South West Africa (Ethiopia v. South Africa) - Judgment (Preliminary Objections)

Communique Na. 62/3 2
(uno fficial)

The followin nformation from the kgistry of the International
Court of Justice is comnicated to the Press:

The International Court or" Justice today (21Deceniber 1962)

delivered its Judgment in the South West Afrioa cases (Ethiopia x.
South Africa; Lib cria v, South Afric a) (Preliminary 0bjections) ,

The case, which relates to the continued existence of the Mandate
for South West Africa and the duties and performance of ?muth Africa
as IWdatory theremder, was instituted by Applicatbns of the
kve~lments of Xthiopia and Liberia fïled in the Rezistry on 4 iu'ovemb~r
1960, Ths Gavernment of South drica raised prelfniinary sibJecllons
t5 the jurisdiction of the Court to kear the case.

By eight votes to seventhe Court found thatit had jurisdlctbn
to adjudicate upon the meri-bs of the dlspute.

Judges Bustamante y Rivero and Jessup and Juâge ad hoc Sir buis
Mbanefa appended Separat;e OpLnLons.

President kfhtar ski and Judge Basdevant appended Dissent ing
Opinions; Judges Sir Percy Spender and Sir Gerald Fitzmuriae appended
a Joint Dissenting Opinion; Juàge MoreUl and Judge ad hoc van Wyk
appended Dis sentingOpInions .

Judgs Spiropoulo s appende d a neclaration of kis dissent.

In its Judpent, the Court noted that to found the jurisdiction of
the Court, the Appllcants, havine; regard to Article 80, paragraph 1,
of the Charter of the United Nations, relied on Article 7 of the Mandate
of 17 December 1920 for South West Africa and Arbicle37 of the Statute

of the Court,

Before undert aking an 'exmination of the Preliminary Objections
raisedby South Africa, the Court found it necessaryto decide a
prelMary question relata to the e~stence of the disputé which is
the subject of the Applications. On this point it found that it >;as
not sufficient for one party ta a contentiouû case ta assert that a
dispute exlsted wlth the other party. It mst be shown that the
claimof one partywaspo~itivelyopposedbythe other. Testedby
Gkis criterion, there couldbe no doubt aboat the eestence of a
dispute hetween the partiesbefore the Court, shce it was clearly
constituted by their opposlng attitudes re1atin.g to the performanceof
the obligations of the Tbdate by the Respondent as Mandatory.

The .,.. . - >
>>-...
' The c0;rt then briefly reoalled the origin,nature and oharaoteri'stics
of the MandatesSystem established Sy the Covenmt of the League of
Nations. The essential pMncipZes of this system consisted chiefly In
the,recognition of certainri@ s of the peoples of the underdeveloped
territories; the establi~hmen of a regjme of tutelage for each of such
peaples to be exercised 5y an advanced nation as a llihdatoryly "on behalf
of the League of NationsI1; and the recognition of. Ifasacred trust of
clvillsat ion1! laid kpon the League as an organized ht ernatlond ,
community and upon its Members. The rights of the Mandatow in relation
ts the mandatad territory and the inhabitants had their foundation in

the obligations of the Mandatory and wre, so to speak, mere tools aven
to enable it to fulTiJ its obligations.

The f irst of the Eespondent s preliminary objections r&ntained
that the idandate for South West Mrica had never been, or at my rate
was since the dissolution of the League of Nations no. longer, a treaty
or convention in force within the rnea~irig of Arbicle 37 af the Statute
of the Cau~. In presenting tkis prclllninary abjection in this form,
the Respondent stated thatit had always considered or assumed that the
M~ndate for South West dfrica had been a 'Itreaty or convention in itself,
that is, an international agreement betwen the lhdatory on the one

hand, and, on the other, the Counctl representing the League and/or its
MenbersII but %bat the alternative vieW n-L,ghtkwll bs taken that in
defining the tems of the Fidate, the Council was taking executive aciion
in pursuance of the Covenmt (wbici ?f course was a convention) and was
-notentering Into an agreement which muid i-t'self be a treaty or
comrentionfli, At the same the the Respondent added fttliis view , , would
regard the Councills Declaration as setting forth a resalubion ... wfiich
would, lske any other vaid resolution of the Cowcrl, owe its legal
force to the fact of having been duly resolved bg the Gouncil in the
exercise of powers conferred upon it by the Covenant,t' In thv Court ç
opinion, th33 view W~S not wdl-founded, WhSe the Mandate for South
West Ilfrica. toak the form of a xcselution, it was obviously of'a
dlfferent character. ft eould not be regarded as embodying O*- an

executiwe action in pursuance of the Govenant, In fact andin lawit
was an international agreeineint having the character of a treaty or
. convention. '

