicants'
standards contention.
Let us here assume this set of facts. ive assume that the Alandatory
concludes a treaty witli State X, which is not a Member of the League.
Upon reconsideration itappears to the Mandatory and it can be estab-
lished as a fact tliat compliance with that convention would be detri-
mental to the interests of the inhabitants. Nevertheless, then, on the
Applicants' contcntion. the Mandatory woutd be bound in terms of the
mandate to carry out its obligations under the later treaty. If the
Mandatory were to refuse to carry out its obligations under the later
treaty then another Member ofthe League which is not a party to that
treaty, but which has an intereçt in the mandate arrangement, would be
able to invoke tlic jurisdiction of the Court. 'I'he Court then, on the
Applicants' theorp, would be bound to compel compliance with the
treaty, with this later treaty, even though the Court might be perfectly
satisfied that such compliance wouId work to the detriment of the
inhabitants of the territory. That is the effect of this contention of the
Applicants, applied to a case where international law becomes binding in
the ordinary course upon the Mandatory at a later stage.
&Ir.Prcsiclent, that absurdity, in the AppIicants' contention, appeare
from this very case which they are now bringing to this Court, a cass
which asks this Court to hoId that a contravention of thcir suggested
norm would constitute a contravention of the Mandate, even if the
Court were to bc satisfied on the facts that application of the norm
would lead to disastrous results for the well-being and progesç of in-
habitants of mandated territory. That is the implication which they
accept in this contention which they are advancing to the Court.
Our submission is that it would not be sufficient for the AppIicants
to show that there now enists a rule of Iaw which the Respondent has
violated, quite apart from the question which arises a priori,namely
whether a rule of law has come into existence which is binding upon the
Respondent in international law generaIly. Assuming that, assurning that
one has come into existence and is binding upon the Respondent, it is
not sufficient for them to show violation by Respondent of that rule.
In order to bring the matter within the jurisdiction of the Court, they
would have to show that the ruIe falls witiiin the description "the
provjsions of the hlandate", and this they can do only by showing that
the rule was intended to arnend the Mandate or that ithas in some way
become incorporated in the terms of the Mandate.
Whether or not a rule of law can arise without the consent of a State
which is sought to be held bound thereby, is a point to which we will63~ SOUTH N'EST AFRICA
advert fater.It seems clear hiour-submissjon that no amendment of the
Mandate could have been effected without the Respondent's consent.
That was the contemplation in the mandate instrument itself, in the
whole mandate arrangement, that there could not bc an amendment of
the provisions of the Mandate without the Respondent's consent. That
is quite independently of the question ~vhether outside of the Mandate
other ruleç of law could come into being-could bind the Respondent.
It was expressly held by the Court in the 1950 Opinion, that the
Mandate could not be amended without the CO-operation of the Man-
datory. That was in the part of the 1950 Opinion which dealt with the
competence to modify the international status of the Territory. The
Court wiIl recall that that matter is dealt with in the 1950 Opinion at
pages 141 to 143,and the whole discussion was based upon the provision
in Article 7,paragraph 1.relating to amendment or modificatiori of the
provisions of the Mandate, and the conclusion eventually stated by the
Court at page 143 was in these terms:
"On the basis of these considerations, the Court concludes that
competence to detemiine and modify the international status of
South-West Africa rests with the Union of South Africa acting
with the consent of the United Nations." (I.C.]. Reports 1950,
P. 143.)
Mr. Yresident, that is why we say that if the Applicants want to bring
this suggested norm of theirs into the hlandate they have toshow that it
happened by way of an amendment of the proiiiçions of the hlandate.
That could not have happened without the consent of the Respondent,
and for that reasan alone we submit that there is no basis in law for their
reliance upon such a norm in these proceedings before this Court.
In other words, itwould not be enough for the Applicants to show that
the Respondent has consented to the imposition of a new obligation:
they would have to go further and show that there existed an intention
to incorporate that obligation in the Mandate.
Therefore, Blr. President, for these reasons alone, evenifthe suggested
norm were to exist, we subrnit that the Court would not possess juïisdic-
tion to adjudicate on alleged violation thereof. That is, however, not
the only basis upon which we want to rest our case in this regard. We
want to proceed, Xlr. Preçident, independently and alternatively, to show
that in its substance this case of the Applicants, based on the norm,
cannot succeed; that it is totally unsubstantiated. be shalI dcal with
that matter in various phases.
We shalI deal first with the processesby which the Applicants suggest
that such a norm could have come into existence in international law so
as to be bindingupon the Respondent: that is, on the basis of any norm,
whatever itç suggested content. \Ve shall deal first purely ~viththe legal
question of the processes which the Applicants suggest were sufficient to
bring this nom into being as a binding norm upon Respondent. There-
upon, we shall proceed to consider the suggested content of thiçnorm,
and to see whether, quite apart from its application ta the Respondent or
other aspects of the matter, such a norm can be said to have come into
existence in international law at al].
1 proceed, therefore, to deal witthe matter on the basis first indicated,
i.e., with reference to the processesby which the Applicants say such a
norm could have come into existence. REJOINDER OF MK. DE VILLIERS
633
The Applicants approach the matter by stating in the verbatim record
of 17May, at page 303, supra:
"The Applicants' effort will be to demonstrate the existence of the
international legal norm in terms of the sources of law cnmerated
in Article 38 (I), paragraphs (a)-(d), of the Statute of the Inter-
national Court of Justice."
And then at page 342 of the verbatim record of 19May they stated:
"The Applicants contend that the international standard of non-
discriminatioii and non-separation qualifies as Iaw, qualifies as a
legal norm, in accordance with, and pursuant to, the several sub-
sections of Article 38, paragraph i,of the Statute."
They state in general, Mr. President, in regard to their contention, at
the same page of that same record, the following:
"Such dernonstration depends upon acceptance by the Court of
the Applicants' contention that forma1 acts of international in-
stitutions in certain circumstances, which the Applicants contend
apply here, may and do possess a law-creating effect within the
meaning of Article 38, paragraph r, of the Statute."
The Court will see this is basic, this is fundamental. Their case, their
successful demonstration of what they contend for depends upon this
acceptance-acceptance of the contention that certain forma1 acts of
internationalinstitutions in certain circumstances have the law-creating
effect within the meaning of Article 38, paragraph I.
Now, Mr.Yresident, of course, Article 38, paragraph r, does not in
terms list "formal acts of international institutions" as one of the
sources to be applied by the Court. Indeed, as we have pointed out
elsewhere, the Applicants conceded that in making their case they
considered or passed upon-crbytthis honourable Court.not heretofore been
It is, therefore, significant to note, Mr. President, that the Applicants
commence this demonstration of theirs, not by showing that this law-
creating process does exist but by showing why it should esist. This they
do by purporting to show "the relevant international context" (that is
an expression they used in the verbatim of 19May, at p. 342, supra, and
also "developments in international society, which bear upon the char-
acter and the evolution of international law" (same record, at p. 343,
supra). Now, they speak of these "developments in international society"
and they list them as follou~s:Firstly, they speak of "the diversity and
multitude of States comprising the conternporary international order",
and they Say that has brought "in their wake new concepts and needs
regarding the normative process itself". (Ibid.)
Secondly, they say "technological developrnent and the spread of
information in the arts of war and of transportation have made inter-
national society more inter-dependent ".That we find at page 343. supra,
of that sarne record.
Thirdly, they Say "the connection bctween world peace and the
protection of hurnan rights in the international sphere has become
increasingly manifest" (same record, at p. 344).
Fourthly, they Say that "within the area of hman rights the most
significant developments have focussed upon the evolution of standards634 SOUTH WEST AFRICA
pertaining to matters of racial equality, non-discrimination and non-
separation" (same record, at p. 344).
Fifthly,they say "international society lacks legislative organs, and
for this reason it has had to rely on other than legislative procedures to
change and evolve international standards and norms" (same record, at
the sarne page).
Al1 this culminates in two consequences flowing from this lack of
legislative organs.
Firstly, the Applicants Say, and 1 quote from that record at the sme
page: ". .. scholars have increasingly urged that suitable and, in
appropriate cases, quasilegislative effect be given to officia1 acts of
international institutions".
Then there is the second consequence at the same page: "The absence
of a legislative capacity as such in the international order has an
important bearing, of course, upon the outlook of international judicial
organs. "
So what does al1 this amount tu, hlr. President? The whole discussion
is introduced, not by saying what is the international law, what are the
processes of nom creation in international law, but what they ought to
be in modern circumstances, regard being had to the suggested alterations
and changes which have corne about in international society and its
implications, and it ends then on this note that the schalars arc urging-
and Iiave increasingly urged-that "quasi-legislative effect" should,
"in appropriate cases", "be given to officia1acts of international institu-
tions", and that courts apparently should now support this notion, this
urging by scholars.
hlr. President, with respect, whether or not the developing needs of
international society require some legislative or quasi-legislative inter-
national organization, or some supra-iiatioiial parliamcnt, and, if so,
what the composition and the procedure and the powers of such a body
should be, are certainly vcry interesting questions; they are very debat-
able questions, they are cluestions worthy of discussion ; and much has
been said about them, much has been written about them, and much
more can be said and can be written. 13ut, surely, with the greatest
respect, that is not a topic for introduction into a court of law whose
function itis to decide a case in accordance with international law. It is
an argument about the need for reforrn in the international law, rather
than an argument as to what the international law is, the law whch this
Court is required to apply in accordance with its function and in accor-
dance with its Statutc.
