International Status of South West Africa - Advisory opinion of the Court of 11 July 1950

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The followlng information fromthe Registry of the International
Court of Justice has beencomicated to the Press:
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. On July Ilth,1950, the Court gave an advisory opinion on the
Internationa Status OP 'South-Wes t rica,referred to it by Besolutian
of the Generd Assemblyof the United Nations on December 6th, 1949.

TheCourt decided unanimousl that South-Wes Atfrlca is a territory
under the internationa Mlandate assumedby the Union of South Africaon
December 17th,1920;
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bB 12 votes to 2 that the Union of South Africa continues to have the
. international obligation -ulting fromthe Mandate, including the
obligation to submit reportsand transmit petitions from the inhabitants
of that Territory, the supervlsorf yunctions to be exhrcised by th6 United
Nations and the referenceto the Permanent Court of International Justice
to be replaced by refe~ence to the International Court of Justice, in
accordanc eith Article 7 of the hndate and Article 37 of the Statute
of the Court:

unanirnously that the provisions of Chapter XII of the Charter are
applicable to the Territory of South-West Africa in the sense thatthey
provide anieana by whichthe Territorm yay be brou@ under the Trusteeship
. system;

by 8 votes to 6 that the Charter does no£ imposeon the Union of
. South Africa a legal obligation to place the Territory underTrusteeship;

and finally, urianimously that the Union of South Afrtca isnot
competent to modlfy the internationa tatus of South-WesA tfrica, sueh
cornpetence resting withthe hion acting with theconsent of the United
Nations ;
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X K

Thècircumstance isnwhich the Court was called upon to give its
opinion were the following:

The Territory af South-WesA tfriça was one :ofthe German overseas
possession sn respect of which Germany, by Article 119 of the Treaty of
Versailles renounced al1her rights and titles in favour of the Principal
Alliedand Associated Powers. After the war of 19U-1918 this Territory
was placed under a Mandata conferred upon the Union of South Africa wtiich
was to have full pow& of administration andlegislation owr the Territory
as an integral portion of the Union, Toe UnionGovermmentwas to exercise
an iriternational function of administratio on behaif of the League, with
the object of promoting the well-being and develapment of the inhabitants,

Rfter the secondmrld war, the Union of SouthAfrica, alleging that the
, Mandate had lapsed, sought the recognition of the United Nations to the
,' integration of the Territory in the Union.

TheUnited Nations refused their consentto thisintegration and invited
the Union of South Africa to place the Territory under Trusteeship, according
to the provisibns of Ckapter XII of the Charter.
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Trie UnZrln ofSouthAfrica having refused to comply, the Gcneral Assembly
of the United Nations, on December 6th,1949, adoptcdthe f ollowing rcsolutien:

The General Assembly,

Recalling its previous resolutions 65 (1) of Ur.December 1946, 141(IL}

of 1 November 1947 and 227 (III) of 26 November 1948 concerning the
Territory of South-West Africa,
Considering ... Considerin ghat it Je desirable that the General Assembly, for its
fÜ;.ther çansideratian of the question,should obtain an advisoryopinion
-on its legal aspects,

1. Decides to subrnit the fellowin qguestions to the International
Court of Justice with a'~eque3t foran adstisory opinion which shall be
.trari&tted to the General Assembly before its Eifth regular session, if
possibl e

l
WhAt Is the internationa ltatus of the Territory of South-InTest
Africa and what are the internationa lbligations of the Union of
South Af ricaarising theref rom, in particular :

(a) Doesthe Union of South Af rica continue to have interriztional
obligations underthe Mandate for South-West Africa and, if so,
wtiatare those obligatioris ?

"(b)Are the provisions of Ghapter XII of the Charter applicable
and, if so, in what mnner, to the Territory of South-WesA tfrica ?

"(c) Has the Union of South Africa the cornpetence to modify the
international status of the Territory of South-West Africa, or,in
0
I the eventof a negative reply,where does cornpetence rest to
determine and modifythe international status of the Territory ?

2. Requeststhe Secretary-Gener tal transmit the present resolution
to the Internationa lourt of Justice, in accordance with Article 65 of
the Statute of the Court,accompanieb dy al1documents likely to thraw
light upon the question.

'The Secretary-General shall includeamong these documents the text.of
article 22 of the Covenant of the .League af Nations; the textof the
Mandate for German South-West Afmca, confirmed by the Cowicil of the .
League on 17 December l92O; relevant documentation concerning the
the text of the
objectives and the functions of the lkndates System;
resolutian adopted by the League of Nationson the question of Mandates
on 1& dpril 1946; the text of Articles 71 and80 of the Charter and data
on the discussion of .these Articles in the SanFrancisco Conference and
the General Assembly; the report of the ~ourth Cormittee and the officia
records, including the annexes, of the consideration of the questionof
South-West Af rica a+ the fourth ,session of the Generaf Assembl y
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In the opinion given today the Court examincdfirstif the Mandate
conferred by the Principal Aflied and Assaciated '~owers on Ris Britanic
.Majesty, to bè exercised on his behdf by the Union of South Africa, over
the Territory of South-West Africa was still in existence. ne Court
declared that the League tms nok a Imandator" in the sense in vihich this
term is used in the national law of certain ?tates. The Ibndate had only
the mme in cornnionwith the several notions of mandatein national law.