It had bsen arguedthat 'the Mandate in question had not been
registered in accordance with Article 18 of the Covenant, which provided:
"Mc such treaty or international engagement shall be binding until 80
registeredl1 . If the 1-Zandate had been ab initb nfi and'voidon the
graund of non-registration, it would foUow that .the Bespondent had not
and had fiever had a.legaLtitLe for its administration.of the territory
of South \{estAfrica; ik wuuld therefore be Lmpossible for ik to

mintain that it had l~ad such a title up to the discovery of this ground
of nullity. Article le, designedto secure publicity and avoid secret
treaties, cauld not applr in the same way in respect of treaties to which
the League of ~ations was one of the parties as in respect of treaties
concluded amone individual Member St etes.
. .
SLnce the Mandate in qbestion had had, the charactcr of a treaty
or convention at its start, the ne& relevant question tu be considered
was whekher, as such, it was still in force either as a whole jricluàbg
hticle 7, or with respect to Mic,le 7 itself. The Respondent
contendeà that it was notin force, and this contention constituted the

essenceof the first preliminary objection, ' Itwas argued that the

rights ,..,, rights and obligations underthe ikndate in relation to the administra-
tion of the territory being of an objective character still existed,
mile those rigkits and obligations relating to administrntivs eupervisian
bg the League and submission to the Permanent Court of International
Justice, being of a contractual character, had necessarily become exkinct
on the dissolution of the League of Nations, The Zespondent further
argued that khe casilalties arising fron the denise of the League of
Nations included Article 7 of the Nandate by ~ich the rlespondent had
agreed to sub~Lt 60 the jurisdiction of the Permanent Court of

International Justice in any dispute wbatever between it as Mandatory
and mother Member of the League of-M&ions relating to the interpretation
or the application oi the Mandate.

On thispahb the Court, recaïling the hdV1~0q- Opinion which it had
given in 3950 concshg the International. Siatus of South West Africa,
staited that itz findings on the obligation of the Union Government b
submit to internationa lupervision were crystal clear. To exclude the
obligations connected with the Mandate would be to exclude the very
essence of the IGhndate. The Court aZso recaUed thatwhlle it had been
divided in 1950 on other points, it had been manimous on the finding
that Article 7 of the Mandate relatw to the obligation of the Union of
South Africa to submitto the compulsor yurisdiction of the Caurt was

still "in forceu. Nothing had sifice occurred which would warrant the
Court reconsiderhg its conclusions. Mi importantfacts had been stated
or referred to in the proceedings in1950.

The Court faund th& thuugh the League of Mations and the Permanent
Court of f ternationai Justice had both ceaçed to exist,the obligat,ion of
the fiespondent to subnit to compulsory jurisdiction had been effectively
transferre do the present Court before the dissolution of the League of
Nations. The League had ceased to exist fmm !+ri1 1946; the Charter
of the United Nations had entered kto force in October 1945; the three
parties ta the present pmceedings had depoaited theirratifications in
Noverber 1945 and had become &ribers of the United Nations fmm the dates
of those ratifications. They had since been sub jected to the obligations,
and entitled to the rights, under the Charter. 3y the effect of the

provisions of Articles 92 and 93 of the Charter and Micle 37 of the
Statute of the Court, the Respondent had bound itself,by ratifyhg the
Charber at a tbe when the League of ?dations and the Pernnnent Court were
stiu in existenceand when therefore Article 7 of the Mandate was Kim
in full force, to accept the coquïsorg jurisdiction ef the present
Court in lieu of khat of the Permnent Court.

This trsnsfesred obligation had been volunta- asswned by the 1
Respondent &en joining the United Nations, The vdidity of Article 7,
in the Court's rLew, had nat been affected by the dissolution of .the
Leaguc, just as the Mandate as a whole was stu in force for the
reasons stated above,

The second prelimjmry objection centred on the tem "another

Hen-ber of the Leag.lie of Nationsb' in Article 7, the second paragraph of
which mads "the Ihndatorgr agrees that,if any dispute whatever should
arise between the Handatory and another Kember of the League of Nations
relatin g o the interpretation or the application of the provisions of
the Flandate, such dispute .., $hall be subrnitted to the Permanent Court
of IrYternational Justice ..." It was ~ontended that since al1 IJiernberStates of the League ,lest
their membership and its accompanyin rights when the League itself
ceased to exist on 19 AprS 1946, there could no Longer be I1anather
liembes of the League of PJationsI1 today. kccording to this contention,
no State had lflocus sk=%ndit'or was qudified to invokc the Jurisdiction
of the Caurtin any dispute wlth the Respondent as ifkndatory.