Assuming, Blr. Yresident, the need for such an organization, do the
Applicants seriously suggest that the United Natrons Organization
should now be considered fit to fil1thisgap, despite the fact that such a
function was never initially intended for the United Nations Organization?
Do they suggest that the Court is now to regard the United Nations
Organization, although created for different purposes and not for the
purpose of fulfilling such a function, as being capable of fulfilling that
function and of being able to do it properly, with a view to its constitu-
tion and its manner of functioning? lf7e know that the authors of the
United Nations by deliberate design refrained from bestowing legislative
or grtasi-legislative powers upon the United Nations. Do the Applicants
now contend that by some undefined process, by the need for a quasi-
Iegislative body, that that, by itself, has altered the basic nature of the REJOIXDER OF MR. DE VILLIERS 635
United Sations? Surely, Mr. President, such a contention would be
completely untenable. And even more untenable is this suggestion, that
the Court has in some way a qtcasi-legislaiive function in order to minister
to these needs of international society in the changed circumstances to
which the argument refers.
The Applicants attempt to bolster this aspect of their argument with
reference to an extract from an article by the honourable Member of the
Court, Sir Gerald Fitzmaurice. The extract is to be found in the verbatim
record of 19 May, at page 343, s~pra. It is unnecessary for me to read it
again, Nr. President, because on the most cursory reading it will be
absolutely evident that it does not support the Applicants' contention
whatsoever. The point made bp the learned author is, with respect,
perfectly clear. He stressethe desirability that international tribunalin
giving decisions in particular cases, should not be too reluctant to
pronounce in general upon questions of Iaw-international law-which
require clarification and which are under discussion in the particular
case, even if that might mean going somewhat bcyond the limits of what
would be strictly necessary for deciding what is'before the Court in a
particular case. And the learned author suggests that that would be an
appropriate function for international tribunals toa greater extent than
it would be for municipal tribunals. That is the effect of the point stated
there. There isno suggestion whatever that in giving such decisions or
any other decisions the Court shouid apply concepts or draw on sources
other than those traditionally recognized in international law and assign
to itselfa qztasilegislative function of giving effect to new processes of
norm creation in international law.
The reason why the Applicants contend for an increase in the powers
of the United Nations and of the Court has alreadp been mentioned, but
it again appears very clearly from a passage in the record of 19 May:
"The Applicants contend that the Court should confirm the role
of international consensus as a source of international law within the
meaning of Article 38 of the Statute of the Court and within clear,
practical limitations. 'Conserisus' is used by the Applicants to refer
to an overwhelming rnajority, a convergence of international
opinion, a predorninance of view; it rneans considerably more than
a simple majority, but something less than unanimity." (Supra,
P. 345-1
This, then, is the purpose of the Applicants' case-to establish the
proposition that international legal obligations may be imposed upon a
State withoiit its consent by giving effect to such an "ovenvhelming
majority", such a "convergence of opinion", such a "predominance of
view", innppropriately, in our submission, called "consensus". The
rnanner in whicli they seek to do it is to request the Court to go beyond its
normal judicial functions so as to declare that the so-called organized
international community, in particular the General Assembly of the
United Nations, possesses normative capacity which itwas not intencled
by its creators to possess, And it is intwo respects that the Applicants
contend that the normative capacitics, so-called, of the General Assembly
are relevant. They sum them up themsclves as foliows, both of them
in the verbatim record of 19 May, at page 346, supra:
"First, there has been authoritative definition of the scope,
character and applicability to Respondent's policies of the inter- SOUTH WEST AFRlCA
national legal norm found in Article 55 (c) and Article 56 of the
Charter, read in the light of the overall ailirmationinthe Lharter of
the connection between human rights and obligations of Members.
Secondly, conclusive evidence istobe found in themany judgments
of Member States that the standards evolved by the organs in the
United Nations do in fact constitute an international legal norm."
Therefore, Mr. President,one sees that those are the elements on which
stresç is laid. It is the aver-al1 affirmation of certain aspects of the
Charter-certain suggested aspects and consequences of the Charter;
it isa matter of giving effect to many judgments of rnember States, that
standards evolved by organs in the United Nations do in fact constitute
an international legaI norrn. And, therefore, theirargument is directed to
the avowed purpose of establishing that the norm relied upon by them
arosewithout the Respoiident's consent because, as they Say, the funda-
mental question is-
"the degree to which a single, recalcitrant State, or a small minority
of States, may be permitted to veto or block the ernergence of
authoritative standards, or legal norms, in international society,
and thus paralyse the growth and development of international law
itself".(Supra,p. 345.)
That, they Say, is the fundamental question.
Quite independently of thequestion which 1shall take up later, Mr. Pres-
ident, whether this is a true description in fast-the description of a
single recalcitrant State or a small minority of States-the fundamental
question they say is whether such a small minority may be permitted
to veto or block the emergence of authoritative standards or legal norms
in international society. We have to turn, therefore, to a revolutionary
contention to the effect that this preponderance of votes could, in itself,
be normative, and we do so on the bais, which 1 have explained, that
in a sense the whole topic is purely academic because no legal norm
created in the teeth of our protests could possibIy be regarded as faiiing
within the provisions of the Mandate for the purpose of the cornpromis-
sory clause. In any event, we shall present that argument in two stages:
we shall first consider the general effect of the various provisions of
Article 38 (r),and thereafter we shall consider their practical application
to this case.
\17ebegin with sub-paragraph (a) of Article 38 (1), which, the Court
will recall, authorizes the Court to apply "international conventions,
whether general or particuIar, establishing rules espressly recognized by
the contesting States". The particular conventions relied upon by the
Applicants are again the United Nations Charter and the Constitution
of the International Labour Organisation, which we find referred to in
the verbatim record of 19 May, at page 346, supra.
Of course, the Respondent was a party to both these conventions and
would consequently be bound by any legal norms created by them. But,
Mr. President, it soon becornes clear that the Applicants do not rely on
the meaning of the conventions as they were originally formulated.
Their case cannot be substantiated from those provisions, and it seerns
quite clear that they realizethat. They go further.Their case is based on
the following propositions which we find in the verbatim record of
19 Ma'1
.. .international practice in conjunction with the human rights REJOINDER OF IilR. DE VILLIERS 637
and non-discrimination provisions and purposcs of the United
Natio~is Cliarter,and of the Constitution of the I.L.O.,have evolved
authoritative standards of non-discrimination and non-separation;
and . . .the same evidence, the same materials, the same sources,
support the Applicants' contention that these standard-creating
procedures have eventuated in an international legal nom of the
same content and scope". (Supra, p. 346.)
They go on to Say, on the next page, that-
".. . the forma1acts of the constituent organs of the United Nations
have produced an authoritative construction of Articles 55 (c) and
56 of the Charter, inte r ia, such that the practice ofapartheid is
legally impermissib1e". (Supra,p. 347.)
-4s 1 have said before, 1 am dealing with the matter now without
having any regard to the content of the particular Articles cited; 1 an1
dealing with the contention in the light of the normative process here
relied upon, and the normative process here is said to be that the inter-
national practice, the forma1 acts of the constituent organs of the United
Nations, are said ta constitute an authoritative construction of the rele-
vant Articles. That is the particular matter to which 1 should like to
direct attention.
The Court will recali, and we have repeatedly pointed out,that, in the
words of Judge Sir Gerald Fitzrnaurice, wluch we quoted in the Re-
joinder, V, at page 121:
"The terms of a treaty must be interpreted according to the
meaning which they possesscd, or which would have been at tributed
to thern, and in the light of current linguistic usage, at the time
when the treaty was originally concluded."
\.Ve dealt with the subject of the Principle of Contemporaneity in Our
Rejoinder, V, at pages rzr-122.
That is the basis upon which the interpretation-the concept of inter-
pretation-is, in Our submission and in accordance with the regular
practice of this Court, to be understood. But now jt is said, Mr. Presi-
dent, that an authoritative interpretation evolves from practices of
organs of international bodies.
In aparticular sense it could be true that the practices in international
bodies could, to some extent, serve a purpose of interpretation; they can,
theoretically, be of relevance to the extent to which they can bear upon
the meaning of the instruments or the intent of thcir authors as it
existed at the time of their conclusion. That is so intheory.The question
as to what extent that could happen inparticular cases in practice is a
different matter. That is not the sense in which the Applicants seek to
reIy upon the practices of bodies as being a matter of interpretation. .
They relp upon those practices, Mr. President, as stating eventually
propositions which run very far away from what was originally con-
tained by the clear wording in the provisions of the particular instru-
ments. That is,on analysis, the process of interpretation that they seek to
rely upon.
1 suppose that an authoritative interpretation couldarjse if the parties
to an instrument were to agree that a particular organ was to have the
right to make authoritative interpretations and that, whether the
parties agreed or did not agree with those interpretations, they would63& SOUTH SVESTAFRICA
be binding upon the parties. Eut, Mr. President, that would be an
exceptional situation and there would have to be special provision to
that effect in the particular organs or in the particular constitutive
instruments.