The esaentially international character of the functions of the Union
appeared fromthefact that these functions were subject to the superv5sion
of the Councilof the League and to the obligation to present annualreports
to it; it also appeared from the fact tbt any Memberof the League could
subrmit to the Permanent Court of Internationa lustice any dispute witb the
Union Government relating to the interpretatioo nr the application of the
. provisions of the Mandate.

ZhB international obligation; assumed by theUnion of SouthAfrica
were of two kinds. One kind was directly related,to the administration of
the Territory and corresponded to the sacred trust of civilization referred
to in article 22 of the Covenant; the other related to the machinery for
implementatioa nnd was closelyllnked to the supervision ewd control of
the Leagu~, It corresponded tq the llsecurlties for the performance of

thistrustf1 referred to in the same Article.
The ... The obligations of the first group represent the very essence of the
sacred trust of civ5lization. Their raison d'être and originaî object
remain. Sincetheir fulfilment didnot depend on the existence of the
League of Nations,they could not be brçiught to an end merelybecsruse this
superviisary organ ccased to exist . This view f s confirae dy Article 80,
paragraph.i,of the Charter, maintaining the rlghtsof States and peoples
and the terms Qf existing internationa ilnstrumentu sntil the territories
tn question are'placed under the trusteeship system. Moreover, the resolution

of the League of Nations of April 18, 1946, saidthat the League 's functions
tnthresbcct to mandated territories wouîd corneto an end; it didnot say
that the Mandates thenselves came to an and, -

By thia ~esolution the Assembly of the Loague of Nations manifestei dts
understanding that the MaYidates woUd continue in existence untilIrother
arrangements ffwereestabl ihed and the Union of South Af rica,In declarations
mde to the League of Mations as well as to the United Nations, had recognized
that its obligationu snder theMandatecontinued after the disappearanc oef the
League.Interpretati oaced upon legal instruments by the parties to tàiern,
though notconclusiv es to their msaning, have considsrable probative value
when they contain recognition by a party of its own obligations under an
',instrument.

8 :Kth regard to the second gsoup of obligationst ,heCourt sald that some
doubts might arise from the fact thatthe supervisar mctions of the League
with regard to mandated territories not placed under thc newtrustceship
system were neither-expressly transferred tu the United Nations$ nor qsessly
assimiedby that Organization. Mevertheless, the obligatioi nncumbent upon a
Mandatory State k~ accept internationa supervision and tg su43mj.t reports is
an important part of the Mandates System. It could not be concluded that khe
oblfgation ta submit to supervision had àisappeared rn~rely because the super-
vjsory orgm had ceased to efist, when the United Mztions had anather inter-
national. organ performing simllar,tboug not identical, supervisorfy unctions,

These generd conSideration sere confirmed by'Article 80, paragraph 1,
of the Charter, hich purports to safeguard not ohly the rights of States, but

aleo tha rights of the peoples of mandated territories until trustceship
agreements were concluded. nze compe tence of the General Assembly of'the
United Nations to exercisc suchsupervision and to receive and examine reports
Is derived ?rom the provisions of Article 10 of the Charter, which authorizes
the Generil Assembly to discuss any questionson my matters within the scop
of the Charter, and m&a recommendation ts the Mernbere of the United Nations.
, , Morsovor,the Resolutio nf April 18th, 1946, of the Assemhly of the Laague
of Mations bre- supposes 'that the supervisor yunctions exercised by the
League would be taken over by the United Nations.

The right of petition was not rnentioned in the Covenant or the Mandate,
but ,wasorganized by a decision of the Councik of the League. 'Ph@ Court
ms of opinion that this right which the inhabitanto f South-West Africa

had thus acquired, was mauitained by Article 80, paragraph 1, of the Charter,
as this clausewas lilterpreted above. The Coud was therefore of the
opinion that petitions are to be tranmtitted by the Governent of the Union
to the General Assembly of the United Nations, which is legdly qualifieci
to deal with them,

Therefore, South-Wést Africa is stlll to be cansidered a territory held
under the Mandate of December l7th, 1920. The degree of supervisiob ny the
Cxeneral Assemblyshould not exceedthat which applied under the Mandates
System. These observztions apply to annual reports and petitlons.

Having ,regard to Article 37 of the Statute of the Intemation& Court
of Justice andArticle $0, paragraph 1, of the Charter, the Court was of
opinion that this clause in the Mandate was still 51 force, and therefore
that the Union of south Afmca was under aslobligation to ecceptthe
8 " compuls&y jurisdiction of the Court according to tkose provisions,

%th regard to question b) the Court said that Chapter XFI of the
Charter applied to the Territory of South-WesA tfrica in thls sense, that it
provides a msans by which the Tarritory mg be brought undcr the trusteeship
system .., Vice-Presiden tuerrerodeclared that he could not concur Ln the
Court's ophion on the mswer to question Cd). For him, the Charter
imposedon the South hifricanUnion an obligation to plzce the Territory
mder Trusteeship. On this pointand on the text in general, he skared
thc views expressed by Judge De Visscher.

Judges Zoricic and Bsdawi Psshe declaredthst they were uneble to
concur in the erwer given by the Court to the secondpart of thc question

under lottcr,(b) and declered thzt tbey shared in the general views
expressed on this point Ln the Dissenthg opinion of Judge De Visscher.

The Court's opinion was given Ixi a public hearing. Oralstatements
were presented on bchdf of the Secretary-GeneraX of the United Nations
by the Assistant Secretary-Gener zl charge of the Legl Department , nd
on behalf of the Government sf the Philippines and of the Union of South
fifrica.

The Hague, JuLy Ut4-, 1950.