The Court pointed out thnt irrtevpretation according to the natural
and ordinary rneanln~ of the wods employed was not m absolute rule,
and that no reliance could be placed on +it where it resulted in a
meaning incompatible wlth the spirit, purpose and contexk of the provision

to be interpretcd,

Judicial pmtection of thez sacrcd trust in each Mandate wâs an
essential, feature of the iliandates Systella, The administrative supervision
by the League constituted a ~zormal security to ensure full perfmrmance
by the Ibndatory of the I1szcred trustM tomrd the inhabitants of bhe
territory b,ut the apecially assigned mlc of the Caurt was even more
essentisi, since itwas ta serve as the fi& bulwark of protection by
recourse to the Court againstpossible abuse or breaches of the Mandate.

Under the unankity rule (~rticles 4. and 5 of the ~ovenant), the.
Councfl could not impose its om view on the Iqandatory, If the
bndatory continued to Surna deaf sar ta the Councjlls admonitions, the
only course left Go defend the intereste of the inhabitants h order ta
pmtect the sacred trust would bo to obtafn an adjudicaii~n by the Court
on the matter connected\rith the uiterprelation or the application of
the Ihndate. But neitner the Cauncil nor the League was entitled ta
appearbefore the Court: the only effective recourse would be for a
Nember or Member~s of the Leage to invoke Micle 7 and bring the
dispute as one between then and the ifIndatory to the PermanenC taurt

for adjudication, It was for this all-important purposethat the
provision had been çouched in broad terrns. It was thus seen what an
essentialpart hrticle 7 had been intended to play as one of the
securiLies in the Ikndates Systern for the observance of the obligations
by the Mandatory,

In the secoiid place, besides the essentialit yf judicial protection
for the sacred trust and for the rights of Fiember Sates under the
Phndate, and the lack of capacity on the part of the League or the
Council to jnvoke such protection, the right to -lead the Ivhdatory
Power before the Pemanent Court had been specially and expressly
conferreci on the Iblenhersof the League, evidently dso becriuse it WES

the most reliable procedurc of ensuring nrotection by the Court.

The third reason for concluding that ikticle 7, with parkicular
reference to the ter;ii lfznother f?Iemberof the League of iVationzI1,
continued to be applicable, was that obviously an agreement had been
reached among al1 the 1~ierrùseof~ the Leagtie of Nations at the session
in April 1946 to continue -thedifferent Mandates as far as it was
praticaUy feasible ~5th reference to the oblLgations of the Mandatory
Powers and t:riere£ore to maintain the rights of the Eiiembers of the :
Leagug, notwithstmding the dissolutio f the Lsague itself. This
agreement was evidenced no+ only by the contents of the League

dissolutio nesolution of 18 April 1946 but;also by the àSscussions
relatw to the question of Iilandntes3n the First Codttee of the
Assembly and the &ole set of surrounding circumstmcea, Those
States wkich had been iliiembersof the League 2t the Lime of its

dissolution ....dissolutio nontinued to have the right tu Lnvoke the coqulsory
jurisdiction of the Court 2s before the dissolution of the League,
and that right continued to ehst for as long 2s the Respondent
held on to the rlght to ad.ninister the teraitory under the I$andat,e,

During the prolonged discussions tihich hnd been held both in
the Assenbly and in i=LsFirstCom~rLttee tlie delegates of the
Mandatory Pciwess present solenrily expressed tl~eir inbontion to continue
to achhister the territories entmsted to them Tri accordance with the
general principles of the existlng Mmdates, In particula~. the

delegate of South Africa, on 9 Iipril 1946, skatté Il*.,.the Union dll
continue to adininister the territoryscmpulously in nccorknce with
the obligations of the Phdate ... . Trie cl.is~ppearame of those
organs of the Leaps eoncerni?ci with the supervision of zmdat~s ,,.
will nzcesazfily preclude corripletecoi~rpliance with the letter of the
Mandate . The Union Governunent will neverbhe7ess regard the
dissolution of the Leagu~ as in no way dlrnjnishiilg jitsobligakions
under the Mdake . There could have bcon no clcarer
recognition on the part sf th¢ Governent of South kfrica of the
contirniance of its obligations under the Piandate for South West tlfrica,
including Article 7, after the dissolution of the League of Nations.