If bve take the normal position in municipal la\-let us take that
first as an analogy or an example. Suppose there is a committee of a
voluntary association whicli puts a certain intei-pretation upon the con-
stitution-the rules of that association-and that interpretation affects
a particular member. Suppose the large majority of the 111embersof that
association agreeswith the interpretation put upon it by the comiiiittee-
maybe a11of them agree except this particular member, and tliis member
insists that his interpretation is and ço and if the comnlittee iiiterprets
this constitution the other way. then this infringes the particular rnem-
ber's rights. SurelyMr. Prcsident, that is amattcr which may have to be
determined by a court of law ifthe dispute goes so far, or by arbitration,
in accordance with law, if there issuch a provision in that particular
instrument. The adjudicator, he it the court or an arbitrator or an
arbitration court,would have to decide in accordance with law. Itwould
have to decide whether Rlr.A's interpretation iç correct, or whether the
cornmittee's interpretation is correct-the interpretation of the large
majority-and if itfinds that &Ir.A is correct, then it says so, and it
says that the interpretation of the majority is utira viresA.lternatively.
it might find that neither of them is correct and that the correct inter-
pretatjon is something else, but the point is that the court isnot bound
by these rnajorities-the court is never bound as a matter of law by what
ever might be the size of the majority on a particular point unless, as
1 have said, there ma- be special stipulations to the contrary.
New, why should the approach in international lam be different in the
international organs that liave corne about by agreement between
sovereign States? FVhy should it be possible for organs of those inter-
national bodies to run away with a so-called interpretation, which can
bind individual sovereign States although they do not agree witli it, and
although, on analysis, one finds that the so-called interpretation is no
longer an interpretation, it is really running into practices which are in
conflict with,and outside the clear limits of the provisions of, a particular
instrument ?
Itis relevant in this regard to refer to the fact that, at the time of the
frarning of the Charter of the United Nations at San Francisco, it !vas
decided as a deliberate act not to inchde in the Charter anjr provision
regarding how the Charter should be interprcted. One finds the refcrence
to this matter in the UNCIO report of the Rapporteur of Committee
IVjz, document 933IV/Z/~Z (21,pages 7-8.Itisdocument XIII, pages709-
710. There was a discussion of the question by this sub-Committee 2
of Committee IV as to how and by what organ or organs of the Organiza-
tion the Charter should be interpreted. But. >Ir.President, tlie final
result was, as 1 have said, that there was to be no particular provision
on that subject in the Charter.
In the course of the preparation of the re1ev:int provisioiis of the
Charter, this <luestion was discussed at considerable length and a signif-
icant statement was included in the final report of this Committee. This
statement was quoted to the Court in the proceedings preceding the
Opinion regarding CertainExfiensesofthe Unif& Nations, and one fjnds
it in thePieadings,Oral Argtiments and Docztmcnts of those proceedings, KEJOlNDER OF hlR. DE VILLIERS 639
at page 221, in a footnote to the written statement of Canada, and the
following passages are relevant in the present case:
"If two Meniber States are at variance concerning the correct
interpretation of the Charter, they are of course free to submit the
dispute to the Iiiternational Court of Justice as in the case of any
other treaty."
Then, again, a further quotation:
"It is to be undcrstood, of course, that if an interpretation made
by any organ of the Organization or by a cornmittee of jurists is not
generally acceptable it wili be without binding force. In such
circumstances, or in cases where itisdesired to establish an authori-
tative interpretation as a precedent for the future, it may be nec-
essary to embody the interpretation in an amendment to the
Charter. This may always be accomplished by recourse to the
procedure provided for amendment."
This, BIr. President, was the final paragraph of the report of the
Rapporteur of Committee IV/z, which was eventually approved by the
Committee, and it contemplates, as the Court sees, that there may be
differences of opinion and that these interpretations made by an organ
or by acornmittee of jurists wouId not necessarily be generally acceptable,
and if not they would be without binding force, and in such circum-
stances it might be necessary to have recourse to proceedings for amend-
ment.
The words "generally acceptable", read in their context, here clearly
mean acceptable without dissent-in other words, without a dispute
arising about it between various Members of the Organization. Rut the
Applicants would appear to contend that the Respondent is bound to
give effect to standards, based upon an interpretation, even if Respon-
dent dissociated itself from such an interpretation and without there
having been any formal amendment of the Charter, "accomplished by
recourse to the procedure provided for amendment".
In an article, "The Interpretation of the Charter", in The British
Yearbook of International Law /or 1946, the author, writing under the
pseudonym of Pollux, referred to this report of the sub-Committee, and
proceeded to make it clear that, in his view, a State would not be legally
bound by an interpretation of the Charter by other States with which it
did not agree. The author statecl, amongst others:
"No State can reasonably be expected meekly to accept an
interpretation of the Charter which it considers cornpletely wrong,
however large the majority in favour of such an interpretation
may be."
In a footnote to this passage, the author stated:
"This remark does not apply to an interpretation given by the
International Court of Justice or other bodies which may be au-
thorized to give a binding interpretation."
All that is atpage 57 of thai Ycaîbook.
But, Mr. President, the Applicants would appear to say that the
Respondent must meekly accept interpretations of the Charter by organs
of the United Nations and the International Labour Organisation, which
organs have notbeen authorized, either bp the Charter or by the Respon-
dent itself, to give such binding interpretation. The Court will recallu4° SOUTH WEST AFRIC.4
that thiç matter was pertinently discussed and considered in the pro-
ceedings in relation to the Advisory Opinion of the Court in Certain
Experrsesof tlze United Nations .n the separate opinion of the now
honourable President of the Court, the suggestioiwas dealtwith that an
interpretation of the Charter by a majority of States is to be accepted as
the correct interpretation, or alternatively, as evidence of the true
6'aning of the Charter. Having said that he could not agree with
.. ,a view sometimes advanced that a common practice pursued by an
organ of the United Nations, thoügh ultravires and inpoint of fact having
the result of amending the Charter, may nonetheless be effective as a
criterion of interpretation",the leamed Yresident continued:
"The Legalrationale behind what is called the principle of 'sub-
sequent conduct' is1 thjnk evident enough. In essenceit is question
of evidence, its admissibility and value. Its roots are deeply ern-
bedded in the expcriencc of rnankind.
A man enters jnto a compact usually between hirnself and another.
Themeaningof that compact when entered into whether oral, or in
writing, rnay well be affected, even deterrnined, by the manner in
which both parties in practice have carried it out.
That is evident enough. Their joint conduct expresses their
common understanding of what the terms of their compact, at the
tirne they entered into it, were intended to mean, and thus provides
direct evidence of what they did mean.
That conduct on the part of both parties to a treaty shou1d be
considered on the sarne footing is incontestable. It provides a
criterionof interpretation.
It is however evident enough-despite n flimsy and questionable
argument based upon what appears in IrarziarzOz1Corn any ...-
that the subsequent conduct of one party alone cannot le evidence
in its favour of a common understandin of the rneaning intended
to be given to the text ofa treaty." (1.2 Rep.orts1962, p. 190.)
And then the opinion proceeded, passing on to multilateral compacts,
to state the following:
"ln the case of multiiateral treaties the admissibility and value
as evidence of subsequent conduct of one or more parties thereto
encounter particular difficultiesIf al1 the parties to a multilatcral
treaty where the parties are frxed and constant, pursue a course of
subsequent conduct in their attitude to the textof the treaty, and
tliat course of conduct leads tan inference, and one inference only,
as to their cornmon intention and understanding at the tirne they
entered into the treaty as to the meaning of its text, theprobative
value of their conduct again isrnanifest. If however only one or
some but not al1of them by subsequent conduct interpret the text in
a certain manner, that conduct stands upon the same footing as the
unilateralconduct of oneparty to a bilateral treaty.The conduct of
such one or more could not of itself have anjr probative value or
provide a criterion for judicial interpretation.
Even where the course of subsequent conduct pursued by both
parties to abilatcral treaty or by al1parties to a multilateral treaty
are in accord and that conduct permits of only one inference it
provides a criterion of interpretation only when, as haalready been
indicated, the text of the treaty is obscure or ambiguous." REJOINDER OF MR. DE VlLLIERS 641
That is at page 191 of the same report. And then, from that page and
continuing on to the next one:
". ..it is not evident on what ground a practice consistently followed
by a majority of llember States not in fact accepted by other
Member States could provide any criterion of interpretation which
the Court could properly take into consideration in the discharge of
its judicial function. The conduct of the majority in following the
practice may be evidence against them and against those who in
fact accept the practice as correctlyinterpreting a Charterprovision,
but could not, it seems to me, afforany in their favour to support an
interpretation which by majority they have been able to assert."
That is the end of thc quotation. The opinion then proceeded to deal
with the alternative contention that the practice followed by organs of
the United Nations Organizatioii in interpreting their functions under
the Charter has a certain probative value and it concluded as foIlows,
at page 195 :
"Apart from a practice which is of a peaceful, uniform and
undisputed character accepted in fact by al1 current Members, a
consideration of which is not germane to the present examination,
1 accordingly entertain considerable doubt whether practice of an
organ of the United Nations has any probative value either as
providing evidence of the intentions of original hlember States or
otherwiçe a critcrion of interpretation.As prescntly advised 1 think
ithas none."
Now, Mr. President, on that, with respect, very clear statement of
principles applicable in a situation of this nature and the analysis of the
difficulties of applicatioof the principles with which one is confronted,
difficulties in face of a contention such as is being advanced by the
Applicants in this case, we iind that the Applicants, nevertheless,
advance to the Court the contention that althoughunanimity has not bcen
reached but only what they cal1 a preponderant view on a particular
situation, that should nevertheless be regarded as being binding upon
those who did not consent. They do not cite a single authority in support
of this contention and. Mr. Preçident, that iç small wonder.
Ttis true that at one stage when diçcussing their nom, they referred
to a passage from a lecture delivered by Dr. Schachter, but this passage
certainly does not bear out the contention under consideration. This we
find in the verbatim record of rg May. Dr. Schachter said the following :
". .,one might start with the principle that an 'authentic' inter-
pretation of a treatyby the parties is Icgall~ binding on them to the
sarne degrees as the treaty itself. 1 believe that it is generally
accepted that this conclusion would hold for an interpretation of
the Charter adopted by al1 the Members (or even 'by the over-
whelming majority' except for some abstentions) in the General
Assembly; the interpretation would be characterized by inter-
national lawvers as having the same legal force and effect as the
Charter itself."(Supra,p. 358.)
Now, Mr. President, it seems quite clear on itsface from this passage,
that Dr. Schachter did not have in mind an interpretation adopted
against the will of one or more States when he spoke of "al1 the Members
(or even 'by the overwhelming majority' except forsome abstentions)".64~ SOUTH WEST AFRICA
If he did, it would bc difficult to understand his reliance upon the
principle of authentic interpretation of a treaty by, as he himself says,
"the parties" thereto. ln our submission, there can be no doubt that
Dr. Schachter \iras merely saying that an interpretation of the Charter
adopted by the overwhelming majority, except for some abstentions,
but without any express dissent, would be legally binding. In those
circumstances,one could, in sorne situations, look upon a situation of an
interpretation, without express dissent, as if itwere an interpretation
by al1the parties concerned, but whether that would be so in a particular
instance, would be a question of fact. Tliat is, it seems to us, the limit
to which Dr. Schachter takes the situation and he, therefore, does not
bear out the Applicants' contcntion. There is no authority cited by them,
or anywhich we could find, which in any way bears out their contention.
[Public heavntg of rj ]une 19651
Mr. President and honourable Members of the Court, we were dealing
towards the conclusion yestcrday with the Applicants' argument about
the creation of a binding norm. Mre dealt particularly with that part of
their argument wliich sought to bring their norm under the heading of
Article 38 (r) (a) of the Statute of the Court, namely international
conventions, general or particular, establishing the rules expressly
recognized by the contesting States.
We dealt with the Applicants' contention in that regard. and we are
stillin the process of doing so, by having regard to the norm-crenting
processes which are said to be involved in that contention, irrespective,
for themoment, of what the content is that is sought to be ascribed tothe
particular norm. We assume for purposes of argument that any content
be ascribed to it.Cal1it a contentX, and then we see whether a norm of a
content X could be generated in law bp the processes which the Appli-
cants suggest in their argument.
Now. the particular argument with which we were dealing yesterday
was this one, that the norm relied upon by the Applicants was created
by formal acts of constituent organs of the United Nations which, so
the Applicants Say, have produced a so-called authoritative inter-
pretation of particular provisions of the Charter. The implication in this
contention is quite clear, and the AppIicants also make it clear, as 1
shallshow later, that they realize that they are thus relying upon some-
thing which extends beyond the meaning of the provisions as they stand
in the Charter. They do not rely purely upon the provisions as they
stand; they rely upon something more. They realize for the purposes of
this contention that they have to rely on something more, somcthing
which has corne about by a process of extension, and consequently
they re1.von these forma1 acts which, they say, have produced an au-
thoritative interpretation that has now to be read as constituting an
obligation on thepart ofthe Respondent-as something falling under the
provisions of Article 38(1) (a). That would seem to be the effect of the
contention.
Now, Mr. President, we dealt with the history of the Charter reIative
to this contention. We pointed out that the founders of the United
Nations deliberately refrained from giving special powers of authoritative
binding interpretation to organs of the Organization, apart, of course,
from the general position which obtains in regard to rulings or inter- REJOINDER OF MR. DE VILLIERS 643
pretations by this Court which may, in certain circurnstances, be binding
and authoritative.
We dealt, further, Mr. President, with autliorities on the question
of the power or lack of powcr on the part of the organs of the United
Nations to give binding interpretations. We referred to authorities 011
general principles about subsequent conduct, i.e., in which way the
principles relating to subsequent conduct of the parties could or could
not play a role in this regard. And we referred to very pertinent passages
from the çeparate opinion by the honourable Prcsident in the Expenses
oj IheUded Nations case, showing how impossible it is for a majority in
organs of an organization, however large or however persistent that
majority may be, to impose its interpretation in a binding way on a
minority which contests that interpretation. l'hat was the stage to
which we came yesterday, hlr. President, and 1 should Iike nom to give
sonle further attention to the Expenses of the United hTations case, both
in regard to jts antecedents and in regard to what one rnight cal1 its
aftermath. Its purpose is to illustrate in the vcry practical implications
which have arisen from a tendency, a tendency to which attention has
been cailed by several commentatars, on the part ofmajorities in organs
of the United Sations to attempt to enforce a sa-called interpretation
against the objections of a minority.
When 1 do so, ;\Ir. President,1 do so with full realization that the
particulai matter at issue in regard to thcse expenscs of the United
Nations is a controversial one, that as far as the merits of the recrimina-
tions are concerned it is noa matter in which 1 should like to take part,
i.e., the recriminations by one State against another, that it has been
responsible, or against this or that group ofStates, that they have been
responsible for departing from the strict letter of the Charter-from
the provisions of the Charter-which has endccl in a position nomrwhich
has created difficulties for the Organization. 1 do not want to enter into
the merits of that kind of dispute. 1 merely wish to refer to the fact that
in the course of sorting out the difficulties which have now arisen fothe
United Nations, of discussing the crisis which is on Iland becaiise of this
very question, various speakers, taking various political points of view'
in this situation,have emphasized that the important mntter is to abide
by the provisions of the Charter and not to seek to depart from those
provisions by theçe so-called processes of interpretation, which in truth
do not amount to interpretation but amount to the imposition, or
attempted imposition, of new obligations on parties which have not
agreed to them.
1should like to refer first, Mr. President, to thi>leadings,Oral Arp-
melzts,Docrsmentsin relation to that case,CertainExPenses ofthe United
Nations, and 1 should like to refer to the very pertinent attifude taken
up and espressed on behalf of the Soviet Union in the written argument
and the oral presentation to the Court. 1 cite hrst from the rvritten
Memorandum of the Soviet Government at pages 273 to274 ofthat record :
"It should be added that the resolutions of the U.N. General
Assembly, as it is stipulated in ArticleIO of tlie Charter, are of the
nature of recommendations and are not binding upon States. The
U.N. hfember States themselves determine their attitude to these
resolutions. All measures that follow from the General Assembly
resolutions arc also of only recomrnendatory nature and cannot
establish legal obligations for the Mernber States ofthe Organization."O44 SOUTH WEST AFRICA
I refer next to the oral statement of Blr. Tunkin, reported as from
page 397 onwards, and 1 wish to refer only to two brief passages-the
first one is 3t page397, about the middle of the page:
"It is universally recognized in international law that none of the
parties to a treaty is obliged to bear more responsibility than ivas
assumed by it according to this treaty. For the States hlembers of
the United Nations such a treaty is the Charter within the limits
of which they bear-their responsibility."
Then another brief statement at page 403:
"The cornpetence of each organ of the United Nations is deter-
mincd by tlic provisions of the Uriited Nations Charter. TheCharteis
a treaty conciuded between States, and no organ of the United
Nations can amend it except according to the provisions describcd
by the Charter itself."
Xext, llr. President, 1 should like to refcr to debates in the Special
Committee on Peace-Keeping Operations-debates which occurred
from about April to June this year-debates which, as the Court would
know, related particularly to this very icsue and concerned the further
conseyuences of the Opinion given by the Court and the further attention
in the United Nations to the issue and to the crisis which has riour
arisen. And 1 should like to refer to the attitudes expressed by some of
the speakers exactly on the implications of this matter, of whether there
was to be a so-called dynamicapproach to the interpretation and applica-
tion of the provisions of the Charter. Some took up the attitude that the
approach was to be a static one, some said it was to be a dpamic one;
some said it should not be either,it should be partly one and partly the
other. But from al1sides came the warning in very strong language, and
the diagnosis, that this crisiwas to a large extent due to a departure
from the pr~visions of the Charter and to attempted reliance u on
interpretutions of this kind which were not binding in law. I should eke
to refer first to the remnrks of the representative of Venezuela in the
Committee.
They are in a special document of the United Nations General Assem-
bly A/ACxzx/PVj, 29 April 1965, at page 36, and read:
"Asa point of departure, we must agree that the juridical founda-
tion of the United Nations structure istobe found inthe multilateral
treaty signed at San Francisco on 26 June 1945T .he United Nations
Charter is thus a trenty that can be revised only through the
special procedures laid down in the Charter itself and accepfed by
al1of tlie signatories. This procedureis the one outlined in Chapter
XVIII. There is no provision in the Charter for any procedure for
its interpretation, nor is there any organ competent to take final
decisions on questions of interpretation of the Charter. Therefore,
in the event of a fundamental divergence of views on the inter-
pretation of çpecific Articles of the Charter, only a unanimous
consensus could provicle a final solution to any problem of inter-
pretation.