It ms clear from thc foregaing that there hsd been a unanhus

agreement mong dl the I4eiribeStates present ai the Assernbly meeting
that the $kndatesshotiLd be continuecl ta be exerciszd in accordance
wlth the obligations therein def ined. 5knifestly, this cont humcc
of obligattons underthe Mandate could not have begun to operate untll
the day after the dissolution of the League of Nztions; hence the
Iiteral objections derived from thc words "another E!ienbcr of the
League of Nati~ns?~ werc not meanlngfu3, since the resolution of 18 April
1946 had been adopted precisely .Ath aview to averting $hem and
continuing the Elandate as a treaty between the Mandatory and the Mernbers
of the Leagde of Nations.

In conclusion, any interpretatio nf the tem "another Merber of
the League of UationslT must tale into conside,ration ali of the relevant
facts and circumstar?ces relating ta theact of dissolution of the League,
in order to ascertain the true intent and purpose of the biembers of the
Xssembly in adopting the finsl resokution of Le &ri1 13l+6.

To deny the existenceof the agreeTent it,had been said that
Wicle 7 was nclt ail essential. provision of the Mandate instrument for
the protcctian of the sscred trust cf civilisation. No conrparabfe
clause had been inserted in the Tmsteeship Agreements fur the
territorles prevlously held under three of the four "Cl1hdates,

For the reasons statad above, the Court dismissecl the firsL and
secondobjectkons.

The third objection consisted essentially of the proposition that
the disputebrousht before the Court tas not a dispute as envisagcd
in Article 7 of the Mandate. The Court recalled thaL ktlcle 7
ref erred to I1ang dispute whatever" zrisingbetween the Iikndatory and
another Member of the Leagueof Nations. The language used was
broad, clear and precise and referred to any dispute whateverrelating
to al1 or any of the provisions of the i.kndate, whether theg mhMd to
substantive obligations of the Xmdatory toward the inhabitants of the
territory or toward tne other bIe~nbers of the League, or to itsabligatTons to submit to supernision by the League or to'protection
under Article 7, The scoye and purport of these provisions hdicated
that the Members of the League were understood to havc a legal right
or intèrest in the observance by the Piandatory of its obligations
buth toward the inhabitan stand hward the Lsague of Nations and its

M~mbers. VhiJe PLrtLcle6 of the h&te provided for administrative
supervision by the bague, Article 7 in effectprovided, with the
expressagreenenk of the Mandatory, for judicial proLection by the
Pemnanent Court. Protection of the material intercsts of the lulembers
wasof course kricludsd withh its ccmpass,but the well-being and
developmnt of the inhabitant s were noi lessimportant.

The Court concluded th~t th^ present dispute was a dispute as
envisaged in A'lrticle7 of the YIndate and that the third prelmary
objectlon must b¢ dismissed.

The GourL neAt considered the fourth and Sast objection, which in

essence conslsted of the proposition that if a dispute existed athin
the meanhg of 3Sticle 7, it was mt one whlch could not be settled by
negotiaiion w%th the Apglicants andthat there had been no such
negotiations witb a view to its settlement,

In the Courbrs view, the fact that a deadlock had been reached
in the collective negotiations in the paat, and the fact that both
the wittcn plsadhgs and oral arpents of the ParLies had clearïy
corüirmed the continuanc ef this deaàlock,, campeLZed a conclusion
that no reascrnable probability existed that further negotiations
would lead tu a seitlment. The Respondent ha* oontcnded that no
direct negotiations between 1k md the Applicants had ever been
undertaken, the Court found that what xatteredrvas no% so mch the

form of negcltiation as the attitude 2nd views of the Parties on the
substantivie ssues of the que stion involved,

lloreover, horc the disputed questions were of common interest to
a group of States on one side or the oeher 111an organised body,
pariiamentary or conferencediplomac~r had oftsn been found to be the
mst practicd form of negotiation.

For the reasons stated, the fourth 'objection was not well-faunded
and should dlso De didssed.

The Court concluded thatArticle 7 of the Mandatewas a treaty
or ccinvention si;j_llin farce within the meanhg of ibticle 37 of the
Statute of the Court and that the dispute ws one which was endsaged
in Article 7 and couidnot be set'cled by negotiation, Cansequently
thci Court was compet.ent to hear the dispute on the merits.

The Hague, EL December 2962,