Obviously the strict application of the legal principles that 1have
just set forth would rule out any interpretation that ive might
describe as a dynarnic interpretation of the Charter and would
require us to accept a static concept which would prevent us from REJOlNDER OF MR. DE VILLIERS 645
shaping and adapting it so as to respond to the rapid changes in
political and economic life that constantly occur in a world which
is undergoing a dizzying process of evolution. We have favoured
['we' apparently meaning the delegation of Venezuela] the accep-
tance of a dynamic concept of the Charter, but we realize that when
fundamental divergences of view arise, as in the present case,
only an adequate revision of the Charter in accordance with the
procedure outlincd in Chapter XVIII, as was very wisely pointed
by Our colleague from Brazil, or else a unanimous consensus on a
specific interpretationof the esisting Articles, can solve the prob-
lem."
After referring further to attempts at dynamic interpretation and
their value, the representative concluded, at page37:
"Stili we cannot draw from these factç the conclusion that the
General Assembly may legally, on the basis of resolutions, alter
the Charter or impose interpretationç which in actual fact would
amount to revision of the Charter. We repeat that in the absence of
unanimous consensus no modification by way of interpretation is
possible."
These remarks have sornehow been quoted out of order, Mr. President.
1 am going back to 22 April where we find attitudes stated by the
representative of the Soviet Union, Mr. Fedorcnko.
1read from page 6 of U.N. document A/AC.IZI/Y V2ZA,pril1965:
"The Sovict delegate believes that it is necessary again to draw
attention to thefact that the Charter of this Organization provides
all the necessary means for strengthening the effectiveness of the
United Nations as a tool for the preservation of international peace
and security, but in many cases these possibilities have not been
exhaustively used or have not been translated into life. They have
not been used because, as is well knoxvn, the line followed by the
United States of America and some other Western Powers generally
consisted of attempting to by-pass the Charter and not at al1 to
implement the Charter. It is precisely for this reason that it is
appropriate to Say that the real possibilities provided by the Charter
for strengthening the effcctiveness of the United Nations as a tool
for the maintenance of peace and security are far from having been
used exhaustively. Our task is to utilize those provisions and to
translatethem into life."
If Imay pause there for a moment. As I have said, this type of political
recrirnination,or applying the principles to the particular, situation,
does not concern me. Ido not intend to enter into the merits of that.
The importance of the Soviet representative's attitude lies in remarks
of the following nature,as his statement proceeds:
"To çtrengthen the effectiveness of this Organization as a tool
for maintaining peace and security means, first of ail, to pan end
to violations of the Charter, to free the Organization from al1 the
strata which have bcen superimposed upon it in the past, and to
create in the United Nationsaproperatmosphere for equal participa-
tion and CO-operationof al1 States."
At page 21 of this report, Mr. President, the reprcsentative of Poland
spoke to similar effect.646 SOUTH WEST AFRICA
Then at page 32 there is a staternent by the representative of Mexico
to which 1should like to refer briefly. It reads:
"The acceptance of the facts of life, which without being contrary
to the Charter, become customary rules, can be achieved through
the express agreement of al1 parties. Moreover, these customary
rules make it possible for the PIember States to take refuge at any
moment behind the written word.
Quite properly, for a number of years now we have been witnessing
the birth of a new kind of international operation which, under the
acgis of the United Nations are destined to maintain peace [the
speaker here taking the opposite political point of view]. 'lhe
provisions of the Charter are clear and remain iiiviolate: al1actions
provided in Chapter VI1 and the -primary responsibility of the
Security Council are not called into question. On the other hand, we
have to apprise a new form of customary law which so far has not
received the general acceptance of llernber States either in its
formation, execution or even in its meaning.
The work of the Special Cornmittee of Thirty-three cornesdown to
ensuring that the new rcalities are accepted by al1 Member States
and that the conviction shall prevail that it lias been possible to link
the strict provisions ol the Charter with the realities of operat'ions
designed to maintain peace, and that al1 Members willingly accept
the idea that in conceiving and carrying out these operations there
is no violation of the Charter but rather that the Charter is even
strengthened thereby."
Here, Mr. President, was ail attitude desiring an opposite resultinthe
political orpracticalsense, but realizing the need for co-operation on the
part of al1concerned in order to achieve tliat, because otherwise it would
be, in the words of the speaker, a case of relying oii something which
has "not yet received the gcneral acceptance of Rlember States, either in
its formation, execution or even inits meaning".
Then, 1 may just mention the fact that there were statements by the
representative of Hungary, at pages gr and $2 of this record, which also
bear on thesubject. I need not read them.
1 corne to 23 April-a stntement by the representative of France,
hlr.Seydoux, at page 76 of U.N. document AJAC. I~I/PV 3. 23 April
1965 :
". . .in'our opinion, it would be illustoytry to attain that objective
by combining ideas borrowed from various theses accepting the
views of some on one point and views of others on another point,
building up out of the wliole cloth, in the guise of a compromise, a
new theory .. .as ifin this respect Our hands were completely free.
There is one common denominator [the speaker talks of a 'common
denominator' ~4th a view ta solving the difficulty] on which the
Members of the United Xations can reach a meeting of the rninds
beyond any question, it is the United Nations Charter . . . the
Charter which we have signed or to which we have adhered, the
Charter which, until it lias been amended or revised in accordance
with the procedures that it provides for that purpose, rernains
binding latv for us alI. It is because there has been a departure from
the Charter that the difficulties and confiicts wcighingtoday on the
Organization have arisen ;it is only by reverting to that incontestable REJOINDER OF MR. DE VILLIERS 647
source, and not by the invention ofnew artifices, that we can put
an end to the differences of opinion ~vliichare paralysing us."
And, yet, my learned friends urge upon the Court, apparently, the
adoption of exactly such "new artilices".
Irefer next to the recordA/AC.IZI/PV~,27 April1965, to a statement
therein by the representative of India. 1 cite two very brief extracts, the
first at page2:
"Past experience has proved beyond doubt that a resolution of the
General Assembly which does not conform to the provisions of the
Charter cannot solve a problem. This would be true even if such a
resolution were to be supported by all the great Powers."
Another one at page 315:
"Much of the difficulty has, however, arisen because of an attempt
to extend the provisions of the Charter through resolutionç of the
GeneraI Assembly."
1 mal7 refer, further, hlr. Yresident, to a statement by the represen-
tative of Brazil, at pages25/30-34/ 3 5,h is pertinent. It was along
much the sarne lines as the previous statement by the representative
ol Mexico.
Then, there is a statement by the representative of Australia, from
which 1would like to read a brief extract, at pag37:
"On the further realities wliich we conceive to be involved,
1 would now like to refer to somc of the observations which were
made by the Foreign hlinister of Australia, the Honourable Paul
Hasluck, in the General Assernbly on II Decernber last year. He
referred to thefactthat while the text ofthe Charter has not been
revised, it has been interpreted and the interpretationshave been
more often political than juridicWe. al1turn to the Charter as the
basis for our efforts here, but where there are points of difference
they resultfrom differencesof interpretation."
The representative accepted very frankly, Rlr. President, the position
that these attempted interpretations have been more often political than
juridical, and that in the juridical sense they do not have the value
attempted to be assigned to them.
In the recordof 6 May (A/AC.I~I/PV~,6 May 1965) there is a relevant
statement by the representative of the Argentine, at pages 26 and 27-
1 should like to start at pag26:
"It has been argued that the evolution that has taken place in the
international community since the Charter was signed twenty years
ago requires flexibility of interpretation and periodic dynamic
adjustments to the ncw circurnstances. We do not disagree with
those views, which, it iç only fair to state, were anticipated by those
who drafted the Charter when they incIuded Chapter XVIII,
which is specifically designed tkccp the Charter up to dateby the
legal means of amendment. We recognize that the amendment of
the Charter may be an arduous task, but there is nothing to prevent
us from uniting Our will so as to estahlish certain provisional
operative standards which will latcr assume institutional fom, in
accordance with Articles 108 and rog, after a vital procedure which
will enable us to ascertain how efficiently they function."
At page 27, this passage appears:648 SOUTH WEST AFRICA
"Experience has shown, on the other hand, that excessive flexi-
bility in interpretinthe clearly laid down standards of the Charter
represents the fundamental origin of the problem now before us.
The point of view is maintained by rny delegation in spite of the
fact that a flexible interpretatioof the Charter migiit have given
the small and medium-sized countries the illusion thaby strcngthen-
ing the cornpetence of the Assembly in peace-keeping operations,
we gave satisfaction to Our strong conviction of the legal equality
ofStates."
Then, at page 28/30,the representative applied his general attitudeto
the particular problern with which the Cornmittee was deaiing. 1 am not
concerned so much with that as with the general view expressed in this
passage :
"The resolution called 'Uniting for Peace', adopted iri 1950 with
the abstention of the Argentine delegation, represented the most
extreme example of that flexible ayproach to the interpretation of
the Charter. While it gave to the small countries the illusion of the
affirmation of the concept of the legal equality of States in con-
sidering and deciding upon problems that endangerecl peace, at the
sarne time it sowed the seeds of future discord precisely because,
with that resolution, we removed ourselves too far from the straight
legalinterpretation of the standards of the Charter."
The discussion continued, Mr. President-new ideas came along, they
were taken up, and they were discussed again. 1 do not want to be ex-
haustive on the subject, but there are a few more pertinent statemeiits
by representatives of States oii this point.
On 17 May the representative of France-the same one as before-
spoke again and 1 wish to give t~vobrief extracts at page3of the relative
record (A/AC.I~I/PV7, 17 May 1965):
"1 have already had the opportunity of explaining the reasons
why the evolution to which reference has been made could not
supersede the normal interpretation of the unequivocal provisions
of a treaty."
1pause there to repeat the words:"why the evolution to which reference
has been made coüld not supersede the normal interpretation of the
unequivocal provisions of a treaty." In that respect 1 think the best
Ican do is to refer to a passage from the statement made by the rep-
resentative of Venezuela on zg April, that is the same one that
I have read to the Court before. Then, later at that same page the
French representative added :
"The present crisis in the United Nations shows, moreovcr, what
happens when attempts are made to circumvent one of the basic
principles on which the authors of the San Francisco Treaty far-
sightedly decided to base the Charter."
The representative of the Soviet Union returned to the fray on25 May
1965. 1 refer to a brief passage at page3 of the relevant record (AJAC.
1zrlPV8, 2j May 1965):
"The Soviet Union, along with other States, became a Member of
the United Nations under certain specific conditions, which are
clearly sçtated in the United Nations Charter. During the twenty
years of the existence of the United Nations the Soviet Union has REJOINDER OF MR. DE VILLIERS
64!3
uns~vervinglyadhered to the provisions of the Charter. Any at tempts.
to force upon the Soviet Union essentially new conditions for
membership in the United Nations ... constltuting a violation and
distortion of the wise principles of the Charter ... are not going to'
succeed.
We also wish to point out that it is not only the States Members
of the United Nations that signed the Charter in San Francisco.
twenty years ago which are obliged to follow unswervingly the
provisions of the Charter. Al1 the young countries which have
become Members of the United Nations in recent years, and whose
acceptance as Members has greatly strengthened the United Nations.
and made it more representative and more viable, must also be
guided by the provisions of the Charter. As is known, in becoming,
Members of our Orgaiiisation, those countries gave a aolemn promise
to respect the United Nations Charter, which is the basic 1aw
governing the activities of the Organisation. The trouble isnot to be
found in the fact that the Charter is not perfect; rather, it is to be
found in the fact that the possibilities contained in the Charter have
thus far not always been utilized and implernented."
Then, finally, Mr. Yresident, we revert tothe representative of hlexico,.
because of the attitude which he expressed after al1 this debate in
proposing a draft resolution to this body. This was on 2 June 1965.
1 think 1 shouId start at the page headed 13/15 of tlie relative record
(A/AC.IZI/PVg, 2 June 196.5).Towards the bottom of the page he
said :
"Paragraph 4 [that is, of the draft resolution] emphasizes strict.
respect for the Charter ... not just any interpretation of it, but the
Charter itself as the embodiment of the spirit of international
solidarity." .
Then, at the top of the next page, headed 16,we find this statement:
"Judge Spender, in liis individual opinion on the financial problem
of the Organisation, stated that the Charter: '...is a multilateral
treaty. Itcannot be altered at the will of the majority of the Mem-
ber States, no matter liow often that will is expressed or asserted
against a protesting minority and no matter how large bc the
rnajority of Mcmber States which assert its will in this manner or
how small the rninority...
This stress and the very meaning of the Mexican proposa1 are
ideas that must be kept in mind."
At the next page, 17, there is this further passage:
"Judge Spender, in his separate opinion, was quite correct when
he said that the Court limits itself to givingan interpretation of an
Article of the Charter and there itç function ended; that it is not
competent to deal with the political consequences fowing from such
an opinion. It is precisely the Assembly that is competent to do
such a thing."
Mr. President, 1 refer to these attitudes in order to demonstrate that
the processes of norm creation here urged upon the Court by the Appli-
cants have their practical implications stretching very far beyond the
confines of this particular case.
1referred the Court before to the so-calleddynamic interpretation anda50 SOUTH WEST AFRICA
application of the provisions of Article 73 of the Charter,with reference
to non-self-governing territories-to the process by whch the original
compromise which went iiito that Article, was entirely counteracted by
the eventual practical results arrived at by the processes of this so-called
dynamic interpretation and application. l'hat is one rnatter in respect
of which dangerous implications have arisen which have been pointed
out by comrnentators. The one to which 1 have just referred now is
another one which cornmentators have used as an occasion for issuing
a warning as to the implications of processes of a kind which are urged
upon the Court by the Applicants.
The international society, particularly mernbers of that society, large
and srnall, have made it clear to what extent they treasure their sover-
,eignty-to what extent they insist that ifthey CO-operate in an inter-
national organization, they do so iipon the terms that have been agreed
to, and that other terms and conditions are not to be enforced upon them
against their will. Failure to heed that warning would appear to imperil
the whoIe of the international order wliich has been brought about so
painstakingly up to this stage.
Tlie Applicants, hlr. Yresident, do not appear to pretend that this
process of dynamic interpretation on which they rely, was merely an
interpretation of what stands there, of what iç to be found in the partic-
ular provisions of the Charter on which they rely. If they merely relied
upon those provisions of the Charter one would have expected them to
read out the provisions and to Say: "that içwhat the words meanH,.or
inso far as the words are not clear, "we have later interpretations which
assist in clearing up the ambiguities or obscurities that there might be".
13utthat is not what they relied upon, They came here with the fruits
of this so-called dynamic process, and they said: "these are what the
Court is to apply as the authentic interpretation of the particular
provisions of the Charter, and therefore also as standards governing
the interpretation of the Mandate."
We find that this appears to be acknowledged in a passage such as the
following nhich appears in the verbatim record of 19 May:
". . . the articles in question, Article55 (c) and 56, impose legal
duties susceptible of definition by a consensus of the membership of
the Organjzation .. ." (supya.p. 346),
and Applicants go on in that same passage, Mr. President, to make it clear
that they speak here of consensus in the sense in which they use that
term, inappropriately in Our çubmission, as not referring to unanimity,
but as referring to something less than unanirnity and in the face of
admitted opposition. That is what they cal1 consensus, and they say
that that process of consensus, in which there is opposition, and in
which the consensus amounts to less than unanimity, can have some legal
bearing on the problem, that it is to be regardcd as a definition which is
not to be found in the Articles as they stand.
We need go no further, Mr. President, in my submission, to show that
an attempted reliance on this so-called process of interpretation is
untenable as a means of bringing the Applicants' case under the heading
of Article38 (11 (a).
The alterations, the additions, or the extensions involved for the
provisions concerned, as compared witli their meaning as originally
fomulated, can never be justified by interpretation. Those extensions, KEJOIEDER OF MR, DE VILLIERS 651
alterations, or additions could only be justified by a further normative
process.
That normative process is here referred to by the Applicants as
definition by consensus. The explanatioli whicli they themselves givc of
what they regard as definition by consensus niakes it clear, in my sub-
mission, that that is not a process wliicll could ever fa11under Articl38
(1)(a). It is not treaty-making, with the consent of the parties involved.
It isnot following the prescribed methods of amendment of a treaty
which, when they have been put in operation, could be said still to be
part and parce1 of the conventional process operating within the con-
templation of Article 38 (1) (a). It is neither of those; it is rather
something of the nature of quasi-legislation, in the nature of a majority
insistent enough and preponderant enough to impose its will, in the
Applicants' submission, on that of a contesting minority.
So it follows, &Ir. President, that in our submission, and for these
reasons, it becomes clear that Article 38 (1)(a) does not apply at al1to
this case sought to be made by the Applicants.
Thus far, 1have dealt with thi sontention about so-called authentic
interpretation only with reference to the Charter. With reference to the
Constitution of the International Labour Organisation, the very same
considerations apply, as 1have jiisstated, except that there is a partic-
ular provision of the International Labour Organisation Constitution
mhich underlines and emphasizes Our answer to the Applicants' conten-
tion. It is Article423 of the Constitution, whicb reads as follo~vs:
".4ny question or dispute relating to the interpretation of this
Part of the present Treaty or of any subsequent convention con-
cluded by the Members in pursuance of the provisions of this Part of
the present Treaty shall be referred for decision to the Permanent
Court of Interiiational Justice."
Of course, in terms of Article37 of the Statute that wouId now refer to
the present Court.
So it is quite clear, therefore, &Ir.Prcsident, that questions relating
to interpretation of the Constitution itsclï andof conï~entions concludcd
by Members in pursuance of the provisions of the Constitution, are to be
referrecl to the Court for judicial determination. There is therefore no
suggestion that organs of the International Laboiir Organisation could
themçelves authoritatively interpret these documents so as to render
them binding upon the Court or upon parties.
It follows, therefore, Mr. President, that in neither case can this
so-called authoritative interpretation bring the matter under contem-
plation of Article 38 (1) (a) of the Statute. We shall later consider to
what extent the provisions of the two Constitutions, i.e., the human
rights provisions in the Charter particularly, and certain provisions of the
1.L.O. Constitution, to what extent they can be relied upon, to bring
the matter within the purview of Article 38 (1) (a). But that is riri
argument reIating to the content of the suggested norm. Naturally, as a
process of nom creation, if those provisions do contain the norm con-
tended for by the Applicants, then, of course,by becoming a party to the
Constitutions concerned, viz., the Charter and the I.L.O. Constitution,
the Respondent would have incurred international obligation in accor-
dance with such a norm. Whether it would be a question for determina-
tion i11 a case concerning the interpretation and application of the65~ SOUTH WEST AFRICA
Mandate, is, of course, a different matter, but that would then at least be
a matter falIing within the purview of Article 38 (1) (a).
But, Illr. President, that concerns, IsSay,the question of the suggested
content of the norm. One would then have to analyse those provisions
themselves and see whether their content corresponds with the content
of the suggested norm. That is a matter with which 1 shall deal when
1 corne to the part of the Applicants' case concerning the suggested
content of the norm.
Finally, hlr. President, before leaving Article 38 (1) (a) and merely
in the context of the norrn-creating process, it rnay be pertinent to
point out that the Applicants' argument as prcscnted to the Court in
the oral reply in regard to this Article, appears to be a complete after-
thought, possibly inspired by the form of the questions put by Sir
Gerald Fitzmaurice, because ifwe look at the verbatim record of 18Rlarch,
which the Court will recall was the opening day of the Oral Proceedings,
we find that my learned friend, hlr. Gross, in giving an exposition to the
Court of what his case las going to be, dealt particularly with his case
regarding suggested violation of Article2, paragraph 2, of the Mandate.
He referred then particularly to the bearing of Article 38 (1) of the
Statute upon his case. But, in this reference, he omitted al1reference to
subparagraph (a).He stated in that record:
"In their written pleadings, the Applicants have sought to
dernonstrate that disputes concerning the interpretation and
application of Artick 2, paragraph z. of the Mandate are justiciable
(may I refer to our Keply, IV,at pages 483 and following).
Sucli disputes, it is respectfully submitted, are justiciable and in
accordance with, and on the basis of, international custom, as
evidence of a general practice accepted as law, the general principles
of law recognized by civilized nations, and judicial decisions and
teacfiings of qualified publicists of the various nations. In short,
hlr. President, justiciability of disputes concerning the interpreta-
tion and application of Article 22 of the Covenant and Article 2,
paragraph 2, of the hlandate is supported by reference to the
application of Article 38, paragraph I,of the Statute of this honour-
able Court." (VIII,p. 117.)
The Court will see that in refcrring to paragraph r of Article 38,
only contents of subparagraphs (b), (c) and (dl are mentioned, viz.,
internationalcustom, gcneral principles of law and judicial decisions and
teachings of qualified publicists but the contents of the very first one
which are now relied upon, are not mentioned at all. And no wonder,
Mr.President, because on analysis, as we Say, as far as thenorrn-creating
process is concerned, the Applicants had to base their case on this very
fiimsy foundation of the so-called authoritative interpretations whereby
a large and insistent majority can bind an opposing minority.
That, hlr. President, concludes my consideration of Article38 (1)(a)
as encompassing a possible norm-creating process relevant to this case,
apart, of course, from the argument as to the content of the suggested
norm and consideration of the particular provisions of the Charter and
the I.L.0. Constitution which wiIl corne at a later stage.
We can now turn to the Applicants' attempted reliance on Article 38
(1)(b) which mentions, as a source to be applied by the Court, "inter-
national custom as evidence of a general practice accepted as law". REJOINDER OF MR. DE VILLIERS 653
Now, it is instructive first to see in what manner the Applicants seek ts
establish this customary norm of non-discrimination or non-separation
on which tliey rely as falling under this particular head.
In the verbatim of 19 May, at page 347,SUPY tUe, said the following:
"ln common parlance, a custorn may develop and exist despite objection
during its period of emergence." May 1 just pause there for a moment,
Rlr. Yresident. That would seem to mcet the Applicants' crucial difficiilty
or rather,itwould seem to be an attempt made to meet the Applicants'
crucial difficulty. That is the crucial point at issue in these proceedings.
The Applicants, in trying to rely on the first major source, Article 38
(1)(a), ran into this difficulty that they could nfind words, they could
not find provisions in treaties which support their contention in regard
tothe existence of such a norm. They thereforehadto attempt to rely on
this process ofso-called authoritative interprctationaith al1the inherent
difficulties in it.w they try to rely on custom where, as it is, thcy have
to admit that for the purposes of treaty laiv, of conventional law, of the
creation of obligations by way of treaty or convention, it is necessary
to rely upon the consent of the parties souglit to be bound. Here they try
to circumvent their difficulty by saying that in regard to the gcneration
of an international customary law, that consent is not necessary and
they take it to the extreme of saying that a custom may develop and
exist despite objection during its period of emergence. That, as we shall
show, is the very crucial issue between the Parties.
The passage in the verbatim of 19 May continues:
"So long as international society was highly decentralized it\vas
necessary to rest law-creating proccdureson State practice. With the
growth of an organized international community, with constituent
organs, it is increasingly reasonable to regard the collective acts of
the competent international institutions as evidence of general
practice accepted as law."
So, Mr. President, one sees here in this passage already that when they
Say they rely upon the generation of a rule of international customary
law they do so in a very peculiar sense-they do so, not by relying upon
the normal processes to which regard is to be had when a question ariçes
as to the generation of a customary principle or a customary rule; they
seek to rely upon the activities of States notintheir inter-State practice
but within organisations of the so-called organized international com-
munity or society. This becomes clearer when we proceed to the next
passage in the record of 19 May:
"... Respondent's pAicieç in South West hfrica ... have been
subject to quasi judicial scrutiny over the last decade or more by
organs of the United Nations as distinctive as the International
Labour Organisation and Cornmittees of the United Nations in
various forms, such as the South West Africa Cornmittee itself. It iç
against this background [this background, Mr. President, of the
so-called quasi judicial scrutiny] that theApplicants contend that
the international standard of non-discrimination and non-separation
has ripened into a noml of customary international law within the
language and meaning of Article 38, paragraph I (b), of the
Statute of the Court." (Serpra,-. -.8.)
So that is the evidential field on which the Applicants choose to rely.
And, Mr. President, they proceed to rnake it cIear even that they seek654 SOUTH WEST AFHICA
to rely on that exclusively, wittiout referring to the rest of the standard
and trnditional field of evide~iceto be considered in order to see whether
a rule of customary law has become generated. In the verbatim record
of 13 hiay they say:
"The issue before the Court ... is whether the processes of the
organized international community have or have not eventuated in
international standards or an international legal norm or both."
(Supra, p. zj6.)
So, Mr. President, the question is to what extent and in what manner
can this so-called organized international community generate rules of
customary law? Or to put it in another way, the crux of this issue: can
organs or members of the associations which are said to comprise the
organized international community, in their participation in the activities
of those organizations, add to or supplement the terms of their Con-
stitutions, or caIi they bring about legal consequences outside the lirnits
indicated by those Constitutions? That would seem to be the crux ofthe
matter. The Applicants would seem to admit that the consequences for
which they contend, fa11outside the scope and limitations indicated in
those constituent instruments themselves, but they would appear to
suggest that the gap has been bridged by a custom, which applies this
concept of theirs of a consensus approaching unanirnity, and to which
effect is tobe given despite protests of a minority.
That wouid seem to be the effect of their contention. They would have
to bridge this gap between the limits indicated in the Constitutions
themselves, as to instances in which individual States can be bound by
collective ;iction, and where they want to corne with this contention of
theirs. ive have seen in the first place that they cannot do so by the
process of so-called authoritative interpretation. We have seen that
they could bridge the gap if thcre should have been new treaties or if
there should have been forma1 aniendment of the relevant international
instruments. But they do not rely upon any such suggestions of forma1
amendment or of new treaties, and the question thcn is whether by some
process falling under the concept of generation ofrules of customary law,
they can bridge this gap. That there is a gap is perfectiy clear, and it
~vouldseem to be admitted by the Applicants.
Neither the United Xationç nor the International Labour Organisation,
as organizatioiis, possess legislative, qztasi-legislative, or normative
functions. As faras the United Nations is concerned, the Applicants said
in the verbatim record of 19 May:
". ..the capacity to develop and give effect to international custom
is not equivalent, in Our view, to endowing the General AssembIy
\Ath Icgislntive law-making powcrs or competence". (Supra, p. 348.)
In other words, they do not suggest that the General Assembly is to be
regarded as being endowed with legislative law-making powers or
cornpetence-they want to disassociate themselves from a contention of
that kind. They proceeded to quote with approval an extract from a
work by one Mrs. Higgins-and that is at the same page of the same
record-and that estract commenced with the words : "Resolutions of the
Assembly are not per se binding . ..", so it \vould seernhlr. President,
that that is a common cause basis from ivhich we can proceed to deal
with the rirgurneiit in regard to whicli the issue arises.1should, never-
theless, Iike to refer briefly, becaus1think it may be of significance, to REJOINDEK OF hlR.DE VILLIERS 6jg
certain aspects of the scheme, the ratio of this basic situation which
appears to be admitted by the Applicants, the radioof this very arrange-
ment whereby the powers of these international organizations and their
organs are limited to the extent that they are.
In the first place, 1 should like to refer to the general position as.
summarized by Oppenheim in his Intevnational Law,the Eightli Edition,
1955 . olume 1, at page 28:
"Since the Family of Nations is not at present a State-like
comrnunity, there is no central authoritywhicli can make law for it
in the way that Parliaments make Iaw by statutes within the
States. The only way in which International Law can be made by a
deliberate act, in contradistinction to custom, is by the members of
the Family of Nations concluding treaties in ivhich certain rules for
their future conduct are stipulated."
1Vecan refer the Court aiso to the book by the honourable Afernber
of the Court, Judge Jessup, A Modern Law of Nations, at page 135,
where the honourable author accepts that the United Nations is not a
world legislator and where he speaks of certain possible developrnents
as having to await the crcntion of an actual world legislator. And tlien
later, at the same page again, lie suggests that certain developments.
could "pave the wüy to the clevelopment of an actual systern of inter-
national legislation under whicti an international body would have the
legal authority to prescribe rules binding the community as a whole",
accepting, therefore, tliat in the law as it standthereis no such inter-
national legislator with those powers.
Dealing now, >Ir. President, with the specific organs of these two main
bodies, the United Nations and the International Labour Organisation,
let us begin with the Security Council of the United Nations. We find
tkat Article 25 of the Cliartcr provides that the Security Council haç
power to make decisions; other provisions, of coursc, rmpower the
Security Council to make recommendations in particular circumstances,
but it can go to the extent of making decisions only under certain
circumstances. Point number one that is important is that those are
decisions relating to ad hoc situations; they are not decisions rclating to
a normative process, a Iegislative process of making law in gencral for
the future. That is a factor streçsed by Kelsen in hisLaw of the United
iVations,at pages 293 to 295.
&Ir.President, what is further important in this situationisthe very
fact of the iiarrow limits within which the Security Council can emake
those decisions. Its power to do so and to bind individual Members of the
organization, even without their concurrence in the particuIar decision,
derives of course from the explicit agreement by Members to be so
bound, as it is found in Article 25 of the Charter. Articl25 statcs that
specifically. The Mernbers of the United Nations agree to accept and
carry out the deciçions of tlie Security Council in accordance with the
Charter, but, Mr. President, juçt as in the case of the Covenant of the
League of Nations, to which we referred the other day, WC find that, in
broad principle, the iame position appIies in that tlie compass within
which this can occur, is a very limited and a very definitely circum-
scribed one. It is, of course, not exactly the same asitwas in the case
of the Council of the League, but it is also a circumscribed one.
Broadly speaking, if one has regard to the various provisions of thea56 SOUTH \EST AFRICA
Charter which are relevant in this regard, they would seern to fa11under
.only one or two heads. Perhaps the t~voare to be assimilated, perhaps
they are not, but the two that come to mind are situations of actual or
threatened breaches of the peace, as contemplated inArticle 39 of the
Charter and the provisions which iollow on thnt, and a situation as
contemplated in Article 94 of the Charter, in which a party fails to carry
.out a judgment of this Court in a contentious proceeding. Such is the
narrow circurnscription of the circumstances, klr. Yresident, and then,
.added to that, one finds that the composition of the Security Council
and the voting procedure in the Security Council are so circumscribed as
very strongly to reduce the possibility of the making of such binding
.decision5 in various situations. The rnere fact that there is required a
positive vote of seven Members of the Council, consisting of II coupled
with the veto rights given to the great Powers on the Council (those
aspects of it are well known to the Court, so 1 need not stress thern),
in themselves have thc practical effect of rcducing the probable scopc
within which there could be decisions of the Security Council, binding
upon States which have not agreed to those particular decisions.
That is the general scheme, which is a very carefully checked and
balanced one,as the authors of the Charter saw it.
In the case of the General Assembly, one knows that the basic position
is that its powers are only recommendatory except in the case of certain
specific matters such as provisions for approval of tlie budget, admission
of >lembers, and so forth. Thesituation was dealt with in the opinions of
Judges Lauterpacht and Klaestad, an extract from which 1 read to the
Court on Friday, so 1need not dwell upon that. 1 should like to point out,
Mr. President, that, as far as the sphere of making recommendations is
concerned, and evcn having regard to the exceptional cases where bind-
ing decisions may be taken, it is again perfectly clear, as appears from
-the comment of the various commentators, that the General Assembly
is not vested with legislative powers. Oppenheim uses that expression
explicitly in his 8th edition, Volume 1,at page 424. 1can refer the Court
to further comment on the situation in Kelsen, pages 193-194 G oodrich
and Harnbro, Charter of theUniled Nations, and edition, pages 151-152;
.Goodrich, The United Nations (195g), page 207. and L. Delbez, Les
principes généraux du droit international public 3rd edition, 1964, at
pages 414-415 1.do not want to read in extenso from the comment, but
1 should like to point out certain pertinent features.
The last author, Delbez, says explicitly-"It [the General Assembly]
has in respect of Membcr States neither normative powers nor individual
powers of decision".
Most of the commentators, Bir. President, givc açthe rationale for the
.situation that the General Assernbly was jntended to exercise a fioliticaE
influence, and nof to play the roleof a law-giver or an interpreter of the
lam, or of inany way laying down the law. Its function iç political and
nol juridical.
1 should like to rcfer to the comment of Kelsen on this particular
.point,at pages 199-200 of the work to which 1 referred:
". ..it is important to note that the main cornpetence of the Assem-
biy, as determined by Article IO,has a political, not a legal character.
The intention was to establish the GeneraI Assembly as town meet-
ing of the world, the open conscience of humanity-that is to Say,
as a deliberative and criticising organ. Hence,legal functions of the REJOINDER OF MR. DE VILLTERS 657
Assembly are to be considered as exceptions and require special
provisions in the Charter."
Again, in Goodrich, the work to which 1referred, at page 207, there is
a general statement which I should like to cite:
"Since both the General Assembly and the Security Council lack
authority to take legally binding decisions in the realm of peaceful
settlenient and thus must seek to achieve their objectives by
persuasion, wliat these two organs actually do is usually determined
by an estimate of the course of action which under al1 the circum-
stances is rnost likely to achieve the desired result.If the purpose
of action is to get an immediate settlement or adjustment based on
the consent of interested parties, the course followed will presumably
be that which is most likely to identify and eliminate present dif-
ferences and achieve an agreed settlement. If, on the other hand,
the purpose of action is to gain a propaganda advantage in the
'cold war' or build up pressure on one of the parties to accept a
particular programme, then the course followed will be that which
at the same time serves the interests of the major proponents and
is acceptable to an impressive majority."
hlr. Presidetit, 1 thought it fit to refer to this comment as to the
rationale of the situation, because it seems to me to be eminently relevant
to the suggestion that activities within a body such as the General
Assernbly and the Security Council, acting in this particular way, can
be çaid to establish customary international law at all, when their
purpose isso essentially different, when their purpose is not directed at
acts of States, when their purpose is not directed at indications whether
there is a legal obligation or not, in the ordinary course of events. There
may be exceptions, but the basic essential function of these organs is so
foreign to that which is suggested as being necessary in a process of
generating a norm of customary law.
In the case of the Trusteeship Council, the position can be stated very
shortly. It is quite clear that in terrns of Article 87 the Trusteeship
Council cannot have wider powers than the General Assembly-it
assists the General Assembly, and its functions are lirnited and directly
prescribed, the scope relates essentially to supervisory functions regard-
ing trusteeship administration. There again, one finds no purpoçe of
laying down norms which may be binding in the future.
Finally, we corne to the Constitution of the International Labour
Organisation. As far as Ive could study that document, hlr. President,
it seems clear that the functions of that Organisation are intended to be
non-normative. The Organisation may prepare draft conventions, but
those draft conventions then again require ratification by the States
concerned. This emphasizes that that power of binding without the
consent of the States concerned was ~zotintended to be given to the
Organisation. And then there are certain other functions relating to
investigation of specific complaints and so forth, but again a limited
compass relating to investigation 'of particular cornplaints and not
normative in a general sense at all.
It is against that background, Mr. Psesident, of what we find in the
constituent instruments, what we findby way of contemplation of the
natureand the extent of the powers of these various organized bodies and
organs, that the two questions arise which are relevant to the issue now658 SOUTH WEST AFRtCA
under consideration: firstly,can a norm arise by custom in the processes
of these Organizations, and, secondly, would such a norm be binding
upon a dissenting State?
Mr.President, for the purposesof considering whether a ruleof cuçtom-
ary law has been generated by the processes sliggested by the Applicants,
it is necessary first to consider the basic principIes which apply, aç
enunciated by various authorities and by various commentators. Biy
learned friend,Dr. verLoren van Thernaat, fiasspecially conducted some
research into this matter, and with your leave, Mr. President, 1 should
like to ask hirn to present a brief survey of relevant authorities to the
Court.
Procès-verbaux des audiences publiques tenues du 15 mars au 14 juillet, du 20 septembre au 15 novembre, le 29 novembre 1965, le 21 mars et le 18 juillet 1966, sous la présidence de sir Percy Spender, président (Annexes aux procès-verbaux - suite)